author: WEST, J.

text:
    RICHARD LANGSTON v. COMMISSIONER OF CORRECTION
    (AC 26517)
    Gruendel, Lavine and West, Js.
    Argued February 22
    officially released October 9, 2007

      James A. Killen, senior assistant state’s attorney, with whom, on the brief, were Michael Dearington,
      state’s attorney, and Vicki Melchiorre, senior assistant state’s attorney, for the appellant (respondent).

      Temmy Ann Pieszak, chief of habeas corpus services, for the appellee (petitioner).
   Opinion

WEST, J.

The respondent, the commissioner of correction, appeals from the judgment of the habeas court granting the second amended petition for a writ of habeas corpus filed by the petitioner, Richard Langston. On appeal, the respondent claims that the habeas court improperly concluded that the petitioner was denied the effective assistance of trial counsel because his privately retained counsel (1) failed to object to certain testimony and (2) conceded during final argument that the petitioner had committed one of the crimes with which he was charged. We agree and therefore reverse the judgment of the habeas court.

The following procedural history is relevant to the respondent’s appeal. The petitioner was arrested on March 25, 1998, in connection with an armed robbery and shooting that occurred on March 4, 1998, during a drug transaction in a parking lot on Garden Street in Hartford. The petitioner was charged with assault in the first degree in violation of General Statutes § 53a-59 (a) (5), commission of a class A, B or C felony with a firearm in violation of General Statutes § 53-202k, criminal possession of a firearm in violation of General Statutes § 53a-217 and robbery in the first degree in violation of General Statutes § 53a-134 (a) (2). The jury found the petitioner not guilty of assault in the first degree, but guilty of the other charges. The petitioner’s conviction was upheld summarily on direct appeal. See State v. Langston, 67 Conn. App. 903, 786 A.2d 547 (2001), cert. denied, 259 Conn. 916, 792 A.2d 852 (2002).

The petitioner filed a petition for a writ of habeas corpus in April, 2002, in which he alleged that he was denied the effective assistance of counsel on numerous grounds. Only two of those claims are relevant to this appeal. The court granted his second amended petition for a writ of habeas corpus in part, concluding that defense counsel had rendered ineffective assistance, pursuant to Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984), by (1) failing to object to the prosecutor’s questioning an investigating police officer about a handgun silencer made from a potato (potato silencer) that was found at the time of the petitioner’s arrest and (2) conceding during final argument, without the petitioner’s prior knowledge or permission, that the petitioner had participated in the robbery. The respondent filed this appeal following the court’s granting the petition for certification to appeal. Additional facts will be addressed as necessary.

“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, but our review of whether the facts as found by the habeas court constituted a violation of the petitioner’s constitutional right to effective assistance of counsel is plenary. . . .

“In Strickland v. Washington, [supra, 466 U.S. 687], the United States Supreme Court established that for a petitioner to prevail on a claim of ineffective assistance of counsel, he must show that counsel’s assistance was so defective as to require reversal of [the] conviction. . . . That requires the petitioner to show (1) that counsel’s performance was deficient and (2) that the deficient performance prejudiced the defense. . . . Unless a [petitioner] makes both showings, it cannot be said that the conviction . . . resulted from a breakdown in the adversary process that renders the result unreliable. . . .

“It is well established that we need not determine the deficiency of counsel’s performance if consideration of the prejudice prong will be dispositive of the ineffectiveness claim. ... To prevail on the prejudice prong, the petitioner must demonstrate that counsel’s errors were so serious as to deprive the [petitioner] of a fair trial, a trial whose result is reliable. ... It is not enough for the [petitioner] to show that the errors had some conceivable effect on the outcome of the proceedings. . . . Rather, [t]he [petitioner] must show that there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.” (Citations omitted; internal quotation marks omitted.) Floyd v. Commissioner of Correction, 99 Conn. App. 526, 530-31, 914 A.2d 1049, cert. denied, 282 Conn. 905, 920 A.2d 308 (2007).

“The first component, generally referred to as the performance prong, requires that the petitioner show that counsel’s representation fell below an objective standard of reasonableness. ... In Strickland, the United States Supreme Court held that [j Judicial scrutiny of counsel’s performance must be highly deferential. It is all too tempting for a [petitioner] to second-guess counsel’s assistance after conviction or adverse sentence, and it is all too easy for a court, examining counsel’s defense after it had proved unsuccessful, to conclude that a particular act or omission of counsel was unreasonable. ... A fair assessment of attorney performance requires that every effort be made to eliminate the distorting effects of hindsight, to reconstruct the circumstances of counsel’s challenged conduct, and to evaluate the conduct from counsel’s perspective at the time. Because of the difficulties inherent in making the evaluation, a court must indulge a strong presumption that counsel’s conduct falls within the wide range of reasonable professional assistance; that is, the [petitioner] must overcome the presumption that, under the circumstances, the challenged action might be considered sound trial strategy. . . . [C]ounsel is strongly presumed to have rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment. . . .

“The second part of the Strickland analysis requires more than a showing that the errors made by counsel may have had some effect on the outcome of the proceeding. . . . Rather, [the petitioner] must show that there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different. . . . When a [petitioner] challenges a conviction, the question is whether there is a reasonable probability that, absent the errors, the factfinder would have had a reasonable doubt respecting guilt.” (Citations omitted; internal quotation marks omitted.) Crocker v. Commissioner of Correction, 101 Conn. App. 133, 136-37, 921 A.2d 128, cert. denied, 283 Conn. 905, 927 A.2d 916 (2007).

I

The respondent first claims that the court improperly determined that defense counsel rendered ineffective assistance by failing to object to testimony concerning the potato silencer. We agree.

At the petitioner’s criminal trial, the prosecutor called Juan Roman, a detective with the Hartford police department, to testify about the petitioner’s arrest. According to Roman, the petitioner was arrested at his residence in East Hartford. The petitioner and his female companion, who shared the residence, both gave the officers permission to search the apartment. One of the officers found a round object bound with black electrical tape. The round object was determined to be a potato. A police sergeant who accompanied Roman asked the petitioner what the object was. The petitioner responded that it was a silencer for a handgun and that he had seen something like it on television. In his amended petition for a writ of habeas corpus, the petitioner alleged that defense counsel’s representation was ineffective because he failed to object to or move to strike Roman’s testimony about the potato silencer because the testimony was “irrelevant and remote

The habeas court concluded that defense counsel’s performance was deficient in failing to file a motion in limine regarding evidence of the potato silencer or to object to evidence about it at trial. The court found that there was overwhelming evidence against the petitioner, but concluded that the evidence of the potato silencer was not harmless and likely affected the result of trial. In reaching its conclusion, the court relied heavily on State v. Acklin, 171 Conn. 105, 368 A.2d 212 (1987). “Evidence as to articles found in the possession of an accused person subsequent to the time of the commission of a crime for which he is being tried is admissible only if it tends to establish a fact in issue or to corroborate other direct evidence in the case; otherwise the law does not sanction the admission of evidence that the defendant possessed even instruments or articles adapted to the commission of other crimes.” (Internal quotation marks omitted.) Id., 114. In sum, the court reasoned that because there was no evidence that the potato silencer was used on the night in question, evidence about it was irrelevant and therefore inadmissible. The court did not, however, explain how the result of the trial likely would have been different if the evidence concerning the potato silencer had not been admitted.

As previously stated, the events that gave rise to the charges against the petitioner stemmed from a drug transaction. The state produced evidence at trial that the victim and a friend approached the petitioner and his accomplice to purchase drugs. The state also produced evidence that the petitioner had a handgun in the waistband of his trousers at the time he demanded money from the victim. Although the victim was shot in the knee, no one saw the petitioner shoot the victim. The weapon with which the victim was injured was not recovered. The petitioner was tried under an information charging him with assault in the first degree in violation of § 53a-59 (a) (5), commission of a class A, B or C felony with a firearm in violation of § 53-202k, criminal possession of a firearm in violation of § 53a-217 and robbery in the first degree in violation of § 53a-134 (a) (2). Section 53a-59 (a) (5) contains the element of “a firearm.” Sections 53-202k, a sentence enhancement statute, and 53a-217 contain the element of “possession” of a firearm. Section 53a-134 (a) (2) contains the element of “armed with a deadly weapon.”

On appeal, the respondent argues that evidence of the potato silencer had a tendency to establish that the petitioner had access to a handgun and knew how to use it. That evidence, therefore, was relevant to the crimes with which the petitioner was charged. We agree with the respondent.

“ ‘Relevant evidence’ means evidence having any tendency to make the existence of any fact that is material to the determination of the proceeding more probable or less probable than it would be without the evidence.” Conn. Code Evid. § 4-1. Evidence is material when it is offered to prove a fact directly in issue or a fact probative of a matter in issue. See C. Tait, Connecticut Evidence (3d Ed. 2001) § 4.1.3. Testimony concerning the potato silencer was relevant because it had a tendency to prove that the petitioner possessed a handgun.

“A party is entitled to offer any relevant evidence to aid the trier of fact in its determination, as long as the evidence is not unfairly prejudicial. . . . [E]vidence need not exclude all other possibilities [to be relevant]; it is sufficient if it tends to support the conclusion [for which it is offered], even to a slight degree. . . . [T]he fact that evidence is susceptible of different explanations or would support various inferences does not affect its admissibility, although it obviously bears upon its weight. So long as the evidence may reasonably be construed in such a manner that it would be relevant, it is admissible. . . .

“However, relevant evidence may be excluded if the court determines that its probative value is outweighed by the danger of unfair prejudice .... Of course, [a] 11 adverse evidence is damaging to one’s case, but it is inadmissible only if it creates undue prejudice so that it threatens an injustice were it to be admitted. . . . The test for determining whether evidence is unduly prejudicial is not whether it is damaging to the [party against whom it is offered] but whether it will improperly arouse the emotions of the jury.” (Internal quotation marks omitted.) State v. Warren, 100 Conn. App. 407, 418-19, 919 A.2d 465 (2007). Unlike the strands of rope and face masks that actually were placed into evidence for the jury to see in Acklin, the evidence concerning the potato silencer was testimonial. Furthermore, that testimony was unlikely to stir the passions of the jury. Compare State v. Paulino, 223 Conn. 461, 477, 613 A.2d 720 (1992) (defendant wearing paper bag over head at pretrial more prejudicial than probative of identity).

On the basis of our plenary review of the record, we conclude that the testimony concerning the potato wrapped in tape that the petitioner told police was a silencer for a handgun was relevant to his possession of a weapon, which was an element of at least two of the crimes with which he was charged. If the petitioner had a silencer for a handgun, it was circumstantial evidence that he possessed a handgun. Had defense counsel filed a motion in limine to exclude the evidence or objected to it at trial, it is highly likely that the trial court would have denied the motion or overruled the objection. “[T]he failure to pursue unmeritorious claims cannot be considered conduct falling below the level of reasonably competent representation. ” Sekou v. Warden, 216 Conn. 678, 690, 583 A.2d 1277 (1990). The petitioner, therefore, failed to meet the first Strickland prong that defense counsel’s performance with respect to the potato silencer fell below an objective standard of reasonableness. For these reasons, we conclude that the habeas court improperly granted the petition for a writ of habeas corpus regarding defense counsel’s failure to object to evidence of the potato silencer.

II

The respondent’s second claim is that the court improperly found a portion of defense counsel’s final argument to be a concession that the petitioner committed robbery. We agree.

The specific language used by defense counsel that the court found fell below the objective standard of reasonableness was, “I’ll concede for a moment a robbery did occur.” “[W]e must review the comments complained of in the context of the entire trial.” State v. Robinson, 227 Conn. 711, 746, 631 A.2d 288 (1993). “We review the argument that the [petitioner] claims is improper in the context in which it was used.” State v. Cromety, 102 Conn. App. 425, 438, 925 A.2d 1133 (2007); see also State v. Warholic, 278 Conn. 354, 364 nn.4-5, 897 A.2d 569 (2006).

On the basis of our review of the final argument of defense counsel, we discern that the theory of defense was to cast doubt on the credibility of the victim and his friend who identified the petitioner as the perpetrator of the crimes. The habeas court summarized the argument of defense counsel. First, defense counsel stated that “[i]t all comes down to two people,” the victim and his friend, both of whom are convicted felons and users of crack cocaine. Counsel then stated that the victim and his Mend testified that they had a clear view of the petitioner and his accomplice, but also argued that the lighting was not good, it was dark, which “limits people’s ability to see what is in front of them and to recognize people.” Defense counsel noted an inconsistency in the identification of the shooter. At trial, the victim’s friend testified that he saw the petitioner shoot the victim, but in his statement to the police, he stated that he only heard the gunshot. Defense counsel conceded on the basis of the medical evidence that the victim had been shot, but then argued: “Remember, there were two people here that were involved in this, not just [the petitioner], but his unnamed partner, who might have been his partner in a drug deal or who might have taken the gun and decided, I’m going to start shooting.”

Our review of defense counsel’s closing argument also discloses that counsel noted that the victim and his friend had gone to several places on the night in question in search of drugs. Counsel then focused on the credibility of the victim and his friend. “The question is, where was [the victim shot] and who shot him? Now, you are going to have to find credible the testimony of these two people.” Defense counsel also emphasized to the jury that the police never found the gun used to shoot the victim and questioned the relevance of the potato silencer. In response to the prosecutor’s argument regarding consciousness of guilt, defense counsel argued that the petitioner sought to avoid the police due to involvement with drugs and past crimes, not because of involvement in the shooting of the victim.

Defense counsel argued: “It comes down to [the victim and his friend], and again, I want to remind you that it has not been proven by testimony that the area was bathed in light that night because the investigator didn’t say that it was because he didn’t know. He went there later, over a year later.

“Two, [the victim and his friend] are convicted felons. They have the same kind of lifestyle that . . . you probably suspect [the petitioner] of having. And again, as I’ve said before, we have some evidence. It is all the same group of people, and that is the lifestyle, the lifestyle of buying drugs, of using drugs, not just a little pot on the weekends, but smoking crack cocaine, a dangerous, addictive drug which causes behavior to change.

“Understand, it is dark. They don’t know, they are not sure what they saw. [The victim’s friend] said two different things at two different times. He didn’t know for sure. He said he did. The photo array, ladies and gentlemen, the photo array, [the friend] had indicated to the police earlier that he thought he knew [the petitioner] from the street, called him by a street name.

“So, when he sees the photo array, he’s going to be looking for the guy he knows. So, I don’t think that photo array is that significant in terms of somebody who has already seen [the petitioner] and maybe he saw [the petitioner] from another time on the street. He said, I recognized him. I don’t know who he is. I’ve seen him around before. I’ve had dealings with him, whatever that means, prior to the night of March 4,1998.

“So, again, the photo array may not be the evidence you are looking for. Again, it all seems to come down to the same two people, [the victim and his friend]. . . . [I]f you believe what they said, that it was at that point that they got shot, maybe not the fact that maybe they went to another place to look for drugs and were shot, that is possible; or that [the petitioner] is not the one who discharged the weapon because there is a lot of doubt as to really who discharged the weapon, and it is possible.

“And if you think, well, that doesn’t make sense— [the petitioner], you heard that [he] held a gun on these people and got a hundred dollars in cash. All right, there is nothing logical about this, ladies and gentlemen. To the logical mind, it just doesn’t make any sense anyway. To do something like that, to get money and to shoot somebody in the legs when they’re retreating after they have given up the money. That sounds a little strange.

“So, applying logical principles, I think [it] is going to fall by the wayside here. And part of the illogic that you may find to be reasonable is that the other individual grabbed the gun and might have started shooting. He was certainly—if you are going to assume, and I’ll concede for the moment that a robbery did occur, then let’s also make the reasonable assumption that there was another individual there because everybody testified that there was a second person there.

“So, don’t think there is any doubt, and maybe the second person was the shooter. Who knows? There is no logic here. There is no logic in somebody robbing somebody and shooting them in the legs, which is why I’m also suggesting that maybe [the victim] was hopping around from place to place looking to buy more crack cocaine to stay high. So, he goes to Garden Street. They don’t have any drugs. He goes somewhere else, then he gets robbed or then maybe there is a disagreement because after all, these are drug users, drug dealers, it was 1:30 at night, it is not a great part of the world. I mean, we just don’t know.” (Emphasis added.)

The habeas court also summarized, in part, the prosecutor’s rebuttal argument, stating that the prosecutor argued that defense counsel conceded that the petitioner had a gun, but at some point the accomplice grabbed it and shot the victim. The prosecutor further argued that there was no evidence to support defense counsel’s argument and that it was sheer speculation. The habeas court noted that defense counsel raised no objection to the prosecutor’s argument by way of seeking to clarify that he did not concede that the petitioner was involved in the incident in any way.

The court also cited, in part, defense counsel’s testimony at the habeas trial. When asked whether it was his intention to suggest that the petitioner had committed the robbery, defense counsel responded: “It was not my intention. My intention was simply to create reasonable doubt by either (a) suggesting that there was never a robbery or (b), if there was a robbery, it might have occurred somewhere else and (c), even if there was a robbery at the physical location that it was described, [the petitioner] had nothing to do with it.” Counsel also testified that he did not object to the prosecutor’s rebuttal argument because he knew that the jury understood the context of his argument. Despite finding that defense counsel at some point in his argument denied that the petitioner was involved with either the robbery or shooting, the court concluded that that denial did not deflect the impact of the concession because there had not been an extensive attack on the reliability of the identification.

On the basis of our review of defense counsel’s closing argument, the context of the trial and the theory of defense, we conclude that the court’s finding that defense counsel conceded that the petitioner robbed the victim was clearly erroneous. The theoiy of defense was that the petitioner had been identified wrongly as the perpetrator of the crimes. What the court characterized as a concession, in fact, was a rhetorical device intended to highlight for the jury the lack of logic with respect to the robbery and the shooting, i.e., if the victim had given his money to the petitioner and was retreating, why would the petitioner then shoot the victim.

“Closing arguments of counsel . . . are seldom carefully constructed in loto before the event; improvisation frequently results in syntax left imperfect and meaning less than crystal clear. . . . Therefore, because closing arguments often have a rough and tumble quality about them, some leeway must be afforded to the advocates in offering arguments to the jury in final argument. . . . [W]e must review the comments complained of in the context of the entire trial.” (Citation omitted; emphasis in original; internal quotation marks omitted.) State v. Chasse, 51 Conn. App. 345, 358, 721 A.2d 1212 (1998), cert. denied, 247 Conn. 960, 723 A.2d 816 (1999). We need not determine in hindsight whether defense counsel could have made his rhetorical argument clearer, as our review of the challenged portion of the argument within the context of the whole argument and the trial itself demonstrates, defense counsel did not concede that the petitioner committed the robbery at issue.

The judgment is reversed and the case is remanded with direction to render judgment denying the petition for a writ of habeas corpus.

In this opinion the other judges concurred.

       The evidence at issue in Acklin is factually dissimilar. The Acklin defendants robbed a grocery store and were seen leaving in an identifiable motor vehicle. State v. Acklin, supra, 171 Conn. 107. Those defendants were apprehended with their vehicle about thirty minutes after the robbery; one of them was carrying a firearm. Id., 108. When the police searched the motor vehicle, they found strands of rope and two ski masks in the trunk along with items taken from the grocery store. Id. Although the masks and strands of rope had not been used during the robbery, the state entered them into evidence as proof of a conspiracy. Id., 114. Our Supreme Court reversed the convictions of the Acklin defendants, concluding that the trial court had abused its discretion by admitting the strands of rope and masks because they were more prejudicial than probative. Id., 115-16.

       General Statutes § 53a-59 (a) provides in relevant part: “A person is guilty of assault in the first degree when ... (5) with intent to cause physical injury to another person, he causes such injury to such person ... by means of the discharge of a firearm.”
      The jury found the petitioner not guilty of assault in the first degree. Evidence pertaining to the potato silencer, although relevant, was not prejudicial to the petitioner as to that charge.

       General Statutes § 53-202k provides in relevant part: “Any person who commits a class A, B or C felony and in the commission of such felony uses, or is armed with and threatens the use of, or displays, or represents by his words or conduct that he possesses any firearm . . . shall be imprisoned for a term of five years . . . .” (Emphasis added.)

       General Statutes § 53a-217 (a) provides in relevant part: “A person is guilty of criminal possession of a firearm . . . when such person possesses a firearm . . . and (1) has been convicted of a felony . . . .” (Emphasis added.)

       General Statutes § 53a-134 (a) provides in relevant part: “A person is guilty of robbery in the first degree when, in the course of the commission of the crime of robbery ... he ... (2) is armed with a deadly weapon

       Our review of the transcript of the petitioner’s trial demonstrates that defense counsel did not ignore the evidence concerning the potato silencer. On cross-examination, defense counsel asked Roman whether he had ever seen a potato used as a silencer during his training and experience as a police officer. Roman admitted that he had not, but that he had heard of a potato silencer. Defense counsel asked Roman, on the basis of his knowledge of firearms, how effective a potato would be as a silencer. Roman did not know and speculated that a potato might blow apart given the type of round in the handgun, but that a potato wrapped in tape may hold together a little tighter. We assume, without deciding, that counsel’s strategy was to debunk the effectiveness of a potato silencer and, thus, the petitioner’s familiarity with handguns.


source: Caselaw Access Project

author: DUPONT, J.

license: Public Domain

text:
    ALVIN WILSON v. COMMISSIONER OF CORRECTION
    (AC 27147)
    Schaller, Lavine and Dupont, Js.

      Argued May 24
    officially released October 16, 2007

      Deborah G. Stevenson, special public defender, for the appellant (petitioner).

      Yamini Menon, deputy assistant state’s attorney, with whom were Michael E. O’Hare, supervisory assistant state’s attorney, and, on the brief, James E. Thomas, state’s attorney, and Anne F. Mahoney and Angela R. Macchiarulo, senior assistant state’s attorneys, for the appellee (respondent).
   Opinion

DUPONT, J.

The petitioner, Alvin Wilson, appeals following the habeas court’s denial of his petition, filed pursuant to General Statutes § 52-470 (b), for certification to appeal from the judgment denying his petition for a writ of habeas corpus. The petitioner argues that his counsel rendered ineffective assistance at his trial for violation of a condition of probation that he submit to electronic monitoring and that the habeas court acted improperly in certain of its rulings. We dismiss the petitioner’s appeal.

Following a guilty plea to charges of sexual assault and risk of injury to a child, the petitioner was originally sentenced to a term of twelve years imprisonment, suspended after one year, with ten years probation, by the court, Espinosa, J., on May 15, 1997. On January 13, 1998, the petitioner was charged with a violation of a condition of probation, and on May 15, 1998, was sentenced by the court, Fasano, J., to a term of eight years imprisonment, suspended after two years, with three years probation entailing special conditions. On February 25, 2000, the office of adult probation, which was responsible for monitoring the petitioner during his probationary period, made a referral to Electronic Monitoring Systems, Inc. (EMS), to install an electronic monitoring device on the petitioner, pursuant to a condition of his probation. Subsequently, on March 20, 2000, the office of adult probation successfully applied for a warrant to arrest the petitioner on the basis of the petitioner’s failure to comply with that condition of probation. The circumstances regarding this subsequent violation of probation are at issue here. The petitioner, represented by attorney Michael Isko, appeared before the court, Miaño, J., to answer to the violation of probation charge. After a hearing, the court found that the petitioner had violated a condition of his probation and rendered judgment imposing the remaining unexecuted portion of the petitioner’s original sentence. The petitioner filed a direct appeal from that judgment, which was affirmed by this court in a memorandum decision. State v. Wilson, 74 Conn. App. 912, 815 A.2d 301, cert. denied, 263 Conn. 904, 819 A.2d 838 (2003).

The petitioner filed a petition for a writ of habeas corpus on June 30, 2003, primarily alleging ineffective assistance of trial counsel. On July 2,2003, the petitioner waived his right to habeas counsel, and the court, White, J., accepted the waiver after canvassing the petitioner. The habeas court, Elgo, J., denied the petition for a writ of habeas corpus and issued a written memorandum of decision on August 23, 2005. The court then denied the petition for certification to appeal. The petitioner now appeals, following the denial of certification, from the judgment denying his petition for a writ of habeas corpus, pursuant to Simms v. Warden, 229 Conn. 178, 186-89, 640 A.2d 601 (1994). In addition, the petitioner challenges various procedures employed by the court in reaching its determination.

When a habeas court denies a petition for certification to review its determination, a petitioner seeking review must first demonstrate that the court abused its discretion in denying the petition. Fernandez v. Commissioner of Correction, 96 Conn. App. 251, 261, 900 A.2d 54, cert. denied, 280 Conn. 908, 907 A.2d 89 (2006). To prove an abuse of discretion, the petitioner must demonstrate that the resolution of the underlying claim involves issues that are debatable among jurists of reason, that a court could resolve the issues in a different manner or that the questions are adequate to deserve encouragement to proceed farther. Id., 261-62.

I

We first address the petitioner’s claims that his trial counsel was ineffective at the violation of probation hearing. The petitioner argues that his defense counsel failed (1) to investigate the petitioner’s claim of actual innocence adequately, (2) to object to the admission of various pieces of evidence and (3) to object to the state’s alleged withholding of exculpatory information.

The following facts found by the court and evidence presented to the court by the parties are relevant to the petitioner’s claim. On February 25, 2000, the office of adult probation requested EMS to install an electronic monitoring device on the petitioner on February 28, 2000. The court found that employees of EMS made several unsuccessful attempts between February 28 and March 7, 2000, to install the electronic monitoring device. The court had before it, among other things, three notices that were purportedly sent from EMS to the office of adult probation, stating that EMS employees had been unsuccessful in their attempts to install the electronic monitoring device on March 2, 3, and 7, 2000. At the trial on the charge of violation of probation, the state called two witnesses, the petitioner’s probation officer and an employee of EMS who had formerly been a monitoring installer, but who was then the accounts manager. The petitioner did not call any witnesses or testily at that trial. The petitioner did testify at the habeas trial and stated, among other things, that no one had attempted to install the monitoring device on him within the relevant periods. He also asserted that the notices purportedly sent from EMS to his probation officer were fabricated. He did not, however, call any other witnesses or produce any other evidence supporting his testimony that he was actually innocent of the probation violation.

To prove a claim of ineffective assistance of counsel, a petitioner must show that counsel’s performance was deficient and that this deficiency caused prejudice. See Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984). “[0]ur review of whether the facts as found by the habeas court constituted a violation of the petitioner’s constitutional right to effective assistance of counsel is plenary.” (Internal quotation marks omitted.) Fernandez v. Commissioner of Correction, supra, 96 Conn. App. 262. Our standard to review the court’s findings of underlying facts, however, is the familiar clearly erroneous standard. See Festo v. Luckart, 191 Conn. 622, 635-36, 469 A.2d 1181 (1983). Generally, this court “does not retry the case or evaluate the credibility of the witnesses.” (Internal quotation marks omitted.) Payne v. Commissioner of Correction, 62 Conn. App. 583, 586, 772 A.2d 630 (2001).

A

The petitioner argues first that his trial counsel was ineffective because counsel did not adequately investigate his allegation of actual innocence of the probation violation. Specifically, the petitioner claims that his trial counsel should have conducted a preliminary background check of the probation officer who reported that the petitioner had refused to allow EMS to install the monitoring device, subpoenaed the probation officer’s records regarding the installation attempts and contacted EMS to interview those employees who had personal information about the installation attempts.

We need not determine, in this case, the extent of the duty of defense counsel to investigate a claim of actual innocence. For the petitioner to prevail on his argument that defense counsel conducted an inadequate investigation, the petitioner must establish both that counsel’s performance fell below the constitutional minimum and that this deficiency prejudiced the case. The only evidence that the petitioner produced before the court of his actual innocence was his testimony, which the court did not credit. Having failed to present any credible evidence to the court that he was actually innocent, the petitioner is unable to show that his case was prejudiced by defense counsel’s alleged failure at the violation of probation trial to conduct a more rigorous investigation into whether EMS employees actually tried to install the monitoring device.

We conclude that the petitioner has failed to show that the court abused its discretion in denying the petition for certification to appeal on this issue.

B

The petitioner next argues that his counsel’s representation was ineffective because counsel failed to object to the admission of three EMS notices regarding its employees’ failed attempts to install a monitoring device. The petitioner asserts that because the state did not produce the drafters of the documents, defense counsel had an obligation to object.

The court, reviewing the petitioner’s claim, rejected it on the ground that the petitioner failed to produce any evidence demonstrating that the documents were not authentic and, thus, failed to produce evidence that his case was prejudiced by counsel’s failure to object to their admission. We agree with the court that the petitioner failed to provide the court with sufficient evidence to find prejudice. Furthermore, there is no credible evidence in the record that indicates that the notices were not business records, kept in the ordinary course of business. See Conn. Code Evid. § 8-4. The habeas court did not abuse its discretion in denying the petition for certification to appeal on this issue.

C

The petitioner’s final argument regarding the performance of his trial counsel is that counsel was ineffective because he failed to object to the state’s alleged failure to disclose exculpatory evidence. In support of his argument, the petitioner asserts that the state failed to disclose the names of the EMS employees who attempted to install the monitoring device, in violation of his due process rights as articulated in Brady v. Maryland, 373 U.S. 83, 83 S. Ct. 1194, 10 L. Ed. 2d 215 (1963), and its progeny.

To establish a claim under Brady, the petitioner must establish that (1) the evidence allegedly suppressed was favorable to the petitioner, either because it was exculpatory or impeaching, (2) the evidence was suppressed by the state, either wilfully or inadvertently and (3) prejudice resulted from its absence. State v. Ortiz, 280 Conn. 686, 717, 911 A.2d 1055 (2006).

The petitioner here has failed to establish the first requirement of a Brady claim. Because the petitioner had not produced before the court any credible evidence that the EMS employees’ testimony would have been favorable to him, he has not established that the evidence would have been exculpatory.

The petitioner has not demonstrated that the denial of his petition for certification to appeal was an abuse of discretion with respect to his claim of ineffective assistance of trial counsel. The issues he raised were not debatable among jurists of reason, nor has he shown that a court could have resolved the issues differently or that the questions raised were adequate to deserve encouragement to proceed further.

II

We next address the issues the petitioner raises concerning the actions of the habeas court. The petitioner argues that the court (1) failed to conduct an adequate canvass before accepting his waiver of counsel, (2) failed to ensure that he had access to the courts, (3) improperly failed to grant a continuance and (4) conducted an inadequate review of his actual innocence claim. In effect, he claims that these actions were an abuse of discretion or constitutional deprivations.

A

The petitioner first claims that the court conducted an inadequate canvass when determining whether his waiver of his right to habeas counsel was knowing and voluntary. Specifically, the petitioner argues that the court inadequately informed him of (1) his right to appointed counsel, (2) the nature of the charges and proceedings and the range of permissible punishments, and (3) the conditional nature of his access to an investigator from the public defender’s office. We disagree.

Petitioners seeking habeas corpus review are entitled to the assignment of counsel when certain conditions are satisfied. See Practice Book § 44-1. The petitioner may waive this right, and proceed pro se, but only after the court is satisfied that the waiver is knowing and voluntary. State v. Diaz, 274 Conn. 818, 829, 878 A.2d 1078 (2005). Practice Book § 44-3 provides an analytical framework to assist courts in assessing whether a party’s waiver of counsel is knowing and voluntary. Section 44-3 provides in relevant part that the court may accept a petitioner’s wavier of counsel after the petitioner: “(1) Has been clearly advised of the right to the assistance of counsel, including the right to the assignment of counsel when so entitled; (2) Possesses the intelligence and capacity to appreciate the consequences of the decision to represent oneself; (3) Comprehends the nature of the charges and proceedings, the range of permissible punishments, and any additional facts essential to a broad understanding of the case; and (4) Has been made aware of the dangers and disadvantages of self-representation.” Our Supreme Court has made clear that the specific provisions of § 44-3 are not mandatory and that the waiver canvass is adequate, regardless of its particular form, as long as it sufficiently demonstrates that the waiver was knowing and voluntary. State v. Webb, 238 Conn. 389, 429, 680 A.2d 147 (1996), aff'd after remand, 252 Conn. 128, 750 A.2d 448, cert. denied, 531 U.S. 835, 121 S. Ct. 93, 148 L. Ed. 2d 53 (2000).

The petitioner first argues that the court conducted an inadequate inquiry regarding the extent of his right to counsel. The petitioner appears to rest his argument on his assertion that he is entitled to the assignment of counsel “at any stage,” even after he had waived this right, and that the court did not inform him of this. He does not argue that the inquiry regarding his knowledge of his right to counsel was otherwise deficient. Although he argues that this “right” is both statutory and constitutional, the petitioner cites no authority supporting the proposition that the court should have informed him that he had a right to ask for the appointment of counsel as the trial progressed, having previously waived his right to counsel.

The petitioner next argues that he was not adequately informed of the charges against him and the potential punishments he might face. The petitioner primarily relies on State v. Diaz, supra, 274 Conn. 818. In Diaz, our Supreme Court reversed the trial court’s determination that the defendant had adequately waived his right to trial counsel because, it determined, the defendant had not been adequately informed of the range of punishments he was facing. Id., 831. The petitioner here provides no analysis indicating that the Diaz analysis is relevant to determine whether a petitioner’s waiver of habeas counsel is knowing and voluntary. Practice Book § 44-3 (3) requires that a defendant comprehend the “range of permissible punishments . . . .” Unlike a defendant at trial, in which Practice Book § 44-3 (3) is appropriate, the petitioner in a habeas proceeding involving a violation of a condition of probation is not facing additional or new criminal charges. In a habeas proceeding, it is the petitioner who is levying charges against the state, and the petitioner faces no further punishment if he fails to obtain the habeas relief requested. Thus, the only punishment he would face is the known punishment from the judgment he is collaterally attacking.

Finally, the petitioner argues that his canvass was inadequate because he did not understand at the time he waived his right to counsel that he would lose access to the public defender’s investigator once he had waived his right to appointed counsel.

After the court, White, J., informed the petitioner that he would not be entitled to appointed counsel after having waived his right, the petitioner asked the court if it would be able to provide him with an investigator. The court stated that it would ask the public defender’s office to make an investigator available, but specifically told the petitioner: “I don’t know whether they’ll do it.” The court then proceeded with the canvass. After the court granted the petitioner’s motion to proceed pro se, it again told the petitioner that it would “ask the clerk to contact the public defender’s office and have them have their investigator contact you and try to work with you. . . . But I want to make it abundantly clear, Mr. Wilson, if they don’t send their investigator, then I can’t do anything about that.”

The petitioner and the court then engaged in the following colloquy:

“[The Petitioner]: All right. Let me ask you a question. They got this public defender here to contact me and everything, right? What would be the difference in contacting an investigator and having him come see me, just like you did with [the petitioner’s prior counsel]?

“The Court: She’s a special public defender, and she, as part of the public defender unit overall, can use their resources, including their investigator. You don’t want the public defender, and you don’t want a special public defender. You want to do it on your own. That’s why I told you it’s difficult.

“[The Petitioner]: It’s not difficult. All I’m asking the court is to provide me with an investigator. That’s not asking a whole lot.

“The Court: I just said I’ll ask them to do it, but I don’t know if they will or not because you’re not one of their clients. You’re your own client.

“[The Petitioner]: I’m not entitled to an investigator just like I am a public defender?

“The Court: The investigator is part of the special public defender’s office. . . . Either you want the whole package or you don’t want any of it. . . . Do you see what I mean?

“[The Petitioner]: I understand that. . . . I’ve got a certain thing. I need it investigated. Can you have it done?

“The Court: Can I have it done? . . . You’re going to have to show me where I have the authority or how I can do that. . . .

“[The Petitioner]: I’ve got some false documents here that was given . . . was entered as evidence by . . . the public defender . . . and the probation officer. ... I want an investigator so I can prove my case. That’s all I need.

“The Court: Mr. Wilson, I don’t think you understand what I’m saying. . . . The system says you’re entitled to counsel, and if you can’t afford counsel, there’s a statute that says you can get the public defender and use the resources of their office, but you just said you don’t want the public defender and their resources. And since you’re representing yourself, part of your representing yourself means you get your own investigator, you do your own paperwork, you argue your own case. . . . You’re saying, ‘Judge, go out and hire me an investigator.’

“[The Petitioner]: No, I want to use the one you have here. I talked to him already. I was wondering if you could okay it, just like you did with the lawyer.

* * =H

“The Court: I just told the clerk to contact the [public defender] and ask them to help you out. ... So, you understand that now you’re representing yourself, correct?

“[The Petitioner]: Yes.”

The court then moved on to other matters.

Although it does appear that the petitioner had some confusion about his rights after the court formally granted his petition to proceed pro se, the court engaged in an extensive discussion with the petitioner to ensure that he was clear that he did not have an independent right to an appointed investigator. Although the court did not specifically ask the petitioner again if he remained sure of his decision to proceed pro se after learning that he would not be appointed an investigator, the court did ask him, after the discussion, whether he then understood the extent of his rights, to which he answered that he did. Although the petitioner did attempt to request an investigator, he at no point indicated that he wanted to withdraw his request to proceed pro se. We conclude that the petitioner’s waiver of his habeas counsel was knowing and voluntary.

The habeas court did not abuse its discretion in denying the petition for certification to appeal on the issue of inadequate canvass.

B

Next, the petitioner claims that the court improperly failed to secure his right of access to the courts by failing to appoint him standby counsel sua sponte, to inform him that he had an opportunity to request standby counsel and to appoint an investigator for him. We are unpersuaded that the petitioner was denied his right to access the courts.

“It is now established beyond doubt that prisoners have a constitutional right of access to the courts . . . [and that such access must be] adequate, effective and meaningful.” (Internal quotation marks omitted.) Washington v. Meachum, 238 Conn. 692, 735, 680 A.2d 262 (1996). This right of access to the courts is not limited to defendants during trial and direct appeal but extends to convicted individuals “seeking new trials, release from confinement, or vindication of fundamental civil rights.” Bounds v. Smith, 430 U.S. 817, 827, 97 S. Ct. 1491, 52 L. Ed. 2d 72 (1977). “Decisions of the United States Supreme Court have consistently required [sjtates to shoulder affirmative obligations to assure all prisoners meaningful access to the courts.” (Internal quotation marks omitted.) Washington v. Meachum, supra, 735. “The tools [the right of access] requires to be provided are those that the inmates need in order to attack their sentences, directly or collaterally, and in order to challenge the conditions of their confinement.” Lewis v. Casey, 518 U.S. 343, 355, 116 S. Ct. 2174, 135 L. Ed. 2d 606 (1996).

Although the right of access to the courts is fundamental, neither the United States Supreme Court nor our Supreme Court has delineated precisely what procedures are necessary to satisfy the right. Our Supreme Court, however, has provided examples of tools that are sufficient. “Reasonable access to a law library within the correctional facilities . . . consultation with attorneys or their representatives through the mails and personal visits . . . and consultation with attorneys over the telephone within department guidelines . . . are all valid methods of ensuring that inmates are not denied the access to the courts to which they are entitled by the fourteenth amendment and article first, § 10 [of the Connecticut constitution].” (Citations omitted.) Washington v. Meachum, supra, 238 Conn. 737. Our Supreme Court has also stated that the appointment of standby counsel satisfies the state’s obligation to provide access to its courts, at least when the party has waived a right to appointed counsel. State v. Fernandez, 254 Conn. 637, 658, 758 A.2d 842 (2000), cert. denied, 532 U.S. 913, 121 S. Ct. 1247, 149 L. Ed. 2d 153 (2001). The analysis to determine whether the right to access has been satisfied does not vary depending on whether the character of the trial is civil or criminal. See Washington v. Meachum, supra, 735-37 (civil); State v. Fernandez, supra, 653-55 (criminal). Petitioners seeking habeas review may employ the assistance of counsel, pursuant to Practice Book § 44-1. Petitioners who are indigent or who otherwise qualify are entitled to appointed counsel. Id. Additionally, the court has the discretion to appoint standby counsel in appropriate cases. Practice Book § 44-4. That section provides in relevant part that “the judicial authority may appoint standby counsel ... in cases expected to be long or complicated or in which there are multiple defendants . . . .” (Emphasis added.) Practice Book § 44-4.

The petitioner primarily relies on State v. Fernandez, supra, 254 Conn. 637, to argue that his right to access to the courts was not satisfied. In Fernandez, the criminal defendant had attempted to defend himself, pro se, against the state’s charges of felony murder in violation of General Statutes § 53a-54c, murder in violation of General Statutes § 53a-54a (a), burglary in the first degree in violation of General Statutes § 53a-101 (a), arson in the first degree in violation of General Statutes § 53a-lll (a) (1) and tampering with physical evidence in violation of General Statutes § 53a-155 (a) (1). The defendant in Fernandez argued, among other things, that he was entitled to access an adequate law library, despite the fact that he had been assigned standby counsel, who had conducted legal research on the defendant’s behalf. Our Supreme Court disagreed. Analyzing the claim pursuant to Bounds v. Smith, supra, 430 U.S. 817, and its relevant progeny, the court held: “A criminal defendant who knowingly and intelligently waives the right to counsel and who has been appointed standby counsel is not constitutionally entitled to access to a law library. Rather, the appointment of standby counsel satisfies the state’s obligation to provide the defendant with access to the courts.” State v. Fernandez, supra, 658.

The petitioner argues that Fernandez stands for the proposition that a pro se criminal defendant or habeas petitioner is entitled to standby counsel. The petitioner misconstrues Fernandez, however, and therefore misstates the relevant inquiry. When faced with a claim of right to access the courts, the central determination is whether the right of access was satisfied, not whether there was a particular right to counsel, legal assistance or a library. Only after a petitioner has demonstrated that he was denied his right to access the courts should this court consider any additional tools to which the petitioner might be entitled. We do not reach that inquiry here, however, because we conclude that on the facts before us, the petitioner was not denied his right to access the courts.

The petitioner was initially appointed counsel. He waived his right to counsel and elected to present his claims pro se. The respondent, the commissioner of correction, asserts that the petitioner dismissed his appointed counsel over tactical disputes, but the petitioner argues that the dismissal was over strategic, rather than tactical, disagreements. In any case, the fact remains that the petitioner had appointed counsel and, as we have discussed, elected to waive counsel. Although in some cases in which difficult or complicated legal issues arise, the appointment of counsel, which is later waived, may not, of itself, fulfill a petitioner’s right to access the courts; see, e.g., id., 637; this is not such a case. In this case, the issues at the habeas trial regarding the petitioner’s violation of probation were not complex and hinged on his ability to convince the court of a factual assertion, namely, that no employee of EMS attempted to install the monitoring device at the relevant times. On these facts, we conclude that the appointment of counsel satisfied the petitioner’s right to access the courts, even though the petitioner ultimately decided to reject that counsel.

The petitioner also asserts that he was denied his right to access the courts because the habeas court failed to appoint an investigator to assist him in gathering facts relevant to his claims. The petitioner does not, however, provide any analysis supporting the assertion that the right of access, as articulated in Bounds v. Smith, supra, 430 U.S. 817, applies to fact gathering. All of the right to access cases the parties have cited, and of which we are otherwise aware, concern the right to access legal materials and legal knowledge, not facts. The petitioner cites Ake v. Oklahoma, 470 U.S. 68, 71, 105 S. Ct. 1087, 84 L. Ed. 2d 53 (1985), to support his assertion that he was entitled to an investigator. In Ake, the United States Supreme Court determined that the indigent defendant could not be tried for a capital crime without the assistance of an appointed psychiatrist at trial. See id., 83. The petitioner has presented no authority extending the analysis of Ake to either collateral attacks on a sentence or noncapital criminal charges. We further note that the petitioner in this case, when appointed counsel, also had access to an investigator. From the transcript, it appears that the petitioner had spoken with an investigator prior to his waiver of counsel. Therefore, to the extent that access to courts also governs a petitioner’s access to fact gathering tools, we conclude that the appointment of counsel satisfied the state’s obligation to assist the petitioner in gathering facts, as well. Therefore, we conclude that the petitioner in this case was adequately provided with access to the courts and has failed to show that the court abused its discretion in denying his petition for certification to appeal on that issue.

C

The petitioner next claims that the court improperly failed to continue the matter, sua sponte, when he indicated that his witnesses would not be able to testify two days earlier than the case had originally been scheduled. The petitioner also claims that the failure to continue the case was in effect a denial of an evidentiary hearing, which denied him “the tools with which to conduct his defense.”

After the parties had entered various exhibits into the record, the court and the petitioner engaged in the following colloquy:

“The Court: All right. So, if you’re all set with what has already been offered, you can proceed. It’s your burden, sir, so you need to ... . Who are you going to call as a witness? Do you want to call yourself or ... .

“[The Petitioner]: I guess I have to. Nobody . . . the date I put it, write it down that I was going to call for [May, 20, 2005], you know, I had no way of contacting anyone, so, you know ... I didn’t know it was going to be today.

“The Court: All right.

H= *

“The Court: All right. Well, let’s see. The court did approve a change in the trial date per request of [the respondent]. Sir, how many witnesses .... Did you already make arrangements then for the witnesses to appear on the twentieth?

“[The Petitioner]: Your Honor, I can prove, establish my case without the witnesses. I’ve got what I need to establish my case right here.

“The Court: All right. So, at this point you’re indicating that you don’t need to offer witnesses at this time?

“[The Petitioner]: Yes ma’am.”

The determination of whether to grant a motion for a continuance is within the discretion of the court, and we will not disturb the determination absent an abuse of that discretion. State v. Hamilton, 228 Conn. 234, 239, 636 A.2d 760 (1994).

As the colloquy reveals, the court did engage in an inquiry regarding the petitioner’s ability to present his case without the benefit of witnesses. Before the court could ask the petitioner whether he required a continuance, however, the petitioner assured the court that he was ready to present his case. He specifically told the court that he could “prove, establish my case without the witnesses.” The petitioner did not seek a continuance at any time, either before or after his colloquy with the court, nor did he indicate the relevance or necessity of any testimony any witness might give as to whether he had violated the condition of his probation. Because the petitioner did not request a continuance, but instead assured the court that he was ready to proceed without the benefit of witnesses, we conclude that the court did not abuse its discretion in failing to order a continuance. Nor did the court abuse its discretion in denying the petition for certification to appeal on that issue.

D

The petitioner finally claims that the court used an incorrect legal standard to analyze his actual innocence claim. Specifically, the petitioner asserts that the court failed to consider evidence produced during the violation of probation trial, failed to “seriously consider” the evidence he presented at the habeas trial and failed to determine explicitly whether a reasonable fact finder would find him guilty. We disagree.

The following facts are relevant to the petitioner’s claim. At the violation of probation trial, held February 8, 2002, the petitioner argued, among other things, that the state had provided insufficient evidence to prove his guilt of a violation of a condition of probation. The petitioner did not offer any witnesses or other evidence at the trial and declined to testify. At his habeas trial, the petitioner again provided no witnesses, although he did testify himself, and claimed that he was actually innocent. He asserted that he had been at his home, awaiting the arrival of the EMS employees at the relevant times and that they failed to appear. The petitioner did not provide any evidence to the court, other than his testimony, that he was actually innocent of the charges. The court, in its memorandum of decision, disposed of the petitioner’s actual innocence claim in a footnote, which states: “The court at this juncture acknowledges that the petitioner also claims that he is actually innocent of the violation of probation charge. The petitioner has not, however, presented any evidence remotely approaching the ‘clear and convincing’ standard enunciated in Miller v. Commissioner of Correction, 242 Conn. 745, 794, 700 A.2d 1108 (1997).”

In Miller, our Supreme Court held that “the proper standard for evaluating a freestanding claim of actual innocence ... is twofold. First, the petitioner must establish by clear and convincing evidence that, taking into account all of the evidence—both the evidence adduced at the original criminal trial and the evidence adduced at the habeas corpus trial—he is actually innocent of the crime of which he stands convicted. Second, the petitioner must also establish that, after considering all of that evidence and the inferences drawn therefrom as the habeas court did, no reasonable fact finder would find the petitioner guilty of the crime.” (Internal quotation marks omitted.) Thompson v. Commissioner of Correction, 91 Conn. App. 205, 220, 880 A.2d 965 (2005), appeal dismissed, 280 Conn. 509, 909 A. 2d 946 (2006). The court’s factual determinations are reviewed pursuant to the substantial evidence standard, whereas a review of its legal conclusion is plenary. Miller v. Commissioner of Correction, supra, 242 Conn. 803-805.

The petitioner’s first two arguments assert that the court improperly applied the first prong of the Miller analysis. The petitioner argues that the court insufficiently considered the evidence at the violation of probation trial and his testimony before the habeas court. The court, however, clearly did consider the evidence presented at the violation of probation trial, as shown by its factual findings regarding that trial. If the petitioner desired the court to be more explicit, he could have requested an articulation. The petitioner’s argument that the court did not sufficiently consider his testimony is really just a request that this court reevaluate the habeas court’s determination that the petitioner’s testimony was not credible. As an appellate court, we typically do not reevaluate the credibility of testimony; see Payne v. Commissioner of Correction, supra, 62 Conn. App. 586; and we decline to do so in this case. The petitioner also faults the court for not explicitly making a determination of the second prong of Miller, namely, the legal determination of whether a finder of fact would find him guilty. The petitioner does not provide any authority or analysis, however, demonstrating that the court must determine the second prong of Miller after having found that he has failed to satisfy the first. Because the petitioner must satisfy both prongs to prevail, we conclude that it was not improper for the court to omit an analysis of the second prong. We therefore conclude that the habeas court did not abuse its discretion in denying the petition for certification to appeal on this issue or any other issue in this case.

The appeal is dismissed.

In this opinion the other judges concurred.

       General Statutes § 52-470 (b) provides: “No appeal from the judgment rendered in a habeas corpus proceeding brought by or on behalf of a person who has been convicted of a crime in order to obtain such person’s release may be taken unless the appellant, within ten days after the case is decided, petitions the judge before whom the case was tried or, if such judge is unavailable, a judge of the Superior Court designated by the Chief Court Administrator, to certify that a question is involved in the decision which ought to be reviewed by the court having jurisdiction and the judge so certifies.”

       We may review on appeal the claim that the court improperly rejected the petitioner’s claim of ineffective assistance of trial counsel as well as the claim of impropriety by the habeas court during its hearing on the petition for a writ of habeas corpus. See Mitchell v. Commissioner of Correction, 93 Conn. App. 719, 891 A.2d 25, cert. denied, 278 Conn. 902, 896 A.2d 104 (2006); Morgan v. Commissioner of Correction, 87 Conn. App. 126, 866 A.2d 649 (2005); Ostolaza v. Warden, 26 Conn. App. 758, 603 A.2d 768, cert. denied, 222 Conn. 906, 608 A.2d 692 (1992).

       This violation was unrelated to the violation of a condition of probation at issue here.

       In his petition for a writ of habeas corpus, the petitioner also claimed that his appellate counsel was ineffective. The court found that he had abandoned this claim. Further, the petitioner has not briefed this issue on appeal, and, therefore, we do not review it.

       Tlie petitioner asserts several times in his appellate brief that he is actually innocent of the underlying crimes as well as of the violation of probation, and that his trial counsel was also ineffective for this reason. We decline to review this and any other of the petitioner’s arguments that his counsel at the violation of probation hearing was ineffective for failure to attack the underlying conviction of the crimes to which the petitioner had pleaded guilty in 1997.

       Specifically, the petitioner testified: “I was accused of not wearing tire monitoring device that was never given to me .... [The probation office stated] that someone came out to my residence to give me a monitoring device for adult probation, which was never offered to me, and I was convicted on the basis of these three urgent notices right here from EMS stating that their worker had come out to my residence, which I never seen a worker or never heard of anybody from that company. And I had my [correction] counselor call in. . . . They stated they never heard of me. They had no record of me ever having been to be placed on a monitoring device, which these documents here was used to convict me.”
      He further testified that “[EMS] had me sitting at my house three days in one spot falling asleep by the phone. Nobody ever showed, so I called the police department. They stated they didn’t have time to come out to my residence and watch to see if somebody’s going to come out there to give me a monitor.”

       In addition, the petitioner asserts that his defense counsel was ineffective because he “failed to object to the petitioner’s inability to confront his accusers . . . The petitioner has not provided any analysis of this claim, and so we decline to afford it review.

       The respondent, the commissioner of correction, does not challenge the petitioner’s initial eligibility for the assignment of habeas counsel by reason of indigency pursuant to Practice Book § 44-1.

       The right to counsel and the right to self-representation are mutually exclusive but are both constitutionally protected interests. A petitioner may choose to waive either right. State v. Dias, supra, 274 Conn. 828-29.

       The parlies do not discuss whether the court had an obligation to apprise the petitioner of its authority to appoint standby counsel after the petitioner had waived his right to appointed counsel in order to fulfill its responsibility to ensure that the petitioner had been “clearly advised of the right to the assistance of counsel . . . .” Practice Book § 44-3 (1). Therefore, we do not address this issue.

       The petitioner erroneously refers to the defendant in Diaz as the “petitioner” several times in his brief. The defendant in Diaz, however, was challenging the trial court’s canvass preceding his waiver of trial counsel.

       The petitioner has provided no analysis supporting a claim that he had a statutory right to standby counsel or at least a right to be notified that the court had the authority to appoint standby counsel, and, therefore, to the extent that the petitioner has raised such a claim, we decline to review it, as it is insufficiently briefed.

       Although the respondent, the commissioner of correction, asserts that the petitioner has no freestanding constitutional right to standby counsel or an investigator, the respondent does not directly address the petitioner’s claim that he was not provided with adequate access to the courts.

       The court, at the request of the respondent, rescheduled the case from May 20 to May 18, 2005. In addition to arguing that the court abused its discretion in not, sua sponte, granting a continuance, the petitioner argues, in one sentence in his appellate brief, that the rescheduling was also an abuse of discretion.

       The petitioner’s blanket claim that the failure of the court, to order a continuance is the equivalent of a denial of a motion for an evidentiary hearing that caused a violation of the due process clause of the United States constitution, as well as the state constitution, is unsupported by decisional authority. His sole citation, Mercer v. Commissioner of Correc
        tion, 230 Conn. 88, 644 A.2d 340 (1994), is inapposite because that case involved the habeas court’s failure to provide the habeas petitioner with any hearing at all. Id., 92. Here, the petitioner was provided with a hearing, at which he testified.

       We note that a violation of probation need be established by a fair preponderance of the evidence; State v. Davis, 229 Conn. 285, 295, 641 A.2d 370 (1994); whereas claims of actual innocence must be established by clear and convincing evidence, a higher standard of proof. N o case has yet decided whether the principles as to the standard of proof of Miller v. Commissioner of Correction, supra, 242 Conn. 745, are applicable to a violation of probation hearing, which is not a criminal proceeding.


author: LAVINE, J.

text:
    STATE OF CONNECTICUT v. PEG E. ROTH
    (AC 27517)
    DiPentima, McLachlan and Lavine, Js.
    Argued September 7
    officially released October 23, 2007

      James D. Diamond, for the appellant (defendant).

      Robin S. Schwartz, assistant state’s attorney, with whom, on the brief, were Walter D. Flanagan, former state’s attorney, and Stephen J. Sedensky III, senior assistant state’s attorney, for the appellee (state).
   Opinion

LAVINE, J.

The defendant, Peg E. Roth, 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 (Rev. to 2005) § 14-227a (a) (1), operating a motor vehicle while her license was suspended in violation of General Statutes § 14-215 (a) and interfering with an officer in violation of General Statutes § 53a-167a (a). The defendant’s primary claim on appeal is that there was insufficient evidence by which the jury reasonably could have found that she operated a motor vehicle on a public highway while under the influence of intoxicating liquor. She also claims that the trial court improperly (1) denied her motion for a judgment of acquittal and (2) instructed the jury. We affirm the judgment of conviction.

The jury reasonably could have found the following facts. During the late afternoon and early evening of February 1,2005, the defendant patronized the Lakeside Cafe on Hayestown Road in Danbury and Widow Brown’s Cafe and Chris’s American Restaurant, located on Federal Road in Danbury and Brookfield, respectively. When she was arrested, the defendant had in her possession two credit card receipts that she had signed that day. A receipt from Widow Brown’s Cafe, a bar and restaurant, for $34.25 plus a $12 tip was signed at 4:05 p.m.

Later, the defendant was seen with a group of people at the bar at Chris’s American Restaurant. At about 7:14 p.m., Caroline Martin, manager of Chris’s American Restaurant, asked the defendant to leave the premises because she was being loud and vulgar and was annoying other patrons. Martin testified that the defendant did not appear to be intoxicated when she left but acknowledged that the business has a policy of asking individuals who appear to be under the influence of intoxicating liquor to leave. Before she left alone, the defendant signed charges to a credit card totaling $161.18, including a $30 tip. The defendant paid for drinks for members of the group and $28.75 for herself.

At approximately 7:30 p.m. on the evening in question, Abner Figueroa saw the glare of the defendant’s headlights coming toward his house on Orchard Drive, a dead-end street off Hayestown and Great Plain Roads in Pleasant Acres, a private lakefront community in Danbury. Near the end of Orchard Drive, adjacent to Figueroa’s house, Figueroa saw the defendant’s vehicle stop and remain in the middle of the street with the lights on. He saw a person in the driver’s side when he made a point of taking out his garbage. Figueroa observed the vehicle periodically for approximately one hour and fifteen minutes. At 8:47 p.m., Figueroa telephoned the Danbury police department to report the vehicle’s presence.

Officer David Cooney of the Danbury police department responded to the complaint at about 9 p.m. He saw the defendant’s vehicle parked in the middle of Orchard Drive obstructing traffic traveling in both directions. He observed that the taillights were illuminated, the radio was on and the motor was running. Although the temperature was near twenty-five degrees, the windows on the operator’s side of the vehicle were open. Cooney approached the vehicle and saw the defendant asleep in the operator’s seat, slumped in the direction of the passenger’s side with her feet on the dashboard. The defendant was disheveled in appearance and shoeless. Cooney was able to awaken the defendant only after shouting at her and banging on the side of the vehicle for some time. When the defendant awoke, she was disoriented, minimally verbal and smelled of alcohol. Her eyes were bloodshot.

Cooney asked the defendant for her operator’s license and vehicle registration. The defendant responded by demanding to see Cooney’s license. She refused or was unable to identify herself or whose vehicle she was operating. She also did not know where she was or where she was going. When Cooney asked the defendant to turn off the vehicle’s motor, she turned on and off her high beam lights and windshield wipers. Concerned about the defendant’s safety, Cooney reached into the vehicle, turned the motor off and took the keys from the ignition. He then opened the door and told the defendant to step outside so that he could perform the standard field sobriety tests. The defendant refused to obey Cooney, despite his multiple requests that she get out of her vehicle. The defendant braced herself against the steering wheel and kicked her bare feet at Cooney, striking him in the thigh and gun belt area. Cooney then grabbed the defendant by the left arm and pulled her from the vehicle, while she continued to kick and scream at him. When the defendant was out of her vehicle, she lifted her right arm as if to strike Cooney. Cooney then restrained the defendant in handcuffs and arrested her. He was unable to administer the field sobriety test due to the defendant’s combative and aggressive behavior. Cooney took the defendant to the police station where she refused to submit to a Breathalyzer test. Although she asked for her cellular telephone to make a call, when it was given to her, the defendant did not know how to operate it. At the time of this incident, the defendant’s motor vehicle operator’s license was under suspension.

The defendant’s case was tried to the jury in January, 2006. After the jury found her guilty of the three counts charged in the information, the defendant pleaded guilty to having been convicted of operating a motor vehicle while under the influence of intoxicating liquor in Waterbury, Vermont, in April, 2000, and in Southeast, New York, in September, 1997. The court then ordered a presentence investigation report and a postconviction Connecticut alcohol and drug abuse commission evaluation. The court sentenced the defendant on March 7, 2006, and this appeal followed.

I

The defendant claims that there was insufficient evidence from which the jury reasonably could have found that she operated her vehicle on a public highway while she was under the influence of intoxicating liquor in violation of § 14-227a (a) (1) and that the court improperly denied her motion for a judgment of acquittal on that basis. We disagree with both of these claims and will address them jointly as they concern the same factual and legal bases.

The following additional facts are relevant to our resolution of the defendant’s claims. In an amended long form information dated January 20,2006, the senior assistant state’s attorney for the judicial district of Dan-bury charged in count one that the defendant operated “a motor vehicle while under the influence of alcohol . . . and . . . that at the Town of Danbury, on or about the [first] day of February, 2005, in the evening hours, in the area of [three] Orchard [Drive], Hayestown [Road] and Great Plain [Road], the [defendant] operated a motor vehicle on a public highway of this state while under the influence of intoxicating liquor, in violation of § 14-227a (a) (1) of the Connecticut General Statutes.” The state’s theory of the case was that the defendant operated her vehicle on Hayestown and Great Plain Roads, public highways, in order to get to Orchard Drive. The state presented evidence from Figueroa that Orchard Drive connects to Hayestown and Great Plain Roads. Cooney testified that Hayestown, Federal and Great Plain are public highways. The theory of defense was that the defendant was seen operating her vehicle on Orchard Drive only. The defense presented evidence that Orchard Drive is not a public highway. During trial, the defendant filed a motion seeking to compel the state to amend the information to conform to the evidence, specifically, to allege that the defendant drove while under the influence of intoxicating liquor on a private road on which a speed limit had been posted in violation of § 14-227a (a) (1). At the time, the defendant conceded that Hayestown and Great Plain Roads are public highways. The court denied the defendant’s motion.

At the conclusion of the state’s evidence, the defendant filed a motion for a judgment of acquittal. The court denied the motion. We review the defendant’s insufficiency of the evidence claim by examining all of the evidence before the jury. It is the propriety of the jury’s verdict of guilty, not the propriety of the court’s denial of a judgment of acquittal after the state’s casein-chief has been concluded, that we review. In this case, we therefore consider all of the evidence, regardless of whether it was introduced by the state or the defendant. See State v. Khadijah, 98 Conn. App. 409, 413-14, 909 A.2d 65 (2006), cert. granted on other grounds, 281 Conn. 901, 916 A.2d 46 (2007).

“In reviewing a sufficiency of the evidence claim, we apply a two-part test. First, we construe the evidence in the light most favorable to sustaining the verdict. Second, we determine whether upon the facts so construed and the inferences reasonably drawn therefrom the [trier of fact] reasonably could have concluded that the cumulative force of the evidence established guilt beyond a reasonable doubt. . . . [I]n viewing evidence which could yield contrary inferences, the jury is not barred from drawing those inferences consistent with guilt and is not required to draw only those inferences consistent with innocence. The rule is that the juiy’s function is to 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. Solomon, 103 Conn. App. 530, 539, 930 A.2d 716 (2007).

Moreover, our Supreme Court has stated: “[I]t does not diminish the probative force of the evidence that it consists, in whole or in part, of evidence that is circumstantial rather than direct. ... It is not one fact, but the cumulative impact of a multitude of facts which establishes guilt in a case involving substantial circumstantial evidence. ... In evaluating evidence, the [finder] of fact is not required to accept as dispositive those inferences that are consistent with the defendant’s innocence. . . . The [finder of fact] may draw whatever inferences from the evidence or facts established by the evidence it deems to be reasonable and logical. . . .

“[ A]s we have often noted, proof beyond a reasonable doubt does not mean proof beyond all possible doubt . . . nor does proof beyond a reasonable doubt require acceptance of every hypothesis of innocence posed by the defendant that, had it been found credible by the [finder of fact], would have resulted in an acquittal. ... 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. Calabrese, 279 Conn. 393, 402-403, 902 A.2d 1044 (2006).

Furthermore, we are mindful that the jury is the arbiter of credibility. State v. Russell, 101 Conn. App. 298, 316, 922 A.2d 191, cert. denied, 284 Conn. 910, 931 A.2d 934 (2007). With respect to a challenge to the sufficiency of the evidence, we note that “[i]n considering the evidence introduced in a case, [triers of fact] are not required to leave common sense-at the courtroom door . . . nor are they expected to lay aside matters of common knowledge or their own observations and experience of the affairs of life, but, on the contrary, to apply them to the facts in hand, to the end that their action may be intelligent and their conclusions correct.” (Internal quotation marks omitted.) State v. Fauntleroy, 101 Conn. App. 144, 153, 921 A.2d 622 (2007).

We conclude, on the basis of our review of all of the evidence and the reasonable inferences to be drawn therefrom, that the jury reasonably could have found beyond a reasonable doubt that the defendant consumed numerous alcoholic beverages on February 1, 2005, and was under the influence of intoxicating liquor when she left Chris’s American Restaurant and while she operated her motor vehicle on Federal Road and other public highways, including Great Plain Road or Hayestown Road, in Brookfield and Danbury to reach Orchard Drive. The evidence presented by the state, we conclude, was sufficient to support the defendant’s conviction of operating a motor vehicle on a public highway while under the influence of intoxicating liquor in violation of § 14-227a (a) (1).

II

The defendant’s second claim is that the court improperly instructed the jury as to what constitutes a public highway for purposes of conviction pursuant to § 14-227a (a) (1). The state argues that we should not review this claim because the defendant failed to preserve it at trial. We agree with the state.

“A party may preserve for appeal a claim that a jury instruction was improper either by submitting a written request to charge or by taking an exception to the charge as given. Practice Book § 16-20. If counsel follows the latter course, he or she must state distinctly the matter objected to and the ground of the objection. . . . The purpose of the rule is to alert the court to any claims of error while there is still an opportunity for correction in order to avoid the economic waste and increased court congestion caused by unnecessary retrials.” (Citation omitted; internal quotation marks omitted.) State v. Pereira, 72 Conn. App. 107, 112-13, 806 A.2d 51 (2002), cert. denied, 262 Conn. 931, 815 A.2d 135 (2003).

Here, the defendant submitted a request to charge consistent with her theory of the case that the state failed to prove that Orchard Drive was a private road with a posted speed limit. Her request to charge stated: “The defendant requests the Court to charge as a necessary element for alleged violation of [§] 14-227a that the State must prove that she was operating a motor vehicle ‘on a private road with a posted speed limit.’ ” (Emphasis added.) The court did not include the requested language in its charge. The defendant took no exception to the charge given by the court and did not preserve the specific claim raised on appeal relating to the definition of a public highway under § 14-227a (a) (1) by her request to charge on the separate issue of operation on a private road.

Furthermore, as noted in part I, the contested issue at trial was whether Orchard Drive is a public highway or private road. The defendant conceded that Federal, Hayestown and Great Plain Roads are public highways. We need not decide, however, whether Orchard Drive is a public highway in concluding that there was sufficient evidence by which the jury reasonably could infer that the defendant operated a motor vehicle on a public highway while under the influence of intoxicating liquor.

The judgment is affirmed.

In this opinion the other judges concurred.

       The defendant pleaded guilty to the charge In a part B information of having previously been convicted of operating a motor vehicle while under the influence of intoxicating liquor or drugs in violation of General Statutes § 14-227a (a) and (g).

       Martin testified that no food was ordered, and later at the police station, the defendant told Officer David Cooney of the Danbury police department that she had had nothing to eat that day.

       “Operation occurs when a person in the vehicle intentionally does any act or makes use oi any mechanical or electrical agency which alone or in sequence will set in motion the motive power of the vehicle. . . . This court has clarified the meaning of operation by holding that an intent to drive is not an element of operation. ... An accused operates a motor vehicle within the meaning of ... § 14-227a (a) when, while under the influence of alcohol or any drug and while in the vehicle and in a position to control its movements, he manipulates, for any purpose, the machinery of the motor or any other machinery manipulable from the driver’s position that affects or could affect the vehicle’s movement, whether the accused moves the vehicle or not.” (Citations omitted; internal quotation marks omitted.) State v. Wiggs, 60 Conn. App. 551, 554, 760 A.2d 148 (2000).
      In State v. Haight, 279 Conn. 546, 555, 903 A.2d 217 (2006), our Supreme Court stated: “We previously have recognized Connecticut’s unambiguous policy . . . [of] ensuring that our highways are safe from the carnage associated with drunken drivers. ... In light of this policy and the fact that the insertion of a key into the ignition is an act . . . which alone or in sequence will set in motion the motive power of the vehicle ... we conclude that the defendant’s act of inserting the key into the ignition constituted operation of a motor vehicle within the meaning of § 14-227a (a).” (Citations omitted; internal quotation marks omitted.)

       The defendant received an effective sentence of three years in prison, suspended after two years, and three years of probation. In addition, the court ordered the defendant to pay a fine of $2000 plus fees and costs. The court also ordered special conditions of probation: the defendant shall not operate a motor vehicle (the court permanently revoked her operator’s license), not use alcohol or illegal drugs, get substance abuse treatment in an inpatient or outpatient facility as deemed appropriate by the office of adult probation, perform 100 hours of community service within the first year, attend a Mothers Against Drunk Driving impact panel and not work in an establishment where alcohol is served for the first year of probation.

       General Statutes (Rev. to 2005) § 14-227a (a) provides in relevant part: “No person shall operate a motor vehicle while under the influence of intoxicating liquor .... A person commits the offense of operating a motor vehicle while under the influence of intoxicating liquor ... if such person operates a motor vehicle on a public highway of this state ... or on any private road on which a speed limit has been established ... (1) while under the influence of intoxicating liquor . . . .” (Emphasis added.)

       A number of maps of the area were put into evidence to show the relationship of the highways and roads.

       We note that interrogatories were not submitted to the jury. We do not know which road the jury identified as the public road over which the defendant operated her motor vehicle while she was under the influence of intoxicating liquor. The general verdict rule thus applies. See State v. Sanko, 62 Conn. App. 34, 40, 771 A.2d 149 (“[a] factual insufficiency regarding one statutory basis, which is accompanied by a general verdict of guilty that also covers another, factually supported basis, is not a federal due process violation” [internal quotation marks omitted]), cert. denied, 256 Conn. 905, 772 A.2d 599 (2001), quoting State v. Chapman, 229 Conn. 529, 539, 643 A.2d 1213 (1944); see also Griffin v. United States, 502 U.S. 46, 112 S. Ct. 466, 116 L. Ed. 2d 371 (1991).


author: PER CURIAM.

text:
    ANDRIA WARD v. DISTINCTIVE DIRECTORIES, LLC
    (AC 27715)
    Flynn, C. J., and Harper and Peters, Js.
    Argued September 18
    officially released October 23, 2007

      Rachel M. Baird, for the appellant (plaintiff).

      Jefferson D. Jelly, with whom was Marisa A. Mascólo, for the appellee (defendant).
   Opinion

PER CURIAM.

Under Connecticut case law of long standing, contracts for permanent employment or for an indefinite term are terminable at will. See, e.g., Torosyan v. Boehringer Ingelheim Pharmaceuticals, Inc., 234 Conn. 1, 14, 662 A.2d 89 (1995). Ordinarily, when such a contract is terminated, a disappointed employee has an enforceable claim for relief only if he or she can establish promissory estoppel, unjust enrichment or fraud. In this case, the employee challenges the trial court’s determination that she failed to establish the requisite factual predicates for any of these three theories of recovery. We affirm the judgment of the court in favor of the employer.

On August 5, 2004, the plaintiff, Andria Ward, filed a four count complaint against the defendant, Distinctive Directories, LLC, in which she sought to recover damages for breach of contract, breach of a duty of good faith, promissory estoppel and unjust enrichment arising out of the termination of her employment by the defendant. After the trial court, Shapiro, J., granted the defendant’s motion to strike the first two counts, the plaintiff filed a substitute complaint deleting those counts and adding a count alleging fraudulent misrepresentation. The trial court, Bryant, J., found that the plaintiff had failed to establish a factual basis for any count and rendered judgment on the merits for the defendant. The plaintiff has appealed.

The underlying facts found by the trial court are undisputed. The plaintiff accepted an offer for employment as a sales representative on a commission basis. The defendant agreed to guarantee that the plaintiffs income would be at least $4583.33 per month for the first six months of employment. The defendant terminated the plaintiffs employment after less than three months for nonperformance. The plaintiff construed the employment contract as entitling her to compensation for six months, whether or not her relationship with the defendant had been terminated.

On appeal, the plaintiff challenges the validity of a number of other trial court findings of fact concerning her employment by the defendant. The trial court found that the plaintiff had failed to prove that the defendant had made any misrepresentations to her or had fraudulently induced her to become its employee. Specifically, it found that the defendant had not made any untrue statements of fact and had not made unfair use of the plaintiffs prior professional experience.

In challenging atrial court’s factual findings, an appellant often has a daunting task. To succeed, the appellant must demonstrate that the court’s findings were clearly erroneous. See Practice Book § 60-5; Pandolphe’s Auto Parts, Inc. v. Manchester, 181 Conn. 217, 221-22, 435 A.2d 24 (1980).

In this case, in addition, the plaintiffs appeal also must take account of the earlier ruling by Judge Shapiro granting the defendant’s motion to strike the contract count of her original complaint. Judge Shapiro held that, because the plaintiffs employment contract with the defendant was a contract for an indefinite term, her employment was terminable by the defendant at will. See Burnham v. Karl & Gelb, P.C., 252 Conn. 153, 158-59, 745 A.2d 178 (2000); Sheets v. Teddy’s Frosted Foods, Inc., 179 Conn. 471, 474, 427 A.2d 385 (1980).

Judge Bryant recognized that, by filing a substitute complaint, the plaintiff had waived her right to contest the validity of Judge Shapiro’s ruling. See Parsons v. United Technologies Corp., 243 Conn. 66, 74, 700 A.2d 655 (1997); Ross v. Forzani, 88 Conn. App. 365, 368, 869 A.2d 682 (2005). Accordingly, Judge Bryant found that although “[t]he plaintiff was eligible to earn [a stipulated] monthly guaranteed salary as long as she was employed by the defendant . . . [t]he parties did not agree that [the plaintiff] would be retained for a minimum period of time . . . .” (Citation omitted.)

Instead of confronting Judge Bryant’s adverse findings directly, the plaintiff asserts that the defendant, motivated by its own cash flow problems, never intended to honor its obligations to her. She faults the court for finding credible the testimony of two of the defendant’s witnesses. She disputes the court’s characterization of her compensation employment package as “generous.”

It suffices to note that the plaintiff had the opportunity to persuade the trial court that she had been misled and misused. She does not claim that the court made evidentiary rulings that precluded her from proving her case. She does not deny the authority of the court to make determinations of credibility. Because we are not persuaded that any of the court’s findings were clearly erroneous, we cannot sustain the plaintiffs appellate claims.

As Judge Bryant noted, the plaintiffs appeal manifests her failure to grasp the significance of Judge Shapiro’s ruling that, as a matter of law, her employment contract with the defendant was terminable at will. Having agreed to such a contract, the plaintiff took the risk that her employment would end earlier than she had anticipated. The defendant did not have to justify its termination of their relationship.

The judgment is affirmed.

       In her appeal, the plaintiff challenges only the court’s rulings that she failed to establish her claims of promissory estoppel and fraudulent misrepresentation. She has not pursued her claim that the defendant was unjustly enriched by her work.

       Judge Shapiro also struck the second count of the original complaint alleging breach of the covenant of good faith and fair dealing.

       The defendant did not concede the existence of cash flow problems.