author: GRUENDEL, J.

text:
    STATE OF CONNECTICUT v. DAVID SADOWSKI
    (AC 34385)
    DiPentima, C. X, and Graendel and Peters, Js.
    Argued October 10
    officially released November 19, 2013

      David J. Reich, assigned counsel, for the appellant (defendant).

      Jennifer F. Miller, special deputy assistant state’s attorney, with whom, on the brief, were Brian Preleski, state’s attorney, and Christian Watson, assistant state’s attorney, for the appellee (state).
   Opinion

GRUENDEL, J.

The defendant, David Sadowski, appeals from the judgment of conviction, rendered after a jury trial, of operating a motor vehicle while under the influence of intoxicating liquor or drugs in violation of General Statutes § 14-227a (a) (1). On appeal, the defendant claims that the evidence was insufficient to sustain Ms conviction. We affirm the judgment of the trial court.

After a motor veMcle stop on January 27, 2010, the defendant was charged with operatmg a motor veMcle while under the influence of intoxicating liquor in violation of § 14-227a (a) (1). The defendant pleaded not guilty and elected a jury trial. The jury found the defendant guilty of the aforementioned crime. The court rendered judgment m accordance with the verdict and the defendant was sentenced to three years incarceration, execution suspended after two years, with two years probation, and a $2000 fine. TMs appeal followed.

The defendant claims that the evidence was insufficient to sustain Ms conviction of operatmg a motor veMcle while under the influence of intoxicating liquor. The defendant further argues that the state had not mtroduced any evidence to demonstrate that he was impaired as a result of alcohol consumption, rather than the symptoms of Ms diabetes. We disagree.

“The standard of review employed m a sufficiency of the evidence claim is well settled. [W]e apply a two part test. First, we construe the evidence in the light most favorable to sustairdng 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 gMlt beyond a reasonable doubt. . . . The trier may draw whatever inferences from the evidence or facts established by the evidence it deems to be reasonable and logical.” (Citation omitted; internal quotation marks omitted.) State v. Howell, 98 Conn. App. 369, 373-74, 908 A.2d 1145 (2006).

“Our review is a fact based inquiry limited to determining whether the inferences drawn by the jury are so unreasonable as to be unjustifiable.” (Internal quotation marks omitted.) Id., 374. “This court cannot substitute its own judgment for that of the jury if there is sufficient evidence to support the jury’s verdict.” (Internal quotation marks omitted.) Id. “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 [finder of fact’s] verdict of guilty.” (Internal quotation marks omitted.) State v. Fontaine, 134 Conn. App. 224, 227, 40 A.3d 331, cert. denied, 304 Conn. 926, 41 A.3d 1051 (2012).

The elements of operating a motor vehicle while under the influence of intoxicating liquor, each of which the state must prove beyond a reasonable doubt, are: (1) that the defendant operated a motor vehicle at the place and time alleged; and (2) that the defendant was under the influence of intoxicating liquor. See General Statutes § 14-227a (a); see also State v. Morelli, 293 Conn. 147, 154, 976 A.2d 678 (2009). “[T]he jury must find every element proven beyond a reasonable doubt in order to find the defendant guilty of the charged offense, [but] each of the basic and inferred facts underlying those conclusions need not be proved beyond a reasonable doubt. ... If it is reasonable and logical for the jury to conclude that a basic fact or an inferred fact is true, the jury is permitted to consider the fact proven and may consider it in combination with other proven facts in determining whether the cumulative effect of all the evidence proves the defendant guilty of all the elements of the crime charged beyond a reasonable doubt.” (Internal quotation marks omitted.) State v. Gary, 273 Conn. 393, 405, 869 A.2d 1236 (2005).

The defendant stipulated that “he was driving a motor vehicle on a public highway in the Town of Newington on January 27, 2010.” He challenges only the last element of the statute, which requires proof that he did so “while under the influence of intoxicating liquor . . . .” General Statutes § 14-227a (a). “Driving while under the influence of liquor means, under the law of Connecticut, that a driver had become so affected in his mental, physical or nervous processes that he lacked to an appreciable degree the ability to function properly in relation to the operation of his vehicle.” (Internal quotation marks omitted.) State v. Howell, supra, 98 Conn. App. 375.

The jury heard the testimony of Officer Derek J. Aivano of the Newington Police Department and David Buono, a physician specializing in emergency medicine, of the Hospital of Central Connecticut in New Britain (hospital). Aivano testified that on January 27, 2010, he stopped the defendant on Cedar Street in Newington for driving too slowly and for crossing the dashed line into the right lane. After stopping the vehicle and walking alongside the car to speak to the defendant, Aivano testified that he noticed the defendant put something into his mouth. He later discovered a pack of Listerine breath strips inside the passenger compartment of the vehicle within the defendant’s reach.

Upon confronting the defendant in his car, Aivano noticed that the defendant’s eyes were watery, which indicated to him a possible presence of alcohol. He also detected an odor of an alcoholic beverage inside the car, and later found an unsealed bottle of vodka in the passenger compartment of the vehicle. Aivano further testified that when asked for his operator’s license, registration, and insurance, the defendant had difficulty locating his registration paperwork, and improperly identified his insurance information as his Connecticut identification card. Although the defendant notified Aivano of his diabetes, Aivano testified that the defendant never stated he was having a medical emergency or that he needed his insulin.

After observing and interacting with the defendant, Aivano testified that he felt it was necessary to determine whether the defendant was under the influence of intoxicating liquor. Therefore, after gathering the defendant’s documentation, Aivano administered a pre-standardized field sobriety test to determine whether the defendant should exit the vehicle for further testing. Aivano asked the defendant to recite the alphabet, starting with the letter C and stopping at the letter T. The defendant recited some of the letters out of order and was thus unable to perform the test to standard. In addition, while the defendant was attempting to perform the prestandardized test, Aivano detected an odor of an alcoholic beverage on his breath, and noted that the defendant’s speech was slurred. It was at this time that the officer requested the defendant to exit his vehicle in order to administer the field sobriety tests, which are used to determine a person’s impairment.

The first test administered was the horizontal gaze nystagmus, where the defendant was required to follow the movement of a horizontal stimulus with his eyes. “Nystagmus is the inability of the eyes to maintain visual fixation on a stimulus when the eyes are turned to the side, often resulting in lateral jerking of the eyeball.” (Internal quotation marks omitted.) State v. Fontaine, supra, 134 Conn. App. 228 n.3. According to Aivano’s testimony and field notes, the defendant exhibited such behavior in both eyes in four out of the six horizontal gaze nystagmus based tests that were administered, indicating that he did not perform the tests to standard. The next field sobriety test administered was the walk and turn test, which is “designed to divide the subject’s attention, measure [his] ability to follow [the officer’s] directions, and then physically perform the test . . . the way [he was] instructed to do so.” When attempting to perform the test, the defendant lost his balance, took an incorrect number of steps, and was unable to follow the officer’s instructions. Aivano then conducted the one-leg stand test, but when the defendant put his foot down on more than three occasions, he failed the test.

When the defendant could not perform the three field sobriety tests “to standard,” Aivano arrested the defendant for driving while under the influence of intoxicating liquor. After transporting the defendant to the Newington Police Department and booking him, Aivano advised the defendant of his Miranda rights and requested that the defendant submit to a Breathalyzer test. The defendant refused to submit to such chemical testing.

Aivano then conducted a postarrest interview, in which he asked the defendant questions about where the defendant was driving, where he was coming from, as well as general questions about the date and time. The defendant incorrectly answered questions about the direction he was travelling, the day, the time, and was unable to answer what highway he was driving on. The defendant reported that “he felt odd” with regard to his diabetes, so Aivano contacted the Newington Volunteer Ambulance to evaluate the defendant. As a result of the evaluation, the defendant was transported to the hospital. Buono testified about the defendant’s evaluation at the hospital. The defendant’s blood sugar level, normally around 100, was tested and was determined to be 206. According to Buono’s testimony, however, the defendant’s mild hyperglycemic condition would “not necessarily” cause the defendant to swerve in the roadway based only on his blood glucose level, would not cause the defendant to have an odor of alcoholic beverage on his breath, and lastly, would not cause the defendant to have difficulty performing field sobriety tests. Buono also testified that there is a very low possibility of dizziness from a 206 blood sugar level.

Buono further testified about the defendant’s intoxication. At 3:44 a.m. on January 27, 2010, Buono testified that the defendant was not clinically intoxicated, but also stated that he was not aware of the defendant’s condition at 1:39 a.m. when he was arrested. Buono explained that it is possible for a person to be under the influence and impaired to a level of intoxication, but two hours later not be clinically intoxicated. The reason, supplied by Buono, is that a person metabolizes blood alcohol at a certain rate, and “within a couple of hours [a person] can metabolize it down to not be clinically intoxicated.” Thus, the jury could have reasonably found that the defendant was intoxicated at 1:39 a.m. when he was pulled over by Aivano, yet not intoxicated at 3:44 a.m. when Buono evaluated him.

Construing the evidence in a light most favorable to sustaining the verdict, we conclude that the jury reasonably could have found that the cumulative force of the evidence established that the defendant was guilty beyond a reasonable doubt of operating a motor vehicle while under the influence of intoxicating liquor. The jury further could have credited Buono’s testimony and concluded that the defendant’s impairment stemmed from intoxicating liquor, rather than a high blood sugar level. We therefore conclude that the evidence was sufficient to sustain the defendant’s conviction of operating a motor vehicle while under the influence of intoxicating liquor.

The judgment is affirmed.

In this opinion the other judges concurred.

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

       The defendant faced additional charges arising out of this motor vehicle stop, but only the judgment of conviction of violating § 14-227a (a) (1) is relevant to the present appeal.

       The defendant was driving thirty miles per hour in a forty mile per hour zone.

       In its jury charge, the court instructed the jury that, “[i]f you find that the defendant did refuse to submit to such tests, you may, but are not required to make any reasonable inference that follows from that fact.” Section 14-227a (e) provides in relevant part that “the court shall instruct the jury as to any inference that may or may not be drawn from the defendant’s refusal to submit to a blood, breath or urine test.” Thus, “[i]n that statute, the legislature has provided for a permissive inference that the jury may draw from evidence of the fact that the defendant refused to submit to a breath test.” State v. Weed, 118 Conn. App. 654, 664, 984 A.2d 1116 (2009).


source: Caselaw Access Project

author: SHELDON, J.

license: Public Domain

text:
    STATE OF CONNECTICUT v. MARK C. HODKOSKI
    (AC 33930)
    Beach, Sheldon and Dupont, Js.

      Argued September 16
    officially released November 19, 2013

      Matthew D. Dyer, for the appellant (defendant).

      James A. Killen, senior assistant state’s attorney, with whom, on the brief, were Brian Preleski, state’s attorney, and Kevin J. Murphy, supervisory assistant state’s attorney, for the appellee (state).
   Opinion

SHELDON, J.

The defendant, Mark C. Hodkoski, appeals from the judgment of conviction rendered against him after a jury trial on charges of criminal attempt to commit evasion of responsibility in the operation of a motor vehicle in violation of General Statutes §§ 53a-49 and 14-224 (b), and operation of a motor vehicle while under the influence of intoxicating liquor as a third or subsequent offender in violation of General Statutes § 14-227a (g) (3). On appeal, the defendant makes the following claims: (1) that the trial court erred in denying his motion to suppress certain postarrest statements he made to the arresting police officer during custodial interrogation before he was advised of his rights under Miranda v. Arizona, 384 U.S. 436, 478-79, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966); (2) that there was insufficient evidence to convict him of attempted evasion of responsibility because the state failed to prove that the motor vehicle accident from which he allegedly attempted to flee, without stopping and giving notice to the owner of property damaged in the accident, actually caused any damage to property, within the meaning of § 14-224 (b); and (3) that there was insufficient evidence to convict him of operation under the influence as a third or subsequent offender because the state failed to prove that, at the time of his alleged operation in this case, he had previously been convicted on at least two prior occasions of operation under the influence. We disagree with all three of the defendant’s claims, and thus affirm the judgment of the trial court.

The following procedural history and facts, as the jury reasonably could have found them, are relevant to our resolution of the foregoing issues. Shortly after 7 p.m. on February 26, 2010, while operating his son’s pickup truck on Main Street in Terryville, the defendant drove off the road and crashed into a tree on private property at 403 Main Street. According to Terry Roth-Perreault, the owner of the property, the accident caused bark to be removed from the tree. After hearing the sound of a crash from inside her home, Roth-Perre-ault looked out her front window and saw a pickup truck against the tree, with the defendant, its driver and sole occupant, attempting to back up the truck and drive it away. Another neighbor, Daryl Telke, testified that his female companion called the police to report the accident.

Officer Paul Surprenant of the Plymouth Police Department was the first officer to respond to the scene. Upon his arrival, Surprenant observed a pickup truck, partially on, partially off the road at 403 Main Street, with the defendant trying to get out of the truck through the driver’s side door. After parking his cruiser, Surpren-ant approached the defendant and asked him what had happened. The defendant responded that he had slid off the road on an accumulation of ice and snow. As the defendant was talking, Surprenant detected the odors of alcohol and marijuana on his person and noticed that his eyes were glassy. When Surprenant asked the defendant if he had been drinking alcohol that evening, the defendant stated that he had had “two beers.”

Based on his observations of the defendant, and the defendant’s admission that he had been drinking alcohol, Surprenant asked him to submit to a field sobriety test. The defendant initially responded to this request by telling Surprenant that he just wanted to leave and that Surprenant should let him go. Believing, however, that the defendant was intoxicated, Surprenant asked him once again to submit to a field sobriety test, and the defendant agreed. Surprenant began the field sobriety test with the horizontal gaze nystagmus test, which he twice attempted to administer to the defendant after explaining it to him. The defendant failed the test both times by moving his head from side to side to follow the tip of Surprenant’s pen instead of keeping his head still and following it only with his eyes, as the officer had directed. Surprenant then explained the one leg stand test to the defendant and demonstrated it for him. The defendant responded to these directions by telling Surprenant that he was not going to take any more tests because he “ha[d] to take a shit.” The defendant then walked away from the officer to the other side of the track, where he “squatted down a little bit toward the ground, made some grunting noises and stood up and said that he had shit himself.” Surprenant thereupon placed the defendant under arrest for operation under the influence.

After the defendant was placed in handcuffs, Officer Richard Reney searched the cab of the pickup track, where he had smelled the odor of burnt marijuana. During his search, Reney found a pipe and a small vial containing green plant like material that was later submitted for testing to the state toxicology laboratory, where it was found to be marijuana. Surprenant transported the defendant to the police station for booking, where he advised the defendant of his Miranda rights, of his right to refuse to provide a blood, breath or urine sample for chemical testing, and of the legal consequences of refusing to submit to chemical testing. The defendant refused to provide a breath sample for chemical testing and acknowledged his refusal in writing by signing a police department form A-44. After the booking process was completed, the defendant signed an appearance bond and was allowed to leave the police station with his son, who had been called to pick him up.

On May 10, 2011, the defendant filed, based on his rights under the fifth, sixth, and fourteenth amendments to the United States constitution and under article first, §§ 7, 8, and 9 of the Connecticut constitution, a motion to suppress both the evidence the police had seized from the pickup track and the postarrest statements he had made to the arresting officer while in custody, including his refusal to submit to a Breathalyzer test. On June 10, 2011, the trial court, Kahn, J., denied the motion from the bench following an evidentiary hearing at which Surprenant and the defendant testified. The court later articulated the basis for its ruling in a written memorandum of decision dated October 20, 2011. With respect to the defendant’s challenged statements, the court held that the defendant had been advised of his constitutional rights, as prescribed by Miranda, and that there was no indication “that his level of intoxication or any other factor kept him from understanding his rights and options.” On that basis, it concluded that all the statements made by the defendant after his arrest, including his refusal to take a Breathalyzer test, had been made “after the defendant was properly advised [of] and knowingly, intelligently and voluntarily waived his right to remain silent.”

Following a jury trial, where the defendant was found guilty of attempted evasion of responsibility and operation under the influence, further trial proceedings were held before the jury on the repeat offender allegations set forth in the part B information. In the part B trial, the state presented the testimony of one witness, Dawn Therriault, an administrative assistant at the Bristol Superior Court, who stated that the defendant was the same Mark Hodkoski who, on August 6, 2004, had pleaded guilty in her presence to operation under the influence as a second offender. The state also presented certified records of the defendant’s Bristol conviction and of two earlier convictions for operation under the influence of a person with the same name as the defendant, the first of which was rendered in the New Britain Superior Court on September 1, 1989, and the second of which was rendered in the Enfield Superior Court on May 28, 1997. At the conclusion of the part B trial, the jury found the defendant guilty.

On the charge of operation under the influence as a third or subsequent offender, the court sentenced the defendant to a term of three years imprisonment, execution suspended after two years, with three years probation and a $2000 fine. On the charge of attempted evasion of responsibility, the court sentenced the defendant to a consecutive term of one year imprisonment, execution suspended after six months, for a total effective sentence of four years imprisonment, execution suspended after two and one-half years, with three years probation and a $2000 fine. This appeal followed. Additional facts will be set forth as necessary.

I

The defendant’s first claim on appeal is that the trial court erred in denying that portion of his motion to suppress in which he challenged the admissibility of his postarrest statements to the arresting officer while he was being processed on the charge of operation under the influence as a third or subsequent offender. Among the statements he thereby sought to suppress was his refusal to submit a breath sample for chemical testing.

In support of his motion, the defendant claimed and testified that, before he answered the officer’s questions about the circumstances of his operation of the pickup truck on the evening in question and refused the officer’s request that he submit a breath sample for chemical testing, he was never advised of his Miranda rights or warned of the legal consequences of refusing to submit to chemical testing. The state disputed this claim on the basis of testimony from Surprenant and official police documents in which Surprenant contemporaneously described the manner in which he had booked and processed the defendant for operation under the influence on the date in question.

Surprenant testified at the suppression hearing that, upon arriving at the police station with the defendant in custody, he picked up a packet of paperwork that the Plymouth Police Department uses whenever processing suspects charged with operation under the influence. The packet contained an “A-44 form, [a] notice of rights [form], [andan] appearance bond.” Surprenant testified that he read the defendant his rights from the notice of rights form, and that the defendant then said that he understood those rights. Thereafter, according to Suiprenant, the defendant signed the notice of rights form, was given a copy of the signed form, and indicated a willingness to talk with him farther. Suiprenant was unable to produce the signed notice of rights form for use as evidence at the suppression hearing or at trial.

Surprenant testified that he next read the defendant the implied consent advisory notice on the A-44 form, which informed the defendant of his rights with regard to submitting a blood, breath or urine sample for chemical testing. According to Suiprenant, he then asked the defendant if he wished to contact an attorney, to which the defendant responded, “right away: no.” Surprenant recorded the defendant’s response to that question and the time at which he made it on the A-44 form. Surpren-ant then completed the A-44 form, which contained questions pertaining to the offense of operation under the influence, with input from the defendant. Surpren-ant recorded on the A-44 form the time at which he initially read the defendant his Miranda warnings, noting it in military time as “20:13 HRS.” He then asked the defendant to submit to a Breathalyzer test, to which the defendant responded that he was “not taking any tests.” Surprenant noted on the A-44 form, also in military time, that the defendant refused to submit a breath sample for chemical testing at “20:20 [HRS].” He then processed the defendant on his other charges of possession of marijuana and possession of drug paraphernalia. On the latter charges, Surprenant advised the defendant once again of his Miranda rights, had him read and sign another notice of rights form, and gave him a copy of the signed form. On this second notice of rights form, Surprenant recorded the time at which the defendant was once again read his rights as “20:52 P.M.” Both the A-44 form and the second, signed notice of rights form were introduced as evidence before the trial court.

In order to invoke his or her Miranda rights, a person must be in custody and subject to police interrogation. State v. Canady, 297 Conn. 322, 335, 998 A.2d 1135 (2010). Here, the parties agree that the defendant was in custody and subject to interrogation when he responded to Surprenant’s questions on the A-44 form and refused to take a Breathalyzer test. Thus, as the defendant himself concedes, the “only issue” presented by the defendant in the relevant portion of his motion to suppress was “whether Officer Suiprenant properly advised the defendant of his Miranda rights.”

At the end of the suppression hearing on June 10, 2011, the court orally denied the motion to suppress. As previously noted, the court later issued a written memorandum of decision explaining the basis for its ruling. On the threshold issue presented for its decision with respect to the defendant’s postarrest statements, the court concluded that, notwithstanding the state’s inability to produce the initial notice of rights form that Surprenant claimed the defendant had signed after his rights were first read to him, the defendant had in fact been read his Miranda rights before he made any of the challenged statements. The court based this finding both upon Surprenant’s testimony, which it found to be credible, that he had read the defendant his rights before questioning him about his driving using the A-44 form, and upon the contemporaneous notation by the officer on that form that the defendant’s Miranda rights had been read to him before he refused to submit a breath sample for chemical testing.

“Our standard of review of a trial court’s findings and conclusions in connection with a motion to suppress is well defined. A finding of fact will not be disturbed unless it is clearly erroneous in view of the evidence and pleadings in the whole record .... [W]here the legal conclusions of the court are challenged, we must determine whether they are legally and logically correct and whether they find support in the facts set out in the memorandum of decision . . . (Citations omitted; internal quotation marks omitted.) State v. Colvin, 241 Conn. 650, 656, 697 A.2d 1122 (1997).

The trial court found that the defendant was read his Miranda rights twice—first, while he was being processed on his motor vehicle charges, before he refused to submit a breath sample for chemical testing, and later, while he was being processed on his other charges. Further, the trial court considered the defendant’s extensive criminal record, including twenty-three previous arrests, at least three of which were for operation under the influence, as evidence of his familiarity with his rights and the booking process. The trial court concluded that “[t]he refusal and other statements contained in the A-44 form were made after the defendant was properly advised [of] and knowingly, intelligently and voluntarily waived his right to remain silent.” The trial court’s denial of the defendant’s motion to suppress was not clearly erroneous in view of the previously described evidence, and thus, the defendant’s motion to suppress his statements on the A-44 form and his refusal to take a Breathalyzer test was properly denied by the court.

II

The defendant next claims that he is entitled to the reversal of his conviction and the entry of a judgment of acquittal on the charge of attempted evasion of responsibility. He claims, more particularly, that the state failed to prove, as an essential element of that offense, that the motor vehicle accident here at issue, from which he allegedly attempted to drive away without giving notice to the owner of the tree, had caused damage to the tree, thus triggering his duty to give notice of the accident to its owner under § 14-224 (b). In support of this claim, the defendant makes two basic arguments. First, he contends that the mere removal of bark from a tree, without more, is analogous to the mere leaving of a paint transfer on stricken property, which assertedly was held, in State v. Humphrey, 22 Conn. Supp. 317, 321, 171 A.2d 201 (1961), not to constitute damage to property under § 14-224 (b). Second, he argues that even if his reliance on Humphrey is unavailing, the removal of tree bark in this case was not shown to have constituted damage to property within the meaning of § 14-224 (b) because no evidence was presented as to the financial consequences, if any, of the loss, as measured either by the cost of repairing or restoring the tree or by the diminution of its market value.

The state disputes both aspects of the defendant’s claim. As for his contention that the removal of bark from a tree, like the leaving of a paint transfer, cannot constitute damage to property as a matter of law, the state counters: first, that the defendant’s reading of Humphrey is mistaken, for that case did not hold that mere paint transfer cannot constitute damage to property as a matter of law; and second, that the removal of bark from a tree does in fact cause damage to the tree because it permanently alters the tree’s physical structure. As for the defendant’s fallback argument that the removal of tree bark in this case was not shown to have caused damage to property because it was not shown to have caused any particular financial loss to the owner of the tree, the state responds that § 14-224 (b) does not require such proof, but only proof of some damage to property, of no particular kind, amount, degree or proven value. For the following reasons, we agree with the state, and thus reject the defendant’s claim.

In reviewing a claim of evidentiary insufficiency, our task is to determine whether the evidence presented at trial, if construed in the light most favorable to sustaining the challenged conviction, is sufficient to prove each essential element of the charged offense beyond a reasonable doubt. If the evidence, so construed, is incapable of proving even one such essential element by that high standard, the defendant is entitled to the reversal of his conviction on that offense and the entry of a judgment of acquittal.

It is axiomatic that the state must prove its case in precise accordance with the allegations of the information, as sworn to and filed by the prosecuting attorney. Where, then, the prosecuting attorney charges the defendant with committing the offense under a particular statutory theory of liability, the state must prove each fact essential to conviction under that theory. Here, the prosecuting attorney charged the defendant in the second count of the substitute information, with attempted evasion of responsibility as follows: “The State’s Attorney for the Judicial District of New Britain through the undersigned Supervisory Assistant State’s Attorney accuses Mark Hodkoski of the crime of attempted evading responsibility in violation of . . . §§ 53a-49 (a) (2) [and] 14-224 (b) and alleges that on or about February 26, 2010, at approximately 7:00 p.m. at or near Main Street, Plymouth, Connecticut, the defendant Mark Hodkoski, acting with the kind of mental state required for the commission of the crime of evading responsibility, did intentionally do and omit to do anything which, under the circumstances as he believed them to be, were acts of omissions constituting a substantial step in a course of conduct planned to culminate in his commission of the crime of evading responsibility.”

Insofar as it applies to this case, § 14-224 (b) provides in relevant part as follows: “Each person operating a motor vehicle who is knowingly involved in an accident which causes . . . injury or damage to property shall at once stop and . . . give his name, address and operator’s license number and registration number ... to the owner of the injured or damaged property, or to any officer or witness to the . . . injury or damage to property . . . Violation of these statutory requirements constitutes the offense of evasion of responsibility.

In light of the foregoing requirements, the offense of attempted evasion of responsibility requires, inter alia, proof beyond a reasonable doubt that, when acting with the mental state required for the commission of evasion of responsibility, the defendant intentionally took a substantial step in a course of conduct planned to culminate in the commission of that offense, to wit: leaving the scene of a motor vehicle accident that has caused damage to property without stopping to give notice to the owner of the injured or damaged property or to any officer or witness to the damage. One essential element of that offense, as charged in this case, was that the motor vehicle accident in which the defendant was involved actually caused damage to property, within the meaning of § 14-224 (b).

As this case was tried, the state’s only claim of damage to property resulting from the accident was that bark was removed from the stricken tree. The defendant does not contest that bark was removed from a tree as a result of the accident, or that the tree in question was not the property of another. Instead, he claims that the proven removal of bark from the tree, which concededly belonged to the owner of the property on which it stood, did not establish damage to property as a matter of law.

With respect to the defendant’s initial challenge to the sufficiency of the state’s evidence of damage to property, the court must first examine State v. Humphrey, supra, 22 Conn. Supp. 317, the case on which the defendant relies for the proposition that the mere leaving of a paint transfer on property struck by a motor vehicle does not constitute damage to property as a matter of law. In Humphrey, the Appellate Division of the Circuit Court reviewed a case in which the only damage allegedly caused to the complainant’s vehicle by an accident with the defendant’s vehicle was a streak of paint. Id., 321. There, however, the focus of the court’s analysis as to the sufficiency of the evidence to prove that the accident had caused damage to property was not whether a streak of paint could ever constitute damage to property as a matter of law, but whether the particular streak of paint allegedly left by the accident on the complainant’s vehicle had in fact been caused by the defendant’s vehicle. Id. Concluding that there was insufficient evidence before the court to prove that the paint streak in question had actually been left there by the defendant’s vehicle, the court reversed the defendant’s conviction on the ground of insufficient evidence. Id. For that reason, the defendant’s reliance on Humphrey is completely misplaced.

As for the defendant’s alternative argument that the removal of bark from a tree cannot be found to constitute damage to property without proof of resulting financial loss, the state correctly notes that § 14-224 (b) imposes no such requirement. The statute does not define the term “damage to property,” and contains no qualifying language conditioning the duty to stop and give notice to the owner of damaged property upon the occurrence of damage of any particular nature, extent, degree or value. Consistent with this omission, the Appellate Division of the Circuit Court has held on two occasions that the amount of damage is immaterial to the duties arising under the evasion of responsibility statute. See State v. Herbst, 2 Conn. Cir. Ct. 236, 238, 197 A.2d 550 (1963); State v. Gereg, 6 Conn. Cir. Ct. 6, 8, 261 A.2d 867 (1969) (“[w]hether the damage is slight or great is immaterial, so long as there has been damage” [internal quotation marks omitted]). Surely, it would be poor public policy to afford drivers of vehicles involved in accidents the all too convenient option of leaving the scenes of such accidents based upon their self-serving, personal assessments that no measurable degree of property damage has resulted therefrom. Not surprisingly, our legislature has never taken steps to amend the statute to change this damage standard in the fifty years since it was first clarified in Herbst.

Against this background, we conclude that the state’s evidence of removal of bark from the tree struck by the defendant’s vehicle in the accident here at issue was sufficient to prove damage to property, as required for conviction under § 14-224 (b). The removal of such bark from a living tree by the impact of the defendant’s vehicle upon it was well described and documented in the evidence. Such removal of bark permanently altered the structure of the tree—a living thing that draws its essential nutrients through its bark to survive. Because the occurrence of such damage is uncontested, and such damage constituted damage to property within the meaning of the statute, the defendant was required to stop and give notice of the accident to the owner of the damaged property. Evidence of his proven effort to drive away without doing so was sufficient to support his conviction for attempted evasion of responsibility.

Ill

Lastly, the defendant claims that there was insufficient evidence to convict him as a third or subsequent offender of operation under the influence. He argues that “[s]imply comparing names from prior convictions to the defendant is insufficient to prove beyond a reasonable doubt the identity of the defendant is the same as the individual in the records.” The state does not disagree that mere name comparison alone is typically insufficient to prove beyond a reasonable doubt that the criminal record of a person with the same name as the defendant is the defendant’s criminal record. Here, however, the state argues that much more evidence was presented to the jury than the bare criminal records of one or more persons who might share the defendant’s name to establish that the defendant had at least two prior convictions for operation under the influence before the date of his operation under the influence in this case. It relies, for this purpose, both upon the long list of other common features shared by the defendant and the person or persons listed and described in the proffered criminal records, as well as on the testimony of Therriault, who personally identified the defendant as the person who, on August 6, 2004, pleaded guilty in her presence to operation under the influence as a second offender, while she was working in the Bristol Superior Court. We agree with the state that the foregoing evidence afforded the jury a sufficient basis for finding the defendant guilty of operation under the influence as a third or subsequent offender, and thus, we reject the defendant’s claim to the contrary.

Turning first to the testimony of Therriault, who personally identified the defendant as the same Mark Hodkoski who had pleaded guilty to operation under the influence as a second offender in Bristol on August 5, 2004, such testimony alone was legally sufficient to prove that the defendant’s challenged conviction was his third or subsequent conviction for operation under the influence. Viewed in the fight most favorable to the state, Therriault’s testimony about the defendant’s plea to and later sentencing for operation under the influence as a second offender established both the defendant’s prior conviction for operation under the influence in Bristol and, by the defendant’s own admission during the underlying plea proceeding, that by the time of the Bristol offense he had already been convicted on at least one prior occasion of operation under the influence. In light of such evidence, the defendant’s present conviction for operation under the influence was at least his third conviction for that offense, as required for conviction of operation under the influence as a third or subsequent offender.

Moreover, even if Therriault had not testified, the certified records admitted into evidence of the defendant’s 2004 conviction in Bristol and of the 1989 and 1997 convictions for operation under the influence of a person with the defendant’s name, in New Britain and Enfield, respectively, contained sufficient identifying information about the person to whom those records pertained to identify the defendant as that person. The record of the 1997 Enfield conviction, like that of the defendant’s 2004 Bristol conviction, listed not only the defendant’s name, but his date of birth, operator’s license number, address, and social security number, all of which were identical to those of the defendant in this case. The record of the 1989 New Britain conviction includes all of the same information about the person to whom it pertains except the social security number.

The defendant argues that because the 1989 New Britain conviction does not include the defendant’s social security number, the state cannot prove beyond a reasonable doubt that he is the person to whom that record pertains. He asserts that without some independent identification of him, there is insufficient evidence to convict him as a third offender. We are not persuaded by these arguments for three reasons. First, as previously noted, the testimony from Therriault was independently sufficient to establish that, by the time of his operation in this case, the defendant had been convicted on at least two prior occasions of operation under the influence. Second, because the state’s evidence actually tended to establish that he had three prior convictions for operation under the influence, only two of which were necessary to convict him as a third or subsequent offender, any deficiency in the state’s proof as to any one of those prior convictions would not undermine the sufficiency of its remaining evidence on that issue. Third and finally, even the challenged record of the 1989 New Britain conviction of a person with the defendant’s name was sufficient to support the inference that he is the person to whom the record pertains, for even in the absence of a listed social security number, it supplied sufficient personal information about its subject to enable the jury to find that it pertained to the defendant.

Consistent with the latter conclusion, this court has previously held that information such as name, address, date of birth, physical description, and operator’s license number are all indicators that identify a defendant. See State v. Windley, 95 Conn. App. 62, 67, 895 A.2d 270 (concluding that “the court reasonably could have found beyond a reasonable doubt that the defendant was a third time offender” even though “not all of the court documents pertaining to those convictions bore Ms social security number” because there were “numerous indicators that the defendant was the same person who had been [previously] convicted”), cert. denied, 278 Conn. 924, 901 A.2d 1222 (2006).

Construing the evidence in the light most favorable to sustaining the conviction, we conclude that the jury reasonably could have found that the defendant was guilty beyond a reasonable doubt of operation under the influence as a third or subsequent offender.

The judgment is affirmed.

In tMs opmion the other judges concurred.

       The jury found the defendant not guilty on two other charges, possession of marijuana in violation of General Statutes § 21a-279 (c) and possession of drug paraphernalia in violation of General Statutes § 21-267 (a).

       Terryville is a section of the town of Plymouth. The responding police officers were employed by the Plymouth Police Department.

       Surprenant testified that the horizontal gaze nystagmus test is a test of the eyes in which the suspect is told to follow the movement of a stimulus, i.e., a pen or finger, with only his or her eyes while keeping his or her head straight.

       The defendant admitted that he was, however, read his rights during the booking process on the charge of possession of marijuana and possession of drug paraphernalia.

       The notice of rights form contained the following language: “You are not obligated to say anything, in regard to this offense you are charged with but may remain sEent. . . . Anything you may say or any statements you may make may be used against you. . . . You are entitled to the services of an attorney. ... If you are unable to pay for the services of an attorney you wEl be referred to a Public Defender Office where you may request the appointment of an attorney to represent you. . . . You may consult with an attorney before being questioned, you may have an attorney present during questioning and you cannot be questioned without your consent.”

       The defendant was read a notice of rights form for both the motor vehicle and other charges against him. The notice of rights form for the charge of operation under the influence was not entered into evidence because it could not be produced by either party. The notice of rights form for the charges of possession of marijuana and drug paraphernalia was entered into evidence at the suppression hearing as state’s exhibit 1.

       The implied consent advisory notice contained the foEowing language: “You are requested to submit to a blood, breath, or urine test chosen by the police officer. You may refuse a blood test, in which case another test wEl be selected. If you elect to submit to testing, you wEl be required to provide two samples. If you refuse to submit, the tests wEl not be given. Your refusal wEl result in the revocation of your operator’s Ecense for twenty-four (24) hours and the suspension of your operator’s Ecense for at least six (6) months. If you submit to the tests, and the results indicate that you have an elevated blood alcohol content, your operator’s Ecense wEl be revoked for twenty-four (24) hours and wEl be suspended for at least ninety (90) days. If you hold an operator’s license from another state other than Connecticut, your driving privilege in Connecticut is subject to the same revocation and suspension penalties. The results of the tests or the fact of a refusal may be admissible in evidence against you in a criminal prosecution for driving under the influence of alcohol and/or drugs, or other offense, and evidence of a refusal may be used against you in any criminal prosecution.”

       Surprenant testified that 20:13 hours is the equivalent of 8:13 p.m.

       The defendant was processed separately on the motor vehicle and other charges.

       In his appellate brief, the defendant suggests that the trial court erred in denying his motion to suppress because, in concluding that there was no “indication that his level of intoxication or any other factor kept him from understanding his rights and options,” it “ignored” evidence of his intoxication, with which the record was “replete.” The state responds to this suggestion by arguing that this court should not consider the effects of the defendant’s intoxication on the validity of his waiver of rights, because the portion of his motion to suppress that challenged his postarrest custodial statements “was expressly and narrowly focused solely on whether there was sufficient evidence that he adequately was informed of those rights in the first place . . . .”
      The issue of whether the defendant’s intoxication affected the validity and sufficiency of the postarrest waiver of his rights, which was not included in the defendant’s preliminary statement of issues, has not been adequately briefed for our review. The defendant wrote only one paragraph that even mentioned the issue. That paragraph appears in the section of his brief that addresses the distinct and different issue of whether the arresting officer read him his Miranda rights before subjecting him to custodial interrogation after his arrest. The defendant cited no case law concerning the effects of intoxication on the waiver of fundamental constitutional rights, either in the previously referenced paragraph or elsewhere, and failed even to identify the standard of review under which such an issue must be analyzed and decided. Under that standard of review, this court must make a scrupulous examination of the record to ascertain whether the trial court’s finding of waiver of fundamental constitutional rights is supported by substantial evidence. See State v. Chung, 202 Conn. 39, 48-49, 519 A.2d 1175 (1987). Consistent with this omission, the defendant failed to draw the court’s attention to any facts of record to which the standard of review might appropriately be applied, apart from a brief description of his own alleged conduct at the scene of his arrest. Furthermore, he presented no legal argument as to the significance of the described conduct in relation to his level of intoxication or the resulting validity and sufficiency of his waiver under controlling legal standards. In short, the defendant did nothing to present, support or argue any challenge to the validity and sufficiency of his waiver of rights on the basis of his intoxication other than briefly to mention it, then just as briefly and uniUuminatingly, to criticize the court for failing to address it adequately in ruling on his motion to suppress. We conclude, for these reasons, that this issue is inadequately briefed.

        “[F]or this court judiciously and efficiently to consider claims of error raised on appeal . . . the parties must clearly and fully set forth their arguments in their briefs. We do not reverse the judgment of a trial court on the basis of challenges to its rulings that have not been adequately briefed. . . . The parties may not merely cite a legal principle without analyzing the relationship between the facts of the case and the law cited. . . . [Assignments of error which are merely mentioned but not briefed beyond a statement of the claim will be deemed abandoned and will not be reviewed by this court.” (Internal quotation marks omitted.) State v. Crocker, 83 Conn. App. 615, 660-61, 852 A.2d 762, cert. denied, 271 Conn. 910, 859 A.2d 571 (2004). Accordingly, we decline to review this issue because it has been inadequately briefed by the defendant.

       Therriault was the courtroom clerk whose signature appears on multiple documents relating to the defendant’s August 5, 2004 conviction and resulting order of probation.

       Although the defendant did not testify at trial, he did testily at the suppression hearing that he has lived at “91 Scott Road, Tenyville, Connecticut” for “fifty-nine years.” This is the same address noted on the court records from the previous convictions for operation under the influence in the Bristol, Enfield, and New Britain cases, which date only as far back as twenty-two years before the date of this trial. The information contained in the records of conviction is also consistent with the address and date of birth listed on the booking information sheet, the A-44 form, the defendant’s driver’s license, and the fingerprint information, which were all full exhibits made available to the jury during its deliberations.

       It bears noting that the 1989 New Britain record spells the defendant’s last name as “Hodkowski” instead of “Hodkoski,” which could be one reason why his social security number was not generated on the police department’s computer record. Despite this typographical error, the record still lists the defendant’s birthdate as “05/15/1952” and address as “Scott Rd, Terryville, CT 06786,” which is consistent with the other court records of his prior convictions of operation under the influence.


author: ALVORD, J.

text:
    STATE OF CONNECTICUT v. DEAN CHARLES CAMPANARO
    (AC 33252)
    DiPentima, C. J., and Beach and Alvord, Js.

      Argued September 26
    officially released November 19, 2013

      Peter G. Billings, with whom was Sean P. Barrett, for the appellant (defendant).

      Melissa L. Streeto, senior assistant state’s attorney, with whom, on the brief, were Matthew C. Gedansky, state’s attorney, and Elizabeth C. Learning, senior assistant state’s attorney, for the appellee (state).
   Opinion

ALVORD, J.

The defendant, Dean Charles Campa-naro, appeals from the judgment of conviction, rendered after a jury trial, of two counts of sexual assault in the second degree in violation of General Statutes § 53a-71 (a) (1), two counts of sexual assault in the fourth degree in violation of General Statutes § 53a-73a (a) (1) (B), one count of risk of injury to a child in violation of General Statutes § 53-21 (a) (1), one count of risk of injury to a child in violation of General Statutes § 53-21 (a) (2), one count of delivery of alcohol to a minor in violation of General Statutes § 30-86 and one count of enticing a minor in violation of General Statutes § SSa-OOa. On appeal, the defendant claims that (1) the court improperly denied his request for a sixty day continuance, (2) the court improperly refused to conduct an in camera review of the victim’s medical, clinical, therapeutic and counseling records, and (3) he was denied his sixth amendment right to assistance of counsel when the prosecutor obtained his trial strategy and failed to notify either the defendant or the court. We affirm the judgment of the trial court.

The jury reasonably could have found the following facts. At the time of the incidents at issue, the victim, E, a fourteen year old female, was best friends with H, the defendant’s oldest daughter. The defendant was the assistant coach for a town softball team that included both girls. E lived with her mother, her younger sister and her mother’s boyfriend. During the summer of 2008, E and H were often together, frequently spending nights at each other’s houses.

The Campanaro family, which included the defendant, his wife and their two daughters, planned to take their camper to Lake George and Niagara Falls in New York State. They intended to leave July 3, 2008, and return approximately ten days later. H asked Noreen Campanaro, her mother, if E could accompany them on their vacation. The defendant told E’s mother that E should come with them to New York because it would make H happy, keep H busy, and the girls would have a good time. E’s mother consented.

On vacation, E noticed that the defendant often looked at her when they were at the Lake George campground, which was their initial destination. After several days, they proceeded to travel to Naples, New York, where friends of the Campanaro family lived in a log cabin near the mountains in a secluded area. Very late one evening, while camped at that location, the defendant motioned for E to leave the camper, and he took her to an area behind a brush pile where they had sexual relations for the first time. Additional incidents of a sexual nature happened during that trip.

The same day that E returned from the camping vacation, the defendant sent her a text message about her “pretty blue eyes.” From that point on, the defendant and E regularly communicated via text messages, telephone calls and e-mails. Some of the messages were benign, but a number of communications, including attached photographs, were explicitly sexual in nature. E’s mother noticed that E was texting constantly and indicated that she was not pleased with the increased communications. At times, she confiscated E’s cell phone for violating the house rales relating to permitted times for texting.

The defendant secretly met with E on several occasions following the camping trip. On August 8, 2008, E was scheduled to volunteer at a local hospital in the late afternoon. Before she left for work, the defendant sent her an e-mail stating that his wife and daughters were leaving for Cape Cod, Massachusetts, that day. E’s mother drove her to the hospital, and, shortly after E’s arrival, the defendant telephoned the hospital and left a message for E to call his home number. When E returned the call, the defendant told her to contact her mother and ask if she could visit with H after she finished her work at the hospital. E did as instructed and told her mother that the Campanaros would pick her up at the hospital and bring her home later that evening. She then asked the nurse in her assigned unit if she could leave early because she wanted to go bowling with some friends. She received permission to leave at 6:30 p.m. The defendant arrived at the hospital in his track and drove E directly to his house.

E told the defendant that she was nervous, and he gave her a mixed drink of vodka and fruit punch. After she finished the first drink, the defendant thought E still appeared nervous and provided her with a second mixed drink. The defendant and E then had sexual relations. At approximately 9:30 p.m., E’s mother became concerned because she thought E was supposed to contact her to let her know whether E needed a ride home or would be spending the night with H. Because E’s mother had taken away E’s cell phone before she left for the hospital, E’s mother texted H and inquired as to the girls’ plans for that evening. H texted back and informed E’s mother that she, her mother and her sister were in Cape Cod and that the defendant had stayed in Connecticut.

E’s mother immediately called the Campanaro residence. No one answered the telephone the first time that she called. On her second attempt, the defendant answered, and E’s mother asked if E was in his house. The defendant gave the receiver to E, and E’s mother, without asking for an explanation at that time, informed E that she and her boyfriend were coming to the defendant’s house. They arrived approximately five minutes later, and E came out of the defendant’s house and got into their car. E’s mother noticed that her daughter’s hair was messy and tousled and that she smelled of alcohol.

For the next few days, when questioned by her mother, E continued to deny that anything inappropriate had happened between her and the defendant. E had an older sister, D, who was married and lived in her own home with her husband and children. E was close to D, and E’s mother brought E to D’s house in the hope that she would confide in D. After additional questioning, E finally admitted that she had had sexual intercourse with the defendant. At some point that day, the decision was made to contact the police, and E gave her first written statement about the incidents. The next morning, E’s mother took E to a gynecologist for an examination. On the way home, E told her mother that she did not want to live anymore. E’s mother, frightened at E’s demeanor, called her therapist and was told to take E to Natchaug Hospital. E was admitted to the hospital for inpatient therapy and was discharged one week later. While at the hospital, E gave a second statement to the police that provided additional details of her encounters with the defendant. A day or two after her release, E provided a third statement to the police.

A police sergeant came to E’s residence when she was at Natchaug Hospital and told E’s mother that he needed the clothing that E was wearing on the night of August 8, 2008. E’s mother retrieved some of the clothing from the laundry, although the clothing already had been washed. She went to the hospital to get the bra and camisole that E had been wearing that night, which had not yet been laundered. All of these articles of clothing were delivered to the police.

After obtaining a search warrant, the police went to the defendant’s residence on August 19,2008, and seized his computers and cell phones. The defendant was arrested on September 29, 2008. After his arrest, buccal swabs were taken from E and the defendant for DNA analysis in order to compare the DNA testing results from the clothing E wore the evening of August 8, 2008.

Jury selection commenced on May 26, 2010. On May 26, 2010, the defendant filed a motion in limine to preclude the state’s DNA evidence or, in the alternative, for a sixty day continuance of the trial. In that motion, the defendant represented that the state provided defense counsel with a DNA evidence report on May 25, 2010, and that the test results on E’s bra were incul-patory to the defendant. The defendant, although accepting the state’s claim that the delayed preparation of the report was inadvertent, argued that the evidence should be excluded or that the trial should be continued for sixty days “in order that he may adequately deal with the new evidence.” On May 26, 2010, the court interrupted jury selection to hear the parties’ arguments on the motion. The court then issued its ruling, after noting that General Statutes § 54-86k (c) provides that “the presumptive amount of time that a party needs to respond to a disclosure of a [DNA] report is twenty-one days.” Referring to the statute, the court granted the motion for a continuance and continued the start of evidence to June 22, 2010. The new trial date was twenty-seven days after the court’s ruling.

Following a nine day trial, the jury returned its verdict finding the defendant guilty of eight of the twenty-three charges. The court accepted the verdict and sentenced the defendant to a total effective term of thirty years imprisonment, execution suspended after serving fourteen years, to be followed by ten years of probation, payment of a $1000 fine and sex offender registration. This appeal followed.

I

The defendant’s first claim is that the trial court improperly denied his request for a sixty day continuance after the state failed to comply with § 54-86k. Specifically, the defendant argues that the court abused its discretion because the failure to grant a sixty day continuance “impaired the defendant’s ability to defend himself and, in fact, was needed in order for the defendant to properly defend himself.” The following additional facts are necessary to resolve this claim.

When the court addressed the defendant’s motion in limine on May 26, 2010, the prosecutor told the court that she had indicated to defense counsel several weeks prior that it was likely that the state would be presenting DNA evidence. The prosecutor stated that her forewarning gave defense counsel the opportunity to find and consult with a DNA expert at that time. Defense counsel responded that the report on E’s bra was highly prejudicial to the defendant, and that he needed time to locate a scientist to assist him in interpreting the results and to obtain the necessary funds to pay for that expert opinion. The court inquired as to the length of the continuance that the defendant was seeking, and defense counsel responded that he had asked for sixty days in his motion “[a]nd that was just a ballpark, Your Honor.” The court then referred to § 54-86k (c) and asked: “Doesn’t that suggest that a twenty-one day period to respond has been determined by the legislature to be presumptively sufficient?” Defense counsel responded: “Yes, Your Honor. I would agree with you completely. . . . I’m just suggesting, Your Honor, yes, twenty-one days would seem to be a minimum standard by which a party should have advance notice and should be able to deal with it. And quite candidly, I can respond in twenty-one days.” (Emphasis added.) After a few additional comments by the parties and the court, the court issued its ruling granting the continuance and setting a new trial date of June 22, 2010. The court inquired if there was anything further to discuss, and defense counsel said, “[n]o . . . .”

Our careful review of the record and transcripts reveals that defense counsel never asked for additional time to respond to the DNA report or to consult with his expert. At the end of each trial day, the court routinely asked counsel if any issues needed to be addressed. Defense counsel never indicated that the amount of time granted by the court for a continuance was inadequate for his preparation of a defense with respect to the state’s DNA evidence. Under these circumstances, the court reasonably could have concluded that the defendant was satisfied with the twenty-seven day continuance granted by the court and that he had abandoned his initial request for a sixty day continuance. “For this court to . . . consider [a] claim on the basis of a specific legal ground not raised during trial would amount to trial by ambuscade, unfair both to the [court] and to the opposing party.” (Internal quotation marks omitted.) State v. Jorge P., 308 Conn. 740, 753, 66 A.3d 869 (2013).

We conclude that defense counsel acquiesced to the court’s ruling with respect to the amount of time granted for the continuance of the trial date. He has, therefore, abandoned any claim that the failure to grant a sixty day continuance deprived him of “effective and competent assistance of counsel” and his “ability to present a defense.”

II

The defendant’s next claim is that the court improperly refused to conduct an in camera inspection of E’s medical, clinical, therapeutic and counseling records. The defendant concedes that they are protected records but argues that the court’s failure to review them deprived him of his rights under the due process and confrontation clauses of the state and federal constitutions. We disagree.

On June 15, 2010, the defendant filed a motion in limine for the court to conduct an in camera review of E’s protected records for the period from January, 2008, through the date of the motion. At the hearing on the motion held on June 16, 2010, the defendant argued that E’s protected records should be reviewed by the court in camera because E provided a statement to the police in which she said that she had had a prior sexual relationship with a teenage male prior to her relationship with the defendant, and then she subsequently claimed that the defendant was her first sexual partner. The defendant argued that he expected to find information in those records pertaining to sexual partners that he could use for impeachment purposes. The defendant also claimed that any statements given by E to her treatment providers at Natchaug Hospital regarding the defendant would be “highly probative” and useful in his presentation of his defense at trial. The court concluded that the defendant failed to make the requisite preliminary showing that would justify an in camera review of E’s protected records and denied the defendant’s motion.

“This court will review a trial court’s denial of a defendant’s request to conduct an in camera review of confidential records pursuant to our standard of review for evidentiary rulings. . . . Therefore, [w]e review a court’s conclusion that a defendant has failed to make a threshold showing of entitlement to an in camera review of statutorily protected records . . . under the abuse of discretion standard. . . . We must make every reasonable presumption in favor of the trial court’s action. . . . The trial court’s exercise of its discretion will be reversed only where the abuse of discretion is manifest or where injustice appears to have been done.” (Citation omitted; internal quotation marks omitted.) State v. McClelland, 113 Conn. App. 142, 159, 965 A.2d 586, cert. denied, 291 Conn. 912, 969 A.2d 176 (2009).

“[0]ur Supreme Court has established that to compel an in camera review of confidential records, a defendant must make a preliminary showing that there is a reasonable ground to believe that failure to review the records likely would impair the defendant’s right to confrontation. ... To meet this burden, the defendant must do more than assert that the privileged records may contain information that would be useful for the purposes of impeaching a witness’ credibility. ... As explained by our Supreme Court: [T]he defendant’s offer of proof should be specific and should set forth the issue in the case to which the [confidential] information sought will relate.” (Citations omitted; internal quotation marks omitted.) Id., 160-61.

In the present case, the defendant’s request for an in camera review was not specific and he did not sufficiently set forth the issue in the case to which the information sought would relate. “[T]he right to cross-examine witnesses does not include the power to require the pretrial disclosure of any and all information that might be useful in contradicting unfavorable testimony.” (Emphasis in original; internal quotation marks omitted.) State v. Slimskey, 257 Conn. 842, 854, 779 A.2d 723 (2001). The general assertion that such information, if found, could be useful or helpful to his defense was nothing more than a “general fishing expedition” into protected and confidential records. A showing to warrant an in camera review requires more than mere speculation. On the basis of the record before the trial court, we cannot conclude that it abused its discretion in determining that the defendant had not made a sufficient showing to compel an in camera review of E’s medical, clinical, therapeutic and counseling records.

m

The defendant’s final claim is that he was denied his sixth amendment right to assistance of counsel when the prosecutor obtained his trial strategy and failed to notify either the defendant or the court. The defendant argues that a five page document, which the prosecutor obtained from Noreen Campanaro, his then-estranged wife, outlined his theory of the defense and his version of the events for which he was charged. He claims that the document, on its face, was protected by the attorney-client privilege and that the prosecutor’s failure to disclose her receipt of the document placed him “in a fundamentally unfair position . . . .” The following additional facts are necessary to resolve this claim.

After the defendant’s arrest, while he was free on bond, he prepared a five page, single spaced document in which he countered E’s version of the events that transpired between them. On February 4, 2009, he sent Noreen Campanaro the document as an attachment to an e-mail. She learned that he also had H, their daughter, read the document when she was at his parents’ house. Further, he sent a copy to his friend in New York. The document never was referenced to the jury, and it was not admitted into evidence as a full exhibit.

On June 7,2010, the defendant filed amotion in limine “to assert the marital communications privilege to preclude testimony of, or production of his written communications by, his former spouse.” Before Noreen Campanaro’s testimony, and outside of the presence of the jury, the court heard argument from counsel regarding the marital communications privilege and the admissibility of expected testimony and certain written documents, including the five page document at issue. After some discussion, the question arose as to whether the marital communications privilege had been waived with respect to the five page document because of alleged disclosure to third parties. At that point, Noreen Campanaro testified outside of the jury’s presence that H, their daughter, and, additionally, the defendant’s friend in New York also received copies of that document. Defense counsel then stated: “We’re no longer asserting it based on the witness’ testimony here under oath this morning. I no longer claim a marital privilege to this five page memo, Your Honor.”

Significantly, the defendant never mentioned the attorney-client privilege as a basis for excluding the five page document, nor did he claim that the prosecutor had violated his sixth amendment privilege to effective assistance of counsel when she failed to inform the court that a copy of the document had been provided to her by Noreen Campanaro. The defendant, now conceding that the issue had not been raised before the trial court, asks this court for review of his unpreserved claim under State v. Golding, 213 Conn. 233, 239-40, 567 A.2d 823 (1989).

The defendant claims that the record is sufficient in this case to review his alleged claim of error because the five page document was marked for identification and the relevant facts were addressed when discussing the marital communications privilege before the trial court. He claims that the second prong of Golding has been satisfied because the sixth amendment right to assistance of counsel is of constitutional magnitude alleging the violation of a fundamental right. Citing State v. Lenarz, 301 Conn. 417, 22 A.3d 536 (2011), cert. denied, 565 U.S. 1156, 132 S. Ct. 1095, 181 L. Ed. 2d 977 (2012), he argues that the third prong of Golding has been met because the constitutional violation clearly deprived him of a fair trial. Finally, he claims that the state failed to show that the constitutional violation was harmless beyond a reasonable doubt.

The state counters that the record is inadequate for us to review this claim because the trial court never was presented with the opportunity to make necessary findings of fact and conclusions of law with respect to the attorney-client privilege. Moreover, the state argues that the defendant waived any alleged attorney-client privilege by sharing the document with third parties. The state additionally argues that the holding in Lenarz is not applicable here because, unlike the materials at issue in Lenarz, there is no indication in the five page document that the defendant intended it to be confidential or that he prepared it for the purpose of seeking legal advice.

“[Communications between client and attorney are privileged when made in confidence for the purpose of seeking legal advice. ... By contrast, statements made in the presence of a third party are usually not privileged because there is no reasonable expectation of confidentiality. . . . The only recognized exceptions to this rule are when the third party was an interpreter, clerk or agent of the client’s attorney . . . .” (Citations omitted; emphasis omitted; internal quotation marks omitted.) State v. Christian, 267 Conn. 710, 749, 841 A.2d 1158 (2004). Although the defendant claims that the record contains the relevant facts necessary to determine whether the attorney-client privilege was applicable to the five page document, the trial court in the present case never made any findings regarding the purpose for which the document was created or whether the defendant intended that it remain a confidential document. Before the court had the opportunity to rule whether the marital communications privilege had been waived because of the document’s disclosure to third parties, defense counsel withdrew the claim of privilege. Accordingly, we agree with the state that the record is inadequate for us to review the defendant’s claim under Golding.

The judgment is affirmed.

In this opinion the other judges concurred.

       The jury found the defendant not guilty of seven counts of sexual assault in the second degree in violation of § 53a-71 (a) (1), one count of attempt to commit sexual assault in the second degree in violation of General Statutes §§ 53a-71 (a) (1) and 53a-49, four counts of sexual assault in the fourth degree in violation of § 53a-73a (a) (1) (B), one count of risk of injury to a child in violation of § 53-21 (a) (1), one count of risk of injury to a child in violation of § 53-21 (a) (2), and one count of tampering with physical evidence in violation of General Statutes § 53a-155 (a) (1).

       In accordance with our policy of protecting the privacy interests of the victims of sexual assault and the crime of risk of injury to a child, we decline to identify the victim or others through whom the victim’s identity may be ascertained. See General Statutes § 54-86e.

       E gave her fourth and final written statement to the police several months later, on February 9, 2009, after a particularly bad day at school. E was being harassed by her classmates and went to the school counselor for advice. She then provided even more details about the incidents with the defendant.

       General Statutes § 54-86k (c) provides in relevant part: “At least twenty-one days prior to commencement of the proceeding in which the results of a DNA analysis will be offered as evidence, the party intending to offer the evidence shall notify the opposing party, in writing, of the intent to offer the analysis and shall provide or make available copies of the profiles and the report or statement to be introduced. In the event that such notice is not given, and the person proffers such evidence, then the court may in its discretion either allow the opposing party a continuance or, under the appropriate circumstances, bar the person from presenting such evidence. . . .”

       “The determination of whether to grant a request for a continuance is within the discretion of the trial court, and will not be disturbed on appeal absent an abuse of discretion.” (Internal quotation marks omitted.) State v. Victor C., 145 Conn. App. 54, 68, 75 A.3d 48 (2013).

       We note that E testified at trial that she did not discuss any of the incidents with the defendant during her stay at the hospital. She testified that she “just wanted to get away from it all.”

       Moreover, we note that the record reflects that defense counsel was afforded ample opportunity to cross-examine E about any inconsistencies in her statements. Defense counsel conducted an extensive cross-examination of E on June 23 and 24, 2010.

       The defendant and Noreen Campanaro were divorced at the time of trial.

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

       Furthermore, we note that the document in this case is totally unlike the materials in Lenarz. In Lenarz, there is a notation on the document that the information is “confidential,” the document indicates that the recipient “would have success in defending” the case by using the information, and the document titled “[sjtrategy issues” was directed to be used for the upcoming “court appearance . . . .” (Internal quotation marks omitted.) State v. Lenarz, supra, 301 Conn. 441-42. Moreover, the prosecutor rn.Len.arz expressly had been put on notice that there were materials in the defendant’s computer that were subject to the attorney-client privilege, and the court had ordered the prosecutor not to read them. Id., 442. The factual and procedural situation in Lenarz differs significantly from the circumstances in the present case. Contrary to the defendant’s argument, Lenarz is not applicable to this case.


author: PER CURIAM.

text:
    DAMON BIGELOW v. COMMISSIONER OF CORRECTION
    (AC 34132)
    Lavine, Keller and Mihalakos, Js.

      Argued September 17
    officially released November 19, 2013

      Wayne A. Francis, assigned counsel, for the appellant (petitioner).

      Harry Weller, senior assistant state’s attorney, with whom, on the brief, mere Stephen J. Sedensky III, state’s attorney, Jo Anne Sulik, supervisory assistant state’s attorney, and Michael A. Gailor, executive assistant state’s attorney, for the appellee (respondent).
   Opinion

PER CURIAM.

The petitioner, Damon Bigelow, appeals from the judgment of the habeas court denying his amended petition for a writ of habeas corpus. On appeal, the petitioner claims that the denial of his petition was improper because his trial counsel was burdened by an actual conflict of interest. We disagree, and affirm the judgment of the habeas court.

The following facts, as found by the habeas court, are germane to the resolution of this appeal. In early 2008, the petitioner was a defendant in a number of criminal and motor vehicle matters pending in the Superior Court. On September 24, 2008, while the petitioner was representing himself, the state extended a plea bargain to him that would have resolved all pending charges in exchange for guilty pleas and a total effective sentence of forty years incarceration, execution suspended after fifteen years, to be followed by a five year period of probation. The petitioner, who was free on bond, was given time to consider the offer.

Two days later, on September 26, 2008, the police executed a search and seizure warrant stemming from suspected drug trafficking activities at the petitioner’s condominium. During the execution of the search warrant, the petitioner was arrested after police found a large quantity of heroin in a bedroom. As a result of the additional charges, the state modified its original plea offer to reflect the new drug charges. Considering only the drug cases, the petitioner at trial would have faced forty-six years of mandatory minimum incarceration with a maximum sentence of life. The state’s modified plea offer proposed that the petitioner actually serve twenty years as opposed to the original offer of fifteen.

On October 1, 2008, the petitioner retained the services of Attorney Eugene Zíngaro. Although the petitioner initially appeared willing to accept the state’s modified plea offer, Zíngaro ultimately was successful in restoring the original plea offer. On November 12, 2008, the petitioner accepted the original offer, pleaded guilty, and was sentenced to forty years incarceration, execution suspended after fifteen years, followed by five years of probation. This concluded Zingaro’s representation of the petitioner.

On June 8, 2011, the petitioner filed an amended petition for a writ of habeas corpus. The petition included two counts alleging ineffective assistance of counsel. The first count alleged that Zíngaro had been burdened by a conflict of interest; the second count alleged that Zíngaro provided inadequate advice during the plea stage. The habeas court denied the petition, but granted the petitioner’s petition for certification to appeal. This appeal followed.

The basis for the petitioner’s conflict of interest claim relates to Zingaro’s representation of the petitioner’s brother, Byron Bigelow. On September 26, 2008, while the police were executing the warrant at the petitioner’s condominium, Byron Bigelow entered the condominium. Upon his arrival, the police conducted a patdown search of him that revealed marijuana and drug paraphernalia. Byron Bigelow represented himself on the charges stemming from the September 26, 2008 arrest, and was placed in a drug diversion program. On October 30, 2008, he was arrested for a second time, thereby threatening his further participation in the diversion program.

At some point in time, at one of the petitioner’s appearances in court, Zíngaro and Byron Bigelow were introduced, and over time, Zíngaro became a mentor to Byron Bigelow. Details of their early relationship are sparse, but as the habeas court noted, “Zingaro was very candid about having developed a deep personal relationship with Byron Bigelow . . . .” Upon learning of Byron Bigelow’s second arrest in late October, Zing-aro visited Byron Bigelow at the Danbury Police Department, during which time he “ ‘yelled at’ Byron for approximately one hour, [and] counseled him on a personal level about the dangers of following in the footsteps of . . . the petitioner . . . .” The two did not discuss the factual circumstances of Byron Bigelow’s arrests; rather, the encounter focused on Byron Bigel-ow’s overall lifestyle choices.

Eventually, Zingaro represented Byron Bigelow on the drug charges. The habeas court found that although the exact date of representation could not be determined, the evidence presented “supports a finding that any representation of Byron Bigelow . . . did not begin until after the petitioner’s matters were concluded.” Zingaro successfully persuaded the state to allow Byron Bigelow to continue in the drug diversion program notwithstanding the second arrest.

On appeal, the petitioner focuses solely on the conflict of interest issue, specifically claiming that (1) Zing-aro’s simultaneous representation of him and Byron Bigelow was an actual conflict of interest and (2) the close personal relationship between Zingaro and Byron Bigelow during the pendency of his case amounted to a conflict of interest. We are not persuaded.

At the outset, we set forth the standard of review for the resolution of this appeal. “Our standard of review of a habeas court’s judgment on ineffective assistance of counsel claims is well settled. In a habeas appeal, this court cannot disturb the underlying facts found by the habeas court unless they are clearly erroneous . . . .” (Internal quotation marks omitted.) Santiago v. Commissioner of Correction, 87 Conn. App. 568, 582, 867 A.2d 70, cert. denied, 273 Conn. 930, 873 A.2d 997 (2005).

Furthermore, “[o]ur Supreme Court has established the proof requirements where a habeas corpus petitioner claims ineffective assistance of counsel because of a claimed conflict of interest. Where . . . the defendant claims that his counsel was burdened by an actual conflict of interest . . . the defendant need not establish actual prejudice. . . . Where there is an actual conflict of interest, prejudice is presumed because counsel [has] breach[ed] the duty of loyalty, perhaps the most basic of counsel’s duties. Moreover, it is difficult to measure the precise effect on the defense of representation corrupted by conflicting interests. ... In a case of a claimed conflict of interest, therefore, in order to establish a violation of the sixth amendment the defendant has a two-pronged task. He must establish (1) that counsel actively represented conflicting interests and (2) that an actual conflict of interest adversely affected his lawyer’s performance. . . .

“The [United States Court of Appeals for the Second Circuit] has honed this test further. Once a [petitioner] has established that there is an actual conflict, he must show that a lapse of representation . . . resulted from the conflict. ... To prove a lapse of representation, a [petitioner] must demonstrate that some plausible alternative defense strategy or tactic might have been pursued but was not and that the alternative defense was inherently in conflict with or not undertaken due to the attorney’s other loyalties or interests.” (Citation omitted; internal quotation marks omitted.) Burgos-Torres v. Commissioner of Correction, 142 Conn. App. 627, 634, 64 A.3d 1259, cert. denied, 309 Conn. 909, 68 A.3d 663 (2013).

We first consider the petitioner’s claim that the habeas court improperly determined that Zíngaro had no actual conflict of interest because he did not simultaneously represent the petitioner and Byron Bigelow. The petitioner argues that because Zíngaro was representing Byron Bigelow at the time of the petitioner’s plea bargain negotiations, Zingaro had a conflict that prevented him from advancing a theory of defense that the heroin found in the petitioner’s condominium belonged to Byron Bigelow. The petitioner argues that the habeas court erred when it found that Zingaro’s representation of Byron Bigelow occurred after the petitioner’s cases were resolved.

The habeas court, after a thorough review of the record, found that there was no simultaneous representation and, thus, no conflict of interest. On the basis of our own review, we agree with the habeas court. Although Zingaro did visit Byron Bigelow in lockup, there is simply no basis for us to upset the habeas court’s finding that Zingaro was merely acting in the capacity of a mentor, and not as counsel. Accordingly, the petitioner cannot demonstrate that the court’s findings were clearly erroneous. See, e.g., Sastrom v. Mullaney, 286 Conn. 655, 661, 946 A.2d 442 (2008) (habeas court is afforded broad discretion in making its factual findings).

With respect to the petitioner’s claim that Zingaro had a dual loyalty because Zingaro’s close relationship with Byron Bigelow amounted to a conflict of interest, this claim suffers from the same lack of factual support as the first claim. The habeas court found “it was clear that the personal relationship . . . did not occur, or begin to occur, until after the petitioner’s cases had been resolved and, therefore, no personal conflict existed at the time [Zingaro] was representing the petitioner.” The petitioner is challenging a factual finding, but fails to demonstrate in what respect the finding was clearly erroneous. Moreover, even if the petitioner could establish that the habeas court’s finding was clearly erroneous, this claim still fails because the petitioner has not set forth a plausible alternative defense strategy that might have been pursued. Accordingly, this claim, too, must fail.

The judgment is affirmed.

       The petitioner was charged with multiple counts of possession of narcotics with intent to sell in violation of General Statutes § 21a-278 (b), assault of a police officer in violation of General Statutes § 53a-167c, and disorderly conduct in violation of General Statutes § 53a-183.

       The petitioner was charged with possession of narcotics with intent to sell in violation of General Statutes § 21a-278 (b).

       The habeas court stated that “[t]he petitioner offered no evidence [as to the date Zingaro began to represent Byron Bigelow], Therefore, although the exact date could not be determined, the evidence presented supports the finding that any representation of Byron Bigelow by [Zingaro] did not begin until after the petitioner’s matters were concluded.”

       For instance, the habeas court noted, “[e]ven if we assume for purposes of argument that [Zingaro’s] relationship with Byron Bigelow rose to the level that it could be considered a conflict, the petitioner has still failed to prove his claim, because he could not meet the second prong of the test by showing ‘that a lapse of representation . . . resulted from the conflict . . . that some plausible alternative defense strategy or tactic might have been pursued, but was not and that the alternative defense was inherently in conflict with or not undertaken due to the attorney’s other loyalties or interests’. . . . Trying to place blame on Byron Bigelow for the drugs found during the September 26, 2008 search of the condominium was simply not aplausible, viable defense based on the facts of the case.” (Citation omitted.) We agree.