author: ROBINSON, J. BEACH, J., MCDONALD, J.,

text:
    STATE OF CONNECTICUT v. DIANA L. MOULTON
    (AC 29617)
    Beach, Robinson and McDonald, Js.

      Argued April 15, 2009
    officially released April 13, 2010

      Annacarina Jacob, senior assistant public defender, for the appellant (defendant).

      Mitchell S. Brody, senior assistant state’s attorney, with whom, on the brief, were Michael L. Regan, state’s attorney, and Michelle Bredefeld, special deputy assistant state’s attorney, for the appellee (state).
   Opinion

ROBINSON, J.

The defendant, Diana L. Moulton, appeals from the judgment of conviction, rendered after a jury trial, of breach of the peace in the second degree in violation of General Statutes § 53a-181 (a) (3) and harassment in the second degree in violation of General Statutes § 53a-183 (a) (3). On appeal, the defendant claims that her conviction for harassment should be reversed because it was based on speech that did not constitute a true threat or intolerably invade a substantial privacy interest. In addition, she claims that her conviction of both crimes should be reversed because (1) the court improperly instructed the jury and (2) the evidence was insufficient to support her conviction. We reverse the judgment of the trial court.

The jury reasonably could have found the following facts. On February 4, 2006, the defendant placed a telephone call to the Salem Turnpike post office in Norwich. The defendant, a letter carrier, working out of the Salem Turnpike branch, was on leave from her job at that time. Deborah Magnant, the branch’s supervisor of customer service, answered the telephone. Magnant recognized the caller’s voice, and the caller identified herself as the defendant. Magnant testified that she had spoken with the caller over the telephone at least two other times over the previous four to five weeks and recognized the voice to be that of the defendant but had never met her. The defendant asked to speak to David Ravenelle, the postmaster, but Magnant told her that he was not working that day. The defendant then asked to whom she was speaking, and Magnant identified herself. The defendant said: “Oh, I know you. I have talked to you before.”

At that point, the defendant started talking about when she would be returning to work, “[a]nd then she said something about the shootings.” Specifically, she said: “[T]he shootings, you know, the shootings in California. I know why she did that. They are doing the same thing to me that they did to her, and I could do that, too.” The defendant was referring to an incident that took place approximately five days prior when a postal employee in California shot and killed several postal workers inside the postal facility where she worked.

Magnant testified that the defendant’s tone of voice was angry and agitated and that the statement about the shootings caused her alarm, so she began taking notes of the conversation. Magnant stated that the defendant continued to talk, “just sharing whatever was on her mind.” She discussed her post-traumatic stress disorder and when she would be returning to work. She also asked for her union steward. The defendant seemed to be upset that she was out of work and talked about how her direct supervisor and the prior postmaster harassed and bullied her and how her supervisor was incompetent. The defendant also mentioned other postal employees by name. The call ended after the defendant told Magnant that she would be calling back on Monday, when she could speak to Ravenelle, and Magnant assured her that she would make sure that Ravenelle knew she would be calling.

Magnant notified Ravenelle about the telephone call as soon as he arrived at work Monday morning, at approximately 6 a.m. Ravenelle contacted his supervisors and the postal inspection service, which acts as an internal police force for the postal service. Magnant spoke with postal inspectors that morning, who asked for her notes of the conversation and instructed her to call the local police. She contacted the police and filed an official report at that point.

The defendant was arrested and charged with breach of the peace in the second degree in violation of § 53a-181 (a) (3) and harassment in the second degree in violation of § 53a-183 (a) (3).Atrial was held onDecem-ber 5, 2007, and the jury returned a verdict of guilty on both counts on that date. On January 29, 2008, the defendant was sentenced to six months incarceration, execution suspended, and two years probation on the breach of the peace charge; ninety days incarceration, execution suspended, and one year probation on the harassment charge, to be served consecutively. This appeal followed.

I

The defendant first claims that her conviction for harassment must be reversed because the application of the harassment statute, § 53a-183 (a) (3), to her telephone conversation implicated her first amendment rights. She asserts that her conviction was an infringement of her freedom of speech because her words were constitutionally protected. According to the defendant, the jury instructions allowed the jury to find her guilty based on speech that was not given first amendment scrutiny. We agree. We conclude that the statute on its face does not infringe on the defendant’s freedom of speech. In the present case, however, the state concedes that it prosecuted the defendant for her speech alone and not for her conduct in making the telephone call. This is a misapplication of the statute, § 53-183 (a) (3), and we find nothing in the jury instructions that corrects this improper construction. Because the defendant was punished for the verbal content of her telephone call, the statute, § 53-183 (a) (3), was unconstitutional as applied.

The defendant’s claim is unpreserved, and she seeks review under State v. Golding, 213 Conn. 233, 239-40, 567 A.2d 823 (1989). The record is adequate for review, and the claim, asserting a violation of the defendant’s right to freedom of speech, is of constitutional magnitude.

“If an improper jury instruction is of constitutional magnitude, the burden is on the state to prove harmlessness beyond a reasonable doubt. . . . When reviewing [a] challenged jury instruction . . . we must adhere to the well settled rule that a charge to the jury is to be considered in its entirety . . . and judged by its total effect rather than by its individual component parts. . . . [T]he test of a court’s charge is . . . whether it fairly presents the case to the jury in such a way that injustice is not done to either party. ... In this inquiry we focus on the substance of the charge rather than the form of what was said not only in light of the entire charge, but also within the context of the entire trial. . . . Moreover, as to unpreserved claims of constitutional error in jury instructions, we have stated that under the third prong of Golding, [a] defendant may prevail . . . only if ... it is reasonably possible that the jury was misled . . . .” (Citations omitted; internal quotation marks omitted.) State v. Fleming, 111 Conn. App. 337, 353-54, 958 A.2d 1271 (2008), cert. denied, 290 Conn. 903, 962 A.2d 794 (2009).

The harassment statute was enacted for the purpose of thwarting the growing practice of using the telephone as a device to intrude upon others’ privacy in a tormenting manner. See State v. Anonymous (1978-4), 34 Conn. Sup. 689, 696, 389 A.2d 1270 (1978); Gormley v. Director, Connecticut State Dept. of Probation, 632 F.2d 938, 940, 941-42 (2d Cir.), cert. denied, 449 U.S. 1023, 101 S. Ct. 591, 66 L. Ed. 2d 485 (1980). The United States Court of Appeals for the Second Circuit has declared that “by its express terms the statute may be violated where no conversation at all occurs.” Gormley v. Director, Connecticut State Dept. of Probation, supra, 942. “What is proscribed is the making of a telephone call, with the requisite intent and in the specified manner.” Id., 941-42.

In State v. Bell, 55 Conn. App. 475, 481, 739 A.2d 714, cert. denied, 252 Conn. 908, 743 A.2d 619 (1999), this court unequivocally distinguished § 53a-183 (a) (3) as a statute that regulates conduct, not speech. This court upheld the conviction of the defendant in Bell for harassment in the second degree where the defendant had called employees of a social services program approximately forty-five times. Id., 476-77. After examining the language of § 53a-183 (a) (3), this court found that it prohibits the conduct of using the telephone as a device to “harass, annoy or alarm another person” but that the statute does not facially proscribe speech communicated via telephone. Id., 480-81. Any speech that may accompany such telephone calls is considered to be circumstantial evidence of the defendant’s intent. State v. Lewtan, 5 Conn. App. 79, 83, 497 A.2d 60 (1985). For example, a telephone call made at what would otherwise be an innocuous time, to someone the caller might normally call, may be harassing if what the caller said during the telephone call evinced his intention to harass through the actual ringing of the telephone.

Therefore, it is the physical act of placing the call and causing a ringing at the receiving end, that constitutes the actus reus of the crime. This act is what the statute punishes under § 53-183 (a) (3) and not the language that may ensue in the subsequent telephone conversation. For those reasons, we agree with the court in Bell that § 53-183 (a) (3) is not unconstitutionally overbroad on its face. In the present case, however, the state prosecuted the defendant on the basis of her speech, not her conduct in making the telephone call, and, therefore, her conviction was based on an impermissible construction of § 53a-183 (a) (3), which implicated her first amendment rights. Accordingly, we conclude that the statute was unconstitutional as applied to the defendant.

During a telephone call to the post office, the defendant made the comment that she understood how a postal worker could become enraged and that she could “do that, too,” in reference to recent killings by a postal worker in California. The state admits that it was this comment that was the basis for the charge of harassment. The state concedes, therefore, that the defendant was convicted on the basis of the verbal content of her telephone call and not the physical act of making the telephone call.

The court instructed the jury that the defendant could be convicted on the harassment count only if the state established beyond a reasonable doubt that the defendant “intended to annoy, alarm another person by making a telephone call” (Emphasis added.) This instruction, in conjunction with the state’s theory of the case, effectively signified to the jury that it was permitted to construe the words the defendant used during the telephone call, as the “making” of the telephone call. This is not the correct interpretation of the statute. Rather, the making of the telephone call refers only to the ringing of the telephone and the frequency with which the defendant makes the call. This instruction, therefore, permitted the jury to find the defendant guilty of harassment on the basis of speech that was not given first amendment scrutiny, rather than on the basis of her conduct in making the call.

The state argues that it was “uncontested and supported by overwhelming evidence”; Neder v. United States, 527 U.S. 1, 17, 119 S. Ct. 1827, 144 L. Ed. 2d 35 (1999); that the speech on which the defendant’s conviction was based was a true threat, and that, therefore, the omission in the jury instructions was harmless beyond a reasonable doubt because the speech was obviously not protected by the first amendment. It was not the lack of “true threat” instructions to the jury, however, that caused the error. Rather, it was the construction of the statute by the state as one that punishes speech and the failure of the court to clarify the correct interpretation of § 53a-183 (a) (3) in the jury instructions. Without the proper clarification, the jury improperly was permitted to base its guilty verdict on the defendant’s speech without giving it first amendment scrutiny. The jury should have been instructed to examine only whether the act of calling and causing the ringing of the telephone was harassing, and to look to the speech only for the intent in physically making the telephone call.

After considering the actual act of calling, we find that the evidence does not support the jury’s finding that the defendant intended her telephone call to the post office to be harassing. The defendant called the post office during business hours; she did not seek to contact Magnant personally. Further, the call was to the defendant’s place of employment, rather than to Magnant’s personal residence. The defendant’s call, up to that point, was dissimilar to those normally serving as a foundation for a harassment charge. During the telephone conversation, in addition to the comment about the shootings in California, the defendant complained to Magnant about returning to work as a letter carrier and being bullied by postal supervisors. The evidence does not fall so heavily in support of the argument that the telephone call itself was intended to be harassing that the improper jury instructions were harmless. We conclude that the court’s improper instruction as to the statute with which the defendant was charged was harmful and that it is reasonably possible that the jury was misled. Accordingly, the defendant’s conviction of harassment in the second degree cannot stand.

II

The defendant next claims that the court improperly instructed the jury. Specifically, she claims that the court’s instructions on both charges were incomplete and did not instruct the jury that in order to find her guilty, it had to find that the state had proven that her statements constituted a constitutionally punishable true threat. She also argues, in regard to the breach of the peace charge, that the instructions were defective because they included definitions of the terms annoy, alarm and inconvenience that were not in accordance with the judicial gloss previously given by this court and our Supreme Court to narrowly tailor the application of both the breach of the peace and harassment statutes. We agree with respect to the breach of the peace charge but disagree with respect to the harassment charge.

The defendant did not submit a request to charge or take an exception to the charge given and again seeks review underrate v. Golding, supra, 213 Conn. 239-40. It “is . . . constitutionally axiomatic that the jury be instructed on the essential elements of a crime charged.” (Internal quotation marks omitted.) State v. Crudup, 81 Conn. App. 248, 256, 838 A.2d 1053, cert. denied, 268 Conn. 913, 845 A.2d 415 (2004). We will review this claim under the Golding doctrine because the record is adequate for review, and the claim that the jury was not instructed on an essential element of an offense is of constitutional magnitude. Furthermore, we agree that a constitutional violation clearly exists and deprived the defendant of a fair trial.

As we explained previously, “[w]here . . . the challenged jury instructions involve a constitutional right, the applicable standard of review is whether there is a reasonable possibility that the jury was misled in reaching its verdict.” (Internal quotation marks omitted.) State v. Akande, 111 Conn. App. 596, 606, 960 A.2d 1045 (2008), cert. granted on other grounds, 290 Conn. 918, 966 A.2d 237 (2009). We examine the charges separately.

A

We begin our analysis by setting forth the court’s jury instructions with respect to the charge of breach of the peace. The court instructed the jury in relevant part: “The defendant is charged with breach of [the] peace in violation of § 53a-181 ... (a) (3) of the Penal Code, which provides as follows: A person is guilty of breach of [the] peace, when with intent to cause inconvenience, annoyance or alarm or recklessly creating] a risk thereof, she threatens to commit any crime against another person or his property.

“For you to find the defendant guilty of this charge, the state must prove the defendant acted with the intent to cause inconvenience, annoyance, or alarm. Intent relates to a condition of the mind of the person who commits the act and his purpose in—or her purpose in doing so. As defined by our statute, a person acts intentionally, quote, with respect to a result or conduct when their conscious objective is to cause such result or to engage in such conduct. What a person’s puipose, intention or knowledge has been is usually a matter to be determined by inference. No person is able to testify that they looked into another’s mind and saw therein a certain purpose or intention or certain knowledge to do harm.

“The only way in which a jury can ordinarily determine what a person’s purpose, intention or knowledge was at any given time, aside from that person’s own statements or testimony, is by determining what that person’s conduct was and what the circumstances were surrounding that conduct and from that infer what their purpose, intention or knowledge was. The predominant intent must be to cause what a reasonable person operating under contemporary circumstances would consider a disturbance or to a—or an impediment of lawful society, a deep feeling of vexation or provocation or a feeling of anxiety prompted by the threat—threatened danger or harm recklessly created a risk of causing inconvenience, annoyance and alarm.

“A person acts recklessly with respect to a result or to circumstances described by statute defining an offense when the defendant is aware of and consciously disregards a substantial and unjustifiable risk that such result will occur or such circumstances exist. . . . The words inconvenience, annoyance, alarm refer to what a reasonable person operating under the contemporary community [standard] would consider to be a disturbance or to the impediment or of a lawful activity, a deep feeling of vexation or feeling of anxiety prompted by a—threatened by a danger.

“That might have been repeated, but I was rushing today. The next element the state must prove beyond a reasonable doubt is that the defendant threatened to commit a crime against another person or their property. The state claims that the defendant threatened to commit the same crimes as in California against the Norwich post office. Threatened means declaring an intention or determination to injure another person or their property by the commission or of a threatened crime. A threatened—a threat imparts the expectation of bodily harm to one’s person or harm to one’s property by the crime threatened, thereby inducing fear or apprehension.”

This court and our Supreme Court have recognized that judicial gloss is necessary in the context of a jury charge on the crime of breach of the peace in order to elucidate the concept of a true threat. “True threats encompass those statements [when] the speaker means to communicate a serious expression of an intent to commit an act of unlawful violence to a particular individual or group of individuals. . . . The speaker need not actually intend to carry out the threat. Rather, a prohibition on true threats protects] individuals from the fear of violence and from the disruption that fear engenders, in addition to protecting people from the possibility that the threatened violence will occur. . . . Virginia v. Black, [538 U.S. 343, 358-60, 123 S. Ct. 1536, 155 L. Ed. 2d 535 (2003)].” (Internal quotation marks omitted.) State v. Cook, 287 Conn. 237, 247-48, 947 A.2d 307, cert. denied, 555 U.S. 970, 129 S. Ct. 464, 172 L. Ed. 2d 328 (2008). “In the context of a threat of physical violence, [w]hether a particular statement may properly be considered to be a threat is governed by an objective standard—whether a reasonable person would foresee that the statement would be interpreted by those to whom the maker communicates the statement as a serious expression of intent to harm or assault.” (Internal quotation marks omitted.) Id., 249. “As a general matter, moreover, whether such expressive conduct represents a true threat is to be decided by the jury.” Id., 252.

In State v. DeLoreto, 265 Conn. 145, 166, 827 A.2d 671 (2003), the court explained that in the absence of judicial gloss interpreting the breach of the peace statute, § 53a-181, as applying only to true threats, there was a danger that the provision could be construed as overbroad, and, therefore, “such a gloss was necessary to save the statute from constitutional infirmity.” State v. Cook, supra, 287 Conn. 249. Likewise, this court, in State v. Skidd, 104 Conn. App. 46, 932 A.2d 416 (2007), noted that DeLoreto “acknowledged that in order for a threat to be prohibited by statute in Connecticut, that threat must rise to the level of a true threat . . . .” (Internal quotation marks omitted.) Id., 55.

Under the court’s decision in DeLoreto, the defendant was entitled to an instruction that she could be convicted of the charge of breach of the peace only if her statements constituted a true threat, that is, a threat that would be viewed by a reasonable person as one that would be understood by the person against whom it was directed as a serious expression of an intent to harm or assault, and not as mere puffery, bluster, jest or hyperbole. See State v. Cook, supra, 287 Conn. 250. “Because the circumstances surrounding the alleged threat are critical to the determination of whether the threat is a true threat, the trial court also should have instructed the jury to consider the particular factual context in which the allegedly threatening conduct occurred . . . .” Id. Considering the instructions as a whole, we conclude that there is a reasonable possibility that the jury was misled. Although the state contends that the omissions from the instructions were harmless, the court’s instruction did not include the judicial gloss on the charges that is required by DeLoreto, and, as a result, the jury could have found the defendant guilty on the basis of conduct that did not rise to the level of a true threat. Had the jury been instructed properly, it is reasonably possible that it would have found that a reasonable person in the defendant’s position would not have foreseen that her statements would be interpreted as a serious expression of an intent to harm but, rather, as mere banter, jest or exaggeration. Accordingly, the defendant’s conviction on the charge of breach of the peace cannot stand.

B

The defendant also claims that the court improperly instructed the jury as to the crime of harassment in the second degree under § 53a-183 (a) (3). She specifically claims that the true thr eat judicial gloss described previously was constitutionally required to accompany the jury instructions because she was charged on the basis of the content of her speech, not on her act of making the telephone call, and the omission created a reasonable possibility that the jury was misled. We disagree. Although we agreed in part I of this opinion that § 53a-183 (a) (3) is unconstitutional as applied to the defendant, our reasoning is founded on the fact that the court improperly allowed the defendant’s conviction to be based on her speech, rather than on her conduct. Therefore, we do not agree that the statute required the judicial gloss describing true threats because the speech should not have been the foundation of the conviction.

Ill

We next address the appropriate remedy to deal with the reversal of the defendant’s breach of the peace and harassment conviction. We must determine whether the defendant is entitled to a new trial on the charges of breach of the peace and harassment or whether a judgment of acquittal should be entered. The defendant claims that the evidence was insufficient to support her conviction of both charges, and, therefore, a judgment of acquittal should be entered on both charges. We agree with respect to the harassment charge only and conclude that the defendant is, instead, entitled to a new trial on the breach of the peace charge.

“It is well established that instructional impropriety constitutes trial error for which the appropriate remedy is a new trial, rather than a judgment of acquittal. As the United States Supreme Court observed in Burks v. United States, 437 U.S. 1, 15, 98 S. Ct. 2141, 57 L. Ed. 2d 1 (1978), reversal for trial error, as distinguished from evidentiary insufficiency, does not constitute a decision to the effect that the government has failed to prove its case. As such, it implies nothing with respect to the guilt or innocence of the defendant. Rather, it is a determination that a defendant has been convicted through a judicial process which is defective in some fundamental respect, e.g., incorrect receipt or rejection of evidence, incorrect instructions, or prosecutorial misconduct. When this occurs, the accused has a strong interest in obtaining a fair readjudication of his guilt free from error, just as society maintains a valid concern for insuring that the guilty are punished.” (Internal quotation marks omitted.) State v. DeJesus, 288 Conn. 418, 434-35, 953 A.2d 45 (2008).

Where the defendant’s conviction is overturned because the evidence at trial was insufficient to support it, however, “[t]he same cannot be said . . . [and] in which case the prosecution cannot complain of prejudice, for it has been given one fair opportunity to offer whatever proof it could assemble.” (Internal quotation marks omitted.) State v. Sanseverino, 287 Conn. 608, 652, 949 A.2d 1156 (2008) (Zarella, J., dissenting), overruled in part by State v. DeJesus, 288 Conn. 418, 437, 953 A.2d 45 (2008) (en banc), and superseded in part by State v. Sanseverino, 291 Conn. 574, 969 A.2d 710 (2008) (enbanc), quoting Burks v. United States, supra, 437 U.S. 16. Therefore, because “[a] claim of insufficient evidence implicates the constitutional right not to be convicted on inadequate proof ... a defendant convicted on insufficient evidence cannot be retried without violating the double jeopardy clause.” (Citation omitted; internal quotation marks omitted.) State v. Rose, 112 Conn. App. 324, 328, 963 A.2d 68, cert. granted on other grounds, 290 Conn. 920, 966 A.2d 238 (2009).

“The standard of review we apply to a claim of insufficient evidence is well established. In reviewing the sufficiency of the evidence to support a criminal conviction we 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 [finder of fact] reasonably could have concluded that the cumulative force of the evidence established guilt beyond a reasonable doubt.” (Internal quotation marks omitted.) State v. Dickman, 119 Conn. App. 581, 587-88, 989 A.2d 613, cert. denied, 295 Conn. 923, 991 A.2d 569 (2010). “On appeal, we do not ask whether there is a reasonable view of the evidence that would support a reasonable hypothesis of innocence. We ask, instead, whether there is a reasonable view of the evidence that supports the jury’s verdict of guilty.” (Internal quotation marks omitted.) State v. Ovechka, 99 Conn. App. 679, 683, 915 A.2d 926 (2007), rev’d on other grounds, 292 Conn. 533, 975 A.2d 1 (2009) (en banc), after remand, 118 Conn. App. 733, 984 A.2d 796, cert. denied, 295 Conn. 905, 989 A.2d 120 (2010). “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. We have not had the jury’s opportunity to observe the conduct, demeanor, and attitude of the witnesses and to gauge their credibility.” (Internal quotation marks omitted.) State v. Salz, 226 Conn. 20, 30, 627 A.2d 862 (1993).

We note, however, that “[t]his [c]ourt’s duty is not limited to the elaboration of constitutional principles; we must also in proper cases review the evidence to make certain that those principles have been constitutionally applied. This is such a case, particularly since the question is one of alleged trespass across the line between speech unconditionally guaranteed and speech which may legitimately be regulated. ... In cases [in which] that line must be drawn, the rule is that we examine for ourselves the statements in issue and the circumstances under which they were made to see . . . whether they are of a character which the principles of the [f]irst [a]mendment . . . protect. . . . We must [independently examine] the whole record ... so as to assure ourselves that the judgment does not constitute a forbidden intrusion on the field of free expression.” (Internal quotation marks omitted.) State v. Cook, supra, 287 Conn. 254-55, quoting New York Times Co. v. Sullivan, 376 U.S. 254, 285, 84 S. Ct. 710, 11 L. Ed. 2d 686 (1964). “We recently have reiterated this de novo scope of review in free speech claims in DiMartino v. Richens, 263 Conn. 639, 661-62, 822 A.2d 205 (2003) . . . .” State v. DeLoreto, supra, 265 Conn. 153.

A

The defendant contends that the evidence was insufficient to convict her of the crime of breach of the peace in the second degree because the state failed to prove the necessary mens rea. To prove the defendant guilty of the crime of breach of the peace in violation of § 53a-181 (a), the state was required to prove beyond a reasonable doubt that she, “with the intent to cause inconvenience, annoyance or alarm, or recklessly creat[ing] a risk thereof ... (3) threaten[ed] to commit any crime against another person . . . .” The defendant asserts that (1) the state could not prove that she had such an intent because her words were not an actual threat but merely ambiguous speech, as illustrated by Magnant’s reaction and the circumstances surrounding the telephone call, and (2) she did not threaten to commit any crime.

“[A] defendant’s state of mind can usually be proven only by circumstantial evidence . . . [and] may be, and usually is, inferred from conduct.” (Citations omitted; internal quotation marks omitted.) State v. Salz, supra, 226 Conn. 32-33. “The state of mind of one accused of a crime is often the most significant and, at the same time, the most elusive element of the crime charged. . . . Because it is practically impossible to know what someone is thinking or intending at any given moment, absent an outright declaration of intent, a person’s state of mind is usually proven by circumstantial evidence.” (Internal quotation marks omitted.) State v. Bell, supra, 55 Conn. App. 483.

In its prosecution of the case, the state focused on the defendant’s use of the words, “I could do that, too,” referring to the California shootings. The state maintains that her use of these words was a comment made by a disgruntled and angry employee who harbored an intent to cause a feeling of anxiety prompted by threatening harm that “equat[ed] herself with a murderous postal employee in California . . . .” The defendant argues that she was simply angry about her treatment at work and that a reasonable person could not have foreseen that her statements would be interpreted by Magnant as a serious expression of an intent to harm.

We conclude that the evidence was sufficient to support a finding that a reasonable person in the defendant’s position would have foreseen that the defendant’s statements and actions would be interpreted by Magnant as a serious expression of an intent to harm. The defendant not only made reference to the incident in California where a disgruntled postal employee murdered several coworkers, but also expressed, in no uncertain terms, that she, too, could inflict such harm herself.

Neither party disputes that the defendant told Mag-nant, a fellow postal employee, “I could do that, too.” Magnant testified that the defendant’s mention of the shootings prompted her to begin taking notes on the conversation “because that was kind of a strange thing to say,” and “it alarmed [her] enough that [she] felt that [she] needed to document what was being said . . . .” Magnant asked her to repeat what she had just said, and the defendant replied: “[Y]es, the shootings in California. ... I know why [the postal employee] did that. They are doing the same thing to me that they did to her, and I could do that, too.” Although the defendant contends that her words were ambiguous, there cannot be any dispute that in the course of venting her frustration about her employment with the United States Postal Service, she told Magnant that she understood how that employee felt and that she was equally capable of expressing her frustration by shooting, and possibly killing, her coworkers.

Magnant explicitly testified that the defendant’s statement caused her alarm and that her tone of voice was both angry and agitated. The defendant had never worked with Magnant, although Magnant had spoken with her on the telephone often enough to recognize her voice, so Magnant did not know her well enough to be able to discern, in those few minutes, whether the defendant was joking or potentially was capable of carrying out this threat. Postal employees are understandably sensitive at being the target of such threats, serious or otherwise. A reasonable person in the defendant’s position should have foreseen that any potential threat against a fellow postal employee, particularly one who was not well acquainted with her, would have caused her to feel anxious. The fact that the defendant chose to air her grievances to, in effect, an anonymous postal employee instead of the persons about whom her complaints were directed is further proof of the depth of the potential instability of the defendant and further reason for there to be cause for alarm.

We do not agree with the defendant’s contention that if Magnant had concerns about the defendant, she immediately would have contacted the police. Such a requirement would set a higher bar than the statute mandates. We conclude that the jury reasonably could have concluded that the defendant had the predominant intent to cause a feeling of anxiety prompted by threatened danger or harm. Because we conclude that the evidence was sufficient to sustain her conviction on the breach of the peace charge, if a jury so finds, the defendant is entitled to a new trial on this charge based on the improper jury instructions.

B

The defendant also contends that the evidence was insufficient to convict her of the crime of harassment in the second degree under § 53a-183 (a). She contends, as previously stated, that the state failed to establish that she had the necessary intent. We agree.

To prove the crime of harassment in the second degree, the state must show that the defendant, with the intent to harass, annoy or alarm another person, made a telephone call in a manner likely to cause annoyance or alarm. “Alarm is defined as to strike with fear: fill with anxiety as to threatening danger or harm . . . .” (Internal quotation marks omitted.) State v. Cummings, 46 Conn. App. 661, 673, 701 A.2d 663, cert. denied, 243 Conn. 940, 702 A.2d 645 (1997). There is no conceptual distinction among acts intended “to harass,” “to annoy” and “to alarm.” State v. Marsala, 43 Conn. App. 527, 540, 684 A.2d 1199 (1996), cert. denied, 239 Conn. 957, 688 A.2d 329 (1997).

“Evidence of the language used in an alleged violation of the harassment statute is relevant to show the intent of the accused in making the telephone call as well as the likelihood of its causing annoyance or alarm.” State v. Lewtan, supra, 5 Conn. App. 83. “[I]n a prosecution seeking a conviction under § 53a-183, the fact finder may consider the language used in the communication in determining whether the state has proven the elements of the offense, namely, that the defendant intended to harass, annoy or alarm, and that he did so in a manner likely to cause annoyance or alarm.” State v. Murphy, 254 Conn. 561, 569, 757 A.2d 1125 (2000).

If the statute, § 53a-183 (a), were properly construed, the jury did not have before it sufficient evidence to conclude that the defendant’s telephone call, alone or in conjunction with the defendant’s words, conveyed a serious intention to harass the victim. We distinguished the defendant’s telephone call from those that normally support a conviction for harassment under § 53a-183 (a) in that it was a singular telephone call made generally to a place of business, dining business hours. This alone does not carve the telephone call out of the activity proscribed by § 53a-183 (a). The jury could have used the defendant’s speech to infer that she intended for the single telephone call to be harassing. Neither the defendant’s complaints nor her reference to the California shootings, however, show that she thought that the ringing of her telephone call would disrupt the person responsible for answering telephones at the post office. She did not admit that she knew something that would make this otherwise innocuous call harassing; for example, that she knew that she was calling a private line at the post office and that the person on the other end would be significantly disrupted by the ringing. Nothing the defendant said shed light on how she thought the ringing of her telephone call would affect the recipient. This conclusion does not mean that we consider the defendant’s words referencing the shooting in California to be insignificant but, rather, that these words do not support a finding that the defendant intended for her telephone call and the ringing it caused to be harassing. Accordingly, we conclude that the jury could not have reasonably found that the evidence was sufficient to prove that the defendant intended to harass or to annoy the victim when she made the telephone call.

The judgment is reversed and the case is remanded for a new trial on the charge of breach of the peace in the second degree and with direction to render judgment of not guilty of the charge of harassment in the second degree.

In this opinion BEACH, J., concurred.

BEACH, J.,

concurring. I agree with and join parts II and III of the majority opinion. I write separately because I disagree with portions of the majority’s analysis in part I, which discusses whether General Statutes § 53a-183 (a) (3), the harassment in the second degree statute, is unconstitutional as applied.

The majority holds—and I agree—that the evidence was insufficient to sustain a conviction of harassment in the second degree in violation of § 53a-183 (a) (3), as that statute has been construed by our courts and by the federal courts. Section 53a-183 (a) (3), proscribes not speech but, rather, the conduct of making a telephone call. It is the physical act of placing the call that constitutes the actus reus of the crime; it is not the threatening or otherwise abusive language that is criminalized. The case law clearly states that the narrow construction regarding the proscribed conduct eliminates unconstitutional overbreadth because speech, protected or otherwise, is not proscribed. “The asserted overbreadth of the Connecticut statute is circumscribed by the elements of the offense it proscribes. To run afoul of the statute, a telephone call must be made not merely to communicate, but ‘with intent to harass, annoy or alarm’ and ‘in a manner likely to cause annoyance or alarm.’ Whether speech actually occurs is irrelevant, since the statute proscribes conduct, whether or not a conversation actually ensues.” Gormley v. Director, Connecticut State Dept. of Probation, 632 F.2d 938, 942 (2d Cir.), cert. denied, 449 U.S. 1023, 101 S. Ct. 591, 66 L. Ed. 2d 485 (1980).

Because the evidence was insufficient, I would not undertake the analysis that the majority undertakes in part I as to whether the statute is unconstitutional as applied. A narrowing instruction is constitutionally required in situations in which words themselves are subject to punishment; as the majority notes in part II B, there is no such requirement when it is the intrusive telephone call itself that is the subject of prosecution. In this instance, however, words are not punished, though they may provide circumstantial evidence of intent. There is not, then, an overbreadth problem that would allow, absent judicial narrowing, application to constitutionally protected activity. I do not believe, then, that the statute is unconstitutional as applied; rather, it is simply inapplicable to punish speech at all.

Because the conviction was premised on the application of the statute to speech, I join the majority in reversing the conviction for harassment in the second degree and remanding the case with direction to render judgment of not guilty on that charge and reversing the conviction of breach of the peace in the second degree and remanding the case for a new trial on that charge.

I respectfully concur.

MCDONALD, J.,

concurring in part and dissenting in part. I agree with the majority opinion as to the breach of the peace count. I dissent from the majority’s conclusion that there was insufficient evidence to support the conviction of the defendant, Diana L. Moulton, as to the harassment count.

The state concedes that the defendant was punished on the basis of the verbal content of her telephone call and not for the conduct involved in the making of the call, which ordinarily serves as a basis for prosecution under the harassment statute, General Statutes § 53a-183 (a) (3). Historically, the use of the telephone to make repeated, unwelcome, speechless calls during the early morning hours has ordinarily been a basis for prosecution under § 53a-183 (a) (3).

The majority holds that a spoken threatening call is not to be the subject of the harassment statute because the harassment statute is violated when the telephone rings and the ringing itself is likely to cause alarm. This is one type of call where the statute may be violated. By its terms, the statute can also be violated when a conversation or speech ensues and that call is made in a manner likely to cause alarm. Section 53a-183 (a) (3) provides that one violates the statute when one with “intent to harass, annoy or alarm another person . . . makes a telephone call, whether or not a conversation ensues, in a manner likely to cause annoyance or alarm.” (Emphasis added.) In his concurrence in Gormleyv. Director, Connecticut State Dept. of Probation, 632 F.2d 938 (2d Cir.), cert. denied, 449 U.S. 1023, 101 S. Ct. 591, 66 L. Ed. 2d 485 (1980), Judge Mansfield stated that he would uphold the application of the Connecticut harassment statute to speechless calls or to obscene or threatening calls, so that it will not penalize the exercise of first amendment free speech rights. Id., 943-45 (Mansfield, J., concurring).

In Commonwealth v. Welch, 444 Mass. 80, 101, 825 N.E.2d 1005 (2005), the Massachusetts Supreme Judicial Court stated that the court effectuated the intent of the legislature to apply the Massachusetts harassment statute solely to constitutionally unprotected speech “by protecting victims from harassment that may begin with words, but tragically end with violence,” thereby establishing a continuum, along which law enforcement may confront behavior that potentially can escalate from threats to violence.

The majority opinion states that the defendant’s speech may be considered only as circumstantial evidence of the caller’s intent to alarm another person by making her telephone call. Our Supreme Court has held, however, that speech may be considered as to the alarming manner in which the call was made. State v. Murphy, 254 Conn. 561, 570, 757 A.2d 1125 (2000). As our Supreme Court stated, “in a prosecution seeking a conviction under § 53a-183, the fact finder may consider the language used in the communication in determining whether the state has proven the elements of the offense, namely, that the defendant intended to harass, annoy, or alarm and that he did so in a manner likely to cause annoyance or alarm.” Id., 569.

While I agree that without the threatening speech there could be no rational basis to consider this single telephone call to the postal office during business hours as harassment causing alarm, our law provides that threatening speech can be considered as to the alarming manner in which the call was made. Despite the threatening speech, the majority opinion concludes that the defendant’s conviction for harassment cannot stand. I disagree.

The majority opinion also concludes that there was insufficient evidence to find that the defendant intended to harass or to annoy the recipient of her telephone call. The record indicates, however, that the information charged the defendant with intending “to harass, annoy, or alarm another person” by making “a telephone call ... in a manner likely to cause annoyance or alarm . . . .” (Emphasis added.)

As the majority recognizes, with respect to the breach of the peace count, the defendant’s intent may be inferred from her conduct. There was evidence that the call was answered by a coworker of the defendant at the Norwich post office. There also was evidence that five days before, a disgruntled postal worker entered her California post office and shot and killed a number of coworkers. I would conclude that a jury could reasonably find that the defendant did intend to alarm her listener when she stated, in an angry and agitated tone during the telephone call, that the defendant could “do that, too,” because of her similar mistreatment by postal supervisors.

The majority opinion also states that no judicial gloss defining the defendant’s speech as a true threat is required because the harassment statute does not punish one for the contents of a telephone call but only for making a telephone call. In this case, the contents of the defendant’s call could be viewed as a threat of violent and lethal harm to postal office coworkers. As such, if it is a true threat, the speech is not protected by the first amendment, and it could be punished. State v. Murphy, supra, 254 Conn. 568 n.13, citing Mozzochi v. Borden, 959 F.2d 1174, 1178 (2d Cir. 1992). I would hold that the defendant’s statement must be a true threat or it could not constitutionally be punished without violating the first amendment to the United States constitution. As the majority implicitly recognizes as to the breach of the peace count, citing State v. DeLoreto, 265 Conn. 145, 827 A.2d 671 (2003), and State v. Cook, 287 Conn. 237, 249, 947 A.2d 307, cert. denied, 555 U.S. 970, 129 S. Ct. 464, 172 L. Ed. 2d 328 (2008), the right to complain about harassment and bullying by postal supervisors is protected by the first amendment. Also, as the majority points out, with respect to the breach of the peace count, the defendant’s statement in this case could be construed as not being a true threat.

Judge Mansfield, in his concurring opinion in Gormley v. Director, Connecticut State Dept. of Probation, supra, 632 F.2d 943, found that the Connecticut harassment statute was not facially overbroad, if the Connecticut Supreme Court were to apply the statute only to speechless calls or to obscene or threatening calls to avoid penalizing anyone exercising first amendment free speech rights. His concurrence observed that if it were not so construed, the statute would clearly be void for overbreadth. Id., 943-44. I conclude that the conviction based on the jury’s verdict, after the charge to the jury that did not require the defendant’s statement to be a true threat, would be an overbroad application of the harassment statute. I would, therefore, conclude that the court’s failure to instruct the jury that the defendant’s statement must be a true threat would require a new trial as to the harassment count.

Because I do not agree with the majority that the evidence would not support a conviction for harassment in the second degree, I would order a new trial on that count.

For the reasons given, I respectfully dissent from the order to enter a judgment of not guilty as to the harassment count.

       General Statutes § 53a-181 (a) provides in relevant part: “A person is guilty of breach of the peace in the second degree when, with intent to cause inconvenience, annoyance or alarm, or recklessly creating a risk thereof, such person ... (3) threatens to commit any crime against another person or such other person’s property . . . .”

       General Statutes § 53a-183 (a) provides in relevant part: “A person is guilty of harassment in the second degree when ... (3) with intent to harass, annoy or alarm another person, he makes a telephone call, whether or not a conversation ensues, in a manner likely to cause annoyance or alarm.”

       The first amendment to the United States constitution provides: “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.” U.S. Const., amend. I.

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

       “The [f]irst [ajmendment permits restrictions upon the content of speech in a few limited areas, which are of such slight social value as a step to truth that any benefit that may be derived from them is clearly outweighed by the social interest in order and morality. . . . Thus ... a [s]tate may punish those words which by their very utterance inflict injury or tend to incite an immediate breach of the peace.” (Internal quotation marks omitted.) State v. DeLoreto, 265 Conn. 145, 154, 827 A.2d 671 (2003). These words have been categorized in American jurisprudence as “true threats.” See id. Our jurisprudence instructs us, however, that there is no need to differentiate between protected speech and true threats under § 53a-183 (a) (3), because the statute was created to punish conduct only.

       The use of the telephone to make repeated or unwelcome calls to a person’s residence or personal phone, usually at night or in the early hours of the morning, is commonly the basis for conviction under § 53a-183 (a) (3). See, e.g., State v. Therrien, 117 Conn. App. 256, 978 A.2d 556 (initial conviction for harassment based on defendant’s threatening calls to victim’s personal cellular telephone), cert. denied, 294 Conn. 913, 983 A.2d 275 (2009); State v. Lemay, 105 Conn. App. 486, 938 A.2d 611 (affirming defendant’s conviction for harassment where he repeatedly, anonymously called victim and made banging noises), cert. denied, 286 Conn. 915, 945 A.2d 978 (2008); State v. Bell, supra, 55 Conn. App. 475; State v. Marsala, 43 Conn. App. 527, 684 A.2d 1199 (1996) (affirming defendant’s conviction for harassment based on more than twenty-five telephone calls defendant made to victim during early morning hours), cert. denied, 239 Conn. 957, 688 A.2d 329 (1997); State v. Marsala, 1 Conn. App. 647, 474 A.2d 488 (1984) (affirming defendant’s conviction for harassment where he made threatening calls to victim at her home, at night, and broke victim’s window).

         Unlike the crime of breach of the peace under § 53a-181 (a), the crime of telephone harassment under § 53a-183 is not a threatening language crime. A violation of § 53a-183 (a) (3) is predicated on conduct. In part I of this opinion, we concluded that the court allowed the state to impermissibly apply the statute, § 53a-183 (a) (3), in a way that made its application unconstitutional because it punished speech. Therefore, rather than applying a judicial gloss to the statute, the court should clarify in its instructions that in regard to a violation of § 53a-183 (a) (3), the jury is only to determine whether the actual act of making the telephone call and causing it to ring was harassing, and to consider the defendant’s subsequent speech only to infer her intent in making the call. Accordingly, the jury instructions on this charge were improper, but a judicial gloss is not the correct remedy.

       See part I of this opinion.

       See footnote 6 of this opinion.

       As to the conviction of breach of the peace in the second degree under General Statutes § 53a-181 (a) (3), the majority holds that because it is language that was the subject of punishment in this case, a “true threat” instruction must be given in order to avoid the possible criminalization of speech protected by the first amendment. I agree with the majority's reasoning and holding on that score.

       There, of course, has to be an accompanying intent to annoy, harass or alarm, and the call has to be made in a manner likely to cause annoyance or alarm.

       It nonetheless may be advisable for a trial court to define carefully the intent element and the manner in which the call must be made in order to be punishable.


source: Caselaw Access Project

author: BISHOP, J.

license: Public Domain

text:
    WILLIE YOUNG v. COMMISSIONER OF CORRECTION
    (AC 30038)
    Bishop, DiPentima and Tyma, Js.

      Argued January 4
    officially released April 13, 2010

      Anthony E. Parent, special public defender, for the appellant (petitioner).

      Sarah Hamm, assistant state’s attorney, with whom, on the brief, were Michael Dearington, state’s attorney, and Linda N. Howe, former senior assistant state’s attorney, for the appellee (respondent).

       The listing of judges reflects their seniority status on this court as of the date of oral argument.

   Opinion

BISHOP, J.

The petitioner, Willie Young, appeals from the judgment of the habeas court denying his petition for a writ of habeas corpus. On appeal, the petitioner claims that the court improperly found that (1) his trial counsel was not ineffective in failing to reassert a Bat-son claim during jury selection and (2) his appellate counsel was not ineffective in failing to file a motion for articulation of the trial court’s reasoning in denying a motion to suppress. We affirm the judgment of the habeas court.

A recitation of the underlying facts was set forth in this court’s opinion in State v. Young, 76 Conn. App. 392, 819 A.2d 884, cert. denied, 264 Conn. 912, 826 A.2d 1157 (2003), in which we affirmed the trial court’s judgment of conviction. There, we determined that the jury reasonably could have found the following facts: “At approximately 5:20 p.m. on December 12, 1999, two employees at the Family Dollar store in Hamden, Laura Chesmar and George Cole, were approached by the [petitioner] as they were counting cash at the registers. The [petitioner] ordered Chesmar and Cole to sit on the floor while he took cash from the registers. He then ordered them to accompany him to the back of the store, where he forced Cole at gunpoint to unlock the door to the store’s back office. Once inside the office, the [petitioner] forced Cole to retrieve approximately $8000 from a money box kept in a filing cabinet. He then bound Chesmar and Cole using electrical cords. They subsequently freed themselves and escaped to a nearby restaurant, where they telephoned the police.” Id., 394-95.

Following a jury trial, the petitioner was convicted of one count of robbery in the first degree in violation of General Statutes § 53a-134 (a) (4), two counts of kidnapping in the first degree in violation of General Statutes § 53a-92 and one count of larceny in the second degree in violation of General Statutes § 53a-123. On December 8, 2000, the trial court, Thompson, J., imposed an effective sentence of seventeen years incarceration followed by eight years of special parole. The petitioner filed a direct appeal, and his conviction was affirmed by this court. See id., 394. The petitioner subsequently filed a petition for a writ of habeas corpus, and on September 12, 2005, an amended petition alleging ineffective assistance of his trial counsel, attorney Beth A. Merkin, and his appellate counsel, attorney Mary Anne Royle. After a hearing, the habeas court, Schu-man, J., denied relief in a detañed memorandum of decision. The court subsequently granted a petition for certification to appeal. This appeal foUowed. Additional facts wifi be set forth as necessary.

I

The petitioner first claims on appeal that the habeas court improperly denied his claim that his trial counsel provided ineffective assistance to him on the ground that counsel fañed to reassert, during jury selection, a claim under Batson, thus, making it probable that he could not prevail on appeal. We disagree.

The following additional factual and procedural history is relevant to the petitioner’s claim. This court, in State v. Young, supra, 76 Conn. App. 392, stated that “[d]uring jury selection, the prosecutor questioned L, a black male venireperson. In response to the prosecutor’s questions, L stated that someone had once broken into his home and stolen some items. L also indicated that many of his acquaintances had been victims of crimes, including armed robbery, and that he had a good friend who was a convicted murderer. When the prosecutor asked L whether he would have any trouble making a decision as a juror in fight of his familiarity with people on both sides of the law, L answered in the negative. In elaborating on his answer, however, L stated that ‘God is the final judge, so it’s nothing on me.’ ” Id., 395. Prior to the lunch recess, the state asked L, “you sound like you’re the kind of person that if you really believe strongly in something and you didn’t agree with what you were being told that you stick to your guns, it sounds like?” L responded: “Pretty much, but the Bible says we still must live by the laws of the land in spite.” After the lunch recess, L returned with a prepared statement in an attempt to clarify his position: “[Bjasically, it’s this; this is where I stand. Okay. All right. Christ is the word, okay, the word of God. And Christ is my Lord. So, I have to have compassion and sympathy for him, just like I have to have compassion and sympathy on all you guys in this courtroom. It doesn’t make any difference because he’s on trial. He’s a sinner just like all of us in this room. So, I have to have that compassion and sympathy for him, but Christ is also the truth. So, that means that if I see that he is guilty I cannot deny it, I cannot lie. I have to speak on it, but, in that case, if he is guilty and I see that he’s guilty, then, you know, all I can do is pray for him because God is his judge. And if I see that he’s innocent and the judge and the jury say that he’s guilty, then all I can do is pray for the judge and the jury because God is their judge. So, that’s where I’m standing.” In response to follow-up questions from defense counsel, L repeatedly said that he thought he could put his personal beliefs aside and consider the case based on the court’s instructions.

The state chose to exercise a peremptory challenge to excuse L from jury service. Attorney Merkin objected pursuant to Batson and requested that the state give a race neutral reason for exercising a peremptory challenge. In response, the state explained that L had given contradictory answers to questions about whether “he could follow instructions from the court that he felt, in his heart, he could not agree with.” The state claimed that the fact that L had felt the need to return from the lunch recess with a prepared statement spelling out his opinion was evidence that L’s earlier statements had been contradictory. The state also reasoned that L had had substantial contact with people who had been victims of crimes, as well as people who were incarcerated. The state went on to note that “[o]ne of [the people with whom he is associated] is a person who he is, I guess, intent on corresponding with, who’s a convicted murderer. So, that, I think, it puts him in a kind of different status than a juror the state would typically want.”

The court then asked Merkin, “[d]o you claim those [reasons] are pretextual?” Merkin argued instead that there was no merit to the state’s concern about L having contact with victims of crimes and an ongoing correspondence with a convicted murderer because many African-American males in New Haven have such contacts and that if that were a legitimate reason to excuse a venireperson, then the court would never have any young African-American males from New Haven serving on juries. Counsel also disagreed with the state that L had given contradictory answers as to whether he would be able to follow the court’s instructions. The court, again, asked, “[s]o, you’re claiming that those reasons are pretextual? Isn’t that the standard? Whether there is a systematic [exclusion] and that the reason given is, rather than being race neutral, is pretextual?” Merkin responded in the affirmative. After the state responded, largely reiterating its previously stated reasons for the peremptory challenge, the court concluded: “Well, on this record, I’m not prepared to make a finding that the reasons given are pretextual.”

Later that afternoon, a Caucasian venireperson, E, was questioned by Merkin and then by the state. At one point, E stated that he knew some individuals who had been arrested, but none of the arrests had been for serious crimes. He also stated that he probably had a family member who had been arrested. Merkin accepted E to be a juror, as did the state.

On direct appeal, the petitioner claimed that the court improperly had failed to find discrimination by the state, due to the prosecutor’s disparate treatment of L and E, who the petitioner alleged possessed similar characteristics. This court explained that it would be unfair to require the trial court to conduct a comparative evaluation of the two venirepersons when they were not identified by the petitioner in support of his Batson claim and concluded that the petitioner’s “failure to inform the trial court of the full factual basis for the claim rendered] [the] claim unreviewable.” (Internal quotation marks omitted.) State v. Young, supra, 76 Conn. App. 399. Before the habeas court, the petitioner claimed that his trial counsel had been ineffective on the ground that no attorney of reasonable competence would have failed to preserve another claim of disparate treatment after E was accepted as a juror or would have failed to reargue the first Batson claim regarding L in light of the allegedly similar characteristics between L and E. The petitioner argued that because Merkin failed to take any of these actions, the record was insufficient, and, as a consequence, this court refused to review the petitioner’s claim on appeal. Thus, the petitioner concludes that Merkin’s failure to renew a Batson claim regarding the exclusion of L from the jury after E had been accepted likely doomed what probably would have been a successful issue on appeal.

The habeas court denied relief, finding that “Merkin acted reasonably in not renewing the Batson challenge [after E had been accepted] because a comparison of the voir dire responses of the two venirepersons in question [did] not raise an inference of discrimination.’’ The court found, further, that “there was no basis to infer that the prosecutor’s decision to accept E was a product of bias in favor of white jurors or discrimination against African-American jurors . . . [and] the [petitioner, therefore [had] not overcome the presumption that trial counsel ‘made all significant decisions in the exercise of reasonable professional judgment.’ ”

Initially, we 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.” (Internal quotation marks omitted.) Francis D. v. Commissioner of Correction, 118 Conn. App. 350, 352, 983 A.2d 70 (2009), cert. denied, 294 Conn. 930, 986 A.2d 1056 (2010). “Whether the representation a defendant received at trial was constitutionally inadequate is a mixed question of law and fact. ... As such, that question requires plenary review by [an appellate] court unfettered by the clearly erroneous standard.” (Internal quotation marks omitted.) McCown v. Commissioner of Correction, 113 Conn. App. 117, 119, 966 A.2d 271, cert. denied, 292 Conn. 902, 971 A.2d 689 (2009).

“To determine whether the petitioner has demonstrated that counsel’s performance was ineffective, we apply the two part test established in Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984).” (Internal quotation marks omitted.) McCown v. Commissioner of Correction, supra, 113 Conn. App. 119. According to Strickland, “[a] claim of ineffective assistance of counsel consists of two components: a performance prong and a prejudice prong. To satisfy the performance prong . . . the petitioner must demonstrate that his attorney’s representation was not reasonably competent or within the range of competence displayed by lawyers with ordinary training and skill in the criminal law. ... To satisfy the prejudice prong, a claimant must demonstrate that there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different. . . . The claim will succeed only if both prongs are satisfied.” (Internal quotation marks omitted.) Turner v. Commissioner of Correction, 118 Conn. App. 565, 568, 984 A.2d 793 (2009). “A fair assessment of attorney performance requires that every effort be made to eliminate the distorting effects of hindsight, to reconstruct the circumstances of counsel’s challenged conduct, and to evaluate the conduct from counsel's perspective at the time. Because of the difficulties inherent in making the evaluation, a court must indulge a strong presumption that counsel’s conduct falls within the wide range of reasonable professional assistance; that is, the defendant must overcome the presumption that, under the circumstances, the challenged action might be considered sound trial strategy.” (Internal quotation marks omitted.) Davey B. v. Commissioner of Correction, 114 Conn. App. 871, 876, 971 A.2d 735 (2009).

In analyzing the first prong of the Strickland test, we conclude that the record does not reveal anything to contradict the habeas court’s conclusion that Merkin’s representation of the petitioner was reasonably competent. The petitioner grounds his claim of ineffective assistance of counsel on the premise that “[d]espite the similarities” between the two venirepersons, L and E received disparate treatment and that any competent attorney would have recognized this and responded. We disagree.

The voir dire examinations at issue revealed very little similarity between L and E. They worked in different fields of employment. L was involved in social work for an organization that helped mentally disabled adults get jobs and learn to function in society with relative independence, and he previously had worked with an organization through which he taught inner city youths to become leaders. E was a stone mason who ran a small business with his father and described himself as not being a “very big emotional person . . . .” He mentioned that his wife always tells him that he has no emotion. These differences, while not necessarily indicative of the relative ability of either venireperson to serve as a juror, were part of the picture available to counsel as they were deciding whether to accept either potential juror, to exercise peremptory challenges and, specifically, whether defense counsel should have reiterated a Batson claim after E had been accepted by both parties.

Notwithstanding differences between L and E, the petitioner, nevertheless, asserts that L and E were similarly situated on the ground that they each testified to knowing people who had been arrested, which was significant because the state had justified its exercise of a peremptory challenge as to L, in part, on the ground that he had a friend who was incarcerated. The seriousness of the offenses in question, however, were not similar. E stated that he had friends who had been arrested but that none of the arrests had been for a serious crime. E also stated, when asked if he had any family members that had been arrested, “I’m sure I have. I have twenty-four [aunts and uncles], so I got lots of relatives.” Despite the petitioner’s characterization of this response as an affirmative statement that he had family members who had been arrested, that claim is no more than supposition. Conversely, L attested to having a good friend who was incarcerated for murder and expressed a desire to renew communication with him.

Additionally, the state expressed a concern that L’s religious devotion could prevent him from following the law as dictated by the court. Wearing a T-shirt that bore verses of scripture, L made statements regarding God as the judge and hesitated before responding to certain questions pertaining to his willingness to set aside his beliefs and accept instructions from the court. E did not make any comments that could reasonably be interpreted as raising concerns of this nature.

In sum, the record amply supports the conclusion of the habeas court that there would have been no reason that, after hearing the voir dire of E, a reasonably competent attorney should have found it necessary, or appropriate, to renew a Batson challenge regarding L. Thus, the habeas court correctly determined that the petitioner failed to show that Merkin had acted in a manner outside of the “range of competence displayed by lawyers with ordinary training and skill in the criminal law”; (internal quotation marks omitted) Turner v. Commissioner of Correction, supra, 118 Conn. App. 568; and, thus, had not satisfied the performance prong under Strickland. Because Strickland requires that the petitioner satisfy both prongs of the test for ineffective assistance of counsel; see id.; we need not address the issue of prejudice and conclude that the petitioner has failed to show that he received ineffective assistance of trial counsel. See Mitchell v. Commissioner of Correction, 109 Conn. App. 758, 765, 953 A.2d 685, cert. denied, 289 Conn. 950, 961 A.2d 417 (2008).

II

The petitioner next claims that the habeas court improperly concluded that he received effective assistance of appellate counsel. Specifically, the petitioner alleges that because Royle failed to file a motion for articulation and to ensure that there was an adequate record before the Appellate Court regarding his motion to suppress, this court declined to review his claim that the trial court improperly declined to suppress the in-court identification of him by Cole. The petitioner claims, thus, that he was unsuccessful in what would, otherwise, have been a successful appeal.

The following additional factual and procedural history is relevant to the petitioner’s claim. Prior to trial, the petitioner filed a motion to suppress the in-court identification of him by Cole. At the suppression hearing, Cole testified that at some point after the petitioner’s arrest, the office of the victim advocate informed him that the petitioner was scheduled to be arraigned at the courthouse in Meriden. He stated that he decided to go to the courthouse to attend the arraignment because he “just wanted to see what was . . . going on with the case.” (Internal quotation marks omitted.) State v. Young, supra, 76 Conn. App. 407. The prosecutor asked Cole whether his intention in going to the arraignment was to identify anybody, to which Cole responded in the negative. Id. Cole testified that the petitioner’s name was read as he was brought into the courtroom, and Cole could see the back of the petitioner’s head and a profile of his face. On the basis of this view, Cole determined that the petitioner could have been the man who committed the robbery. Id. Merkin asked Cole whether this viewing of the petitioner at the arraignment affected his present ability to identify the petitioner, to which he responded: “No. Because, you know, the picture I have of him in my mind is when he popped up with the gun at the time [of the robbery]. That’s the picture I have in my mind.” The court denied the motion to suppress, concluding that Cole’s identification of the petitioner at trial would be based on his recollection of the robbery and not on what he had seen at the arraignment. State v. Young, supra, 407. Cole later testified at trial and identified the petitioner as the perpetrator of the robbery.

On direct appeal, the petitioner alleged that the court improperly denied his motion to suppress the in-court identification of him by Cole. The petitioner alleged that the in-court identification violated his right to due process because Cole had attended the petitioner’s arraignment at the suggestion of the office of the victim advocate, which he alleged constituted an identification compelled by state action. Id., 408. Additionally, the petitioner alleged that Cole’s viewing of the petitioner at the arraignment constituted an unnecessarily suggestive identification procedure. Id., 409. In the direct appeal, this court reached the following conclusion: “[t]he transcript in the present case does not contain a sufficiently detailed statement of the [trial] court’s findings. Specifically, the court did not make any findings whatsoever regarding the suggestiveness of the arraignment proceedings. Furthermore, with regard to the reliability of the in-court identification, the court’s only express finding was that the identification was based on Cole’s observations on the day of the robbery, rather than anything that took place at the arraignment. The court did not indicate what factors it weighed in making the reliability determination. The [petitioner] did not request an articulation of the court’s findings or reasoning on those issues. . . . Consequently, even if we were to agree with the [petitioner’s] argument that the action of the office of the victim advocate in notifying a crime victim of a defendant’s arraignment constitutes the type of state action necessary for a successful challenge to the reliability of an in-court identification, the record would be inadequate to review the court’s determination regarding the suggestiveness of the arraignment proceedings and the reliability of the in-court identification. We therefore decline to review the [petitioner’s] claim.” (Citation omitted.) Id., 409-10.

At the habeas hearing, the petitioner claimed that he had received ineffective assistance of appellate counsel because, inter alia, Royle had failed to file a motion for articulation of the trial court’s reasons for denying the motion to suppress Cole’s in-court identification of the petitioner. The court rejected the petitioner’s claim on the ground that Royle “could not reasonably have anticipated that the Appellate Court would require articulation in this situation.” The habeas court went on to explain that “[t]his case is not one in which the trial court did not decide the issue raised on appeal. On the contrary, as acknowledged by the Appellate Court, the trial court did decide the issue of whether the identification of the petitioner at the arraignment played any improper role in the subsequent in-court identification of the petitioner by Cole.” The habeas court also concluded that the trial court’s ruling appeared to have addressed the necessary issues and that it did so with reasonable clarity. The habeas court noted that because the state did not argue on appeal that the trial court’s ruling was not sufficiently clear, Royle would not have been alerted to a need for a motion for articulation in that regard. The court also cited recent decisional law in which this court did not find it necessary to have detailed findings from the trial court in order to review denials of motions to suppress, and, also, opinions in which this court reviewed the denial of a motion in which the trial court had not articulated its reasoning. See State v. Harris, 85 Conn. App. 637, 651, 858 A.2d 284, cert. denied, 272 Conn. 901, 863 A.2d 695 (2004); State v. Colon, 70 Conn. App. 707, 722, 799 A.2d 317, cert. denied, 261 Conn. 933, 806 A.2d 1067 (2002); State v. Sanchez, 69 Conn. App. 576, 579-83, 795 A.2d 597 (2002). Thus, the habeas court concluded that “there was no deficiency in Royle’s failure to anticipate the need for a motion for articulation.”

Additionally, the habeas court, quoting Small v. Commissioner of Correction, 286 Conn. 707, 720, 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), found that the petitioner did not demonstrate that a reasonable probability existed that “ ‘but for, his counsel’s [error], he would have prevailed on his appeal.’ ” The court explained that it would be purely speculative to conclude that the trial court would say anything in an articulation that would undermine its previous determinations that Cole’s in-court identification was independent of his attendance at the Meriden arraignment and that the action by the office of the victim advocate did not constitute state action.

Initially, we set forth the relevant standard of review. As noted previously, “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.” (Internal quotation marks omitted.) Francis D. v. Commissioner of Correction, supra, 118 Conn. App. 352. To succeed on a claim of ineffective assistance of appellate counsel, the petitioner must meet both prongs of the Strickland test, performance and prejudice. Turner v. Commissioner of Correction, supra, 118 Conn. App. 568. Additionally, when a petitioner is claiming ineffective assistance of counsel, the prejudice prong is satisfied if it is demonstrated that “there is a reasonable probability that but for appellate counsel’s error, the petitioner would have prevailed in his direct appeal.” Charles v. Commis sioner of Correction, 112 Conn. App. 349, 353, 962 A.2d 868, cert. denied, 290 Conn. 922, 966 A.2d 235 (2009).

The petitioner’s claim readily may be disposed of by reference to the prejudice prong. The petitioner has failed to meet his burden of proving that but for Royle’s allegedly improper conduct he would have been successful in his direct appeal. Because both prongs of the test for ineffective assistance of counsel must be met for a petitioner to succeed, and because we conclude that the petitioner has failed to establish the prejudice prong of the test, we need not analyze whether Royle’s conduct amounted to ineffective performance. See Weinberg v. Commissioner of Correction, 112 Conn. App. 100, 107, 962 A.2d 155, cert. denied, 291 Conn. 904, 967 A.2d 1221 (2009).

Whether or not Royle should have filed a motion for articulation with the trial court in order to provide a record of the court’s reasons for denying the motion to suppress Cole’s in-court identification, the petitioner did not show, at the habeas proceeding, that, but for Royle’s failure to request an articulation, he would have prevailed on appeal.

In support of his claim on appeal, the petitioner highlights statements from this court’s opinion from his direct appeal in which we noted that the trial court, in ruling on the motion to suppress, did not make any findings regarding the suggestiveness of the arraignment proceedings and did not explain which factors it considered in making the determination that the in-court identification was rehable. Even if the trial court had articulated those reasons, however, one can only speculate as to how such an exposition would have beneficially affected the petitioner’s chances of success on appeal.

As noted, the trial court specifically found that Cole’s ability to give an in-court identification was based on information independent of the arraignment. Thus, even if the trial court made a finding that the arraignment proceedings were suggestive, that does not lead to the conclusion that Cole’s attendance at the proceedings in any way affected his ability to identify the petitioner at trial. In sum, there is no basis for concluding that an articulation by the trial court would have had any effect on the outcome of the petitioner’s appeal.

The habeas court found, and we agree, that the trial court’s factual determination that Cole’s identification of the petitioner was independent of the arraignment proceeding, was well supported by the testimony from the hearing on the motion to suppress. Because the petitioner failed, at the habeas hearing, to demonstrate that he would have been successful on appeal had Royle obtained an articulation from the trial court, he failed to prove that he was deprived of the effective assistance of appellate counsel.

The judgment is affirmed.

In this opinion the other judges concurred.

         Batson v. Kentucky, 476 U.S. 79, 96-98, 106 S. Ct. 1712, 90 L. Ed. 2d 69 (1986).

       In the alternative, the petitioner asks this court to exercise its supervisory powers to correct a substantial injustice by reviewing his claim that the trial court improperly denied his motion to suppress two eyewitness identifications of him. “Appellate courts possess an inherent supervisory authority over the administration of justice. . . . [0]ur supervisory authority [however] is not a form of free-floating justice, untethered to legal principle. . . . [0]ur supervisory powers are invoked only in the rare circumstance where [the] traditional protections are inadequate to ensure the fair and just administration of the courts . . . (Internal quotation marks omitted.) State v. Elson, 116 Conn. App. 196, 247, 975 A.2d 678 (2009). In this collateral proceeding, and under the circumstances of this case, the exercise of our supervisory powers is not warranted.

       In Batson, the United Supreme Court held that “the Equal Protection Clause forbids the prosecutor to challenge potential jurors solely on account of their race or on the assumption that [members of one race] as a group will be unable impartially to consider the State’s case against [a defendant of the same race].” (Internal quotation marks omitted.) State v. Rodriguez, 37 Conn. App. 589, 596, 658 A.2d 98, cert. denied, 234 Conn. 916, 661 A.2d 97 (1995), quoting Batson v. Kentucky, 476 U.S. 79, 89, 106 S. Ct. 1712, 90 L. Ed. 2d 69 (1986).

       We refer to venirepersons by initial to protect their legitimate privacy interests. See, e.g., State v. Wright, 86 Conn. App. 86, 88 n.3, 860 A.2d 278 (2004).

       “Under Connecticut law, [o]nce a [party] asserts a Batson claim, the [opposing party] must advance a neutral explanation for the venireperson’s removal. . . . The [party asserting the Batson claim] is then afforded the opportunity to demonstrate that the [opposing party’s] articulated reasons are insufficient or pretextual. . . . [T]he trial court then [has] the duty to determine if the [party asserting the Batson claim] has established purposeful discrimination. . . . The [party asserting the Batson claim] carries the ultimate burden of persuading the trial court, by a preponderance of the evidence, that the jury selection process in his or her particular case was tainted by purposeful discrimination.” (Internal quotation marks omitted.) State v. Collazo, 115 Conn. App. 752, 762, 974 A.2d 729 (2009), cert. denied, 294 Conn. 929, 986 A.2d 1057 (2010).

       The record does not reflect clearly that E was Caucasian. However, because the parties have treated E as such throughout the petitioner’s direct appeal and the habeas trial, we will proceed on that assumption.

       The petitioner also argued before the habeas court that Merkin was ineffective in that she failed to raise a dual motivation claim where the state proffered two purportedly race neutral reasons for its peremptory challenge as to L and then accepted E as a juror. The habeas court disposed of that claim in a footnote in which it concluded that there was no factual foundation for a claim of that nature. On appeal, the petitioner does not challenge that portion of the court’s decision.

       The petitioner’s motion to suppress also attempted to exclude the identification of the petitioner by Chesmar on the ground that it was unnecessarily suggestive. The claim of suggestiveness was that after Chesmar picked the petitioner’s photograph out of an array provided by the police, she asked the police whether she had picked the person who was a former employee of the Family Dollar store, and the police informed her that she had. See State v. Young, supra, 76 Conn. App. 406 n.5. Additionally, the petitioner claimed the identification was suggestive because Chesmar had expected the perpetrator to be included in the photographic array. The motion was denied, and the petitioner claimed on direct appeal that this was improper.

        On appeal, however, this court did not review the claim on the ground that it was briefed inadequately. Id. The petitioner later claimed before the habeas court that Royle’s failure to brief this issue adequately amounted to ineffective assistance of his appellate counsel. The court found that Royle did inadequately brief the issue but that the petitioner had failed to prove prejudice. The court found that because the allegedly suggestive remark by the police occurred after Chesmar had made the identification of the petitioner, it could not have influenced her identification, and, thus, the petitioner could not show that he would have been successful but for Royle’s failure to brief the issue properly. The petitioner does not challenge the court’s ruling as it pertains to Chesmar’s identification.

       In order to prevail on a claim challenging an eyewitness identification the claimant must satisfy a two-pronged test: “first, it must be determined whether the identification procedure was unnecessarily suggestive; and second, if it is found to have been so, it must be determined whether the identification was nevertheless reliable based on an examination of the totality of the circumstances.” (Internal quotation marks omitted.) State v. Randolph, 284 Conn. 328, 384, 933 A.2d 1158 (2007). “[T]he factors to be considered in evaluating the likelihood of misidentification include the opportunity of the witness to view the criminal at the time of the crime, the witness’ degree of attention, the accuracy of the witness’ prior description of the criminal, the level of certainty demonstrated by the witness at the confrontation, and the length of time between the crime and the confrontation.” Neil v. Riggers, 409 U.S. 188, 199-200, 93 S. Ct. 375, 34 L. Ed. 2d 401 (1972). Our Supreme Court declined to abandon the Neil factors in State v. Ledbetter, 275 Conn. 534, 557, 881 A.2d 290 (2005), cert. denied, 547 U.S. 1082, 126 S. Ct. 1798, 164 L. Ed. 2d 537 (2006).


author: PER CURIAM.

text:
    KIMBERLY ALBRIGHT-LAZZARI ET AL. v. COMMISSIONER OF CHILDREN AND FAMILIES
    (AC 29373)
    (AC 30418)
    DiPentima, Beach and Stoughton, Js.

    Argued January 20
    officially released April 13, 2010

      Kimberly Albright-Lazzari, pro se, the appellant (named plaintiff in AC 29373 and AC 30418).

      Anthony Lazzari, pro se, the appellant (plaintiff in AC 29373).

      Stephen G. Vitelli, assistant attorney general, with whom, on the brief, were Richard Blumenthal, attorney general, and Susan T. Pearlman, assistant attorney general, for the appellee (defendant in AC 29373 and AC 30418).

       The listing of judges reflects their seniority status on this court as of the date of oral argument.

   Opinion

PER CURIAM.

The plaintiffs, Kimberly Albright-Laz-zari and Anthony Lazzari, appeal from the judgments of the trial court dismissing their appeal from the administrative decision of the department of children and families (department). The plaintiffs’ administrative appeal challenged the department’s substantiation of claims against Kimberly Albright-Lazzari of emotional neglect of her child and the placing of her name on the central child abuse and neglect registry (registry) maintained by the defendant, the commissioner of children and families, pursuant to General Statutes § 17a-101k. We affirm the judgments of the trial court.

Our review of the entire record, the briefs and the exhibits reveals the following facts and procedural history. Kimberly Albright-Lazzari was the mother of a four year old son when she and Anthony Lazzari met. The plaintiffs subsequently married, and, after they began living together as husband and wife, a daughter was bom to them. After various referrals and investigations, on or about May 25,2004, the department substantiated claims of emotional and physical neglect of her son by Kimberly Albright-Lazzari and physical neglect of their daughter by both plaintiffs. The plaintiffs appealed the substantiation decision and on April 23, 2007, the department conducted an administrative hearing to resolve the respective appeals.

On July 2, 2007, the department’s hearing officer issued a final decision upholding the substantiation of emotional neglect by Kimberly Albright-Lazzari of her son but rejecting the substantiation of physical neglect of the two children by both plaintiffs. The hearing officer also concluded that Kimberly Albright-Lazzari poses a risk to the health, safety and well-being of children and placed her name on the registry. Both plaintiffs filed an administrative appeal from the hearing officer’s final decision pursuant to General Statutes § 4-183.

On October 19, 2007, the defendant filed a motion to dismiss the administrative appeal as to Anthony Lazzari for lack of subject matter jurisdiction. Specifically, the defendant claimed that Anthony Lazzari was not aggrieved by the department’s final decision because he had prevailed at the administrative hearing. The court granted the defendant’s motion to dismiss, from which both plaintiffs filed an appeal to this court with docket number AC 29373. Thereafter, the trial court issued a memorandum of decision in which it dismissed Kimberly Albright-Lazzari’s appeal on the merits. The court found, inter alia, that there was sufficient evidence to support the department’s substantiation of emotional neglect and concluded that she had failed to demonstrate that the defendant erred in placing her name on the central registry. Kimberly Albright-Lazzari filed an appeal from that decision with docket number AC 30418. Additional facts will be set forth as necessary.

I

AC 29373

The plaintiffs filed their administrative appeal from the final decision of the department’s hearing officer pursuant to § 4-183 (a), which provides in relevant part that “[a] person who has exhausted all administrative remedies available within the agency and who is aggrieved by a final decision may appeal to the Superior Court . . . .” (Emphasis added.) “Accordingly, in order to have standing to bring an administrative appeal, a person or entity must be aggrieved. ... In the absence of aggrievement, an administrative appeal must be dismissed for lack of subject matter jurisdiction.” (Citations omitted; internal quotation marks omitted.) Water Pollution Control Authority v. Keeney, 234 Conn. 488, 493, 662 A.2d 124 (1995).

As set forth previously, Anthony Lazzari prevailed at the department hearing, as the department’s hearing officer rejected the claims of physical and emotional neglect against him. He contends, nevertheless, that he is aggrieved by the defendant’s decision to place his wife’s name on the registry because his wife’s name is hyphenated to include his own last name.

Anthony Lazzari’s name does not appear on the central registry. Although his wife’s name includes his surname, the two surnames are different. Furthermore, were we to accept his argument, anyone with an identical surname to an individual Usted in the central registry conceivably would be aggrieved pursuant § 4-183. Such a conclusion defies logic and common sense. Accordingly, because Anthony Lazzari prevailed at the department hearing and has not indicated how his interests are otherwise affected by the decision, he was not aggrieved. See Windham Taxpayers Assn. v. Board of Selectmen, 234 Conn. 513, 523, 662 A.2d 1281 (1995). As a result, the court properly granted the defendant’s motion to dismiss his administrative appeal for lack of subject matter jurisdiction.

II

AC 30418

Kimberly Albright-Lazzari has raised numerous statutory, constitutional and factual challenges to the decision to dismiss her administrative appeal. These consist mainly of unsupported allegations and conclusions, coupled with the denial of facts found by the hearing officer. To the extent that these claims were raised in the trial court, we have reviewed the entire record and the memorandum of decision and conclude that they were correctly decided.

Judicial review of the final decision of an agency pursuant to § 4-183 (j) is extremely limited. “Neither the trial court nor this court may substitute its own judgment for the defendant’s as to the weight of the evidence on questions of fact. Instead, we limit our inquiry to whether, in view of all of the evidence, the substantial rights of the plaintiff have been prejudiced because the administrative record lacked substantial evidence to support the defendant’s findings of fact or because the defendant, in issuing [the] decision and order, acted unreasonably, arbitrarily, illegally or in abuse of . . . discretion.” (Internal quotation marks omitted.) American Car Rental, Inc. v. Commissioner of Consumer Protection, 273 Conn. 296, 308, 869 A.2d 1198 (2005). The burden is on the plaintiff to demonstrate that the factual conclusions were not supported by the weight of substantial evidence on the record. Board of Education v. Commission on Human Rights & Opportunities, 266 Conn. 492, 504, 832 A.2d 660 (2003).

The record discloses that the hearing officer substantiated claims of neglect by Kimberly Albright-Lazzari of her son as follows: “[She] is a person responsible for her son’s care. The boy was living with her at the time of the incidents that led to his removal from her care. The [department has proven that she denied him proper emotional care and attention, which resulted in an adverse emotional impact and a serious disregard for his emotional welfare. The events occurring in the first half of 2004 culminated in the incident on September 23, 2004, at the Bristol Hospital [e]mergency [department, in which [Kimberly Albright-Lazzari] was acting veiy inappropriately. She would not accept that the physician could not find any abnormalities or injuries to the child from being sexually abused. She was insisting that the boy undergo an invasive procedure. She claimed there was a conspiracy that included the [d]epartment, to allow [another individual] to sexually abuse the child again. Her bizarre behavior led the hospital to invoke a [ninety-six] hour hold and call the police and the [d]epartment. She then instructed [her son] to resist and kick the police. . . . [Kimberly Albright-Lazzari’s] ongoing conduct . . . that eventually led to his removal, denied [her son] proper care and attention, resulted in an adverse impact to the child and was a serious disregard for his emotional welfare.” The record also fully supported the conclusion that her documented attitude and behavior indicated that Kimberly Albright-Lazzari poses a risk to the health, safety and well-being of children, warranting inclusion on the registry. Accordingly, we agree with the court that the record contained substantial evidence supporting the department’s conclusion regarding emotional neglect by Kimberly Albright-Lazzari and the defendant’s inclusion of her name on the registry.

We are mindful of the fact that the plaintiffs have represented themselves throughout the proceedings and have considered carefully the entire record and the briefs and arguments of the pro se plaintiffs in light of their position as such. Nevertheless, we conclude that the trial court did not abuse its discretion and that it properly dismissed the administrative appeal of Kimberly Albright-Lazzari.

The judgments are affirmed.

       Although the administrative appeal of Anthony Lazzari was dismissed for lack of jurisdiction and the administrative appeal of Kimberly Albright-Lazzari was dismissed on the merits, the plaintiffs, who have appeared pro se throughout these proceedings, have filed a joint brief with this court, which consolidated their appeals.

       The defendant moved to dismiss AC 29373 on the ground that the appeal was not taken from a final judgment. The motion was granted except as to Anthony Lazzari’s challenge to the court’s granting of the defendant’s motion to dismiss for lack of subject matter jurisdiction.

       In his brief, Anthony Lazzari also claims that the healing officer’s decisions have a substantial impact on “unlawful juvenile matters concerning [their] two children.” This claim was not raised before the trial court, and, therefore, we will not afford it review. See United, Technologies Corp. v. Commission on Human Rights & Opportunities, 72 Conn. App. 212, 223-24, 804 A.2d 1033, cert. denied, 262 Conn. 920, 812 A.2d 863 (2002).