author: SHELDON, J.

text:
    STATE OF CONNECTICUT v. ADAM BENEDICT
    (AC 32484)
    Robinson, Sheldon and Schaller, Js.

      Argued January 3
    officially released June 5, 2012

      William F. Gallagher, with whom, on the brief, was William J. Ward, for the appellant (defendant).

      Harry Weller, senior assistant state’s attorney, with whom, on the brief, were David S. Shepack, state’s attorney, and David R. Shannon, senior assistant state’s attorney, for the appellee (state).
   Opinion

SHELDON, J.

The defendant, Adam Benedict, appeals from the judgment of conviction, rendered following a jury trial, of one count of sexual assault in the fourth degree in violation of General Statutes § 53a-73a (a) (6). On appeal, the defendant claims that the trial court erred in sustaining the prosecutor’s objection to defense counsel’s questioning of the complainant concerning the special conditions of her pretrial diversionary program on a pending felony charge, in violation of his constitutional right to confront the witnesses against him under the sixth and fourteenth amendments to the United States constitution and article first, § 8, of the Connecticut constitution. We agree and, accordingly, reverse the judgment of the trial court.

The jury was presented with evidence tending to establish the following facts in support of the charge on which the defendant was convicted. At all relevant times, the complainant was a seventeen year old senior at Litchfield High School, and the defendant was a substitute teacher and athletic coach at that school. The defendant first contacted the complainant outside of school in January or February, 2007. A week or two later, the defendant called the complainant while she was visiting a friend’s residence and offered to pick her up. The complainant agreed. When the defendant and his friend arrived at the complainant’s friend’s residence, the defendant appeared to be intoxicated. After the defendant’s friend drove the defendant and the complainant to the defendant’s residence, the friend departed. Upon entering the defendant’s residence, the complainant followed him into his bedroom, where he kissed her, took off her shirt, kissed her chest and sucked on her breasts. Then the defendant, still clothed, rubbed his genital region against the complainant’s leg and requested that she allow him to ejaculate on her breasts or face. Thereafter, the defendant exposed his penis and requested that the complainant perform fellatio on him. When the complainant refused, the defendant returned his penis to his pants and continued rubbing his genital region against her leg until he ejaculated. After changing his clothing, the defendant lay down on the bed with the complainant, kissed her, squeezed her breasts and fell asleep. The complainant remained at the defendant’s residence until the following morning.

After her graduation from high school, in June or July, 2007, the complainant, accompanied by her boyfriend and another female complainant, went to the state police barracks in Litchfield to file a complaint against the defendant. On the basis of that complaint, the defendant was later arrested and charged with three counts of sexual assault in the fourth degree in violation of § 53a-73a (a) (6). Two counts related to separate alleged incidents involving sexual contact between the defendant and the complainant, and one count related to a third alleged incident involving sexual contact between the defendant and the other female complainant. After a jury trial, the defendant was convicted, on the basis of the previously described evidence, of one count of sexual assault in the fourth degree against the complainant in violation of § 53a-73a (a) (6). He later was sentenced on that charge to a term of one year incarceration, execution suspended after ninety days, and three years of probation with special conditions. This appeal followed. Additional facts will be set forth as necessary.

I

The defendant claims that the court improperly restricted his cross-examination of the complainant by sustaining the prosecutor’s objection to defense counsel’s questioning of her regarding the conditions of her pretrial diversionary program on a pending charge of possession of narcotics in violation of General Statutes § 2 la-279. The defendant claims that the court thereby violated his right to confront a crucial witness against him in violation of the sixth and fourteenth amendments to the United States constitution and article first, § 8, of the Connecticut constitution. We agree that the court violated his rights under the United States constitution.

During his cross-examination of the complainant, defense counsel asked her, “You have a felony pending in this court, do you not?” The prosecutor objected to this question. The court and the parties’ counsel then engaged in an extensive colloquy outside the presence of the jury, in which defense counsel cited legal authority establishing the constitutional basis for his right to question the complainant regarding her pending felony charge. Under such authority, defense counsel argued that questioning the complainant about her pending charge was essential to the defendant’s right to present a defense because such evidence had the undeniable potential to undermine her credibility by demonstrating her motive or interest to testify favorably for the state. The court eventually rejected this argument after an extended colloquy with counsel on the ground that the prejudicial effect of the proffered evidence was greater than its probative value.

Once the complainant finished testifying, the jury was excused so that the court and counsel could discuss the state’s motion in limine regarding another witness. After that discussion was over, the prosecutor redirected the court’s attention to case law establishing that the use of cross-examination to elicit facts tending to show a witness’ motive, interest, bias or prejudice is a matter of right and, thus, that the court, to comply with constitutional standards under the confrontation clause, must not unduly restrict it. In light of such authority, the prosecutor urged the court to reopen the complainant’s testimony so that she could be cross-examined by the defense concerning her pending felony charge. When the court inquired of counsel as to the “desired parameters” of such additional questioning if it were permitted, defense counsel responded that he only wanted to ask the complainant one question: “Do you have a pending felony [charge] in this court?” The prosecutor, for his part, stated that he would like to question the complainant briefly on redirect examination on the “limited subject” of her pending felony charge. The court then granted the state’s motion to reopen the complainant’s testimony regarding her pending felony charge, and the complainant was recalled to the stand, whereupon defense counsel prompted her to admit that she did indeed have a felony charge pending against her in the trial court.

In his ensuing redirect examination of the complainant, the prosecutor questioned her at length both about the timing of her pending charge in relation to those pending against the defendant and about the processing of her pending charge to date, including her admission into the pretrial diversionary program, upon the successful completion of which her charge would be dismissed. As to the conditions of that program, about which the prosecutor expressly asked her, the complainant stated only that she was required to report to a probation officer and to perform community service. She specifically denied that the state had promised her anything in exchange for her testimony against the defendant in this case.

On his recross-examination of the complainant, defense counsel sought to correct the impression left by the prosecutor’s redirect examination — that the complainant’s charge would be dismissed only if she attended all visits with her probation officer and performed all assigned hours of community service — by asking her: “Are there any other conditions to your probation?” When the prosecutor objected to this question on relevancy grounds, defense counsel responded that the prosecutor had “opened the door” to this inquiry by asking the complainant on redirect examination about only certain conditions of her probation, in an apparent effort to minimize the impact of her pending charge on the jury’s assessment of her credibility. The court sustained the prosecutor’s objection after engaging defense counsel in the following colloquy in the presence of the jury:

“The Court: It goes to whether or not she has an interest in testifying as to the outcome of any case. What her conditions are, it just leads her to an ultimate conclusion, but if a condition of her probation was to testify favorably for the state, I would allow it, but if it’s not going to involve that, I’m not going to allow it.
“[Defense Counsel]: Your Honor, if I could just address very briefly?
“The Court: Yes.
“[Defense Counsel]: I didn’t ask the question, he did. He said, what are you supposed to do, probation and community service, and then attempts to minimize it. I’d like to know what other conditions are posted. He opened the door, I didn’t.
“The Court: Only if it relates— -
“[Defense Counsel]: I would have never asked the question had he not opened the door.
“The Court: You can open the door, but it’s still not going to be admitted, because it’s not relevant to the issue as to whether or not she was promised anything for her testimony today, so I’m not going to allow it.”

The court thus clearly and categorically informed the jury that any other conditions of the complainant’s pretrial diversionary program would not be relevant to her interest in testifying for the state, or thus to her credibility as a witness, unless they involved a promise by the state to reward her for her testimony.

In the wake of this ruling, defense counsel requested the opportunity to rephrase his question in more general terms, which the court eventually permitted after the following exchange:

“[Defense Counsel]: Well, I ask the court if I can rephrase the question without—
“The Court: Well, let me hear you rephrase it.
“[Defense Counsel]: — without her answering it.
“The Court: Go ahead, rephrase it.
“[Defense Counsel]: Are you supposed to do anything else, without telling us what it is?
“[The Prosecutor]: I’m going to object as to relevance.
“The Court: I’ll allow it to that extent, without specifics, yes.”

Defense counsel thereafter asked the complainant, as the court had narrowly permitted: “Are you required to do anything else, without stating exactly what it is you’re required to do?” When the complainant responded in the affirmative, defense counsel ended his recross-examination.

“The general rule is that restrictions on the scope of cross-examination are within the sound discretion of the trial judge . . . but this discretion comes into play only after the defendant has been permitted cross-examination sufficient to satisfy the sixth amendment. . . . We must therefore conduct a two-step analysis, determining first whether the cross-examination of [a witness] permitted to defense counsel comported with sixth amendment standards . . . and second whether the trial court abused its discretion in restricting the scope of that cross-examination.” (Citations omitted; internal quotation marks omitted.) State v. Castro, 196 Conn. 421, 424-25, 493 A.2d 223 (1985).

The sixth and fourteenth amendments to the United States constitution require that, in cross-examining an adverse witness, defense counsel must be “permitted to expose to the jury the facts from which the jurors, as the sole triers of fact and credibility, could appropriately draw inferences relating to the reliability of the witness.” Davis v. Alaska, 415 U.S. 308, 318, 94 S. Ct. 1105, 39 L. Ed. 2d 347 (1974). An essential aspect of this right is the right to elicit testimony from the witness about facts and circumstances tending to show the witness’ bias, motive or interest to testify against the defendant and/or in favor of the state. See State v. Ortiz, 198 Conn. 220, 224, 502 A.2d 400 (1985). Upon the elicitation of such testimony, the defendant may appropriately present argument to the trier of fact as to the potentially corrupting influence of such facts and circumstances on the witness’ credibility, whether or not the witness admits that he or she in fact has been influenced by them. The question presented to the trier by the witness’ denial of any such bias, motive or interest is, of course, whether the denial itself should be credited in light of the likely effect of such facts and circumstances on a person in the witness’ situation. Because of the independent impact of any particular source of bias, motive or interest on the witness’ credibility and the resulting reliability of his or her testimony, this court has held that “the trial court commits error if it precludes all inquiry upon a subject tending to show the bias of a witness.” State v. Johnson, 21 Conn. App. 291, 294, 573 A.2d 1218 (1990); see State v. Ortiz, supra, 226; State v. Ouellette, 190 Conn. 84, 103, 459 A.2d 1005 (1983).

One subject that is universally understood to have the potential to influence a witness to testify in favor of the state is the pendency against her of a criminal charge. See State v. Reed, 56 Conn. App. 428, 438-39, 742 A.2d 1285, cert. denied, 252 Conn. 945, 747 A.2d 524 (2000). In its most extreme and obvious form, such an interest may be seen to arise from an express agreement between the witness and the prosecutor to furnish testimony favorable to the state. See State v. Camerone, 8 Conn. App. 317, 323, 513 A.2d 718 (1986). The reason for this conclusion, particularly when the agreement to furnish favorable testimony is part of a plea agreement, is clear: in such circumstances, it reasonably can be inferred that the witness, by giving her favorable testimony, is seeking to gain a favorable disposition of her pending charge.

Even, however, without an express agreement between the witness and the state to provide testimony against the defendant in exchange for a favorable disposition of her own criminal charges, it is well understood that the mere pendency of a criminal charge against the witness may influence the witness to give testimony favorable to the state in the hope of achieving some personal benefit in the ultimate resolution of her own case. See State v. Lubesky, 195 Conn. 475, 482, 488 A.2d 1239 (1985). Aware, as she is or can fairly be presumed to be, that the prosecutor is in a unique position not only to select the charges on which she will be prosecuted but to influence the final disposition of those charges — by entering or declining to enter into a plea bargain with her or arguing for a greater or lesser sentence in her case — the logical witness may reasonably be found to believe that her own cooperation with the state in prosecuting the case on trial will at least be taken note of, and perhaps be rewarded, when her own pending charges are finally disposed of. The potentially biasing or interest producing effect of pending charges on the witness, even in the absence of any agreement by her to give inculpatory testimony, arises from the power of the state, whose interests are directly affected by the witness’ testimony, to influence, if not control, the witness’ own fate before the criminal court.

In the present case, when defense counsel was finally permitted to question the complainant about her pending criminal charge, he was initially content to ask her only if such a charge was in fact pending against her. Such evidence, as previously noted, could have been used by the defense as a separate and independent basis for arguing that she might have been influenced to testify against the defendant in the hope of receiving favorable treatment from the prosecution in the ultimate disposition of her pending charge. When, however, the prosecutor questioned the complainant on redirect examination, the strength of that argument was undermined in two ways. First, the prosecutor caused the complainant to reveal for the first time that she had been given the opportunity to participate in a pretrial diversionary program, upon the successful completion of which her pending charge would be dismissed. Second, the prosecutor caused the complainant to state that the conditions of her diversionary program did not include any agreement by her to give testimony against the defendant in this case. Instead, she stated that her program required her to meet with her probation officer and to perform community service. By eliciting such testimony from the complainant, the prosecutor attempted to suggest that the pendency of a felony charge against her could not have influenced her to testify in favor of the state because the prosecutor could no longer influence the final disposition of that charge.

Defense counsel, recognizing the resulting need to demonstrate the continuing potential of the complainant’s pending charge to influence her testimony against the defendant notwithstanding the claimed lack of any agreement between her and the state to reward her for her testimony, immediately sought, on recross-examination, to elicit further information from her about the other conditions of her probation. The existence velnon of any such conditions belied the suggestion implicit in the prosecutor’s redirect examination that all that the complainant had to do to gain a dismissal of her pending charge was to attend all scheduled visits with her probation officer and to complete her assigned community service. The details of such conditions, more importantly, would have shed invaluable light on exactly what role the prosecutor and his associates might still have played in determining whether the complainant had successfully completed her program and earned a dismissal. If her success or failure in the program could be established by purely objective measures — such as by proving that she had made a donation in a preset amount to a particular charity — then the prosecutor’s potential to undermine her chances for dismissal would have been minimal at most. If, by contrast, any extra conditions imposed on her were such as to require a subjective appraisal of her efforts, achievements and/ or changes in behavior while in the program, then the prosecutor’s role as an advocate in influencing the court’s determination as to her success or failure in the program would have remained substantial, giving the state the continuing power to affect her fate in her criminal case. Hence, defense counsel’s inquiry as to the other conditions of the complainant’s program was essential to understanding the potential impact of the pending charge on her credibility.

When defense counsel posed his question to the complainant about the other conditions of her probation and the prosecutor objected, defense counsel correctly noted that the prosecutor had opened the door to that inquiry by exposing certain of those conditions to the jury in an effort to minimize the effect of the pending charge on her credibility. The court, however, cut him off, declaring, in the presence of the jury, that unless the other conditions of her program involved an agreement by the state to reward her for her testimony, it would not permit further inquiry about them because they would not be relevant to her credibility. In so stating, the court denied fair and reasonable inquiry into an important subject already broached by the prosecutor, and thus categorically discounted, before the jury, the potential impact of the complainant’s pending charge on her interest in testifying favorably for the state. Although the court did eventually permit defense counsel to ask, without details, whether the complainant had other, undisclosed conditions of probation, such testimony was rendered worthless by the court’s anticipatory declaration that any such conditions would be irrelevant to her credibility if they did not involve an express agreement by her to testify in favor of the state. By so ruling, the court deprived the defendant of any meaningful opportunity to gain the benefit of an inference adverse to the complainant’s credibility based on the pendency of her criminal charge.

“The United States Supreme Court has recognized that certain constitutional protections are so central to the requirement of a fair trial that their violation absolutely requires that the conviction from which they arose be set aside. ... In some circumstances, however, violations of other, less basic constitutional rights may be considered harmless and therefore do not compel reversal.” (Citation omitted.) State v. Cohane, 193 Conn. 474, 484-85, 479 A.2d 763, cert. denied, 469 U.S. 990, 105 S. Ct. 397, 83 L. Ed. 2d 331 (1984). Our own Supreme Court has held that a violation “of the defendant’s sixth and fourteenth amendment guarantees of confrontation, does not require an automatic reversal.” State v. Milner, 206 Conn. 512, 528, 539 A.2d 80 (1988). On this issue, however, the state has the burden of proving beyond a reasonable doubt that the error was harmless. State v. Cohane, supra, 485.

“[T]he harmlessness of an error depends upon its impact on the trier and the result, not upon whether the particular evidence involved was legally essential to support the finding.” State v. Bruno, 197 Conn. 326, 336, 497 A.2d 758 (1985) (Shea, J., concurring), cert. denied, 475 U.S. 1119, 106 S. Ct. 1635, 90 L. Ed. 2d 181 (1986). “[Prevention, throughout the trial of a criminal case, of all inquiry in fields where cross-examination is appropriate, and particularly in circumstances where the excluded questions have a bearing on credibility and on the commission by the accused of the acts relied upon for conviction, passes the proper limits of discretion and is prejudicial error.” (Emphasis in original; internal quotation marks omitted.) State v. Ouellette, supra, 190 Conn. 103.

Applying these standards, we conclude that the state has failed to meet its burden of showing that the court’s error in this case was harmless beyond a reasonable doubt. In these circumstances, the court’s disallowance of further defense inquiry as to the other conditions of the complainant’s pretrial diversionary program undermined the defendant’s right to have the jury infer that she may have been motivated by her pending charge to testify against the defendant on the basis of her belief that, by so doing, she would gamer favor with the state and gain its assistance with the ultimate disposition of her pending charge.

The state claims that the error was harmless due to the availability of corroborating evidence regarding the alleged incident of sexual contact between the defendant and the complainant. We find this claim unpersuasive, however, because the complainant was not only the chief witness for the state, but the only witness to the defendant’s alleged sexual misconduct. See State v. Corley, 177 Conn. 243, 247, 413 A.2d 826 (1979) (concluding that failure to permit inquiry into potentially favorable disposition of chief witness’ pending charges in exchange for his testimony constituted violation of defendant’s right under confrontation clause). As such, her testimony against the defendant was crucial, and the jury’s consideration of her credibility was highly relevant to its ultimate finding of guilt. It was, therefore, essential that the defendant be accorded the right to delve into whether the complainant had any possible interest or motive for testifying against him. The ultimate measure of the complainant’s potential bias, to reiterate, was not whether she had been promised favorable treatment in exchange for her testimony. Instead, it was whether she might have felt it to be in her interest to shade her testimony in favor of the state, or perhaps to maintain a baseless charge for fear of losing a substantial benefit from the state if she changed her mind and declined to testify. See State v. Johnson, supra, 21 Conn. App. 294-95 (finding error in trial court’s exclusion of any inquiry as to possibility of criminal consequences for complainant if he changed his story during trial because that inquiry would have afforded jury “a basis for an inference that there was potentially undue pressure placed on [the complainant] to testify”). Because exploration of that subject, with its unique potential to raise doubt about the credibility of the complainant — a crucial witness for the state as to the occurrence of the alleged conduct on which the prosecution depended — was denied, the court cannot be found to have honored the defendant’s sixth and fourteenth amendment right to confront adverse witnesses.

In addition, the state claims that any error was harmless because the complainant’s initial complaint in this case predated her arrest on the pending charge. We are not persuaded by this argument either. On the basis of the evidence presented at trial, the jury reasonably could have inferred that the complainant made her initial statement to the police under pressure from her boyfriend. The complainant testified that, after she graduated from high school and several months after the defendant’s alleged sexual assault on her, she initiated contact with the defendant through text messages. After her boyfriend discovered that she was communicating with the defendant in this manner, he in turn contacted the defendant, who allegedly responded to him with threatening text messages. The complainant testified that it was only after this dispute arose and her boyfriend encouraged her to file a complaint against the defendant that she finally did so. The jury thus reasonably could have inferred that, although the pen-dency of the criminal charge against the complainant played no role in causing her to bring false charges against the defendant in the first place, its later pen-dency against her motivated her to maintain those false charges through the time of trial in order to assist the state, and thus to enhance her prospect for a favorable disposition in her own case.

Eor the foregoing reasons, we reject the state’s claim that the trial court’s erroneous restriction of cross-examination was harmless beyond a reasonable doubt. Accordingly, we conclude that the trial court’s ruling constituted reversible error.

II

Because we find that the trial court erred in sustaining the state’s objection to defense counsel’s questioning of the complainant, we need not consider the defendant’s other claims except to the extent that the issues timely raised are likely to arise again at retrial. See, e.g., State v. Vinal, 198 Conn. 644, 652-63, 504 A.2d 1364 (1986) (concluding that issues will be reviewed if they are likely to arise at new trial). The only such issue concerns the trial court’s ruling permitting the state to question the defendant and his character witnesses about his social media website login identification, smoothcrimi-nal77 (login identification), which the defendant claims to have been in violation of § 4-4 of the Connecticut Code of Evidence. The defendant claims that, because the court had narrowed the scope of permissible character evidence to that which related to a specific element of the crime charged, to which the login identification was irrelevant, such evidence went only to general bad character and was thus inadmissible at trial. We agree that the admission of the login identification was an abuse of the court’s discretion that must not be repeated if this case is retried.

The following additional facts are necessary to our resolution of the defendant’s claim. During cross-examination of the defendant, defense counsel objected to the state’s questioning of him regarding his MySpace login identification on the ground that it was irrelevant. The prosecutor responded: “As far as what his login ID was, ‘smooth criminal,’ if I didn’t think he was going to call a bunch of character witnesses, his pastor and things like that, then, arguably, I don’t know that I would offer it. But if there’s going to be a bunch of character witnesses to say what a good person he is, I think it becomes relevant.” In ruling on the objection, the court stated: “I’m going to sustain your objection in most part. You can put the title of the — if it’s an identification . . . feature of a Facebook, I’ll allow it in for that purpose. ... I am sustaining your objection 90 percent of what the content of the song is, but it’s an identifying feature on Facebook or Twitter, or whatever, I’ll allow it in just for that purpose. Okay . . . ?” Defense counsel responded, “[s]o it’s limited to the title of the song.” The court inquired, “[o]kay?” to which defense counsel answered, “[t]hank you.”

After the defendant testified, defense counsel indicated that he did indeed intend to call character witnesses to testify. The state objected to the admission of character witnesses on the ground, among others, that the admission of general character evidence was improper. The court determined, pursuant to § 4-4 of the Connecticut Code of Evidence, that the defendant’s character witnesses could testify, but only as to the defendant’s character trait of not having sexual contact with students. During his cross-examination of three of the defendant’s character witnesses, the prosecutor referred to the defendant’s login identification and inquired about whether the witnesses knew if the defendant was the type of person who would have such an identification. These references constitute the basis of the defendant’s claim.

“Evidence of an accused’s trait of character must be relevant to an element of the crime charged.” State v. Martin, 170 Conn. 161, 165, 365 A.2d 104 (1976). “When a character witness has given his opinion as to a particular trait, the state may cross-examine that witness concerning specific acts, not to prove the truth of such facts, but to test the credibility of the character witness by ascertaining his good faith, his source and amount of information and his accuracy.” Id. “[W]hen the prosecutor attacks the basis of the witness’ opinion by questioning him as to his knowledge of specific acts, such acts must be relevant to those traits.” Id., 165-66. “The [s]tate’s rebuttal evidence . . . may not include other traits or that which merely reflects on the accused’s general good or bad character.” C. Tait & E. Prescott, Connecticut Evidence (4th Ed. 2008) § 4.13.3, pp. 148-49. “The determination of relevance [of the acts] must be made according to reason and judicial experience. . . . That determination requires the exercise of the court’s discretion.” (Citation omitted.) State v. Martin, supra, 166.

The court properly narrowed the scope of permissible character evidence to the defendant’s character trait of not having sexual contact with students, which tends to negate an element of the crime charged. Despite the state’s attempt to identify an attenuated connection between the defendant’s login identification of “smoothcriminal77” and the crime that he allegedly committed, we conclude that the login identification does not specifically relate to the trait for which character evidence was permissible. Rather, the defendant’s login identification can only be characterized as impermissible general bad character evidence. We conclude, therefore, that in allowing the state to question the witnesses regarding the defendant’s login identification, the court abused its discretion.

The judgment is reversed and the case is remanded for a new trial.

In this opinion the other judges concurred.

       The defendant was acquitted of two additional counts of sexual assault in the fourth degree in violation of § 53a-73a (a) (6).

       The defendant also claims that the court erred in denying his challenge for cause with respect to a venireperson in violation of his state and federal constitutional right to a fair trial by an impartial jury, and in denying his request for a continuance to permit him to raise a challenge to the jury array, also in violation of his state and federal constitutional right to a fair trial by an impartial jury. Because we reverse the judgment of conviction on the defendant’s confrontation clause claim, we need not reach these claims.

       The jury found the defendant not guilty of the charge relating to this complainant.

       General Statutes § 53a-73a (a) provides in relevant part: “A person is guilty of sexual assault in the fourth degree when ... (6) such person is a school employee and subjects another person to sexual contact who is a student enrolled in a school in which the actor works or a school under the jurisdiction of the local or regional board of education which employs the actor . . . .”

       The present appeal concerns the defendant’s second trial on these charges. The defendant’s first trial ended in a mistrial due to a deadlocked jury.

       Although the prosecutor generieally referred to the program as a “pretrial diversionary program,” the complainant indicated that she had to report to a “probation officer,” who monitored her compliance with program conditions. As such, we will occasionally refer to her program, as did the court and counsel at trial, as her probation.

       Although the defendant has cited, as bases for his claim, both the sixth and fourteenth amendments to the United States constitution and article first, § 8, of the Connecticut constitution, he offers no separate analysis of the Connecticut constitution as a basis for separate treatment of them. We, therefore, see no reason to undertake such an analysis. See State v. Braxton,
        196 Conn. 685, 688 n.2, 495 A.2d 273 (1985); State v. Cosby, 6 Conn. App. 164, 166 n.1, 504 A.2d 1071 (1986).

       Defense counsel’s recitation of the controlling authority was as follows: “Although an arrest is an admissible attack, a witness’s credibility, it may be used to show bias, interest, or motive. That is [State v. Moynahan, 164 Conn. 560, 600, 325 A.2d 199, cert. denied, 414 U.S. 976, 945 S. Ct. 291, 38 L. Ed. 2d 219 (1973)]. And I quote, ‘It is well settled that the fact that a witness is a defendant in a criminal case creates an interest with which affects his credibility.’ [The complainant] is a witness who is a defendant in a criminal case in this very courthouse, and I cite for the proposition State v. Ortiz, 198 Conn. 220 [560 A.2d 400 (1985)]; State v. George, 194 Conn. 361 [481 A.2d 1068 (1984), cert. denied, 469 U.S. 1191, 105 S. Ct. 963, 83 L. Ed. 2d 968 (1985)]; State v. Lubesky, 195 Conn. 475 [488 A.2d 1239 (1985)] [and] State v. Shipman, 195 Conn. 160 [486 A.2d 1130 (1985)]. It does create an interest which affects credibility. She has a pending felony in this courtroom. That’s all I asked.”

       Defense counsel and the court engaged in the following colloquy:
      “[Defense Counsel]: And, Your Honor, it is well settled, and this is the basis for it. It is a well settled fact . . . that the witness is a defendant in a criminal prosecution, it creates the interest itself, which affects credibility. In other words, because she subsequently got arrested, she may be using this proceeding as leverage to get some sort of deal in that proceeding. It was a felony drug charge that carries up to seven or ten years in prison. I can’t recall which. It’s a big case. So of course she has to come back here and make this work for the prosecution. And that’s the interest that’s affected. That’s what State v. Ortiz stands for, that’s what State v. George stands for, State v. Lubesky, and State v. Shipman. The fact that she has it creates the interest itself.
      “The Court: That she wants to satisfy the state in a conviction?

        “[Defense Counsel]: And I was quoting there. Yes. ‘It is well settled that the witness is a defendant in a criminal prosecution creates an interest which affects his credibility,’ period.”

       The prosecutor argued that the publication of the pending charge would be extremely prejudicial to the complainant because the file in her case had been sealed and she would be entitled to a dismissal of the pending charge if she successfully completed her pretrial diversionary program in that case. He argued that the probative value of the pending charge with respect to her credibility was minor because her charge postdated the charges against the defendant and she had already testified against the defendant in the first trial on these charges, which had resulted in a mistrial when the jury deadlocked. We note, however, that the complainant’s arrest for the pending charge predated her testimony against the defendant in both of his trials.

       Although “opening the door” does not warrant boundless inquiry, “[a]s a general rule ... if a party delves into a particular subject during examination, he is said to have opened the door for further examination regarding that subject.” (Internal quotation marks omitted.) State v. Quint, 97 Conn. App. 72, 89, 904 A.2d 216, cert. denied, 280 Conn. 924, 980 A.2d 1089 (2006).

       Although the prosecutor indicated that the conditions of the complainant’s probation were sealed, the United States Supreme Court, in Davis, determined that “[t]he State’s policy interest in protecting the confidentiality of a juvenile offender’s record cannot require yielding of so vital a constitutional right as the effective cross-examination for bias of an adverse witness. ” Davis v. Alaska, supra, 415 U.S. 320.

       Defense counsel did not provide an offer of proof after the court denied further inquiry into the conditions of the complainant’s probation. He is not required, however, to do so to preserve a claim of infringement of the right of cross-examination. See State v. Santiago, 224 Conn. 325, 330-31 n.6, 618 A.2d 32 (1992).

       The defendant refers to the social media website as Facebook.com. The record reflects, however, that the social media website was MySpace.com. Further, the defendant refers to his login identification as “smoothcrimi-nal77. ” The record, however, reflects that the defendant’s login identification was “smoothcriminall977.”
      The words “smooth criminal” in the login identification reference a song by Michael Jackson, later performed by Alien Ant Farm, entitled “Smooth Criminal.” The song contains lyrics describing violence against a woman. The defendant testified that the numbers “1977” in the login identification represent his birth year.

       Section 4-4 of the Connecticut Code of Evidence provides in relevant part: “(a) Character evidence generally. Evidence of a trait of character of a person is inadmissible for the purpose of proving that the person acted in conformity with the character trait on a particular occasion, except that the following is admissible:
      (1) Character of the accused. Evidence of a specific trait of character of the accused relevant to an element of the crime charged offered by an accused, or by the prosecution to rebut such evidence introduced by the accused. . . .”

       Although defense counsel did not specifically object to the state’s questioning of the character witnesses on the ground that any inquiry about the defendant’s login identification was outside the scope of permissible character evidence, the objection had been preserved by a previous objection. During cross-examination of the defendant, defense counsel objected to the state’s questioning about his login identification. The state, in its admitted anticipation of the defendant’s subsequent admission of character evidence, requested that the court permit the introduction of the defendant’s login identification. Both the court and the state, therefore, were apprised that the initial objection was premised on the login identification’s use as character evidence. See State v. Lahai, 128 Conn. App. 448, 467, 18 A.3d 630, cert. denied, 301 Conn. 934, 23 A.3d 727 (2011). Accordingly, we conclude that the defendant preserved his claim for appellate review.

       Unlawful sexual contact with a student is one of the elements of the offense with which the defendant was charged. See General Statutes § 53a-73a (a) (6).


source: Caselaw Access Project

author: PETERS, J.

license: Public Domain

text:
    JOHN KELLEY v. FIVE S GROUP, LLC
    (AC 33184)
    Gruendel, Robinson and Peters, Js.

      Argued March 14
    officially released June 5, 2012

      Michael D. O’Connell, with whom, on the brief, was Robert B. Flynn, for the appellant (plaintiff).

      David S. Hoopes, with whom was Peter J. Royer, for the appellee (defendant).
   Opinion

PETERS, J.

Recovery in restitution “is based upon the principle that one should not be permitted unjustly to enrich himself at the expense of another but should be required to make restitution of or for property received, retained or appropriated. . . . The question is: Did [the party liable], to the detriment of someone else, obtain something of value to which [he] was not entitled?” (Internal quotation marks omitted.) New Hartford v. Connecticut Resources Recovery Authority, 291 Conn. 433, 452, 970 A.2d 592 (2009); see also 1 Restatement (Third), Restitution and Unjust Enrichment § 1, p. 3 (2011) (“[a] person who is unjustly enriched at the expense of another is subject to liability in restitution”). The dispositive issue in this appeal is whether the trial court properly determined that the plaintiff failed to establish that his employment contract unjustly failed to compensate him for his work in designing and constructing a golf course for the defendant. We affirm the judgment of the trial court.

On June 25, 2010, the plaintiff, John Kelley, filed a two count amended complaint against the defendant, Five S Group, LLC, alleging claims for reformation of the parties’ contract and for restitution pursuant to the doctrine of unjust enrichment. The defendant denied its liability and asserted various affirmative defenses, including laches and estoppel. After a court trial, the court rendered judgment in favor of the defendant on both counts of the plaintiffs complaint and the defendant’s special defenses. The plaintiffs appeal challenges the propriety of all these adverse rulings, with the exception of the court’s decision on his claim for reformation.

In the court’s February 1, 2011 memorandum of decision, it made extensive findings of fact that the plaintiff does not contest on appeal. The defendant is a Connecticut limited liability company comprised of members of the Shepard family, which owns about 200 acres of undeveloped land in South Windsor and East Windsor. The plaintiff is an experienced developer of golf courses. In October, 1995, the plaintiff and Jean “Kip” Shepard entered into an informal oral agreement for the plaintiffs design, construction and operation of a golf course on property owned by the defendant. The informal agreement contemplated a thirty year joint venture in which the defendant would contribute the land at a cost of $1 per year and the plaintiff would oversee the construction and operation of the golf course for no fee. For the duration of the thirty year lease, the defendant and the plaintiff would divide the operating costs of the golf course and its profits. At the termination of the lease, the plaintiff would be paid $1.5 million and the defendant would own the golf course outright. The plaintiff and Kip Shepard also discussed the possibility that, to obtain the approval of other members of the Shepard family for the golf course proposal, the defendant would draw down $250,000 from the $2 million mortgage that was to be taken out on the defendant’s land.

This informal agreement thereafter was the subject of further extended discussions between the plaintiff, Kip Shepard and John E. D’Amico, an attorney retained by the parties. During these discussions, Kip Shepard indicated clearly that he was no longer wüling to burden his family with a large payout to the plaintiff at the end of the leasehold. The plaintiff agreed, but indicated that he wanted, in some other way, to receive the $1.5 million for his work in planning and constructing the golf course. Despite D’Amico’s efforts, the parties were unable to agree on the terms of an incentive payment plan or an annuity as an alternative to the $1.5 million payout. Although fully apprised of these various proposals, the plaintiff, by his own admission, paid little attention to the details of the parties’ agreement because he was preoccupied with supervising the construction of the golf course. By May, 1996, Ep Shepard believed that the compensation issue had been resolved. It was his understanding that the plaintiff would give up his claim to the $1.5 million payout at the end of the leasehold and that the defendant would give up the Shepard family’s claim to the $250,000 that was to have been paid out of the mortgage.

On June 11, 1996, in accordance with Ep Shepard’s understanding of the parties’ agreement, the relationship between the parties was formalized in three documents. The first document was a ground lease for the golf course, in which the defendant leased the property to South Windsor Golf Course, LLC, for a term of thirty years at $1 per year. The second document was an operating agreement between the plaintiff and the defendant providing that each party had a 50 percent interest in South Windsor Golf Course, LLC. The third document was a management services agreement between South Windsor Golf Course, LLC, and the plaintiff, which included a provision that the plaintiff would not receive any additional compensation for his development or management of the golf course.

At the closing, the plaintiff indicated that he had not read the documents, but did not request time to do so. Kip Shepard described the documents to the plaintiff as memorializing a fifty-fifty deal because the plaintiff and the defendant would share both the costs and the profits of the golf course. Kip Shepard was aware of the fact that the documents did not contain a provision contemplating an incentive agreement or buyout for the plaintiff.

On June 12, 1996, to replace a prior construction mortgage, the parties signed a construction to permanent mortgage note on the golf course property in the amount of $2.4 million, payable to the Savings Bank of Manchester. On July 11, 1997, shortly after the opening of the golf course, the parties increased the amount borrowed to $3 million.

The plaintiff has managed the South Windsor golf course since it opened in June, 1997, and also has acted as general manager of its restaurant. Since the opening, each party has received approximately $100,000 per year in profits from operation of the golf course. Approximately three years after the opening, while negotiating another golf course construction project with the defendant, the plaintiff discovered that there was no provision for a $1.5 million payout in the South Windsor golf course documents. When the plaintiff inquired about the omission, Kip Shepard informed him that it had been taken out.

In its ruling rejecting the plaintiffs claim for reformation, the court held that the plaintiff failed to establish that, due to the parties’ mutual mistake, the documents failed to include a provision entitling the plaintiff to payment of $1.5 million upon expiration of the thirty year lease. Subsequently, in addressing the factual underpinnings for the plaintiffs claim of unjust enrichment, the court found that the plaintiffs contribution of his services in designing and constructing the golf course was balanced by the defendant’s contributions of approximately 162 acres of land, in its execution of a thirty year lease of that property to South Windsor Golf Course, LLC, at $1 per year and in its subjection of that property to a multimillion dollar mortgage lien. The court noted that the plaintiff and individual members of the defendant each had undertaken personal liability by signing the mortgage note and found that the plaintiff had presented no evidence that, at the end of the leasehold, the golf course would continue to be profitable. Rejecting the plaintiffs claim of unjust enrichment, the court concluded that the plaintiff had not made a factual showing that the defendant was unjustly or unfairly benefited by its failure to commit itself to make any payments to the plaintiff beyond those contemplated in the documents.

I

The plaintiffs appeal challenges, on three grounds, the validity of the court’s decision that he failed to prove a claim of unjust enrichment. Specifically, the plaintiff claims that the court improperly found that: (1) the defendant’s contribution to the development of the golf course was equivalent to his own contribution; (2) he had agreed to build the golf course for free; and (3) he had failed to prove what the property would be worth at the end of the leasehold. We are not persuaded by these claims of error.

“Unjust enrichment applies wherever justice requires compensation to be given for property or services rendered under a contract, and no remedy is available by an action on the contract. ... A right of recovery under the doctrine of unjust enrichment is essentially equitable, its basis being that in a given situation it is contrary to equity and good conscience for one to retain a benefit which has come to him at the expense of another. . . . With no other test than what, under a given set of circumstances, is just or unjust, equitable or inequitable, conscionable or unconscionable, it becomes necessary in any case where the benefit of the doctrine is claimed, to examine the circumstances and the conduct of the parties and apply this standard. . . . Plaintiffs seeking recovery for unjust enrichment must prove (1) that the defendants were benefited, (2) that the defendants unjustly did not pay the plaintiffs for the benefits, and (3) that the failure of payment was to the plaintiffs’ detriment. . . .

“[T]he determinations of whether a particular failure to pay was unjust and whether the defendant was benefited are essentially factual findings for the trial court that are subject only to a limited scope of review on appeal. . . . Those findings must stand, therefore, unless they are clearly erroneous or involve an abuse of discretion.” (Citations omitted; internal quotation marks omitted.) Hartford Whalers Hockey Club v. Uniroyal Goodrich Tire Co., 231 Conn. 276, 282-83, 649 A.2d 518 (1994).

A

The plaintiffs first claim is that the court improperly found that the defendant’s contribution to the South Windsor golf course was adequate to offset the plaintiffs contributions and improvements to the property. This claim founders for lack of a factual foundation. Facially, the parties’ contracts reflect an understanding that the defendant’s contribution of its land for the construction and operation of the golf course adequately matched the plaintiffs contribution of his services. To prevail on his claim, the plaintiff had the burden of proving that this perceived equivalence was inaccurate, thereby conferring an unjust benefit on the defendant. Surprisingly, the record contains no evidence, and therefore no finding, either of the market value of the defendant’s land or of the market value of the plaintiffs services. In the absence of such evidence, the plaintiff cannot prevail on this claim of error.

B

The plaintiffs second claim is that the court improperly found that he had agreed to build the golf course for free. The plaintiff maintains that he did not consent to contribute design and construction services without receiving the right to a payout in return. This claim seems to us to be an inaccurate representation of the defendant’s characterization of the business relationship between the parties. The defendant never suggested that the plaintiff was not entitled to compensation for his work. Instead, it has maintained that, in light of its contribution of the land, the plaintiff would be adequately compensated for his contribution in planning and constructing the golf course by his fifty-fifty share of the costs and profits of the golf course. Without a finding that this characterization of the parties’ contracts was inaccurate, the plaintiff has failed to establish a factual basis for his charge that the defendant unjustly did not pay the plaintiff for his work.

C

Finally, the plaintiff claims that the court abused its discretion by “withholding relief based on uncertainty about the future value” of the South Windsor golf course. The plaintiff has not pointed to any evidence of record that would demonstrate that the court improperly found that the income to be generated by the golf course at the expiration of the thirty year lease was speculative at best. If there are statistics about the earnings records of aging golf courses, it was the plaintiffs burden to present them. As best we can tell from the evidence recited by the plaintiff, he has failed to make the requisite showing.

In light of the record as a whole, we agree with the defendant that the court properly found that the plaintiff failed to establish that the failure of the defendant to commit itself to making any additional payments to him was “unjust or unfairly benefited the defendant.” We are mindful of our Supreme Court’s instruction that appellate review of the trial court’s conclusion that the defendant was not unjustly enriched “is deferential. The court’s determinations of whether a particular failure to pay was unjust and whether the defendant was benefited are essentially factual findings . . . that are subject only to a limited scope of review on appeal. . . . Those findings must stand, therefore, unless they are clearly erroneous or involve an abuse of discretion. . . . This limited scope of review is consistent with the general proposition that equitable determinations that depend on the balancing of many factors are committed to the sound discretion of the trial court.” (Internal quotation marks omitted.) New Hartford v. Connecticut Resources Recovery Authority, supra, 291 Conn. 452. We are persuaded that, in this case, the plaintiff has failed to establish that the court’s rejection of his claim for restitution was an abuse of its discretion.

n

As an alternate ground for affirmance of the judgment of the court, the defendant argues that the plaintiffs claim of restitution is barred by the terms of the parties’ management services agreement. Paragraph 2. a of the parties’ management services agreement provides that the plaintiff “shall be entitled to no additional compensation under this [agreement, it being understood and agreed by the parties hereto that this [agreement is intended to more fully set forth [the plaintiffs] obligations under the [operating [agreement without compensation.”

In New Hartford v. Connecticut Resources Recovery Authority, supra, 291 Conn. 454-55, our Supreme Court held that a claim for restitution based on an alleged implied in law contract is barred by an express contract that fully addresses the same subject matter. Similarly, 1 Restatement (Third), supra, § 2 (2), p. 15, provides that “[a] valid contract defines the obligations of the parties as to matters within its scope, displacing to that extent any inquiry into unjust enrichment.”

The facts of record in this case closely resemble those of Meaney v. Connecticut Hospital Assn., Inc., 250 Conn. 500, 523, 735 A.2d 813 (1999), in which our Supreme Court held that an employee could not recover in unjust enrichment against his employer for its failure to pay him incentive compensation when his express employment contract, in comprehensive fashion, specified the terms of the employee’s salary without providing for such compensation. Pursuant to Meaney, without a finding by the court that the plaintiff in this case performed services not contemplated by his contracts with the defendant, we agree with the defendant that the plaintiff cannot prevail on his claim of unjust enrichment.

In sum, we conclude that the record as a whole convincingly demonstrates that the trial court properly determined that the plaintiff failed to establish the requisite factual underpinning for his claim that the defendant was unjustly enriched by the plaintiffs design and construction of a golf course. Accordingly, the court did not abuse its discretion in rendering judgment in favor of the defendant.

The judgment is affirmed.

In this opinion the other judges concurred.

       On September 20,2010, with the consent of the parties, the court ordered that the trial on the plaintiffs claim of unjust enrichment be bifurcated between liability and damages. The court rendered judgment on the issue of liability.

       Five S Group, LLC, is comprised of members of the Shepard family, including Charles B. Shepard and Jean “Kip” Shepard.

       The court found that D’Amico sent drafts of the final proposed operating and management agreements to the plaintiff and Kip Shepard in April and May, 1996.

       The bank issuing the mortgage required the documents to be signed before closing on the loan. D’Amico did not attend the closing. Kip Shepard arranged for representation by a different attorney to finalize the financing of the project.

       Prior to the closing, on February 16, 1996, the plaintiff and Kip Shepard executed articles of organization for South Windsor Golf Course, LLC, an entity created on their behalf by D’Amico.

       Paragraph 2.a of the management services agreement provides: “The services described in this [agreement shall be performed by [the plaintiff] and/or [the plaintiffs] heirs, successors and legal representatives as provided in the [ojperating [agreement. [The plaintiff] shall be entitled to no additional compensation under this [agreement, it being understood and agreed by the parties hereto that this [a]greement is intended to more fully set forth [the plaintiffs] obligations under the [ojperating [agreement without compensation.” (Emphasis added.)

       The plaintiff testified that the closing had lasted between two and one-half and three hours.

       The plaintiff does not appeal from the court’s judgment in favor of the defendant on his claim for reformation and has not challenged the propriety of the court’s findings related to this ruling.

       The plaintiff also argues that the court improperly concluded that his unjust enrichment claim was barred by the defendant’s special defenses of laches, equitable estoppel, the parol evidence rule, waiver and the statute of limitations. Because we conclude that the court properly rendered judgment in favor of the defendant on the unjust enrichment claim, we need not consider the merits of this argument.


author: SULLIVAN, J.

text:
    CHARLES D. GIANETTI v. CONNECTICUT NEWSPAPERS PUBLISHING COMPANY, INC., ET AL.
    (AC 33025)
    Gruendel, Robinson and Sullivan, Js.

      Argued December 6, 2011
    officially released June 5, 2012

      Charles D. Gianetti, pro se, the appellant (plaintiff).

      Ravi V. Sitwala, with whom were Barbara M. Schel-lenberg and, on the brief, Stewart I. Edelstein, Austin D. Kim and Jonathan R. Donnellan, for the appel-lees (defendants).
   Opinion

SULLIVAN, J.

The self-represented plaintiff, Charles D. Gianetti, appeals from the judgments of the trial court rendering summary judgments in favor of the defendants, Connecticut Newspapers Publishing Company, Inc., owner of the Connecticut Post (Post), Daniel Tepfer and Marion Brown. On appeal, the plaintiff claims that (1) the court improperly concluded that count one as to the Post, and counts one and two as to Tepfer, were barred by the statute of limitations; (2) the court erred by concluding that all of the statements that he complained of are either true, substantially true or protected by the “fair report” privilege; and (3) the trial court violated his rights to due process and a jury trial. We conclude that the court properly determined that there were no genuine issues of material fact in dispute and that the defendants were entitled to judgments as a matter of law. Accordingly, we affirm the judgments of the trial court.

The following facts and procedural history are relevant to our review of the plaintiffs appeal. In a previous matter, the plaintiff, a medical doctor, brought suit against, among others, the parents of a minor patient seeking the balance of a bill already settled by the patient’s insurance company. “The plaintiff [claimed] that the reasonable and customary fee for the medical services provided was in the amount of $6385 and that the insurance carrier paid a total of $1980.80 and accordingly there was a balance due in the amount of $4496.20.” Gianetti v. Siglinger, Superior Court, judicial district of Fairfield, Docket No. CV-98-349830 (April 26, 2004) (36 Conn. L. Rptr. 869). In response, the parents asserted a counterclaim for violations of the Connecticut Unfair Trade Practices Act, General Statutes § 42-110a et seq. Id. The court ultimately ruled in favor of the defendants, finding that the plaintiff had a binding contractual agreement not to seek the sums claimed to be due from the patient and that the actions of the plaintiff constituted an unfair trade practice both in bringing the lawsuit and in continuing it. Id. The court awarded the patient punitive damages and attorney’s fees. Id.

Here, Connecticut Newspapers Publishing Company, Inc., employs Tepfer and Brown as reporters. The Post published three articles regarding the plaintiffs billing practices, with the first appearing shortly after the Sig-linger decision was released. The first article, written by Tepfer, was published on June 20, 2004. The second article, also written by Tepfer, was published on July 9, 2004. The third article, written by Brown, was published on December 23, 2005. Those articles gave rise to the present libel action.

The plaintiff filed his initial complaint on July 10, 2006, claiming defamation and negligent infliction of emotional distress. On September 14, 2009, the defendants moved for summary judgments. The Post argued that count one of the complaint against it is barred by the statute of limitations. Tepfer argued that counts one and two of the complaint against him are barred by the statute of limitations. Additionally, all of the defendants argued “that there [were] no genuine issue [s] of material fact that: (1) the alleged libelous statements [were] true or substantially true; (2) the articles [were] protected by the ‘fair report’ privilege; (3) the claim fail[ed] under the ‘incremental harm’ doctrine; (4) the plaintiff [did] not [allege] actual malice as required in order for him to prevail; [and] (6) the emotional distress claim, being wholly derivative of the libel claims, must therefore also fail.”

On November 30,2010, the court issued its memorandum of decision in which it rendered judgments in favor of the defendants. First, the court agreed with the Post that the plaintiffs first count, which alleged libel based on the June 20, 2004 article, was barred by the statute of limitations. Second, the court agreed with Tepfer that counts one and two, which alleged libel based on the June 20, 2004 and the July 9, 2004 articles, were barred by the statute of limitations. Third, the court agreed that all of the statements that the plaintiff complained of either were true or substantially true and therefore were protected by the “fair report” privilege. Fourth, the court agreed with Brown that count three, which alleged libel based on the December 23, 2006 article, had no merit, as the article did not contain any libelous statements. Finally, the court concluded that because count four, which alleged negligent infliction of emotional distress, is derivative of the libel allegations, it, too, failed. This appeal followed.

We agree with both parties that the standard of review for each claim is plenary. “Our standard of review on an appeal from a summary judgment is well established. Practice Book § 17-49 provides that summary judgment shall be rendered forthwith if the pleadings, affidavits and any other proof submitted show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. In deciding amotion for summary judgment, the trial court must view the evidence in the light most favorable to the nonmoving party. . . . The party moving for summary judgment has the burden of showing the absence of any genuine issue of material fact and that the party is, therefore, entitled to judgment as a matter of law. . . .

“A material fact is a fact that will make a difference in the outcome of the case. . . . Once the moving party has presented evidence in support of the motion for summary judgment, the opposing party must present evidence that demonstrates the existence of some disputed factual issue .... It is not enough, however, for the opposing party merely to assert the existence of such a disputed issue. Mere assertions of fact . . . are insufficient to establish the existence of a material fact and, therefore, cannot refute evidence properly presented to the court .... Our review of the trial court’s decision to grant a motion for summary judgment is plenary.” (Citations omitted; internal quotation marks omitted.) Luciano Realty Partners v. New Haven Academy, LLC, 119 Conn. App. 522, 526-27, 988 A.2d 930 (2010).

On our review of the pleadings, affidavits and other proof submitted, we are persuaded that the court properly determined that no genuine issues of material fact exist. First, the court held that libel based on the June 20, 2004 article was barred by the statute of limitations. The marshal’s return is silent as to when service of process was received from the plaintiff, and, thus, does not comply with the provisions set forth in General Statutes § 52-593a (b). See Zarillo v. Peck, 33 Conn. Sup. 676, 678-79, 366 A.2d 1165, cert. denied, 171 Conn. 731, 357 A.2d 515 (1976).

The trial court properly determined that count one as to the Post, and counts one and two as to Tepfer, were barred by the statute of limitations. Section 52-593a only extends the period of time for the serving officer to make the delivery. Process must still be received by the serving officer on time. In other words, the plaintiff must get the process to the serving officer within the period allowed by the statute. The statute of limitations for bringing a libel action is two years from the date of the act complained of. General Statutes § 52-597. The period began when the article in question was published, June 20,2004, and ended two years later on June 20, 2006. The marshal’s return reflected that the complaint was served on July 7, 2006; it was therefore late. The plaintiff, however, contends that he mailed the process to the marshal on June 9, 2006, which is within the acceptable time period. Although the plaintiff is permitted to mail the process to the marshal, the determinative standard is when the marshal receives the process, not when it is mailed. “All that § 52-593a requires, on the other hand, is that the process be personally delivered. It does not require that the delivery be made by the plaintiff, his attorney, or any particular individual. The person making the delivery has no statutory role to perform respecting the delivery. He is neither required nor permitted to endorse his doings on the return. In addition, the statute does not detail the manner of making delivery. The word ‘deliver’ includes a handing over for the purpose of taking even though both acts do not occur simultaneously. . . . Although delivery by mail is not mentioned in the extension statute, such delivery is not precluded. The fact that the extension statute becomes operative only where the process has been delivered before the running of the statute of limitations, and the fact that the serving officer is required to attest to the date of delivery suggest that the purpose of the statute is to ensure that the process is received on time by the officer. The word ‘personally’ means in a personal manner; Webster, Third New International Dictionary; in person, World Book Encyclopedia Dictionary. For something to be delivered in person it must be so delivered as to come into the possession of the person to whom it is to be delivered. Thus, where a delivery of process is to be made by mail, it has not been personally delivered until it has been received in person by the serving officer, at which point he can so attest.” (Citation omitted.) Zarillo v. Peck, supra, 33 Conn. Sup. 678-79.

The marshal’s return is silent as to when it was received from the plaintiff, and, thus, does not comply with the provisions of § 52-593a (b). Although we take no position on whether an amended return or affidavit of the marshal would have had a curative effect, the plaintiff failed to submit such an amended return or affidavit confirming receipt prior to June 20, 2006. A plaintiff relying upon a “saving statute” must demonstrate compliance with its provisions. See Vessichio v. Hollenbeck, 18 Conn. App. 515, 519, 558 A.2d 686 (1989). Because the plaintiff failed to establish a genuine issue of material fact as to his compliance with the provisions of § 52-593a, the court properly rendered summary judgment as to count one of the complaint against the Post.

The plaintiff also argues that even if the statute does not “save” the claim, the defendants waived their statute of limitations defense because they did not raise it within thirty days. This argument has no merit. A statute of limitations defense is not subject to the limiting waiver rule. See Practice Book § 10-32. Generally, such defenses are appropriately raised as special defenses, as it was here, and not in motions to dismiss. See, e.g., Ross Realty Corp. v. Surkis, 163 Conn. 388, 391, 311 A.2d 74 (1972).

Second, the court agreed with Tepfer that counts one and two, libel based on the June 20, 2004 and the July 9,2004 articles, were barred by the statute of limitations. The court held that this case is controlled by our decision in Davis v. Family Dollar Store, 78 Conn. App. 236, 241-42, 826 A.2d 262 (2003), appeal dismissed, 271 Conn. 665, 859 A.2d 25 (2004). We agree. The court correctly noted that “[w]hen the first action was filed, there was no service at all upon Tepfer. There is no indication of any attempted service upon Tepfer. As the court noted when it denied the plaintiff’s request for [an] order of notice, the summons itself provided an alternative work address for Tepfer. There is no evidence or reason to conclude that Tepfer was aware of the claims prior to the expiration of the statute of limitations. Tepfer did not appear through counsel until well past the expiration date. Putting the defendant’s name on a summons is a meaningless act when absolutely nothing is done to effectuate service.”

Third, the court concluded that all of the statements that the plaintiff complains of are either true, substantially true, or protected by the “fair report” privilege. On appeal, the plaintiff argues that the court erred in its findings that the defenses of substantial truth and the fair reporting privilege applied. However, as the court properly explained, “[n]otably, our courts have held that only ‘substantial truth’ need be shown by a defendant. ... A defendant may show only that the ‘main charge, or gist, of the libel’ is true. [Goodrich v. Waterbury Republican-American, Inc., 188 Conn. 107, 113, 448 A.2d 1317 (1982)]. If he succeeds, he does not have to further justify statements that ‘do not add to the sting of the charge.’ Id.” (Citation omitted.) We agree.

Fourth, the plaintiff argues in his appeal for the first time that the court violated his constitutional rights to due process and a jury trial in rendering summary judgments in favor of the defendants. He failed to assert such a claim in the trial court and did not therefore preserve the claim at trial. The plaintiff has not acknowledged his failure to preserve the claim and has not requested that we review the claim under State v. Golding, 213 Conn. 233, 567 A.2d 823 (1989). Because this issue was not timely raised, we decline to afford it review. See State v. Barnett, 53 Conn. App. 581, 598-99, 734 A.2d 991, cert. denied, 250 Conn. 918, 738 A.2d 659 (1999).

The judgments are affirmed.

In this opinion the other judges concurred.

       This appeal stems from two libel actions that arose from the publication of articles written by Tepfer and Brown and published by the Post. Because the motions for summary judgment filed in both actions raised virtually identical arguments, the court addressed them in a single memorandum of decision.

       General Statutes § 52-593a (b) provides: “In any such case, the officer making service shall endorse under oath on such officer’s return the date of delivery of the process to such officer for service in accordance with this section.”

       General Statutes § 52-593a (a) provides in relevant part: “[A] cause or right of action shall not be lost because of the passage of the time limited by law within which the action may be brought, if the process to be served is personally delivered to a state marshal, constable or other proper officer within such time and the process is served, as provided by law, within thirty days of the delivery.”

       General Statutes § 52-597 provides: “No action for libel or slander shall be brought but within two years from the date of the act complained of.”

       See footnote 2 of this opinion.

       As the court correctly noted, once the defendant has raised the statute of limitations as a defense and has established conclusively that service was made outside the period within which an action must have been commenced, it becomes incumbent upon the plaintiff to establish that the action is saved by application of § 52-593a.

       Practice Book § 10-32 provides: “Any claim of lack of jurisdiction over the person or improper venue or insufficiency of process or insufficiency of service of process is waived if not raised by a motion to dismiss filed in the sequence provided in [other sections].”


author: PER CURIAM.

text:
    KIMBERLY ALBRIGHT-LAZZARI ET AL. v. FREEDOM OF INFORMATION COMMISSION
    (AC 33444)
    Beach, Alvord and Espinosa, Js.

      Argued March 16
    officially released June 5, 2012

      Kimberly Albright-Lazzari and Anthony Lazzari, pro se, the appellants (plaintiffs).

      Clifton A. Leonhardt, chief counsel, with whom, on the brief, was Colleen M. Murphy, general counsel, for the appellee (named defendant).

      Stephen G. Vitelli, assistant attorney general, with whom, on the brief, were George Jepsen, attorney general, and Benjamin Zivyon, assistant attorney general, for the appellee (defendant department of children and families).
   Opinion

PER CURIAM.

The plaintiffs, Kimberly Albright-Laz-zari and Anthony L. Lazzari, appeal from the judgment of the trial court dismissing their administrative appeal from the decision of the defendant, the freedom of information commission (commission). On appeal, the plaintiffs claim that the court improperly (1) determined that the commission’s dismissal of their complaint without a hearing was not a violation of their constitutional rights and (2) deferred to the commission’s conclusion that it lacked jurisdiction to determine the rights of access to records of the intervening defendant, the department of children and families (department) pertaining to child protection activities. We affirm the judgment of the trial court.

The following factual and procedural background is relevant to our consideration of the plaintiffs’ claims on appeal. By letter dated June 1, 2009, the plaintiffs sought to obtain records from the department that pertained to themselves and their minor children pursuant to the Freedom of Information Act (act), General Statutes § 1-200 et seq. Specifically, they requested “[a]ll records, reports, information, documents, files, including medical, police, school, counseling . . . and all calls made to the [department’s] hotline . . . On June 8,2009, they filed a complaint with the commission claiming that the department did not file a timely response to their request. On August 10, 2009, the department filed a motion to dismiss the plaintiffs’ complaint on the ground that the requested records were exempt from disclosure pursuant to General Statutes § 17a-28. The plaintiffs filed an objection to the motion to dismiss. The hearing officer assigned to the matter issued a report dated September 18, 2009, in which she recommended that the commission dismiss the complaint against the department without a hearing pursuant to General Statutes § 1-206 (b) (4) (A). The plaintiffs filed a response to the hearing officer’s recommendation on September 29, 2009. On October 14, 2009, the commission adopted the report of the hearing officer as its final decision, and on October 22, 2009, issued notice of the dismissal to the plaintiffs.

By complaint dated November 2, 2009, the plaintiffs challenged the commission’s decision by filing an administrative appeal with the Superior Court pursuant to the Uniform Administrative Procedure Act, General Statutes §§ 4-166 through 4-189. They claimed, inter alia, that they were entitled to the requested records and information because those documents pertained to the plaintiffs and their children. They also claimed that § 1-206 (b) (4) (A) is unconstitutional because they were deprived of their due process right to a fair hearing. On January 28, 2011, the department filed a motion to intervene, claiming that it was a necessary party to the plaintiffs’ administrative appeal. The court granted the department’s motion on January 31,2011, and a hearing was held on April 5, 2011, with all parties in attendance. The court issued its memorandum of decision on April 21, 2011, in which it concluded: (1) that the commission’s interpretation of applicable statutes that precluded the plaintiffs’ access to the department’s records through the act was “time-tested and reasonable”; and (2) that § 1-206 (b) (4) (A) is not unconstitutional. This appeal followed.

I

The plaintiffs’ first claim is that § 1-206 (b) (4) (A) is unconstitutional. Without any analysis, they claim that as applied to their case, the statutory provision violates “constitutional law and our legal rights to a due process hearing, fair hearings and fair procedures .... Because this state statute implicitly and explicitly violates the [federal and state] constitutions, and our rights, it is unconstitutional.”

We note at the outset that challenging a statute on constitutional grounds always imposes a difficult burden on the challenger. “We have consistently held that every statute is presumed to be constitutional. . . . [T]he burden is on the one attacking the legislative arrangement to negative every conceivable basis which might support it . . . .” (Citations omitted; internal quotation marks omitted.) Rayhall v. Akim Co., 263 Conn. 328, 341, 819 A.2d 803 (2003). “[T]he party attacking a validly enacted statute . . . bears the heavy burden of proving its unconstitutionality beyond a reasonable doubt . . . .” (Internal quotation marks omitted.) Neuhaus v. DeCholnoky, 83 Conn. App. 576, 590, 850 A.2d 1106 (2004), rev’d in part on other grounds, 280 Conn. 190, 905 A.2d 1135 (2006).

Other than claiming that their constitutional due process and equal protection rights have been violated by the statutory provision that allows the commission to dismiss a matter without a hearing under certain circumstances, the plaintiffs supply no analysis of their constitutional claim. It appears that they are claiming that hearings must be held in any administrative proceeding before decisions affecting an individual’s rights are made. This claim is without merit. “Inquiry into whether particular procedures are constitutionally mandated in a given instance requires adherence to the principle that due process is flexible and calls for such procedural protections as the particular situation demands. . . . There is no per se rule that an eviden-tiary hearing is required whenever a liberty [or property] interest may be affected. Due process ... is not a technical conception with a fixed content unrelated to time, place and circumstances. ... In the absence of any disputed facts pertaining to jurisdiction, a court is not obligated to hold an evidentiary hearing before dismissing an action for lack of jurisdiction.” (Internal quotation marks omitted.) West Hartford v. Murtha Cullina, LLP, 85 Conn. App. 15, 24-25, 857 A.2d 354, cert. denied, 272 Conn. 907, 863 A.2d 700 (2004).

From our review of the record, it clearly was not improper for the court to have concluded that the plaintiffs did not prove their claim that § 1-206 (b) (4) (A) is unconstitutional.

II

The plaintiffs next claim that the court improperly deferred to the commission’s conclusion that it lacked jurisdiction to determine the rights of access to records of the department pertaining to child protection activities. The commission, in its final decision, concluded that the records sought by the plaintiffs pertained to such activities and, therefore, were not subject to disclosure under the act. After referring to previous commission decisions and citing the Superior Court case of Marlow v. Freedom of Information Commission, Superior Court, judicial district of New Britain, Docket No. CV-99-0493141-S (October 12, 1999), the commission concluded that it lacked jurisdiction to determine the rights of access to department records pertaining to child protection activities and dismissed the plaintiffs’ complaint. The trial court deferred to the commission’s ruling as time-tested and reasonable.

“[JJudicial review of the commissioner’s action is governed by the Uniform Administrative Procedure Act . . . and the scope of that review is very restricted. . . . [R]eview of an administrative agency decision requires a court to determine whether there is substantial evidence in the administrative record to support the agency’s findings of basic fact and whether the conclusions drawn from those facts are reasonable. . . . Our ultimate duty is to determine, in view of all of the evidence, whether the agency, in issuing its order, acted unreasonably, arbitrarily, illegally or in abuse of its discretion. . . .
“Cases that present pure questions of law, however, traditionally invoke a broader standard of review than ordinarily is involved in deciding whether, in light of the evidence, the agency has acted unreasonably, arbitrarily, illegally or in abuse of its discretion. . . . We have determined, therefore, that we will defer to an agency’s interpretation of a statutory term only when that interpretation of the statute previously has been subjected to judicial scrutiny or to a governmental agency’s time-tested interpretation and is reasonable.” (Citations omitted; internal quotation marks omitted.) Board of Selectmen v. Freedom of Information Commission, 294 Conn. 438, 446, 984 A.2d 748 (2010).

We agree with the trial court that the commission’s inteipretation of the relevant statutes and case law was time-tested and reasonable. In its final decision, the commission cited General Statutes § 1-210 (a), which provides in relevant part: “Except as otherwise provided by any federal law or state statute, all records maintained or kept on file by any public agency . . . shall be public records” subject to inspection. (Emphasis added.) The commission also cited General Statutes § 17a-101k (a), which provides in relevant part that the “information contained in the [department’s] registry and any other information relative to child abuse . . . shall be confidential, subject to such statutes and regulations governing their use and access . . . .” The commission next cited General Statutes (Rev. to 2009) § 17a-28 (b), which provides: “Notwithstanding the provisions of the [Freedom of Information Act], records maintained by the department shall be confidential and shall not be disclosed, unless the department receives written consent from the person or as provided in this section. . . .” At the time the plaintiffs requested the records, a “person” was defined, in relevant part, as any individual named in a record maintained by the department, any individual who was the subject of a department investigation and any parent of a minor named in a record maintained by the department. See General Statutes (Rev. to 2009) § 17a-28 (a).

The plaintiffs argued that the confidentiality provisions of General Statutes (Rev. to 2009) § 17a-28 (b) applied only to third parties and not to persons who sought records that pertained to them. The commission disagreed. It noted that the department referenced several prior commission decisions that had addressed the precise issue raised by the plaintiffs and that those decisions concluded that the commission lacked jurisdiction over such matters. The commission also referred to Marlow and Groton Police Dept. v. Freedom of Information Commission, 104 Conn. App. 150, 931 A.2d 989 (2007), which were cases relied on by the department, as further support for its ruling that the plaintiffs’ complaint should be dismissed. The commission concluded that, “after examining the complaint and pleadings . . . and construing all allegations most favorably to the [plaintiffs],” the department did not violate the act because the requested records pertained to the department’s child protection activities.

The trial court deferred to the commission’s interpretation of the applicable statutes as time-tested and reasonable. The court, as did the commission, also relied in part on Marlow in reaching its decision. There is no appellate case law expressly addressing the precise issue before us. Nevertheless, in reviewing the decisions of the commission and the trial court, we also find persuasive the reasoning of the court in Marlow with respect to the applicability of the act to requests for department records pertaining to child protection activities.

In Marlow, the plaintiff sought unredacted records pursuant to the Freedom of Information Act related to any investigation of the plaintiff and his family conducted by the department. Marlow v. Freedom of Information Commission, supra, Superior Court, Docket No. CV-99-0493141-S. When the department refused to disclose the records, the plaintiff filed a complaint with the commission. The commission concluded that it lacked jurisdiction to determine rights of access under § 17a-28 to the department’s records pertaining to child protection activities. The commission accordingly dismissed the plaintiffs complaint, and the plaintiff filed an administrative appeal from that decision with the Superior Court. The court, McWeeny, J., upheld the decision of the commission. Id.

In its memorandum of decision, the court in Marlow framed the issue as a question of law involving the construction and reconciliation of § 1-210, pertaining to mandated access to public records, and § 17a-28, pertaining to the confidentiality of department records related to child protection activities. The court then reviewed principles of statutory construction, citing case law that provides that “specific terms covering the given subject matter will prevail over general language of the same or another statute which might otherwise prove controlling. . . . [I]f both [provisions] cannot apply, the particular provision will be treated as an exception to the general provision.” (Internal quotation marks omitted.) Marlow v. Freedom of Information Commission, supra, Superior Court, Docket No. CV-99-0493141-S, quoting Commission on Human Rights & Opportunities v. Truelove & Maclean, Inc., 238 Conn. 337, 358, 680 A.2d 1261 (1996).

The court in Marlow noted that the plaintiff, as the plaintiffs in the present case, did not dispute the applicability of § 17a-28 to the records at issue but argued that recourse to the act was an alternate route to access such records. The court in Marlow disagreed, stating that § 17a-28 records pertaining to child protection activities fell within the express exemption of § 1-210 (a), namely that “ ‘[e]xcept as otherwise provided by . . . state statute,’ ” certain public records must be disclosed. Marlow v. Freedom of Information Commission, supra, Superior Court, Docket No. CV-99-0493141-S. Although the general rule mandates disclosure of public records, and the enumerated exceptions are to be narrowly construed; see Perkins v. Freedom of Information Commission, 228 Conn. 158, 167, 635 A.2d 783 (1993); the court determined in Marlow that the requested records were clearly exempted from public disclosure under the act. Furthermore, as noted by Judge McWeeny, the statutory scheme of § 17a-28 set forth a specific process of review for an individual denied access to requested records. Marlow v. Freedom of Information Commission, supra, Superior Court, Docket No. CV-99-0493141-S.

We conclude that the commission properly dismissed the plaintiffs’ complaint without a hearing for the stated reason that it did not have jurisdiction to determine rights of access under § 17a-28 to the department’s records on child protection activities. For the same reason, we conclude that the trial court properly dismissed the plaintiffs’ administrative appeal from the commission’s decision.

The judgment is affirmed.

       The plaintiffs commenced this action against Colleen M. Muiphy, executive director, freedom of information commission. The department of children and families was added as a party defendant after the court granted its motion to intervene as a necessary party on January 31, 2011.

       The plaintiffs raise additional claims in their brief that have no merit, and, accordingly, we will not address them.

       General Statutes § 1-206 (b) (4) provides in relevant part: “[I]n the case of an appeal to the [freedom of information] commission of a denial by a public agency, the commission may, upon motion of such agency, confirm the action of the agency and dismiss the appeal without a hearing if it finds, after examining the notice of appeal and construing all allegations most favorably to the appellant, that (A) the agency has not violated the Freedom of Information Act . . .

       “Administrative agencies are tribunals of limited jurisdiction and their jurisdiction is dependent entirely upon the validity of the statutes vesting them with power and they cannot confer jurisdiction upon themselves. . . . [I]t is clear that an administrative body must act strictly within its statutory authority, within constitutional limitations and in a lawful manner. ... It cannot modify, abridge or otherwise change the statutory provisions, under which it acquires authority unless the statutes expressly grant it that power.” (Citations omitted; internal quotation marks omitted.) Castro v. Viera, 207 Conn. 420, 428, 541 A.2d 1216 (1988).

       General Statutes § 17a-28 was amended in 2011. Effective October 1, 2011, a “person” is now defined in relevant part as any individual named in a record maintained by the department who has received services from the department, any individual who is or was the subject of an investigation by the department and any parent of a minor named in a department record whose parental rights have not been terminated. See Public Acts 2011, No. 11-167, § 1, codified at General Statutes (Sup. 2012) § 17a-28.

       In their written opposition to the department’s motion to dismiss, the plaintiffs also argued that the language in General Statutes (Rev. to 2009) § 17a-28 (m) provided further support for their interpretation of the statutes. They made the same argument in their appellate brief and during oral argument before this court.
      General Statutes (Rev. to 2009) § 17a-28 (m) provided in relevant part: “In addition to the right of access provided in [General Statutes] section 1-210, any person . . . shall have the right of access to any records made, maintained or kept on file by the department . . . when those records pertain to or contain information or materials concerning the person seeking access thereto . . . .” (Emphasis added.) That provision also provided that the commissioner could refuse access if the commissioner determined that it would be contrary to the best interests of the person to review the records. The commissioner, in that circumstance, was required to issue the person a written statement setting forth the reasons for the refusal and advising the person of his or her right to seek judicial relief. See General Statutes (Rev. to 2009) § 17a-28 (m).
      As noted in footnote 5 of this opinion, § 17a-28 was amended in 2011. The language “[i]n addition to the right of access provided in section 1-210” was deleted from the provisions of § 17a-28 by the amendment. See Public Acts 2011, No. 11-167, § 1, codifiéd at General Statutes (Sup. 2012) § 17a-28.

       In Groton Police Dept. v. Freedom of Information Commission, supra, 104 Conn. App. 150, the mother of a minor child sought police records through the Freedom of Information Act that pertained to the police department’s investigation of the alleged sexual abuse of the child. The police department refused her request, claiming that the records were exempt from disclosure. Id., 152. The commission found that the mother could waive the confidentiality provisions of General Statutes § 17a-1011< on behalf of her minor son and found that the police department improperly had withheld the police report. The police department appealed from the commission’s decision, and the Superior Court sustained its appeal. Id., 154.
      We upheld the decision of the court. We determined that the mandate set forth in § 17a-101k with respect to the confidentiality of child abuse records controlled the resolution of the appeal. We noted that the statutes in question, §§ 1-210 and 17a-101k, “although overlapping in some respects, afford different protection from disclosure to different classes of persons.” Id., 159. We concluded: “In our view, § 17a-101k falls within the opening sentence of § 1-210 (a), which provides in relevant part that ‘[e]xcept as otherwise provided by any federal law or state statute, all records maintained or kept on file by any public agency . . . shall be public records . . . General Statutes § 1-210 (a). In other words, because § 17a-101k mandates confidentiality of information regarding child abuse, records of child abuse, wherever located, are exempted from the general rule of disclosure.” Id., 160.
      Although the present case is in a different procedural posture because the plaintiff requested the records directly from the department, it is important to note that the parent of a minor child is not unequivocally entitled to confidential records pertaining to that child.

       Judge McWeeny also emphasized that “not all [department] records are exempt from [the act] under § 17a-28. . . . [Department] records that do not pertain to child protection activities are subject to disclosure under [the act].” Marlow v. Freedom of Information Commission, supra, Superior Court, Docket No. CV-99-0493141-S; see Dept. of Children & Families v. Freedom of Information Commission, 48 Conn. App. 467, 710 A.2d 1378, cert. denied, 245 Conn. 911, 718 A.2d 16 (1998).