author: ALVORD, J.

text:
    IN RE CHRISTOPHER G.

    (AC 30672)
    Gruendel, Beach and Alvord, Js.

      Argued October 21
    officially released December 22, 2009

      Nicholas J. Adamucci, for the appellant (respondent mother)

      John E. Tucker, assistant attorney general, with whom, on the brief, were Richard Blumenthal, attorney general, and Susan T. Pearlman, assistant attorney general, for the appellee (petitioner).

      Theodore L. Freedman, guardian ad litem for the minor child.

      David Carron, for the minor child.

       In accordance with the spirit and intent of General Statutes § 46b-142 (b) and Practice Book § 79-3, the names of the parties involved in this appeal are not disclosed. The records and papers of this case shall be open for inspection only to persons having a proper interest therein and upon order of the Appellate Court.

   Opinion

ALVORD, J.

The respondent mother appeals from the denial of her motion to open the judgment of voluntary termination other parental rights as to her minor child, Christopher, rendered pursuant to General Statutes § 17a-112 (i). We affirm the judgment of the trial court.

The following facts and procedural history are relevant to the respondent’s appeal. The child was bom on December 25, 1997. He was adjudicated neglected and uncared for in October, 2003, and placed under protective supervision. The respondent’s ability to parent the child did not improve, and, in 2004, the petitioner, the commissioner of children and families, was granted temporary custody of the child. After spending one month in a safe house, the child was placed with the B family. With the exception of a brief reunification with the respondent, he lived with the B family for approximately two years. In May, 2006, he was removed from the care of the B family and placed in the New York home of the respondent’s uncle and aunt. All parties hoped that the respondent’s uncle and aunt would eventually adopt the child, and the department of children and families (department) worked to facilitate this process. On November 21, 2007, the respondent presented the court with a written affidavit of consent to the termination of her parental rights.

The court canvassed the respondent and found by clear and convincing evidence that her consent was knowing and voluntary. It also found that termination was in the child’s best interest. However, before the court rendered a judgment of termination it was informed by the respondent’s attorney, Joseph Mulvey, that the respondent and the preadoptive family had discussed entering into an open adoption agreement. The proposed agreement provided for continuing visitation and contact between the respondent and the child should the adoption of the child by the respondent’s uncle and aunt be finalized. It was not sanctioned by the court or the department. Furthermore, it was never intended to be incorporated into the judgment of termination.

The respondent’s attorney informed the court that the agreement had been signed by the respondent and faxed to the preadoptive family but that the respondent’s aunt and uncle had not yet returned a signed copy. He stated that he did not foresee a problem obtaining the preadoptive family’s signature. The court terminated the respondent’s parental rights without objection. It stipulated that it would entertain a motion to open the judgment of termination filed on or before December 10, 2007, if the respondent’s uncle and aunt failed to enter into the proposed open adoption agreement.

On December 12, 2007, the respondent filed a motion for an emergency hearing to address, in part, the failure of her aunt and uncle to return the signed open adoption agreement. On December 26, 2007, the court held a hearing on the motion. It noted that the respondent’s motion was filed two days after the December 10, 2007 deadline but indicated that it would nonetheless consider a motion to open should the respondent choose to make one. The respondent, however, did not move the court to open the judgment of termination or request any other relief. Consequently, the court entered no new orders at the end of the hearing. Despite their withdrawal as adoptive resources, the respondent’s uncle and aunt allowed the child to remain in their care until the end of the school year. In June, 2008, the child was returned to the care of the B family. He transitioned well, and the B family was found to be willing and eager to adopt him.

On October 2, 2008, the respondent filed an amended motion to open or set aside the judgment of termination pursuant to General Statutes § 45a-719, alleging that her consent was the product of mutual a mistake. She claimed that her consent to the termination of her parental rights was contingent on the child’s adoption by her uncle and aunt. She argued that she would not have agreed to the termination if she had known that the adoption would not be consummated and claimed that her mistake was shared by the petitioner. The court heard evidence on the motion on October 23, 2008, and allowed the parties additional time to brief the matter. On December 17, 2008, it denied the respondent’s motion. It found that the failure of the proposed adoption was a known possibility; the respondent’s consent was knowing and voluntary; and even if the respondent had been mistaken, the mistake was not mutually held by the department. This appeal followed.

“In an appeal from a denial of a motion to open a judgment, our review is limited to the issue of whether the trial court has acted unreasonably and in clear abuse of its discretion. ... In determining whether the trial court abused its discretion, this court must make every reasonable presumption in favor of [the trial court’s] action. . . . The manner in which [the court’s] discretion is exercised will not be disturbed so long as the court could reasonably conclude as it did.” (Internal quotation marks omitted.) In re Ilyssa G., 105 Conn. App. 41, 45, 936 A.2d 674 (2007), cert. denied, 285 Conn. 918, 943 A.2d 475 (2008).

“A mutual mistake is one that is common to both parties and effects a result that neither intended. . . . Whether there has been such mistake is a question of fact.” (Citation omitted.) Inland Wetlands & Watercourses Agency v. Landmark Investment Group, Inc., 218 Conn. 703, 708, 590 A.2d 968 (1991). “[T]he trial court’s findings are binding upon this court unless they are clearly erroneous in light of the evidence .... A finding of fact is clearly erroneous when there is no evidence in the record to support it ... or when although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed.” (Internal quotation marks omitted.) In re Travis R., 80 Conn. App. 777, 784, 838 A.2d 1000, cert. denied, 268 Conn. 904, 845 A.2d 409 (2004).

The record contains ample support for the court’s determination that the respondent’s consent was not the result of a mutual mistake. The court canvassed the respondent at length during the November 21, 2007 termination hearing to ascertain whether her consent to the termination was knowing and voluntary. In response, the respondent acknowledged that she (1) was not under the influence of alcohol, drugs or any prescription medication that would impair her ability to understand the termination proceeding; (2) had the opportunity to talk to her attorney about the termination proceeding and was satisfied with his advice and counsel; (3) understood that the termination enabled the child to be adopted; and (4) understood that she was relinquishing all legal rights and responsibilities for the child, including her right to make decisions and to receive benefits on his behalf, her right to care for him, and her right to custody, guardianship and control over him. The respondent confirmed that her decision to terminate her parental rights was voluntary and free from force or threat and acknowledged that she understood her consent could not be withdrawn once it was accepted by the court.

The court also questioned the respondent regarding her understanding of the open adoption agreement she had signed. She affirmed that she had the opportunity to review the agreement with her attorney, understood its terms and found it to be fair and reasonable. Likewise, the respondent’s attorney confirmed that he had reviewed each page of the agreement with the respondent before she signed it and verified that she entered the agreement freely.

Although the parties may have anticipated an adoption by the respondent’s uncle and aunt, the record does not support the respondent’s argument that her consent was dependent on such adoption. The agreement itself provides: “[A]ll parties agree that the termination of parental rights judgment cannot be reopened for breach of this agreement,” and “[t]he birth mother acknowledges that the termination of parental rights ... is irrevocable, even if the intended adoptive parent(s) do not abide by the terms of the [open adoption agreement].” It also states; “The intended adoptive parent(s) and birth mother acknowledge that [the department] is not a party to this [agreement and that [the department] has no obligation under any part of this [agreement. . . . The intended adoptive parent(s) and birth parent acknowledge that this is a private, legally binding contract between themselves, of which [the department] did not expressly nor implicitly approve. Similarly all parties understand the Connecticut judicial system did not expressly nor implicitly approve of this agreement.”

Finally, there is no evidence that the mistake was mutual as to the petitioner. Despite its preference for the respondent’s uncle and aunt as an adoptive resource for the child, the respondent’s caseworker was careful to caution her that no guarantees could be made that an adoption by her uncle and aunt would ever be consummated. Because the record contains considerable support for the court’s findings, we conclude that the court did not abuse its discretion when it denied the respondent’s motion to open.

The judgment is affirmed.

In this opinion the other judges concurred.

       The parental rights of the child’s father were terminated by default in the same proceeding. The father has not appealed. We therefore refer to the respondent mother as the respondent in this opinion.

       General Statutes § 17a-112 (i) provides in relevant part: “The Superior Court upon hearing and notice . . . may grant a petition for termination of parental rights based on consent filed pursuant to this section if it finds that (1) upon clear and convincing evidence, the termination is in the best interest of the child, and (2) such parent has voluntarily and knowingly consented to termination of the parent’s parental rights with respect to such child.”

       The petition for termination filed on August 3, 2007, by the petitioner, the commissioner of children and families, alleges neglect, physical abuse and domestic violence. It also indicates that the respondent had a history of debilitating epileptic and psychosomatic seizures that rendered her unable to supervise and to provide for the child.

       In July, 2005, the child was reunited with the respondent. Soon after, she indicated that she was unable to care for him and voluntarily returned him to the care of the petitioner. He was returned to the B family in September, 2005.

       A department of children and families social worker testified that, when possible, preference is given to biological relatives as adoptive resources.

       A genetic parent may contract with adopting parents, prior to the adoption, for the continued right to visit the adopted child so long as visitation continues to be in the best interest of the child. See Michaud v. Wawruck, 209 Conn. 407, 551 A.2d 738 (1988). Such agreements are often referred to as “open adoption agreements.” Id., 412.

       The respondent’s uncle and aunt withdrew as an adoptive resource on the evening of November 21, 2007. The respondent became aware of her uncle’s and aunt’s withdrawal approximately one week after the termination proceeding, on November 28, 2007.

       General Statutes § 45a-719 provides in relevant part: “The court may grant a motion to open or set aside a judgment terminating parental rights . . . pursuant to common law . . . provided the court shall consider the best interest of the child, except that no such motion or petition may be granted if a final decree of adoption has been issued prior to the filing of any such motion or petition. ...” A common-law motion to open must be predicated on fraud, duress or mutual mistake. See In re Travis R., 80 Conn. App. 777, 781 n.5, 838 A.2d 1000, cert. denied, 268 Conn. 904, 845 A.2d 409 (2004).

       The respondent asserted for the first time during the October 23, 2008 hearing that she never read or reviewed in their entirety with her attorney either the written affidavit of consent or the open adoption agreement. The court found that the respondent’s assertion was not credible. In light of the foregoing, the court’s finding is well supported.

       “General Statutes § 45a-719 requires the court to consider the best interest of the child when ruling on a motion to open a judgment terminating parental rights.” In re Ilyssa G., supra, 105 Conn. App. 49 n.7. However, if a respondent does not meet the initial threshold to open a judgment, then the court is not required to undertake a best interest of the child analysis. Id.


source: Caselaw Access Project

author: HARPER, J.

license: Public Domain

text:
    ARTHUR E. SCOTT, JR., EXECUTOR (ESTATE OF BARBARA H. SCOTT) v. MARK M. HEINONEN
    (AC 30438)
    Bishop, Gruendel and Harper, Js.
    Argued September 25
    officially released December 29, 2009

      John D. Tower, for the appellant (plaintiff).

      Francis G. Pennarola, for the appellee (defendant).
   Opinion

HARPER, J.

The issue in this appeal is whether the executor of an estate, who has been authorized to market certain real property of a decedent to satisfy the financial obligations of the decedent’s estate, has the power to evict an occupant to whom the property has specifically been devised by the will of the decedent. The plaintiff, Arthur E. Scott, Jr., executor of the estate of Barbara H. Scott (decedent), appeals from the trial court’s judgment of possession in a summary process action in favor of the defendant, Mark M. Heinonen. On appeal, the plaintiff claims that the trial court improperly concluded that he does not have the power to evict the defendant, who is occupying certain real property that the plaintiff has been authorized by the Probate Court to market for sale. We agree with the plaintiff and conclude that he was entitled to summary process as a matter of law. Accordingly, the judgment is reversed, and the case is remanded to the trial court with direction to render judgment in favor of the plaintiff.

The following facts and procedural history are taken from the record and the decision of the court. The decedent, who was the mother of the defendant, died on December 1, 2006. Prior to her death, the decedent owned certain real property located in Sherman. The property has two residences — a main house and a cottage. The cottage typically was rented out by the decedent for extra income. Shortly before her death, however, the decedent moved into the cottage with her husband, the plaintiff. At the time of the decedent’s death, the defendant lived in the main house on the property and, as of the date of the court’s judgment, continued to reside there without paying rent, real estate taxes or insurance premiums for the property.

Prior to her death, the decedent executed a last will and testament. In her will, the decedent named the plaintiff as executor of her estate. The decedent also devised her interest in the property to the defendant and his brother, Karl P. Heinonen, in equal shares.

On August 23, 2007, the plaintiff submitted a petition to market and to sell the property to satisfy creditor claims against the estate and administration expenses. On October 2, 2007, the Probate Court for the district of New Fairfield, DeFeo, J., granted the plaintiffs petition to market the property. Thereafter, the plaintiff served the defendant with a notice to quit possession of the premises by February 20, 2008. On April 4, 2008, the plaintiff filed a complaint in the Superior Court, in which he alleged that the defendant has no right or privilege to occupy the property and requested an order for summary process to evict the defendant. In a memorandum of decision filed October 10, 2008, the court, Reynolds, J., found that “[the plaintiff] has tried to market and sell [the property] pursuant to the Probate Court order so that he can pay the debts of the estate and divide the proceeds pursuant to the will. The defendant will not allow a real estate sign to be placed on the property because that could embarrass his children. He will not give the plaintiff access to the house because he does not want the house shown when his children may be home alone.” The court also found that the plaintiff has the power of possession and control to satisfy the debts of the estate by marketing the property. Despite these findings, the court concluded that the plaintiff does not have the power to evict the defendant “without a contract of sale or further order of the Probate Court . . . .”

The facts, as found by the court, are not in dispute. The parties’ disagreement centers on the court’s interpretation of relevant statutes. Resolution of this issue requires us to examine our statutes governing summary process as well as those governing the custody and management of real property following the death of an owner. In doing so, we rely on well established principles of statutory construction. “In construing [astatute], we are mindful of General Statutes § l-2z, which instructs us that [o]ur fundamental objective is to ascertain and give effect to the apparent intent of the legislature. ... In seeking to determine that [intent and the meaning of a statute] ... § l-2z directs us first to consider the text of the statute itself and its relationship to other statutes. If, after examining such text and considering such relationship, the meaning of such text is plain and unambiguous and does not yield absurd or unworkable results, extratextual evidence of the meaning of the statute shall not be considered. . . . When a statute is not plain and unambiguous, we also look for interpretive guidance to the legislative history and circumstances surrounding its enactment, to the legislative policy it was designed to implement, and to its relationship to existing legislation and common law principles governing the same general subject matter. . . . The test to determine ambiguity is whether the statute, when read in context, is susceptible to more than one reasonable interpretation.” (Internal quotation marks omitted.) State v. Rupar, 293 Conn. 489, 505-506, 978 A.2d 502 (2009).

On appeal, the plaintiff claims that the court improperly concluded that he lacks the power to evict the defendant. The defendant concedes that, were he simply “a stranger or a tenant,” then the plaintiff, as executor of the estate, would have the authority to evict him. The defendant argues that because the property was specifically devised to him in the decedent’s will, the plaintiff lacks the power to evict him without a specific order of the Probate Court, granting the plaintiff possession or a contract of sale for the property.

This appeal, therefore, lies at the intersection of our laws and jurisprudence governing summary process and the custody of real property following the death of an owner. Our statute governing summary process trials, General Statutes § 47a-26d, is clear: when a defendant (1) has ho right or privilege to occupy real property, (2) has been properly served with notice to quit possession or occupancy, (3) did not have title to the property at the time notice to quit was served on him and (4) continues to possess or to occupy the property, the court will render judgment in favor of the plaintiff. In the present case, it is undisputed that the defendant continues to possess and to occupy the property. Therefore, we must determine (1) whether the order of the Probate Court extinguished the defendant’s title, as a devisee, in the property and (2) whether the plaintiff, as executor of the estate, has the power to serve the defendant with notice to quit and to evict him. In part I, we conclude that the defendant does not currently hold title to the property, nor did he hold title at the time notice to quit was served on him. In part II, we conclude that the plaintiff, in his fiduciary capacity as executor of the estate, was authorized to serve the defendant with notice to quit and has the power to evict the defendant. As such, it is our determination that the plaintiff is entitled to summary process as a matter of law.

I

The facts of the present case are unique because the defendant was already residing on the property prior to the decedent’s death and has continued to occupy the property afterward. The plaintiff, therefore, has not brought an action to quiet title but, instead, has brought an action for summary process in an effort to evict the defendant and to eject him from property that he previously has occupied peaceably. It is axiomatic that a defendant cannot be evicted from property if he either currently has a right or privilege to occupy the property or had title to the property at the time notice to quit was served on him. Therefore, the first issue we must address is if and when the defendant’s rights in the property were extinguished.

After a careful review of the language of the relevant statutes in conjunction with our case law, we do not find any support for the defendant’s contention that, following an order by the Probate Court authorizing an executor to market a decedent’s real property so as to satisfy the debts of the estate, a specific devisee maintains any interest in the property that would serve to prevent an action for summary process against him. General Statutes § 45a-428 (a) provides that when the estate of a deceased person is either (1) insolvent or (2) solvent but with no assets from which debts, taxes and administration charges against the estate may be paid other than real property that has either been specifically devised or is forbidden by the terms of a will from being sold or mortgaged, the Probate Court is authorized to order the sale of the decedent’s real property. See Zanoni v. Lynch, 79 Conn. App. 309, 318-20, 830 A.2d 304, cert. denied, 266 Conn. 929, 837 A.2d 804 (2003). In the present case, there are debts against the decedent’s estate. Further, it is uncontested that the Probate Court properly authorized the plaintiff to market the property for sale to satisfy these debts.

Although “[i]t is fundamental jurisprudence that title to real property vests immediately at death in a deceased’s heirs, or in devisees upon the admission of the will to probate”; Cardillo v. Cardillo, 27 Conn. App. 208, 212, 605 A.2d 576 (1992); such title is not absolute. Zanoni v. Lynch, supra, 79 Conn. App. 322. General Statutes § 45a-321 governs the custody of real property following an owner’s death. Our Supreme Court has held, pursuant to this statutory framework, that the title of an heir or specific devisee is “defeated should it be necessary for the administration of the estate that [the real property] be sold by order of the court, and subject to the right of the administrator to have possession, care and control of it during the settlement of the estate, unless the probate court shall otherwise order.” (Internal quotation marks omitted.) O’Connor v. Chiascione, 130 Conn. 304, 306, 33 A.2d 336 (1943). Thus, “the fiduciary of a decedent’s estate possesses a limited statutory right to interfere with the passage of title to a devisee. Upon the death of a testator, the title to the real property devised in his will vests in the devisees, subject to the control of the court and possession of the executor during administration. . . . [U]nder the conditions and for the purposes prescribed by statute, as where the personal property is insufficient to pay the debts of the decedent’s estate, his real property and interests therein may be regarded as assets to which his personal representatives may resort.” (Citation omitted; internal quotation marks omitted.) Zanoni v. Lynch, supra, 321.

Given this precedent, a central question we must resolve in our determination of the appeal at hand is at what point, after an executor is authorized to market specifically devised property for sale so as to satisfy the debts of an estate, a devisee’s title and interest in such property is extinguished. The defendant argues that he retains a superior interest in the decedent’s real property until such time that the plaintiff enters a contract of sale on behalf of the estate or the Probate Court orders him to vacate the property. We disagree. “In construing a statute, common sense must be used, and courts will assume that the legislature intended to accomplish a reasonable and rational result.” (Internal quotation marks omitted.) King v. Board of Education, 203 Conn. 324, 332-33, 524 A.2d 1131 (1987). Our legislature has granted the Probate Court the power to authorize the sale of specifically devised property to satisfy the debts of an estate. Common sense dictates that inherent in such an order is a right to immediate possession and control of such property by the administrator of the estate to make the property marketable. Cf. LaFlamme v. Dallessio, 261 Conn. 247, 259, 802 A.2d 63 (2002) (noting that in O’Connor, the Supreme Court interpreted the precursor to § 45a-321 [a] as giving executors and administrators power of possession, care and control over decedent’s real property during administration of estate). If we were to accept the defendant’s argument, we would create an entirely illogical precedent under which any time specifically devised real property was authorized by the Probate Court to be sold, pursuant to § 45a-428, a specific devisee could occupy the real property and frustrate or prevent the executor from exercising his statutory powers. We agree with the plaintiff that such a result would provide specific devisees with an incentive to obstruct an executor’s efforts to sell property because the devisee could take exclusive possession without any of the responsibilities attendant to ownership.

“[W]hen an administrator takes possession of his or her decedent’s real estate such possession relates back to the time of [the] decedent’s death. . . . Accordingly, in such a case the devisees are deemed never to have taken title and, consequently, an executor exercising his power to transfer property does not transfer the title from the devisees, but from the estate.” (Citation omitted; emphasis added; internal quotation marks omitted.) Stepney Pond Estates, Ltd. v. Monroe, 260 Conn. 406, 433 n.28, 797 A.2d 494 (2002). Because the court found it necessary for the plaintiff to have possession and control of the property to market it for sale in compliance with the order of the Probate Court, we conclude that any interest or title in the property to which the defendant would have otherwise been entitled was terminated upon the issuance of the order to market the property for sale by the Probate Court and in fact never came into being; legal title to the property belongs to the estate. See id.

II

The remaining inquiry for us is whether the plaintiff has satisfied the jurisdictional requirement for a summary process action. A party seeking summary process must allege and prove ownership, or that it acts as the legal representative of an owner, of the subject property and assert a demand for possession in the form of a notice to quit. Service of proper notice to quit is a condition precedent to the Superior Court’s having jurisdiction over a summary process action. See Lampasona v. Jacobs, 209 Conn. 724, 728-29, 553 A.2d 175, cert. denied, 492 U.S. 919, 109 S. Ct. 3244, 106 L. Ed. 2d 590 (1989). Although we agree with the finding of the court that it had jurisdiction to hear the plaintiffs action for summary process, we disagree with the court’s determination that the executor is a beneficial owner of the property; we conclude that it is through the executor’s fiduciary power as the legal representative of the estate that he is able to maintain an action for summary process.

General Statutes § 47a-23 (a) provides in relevant part: “When the owner or lessor, or the owner’s or lessor’s legal representative . . . desires to obtain possession or occupancy of any land or building [and] (3) when one originally had the right or privilege to occupy such premises but such right or privilege has terminated . . . such owner or lessor, or such owner’s or lessor’s legal representative . . . shall give notice to each lessee or occupant to quit possession or occupancy . . . .” (Emphasis added.) The statutory definition of “owner” is set forth in General Statutes § 47a-l (e): “ ‘Owner’ means one ... in whom is vested (1) all or part of the legal title to property or (2) all or part of the beneficial ownership and a right to present use and enjoyment of the premises . . . .”

We conclude that the plaintiff, as the legal representative of the owner estate, is in compliance with the provisions of § 47a-23 (a) (3), and, therefore, this summary process action was properly before the Superior Court. As executor, the plaintiff acts as the fiduciary and legal representative of the estate, which in turn holds legal title to the property and, therefore, maintains ownership. As such, we conclude that because legal title to the property rests with the estate of the decedent, it is well within the executor’s power, under his statutory and fiduciary duty to manage the decedent’s real property, to maintain a summary process action on behalf of the estate.

Ill

CONCLUSION

The plaintiff was a proper party, capable of bringing an action for summary process. The court found that the plaintiff served the defendant with proper notice to quit possession, satisfying the jurisdictional requirement. The defendant has failed to do so and continues to occupy the property. The Probate Court granted the plaintiffs request to market the property for sale. As we stated previously, the effect of the order of the Probate Court was to grant to the plaintiff, as executor, the right to possess and to control the property so as to make it marketable. Ergo, because the plaintiff as executor is entitled to possession and control of the property, the specific devisees are deemed never to have taken title. See Stepney Pond Estates, Ltd. v. Monroe, supra, 260 Conn. 433 n.28. Thus, the defendant does not hold title to the property, nor did he hold such title at the time he was served with notice to quit possession. As such, the plaintiff is entitled to summary process as a matter of law.

The judgment is reversed and the case is remanded with direction to render judgment in favor of the plaintiff.

In this opinion the other judges concurred.

       The order of the Probate Court reads in relevant part: “The application to market the property is and shall be granted. The fiduciary shall submit to the court a copy of a fully executed contract of sale when such contract has been so executed, so that the notice and hearing on approval of sale can be accomplished.”

       Specifically, General Statutes § 47a-26d provides in relevant part that if “the defendant is the occupant of such premises and has no right or privilege to occupy the same and that notice to quit has been given . . . yet . . . the defendant holds possession or occupancy after the expiration of the time specified in such notice to quit . . . and . . . the defendant does not show a title in himself existing at the time the notice to quit possession or occupancy was served upon him, the court shall forthwith enter judgment that the complainant recover possession or occupancy of the premises with his costs . . . By the plain language of the statute, if the aforementioned criteria are satisfied, the owner of property is entitled to summary process as a matter of law.

       The defendant does not challenge the propriety of the Probate Court’s order authorizing the plaintiff to market the property for sale.

       In O’Connor, our Supreme Court was applying an earlier version of § 45a-321, General Statutes (1930 Rev.) § 4956. Although the statute has been revised slightly, the sum and substance of that earlier revision remains materially intact.

       The defendant is not claiming relief under General Statutes § 45a-321 (b), which provides that “[t]he family of the decedent shall be allowed to remain in the dwelling house occupied by him at the time of his death, and may occupy such land and buildings connected therewith as the court considers necessary for their convenience and comfort until the same is sold, distributed or otherwise disposed of according to law.” Nonetheless, we note that this enactment applies to members of the decedent’s household, related to the decedent by blood or marriage, who were dependent on the decedent. See Hall v. Meriden Trust & Safe Deposit Co., 103 Conn. 226, 236, 130 A. 157 (1925).

       In its jurisdictional findings, the court determined that this matter was properly before it because the plaintiff is entitled to beneficial ownership of the property, bringing him within the definition of “owner” provided by General Statutes § 47a-l (e) (“owner” includes one in whom is vested “all or part of the beneficial ownership and a right to present use and enjoyment of the premises”). The court concluded that the term beneficial ownership, in property law, “means such a right to its enjoyment as exists where the legal title is in one person and the right to such beneficial use or interest is in another, and where such right is recognized by law, and can be enforced by the courts, at the suit of such owner or of some one in his behalf. . . . An administrator or executrix has no such right to enjoyment of real property of the decedent where the property is not necessary to satisfy claims against the estate.” (Internal quotation marks omitted.) The court then reasoned that “since the plaintiff has alleged that the property involved is needed to satisfy claims against the estate, the action is properly before this court.”
      We disagree with the court’s characterization of the executor as the statutory owner of the property under § 47a-l (e). Although we agree that a person may establish beneficial ownership when they have the right to “beneficial use” of or a “beneficial interest” in real property, we must disagree with the implication that an executor, by virtue of an order authorizing him to sell estate property, becomes entitled to any beneficial use of or beneficial interest in the property that would thereby make him the owner

        of the property. “Beneficial use” has been defined as “[t]he right to use and enjoy property according to one’s own liking or so as to derive a profit or benefit from it, including all that makes it desirable or habitable, as light, air, and access; as distinguished from a mere right of occupancy or possession.” Black’s Law Dictionary (6th Ed. 1990). “Beneficial interest” has been defined as: “Profit, benefit, or advantage resulting from a contract, or the ownership of an estate as distinct from legal ownership or control. When considered as designation of character of an estate, is such an interest, as a devisee, legatee, or donee takes solely for his own use or benefit, and not a.s holder of title for use and benefit of another.” (Emphasis added.) Id.
      Thus, absent some other interest in estate property separate from those incidental to his duties as a fiduciary, an executor cannot establish beneficial ownership because he will not, as a result of his duties as executor, gain the right to use and to enjoy property according to his own liking or so as to derive a profit, benefit or advantage from the property for himself. The plaintiff is able to maintain his action for summary process not because he personally is an owner of the property as defined by § 47a-1 (e), but, rather, because he is acting on behalf and as the legal representative of the estate, which is Ihe legal owner of the property. See General Statutes § 47a-23 (a) (owner’s legal representative authorized to give notice to quit possession or occupancy).

       Article IX of the decedent’s will is entitled “POWERS OF EXECUTOR AND TRUSTEE” and provides: “[The decedent’s] Executor and Trustee, and each successor, shall have all the powers provided in Connecticut General Statutes [§] 45a-234 . . . .” The afore-referenced section of the General Statutes falls within the Fiduciary Powers Act, General Statutes § 45a-233 et seq., and enumerates the statutory powers of estate executors. General Statutes § 45a-234 (25) (A) grants executors the power “[to] improve, manage, protect, develop, acquire and make additions to, exchange, and abandon real property or any interest therein . . . .”


author: DiPENTIMA, J.

text:
    STATE OF CONNECTICUT v. MARCELINO S.

    (AC 29902)
    DiPentima, Gruendel and Alvord, Js.

      Argued October 20
    officially released December 29, 2009

      Carlos E. Caudal, special public defender, for the appellant (defendant).

      Robin S. Schwartz, special assistant state’s attorney, with whom, on the brief, were Michael Dearington, state’s attorney, and Marc G. Ramia, assistant state’s attorney, for the appellee (state).

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

   Opinion

DiPENTIMA, J.

The defendant, Marcelino S., appeals from the judgment of conviction, rendered after a jury trial, of risk of injury to a child in violation of General Statutes § 53-21 (a) (2) and sexual assault in the fourth degree in violation of General Statutes (Rev. to 2003) § 53a-73a (a) (1) (A). On appeal, the defendant claims that (1) his conviction violated the constitutional prohibition against double jeopardy, (2) the information charging him with risk of injury to a child and sexual assault in the fourth degree was duplicitous, and (3) the court improperly limited cross-examination of the victim’s mother in violation of his sixth amendment rights. We disagree and, accordingly, affirm the judgment of conviction.

The jury reasonably could have found the following facts. In 2000, the defendant began a relationship with M and they married in 2002. The defendant moved into M’s home, where her child, K, from a previous relationship, resided. K was bom in 1994. Between August, 2003 and April, 2005, the defendant watched K while M was out of the home. On numerous occasions, the defendant touched K’s chest, vagina and buttocks in a sexual manner. These contacts occurred over K’s clothes. Following an investigation, the defendant was arrested and charged in a long form information dated December 17, 2007. After a jury trial, the defendant was convicted of risk of injury to a child and sexual assault in the fourth degree. The court sentenced the defendant to twenty years incarceration, suspended after twelve years, and fifteen years of probation with special conditions. This appeal followed. Additional facts will be set forth as necessary.

I

The defendant first claims that his conviction violated the constitutional prohibition against double jeopardy. Specifically, he argues that, as a result of his conviction of risk of injury to a child and sexual assault in the fourth degree, he has received multiple punishments for the same offense. We disagree.

This claim is controlled by a recent decision from our Supreme Court. In State v. Alvaro F., 291 Conn. 1, 11-16, 966 A.2d 712, cert. denied, 558 U.S. 882, 130, S. Ct. 200, 175 L. Ed. 2d 140 (2009), the court held that a conviction for violation of § 53-21 (a) (2) and § 53a-73 (a) (1) (A) does not violate double jeopardy. Id. Specifically, it concluded that each of those crimes requires proof of a fact that the other does not and that the legislature did not intend to prohibit multiple punishments for the conduct underlying the two charges. Id. Absent any effort by the defendant to distinguish the present case from Alvaro F., we conclude that, on the basis of this controlling precedent from our Supreme Court, the defendant’s double jeopardy claim must fail.

II

The defendant next claims that the information charging him with sexual assault in the fourth degree and risk of injury to a child was impermissibly duplicitous. Specifically, he argues that he was prejudiced by the information because of a lack of notice and the “real possibility” that the members of the jury did not agree unanimously on the specific actus reus constituting the basis for each criminal offense. We are not persuaded.

The state’s long form information, dated December 17, 2007, stated in relevant part: “In the Superior Court of Connecticut, Judicial District of New Haven . . . [the assistant state’s attorney] accuses the defendant ... of Risk of Injury to a Minor, and charges that on divers dates, between August 2003 and April 2005 . . . the defendant . . . had contact with the intimate parts of a child under the age of sixteen, to wit: a minor . . . child ... in a sexual and indecent manner likely to impair the health and morals of such child, in violation of subsection (2) of subsection (a) of section 53-21 of the Connecticut General Statutes. . . .

“[The assistant state’s attorney] further accuses the defendant ... of Sexual Assault in the Fourth Degree, and charges that on divers dates, between August 2003 and April 2005 . . . the defendant . . . intentionally subjected another person to sexual contact who was under fifteen years of age, to wit: a minor . . . child ... in violation of subsection (A) of subsection (1) of subsection (a) of section 53a-73a of the Connecticut General Statutes.” (Emphasis added.)

At the outset, we note that the defendant filed no request for a bill of particulars. “The purpose of a bill of particulars is to inform the defendant of the charges against him with sufficient precision to enable him to prepare his defense and avoid prejudicial surprise. . . . A bill of particulars limits the state to proving that the defendant has committed the offense in substantially the manner described.” (Internal quotation marks omitted.) State v. Reynolds, 264 Conn. 1, 155, 836 A.2d 224 (2003), cert. denied, 541 U.S. 908, 124 S. Ct. 1614, 158 L. Ed. 2d 254 (2004).

The defendant’s argument is that he was deprived of his right to have the jury unanimously agree on the actus reus underlying his conviction of risk of injury to a child and sexual assault in the fourth degree. He requests review of this unpreserved claim pursuant to State v. Golding, 213 Conn. 233, 239-40, 567 A.2d 823 (1989). “Under the familiar principle established in Golding, a defendant can prevail on an unpreserved claim of constitutional error only if each of four conditions is met: (1) the record is adequate to review the alleged claim of error; (2) the claim is of constitutional magnitude alleging the violation of a fundamental right; (3) the alleged constitutional violation clearly exists and clearly deprived the defendant of a fair trial; and (4) if subject to harmless error analysis, the state has failed to demonstrate harmlessness of the alleged constitutional violation beyond a reasonable doubt. ” (Internal quotation marks omitted.) State v. Bereis, 117 Conn. App. 360, 370-71, 978 A.2d 1122 (2009).

We agree with the defendant that the record is adequate for review. Additionally, the defendant’s claim is of constitutional magnitude. See State v. Suggs, 209 Conn. 733, 759-60, 553 A.2d 1110 (1989); see also State v. Bailey, 82 Conn. App. 1, 5, 842 A.2d 590, cert. denied, 269 Conn. 913, 852 A.2d 744 (2004). We conclude, however, that the defendant’s claim fails under the third prong of Golding.

“Duplicity occurs when two or more offenses are charged in a single count of the accusatory instrument.” (Internal quotation marks omitted.) State v. Browne, 84 Conn. App. 351, 381, 854 A.2d 13, cert. denied, 271 Conn. 931, 859 A.2d 930 (2004). “It is now generally recognized that [a] single count is not duplicitous merely because it contains several allegations that could have been stated as separate offenses. . . . Rather, such a count is only duplicitous where the policy considerations underlying the doctrine are implicated. . . . These [considerations] include avoiding the uncertainty of whether a general verdict of guilty conceals a finding of guilty as to one crime and a finding of not guilty as to another, avoiding the risk that the jurors may not have been unanimous as to any one of the crimes charged, assuring the defendant adequate notice, providing the basis for appropriate sentencing, and protecting against double jeopardy in a subsequent prosecution.” (Citations omitted; internal quotation marks omitted.) State v. Saraceno, 15 Conn. App. 222, 228-29, 545 A.2d 1116, cert. denied, 209 Conn. 823, 824, 552 A.2d 431, 432 (1988); see also State v. Browne, supra, 381. The defendant has limited his claim on appeal to the issues of the lack of unanimity and notice.

Our decision in Saraceno is instructive as to the defendant’s claim in the present appeal. In that case, the defendant was charged with multiple counts of sexual assault in the second degree and risk of injury to a child. State v. Saraceno, supra, 15 Conn. App. 224. He claimed on appeal, inter alia, that he was prejudiced by a duplicitous information. Id., 228. With respect to the concern of the possible lack of unanimity of the jury under the information and the evidence, we stated: “While we are ever mindful that the defendant is entitled to be protected against the danger that ... he will be convicted not on the basis of one unanimous verdict on a single set of facts but under juror votes of conviction which, depending on the particular member of the jury, relate to entirely different [occasions] ... we find that with regard to the evidence adduced in this case, it was not possible for the jury to return a verdict which was not unanimous. Given the complainant’s age and her relative inability to recall with specificity the details of separate assaults, the jury was not presented with the type of detail laden evidence which would engender differences of opinion on fragments of her testimony. In other words, the bulk of the state’s case rested on the credibility of the young complainant. . . . [T]he jury was left, primarily, only with the decision of whether [the minor victim] should be believed. With such general testimony, the spectre of lack of unanimity cannot arise.” (Citation omitted; internal quotation marks omitted.) Id., 230.

In the present case, K testified that the defendant touched her breasts, buttocks and vagina, over her clothes, on more than one occasion over a period of time. Of course, “[t]he state has a duty to inform a defendant, within reasonable limits, of the time when the offense charged was alleged to have been committed. The state does not have a duty, however, to disclose information which the state does not have. Neither the sixth amendment [to] the United States constitution nor article first, § 8 of the Connecticut constitution requires that the state choose a particular moment as the time of an offense when the best information available to the state is imprecise.” (Emphasis added; internal quotation marks omitted.) State v. Spigarolo, 210 Conn. 359, 386, 556 A.2d 112, cert. denied, 493 U.S. 933, 110 S. Ct. 322, 107 L. Ed. 2d 312 (1989); see also State v. Hickey, 23 Conn. App. 712, 715, 584 A.2d 473, cert. denied, 217 Conn. 809, 585 A.2d 1233, cert. denied, 501 U.S. 1252, 111 S. Ct. 2894, 115 L. Ed. 2d 1058 (1991). “[I]n a case involving the sexual abuse of a very young child, that child’s capacity to recall specifics, and the state’s concomitant ability to provide exactitude in an information, are very limited. The state can only provide what it has. This court will not impose a degree of certitude as to date, time and place that will render prosecutions of those who sexually abuse children impossible. To do so would have us establish, by judicial fiat, a class of crimes committable with impunity.” State v. Saraceno, supra, 15 Conn. App. 237; see also State v. Osborn, 41 Conn. App. 287, 293 n.4, 676 A.2d 399 (1996).

We conclude, therefore, that the defendant was not prejudiced as a result of the duplicitous information. As was the case in Saraceno, the bulk of the state’s case rested on the credibility of K; the primary decision for the jury was whether K should be believed. See State v. Saraceno, supra, 15 Conn. App. 230. Moreover, the state provided the defendant with sufficient notice on the basis of the information that it had. Accordingly, the defendant has failed to meet the third prong of Golding, and his claim must fail.

Ill

The defendant’s final claim is that the court improperly limited cross-examination of M and violated his sixth amendment rights to confrontation and to present a defense. Specifically, he argues that the court improperly prevented him from cross-examining M regarding the fact that she herself had been a victim of sexual assault by her father. We are not persuaded.

The following additional facts are necessary for our discussion. During cross-examination, M testified that she had no suspicion that the defendant had engaged in this type of conduct and that the relationship between the defendant and K appeared “fine.” Defense counsel then inquired of M’s own experience as a child victim of sexual assault. The state raised a relevancy objection. Outside the presence of the jury, defense counsel was allowed to question M further. She testified that as a child, she had been the victim of sexual abuse by her father. Defense counsel then asked if, based on that experience, she had kept an “extra eye” on K M replied in the affirmative. Defense counsel argued that this was relevant because M previously testified that she had informed the investigating police officers that she had no suspicions regarding the defendant. Additionally, according to defense counsel, M “would have recognized the signs” of abuse due to her own history.

The state reiterated the relevancy objection and also argued that there was no foundation for M’s testimony. The court sustained the objection, ruling that “[M] has already testified that she had no suspicions, that [the defendant and K] had a good relationship as far as [M] could tell, [K] never complained, [and] the fact that this witness is prepared to testify that she in the past has been a victim of this type of behavior I do not think adds anything to the issue before the jury.”

After the jury returned, M testified that she had told police officers that she had kept an “extra close eye” on K and the defendant and that she never saw anything “strange” between the two. During redirect examination, M stated that despite her initial concerns about K fabricating the allegations against the defendant, after speaking with K, those concerns were alleviated.

On appeal, the defendant argues that the court improperly deprived him of his constitutional rights to confront and to cross-examine witnesses against him and to present a defense. He further contends that the court abused its discretion in sustaining the state’s relevancy objection. We are not persuaded by the defendant’s arguments.

As a preliminary matter, we note that the defendant’s constitutional claims were not preserved at trial, and, therefore, he again seeks review pursuant to State v. Golding, supra, 213 Conn. 239-40. The record is adequate for our review, and the defendant’s claim, implicating rights to confrontation and to present a defense, is of constitutional magnitude. See State v. Rolon, 257 Conn. 156, 174-75, 777 A.2d 604 (2001); State v. Mish, 110 Conn. App. 245, 257, 954 A.2d 854, cert. denied, 289 Conn. 941, 959 A.2d 1008 (2008). We conclude, however, that the defendant’s claim fails to satisfy the third prong of Golding.

Our Supreme Court has stated: “There is no dispute that in the adversarial setting of a trial, the accused has a right under the confrontation clause to expose to the jury the facts from which jurors, as the sole triers of fact and credibility, [can] appropriately draw inferences relating to the reliability of the [State’s] witness. . . . It is also undisputed that the accused has an equal right under the compulsory process and due process clauses to present a defense, the right to present the defendant’s version of the facts as well as the prosecution’s to the jury so that it may decide where the truth lies.” (Citations omitted; internal quotation marks omitted.) State v. Kelly, 208 Conn. 365, 375, 545 A.2d 1048 (1988). We also are mindful that “[t]he primary interest secured by confrontation is the right to cross-examination .... As an appropriate and potentially vital function of cross-examination, exposure of a witness’ motive, interest, bias or prejudice may not be unduly restricted. . . . Compliance with the constitutionally guaranteed right to cross-examination requires that the defendant be allowed to present the jury with facts from which it could appropriately draw inferences relating to the witness’ reliability. . . . [Preclusion of sufficient inquiry into a particular matter tending to show motive, bias and interest may result in a violation of the constitutional requirements of the sixth amendment. . . . Further, the exclusion of defense evidence may deprive the defendant of his constitutional right to present a defense.” (Citations omitted; internal quotation omitted.) State v. DeJesus, 270 Conn. 826, 835, 856 A.2d 345 (2004). Nevertheless, “[n]ot every ruling that prevents the defendant from introducing evidence . . . rises to the level of a violation of his constitutional rights.” Id., 836.

A

We begin our analysis by considering whether the court properly restricted defense counsel’s inquiry regarding M’s prior victimization on the ground that it was irrelevant. “It is well settled that [t]he proffering party bears the burden of establishing the relevance of the offered [evidence]. Unless such a proper foundation is established, the evidence ... is irrelevant. . . . We have often stated that [e]vidence is admissible when it tends to establish a fact in issue or to corroborate other direct evidence in the case. . . . One fact is relevant to another fact whenever, according to the common course of events, the existence of the one, taken alone or in connection with other facts, renders the existence of the other either certain or more probable.” (Internal quotation marks omitted.) State v. Therrien, 117 Conn. App. 256, 264, 978 A.2d 556, cert. denied, 294 Conn. 913, 983 A.2d 275 (2009); see also Conn. Code Evid. § 4-1.

The court properly determined that M’s abuse by her father was not relevant to any issue in the present case involving the defendant and K. The mere fact that M herself had been a victim did not establish a fact in issue or corroborate other direct evidence in the case. Further, there was no foundation that, as a victim herself, M would have been able to identify signs that the defendant had abused K. Accordingly, we conclude that the court’s ruling on the state’s relevancy objection was proper.

B

Having concluded that the court properly excluded the evidence regarding M’s history as irrelevant, we now turn to the claim that the court’s ruling violated the defendant’s right to confrontation. “[T]he sixth amendment to the [United States] constitution guarantees the right of an accused in a criminal prosecution to confront the witnesses against him. . . . The primary interest secured by confrontation is the right to cross-examination. . . . This right, however, is not absolute and may, in appropriate cases, bow to accommodate other legitimate interests in the criminal trial process. . . . The trial court, in its discretion, may impose limitations on the scope of cross-examination, as long as the defendant has been permitted sufficient cross-examination to satisfy constitutional requirements. . . . The confrontation clause does not . . . suspend the rules of evidence to give the defendant the right to engage in unrestricted cross-examination.” (Internal quotation marks omitted.) State v. Liborio A., 93 Conn. App. 279, 286, 889 A.2d 821 (2006); State v. Linarte, 107 Conn. App. 93, 110, 944 A.2d 369 (axiomatic that right to confrontation not absolute and does not suspend rules of evidence to give defendant right to engage in unrestricted cross-examination), cert. denied, 289 Conn. 901, 957 A.2d 873 (2008).

“We traditionally apply a two part analysis to determine whether a party has been deprived of effective cross-examination. First, we determine whether the defendant received the minimum opportunity for cross-examination of adverse witnesses required by the constitution. ... If so, we then consider whether the trial court’s restriction of cross-examination amounted to an abuse of discretion under the rules of evidence.” (Internal quotation marks omitted.) State v. Falcon, 90 Conn. App. 111, 128, 876 A.2d 547, cert. denied, 275 Conn. 926, 883 A.2d 1248 (2005).

In the present case, the defendant’s constitutional right to confrontation was not violated by the court’s restriction. The defendant’s counsel was permitted to question M regarding her initial concern that K had fabricated the allegations against the defendant following the end of M’s relationship with the defendant. Additionally, defense counsel inquired whether K had made any prior complaints about the defendant and whether M had any suspicions of possible improper contact between the defendant and K. M conceded during cross-examination that the relationship between K and the defendant seemed “fine” to her. M also stated that she kept an “extra close eye” on K and the defendant and never saw anything “strange” between them. Last, we note the record does not reveal any testimony that would support the defendant’s theory that a prior victim of sexual abuse would have been able to “recognize the signs” in another victim.

We conclude that the defendant’s ability to cross-examine M more than satisfied the constitutional standards. The court merely prevented the defendant from delving into one area: M’s prior victimization. The court properly ruled that such evidence was not relevant. “If the proffered evidence is not relevant, the defendant’s right to confrontation is not affected, and the evidence was properly excluded.” State v. Christiano, 228 Conn. 456, 474, 637 A.2d 382, cert. denied, 513 U.S. 821, 115 S. Ct. 83, 130 L. Ed. 2d 36 (1994); State v. Griffin, 98 Conn. App. 821, 826, 912 A.2d 520 (2006), cert. denied, 281 Conn. 915, 917 A.2d 999 (2007). Defense counsel was able to present the jury with evidence that M was unaware of any improper conduct by the defendant toward K and that M had been attentive to the defendant’s behaviors toward K. We disagree that not allowing questions regarding M’s history violated the defendant’s constitutional right to confrontation. We conclude, therefore, that this claim fails to satisfy the third prong of Golding.

C

The defendant also claims that his right to present a defense was violated by the court’s preclusion of the evidence in question. Our prior conclusion that the court properly precluded the evidence on the ground of relevance leads us to decide that the defendant’s constitutional right to present a defense was not violated by the court’s ruling.

“The sixth amendment to the United States constitution require [s] that criminal defendants be afforded a meaningful opportunity to present a complete defense. . . . The defendant’s sixth amendment right, however, does not require the trial court to forgo completely restraints on the admissibility of evidence. . . . Generally, [a defendant] must comply with established rules of procedure and evidence in exercising his right to present a defense. ... A defendant, therefore, may introduce only relevant evidence, and, if the proffered evidence is not relevant, its exclusion is proper and the defendant’s right is not violated.” (Internal quotation marks omitted.) State v. Wright, 273 Conn. 418, 424-25, 870 A.2d 1039 (2005); State v. Andrews, 102 Conn. App. 819, 826-27, 927 A.2d 358, cert. denied, 284 Conn. 911, 931 A.2d 932 (2007).

As we concluded in part III A of this opinion, the evidence regarding M’s prior victimization was not relevant in the present case. Because it was not relevant, the defendant’s constitutional right to present a defense was not affected. See State v. Rodriguez, 107 Conn. App. 685, 710-11, 946 A.2d 294, cert. denied, 288 Conn. 904, 953 A.2d 650 (2008); State v. Malon, 96 Conn. App. 59, 74-75, 898 A.2d 843, cert. denied, 280 Conn. 906, 907 A.2d 93 (2006). We conclude, therefore, that the defendant’s claim fails under the third prong of Golding.

The judgment is affirmed.

In this opinion the other judges concurred.

       The Alvaro F. decision was published after the defendant had filed his initial brief to this court. The defendant has not attempted, either in a reply brief or at oral argument to distinguish the present case from Alvaro F.

       The term “actus reus” is defined as follows: “The ‘guilty act.’ A wrongful deed which renders the actor criminally liable if combined with mens rea. The actus reus is the physical aspect of a crime, whereas the mens rea (guilty mind) involves the intent factor.” Black’s Law Dictionary (6th Ed. 1990).

       At oral argument before this court, the defendant claimed that the court should have provided the jury with a unanimity instruction. The state countered that this issue was not raised in the defendant’s brief but presented for the first time at oral argument. Appellate courts generally do not consider claims raised for the first time at oral argument. See State v. Wright, 197 Conn. 588, 595, 500 A.2d 547 (1985); see also State v. Holmes, 70 Conn. App. 4, 5 n.2, 796 A.2d 561 (2002).
      We have reviewed carefully the defendant’s brief to determine whether it sets forth an improper jury charge claim. His brief provides the statement that appellate courts generally do not consider improper jury charge claims when no request to charge was submitted and no objection was raised following the court’s instructions. It further states that such a claim may

        be reviewed pursuant to State v. Golding, 213 Conn. 233, 239-40, 567 A.2d 823 (1989). We also acknowledge the defendant’s discussion of certain state and federal cases addressing the issue of whether a unanimity instruction was required in light of a duplicitous information. The defendant’s analysis, however, is focused solely on whether, due to the information, the jurors could have disagreed on what conduct constituted the actus reus underlying the criminal offenses of risk of injury to a child and sexual assault in the fourth degree. Accordingly, we decline to consider the defendant’s claim, raised for the first time at oral argument, that the court improperly failed to provide the jury with a unanimity instruction.

       We also note that the state does not challenge the defendant’s assertion that the information was duplicitous. Instead, it maintains that it was not impermissibly duplicitous.

       In Saraceno, we noted that the trial court instructed the jury that “it was required to render an unanimous verdict on at least a single violation of the statute alleged in each count in order to convict the defendant.” State v. Saraceno, supra, 15 Conn. App. 230-31. Such an instruction was not given in the present case. Despite this difference, we conclude that the rationale of Saraceno, namely, that given K’s young age and the general nature of her testimony, the concern of lack of unanimity cannot arise, applies to this case. See, e.g., State v. Browne, supra, 84 Conn. App. 381-82 (discussing rationale of Saraceno).

       To the extent that the defendant also asserts a claim that his due process rights were violated under the Connecticut constitution, he has failed to provide an independent analysis of this issue under the state constitution. See State v. Banks, 117 Conn. App. 102, 106 n.1, 978 A.2d 519, cert. denied, 294 Conn. 905, 982 A.2d 1081 (2009); see also State v. Geisler, 222 Conn. 672, 684-86, 610 A.2d 1225 (1992) (providing analytical tools for state constitutional claims). Consequently, we deem the defendant to have abandoned any state constitutional claim.

       The defendant also requests review pursuant to the plain error doctrine. See Practice Boole § 60-5. “The plain error doctrine is not ... a rule of reviewability. It is a rule of reversibility. That is, it is a doctrine that this court invokes in order to rectify a trial court ruling that, although either not properly preserved or never raised at all in the trial court, nonetheless requires reversal of the trial court’s judgment, for reasons of policy. . . . In addition, the plain error doctrine is reserved for truly extraordinary situations where the existence of the error is so obvious that it affects the fairness and integrity of and public confidence in the judicial proceedings. . . . Plain error is a doctrine that should be invoked sparingly. . . . [invocation of the plain error doctrine is reserved for occasions requiring the reversal of the judgment under review.” (Emphasis in original; internal quotation marks omitted.) State v. Cutler, 293 Conn. 303, 326, 977 A.2d 209 (2009). We conclude that this claim does not require reversal under the plain error doctrine because the defendant has failed to establish the existence of an extraordinary situation affecting the fairness and integrity of and public confidence in the judicial proceeding. See State v. King, 116 Conn. App. 372, 382-83, 976 A.2d 765, cert. denied, 294 Conn. 912, 983 A.2d 274 (2009).


author: LAVINE, J.

text:
    BRIAN LEDDY v. HOWARD RACCIO
    (AC 30014)
    Gruendel, Lavine and Mihalakos, Js.

      Argued October 28
    officially released December 29, 2009

      Daniel J. Krisch, with whom was Brendon P. Levesque, for the appellant (defendant).

      William F. Gallagher, with whom, on the brief, were Hugh D. Hughes, Louis M. Federici, Jr., and Joseph Porto, for the appellee (plaintiff).
   Opinion

LAVINE, J.

The defendant, Howard Raccio, appeals from the judgment of the trial court, rendered after a trial to the court, in favor of the plaintiff, Brian Leddy. On appeal, the defendant claims that the court improperly concluded that it could ignore deposition testimony concerning uncharged misconduct involving the defendant and another person. The defendant claims that this misconduct evidence had an incurably prejudicial effect on the court’s consideration of the case. We disagree and affirm the judgment of the trial court.

The court reasonably could have found the following facts in making its decision. The plaintiff grew up on Hillfield Road in Hamden, about three quarters of a mile from the defendant’s home. The plaintiffs family became friendly with the defendant’s niece, Barbara Sacramozza, who also lived on Hillfield Road. Through Sacramozza, the plaintiffs family and the defendant became close family friends. The plaintiff thought of the defendant as “Uncle Howard.”

The plaintiff would see the defendant at family gatherings and holiday parties. When the plaintiff was between the ages of eight and twelve, he would sometimes go to the defendant’s house by himself. During two of these visits, the defendant kissed the plaintiff, put his hand down the plaintiffs pants and touched the plaintiffs genitals. When the plaintiff said that he did not like that, the defendant told him that it is what friends do for each other and also that friends do not tell on each other. The plaintiff did not tell anyone about what happened, and, after the second episode, he did not return to the defendant’s house for some time.

When the plaintiff was either fourteen or fifteen, after a Christmas party at the defendant’s paving company, the defendant gave the plaintiff a ride home and again kissed him and put his hands down the plaintiffs pants. The plaintiff pushed the defendant away but again did not tell anybody about the incident. Later during his teenage years, the plaintiff occasionally would do work with the defendant’s company, though he was not on the payroll, or do chores around the defendant’s house. He also occasionally would go to the defendant’s house to drink beer and to talk. Approximately five or six times, as the plaintiff was leaving the defendant’s house, the defendant would give him a hug and put his hands down the plaintiffs pants. The defendant would then give the plaintiff money, which the plaintiff understood to be in exchange for his not telling anyone about the defendant’s actions.

The plaintiff went to a private boarding high school and then matriculated at the University of Vermont. He saw the defendant infrequently during those years. After graduating from college, the plaintiff held jobs in several different states before moving back to Hamden, where he married and started a family. Soon after his first child was bom, in 2002, the plaintiff was angered by a flashback he had about the defendant.

A few years later, in April, 2004, the plaintiff was with his family at Sacramozza’s house for an Easter brunch. He saw the defendant with a young boy on his knee, took his own child into the other room and left the party soon after so that the defendant “couldn’t touch [his] kid.” A short time later, the plaintiff divulged his sexual abuse at the hands of the defendant to Sacramozza. Sacramozza suggested that the plaintiff write the defendant a letter explaining how he felt. Instead, the plaintiff anonymously sent a threatening letter.

In the letter, the plaintiff -wrote that “Barbara knows.” The defendant called Sacramozza and asked her if she knew who authored the letter. After conferring with the plaintiff, Sacramozza told the defendant that she could not tell him. The defendant threatened to call the police and to have her arrested. He then asked Sacramozza whether the author was a relative. Sacramozza responded by asking the defendant how many children he had abused, if he did not know who wrote the letter.

Thereafter, the plaintiff sued the defendant for assault and battery for the alleged sexual abuse. The defendant denied these allegations and filed a three count counterclaim alleging intentional infliction of emotional distress, negligent infliction of emotional distress and assault. A court trial was held beginning on May 22, 2007.

At trial, the defendant denied molesting the plaintiff and further testified that he was not sexually interested in children. The court admitted, over defense objection on grounds that the uncharged misconduct was dissimilar in nature to the conduct underlying the claims of this case, the deposition testimony of Jon Mangini, a relative of the defendant, both for substantive and impeachment purposes. Mangini’s testimony was that, beginning when he was fifteen years old and continuing until he was eighteen or nineteen, the defendant performed sexual acts on him as often as two or three times per week.

Although the court was uncertain whether it should admit Mangini’s deposition, it ultimately allowed the testimony into evidence, though it reserved the right to rethink its position. The court noted that if it changed its mind, it would say so “explicitly” in its memorandum of decision, noting that it “commit[ed] error letting it in” and that the court would not “[consider] it in [its] opinion.”

In its memorandum of decision, the court wrote: “Finally, the court will discuss the weight, if any, it gave to the deposition testimony of Jon Mangini, which it felt constrained to let in, as to his allegations of sexual assault by [the defendant], to let in under the authority of State v. Kulmac, 230 Conn. 43, 644 A.2d 887 (1994). [C. Tait & E. Prescott, Connecticut Evidence (4th Ed. 2008)] has a well articulated objection to Kulmac at § 4.19.13, pp. 168-71. [It] notes that in State v. Romero, 269 Conn. 481, 498, 849 A.2d 760 (2004), several limitations were put upon the reach of Kulmac — such evidence must (1) not be too remote in time, (2) the conduct must be similar to the charged offense and (3) the sexual assault must be committed upon a person similar to the victim. The court let this evidence in but now has reservations about it. The third Romero criteria is met — at the time of the alleged assaults both [the plaintiff] and Mangini were young men who were athletic and played sports. But at the time of his deposition testimony in 2007, the incidents Mangini described occurred some fifteen years before, and the type of sexual assaults and activity was much more serious in nature, although the plying with alcohol, money and drugs bears a similar pattern. Suffice it to say the court has not based its conclusion that sexual molestation occurred here based on the experts’ or Mangini’s testimony. It relied solely on the testimony of [the plaintiff], his parents and . . . Sacramozza.” The court awarded the plaintiff $750 in economic damages and $150,000 in noneconomic damages.

The defendant filed a motion for articulation requesting that the court clarify its factual and legal bases for admitting Mangini’s deposition testimony and its subsequent decision to disregard the deposition testimony. The court, in its response to the motion for articulation, wrote: “When the court let the deposition testimony of . . . Mangini in, it felt constrained to do so by the holding in State v. Kulmac, supra, 230 Conn. 43. In its decision, the court noted Tait’s ‘well articulated objection to Kulmac at § 4.19.13, pp. 168-71.’ The court cited State v. Romero, supra, 269 Conn. 481, noted by Tait, and mentioned the limitations Romero put on the broad sweep of Kulmac. The court then said that because of Romero and the problems it has with Kul-mac-. ‘The court let this evidence in but now has reservations about it.’ It noted in its decision the problems it had upon reconsideration — remoteness in time and whether conduct was similar. For those reasons, the court said it would not and in fact did not base its conclusion that molestation occurred here based on Mangini’s deposition testimony but relied for its conclusion on [the plaintiff], his parents and the family friend . . . Sacramozza. The court gave no weight to Mangini’s deposition testimony, or that of [James Ciarci, a psychiatrist who had examined the plaintiff], in reaching its decision that [the defendant] had molested [the plaintiff] and clearly so stated . . . .” The defendant filed a motion for review, which was granted by this court but for which relief was denied, and this appeal followed.

The defendant claims that the court improperly concluded that, in reaching its conclusion, it reasonably could ignore the Mangini deposition testimony because of the incurably prejudicial effect the testimony had on the court’s consideration of the case. Specifically, he argues that once the court admitted the deposition testimony into evidence, the court was unable, despite its assertion that it did not consider Mangini’s testimony in coming to its conclusion, to ignore the evidence and to render an unprejudiced decision.

We note at the outset that the defendant’s evidentiary claims are reviewed under our well established standard. “The trial court’s ruling on the admissibility of evidence is entitled to great deference. . . . [T]he trial court has broad discretion in ruling on the admissibility ... of evidence . . . [and its] ruling on evidentiary matters will be overturned only upon a showing of a clear abuse of the court’s discretion. . . . We will make every reasonable presumption in favor of upholding the trial court’s ruling, and only upset it for a manifest abuse of discretion. . . . Moreover, evidentiary rulings will be overturned on appeal only where there was an abuse of discretion and a showing by the defendant of substantial prejudice or injustice.” (Internal quotation marks omitted.) Viera v. Cohen, 283 Conn. 412, 452, 927 A.2d 843 (2007). “Additionally, it is well settled that even if the evidence was improperly admitted, the [defendant] must also establish that the ruling was harmful and likely to affect the result of the trial.” (Internal quotation marks omitted.) National City Mortgage Co. v. Stoecker, 92 Conn. App. 787, 797, 888 A.2d 95, cert. denied, 277 Conn. 925, 895 A.2d 799 (2006).

The defendant, however, does not claim that the court erred in admitting this evidence at trial on evidentiary grounds. Rather, according to the defendant, the court abused its discretion by rendering a decision under the belief that it was able to ignore this evidence. The defendant primarily relies on Peck v. Pierce, 63 Conn. 310, 28 A. 524 (1893), and Kufferman v. Fairfield University, 5 Conn. App. 118, 497 A.2d 77 (1985), which, he claims, together stand for the general proposition that in a court trial, the court’s posttrial exclusion of inadmissible evidence after its initial admission at trial requires a new trial. Peck and its progeny refuse to accept assertions by trial judges that they are able to ignore certain wrongly admitted evidence in making their decisions, believing that “the operations of the human mind are so subtle, and the influences which affect it so difficult to be appreciated, that it is utterly improbable, not to say impossible, for the party making them to know whether the evidence influenced him or not; holding that all that such statements can mean is that the maker of them was unconscious of the influence.” (Internal quotation marks omitted.) Peck v. Pierce, supra, 320. “A judge has not such control over his mental faculties that he can definitively determine whether or not inadmissible evidence he has heard will affect his mind in making his decision.” (Internal quotation marks omitted.) Barbieri v. Cadillac Construction Corp., 174 Conn. 445, 451, 389 A.2d 1263 (1978); Kovacs v. Szentes, 130 Conn. 229, 232, 33 A.2d 124 (1943).

The inquiry does not end whenever a court, following trial, excludes a piece of inadmissible evidence that had been admitted initially. Peck notes that “the question in each case of this kind must be determined by a consideration of the facts in the particular case . . . .” Peck v. Pierce, supra, 63 Conn. 320. Although this court, in Kufferman, previously has reached a similar conclusion as the Peck court and ordered a new trial, we also fully agree that “Kufferman . . . must be held to its facts.” Manaker v. Manaker, 11 Conn. App. 653, 656, 528 A.2d 1170 (1987).

The facts that existed in Kufferman are not the facts of this case. In that action to recover for damage to a leased premises, the court admitted, over the defendant’s objection, “a letter written by the defendant stating that it was willing to concede $3600 for painting although its position was that it was not responsible for this item of repair.” Kufferman v. Fairfield University, supra, 5 Conn. App. 119-20. In its memorandum of decision, the court wrote that it now agreed with the defendant’s objection “that [the letter was] part of the settlement negotiation and . . . therefore may not be considered by the court.” (Internal quotation marks omitted.) Id., 120. This court noted that given that set of facts, it was “difficult to say . . . whether the evi-dentiary defect might have been cured ... or whether the plaintiffs would have introduced other evidence if they had known that this evidence was to be excluded.” (Citations omitted.) Id., 120-21. In the present case, however, the court’s refusing to consider the Mangini deposition, which was introduced by the plaintiff, when making its decision was favorable to the defendant, and the plaintiff does not complain. See Manaker v. Manaker, supra, 11 Conn. App. 656. Unlike Kufferman, we are not concerned about whether the plaintiff’s case was prejudiced by the exclusion of the Mangini deposition testimony because it is the defendant, not the plaintiff, who complains.

“Surely, a trial judge is able to disregard evidence erroneously admitted or only consider that evidence for the limited purposes for which it is admissible.” Id., 656. “The mere fact that information has improperly come to the attention of the trier does not invariably compel a new trial. We have repeatedly acknowledged, in cases tried to a jury, that curative instructions can overcome the erroneous effect of statements that a jury should not have heard. ... It would be anomalous indeed to hold that an experienced trial court judge cannot similarly disregard evidence that has not properly been admitted.” (Citations omitted.) Ghiroli v. Ghiroli, 184 Conn. 406, 408-409, 439 A.2d 1024 (1981).

The defendant posits that even if a judge is able to disregard certain evidence in some cases, Mangini’s testimony was so inflammatory that it could not be ignored despite conscious efforts to do so. He argues that the inflammatory nature does not necessarily stem from the subject matter of the testimony but, rather, from the vast differences between the content of Man-gini’s testimony and the plaintiffs testimony. See State v. Ellis, 270 Conn. 337, 365-68, 852 A.2d 676 (2004) (uncharged misconduct presented to show common scheme, but not sufficiently similar to underlying charged conduct, may be considered error on review).

This case is unlike Ellis. There, the defendant, Robert Ellis, had sexually abused three girls. Id., 343. He was the softball coach of two of the victims, had a close, personal relationship with them and sexually assaulted them in similar ways under similar conditions. Id., 359-61. His interactions with the third victim were wholly different,. She was not a member of one of his softball teams and did not have a personal relationship with Ellis. Id., 346. Rather, she was the sister of a team member and daughter of a business partner of Ellis. Id. The sexual abuse of the third victim occurred on many more occasions and tended to be more severe than with either of the other girls. Id., 359-60.

In comparing the facts of this case to Ellis, the defendant seizes on the differences in frequency and scope of the sexual assaults. As in Ellis, Mangini’s deposition details a far more extreme and extensive history of sexual abuse than that described by the plaintiff. The defendant, however, fails to note the similarities. Both Mangini and the plaintiff were either related to the defendant or had such a close relationship with him that they considered him a relative, did work around the defendant’s house and were athletic, teenaged males. He lured both boys with money and alcohol. The difference in the number of times the sexual abuse took place and the severity of the abuse stems solely from the fact that Mangini, interested in the money, alcohol and access to the defendant’s cars, accepted the defendant’s advances while the plaintiff rebuffed the defendant. This case is unlike Ellis, and the instances of the defendant’s conduct with Mangini and his conduct with the plaintiff are not so dissimilar so as to be of the inflammatory nature that the defendant would like us to believe.

In this case, the court’s declining to consider the Mangini deposition did not prejudice the defendant, and we have no basis for discountenancing the court’s statement of the evidence it took into consideration in rendering its decision. Furthermore, it was not reversible error to limit the use of the evidence for an admissible purpose, or to not consider it at all. “There may, however, be instances where it is so unclear what effect the disputed evidence might have had, or where its prejudicial effect is so overwhelming, that the fair administration of justice requires a new trial.” (Internal quotation marks omitted.) Manaker v. Manaker, supra, 11 Conn. App. 657. This is not such a case.

Even if we assume arguendo that the court abused its discretion by rendering a decision under the belief that it was able to put aside this evidence, the defendant is unable to prove that the error was likely to affect the outcome of the case. The memorandum of decision makes clear that the court struggled with an admittedly difficult decision. It noted, however, that the plaintiff had no motive in acting so emotionally when telling his parents and Sacramozza of the abuse prior to trial if the abuse had not actually occurred. The court stated: “During the trial, the court watched the demeanor of both of the parties very carefully, and it was obvious at least to it that [the plaintiff] could hardly contain his emotions, at least as far as the incidents themselves. His testimony had the ring of truth. To the court, the defendant’s denials almost had a mechanical air to them.” The court’s decision to credit the plaintiff’s testimony more than the defendant’s is solely the province of the trier of fact, and we will not interfere with that credibility assessment on appeal. See State v. Lawrence, 282 Conn. 141, 155-56, 920 A.2d 236 (2007).

“Since we cannot speculate as to the degree of influence which the objectionable finding had in the final result, unless it clearly appeared that no harm could have been done, the safer rule is to grant a new trial.” (Internal quotation marks omitted.) Barbieri v. Cadillac Construction Corp., supra, 174 Conn. 451. We conclude from an examination of the evidence, excluding the Mangini deposition, that there was sufficient evidence from which the court could have found, by a preponderance of the evidence, the material and controlling facts set forth in the memorandum of decision. These facts, so found, are consistent with and fully sustain the judgment rendered.

The judgment is affirmed.

In this opinion the other judges concurred.

       Throughout the trial, Sacramozza also was referred to as Barbara Daddio, her married name at the time many of the events in question took place. To avoid confusion, we will refer to her as Sacramozza.

       The plaintiff later disclosed the sexual abuse to his parents. The plaintiffs mother testified that the plaintiff was choked up and on the verge of tears when he told them about his past sexual interactions with the defendant.

       The defendant testified that Sacramozza answered his question by telling him that the author was not a relative.

       The testimony of Scott Leddy, the plaintiffs brother, also was admitted to impeach the defendant’s claim that he was not sexually interested in children. Scott Leddy testified that the defendant asked him, on numerous occasions, if he wanted “to be gay just once” for the defendant and offered to buy him a dirt bike if he would engage in sexual acts with the defendant.

       The court also awarded the defendant $8583.90 in economic damages and $7500 in noneconomic damages on his intentional infliction of emotional distress counterclaim. The court dismissed the defendant’s assault and negligent infliction of emotional distress counterclaims. These rulings are not at issue on appeal.

       We do not agree with the defendant’s assertion that the court, in either its memorandum of decision or articulation, concluded that it had wrongly admitted the Mangini deposition testimony. The court previously had stated that if it were to come to the conclusion that the deposition testimony had been wrongly admitted, it would say so explicitly in its decision. Although the court expressed its “reservations” and stated that it would not consider the Mangini deposition testimony, it did not explicitly say that the evidence was wrongly admitted. Even its discussion of Kulmac and Romero does not resolve the issue, as no one factor is dispositive of whether the evidence is admissible, and it is unclear what weight the court assigned each factor. See State v. Romero, supra, 269 Conn. 498. Our resolution of this case, however, is not affected by whether the court excluded the evidence or merely did not consider it when rendering its decision.

       In evaluating this claim, we assume, but do not decide, that the Mangini deposition testimony was not so inflammatory that its probative value was outweighed by the danger of unfair prejudice that resulted from its admission. See Conn. Code Evid. § 4-3.

       The court recognized these similarities in its memorandum of decision, noting “the plying with alcohol, money and drugs bears a similar pattern.”

       We note that the court admitted the Mangini deposition both for substantive arid impeachment purposes, though its memorandum of decision states that the court used it for neither purpose. Evidence that is inadmissible for one purpose may be admissible for another. Conn. Code Evid. § 1-4; Blanchard v. Bridgeport, 190 Conn. 798, 805, 463 A.2d 553 (1983).