author: DUPONT, J.

text:
    RITA PEATIE v. WAL-MART STORES, INC.
    (AC 28387)
    Flynn, C. J., and Lavine and Dupont, Js.

      Argued September 25, 2008
    officially released January 6, 2009

      Heidi J. Alexander, for the appellant (plaintiff).

      Anita M. Varanes, with whom was Timothy P. Knotts, for the appellee (defendant).
   Opinion

DUPONT, J.

In this negligence action, the plaintiff, Rita Peatie, appeals from the judgment of the trial court, rendered after a jury verdict in favor of the defendant, Wal-Mart Stores, Inc. The plaintiff claims on appeal that the court improperly (1) bound her “in lieu of’ attorney to the scheduling order agreed to by her previous attorney, (2) refused to lift a protective order, (3) excluded some of the testimony of her expert from the jury’s consideration, (4) included a jury instruction regarding the calculation of economic damages and (5) was biased in favor of the defendant. We affirm the judgment of the trial court.

The following facts and procedural history are relevant to the plaintiffs appeal. The plaintiff instituted this negligence action against the defendant on October 12, 2004. In her amended complaint, which is the operative complaint, the plaintiff alleged that while shopping at the defendant’s store on October 10, 2002, she suffered multiple injuries when a metal cylinder unit attached to a vaulted ceiling fell and hit her on the head, neck and left shoulder. The plaintiff further alleged that the metal cylinder attached to the ceiling was in the control of the defendant and that the defendant was negligent in that it knew or should have known that the cylinder unit was not properly attached to the ceiling.

The evidentiary portion of the trial began on December 5, 2006. On December 8, 2006, the jury returned a verdict in favor of the defendant. The court accepted the verdict and rendered judgment in favor of the defendant. The plaintiff did not make a motion to set aside the verdict. This appeal followed.

I

The plaintiffs first claim is that the court improperly bound her “in lieu of’ counsel to the scheduling orders agreed to by her previous counsel when it denied her May 12, 2006 motion for a continuance of the discovery deadlines. We disagree.

The following additional facts are relevant to the plaintiffs claim. On March 15, 2005, approximately five months from the date the action was initiated, a scheduling order was agreed to by the plaintiffs previous counsel and by counsel for the defendant. On August 1, 2005, new counsel for the plaintiff entered the case in lieu of her former counsel. On September 6, 2005, the plaintiffs new counsel made a motion for a 120 day extension of the entire scheduling order. The court did not rule on that motion. On January 17, 2006, the plaintiffs counsel filed a motion to continue a January 27, 2006 arbitration hearing date on the ground that discovery was not complete. The court granted the motion and continued the arbitration date to May 12, 2006. On that day, counsel filed another motion to continue the arbitration hearing on the ground that discovery still was not complete. The court denied that motion, and the arbitration hearing proceeded as scheduled.

We first set forth our standard of review. “The trial court has a responsibility to avoid unnecessary interruptions, to maintain the orderly procedure of the court docket, and to prevent any interference with the fair administration of justice.” (Internal quotation marks omitted.) State v. Stevenson, 53 Conn. App. 551, 562, 733 A.2d 253, cert. denied, 250 Conn. 917, 734 A.2d 990 (1999). In addition, “matters involving judicial economy, docket management [and control of] courtroom proceedings . . . are particularly within the province of a trial court.” (Internal quotation marks omitted.) Marshall v. Marshall, 71 Conn. App. 565, 574, 803 A.2d 919, cert. denied, 261 Conn. 941, 808 A.2d 1132 (2002). Accordingly, “[a] trial court holds broad discretion in granting or denying a motion for a continuance. Appellate review of a trial court’s denial of a motion for a continuance is governed by an abuse of discretion standard that, although not unreviewable, affords the trial court broad discretion in matters of continuances.” (Internal quotation marks omitted.) Id.

“A reviewing court is bound by the principle that [e]very reasonable presumption in favor of the proper exercise of the trial court’s discretion will be made. ... To prove an abuse of discretion, an appellant must show that the trial court’s denial of a request for a continuance was [unreasonable or] arbitrary .... There are no mechanical tests for deciding when a denial of a continuance is so arbitrary as to violate due process. The answer must be found in the circumstances present in every case, particularly in the reasons presented to the trial judge at the time the request is denied.” (Internal quotation marks omitted.) State v. Ross V., 110 Conn. App. 1, 7, 953 A.2d 945, cert. denied, 289 Conn. 939, 958 A.2d 1247 (2008).

In the present case, the May 12, 2006 motion for a continuance was the plaintiffs second such motion. The plaintiffs first motion for a continuance was granted by the court and gave the plaintiff four additional months to complete discovery. In State v. Marshall, 51 Conn. App. 469, 473, 722 A.2d 122, cert. denied, 248 Conn. 901, 732 A.2d 178 (1999), we held that “[sjince the trial court had already granted one continuance, we find no abuse of discretion in the court’s refusal to grant the [party’s] motion for a further continuance.” See State v. Yednock, 14 Conn. App. 333, 344-45, 541 A.2d 887 (1988) (no abuse of discretion where court refused to grant further continuance after already granting one). Moreover, the plaintiff did not make the motion for a continuance until the morning the arbitration hearing was set to proceed. At that point, it would have been unfair to the defendant and to the arbitrator to postpone the hearing for a second time. We therefore conclude that the court acted within its discretion when it denied the plaintiffs May 12, 2006 motion for a continuance.

II

The plaintiffs second claim is that the court, Auri-gemma, J., abused its discretion when it denied her motion in limine to lift a protective order that prevented her from deposing the defendant’s custodian of records. We disagree.

The following additional facts are relevant to the plaintiffs claim. On October 13, 2006, the defendant filed a motion for a protective order in connection with the plaintiffs September 27, 2006 deposition notice and subpoena to the defendant’s custodian of records to acquire photographs, records and reports held by the defendant regarding the plaintiffs alleged injury. The defendant asserted two grounds in support of its motion: (1) the proceedings in the case had been stayed, except to allow the defendant to depose the plaintiffs causation expert, David Kalayjian, an orthopedic surgeon, by a prior order of the court, Dubay, J., dated September 26, 2006; and (2) the plaintiff did not certify a copy of the notice of deposition to the defendant’s attorney. The plaintiff did not file an objection to the motion, and it was granted by the court, Aurigemma, J., on October 30, 2006.

On December 5, 2006, the first day of the evidentiary portion of the trial, the plaintiff filed a motion in limine to lift the defendant’s protective order on the ground that no annoyance, embarrassment, oppression, or undue burden or expense were experienced by the defendant. The plaintiff also argued that because the defendant had conducted discovery beyond the guidelines set by Judge Dubay’s order, it would only be fair to allow her to do so as well. The court, Aurigemma, J., denied the plaintiffs motion, stating: “I just don’t think [I’ve] heard any good reason why these . . . couldn’t have been or weren’t obtained in discovery well before September [2006], at which time, I would assume the discovery deadlines had long passed.”

“[T]he [trial] court’s inherent authority to issue protective orders is embodied in Practice Book § 13-5 . . . .” Rosado v. Bridgeport Roman Catholic Diocesan Corp., 276 Conn. 168, 221 n.59, 884 A.2d 981 (2005). “[Discovery related protective orders . . . are injunc-tive in nature. Such orders have both the force and effect of an injunction, and serve a similar equitable purpose, namely, to regulate prospectively the conduct of the parties, either by restraining them from acting or by requiring them to act under circumstances that, if not so regulated, could lead to unduly harmful consequences. . . . [0]nce issued, protective orders, like injunctions, need not remain in place permanently . . . and their terms are not immutable. It is well-settled that a trial court retains the power to modify or lift a protective order that it has entered. . . . Indeed, courts and commentators seem unanimous in finding . . . [that courts have] an inherent power to modify discovery-related protective orders . . . when circumstances justify.” (Citation omitted; internal quotation marks omitted.) Id., 214-15.

The use of protective orders and the extent of discovery is within the discretion of the trial judge. See Lougee v. Grinnell, 216 Conn. 483, 491, 582 A.2d 456 (1990), overruled in part on other grounds by State v. Salmon, 250 Conn. 147, 154-55, 735 A.2d 333 (1999) (en banc); State v. Jacobs, 70 Conn. App. 488, 502, 802 A.2d 857 (2002), vacated and remanded, 265 Conn. 396, 828 A.2d 587 (2003); Verderame v. Pryor, Superior Court, judicial district of New Britain, Docket No. CV-99-0496040-S (January 24, 2001) (Kocay, J.). “We have long recognized that the granting or denial of a discoveiy request ... is subject to reversal only if such an order constitutes an abuse of that discretion. . . . [I]t is only in rare instances that the trial court’s decision will be disturbed. . . . Therefore, we must discern whether the court could [have] reasonably conclude[d] as it did.” (Internal quotation marks omitted.) Barry v. Quality Steel Products, Inc., 280 Conn. 1, 16-17, 905 A.2d 55 (2006).

In the present case, as indicated in the court’s discussion of its reasons for refusing to lift the protective order, the court granted the protective order in the first place because the discovery deadlines had passed. The September 26, 2006 order makes it clear that as of that date, the time for discovery had long been over, except that the defendant would be allowed to depose Kalay-jian because the plaintiff had been tardy in disclosing him as her causation expert. The plaintiffs subpoena and notice of deposition to the defendant’s custodian of records is dated September 27,2006. The information the plaintiff sought had not come to her attention suddenly. By counsel’s own admission, that information was available and had been known to her since she entered the case in August, 2005. Inherent in the court’s granting of the protective order was a finding that allowing the plaintiff to engage in discovery well after the time for discovery had concluded and after she previously had been granted a four month continuance to complete discovery would annoy, if not oppress, the defendant.

Moreover, it is important to note that the plaintiff did not file an objection when the defendant first filed the motion for the protective order and did not make the motion in limine to lift the protective order until the morning of the trial, a little more than one month from when it was issued. Had the court granted the motion, it would have been necessary to postpone the trial, which inevitably would have caused an undue hardship to the defendant, the court and the jury. Accordingly, the court did not abuse its discretion when it issued the protective order or when it denied the plaintiffs motion in limine to lift the protective order.

Ill

The plaintiffs third claim is that the court improperly precluded from the jury’s consideration the testimony of her causation expert, Kalayjian, as to the causal connection between the incident at the defendant’s store and the plaintiffs second surgery. We disagree.

The following additional facts are relevant to the plaintiffs claim. At trial, the plaintiff testified that due to the injury she suffered at the defendant’s store, she was forced to have surgery on her left shoulder. She further testified that Kalayjian performed the surgery on April 2, 2003, and afterward, she regained use of her arm and that “it felt great.” The plaintiff then added: “[Kalayjian] did a great job until I picked up a twelve pack Pepsi . . . .” The plaintiff testified that when she lifted the twelve pack of Pepsi, her shoulder “went pop” and she was in “severe pain.” The plaintiff stated that she then had to have a second surgery on her left shoulder.

On direct examination, Kalayjian testified that after the plaintiffs first surgery, she came into his office for checkups on April 11, May 9 and August 1, 2003. At each checkup, he found that she had excellent motion with minimal discomfort. On February 7,2005, however, the plaintiff came in and reported that she had recurring discomfort in her left shoulder. Kalayjian testified that due to this discomfort, he performed a second surgery on the plaintiff’s left shoulder on April 11, 2005. Kalay-jian further testified that he believed that both surgeries were causally connected to the plaintiffs injury at the defendant’s store.

On cross-examination, the defendant’s counsel asked Kalayjian if he was aware that the plaintiff had told another physician that after her first surgery, she was doing quite well until she lifted a twelve pack of Pepsi and felt a pop in her left shoulder, resulting in significant pain, and that that is when she returned to him for additional treatment of the left shoulder. Kalayjian responded that the plaintiff did not tell him when she came into his office on February 7, 2005, or on any other date, that she had felt a pop in her shoulder after lifting a twelve pack of Pepsi. The defendant’s counsel then asked Kalayjian whether it would be fair to say with a reasonable degree of medical probability that the plaintiffs second course of treatment for the left shoulder was in fact related to the lifting of the twelve pack of Pepsi, to which Kalayjian replied: “[T]hat was certainly ... a major cause of it. Yes. I don’t think it was a normal cuff before then, but I think the second she felt a pop when lifting the twelve pack, then that certainly would be a major cause.”

On redirect examination, the plaintiffs counsel asked Kalayjian if his opinion as to the cause and relationship of the two surgeries had changed after hearing about the Pepsi incident. Kalayjian responded: “Well, somewhat. I think that the second surgery is not as directly related to the original injury as I thought it was, given the history that has been brought out.” Kalayjian stated, however, that he still thought there was a relationship between the second surgery and the plaintiffs injury at the defendant’s store. On recross-examination, Kalay-jian clarified that the Pepsi incident “certainly was a substantial cause” of the plaintiffs second surgery.

The defendant then moved to preclude submission to the jury of evidence of the plaintiffs second surgery and the bills relating to that surgeiy on the ground that because Kalayjian had testified that the Pepsi incident was a major cause of the second surgery, there was no expert opinion that the second surgery was caused by the incident at the defendant’s store. The plaintiff objected and argued that because Kalayjian stated on redirect that he would still relate the two causally, his opinion had not changed completely. The court granted the defendant’s motion to preclude, stating: “Based on what I’ve heard, I will exclude the second surgery and all the bills related to the second surgery. I think [Kalay-jian] indicated that it was a substantial factor for causing that surgery or the need for that surgery was the picking up of the Pepsi and that the arm was doing fine before she did. So, I am not going to allow those in.” When the jury reentered the courtroom, the court ordered it to disregard Kalayjian’s testimony regarding the second surgery and the hospital bills relating to that surgery in assessing the damages to the plaintiff.

Before undertaking a discussion of the merits of the plaintiffs claim, we first must consider the impact of the plaintiffs failure to file a motion to set aside the verdict in accordance with Practice Book § 16-35 and General Statutes § 52-228b. The defendant argues that this omission restricts our review of this claim to plain error. The plaintiff agrees. Both the plaintiff and the defendant, however, are incorrect.

Prior to 1996, a failure to make a motion to set aside a jury verdict did, in fact, limit our review to the standard of plain error. The reasoning in support of this rule was that § 52-228b “was designed to afford the trial court a full opportunity to redress any errors which may have occurred at trial before the appellate process is begun.” Pietrorazio v. Santopietro, 185 Conn. 510, 515, 441 A.2d 163 (1981). In Santopietro v. New Haven, 239 Conn. 207, 220-21, 682 A.2d 106 (1996), our Supreme Court, overruling Pietrorazio, held that notwithstanding a party’s failure to file a motion to set aside the verdict, when claims of error in trial rulings are preserved during the trial, they are entitled to plenary review. In the present case, the plaintiff preserved her claim during the trial. Therefore, we are not restricted to plain error review because of her failure to move to set aside the verdict.

We will now discuss the merits of the plaintiffs claim that the court improperly precluded her expert’s testimony as to her second surgery. “The trial court has wide discretion in ruling on the admissibility of expert testimony and, unless that discretion has been abused or the error is clear and involves a misconception of the law, its ruling will not be disturbed. ... In order to render an expert opinion the witness must be qualified to do so and there must be a factual basis for the opinion. . . . Some facts must be shown as the foundation for an expert’s opinion, but there is no rule of law declaring the precise facts which must be proved before such an opinion may be received in evidence.” (Internal quotation marks omitted.) Wallace v. St. Francis Hospital & Medical Center, 44 Conn. App. 257, 259-60, 688 A.2d 352 (1997).

“To be entitled to damages a plaintiff must establish a causal relation between the injury and the physical condition which he claims resulted from it. . . . This causal connection must rest upon more than surmise or conjecture. ... A trier is not concerned with possibilities but with reasonable probabilities. . . . The causal relation between an injury and its later physical effects may be established by the direct opinion of a physician, by his deduction by the process of eliminating causes other than the traumatic agency, or by his opinion based upon a hypothetical question.” (Citations omitted; internal quotation marks omitted.) Struckman v. Burns, 205 Conn. 542, 554, 534 A.2d 888 (1987).

“Expert opinions must be based upon reasonable probabilities rather than mere speculation or conjecture if they are to be admissible in establishing causation. ... To be reasonably probable, a conclusion must be more likely than not. . . . Whether an expert’s testimony is expressed in terms of a reasonable probability that an event has occurred does not depend upon the semantics of the expert or his use of any particular term or phrase, but rather, is determined by looking at the entire substance of the expert’s testimony. ... As long as it is clear that the opinion of the expert is expressed in terms of probabilities, the opinion should be submitted into evidence for a jury’s consideration.” (Citation omitted; internal quotation marks omitted.) State v. Nunes, 260 Conn. 649, 672-73, 800 A.2d 1160 (2002). Similarly, if the expert’s opinion is not stated with the requisite standard of reasonable medical probability, it is inadmissible and should not be submitted for a jury’s consideration. See Aspiazu v. Orgera, 205 Conn. 623, 633, 535 A.2d 338 (1987) (before court could allow jury to consider expert’s report as probative on causation, it had to be persuaded that physician was confident relationship between injury and treatment reasonably probable).

Our review of the record in the present case reveals that the court did not abuse its discretion in precluding Kalayjian’s testimony regarding the second surgery from the jury’s consideration. As part of her request for economic damages, the plaintiff sought compensation for the hospital bills relating to the second surgery. Therefore, the plaintiff had to establish through her expert, Kalayjian, that on the basis of reasonable medical probability, there was a causal relation between the injury she suffered at the defendant’s store and the second surgery. Kalayjian was the only witness to testify that the need for the second surgery stemmed from the plaintiffs injuiy at the defendant’s store. Kalayjian, however, after being informed of the Pepsi incident on cross-examination, stated that the second surgery was “not as directly related to the original injury” as he originally thought and that the Pepsi incident would have been a major cause of the second surgery. Although he did state on redirect that he still believed that the incident at the defendant’s store was related to the second surgery, he did not express it in terms of probabilities, and, therefore, he did not state his opinion with the requisite standard of reasonable medical probability. If the Pepsi incident was a “major cause” of the surgery, the jury would need to know how to apportion cause to the incident at the defendant’s store. As there was no testimony to that effect, the jury would have been left to speculation. Accordingly, we conclude that the court properly instructed the jury to disregard Kalayjian’s testimony as to the cause of the second surgery.

IV

The plaintiffs fourth claim on appeal is that the court improperly included an instruction concerning the calculation of economic damages that was not discussed during the charging conference. We disagree.

The following additional facts are relevant to the plaintiffs claim. During its charge to the jury, the court, in discussing damages, stated: “The plaintiff is entitled to recover as damages her fair and reasonable medical expenses, including expenses for hospital care, doctor’s bill, physical therapist bill, home health care bill. I believe I heard something in the [attorneys’ closing] arguments to the effect that there is some sort of a tripling or doubling process that is involved in awarding economic damages. This is not our law. If you determine [that] the plaintiff is entitled to recover damages, she’s entitled only to recover fair, just and reasonable economic damages which consist of the amount of her medical bill, not the double or triple amount of her medical bills and other out-of-pocket expenses incurred as a result of the negligence of the defendant.”

After the court concluded its charge, counsel for the plaintiff took exception to the comment, stating: “At some point, you were indicating something about the doubling or tripling of damages and that I had argued that it’s for economic damages. That wasn’t what I was arguing. I said that you could use . . . that amount and double ... or triple it for pain and suffering when I was discussing noneconomic damages.” The court replied: “Okay. Well ... I was talking about economic because that’s what I thought you said.”

“We first set forth the well established standard of review for a challenge to the propriety of a jury instruction. . . . The test to determine if a jury charge is proper is whether it fairly presents the case to the jury in such a way that injustice is not done to either party under the established rules of law. . . . [W]e must determine whether the jury instructions gave the jury a reasonably clear comprehension of the issues presented for their determination under the pleadings and upon the evidence and were suited to guide the jury in the determination of those issues. . . . [I]n our task of reviewing jury instructions, we view the instructions as part of the whole trial. ... As long as [the instructions] are correct in law, adapted to the issues and sufficient for the guidance of the jury ... we will not view the instructions as improper. . . . Moreover, [a] refusal to charge in the exact words of a request will not constitute error if the requested charge is given in substance.” (Citation omitted; internal quotation marks omitted.) Ravenswood Construction, LLC v. F. L. Merritt, Inc., 105 Conn. App. 7, 11-12, 936 A.2d 679 (2007).

We are convinced that the court’s instruction was not improper. In her closing argument, counsel for the plaintiff stated: “With regard to the injury itself, I usually go in guidance with the medical bills, and I gave a number two or three times of what the medical bills are.” It was logical for the court to believe that counsel was arguing that her client was entitled to two or three times the medical bills in economic damages, as counsel stated that these damages pertain to the “injury itself . . . .” Because counsel’s argument was not a correct statement of our law, it was appropriate for the court to instruct the jury that our law does not provide for the doubling or tripling of her medical bills in economic damages. This instruction was correct in law and provided proper and necessary guidance for the jury.

V

The plaintiffs fifth and final claim is that there was bias on the part of the court. The plaintiff did not file a motion for a recusal, disqualification or mistrial. On appeal, the plaintiff alleges that the four rulings previously discussed demonstrate bias on the part of the court because each of them was in favor of the defendant and each was improper. We disagree.

“Ordinarily, we will not review a claim of judicial bias on appeal unless that claim was properly presented to the trial court through a motion for disqualification or a motion for a mistrial. . . . Because an accusation of judicial bias or prejudice strikes at the very core of judicial integrity and tends to undermine public confidence in the established judiciary . . . we nonetheless have reviewed unpreseived claims of judicial bias under the plain error doctrine. . . . The plain error doctrine [however] is not ... a rule of reviewability. It is a rule of reversibility. That is, it is a doctrine that this court invokes in order to rectify a trial court ruling that, although either not properly preserved or never raised at all in the trial court, nonetheless requires reversal of the trial court’s judgment, for reasons of policy. . . . The plain error doctrine is reserved for truly extraordinary situations where the existence of the error is so obvious that it affects the fairness and integrity of and public confidence in the judicial proceedings. ... A party cannot prevail under plain error unless it has demonstrated that the failure to grant relief will result in manifest injustice.” (Citation omitted; internal quotation marks omitted.) Mercer v. Cosley, 110 Conn. App. 283, 290-91, 955 A.2d 550 (2008).

“Canon 3 (c) (1) of the Code of Judicial Conduct provides in relevant part: A judge should disqualify himself or herself in a proceeding in which the judge’s impartiality might reasonably be questioned, including but not limited to instances where: (A) the judge has a personal bias or prejudice concerning a party .... To prevail on its claim of a violation of this canon, the plaintiff need not show actual bias. The plaintiff has met [her] burden if [she] can prove that the conduct in question gave rise to a reasonable appearance of impropriety. . . .

“We use an objective rather than a subjective standard in deciding whether there has been a violation of canon 3 (c) (1). Any conduct that would lead a reasonable [person] knowing all the circumstances to the conclusion that the judge’s impartiality might reasonably be questioned is a basis for the judge’s disqualification. Thus, an impropriety or the appearance of impropriety . . . that would reasonably lead one to question the judge’s impartiality in a given proceeding clearly falls within the scope of the general standard .... The question is not whether the judge is impartial in fact. It is simply whether another, not knowing whether or not the judge is actually impartial, might reasonably question his . . . impartiality, on the basis of all of the circumstances.” (Citation omitted; internal quotation marks omitted.) Burton v. Mottolese, 267 Conn. 1, 30, 835 A.2d 998 (2003), cert. denied, 541 U.S. 1073, 124 S. Ct. 2422, 158 L. Ed. 2d 983 (2004).

Our review of the plaintiffs claim of bias reveals that the ground asserted amounts to nothing more than a claim that the court’s rulings were improper because they were not in her favor. Yet, “[ajdverse rulings do not themselves constitute evidence of bias.” State v. Fullwood, 194 Conn. 573, 582, 484 A.2d 435 (1984). Obviously, if a ruling against a party could be used as an indicia of bias, at least half of the time, every court would be guilty of being biased against one of two parties. Moreover, the “fact that a trial court rules adversely to a litigant, even if some of these rulings were determined on appeal to have been erroneous, [still] does not demonstrate personal bias.” Bieluch v. Bieluch, 199 Conn. 550, 553, 509 A.2d 8 (1986). Notably, in this case, we already have determined that not one of the four rulings of which the plaintiff complains was erroneous. We refuse to attribute those rulings to personal bias or prejudice on the part of the court. Further, the plaintiff has not demonstrated that she suffered manifest injustice such that would warrant a finding of plain error.

The judgment is affirmed.

In this opinion the other judges concurred.

       The plaintiff, in both her brief and at oral argument before this court, admitted that she had made no such motion. The consequences of this omission will be discussed in parts III and IV, as the claims therein relate to rulings made during the trial. Parts I and II involve rulings on pretrial motions, which are not usually the subject of motions to set aside the verdict because motions to set aside the verdict ordinarily rest on the conduct of the proceedings as heard by the jury. Part V involves an allegation of bias on the part of the court, and, as set out within that section, there is a particular procedure for raising such claims.

       The arbitrator issued a decision in favor of the defendant on May 16, 2006. The plaintiff filed a motion for a trial de novo on June 1, 2006.

       Practice Book § 13-5 provides in relevant part: “Upon motion by a party from whom discovery is sought, and for good cause shown, the judicial authority may make any order which justice requires to protect a party from annoyance, embarrassment, oppression, or undue burden or expense, including one or more of the following: (1) that the discovery not be had

       The information the plaintiff sought through the subpoena and notice of deposition to the custodian of records related to her attempt to show that the defendant had notice of a defect in the structure of the metal cylinder unit and its attachment to the ceiling. The plaintiff claimed that within minutes after she was hit with the object, an employee told her that the same piece had fallen two days prior. Presumably, if a prior accident had occurred, the maintenance records would be relevant.

       See Practice Book § 13-5.

       Practice Book § 16-35 provides in relevant part: “[Mjotions to set aside a verdict . . . must be filed with the clerk within ten days after the day the verdict is accepted .... The clerk shall notify the trial judge of such filing. Such motions shall state the specific grounds upon which counsel relies.”

       General Statutes § 52-228b provides in relevant part: “No verdict in any civil action involving a claim for money damages may be set aside except on written motion by a party to the action, stating the reasons relied upon in its support, filed and heard after notice to the adverse party according to the rules of the court. . . .”

       The court explained: “[T]he initial appellate determination of whether to review a claimed improper ruling of the trial court in a plenary fashion or under the plain error doctrine is more than a matter of phraseology. Determining whether a trial court has committed plain error that requires reversal is quite different from determining whether a trial court has made a ruling that is legally incorrect and that is sufficiently harmful to require reversal of the judgment. Where claims of trial court impropriety have been properly preserved and, therefore, are entitled to plenary review, we determine whether the ruling of the trial court is legally correct and, if it is not, whether the error was likely to have affected the verdict. . . .
      “In determining whether there has been plain error, however, our scope of review is much more circumscribed. Plain error review is reserved for truly extraordinary situations where the existence of the error is so obvious that it affects the fairness and integrity of and public confidence in the judicial proceedings. ... In any given case, therefore, rulings of the trial court that, if reviewed in a plenary fashion, would be judged to be legally incorrect and harmful enough to require reversal of the judgment could, if considered only under the plain error doctrine, be considered not to be so egregiously incorrect as to constitute plain error requiring reversal. In effect, then, confining an appellate claim to the plain error rubric means that, for reasons of policy, we are willing to take the appellate risk of sanctioning a legally flawed trial court judgment.” (Citations omitted; internal quotation marks omitted.) Santopietro v. New Haven, supra, 239 Conn. 216. A plain error review is thus less likely to result in a reversal of a judgment than a plenary review.

       As with the plaintiffs third claim, because the plaintiff properly preserved this claim at trial, we will accord it a full review despite the fact that she failed to move to set aside the verdict.

       We note that in her oral argument, the plaintiffs counsel went so far as to claim that the trial court demonstrated bias by not reading her briefs. When asked what evidence she had to support this claim, counsel responded that if the court had considered her briefs, it would not have ruled as it did.
      We remind counsel that “a charge of bias must be deemed at or near the very top in seriousness, for bias kills the very soul of judging-—-fairness.” (Internal quotation marks omitted.) Wendt v. Wendt, 59 Conn. App. 656, 693, 757 A.2d 1225, cert. denied, 255 Conn. 918, 763 A.2d 1044 (2000). “[A] charge of . . . bias against a trial judge in the execution of his or her duties is a most grave accusation. It strikes at the very heart of the judiciary as a neutral and fair arbiter of disputes for our citizenry. Such an attack travels far beyond merely advocating that a trial judge ruled incorrectly as a matter of law or as to a finding of fact, as is the procedure in appellate practice. A judge’s personal integrity and ability to serve are thrown into question, placing a stain on the court that cannot easily be erased. Attorneys should be free to challenge, in appropriate legal proceedings, a court’s perceived partiality without the court misconstruing such a challenge as an assault on the integrity of the court. Such challenges should, however, be made only when substantiated by the trial record.” (Internal quotation marks omitted.) Id., 697.
      In Evans v. Commissioner of Correction, 37 Conn. App. 672, 676-77 n.6, 657 A.2d 1115, cert. denied, 234 Conn. 912, 660 A.2d 354 (1995), we cautioned a party who questioned whether a habeas judge had read certain materials not to cast aspersions inadvertently on the court. In Wendt, in which the plaintiffs counsel cited to four adverse rulings as evidence of the court’s gender bias and failed to refer to a single supporting factual ground, we stated: “[T]he plaintiffs counsel not only ignores our warning in Evans, but crosses the invisible line delineating ethical and unethical conduct. Unlike counsel in Evans, her attack is by no means inadvertent, but a direct, groundless assault on the integrity of the trial court. It is an elementary rule of law that the fact that a trial court rules adversely to a litigant . . . does not demonstrate personal bias.” (Internal quotation marks omitted.) Wendt v. Wendt, supra, 59 Conn. App. 694. We further issued “a cautionary warning for any member of the bar who may in the future consider making such an unsupported line of attack”; id., 696; and suggested that the plaintiffs counsel review rule 8.2 of the Rules of Professional Conduct, which states that “[a] lawyer shall not make a statement that the lawyer knows to be false or with reckless disregard as to its truth or falsity concerning the qualifications or integrity of a judge . . . .’’Id., 697.
      In the present case, counsel’s argument of bias is completely unsubstantiated by the trial record. Counsel has come dangerously close to crossing the invisible line delineating proper and improper conduct, as outlined in Evans and Wendt.


source: Caselaw Access Project

author: PELLEGRINO, J.

license: Public Domain

text:
    DEBRA G. TOCCO v. WESLEYAN UNIVERSITY
    (AC 28928)
    Harper, Beach and Pellegrino, Js.
    Argued October 14, 2008
    officially released January 6, 2009

      Ralph J. Monaco, with whom was Patrick J. Day, for the appellant (plaintiff).

      Eileen R. Becker, for the appellee (apportionment defendant Hamden Figure Skating Association, Inc.).
   Opinion

PELLEGRINO, J.

The plaintiff, Debra G. Tocco, appeals from the judgment dismissing the count of her complaint against the Hamden Figure Skating Association, Inc. (association), an apportionment defendant. The issue in this appeal is whether the plaintiff obtained proper service on the association. The plaintiff claims proper service was made on the association in accordance with General Statutes § 52-102b (d) by mailing to the association a copy of her second amended complaint at a time when no appearance had been filed on behalf of the association. The court, however, agreed with the association that the plaintiff had failed to make proper service according to Practice Book §§ 10-12 (c) and 10-13 as required, and, therefore, it dismissed the plaintiffs complaint as to the association. We affirm the judgment of the trial court.

The following facts are relevant to our disposition of the plaintiffs appeal. The plaintiff initiated an action against the defendant Wesleyan University (Wesleyan) by serving it with a writ of summons and complaint with a return date of March 29,2005, alleging negligence for injuries she sustained at Wesleyan’s ice rink. Within 120 days of the return date, on July 26, 2005, Wesleyan served an apportionment complaint on the association with a return date of August 23, 2005. On August 19, 2005, the plaintiff filed with the court a request to amend her complaint and attached a second amended complaint alleging an additional direct count against the association, as the apportionment defendant, pursuant to § 52-102b (d). On March, 20, 2006, the court granted the plaintiffs request to amend, which related back to the date of filing, August 19, 2005. The plaintiff then mailed the second amended complaint to the association on July 19, 2006.

At this point in the proceedings, the association had not yet filed an appearance and on that date, July 19, 2006, the plaintiff also mailed to the association a copy of the plaintiffs motion for default for failure to appear. Counsel for the association filed an appearance on May 10, 2007, and on May 16, 2007, filed a motion to dismiss count two of the plaintiffs second amended complaint, claiming lack of personal jurisdiction due to improper service. On June 13,2007, the court granted the association’s motion to dismiss, agreeing with the association that the second amended complaint was not properly served pursuant to Practice Book §§ 10-12 (c) and 10-13. The plaintiff appeals from the judgment of the court dismissing the complaint against the association.

The plaintiff argues that her direct claim against the association, an apportionment defendant, need only be “asserted” in accordance with the language of § 52-102b (d), which could be accomplished through the mail as opposed to service as prescribed by Practice Book §§ 10-12 (c) and 10-13. The plaintiff argues that Wesleyan’s service of a writ of summons and apportionment complaint on the association was adequate and timely, and, therefore, the association became a party to the action. It is the plaintiffs claim that because the association already was a party to the action, the language of § 52-102b (d), which provides that a direct claim could be “asserted” directly by the plaintiff against the apportionment defendant, permitted her to assert the new claim against the association by merely mailing it a copy of the second amended complaint, which she had filed with the court. The association argues, however, that at the time the plaintiff mailed the second amended complaint, it was a nonappearing party, and, therefore, the plaintiff could not assert a new claim pursuant to § 52-102b (d) by mail but was required to effect service on the association in accordance with Practice Book §§ 10-12 (c) and 10-13. We agree with the association.

Our standard of review is well settled. Our Supreme Court has “determined that our rules of statutory construction apply with equal force to interpretations of the rules of practice.” State v. McCahill, 265 Conn. 437, 446, 828 A.2d 1235 (2003). “Issues of statutory construction raise questions of law, over which we exercise plenary review.” (Internal quotation marks omitted.) State v. Boysaw, 99 Conn. App. 358, 362, 913 A.2d 1112 (2007). “A fundamental tenet of statutory construction is that statutes are to be considered to give effect to the apparent intention of the lawmaking body. . . . The meaning of a statute shall, in the first instance, be ascertained from the text of the statute itself and its relationship to other statutes. If, after examining such text and considering such relationship, the meaning of such text is plain and unambiguous and does not yield absurd or unworkable results, extratextual evidence of the meaning of the statute shall not be considered. [General Statutes § 1- 2z.]” (Internal quotation marks omitted.) State v. Boysaw, supra, 362-63.

We begin our analysis with the language of the rules of practice. Practice Book § 10-12 (c) provides: “Any pleading asserting new or additional claims for relief against parties who have not appeared or who have been defaulted shall be served on such parties.” (Emphasis added.) Practice Book § 10-13 provides in relevant part: “Service pursuant to Section 10-12 (c) shall be made in the same manner as an original writ and complaint is served . . . .” The meaning of Practice Book §§ 10-12 (c) and 10-13 is plain and unambiguous that a nonappearing party must be served in the same manner as required for service of an original complaint.

It is undisputed that at the time the plaintiff attempted to assert a direct claim against the association, she attempted to effectuate service of her complaint by mailing it to the association at a time when it had not filed an appearance. The language of General Statutes § 52-102b (d) does not include a provision for a nonap-pearing party; therefore, our rules of practice control. Practice Book §§ 10-12 (c) and 10-13 require that when a party has not appeared, a claim must be served in the same manner as an original complaint. The plaintiff did not conform to the requirements of proper service under Practice Book §§ 10-12 (c) and 10-13. As the plaintiffs claim against the association was not properly served on the association, the court lacked personal jurisdiction over the association.

The judgment is affirmed.

In this opinion the other judges concurred.

       The plaintiff also claims in her brief that even if she had attempted to have a marshal serve the association with the second amended complaint, the association’s failure to keep its records current with the secretary of the state would have prevented such service. As this issue was not raised in the trial court, we will not address this claim on appeal. See Practice Book § 60-5.


author: ROBINSON, J.

text:
    STATE OF CONNECTICUT v. ANDREW J. SIMINAUSKY
    (AC 28965)
    Gruendel, Robinson and Pellegrino, Js.
    Argued November 12, 2008
    officially released January 6, 2009

      Laljeebhai R. Patel, special public defender, for the appellant (defendant).

      Rita M. Shair, senior assistant state’s attorney, with whom, on the brief, were Michael Dearington, state’s attorney, and Michael J. O’Brien, supervisory assistant state’s attorney, for the appellee (state).
   Opinion

ROBINSON, J.

The defendant, Andrew J. Siminausky, appeals from the judgments of conviction rendered following the trial court’s denial of his motion to withdraw his guilty pleas. On appeal, the defendant claims that he did not enter knowing, intelligent and voluntary guilty pleas because his decision to plead guilty pursuant to a plea agreement was influenced by promises made by his attorneys outside of that agreement. We affirm the judgments of the trial court.

The following facts and procedural history are relevant to our disposition of the defendant’s appeal. On November 29, 2006, as a result of a plea agreement, the defendant pleaded guilty under the Alford doctrine to four counts of robbery in the first degree pursuant to General Statutes § 53a-134 and admitted to a violation of probation pursuant to General Statutes § 53a-32. Shortly thereafter, on December 5, 2006, the defendant pleaded guilty under the Alford doctrine to an additional count of robbery in the first degree. On January 18, 2007, the defendant filed amotion to withdraw his pleas. After a full hearing, the court denied his motion on April 27, 2007. Subsequently, on June 1, 2007, the court sentenced the defendant to a term of twelve years to serve in prison in conformity with the plea agreement, which permitted the imposition of a prison sentence of not less than ten nor more than fifteen years. This appeal followed. Additional facts will be set forth as necessary.

As a preliminary matter, we identify the legal principles and the standard of review relevant to our discussion. “Practice Book § [39-27] specifies circumstances under which a defendant may withdraw a guilty plea after it has been entered. [0]nce entered, a guilty plea cannot be withdrawn except by leave of the court, within its sound discretion, and a denial thereof is reversible only if it appears that there has been an abuse of discretion. . . . The burden is always on the defendant to show a plausible reason for the withdrawal of a plea of guilty.” (Internal quotation marks omitted.) State v. Sutton, 95 Conn. App. 139, 145, 895 A.2d 805, cert. denied, 278 Conn. 920, 901 A.2d 45 (2006).

In the present case, the defendant sought to withdraw his guilty pleas on the ground that “[t]he plea[s] [were] involuntary, or [were] entered without knowledge of the nature of the charge or without knowledge that the sentence actually imposed could be imposed . . . .” Practice Book § 39-27 (2). “[I]t is axiomatic that unless a plea of guilty is made knowingly and voluntarily, it has been obtained in violation of due process and is therefore voidable. ... A plea of guilty is, in effect, a conviction, the equivalent of a guilty verdict by a jury. ... In choosing to plead guilty, the defendant is waiving several constitutional rights, including his privilege against self-incrimination, his right to trial by jury, and his right to confront his accusers. . . . [The] constitutional essentials for the acceptance of a plea of guilty are included in our rules and are reflected in Practice Book §§ [39-19 and 39-20].” (Internal quotation marks omitted.) State v. Reid, 277 Conn. 764, 780, 894 A.2d 963 (2006).

“In order for a plea to be valid, the record must affirmatively disclose that the defendant understands the nature of the charge upon which the plea is entered . . . the mandatory minimum sentence, if any . . . the fact that a statute does not permit the sentence to be suspended . . . the maximum possible sentence . . . and that the defendant has the right to plead not guilty or to persist in that plea if already made, the right to a trial by a jury or judge, the right to assistance of counsel, the right to confront the defendant’s accusers and the right against compelled self-incrimination. . . . The record must further disclose that the plea is voluntary and not the result of threats or promises.” (Internal quotation marks omitted.) State v. Samuel, 94 Conn. App. 715, 718-19, 894 A.2d 363, cert. denied, 278 Conn. 911, 899 A.2d 39 (2006).

A review of the transcript reveals that the defendant was canvassed thoroughly before the court accepted his guilty pleas on November 29, 2006. The defendant was informed of the charges against him and the prima facie elements of each charge. The court explained the consequences of pleading guilty, including the specific implications of a guilty plea under the Alford doctrine. Furthermore, the court specifically inquired as to whether anyone had forced or threatened him to plead guilty. The defendant was informed of the maximum penalty, and the prosecuting attorney recounted the evidentiary basis for each charge. Throughout this colloquy, the defendant repeatedly responded affirmatively when asked by the court whether he understood the individual aspects of the plea canvass.

Notwithstanding his affirmations that he understood and agreed with the proceedings that transpired on November 29, 2006, the defendant claims that his pleas were not knowing, intelligent and voluntary because he relied on assurances made by his counsel that were not reflected in the plea agreement. Specifically, the defendant maintains that his counsel promised him that he would be eligible for early release after serving 65 percent of his sentence. He further argues that the court did not inquire as to the possibility of external promises, as required by Practice Book § 39-20, to ensure that his pleas were voluntary.

Practice Book § 39-20 requires that “[t]he judicial authority shall not accept a plea of guilty . . . without first determining, by addressing the defendant personally in open court, that the plea is voluntary and is not the result of force or threats or of promises apart from the plea agreement. . . .” In State v. Ocasio, 253 Conn. 375, 751 A.2d 825 (2000), however, our Supreme Court concluded that “the voluntariness of the plea . . . does not depend on the court’s strict compliance with [Practice Book] § 39-20. . . . [0]nly substantial, rather than literal, compliance with [Practice Book] § 39-20 is required in order to validate a defendant’s plea of guilty.” (Citations omitted.) State v. Ocasio, supra, 380. Our Supreme Court then enunciated the following test to determine substantial compliance: it must be determined, “whether, in light of all of the circumstances, the trial court’s literal compliance with [Practice Book] § 39-20 would have made any difference in the trial court’s determination that the plea was voluntary.” State v. Ocasio, supra, 380.

In State v. Nelson, 67 Conn. App. 168, 786 A.2d 1171 (2001), a case sharing a similar factual predicate with the present appeal, we applied the substantial compliance test set forth in Ocasio, and the resulting analysis is instructive. In Nelson, we upheld the trial court’s decision to deny the defendant’s motion to withdraw a guilty plea that the defendant maintained was involuntarily entered. The defendant claimed that he was not properly canvassed by the court because the court did not inquire whether any promises had been made to induce the plea. Id., 171-72. Upon review of the canvass, we determined that the court’s inquiry substantially complied with Practice Book § 39-20 despite the fact that it did not specifically inquire about promises made outside the plea agreement. State v. Nelson, supra, 176. In reaching that conclusion, we noted that the defendant had several opportunities to inform the court that his understanding of the plea agreement differed from the agreement discussed at the proceeding. We further stated: “[T]he trial court specifically explained what its understanding of the plea bargain was in its colloquy with the defendant. The defendant did not question or contradict the trial judge’s version of the agreement or interrupt the proceeding to confer with counsel.” Id., 175. Accordingly, we determined that a literal application of Practice Book § 39-20 would not have impacted the trial court’s decision that the plea was voluntary because we were not persuaded that the defendant would have spoken up if the trial court had asked if the plea was the result of an external promise not reflected in the plea agreement. State v. Nelson, supra, 176.

Similarly, in the present case, the defendant had the opportunity to voice an objection if he believed that the plea agreement stated by the court was not reflective of his understanding on the basis of any puiported promises made by his counsel. At no point in the proceeding did the defendant object to the characterization of the plea agreement. Specifically, the court stated: “I have indicated to both lawyers a ceiling of fifteen years. That means that you can’t get more than fifteen and a floor of ten. I told you this morning, and I told [your counsel] this afternoon that to get your actual floor, you have a tough row to hoe.” When asked if he understood this agreement, as stated, the defendant responded: “Yes, I do.” Reviewing the canvass in its totality, we are not persuaded that the court’s literal compliance would have made any difference in the court’s determination that the pleas were voluntary. There is no evidence in the record that indicates that, at the time the pleas were entered, the defendant was operating under a different understanding of his plea agreement. In light of the court’s substantial compliance with the rules of practice, we conclude that the court did not abuse its discretion in denying the defendant’s motion to withdraw his pleas.

The judgments are affirmed.

In this opinion the other judges concurred.

       See North Carolina v. Alford, 400 U.S. 25, 91 S. Ct. 160, 27 L. Ed. 2d 162 (1970).

       The violation of probation arose from a prior conviction in November, 2002, of conspiracy to commit burglary in the third degree and conspiracy to commit larceny in the third degree.

       The charges to which the defendant pleaded guilty arose from multiple informations. By information filed under docket number CR-01-0206523-T, the defendant was charged with a violation of probation as a result of his arrest on March 28,2005. In August, 2006, the defendant was charged, under docket number CR-06-0058967-T, with three counts of robbery in the first degree in connection with three separate incidents occurring in New Haven between August 20 and 28, 2006. The defendant was also charged with one count of robbery in the first degree under docket number CR-06-0237352T in connection with an incident that occurred in North Haven on August 26, 2006. Finally, the defendant was charged with one count of robbery in the first degree under docket number CR-06-0060634-T in connection with an incident that occurred in West Haven on August 28, 2006.

       It should be noted that the defendant, in his brief, makes the argument that “[t]he record shows that [he] has consistently objected to accepting [the] plea arrangement and has consistently affirmed his nonacceptance of the plea arrangement to his attorneys.” He also argues that “[t]he record shows that his attorneys considered the plea agreement to be in [his] best interest”; however, he thought otherwise and “continually resisted pressure from his counsel to plead.” Despite these statements, the defendant does not contest his negative response when asked by the court if anyone forced or threatened him to plead guilty. Rather, he argues that his guilty pleas were involuntary because of promises made outside of the plea agreement. There is no evidence in the record to support this assertion.


text:
    STATE OF CONNECTICUT v. DAVID BOUTEILLER
    (AC 29196)
    Flynn, C. J., and DiPentima and Dupont, Js.

      Argued October 22, 2008
    officially released January 6, 2009

      Vito A. Castignoli, for the appellant (defendant).

      Eileen F. McCarthy, senior assistant state’s attorney, with whom, on the brief, were Michael Dearington, state’s attorney, and Helen M. McLellan, assistant state’s attorney, for the appellee (state).
   Opinion

DUPONT, J.

The defendant, David Bouteiller, appeals from the judgment of the trial court revoking his probation and reinstating twenty months of the three year unexecuted portion of his previous sentence from a 2005 conviction. On appeal, the defendant claims that the court improperly (1) denied his motion to suppress the pretrial identification made by the victim because it violated his due process rights, (2) based its finding that he violated his probation on insufficient evidence and (3) abused its discretion by revoking his probation. We affirm the judgment of the trial court.

The following facts are relevant to the defendant’s appeal. On January 5,2005, the defendant was convicted of possession of narcotics, in violation of General Statutes § 21a-279 (a). The defendant was sentenced to a term of three years imprisonment, execution suspended, with three years probation. A condition of the defendant’s probation was that he “not violate any criminal law of the United States, this state or any other state or territory.”

On September 6, 2006, the defendant, who was still on probation, was arrested and charged with attempt to commit robbery in the second degree in violation of General Statutes §§ 53a-49 and 53a-135, and threatening in the second degree in violation of General Statutes § 53a-62. The charges stemmed from an August 10, 2006 incident at the Dunkin’ Donuts store located on Kimberly Avenue in New Haven. Thereafter, on May 23, 2007, the defendant was charged with violating the terms of his 2005 order of probation, in violation of General Statutes § 53a-32.

The court held a violation of probation hearing on August 8 and 9, 2007. At the hearing, the state proffered evidence that the defendant violated his probation by committing the crime of attempt to commit robbery in the second degree. The bulk of the evidence produced by the state was elicited from the testimony of Mitigo Wahareetou, the victim, and Joseph Streeto, an officer with the New Haven police department. Wahareetou, an employee of the Dunkin’ Donuts store, was working as a cashier at the drive-through window on the evening of August 10, 2006. On that date, at approximately 9:45 p.m., a man, whom she knew as a regular customer, approached the drive-through window on a bicycle and ordered a small cup of coffee. After she gave him the coffee, he reached his arm into the drive-through window and told her to give him the “drop money” or he would kill her. When she refused, the man lifted his T-shirt, as if he were retrieving a weapon. She then screamed, and the perpetrator fled the scene on his bicycle.

When the police arrived at the store ten to fifteen minutes later, Wahareetou told them that the perpetrator was a regular customer and that she had seen him at the store a number of times before the incident. She described the perpetrator as “a little bit tall [with] a small face and a pointed nose. ” Twenty to thirty minutes later, the police brought an individual into the store and asked Wahareetou whether he was the man who demanded money from her. Wahareetou told the police that he was not. Before leaving, the police told her to call them if the perpetrator ever returned to the store.

Wahareetou continued to work at the store after the incident, and, approximately one month later, on the afternoon of September 6, 2006, the perpetrator returned. She informed her manager, and he called the police, but the perpetrator left before the police arrived. Her manager, however, was able to write down the license plate number of the perpetrator’s blue pickup truck and gave the number to Streeto.

Streeto performed a department of motor vehicles check on the license plate number, which revealed that the plate belonged to a 1985 blue GMC pickup truck that was registered to the defendant, whose address was 456 Third Avenue, West Haven. Later that day, Streeto went to the defendant’s home in West Haven and detained him while another officer went to the store to pick up Wahareetou so she could view the defendant for identification purposes. When the defendant was presented to Wahareetou for identification, she immediately identified him as the perpetrator and stated that she was 100 percent positive. At the violation of probation hearing, Wahareetou stated that she was still 100 percent certain of her earlier identification and identified the defendant again in the courtroom.

At the conclusion of the adjudicative phase of the hearing, the court found that the state had met its burden of proving by a fair preponderance of the evidence that the defendant violated his probation by committing a crime, namely, attempt to commit robbery in the second degree. At the conclusion of the disposition phase of the hearing, the court found that the rehabilitative purpose of probation for the defendant would not be furthered. The court, therefore, revoked the defendant’s original sentence and committed him to the custody of the commissioner of correction for twenty months.

I

The defendant first claims that the court improperly denied his motion to suppress the pretrial identification made by the victim because it violated his right to due process under the fourteenth amendment to the United States constitution. Specifically, the defendant argues that the one-on-one identification procedure used by the police was unnecessarily suggestive because it was not in close temporal proximity to the attempted robbery, and the resulting identification was unreliable because Wahareetou’s testimony was inconsistent. We disagree.

The following additional facts are relevant to the defendant’s claim. On the second day of the revocation of probation proceeding, the defendant moved to suppress Wahareetou’s one-on-one identification of him on the ground that the procedure was inherently suggestive and that her identification was unreliable, as illustrated by her inconsistent testimony as to the number of times she had seen the defendant at the store before and after the attempted robbery. The court, in denying the motion to suppress, stated: “[0]ne-on-one show-ups are suggestive, no question about that, but was the initial observation by the alleged victim of the defendant reliable? It’s lighted, she’s looking at him, she has good chance to see him, she describes him as thin, thin face, pointy nose, described what he was wearing in clothing and then when the police stopped that one person . . . they brought that person back, she didn’t just jump at it and say that’s him, she said that’s not him, so [it was reliable].” “[The] [o]ne-on-one show-up you can say is unnecessarily suggestive but it is, under all the circumstances, reliable . . . .”

We now set forth our applicable standard of review. It is well settled that “[w]hether an identification procedure offends a defendant’s due process rights depends on (1) whether it was impermissibly and unnecessarily suggestive, and (2) if so, whether the identification was nonetheless reliable based on the totality of the circumstances.” State v. Sims, 12 Conn. App. 239, 242, 530 A.2d 1069, cert. denied, 206 Conn. 801, 535 A.2d 1315 (1987). “To prevail on his claim, the defendant has the burden of showing that the trial court’s determinations of suggestiveness and reliability both were incorrect.

“Furthermore, [w]e will reverse the trial court’s ruling [on evidence] only where there is an abuse of discretion or where an injustice has occurred . . . and we will indulge in every reasonable presumption in favor of the trial court’s ruling. . . . Because the inquiry into whether evidence of pretrial identification should be suppressed contemplates a series of factbound determinations, which a trial court is far better equipped than this court to make, we will not disturb the findings of the trial court as to subordinate facts unless the record reveals clear and manifest error.” (Internal quotation marks omitted.) State v. Randolph, 284 Conn. 328, 385, 933 A.2d 1158 (2007).

“Both this court and our Supreme Court have stated that a one-to-one confrontation between a [victim] and the suspect presented to him for identification is inherently and significantly suggestive because it conveys the message to the [victim] that the police believe the suspect is guilty.” (Internal quotation marks omitted.) State v. Thompson, 81 Conn. App. 264, 272, 839 A.2d 622, cert. denied, 268 Conn. 915, 847 A.2d 312 (2004). We have recognized, however, that “[w]hile a one-on-one confrontation between a victim of a crime and a person whom the police present as a suspect is presumptively suggestive, it does not automatically follow that such a show-up is impermissibly suggestive.” State v. Sims, supra, 12 Conn. App. 242. “[I]t has been held repeatedly . . . that one man confrontations do not per se constitute a denial of due process of law.” (Internal quotation marks omitted.) State v. Thompson, supra, 272. “Prompt on-the-scene confrontations tend under some circumstances to ensure accurate identifications and the benefit of promptness not only aids reliability but permits a quick release of an innocent party if there is no positive identification, allowing the police to resume the investigation with only a minimum of delay.” State v. Sims, supra, 42.

In the present case, the court, in denying the defendant’s motion to suppress, recognized that the particular one-on-one identification may have been unnecessarily suggestive but held that the identification was nonetheless admissible because it was reliable. We agree that the circumstances of this case did not necessitate a one-on-one identification procedure. The identification took place almost one month after the attempted robbeiy. In almost all of the cases in which this court has held that a one-on-one show-up was a permissible investigative technique, the show-up occurred very shortly after the crime was committed. See State v. Nogueira, 84 Conn. App. 819, 826, 856 A.2d 423 (2004) (thirty minutes), cert. denied, 273 Conn. 927, 873 A.2d 1000 (2005); State v. Sparks, 39 Conn. App. 502, 510, 664 A.2d 1185 (1995) (twenty minutes); State v. Barnes, 16 Conn. App. 333, 344, 547 A.2d 584 (1988) (twenty minutes); State v. Bell, 13 Conn. App. 420, 425, 537 A.2d 496 (1988) (less than two hours); State v. Sims, supra, 12 Conn. App. 242 (thirty-five minutes); State v. Tate, 9 Conn. App. 141, 143, 516 A.2d 1375 (1986) (less than one hour). In each of those cases, we reasoned that the one-on-one identification was not unnecessarily suggestive because a prompt on scene confrontation was more likely to be accurate.

We agree with the court that, under the totality of the circumstances, the victim’s identification of the defendant was sufficiently rehable to be admitted into evidence. “[Reliability is the linchpin in determining the admissibility of identification evidence . . . .” (Citation omitted; internal quotation marks omitted.) State v. Wright, 8 Conn. App. 399, 403, 513 A.2d 176 (1986). “The factors to be considered in determining the reliability of an [unnecessarily suggestive] identification include the opportunity of the [victim] to view the criminal at the time of the crime, the [victim’s] degree of attention, the accuracy of his prior description of the criminal, the level of certainty demonstrated at the confrontation, and the time lapse between the crime and the confrontation. Against these factors is to be weighed the corrupting effect of the suggestive identification itself. Manson v. Brathwaite, 432 U.S. 98, 114, 97 S. Ct. 2243, 53 L. Ed. 2d 140 (1977).” (Internal quotation marks omitted.) State v. Sims, supra, 12 Conn. App. 243.

“The reliability of the victim’s identification of the defendant as her assailant is disclosed by the circumstances .... We would also note that [whether] the victim had a good and sufficient opportunity to view her assailant at the time of the assault at close range and with adequate lighting . . . enhance [s] reliability. ... It has been stated that the victim of [a] crime is apt to be a more reliable source of identification than is a mere spéctator to the incident.” (Internal quotation marks omitted.) State v. Wright, supra, 8 Conn. App. 404.

In the present case, the victim, Wahareetou, had ample opportunity to view the defendant as he sat on his bicycle at the drive-through window. She was positioned face-to-face with him, her view was unobstructed, there was adequate lighting, and she was within very close range. See State v. Austin, 244 Conn. 226, 249, 710 A.2d 732 (1998) (one-on-one identification reliable where witness was in close range and had unobstructed view in well lit area); State v. Tate, supra, 9 Conn. App. 146 (same). Wahareetou specifically directed her attention to the defendant when he ordered his cup of coffee, and when he thrust his arm into the drive-through window and demanded the “drop money.” See State v. Collette, 199 Conn. 308, 312, 507 A.2d 99 (1986) (identification reliable where victim had unobstructed view, was ten to fifteen feet away and directed attention to defendants). Also, Wahareetou provided the police with a detailed description of the perpetrator that was consistent with the defendant’s appearance. See State v. Mills, 57 Conn. App. 356, 362, 748 A.2d 891 (2000) (identification reliable where witness accurately described defendant to police before identification took place).

Furthermore, when another individual was presented to Wahareetou for identification, she did not identify that person as having been involved in the attempted robbery. This indicates that she was an unlikely candidate for “subliminal seductions . . . .” (Internal quotation marks omitted.) State v. Collete, supra, 199 Conn. 312. It also “demonstrates the conduct of a [victim] exercising independence of judgment under stressful circumstances.” (Internal quotation marks omitted.) State v. Mills, supra, 57 Conn. App. 363. Additionally, at the moment of identification, Wahareetou did not hesitate to identify the defendant as the perpetrator and did so with no uncertainty. See State v. Austin, supra, 244 Conn. 249 (reliable identification where witness recognized defendant immediately and displayed no uncertainty).

Moreover, the fact that Wahareetou’s identification of the defendant came twenty-seven days after the commission of the crime does not render it unreliable. See State v. Howard, 221 Conn. 447, 452-56, 604 A.2d 1294 (1992) (identification occurring two and one-half months after commission of crime not unreliable); State v. Gettes, 42 Conn. App. 472, 478, 680 A.2d 996 (identification occurring fifteen days after commission of crimes not unreliable), cert. denied, 239 Conn. 921, 682 A.2d 1009 (1996). Twenty-seven days is not an inordinate amount of time, particularly in this case in which the victim had seen the defendant before and after the attempted robbery. Wahareetou never wavered from her initial statement to the police that the perpetrator was a regular customer and that she could identify him. Finally, there was no evidence that Wahareetou had any motivation or reason to identify the defendant falsely.

Therefore, regardless of whether Wahareetou was unsure as to how many times she had seen the defendant at the store, her identification was reliable. Because the identification was reliable, the court acted within its discretion in refusing to suppress the evidence relating to it. The defendant’s due process rights under the fourteenth amendment, therefore, have not been abridged.

II

The defendant’s second claim is that the court improperly found that he violated the condition of his probation that he not commit a crime. Specifically, the defendant asserts that the court did not have sufficient evidence to support its finding that he committed the crime of attempt to commit robbery in the second degree because the only evidence produced by the state was Wahareetou’s allegedly incorrect identification.

As a preliminary matter, we set forth the legal principles and the standard of review pertinent to our discussion. “[A] probation revocation hearing has two distinct components. . . . The trial court must first conduct an adversarial evidentiary hearing to determine whether the defendant has in fact violated a condition of probation. ... If the trial court determines that the evidence has established a violation of a condition of probation, then it proceeds to the second component of probation revocation, the determination of whether the defendant’s probationary status should be revoked.” (Internal quotation marks omitted.) State v. Fowler, 102 Conn. App. 154, 165, 926 A.2d 672, cert. denied, 284 Conn. 922, 933 A.2d 725 (2007). “Since there are two distinct components of the revocation hearing, our standard of review differs depending on which part of the hearing we are reviewing.” (Internal quotation marks omitted.) State v. Faraday, 268 Conn. 174, 185, 842 A.2d 567 (2004).

The defendant’s claim that the court improperly found that he violated his probation pertains to the first component of the revocation hearing. “In a probation revocation proceeding, the state bears the burden of proving by a fair preponderance of the evidence that the defendant violated the terms of his probation.” (Internal quotation marks omitted.) State v. Hooks, 80 Conn. App. 75, 79, 832 A.2d 690, cert. denied, 267 Conn. 908, 840 A.2d 1171 (2003). “As a reviewing court, we may reverse the trial court’s initial factual determination that a condition of probation has been violated only if we determine that such a finding was clearly erroneous. . . . A finding of fact is clearly erroneous when there is no evidence to support it ... or when although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed. ... In making this determination, every reasonable presumption must be given in favor of the trial court’s ruling . . . .” (Internal quotation marks omitted.) State v. Durant, 94 Conn. App. 219, 224, 892 A.2d 302 (2006), aff'd, 281 Conn. 548, 916 A.2d 2 (2007).

At the end of the adjudicative phase of the violation of probation hearing, the court set forth its findings, in relevant part, as follows: “[The] issue here is [whether Wahareetou] is mistaken. On September 6, [2006] she said she was 100 percent sure. In court she was asked, and she identified [the defendant]. I understand there were inconsistencies as to how many times the individual came to the store between August 10 and September 6, [2006], but she was sure it was him. The state has met its burden of proof by a fair preponderance of evidence.”

We have reviewed Wahareetou’s testimony in its entirety, and it amply supports the court’s factual findings. The defendant does not claim that those findings, if reasonable, were insufficient to support the finding that he violated his probation. Instead, he vigorously challenges Wahareetou’s credibility, just as he did to the trial court. It is not the function of this court, however, to reevaluate the cold record of Wahareetou’s testimony to determine whether it was plausible that she was mistaken. See State v. Blake, 108 Conn. App. 336, 343, 947 A.2d 998, aff'd, 289 Conn. 586, 958 A.2d 1236 (2008). “As the sole finder of fact in the probation revocation proceeding . . . the court was entitled to arrive at its own conclusion regarding the [witness’] credibility and what weight to afford [her] testimony.” State v. Gauthier, 73 Conn. App. 781, 787, 809 A.2d 1132 (2002), cert. denied, 262 Conn. 937, 815 A.2d 137 (2003). The weight to be given to the credibility of a witness is within the sole province of the trier of fact and will not be reviewed on appeal. Sanders v. Dias, 108 Conn. App. 283, 294, 947 A.2d 1026 (2008). Consequently, we cannot say that the court’s decision was clearly erroneous.

We conclude, therefore, that the court had before it sufficient evidence to support its finding, by a fair preponderance of the evidence, that the defendant committed the crime of attempt to commit robbery in the second degree. Accordingly, the court properly found that the defendant had violated his probation.

Ill

The defendant’s third and final claim is that the court improperly exercised its discretion by revoking his original sentence and committing him to the custody of the commissioner of correction for a period of twenty months. Specifically, he argues that the evidence produced did not support the court’s finding that the rehabilitative purpose of probation could not be fulfilled.

We have explained that “[a] revocation of probation hearing has two distinct components and two purposes. A factual determination by a trial court as to whether a probationer has violated a condition of probation must first be made. ... If a violation [of probation] is found, a court must next determine whether probation should be revoked because the beneficial aspects of probation are no longer being served. ... On the basis of its consideration of the whole record, the trial court may continue or revoke the sentence of probation . . . [and] . . . require the defendant to serve the sentence imposed or impose any lesser sentence. ... In making this second determination, the trial court is vested with broad discretion.” (Citation omitted; internal quotation marks omitted.) State v. Durant, supra, 94 Conn. App. 227-28.

Therefore, we must now determine whether the court abused its discretion in revoking the defendant’s original sentence. “In determining whether there has been an abuse of discretion, every reasonable presumption should be given in favor of the correctness of the court’s ruling. . . . Reversal is required only where an abuse of discretion is manifest or where injustice appears to have been done. ... A defendant who seeks to reverse the exercise of judicial discretion assumes a heavy burden.” (Citation omitted; internal quotation marks omitted.) State v. Fagan, 280 Conn. 69, 104, 905 A.2d 1101 (2006), cert. denied, 549 U.S. 1269, 127 S. Ct. 1491, 167 L. Ed. 2d 236 (2007).

“Our determination of whether the trial court abused its discretion in revoking the defendant’s probation is guided by the following principles. We previously have recognized that [t]o a greater or lesser degree, it is always true of probationers . . . that they do not enjoy the absolute liberty to which every citizen is entitled, but only . . . conditional liberty properly dependent on observance of special [probation] restrictions. . . . These restrictions are meant to assure that the probation serves as a period of genuine rehabilitation and that the community is not harmed by the probationer’s being at large. . . .

“A revocation proceeding is held to determine whether the goals of rehabilitation thought to be served by probation have faltered, requiring an end to the conditional freedom obtained by a defendant at a sentencing that allowed him or her to serve less than a full sentence. . . . [T]he ultimate question [in the probation process is] whether the probationer is still a good risk .... This determination involves the consideration of the goals of probation, including whether the probationer’s behavior is inimical to his own rehabilitation, as well as to the safety of the public.” (Internal quotation marks omitted.) Id., 105.

At the dispositional phase of the defendant’s revocation of probation proceeding, the court listened to the arguments of counsel and testimony from the defendant’s mother, father, coworker, former supervisor, fiancee and the defendant himself. Those witnesses essentially testified that the defendant was a good and reliable person, and they pleaded for leniency on the ground that he had a newborn son, a job, a place in the community and had not been arrested since September 6, 2006. At the conclusion of the hearing, the court stated: “The issue before me now is this one: is ... a rehabilitative purpose of probation still in your future? Your criminal behavior or activity is not that serious or lengthy, but it has escalated. You start with a possession of marijuana in 2000, and you go to narcotics, an actual sale scenario, but it was a possession of narcotics conviction in 2005. Escalates to a violent crime of robbery in 2006. So, based upon that, irrespective of what your family said today—because you probably are a good son, you probably are a good husband. But you do bad things now and then. This robbery was a bad thing. I make a finding today that [the] rehabilitative . . . purpose of probation would not be further served with you.”

Our review of the record reveals that the court did not abuse its discretion in revoking the defendant’s probation. Specifically, we conclude that the court properly considered whether the beneficial aspects of probation were being served. The court had before it the favorable testimony from the defendant’s family and friends, but it also had the defendant’s criminal history. A conviction of possession of marijuana in 2000, a conviction of possession of narcotics in 2005, and an arrest for attempt to commit robbery in the second degree in 2006 supports the court’s finding that the defendant’s criminal activity was only becoming more serious as time passed. It was reasonable for the court to conclude that the defendant was no longer a “good risk” because his criminal behavior was escalating despite the fact that he was on probation. See State v. Russell, 58 Conn. App. 275, 281, 752 A.2d 59 (2000) (in determining whether defendant’s probation should be revoked, court properly considered defendant’s criminal history and determined he was no longer fit for probation). The court was entrusted with the decision as to whether the defendant was meeting the goals of his probation, and we must afford every reasonable presumption in favor of the correctness of that decision.

The judgment is affirmed.

In this opinion the other judges concurred.

       General Statutes § 53a-32 (a) provides in relevant part: “At any time during the period of probation . . . the court or any judge thereof may issue a warrant for the arrest of a defendant for violation of any of the conditions of probation . . . .”

       As further explained in part II, “[a] revocation of probation proceeding has two distinct components, an adjudicative phase and a dispositional phase.” State v. Barile, 267 Conn. 576, 578 n.3, 839 A.2d 1281 (2004).

       The fourteenth amendment to the United States constitution provides in relevant part: “No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty or property, without due process of law. . . .”

       We acknowledge that the state, aside from arguing that the identification was reasonably necessary and reliable, also argues that the court correctly denied the motion to suppress because the exclusionary rule does not apply to revocation proceedings. In State v. Daniels, 248 Conn. 64, 80 n.16, 726 A.2d 520 (1999), overruled in part on other grounds by State v. Singleton, 274 Conn. 426, 438, 876 A.2d 1 (2005), the issue of whether identification evidence could be suppressed under the exclusionary rule at a revocation of probation proceeding, in which the exclusionary rule typically does not apply, was raised tangentially. Our Supreme Court stated: “[W]e assume, without deciding, that a claim of unduly suggestive identification under the due process clause applies to a revocation of probation proceeding.” Id.
      We have been unable to find any other cases that discuss this issue. The cases cited by the state in its brief relate to the applicability of the exclusionary rule to warrantless searches and seizures in revocation of probation proceedings. We need not, however, decide the issue in the present case, as it did not serve as a basis for the court’s denial of the motion to suppress. The court heard the motion and decided it on its merits. Had the state wanted to raise this issue, it should have brought it to the court’s attention before the motion was heard, considered and decided.

       Wahareetou had testified the previous day.

       The defendant argues that the fact that he continued to patronize the store after the attempted robbery speaks more to innocence than guilt. The state counters that because the defendant had previously attempted to rob the store during the night shift, he would not have expected Wahareetou’s presence during the day shift, which is why he felt comfortable patronizing the store within the day shift hours. These arguments, however, are unrelated to whether the one-on-one identification of the defendant should have been suppressed as a violation of his due process rights.

       We note that although Wahareetou’s testimony was slightly unclear, she ultimately clarified that she had seen the defendant seven to eight times before and two times after the incident.