author: BEACH, J.

text:
    SUSAN MORGAN v. RUTHE BUBAR ET AL.
    (AC 28151)
    Harper, Beach and McDonald, Js.

      Argued January 8, 2008
    officially released July 14, 2009

      Nancy A. Brouillet, assistant attorney general, with whom, on the brief, were Richard Blumenthal, attorney general, and Margaret Q. Chappie, assistant attorney general, for the appellants (defendants).

      Andrew R. Cellemme, for the appellee (plaintiff).
   Opinion

BEACH, J.

At times, principles conflict. Here, the questions presented are whether a right to pursue a defamation action is subordinate to the right to complain through appropriate administrative channels and whether state employees may be sued for damages for failing to investigate such complaints. The defendants, Ruthe Bubar, Robert Carini and Lora A. Castronova, appeal from the trial court’s denial of their motion for summary judgment. The defendants claim that the court improperly denied their motion for summary judgment, which claimed (1) that Bubar was entitled to absolute immunity and (2) that Carini and Castronova were entitled to qualified immunity. We agree and reverse the judgment of the trial court.

The following facts were presented to the court by way of the pleadings and documents accompanying the motion for summary judgment. They are not in dispute for the purpose of our resolution of the defendants’ appeal. At relevant times, the plaintiff, Susan Morgan, and the defendants were employees of the department of correction and were assigned to the York Correctional Institution in Niantic. The plaintiff instituted this action against the defendants by way of a four count complaint. Counts one and two of the amended complaint alleged claims sounding in defamation against Bubar. Both of the allegedly defamatory statements in this case involve accusations by Bubar that the plaintiff choked her at some point in early 1999. Count one alleged defamation arising out of statements by Bubar during a meeting on August 10, 2000, attended by an affirmative action officer, the plaintiff and several coworkers. Count two alleged defamation arising out of a memorandum dated August 8, 2000, written by Bubar to Castronova, in which Bubar reiterated an earlier statement that she had made to Castronova regarding the alleged choking incident.

Counts three and four of the amended complaint alleged deprivations of the plaintiffs rights to due process and equal protection under the fourteenth amendment to the United States constitution and were brought pursuant to 42 U.S.C. § 1983. They were brought against Carini and Castronova, respectively. These two counts alleged that Carini’s and Castronova’s failure to investigate Bubar’s choking allegations, as required by a state executive order on workplace violence and various department of correction directives, deprived the plaintiff of her due process and equal protection rights because an investigation would have refuted the allegations and “cleared the plaintiffs name . . . .” Counts three and four also alleged that the failure to investigate resulted in employment actions that were adverse to the plaintiff.

The defendants moved for summary judgment on the grounds that, inter alia, Bubar’s allegedly defamatory statements are entitled to absolute immunity because they were made in the course of an administrative affirmative action complaint and that Carini and Castronova are entitled to qualified immunity as public officials because they allegedly violated no clearly defined constitutionally protected rights of the plaintiff. The court denied the defendants’ motion, and the defendants moved for an articulation of the court’s ruling. In its articulation, the court rejected the defendants’ absolute immunity argument on the ground that “[t]he evidence submitted by the defendants . . . does not meet their burden of showing that there is no genuine issue of material fact as to whether the August 10, 2000 meeting was part of an affirmative action investigation or complaint.” The court also rejected the defendants’ qualified immunity argument on the ground that “genuine issues of material fact exist as to the reasonableness of [Castronova’s and Carini’s] conduct.” Additional facts will be set forth as necessary.

We begin by setting forth the applicable standard of review. “Summary judgment shall be rendered forthwith if the pleadings, affidavits and 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. . . . The scope of our appellate review depends upon the proper characterization of the rulings made by the trial court. . . . When . . . the trial court draws conclusions of law, our review is plenary and we must decide whether its conclusions are legally and logically correct and find support in the facts that appear in the record.” (Internal quotation marks omitted.) Schilberg Integrated Metals Corp. v. Continental Casualty Co., 263 Conn. 245, 251-52, 819 A.2d 773 (2003).

The determination of whether an affirmative action investigation constitutes a quasi-judicial proceeding is a question of law over which our review is plenary. Whether particular conduct is by its nature part of or in furtherance of a quasi-judicial proceeding for the purposes of triggering absolute immunity, however, depends on the particular facts and circumstances of each case. See Craig v. Stafford Construction, Inc., 271 Conn. 78, 83-84, 856 A.2d 372 (2004). “Whether an official is entitled to qualified immunity presents a question of law that must be resolved de novo on appeal.” Fleming v. Bridgeport, 284 Conn. 502, 518, 935 A.2d 126 (2007).

I

As a preliminary matter, we must address the issue of whether the denial of the defendants’ motion for summary judgment is a final judgment from which they immediately may appeal. We conclude that the court’s rulings on the portions of the defendants’ appeal that pertain to their claims of absolute immunity and qualified immunity may be addressed by this court. “As a general rule, an interlocutory ruling may not be appealed pending the final disposition of a case.” Chadha v. Charlotte Hungerford Hospital, 272 Conn. 776, 784, 865 A.2d 1163 (2005). A denial of a motion for summary judgment, however, “which had been filed on the basis of a colorable claim of absolute immunity, constitutes an appealable final judgment.” Id., 787. Like sovereign immunity, the doctrine of absolute immunity “protects against suit as well as liability—in effect, against having to litigate at all.” Id., 786. In the present case, the defendants’ claim of absolute immunity is at least colorable because, most apparently, our case law consistently has recognized such immunity in similar factual settings. See, e.g., Craig v. Stafford Construction, Inc., supra, 271 Conn. 88-96; Kelley v. Bonney, 221 Conn. 549, 606 A.2d 693 (1992); Petyan v. Ellis, 200 Conn. 243, 510 A.2d 1337 (1986). The defendants’ claim that Bubar is entitled to absolute immunity is properly before this court.

We next address whether the court’s ruling with respect to the defendants’ qualified immunity claims constitutes a reviewable final judgment. In counts three and four of the amended complaint, the plaintiff alleged that Carini and Castronova violated her constitutional rights and thereby violated 42 U.S.C. § 1983. Although state courts have concurrent jurisdiction over claims brought under § 1983, state courts must apply federal law in determining whether a defendant is immune from prosecution. See Martinez v. California, 444 U.S. 277, 284 n.8, 100 S. Ct. 553, 62 L. Ed. 2d 481 (1980); Sullins v. Rodriguez, 281 Conn. 128, 136, 913 A.2d 415 (2007); Schnabel v. Tyler, 230 Conn. 735, 742-43, 646 A.2d 152 (1994) (“[A] claim for qualified immunity from liability for damages under § 1983 raises a question of federal law . . . and not state law. Therefore, in reviewing these claims of qualified immunity we are bound by federal precedent, and may not expand or contract the contours of the immunity available to government officials.” [Citations omitted; internal quotation marks omitted.]). In considering whether a District Court’s denial of a claim of qualified immunity was an appeal-able final decision under federal law, the United States Supreme Court directly addressed the question of whether a finding of qualified immunity in the context of a § 1983 action compels immunity from suit as well as from liability. In Mitchell v. Forsyth, 472 U.S. 511, 526, 105 S. Ct. 2806, 86 L. Ed. 2d 411 (1985), the court stated that “[t]he entitlement is an immunity from suit rather than a mere defense to liability; and like an absolute immunity, it is effectively lost if a case is erroneously permitted to go to trial.” In this state, consistent with federal law, an otherwise interlocutory judgment may immediately be appealable “where the order or action so concludes the rights of the parties that further proceedings cannot affect them.” State v. Curcio, 191 Conn. 27,31,463 A.2d 566 (1983). The defendants’ claim that the court improperly denied the motion for summary judgment as to whether Carini and Castronova are entitled to qualified immunity is properly before this court.

II

We turn now to Bubar’s absolute immunity claim. The dispositive issues are whether the setting in which her statements were made was a quasi-judicial proceeding and, if so, whether the alleged defamatory statements were made in the course of the proceeding and related to the subject matter of that proceeding. Count one concerns allegedly defamatory statements made by Bubar in a meeting on August 10, 2000. Count two concerns statements made by Bubar in a memorandum to Castronova that was dated August 8,2000. The memorandum requested an affirmative action proceeding, and the August 10 meeting was, according to Bubar, part of the affirmative action process. Bubar argues that the court improperly denied summary judgment as to these counts because Bubar’s statements at issue were made during the course of a quasi-judicial proceeding, thereby entitling them to absolute immunity. The plaintiff argues that there is a genuine issue of material fact as to whether there was a quasi-judicial proceeding. We agree with Bubar and conclude that her statements are entitled to absolute immunity.

The following additional facts are necessary for our resolution of the defendants’ claim and are not in dispute. At some point in early 1999, Bubar reported to Carini, the supervisor of both the plaintiff and Bubar, that approximately one week earlier the plaintiff had approached Bubar in the workplace, grabbed her by her lapels, shook her and said something to the effect of, “[s]ometimes I get so frustrated with you.” On August 8, 2000, Bubar wrote the memorandum to Castronova, the supervisor of the plaintiff, Bubar and Carini. Bubar wrote in this memorandum that she meant to “reiterate and clarify” the concerns she stated in a meeting she had with Castronova and Carini on August 4, 2000. Bubar made the following statement in the memorandum: “[The plaintiffs] anger and her unprofessional behavior directed towards me continues in an unresolved pattern. ... I find [the plaintiffs] more recent verbal accusations and written documentation extremely threatening to me, especially due to the fact that [her] past history of anger resulted in her physically assaulting me in the work place. Based on these factors, I am acutely aware that [the plaintiff] has demonstrated a true capacity to harm, not only my professional character and reputation, but also, [she] presents a very real threat of physical danger to me. I still do not feel safe.” Bubar concluded the memorandum with the following: “I am requesting York Correction Institution’s administration to refer this matter to Affirmative Action for resolution.” This statement, which the plaintiff alleges to be defamatory in nature, forms the basis for count two.

On August 10, 2000, a meeting was held among the plaintiff, Bubar and Charlene Burton, an affirmative action officer with the department of correction. Also present were Nancy Chartier, a coworker at York, and Charles Ward, a union representative. The plaintiff alleged in count one that Bubar made the following defamatory statement at the meeting: “ ‘[The plaintiff] put her hands on my neck and choked me so hard I could not feel my feet.’ ” This meeting was described as an “affirmative action meeting” by the plaintiff, Bubar and Ward in separate department incident reports filed in early 2001. In another incident report completed by Chartier, she stated that the purpose of the meeting was to attempt to resolve “an issue between staff . . . .” The statement made in this meeting forms the basis for count one.

A second meeting was held the following month. Present at this meeting were the plaintiff, Bubar, Burton, Ward and Carini. In his incident report, Ward stated that this meeting “was in regards to Bubar’s accusation that [the plaintiff] allegedly choked her.” In an incident report prepared by Bubar, she stated that at that second meeting, “Burton stated that since there was no initial incident report written regarding this matter . . . she would not formally pursue any part of it, equating it to a ‘moot point’.” Also, according to Bubar’s account of the second meeting, “Burton stated that nothing further would ever be done with this incident: there would be no report, nothing written, or nothing placed into our [department of correction] personnel files regarding this matter.” In her incident report, the plaintiff claims that Burton contacted her on November 9, 2000, and informed her that “an investigation was never conducted because the choking incident was not an affirmative [action] matter.”

The defendants moved for summary judgment as to counts one and two on the ground that Bubar was entitled to absolute immunity because the statements were made during the course of an affirmative action investigation. Because of Burton’s statements that the incident was “not an affirmative [action] matter” and that she would not formally pursue it, the court concluded that a genuine issue existed as to whether an affirmative action investigation had ever been instituted. The court denied the defendants’ motion, and they appealed.

“A defamatory statement is defined as a communication that tends to harm the reputation of another as to lower him in the estimation of the community or to deter third persons from associating or dealing with him .... To establish a prima facie case of defamation, the plaintiff must demonstrate that: (1) the defendant published a defamatory statement; (2) the defamatory statement identified the plaintiff to a third person; (3) the defamatory statement was published to a third person; and (4) the plaintiffs reputation suffered injury as a result of the statement.” (Citations omitted; internal quotation marks omitted.) Cweklinsky v. Mobil Chemical Co., 267 Conn. 210, 217, 837 A.2d 759 (2004).

“The effect of an absolute privilege in a defamation action [however] is that damages cannot be recovered for a defamatory statement even if it is published falsely and maliciously. . . . [L]ike the privilege which is generally applied to pertinent statements made in formal judicial proceedings, an absolute privilege also attaches to relevant statements made during administrative proceedings which are quasijudicial in nature. . . . Once it is determined that a proceeding is quasijudicial in nature, the absolute privilege that is granted to statements made in furtherance of it extends to every step of the proceeding until final disposition.” (Citations omitted; internal quotation marks omitted.) Kelley v. Bonney, supra, 221 Conn. 565-66.

“The judicial proceeding to which [absolute] immunity attaches has not been defined very exactly. It includes any hearing before a tribunal which performs a judicial function, ex parte or otherwise, and whether the hearing is public or not. It includes, for example, lunacy, bankruptcy, or naturalization proceedings, and an election contest. It extends also to the proceedings of many administrative officers, such as boards and commissions, so far as they have powers of discretion in applying the law to the facts which are regarded as judicial or quasi-judicial, in character.” Craig v. Stafford Construction, Inc., supra, 271 Conn. 84-85. In Kelley, our Supreme Court delineated several factors that assist in determining whether a proceeding is quasi-judicial in nature. These factors include “whether the body has the power to: (1) exercise judgment and discretion; (2) hear and determine or to ascertain facts and decide; (3) make binding orders and judgments; (4) affect the personal or property rights of private persons; (5) examine witnesses and hear the litigation of the issues on a hearing; and (6) enforce decisions or impose penalties.” Kelley v. Bonney, supra, 221 Conn. 567. “Further, it is important to consider whether there is a sound public policy reason for permitting the complete freedom of expression that a grant of absolute immunity provides.” Id.

In Kelley, our Supreme Court held that statements made by persons requesting the state board of education to investigate a local teacher were absolutely privileged. Id., 571. Similar to the memorandum at issue in the present case, the source of the allegedly defamatory statements in Kelley was a letter written by members of a local school board requesting an investigation into acts of alleged wrongdoing by a teacher in the local board’s district. Id., 554-55. In reaching its conclusion that the statements in the letter were absolutely privileged, the court considered the factors enumerated previously and concluded that the state board of education was a quasi-judicial body. Id., 571. The court noted the state board’s ability to revoke a teaching certificate and the requirement that a request for revocation be submitted under oath. Id., 567-69. The state board was required to conduct a preliminary inquiry to determine whether probable cause existed. Id., 569. If it were to find that probable cause existed, the holder of the certificate would be notified, and a public hearing would be held at the request of the holder. Id., 569-70. At the hearing, the holder was entitled to counsel, to be heard, to call and to cross-examine witnesses and to present oral argument. Id., 570. Finally, the state board was required to state in writing the reasons for its decision. Id. The court concluded that “[t]he detailed procedures . . . and the compelling public policy concern for the protection of school age children persuade us that the decertification proceedings before the state board of education were quasijudicial in nature, and that any steps made as a requisite step in those proceedings were absolutely privileged.” Id., 571.

In Craig v. Stafford Construction, Inc., supra, 271 Conn. 88, our Supreme Court applied the factors articulated in Kelley and concluded that an investigation conducted by the internal affairs division of the Hartford police department was a quasi-judicial proceeding. The allegedly defamatory statement in Craig was a citizen complaint to the department. Id., 81. It accused an officer of using a racial slur while on the job. Id. In support of its conclusion that the investigation by the department constituted a quasi-judicial proceeding, the court noted that the internal affairs investigation process required complaints to be put into written form and to be sent to the internal affairs division where a determination would be made as to whether the charges would be investigated by the officer’s immediate supervisor or an internal affairs investigator. Id., 87. If, as in Craig, an internal affairs investigator is assigned, the investigator acts as a fact finder by interviewing witnesses, who give sworn statements under penalty of criminal liability. Id. The investigator then prepares a report that is presented to the commander of the internal affairs division, who reviews the report and then forwards it to a bureau commander. Id. The bureau commander then reviews the report and determines whether the department should further investigate the claims. Id. If the department determines there should be further investigation, the chief of police may pursue one of several options, including ordering command discipline, issuing an oral reprimand, issuing a written reprimand, ordering an expedited hearing or ordering a formal hearing. Id. At a formal hearing, the accused has the right to counsel, witnesses testify under oath, the accused has the right to cross-examine, and a city attorney is present to rule on questions of evidence. Id., 88. The formal hearing carries a potential penalty of suspension or termination, and the officer has the right to appeal from the decision. Id., 87-88. After outlining this process, the court determined that the internal affairs procedure met most of the six factors articulated in Kelley and determined that it was a quasi-judicial proceeding. Id., 88-90. On the basis of this determination, the court concluded that the statements made during the course of the internal affairs investigation were entitled to the protection of absolute immunity. Id., 93. Similar to the present case, the allegedly defamatory statements in Craig were made during the preliminary stages of the investigation, before any formal action was taken. Id., 81. These statements were entitled to absolute immunity because immunity “extends to every step of the [proceeding] until final disposition.” (Internal quotation marks omitted.) Id., 93, quoting Kelley v. Bonney, supra, 221 Conn. 566.

In the context of the present case, the department of correction’s affirmative action investigation procedure is governed by the department’s administrative directive 2.1 entitled “Equal Employment Opportunity and Affirmative Action.” Paragraph ten of the directive, entitled “Grievance Procedure,” outlines the steps to be taken to resolve a grievance brought to the affirmative action unit. It requires a grievance to be filed with the affirmative action unit within sixty days of the alleged discriminatory act. The affirmative action unit is directed first to attempt to resolve the grievance “through an informal process” to “reconcile the matter at the lowest possible level.” The affirmative action unit first conducts an investigation to determine whether an employment discrimination violation may have occurred. If it concludes that the grievance is not valid or that no discriminatory act occurred, the grievance may be dismissed. This decision is appealable to the commissioner of correction. If, however, it concludes that a violation may have occurred, it is directed to “initiate attempts to cause reconciliation of the parties.” If the parties to the grievance agree to a resolution, the terms of the resolution are set forth in a written agreement that is signed by both parties. The commissioner of correction has the power to enforce the terms of the resolution agreement. The grievance procedure also permits the filing of complaints with the commission on human rights and opportunities or the federal Equal Employment Opportunity Commission but requires that the informal grievance process, once initiated, be exhausted before these alternate routes are pursued.

With this background in mind, we conclude that the department of correction’s affirmative action investigation process constitutes a quasi-judicial proceeding and, accordingly, statements made within the context of that investigation are appropriately afforded absolute privilege. We consider the factors articulated in Kelley v. Bonney, supra, 221 Conn. 567. With regard to the first factor, affirmative action unit officers exercise judgment and discretion during the informal investigation process when they determine whether a grievance is valid and whether a discriminatory act has occurred. If they determine that the grievance is not valid or no discriminatory act has occurred, the grievance may be dismissed, subject to review by the commissioner of correction. If they determine that the grievance is valid and a discriminatory act has occurred, they initiate attempts to reach a reconciliation agreement between the parties. The act of attempting to reconcile the grievance between the parties is analogous to the procedures of other bodies that we have concluded are quasi-judicial in nature. See Preston v. O’Rourke, 74 Conn. App. 301, 312, 811 A.2d 753 (2002) (concluding that arbitration process was quasi-judicial proceeding).

As to the second factor, affirmative action officers hear and ascertain facts during the informal investigation. Officers must decide, on the basis of the facts gathered during the informal investigation phase of the procedure, whether a discriminatory act has occurred and whether to proceed with attempts to reconcile the grievance between the parties. The directive’s requirement that officers “attempt to reconcile the matter at the lowest possible level” necessarily requires that they hear and determine facts.

The third factor is whether the body has the power to make binding orders and judgments. Apparently, such power is indirect, though not entirely lacking: the agreements reached are enforceable in that the commissioner of correction is empowered to make binding orders of compliance if a party fails to meet the obligations set forth in the resolution agreement between the parties.

As to the fourth factor, the investigation may have some effect on personal or property rights: Administrative directive 2.6, entitled “Employee Discipline,” grants the commissioner of correction responsibility “for approving all dismissals, demotions or suspensions . . . .” Disciplinary action may result from the violation of agreements, and the affirmative action process must be exhausted before other administrative remedies may be pursued. See Craig v. Stafford Construction, Inc., supra, 271 Conn. 90 (potential suspension or dismissal of officer being investigated affects personal or property rights).

With regard to the fifth factor, examining witnesses and hearing litigation, the administrative directive governing the affirmative action unit states that its responsibilities include conducting and overseeing “the investigation and resolution of discrimination complaints . . . made under the Department’s Affirmative Action Grievance Procedure.” Questioning witnesses and hearing the issues, though quite informally, fall under the affirmative action officers’ responsibility to investigate grievances and resolve them “at the lowest possible level.” Furthermore, paragraph twelve of administrative directive 2.1 prohibits adverse action against an individual for “filing a complaint, testifying, assisting or participating in any manner in an investigation proceeding or hearing.” This section signals that the grievance procedure contemplates the calling of witnesses and hearing of testimony as part of the affirmative action investigation process.

Finally, the sixth factor addresses the body’s ability to enforce decisions or to impose penalties. The commissioner of correction has the power to enforce the terms of any resolution agreement, and the administrative directive on employee discipline permits the commissioner to impose penalties for failure to follow orders.

The contemplated procedures are informal and allow for a degree of flexibility in resolving workplace conflict. Some of the Kelley factors are more clearly satisfied than others. See Craig v. Stafford Construction, Inc., supra, 271 Conn. 94-95 (quasi-judicial body need not possess all six powers). On balance, however, we believe that the process has sufficient indicia of regularity to qualify as a quasi-judicial proceeding.

Additionally, there are strong public policy justifications for affording absolute immunity. “The policy underlying the privilege is that in certain situations the public interest in having people speak freely outweighs the risk that individuals will occasionally abuse the privilege by making false and malicious statements.” (Internal quotation marks omitted.) Petyan v. Ellis, supra, 200 Conn. 246. It “reflects the unspoken reality that, if there were no absolute immunity, good faith criticism of governmental misconduct might be deterred by concerns about unwarranted litigation.” (Internal quotation marks omitted.) Craig v. Stafford Construction, Inc., supra, 271 Conn. 95. In Craig, our Supreme Court recognized the “debilitating” effect that a false allegation of racial discrimination can have on a police officer but concluded that the policy of encouraging citizen complaints outweighed the need to protect the reputation of the officer against whom a complaint is made. Id., 95-96. The same reasoning applies in the present case. A false allegation of discrimination to the affirmative action unit at the department of correction may have a debilitating effect on the employee against whom the complaint is made. We conclude, however, that the policy of encouraging candid disclosure of discriminatory occurrences outweighs the risk that statements made in the context of an affirmative action investigation may be false or malicious.

Having concluded that the department of correction’s affirmative action investigation constitutes a quasi-judicial proceeding, we must next determine whether the alleged defamatory statements were made in the course of the proceeding and whether they related to the subject matter of that proceeding. See Kelley v. Bonney, supra, 221 Conn. 566 (absolute privilege attaches to relevant statements made in furtherance of quasi-judicial proceeding). Because the alleged defamatory statements clearly related to the subject matter of the proceeding, that being the alleged choking incident, we must determine only whether the statements at issue were made in the course of the proceeding. “Once it is determined that a proceeding is quasijudicial in nature, the absolute privilege that is granted to statements made in furtherance of it extends to every step of the proceeding until final disposition.” (Emphasis added; internal quotation marks omitted.) Id. “[AJllegations contained within a complaint in a quasijudicial proceeding are absolutely privileged.” Id., 571.

Bubar’s two statements at issue were made in an effort to initiate an affirmative action investigation. The memorandum containing the statement forming the basis of count two of the plaintiffs amended complaint concluded with a specific request that the matter be referred to the affirmative action unit. The memorandum is functionally identical to the request for the investigation in Kelley. See id., 554-55. The statement at issue in the first count was made during a meeting with the affirmative action officer in response to Bubar’s earlier request that the matter be referred to the affirmative action unit. Like the statements at issue in Craig, which were made in the preliminary stage of responding to a citizen complaint, the allegedly defamatory statements in the present case were made during the initial fact gathering phase of the proceeding.

The plaintiff, however, argues that the statements were not made in the context of an affirmative action investigation because affirmative action officer Burton concluded that the alleged choking incident was “not an affirmative [action] matter.” The plaintiff argues that “[b]ecause [Burton] concluded that the matter was not in her jurisdiction, she never attempted to resolve the matter at all.”

Contrary to the plaintiffs assertions, the fact that Burton decided against taking further action does not mean that Bubar’s statements were not made in the context of a quasi-judicial proceeding. If, for example, a plaintiff filed a complaint in the Superior Court that was later dismissed for lack of jurisdiction, the plaintiff would still be entitled to absolute immunity against defamation claims arising from statements made in that complaint despite the fact that the action was dismissed. See DeLaurentis v. New Haven, 220 Conn. 225, 263, 597 A.2d 807 (1991) (“[t]he common law protects allegations in a complaint with an ‘absolute privilege’ ”). In Hopkins v. O’Connor, 282 Conn. 821, 925 A.2d 1030 (2007), our Supreme Court faced the issue of whether a police officer’s actions pursuant to General Statutes § 17a-503 (a), which permits an officer to “execute a written request for [an] emergency examination” of an individual “in need of immediate care and treatment,” were sufficiently connected to a commitment proceeding to warrant absolute immunity. Hopkins v. O’Connor, supra, 837; General Statutes § 17a-503 (a). In its analysis of this issue, the court stated: “It would, in our view, make no sense to make the police officer’s immunity dependent on the outcome of that evaluation and whether the psychiatrist determines that commitment is appropriate.” Hopkins v. O’Connor, supra, 837. Similarly, in Kelley, the court concluded that a request for an investigation to be held was entitled to absolute privilege regardless of the ultimate outcome of that investigation. Kelley v. Bonney, supra, 221 Conn. 571. By analogy, it would make no sense in the present case to make a complainant’s immunity dependent on the affirmative action officer’s conclusion. Furthermore, it should be noted that at least two meetings were held between the plaintiff, Bubar, the affirmative action officer and others before the affirmative action unit’s involvement in the matter was terminated. We conclude that Bubar’s statements were made in the course of the proceeding and are therefore entitled to absolute immunity.

Ill

The defendants next claim that the court improperly denied their motion for summary judgment as to counts three and four of the amended complaint. The defendants argue that Carini and Castronova are entitled to qualified immunity because they did not violate a clearly established constitutional right. The plaintiff argues that the court correctly denied summary judgment as to counts three and four because there was at least a genuine issue of fact as to whether Carini and Castro-nova violated her constitutional rights to due process and equal protection under the fourteenth amendment to the United States constitution. We agree with the defendants.

In counts three and four of her amended complaint, the plaintiff alleged that Carini and Castronova were required to initiate and to conduct an investigation into Bubar’s allegation of “workplace violence” as required by Executive Order No. 16, “Violence in the Workplace Prevention Policy” (August 4,1999) (executive order). In count three, the plaintiff specifically alleged that Carini’s “failure, refusal and neglect to investigate and act upon the reported assault was an abuse of his authority, and constituted a deliberate indifference to the plaintiffs rights to equal protection and due process guaranteed to her by the [fourteenth] [a]mendment to the United States [constitution and protected by 42 U.S.C. § 1983.” In count four, the plaintiff alleged that Castronova’s “failure to investigate constituted a deliberate indifference and/or denial of the plaintiffs rights to equal protection and due process of law guaranteed to her by the [fourteenth] [a]mendment to the United States [c]onstitution and protected by 42 U.S.C. § 1983.”

The defendants sought summary judgment as to counts three and four on the ground that Carini and Castronova were entitled to qualified immunity. In its denial of the defendants’ motion, the court rejected the defendants’ qualified immunity argument. In its articulation, the court concluded that “there is clearly an established right at stake” and stated that “there are genuine issues of material fact as to the objective reasonableness of [Carini’s and Castronova’s] conduct in not immediately instituting an investigation after receiving allegations of a physical assault . . . .”

“[A] claim for qualified immunity from liability for damages under § 1983 raises a question of federal law . . . and not state law. Therefore, in reviewing these claims of qualified immunity we are bound by federal precedent, and may not expand or contract the contours of the immunity available to government officials. . . . Furthermore, in applying federal law in those instances where the United States Supreme Court has not spoken, we generally give special consideration to decisions of the Second Circuit Court of Appeals.” (Citations omitted; internal quotation marks omitted.) Schnabel v. Tyler, supra, 230 Conn. 742-43. “Qualified immunity shields government officials performing discretionary functions from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.” (Internal quotation marks omitted.) Tuchman v. State, 89 Conn. App. 745, 762,878 A.2d 384, cert. denied, 275 Conn. 920, 883 A.2d 1252 (2005).

“When [a motion for summary judgment] is based on assertion of qualified immunity, the first issue is whether a clearly established right is at stake. ... If it is, the court must then address whether the conduct was objectively reasonable. If not, the motion must be denied.” (Citation omitted.) Blue v. Koren, 72 F.3d 1075, 1084 (2d Cir. 1995), citing Siegert v. Gilley, 500 U.S. 226, 232, 111 S. Ct. 1789, 114 L. Ed. 2d 277 (1991). “A necessary concomitant to the determination of whether the constitutional right asserted by a plaintiff is ‘clearly established’ at the time the defendant acted is the determination of whether the plaintiff has asserted a violation of a constitutional right at all.” Siegert v. Gilley, supra, 232. Recently, the United States Supreme Court held that courts considering a claim of qualified immunity may “exercise their sound discretion in deciding which of the two prongs of the qualified immunity analysis should be addressed first in light of the circumstances in the particular case at hand.” Pearson v. Callahan, 555 U.S. 223, 236, 129 S. Ct. 808, 172 L. Ed. 2d 565 (2009). Thus, we may first decide whether the facts alleged state a violation of a constitutional right or whether the right at issue was “clearly established” at the time of the defendants’ alleged misconduct. See id.

We begin our analysis with the issue of whether the facts alleged in the amended complaint state a violation of a constitutional right. The plaintiffs allegations against Carini in count three and Castronova in count four are very similar and are, for the purposes of the following analysis, functionally identical. In count three, the plaintiff alleged that Carini received notice of Bubar’s alleged defamatory statement made during the August 10,2000 meeting on that same date. In count four, the plaintiff alleged that Bubar prepared and delivered the August 8, 2000 memorandum that contained the defamatory statements to Castronova on that date. The plaintiff alleged that Bubar’s accusations against her in the meeting and the memorandum constituted reports of violence in the workplace, and, therefore, Carini and Castronova were required by the executive order to “initiate and conduct an investigation into the reported violence pursuant to” administrative directives, department of correction policies and the executive order.

In count three, the plaintiff further alleged that Carini’s failure to conduct the investigation, “which would have refuted . . . Bubar’s allegations and cleared the plaintiffs name,” left the “allegations unrefuted, created a false appearance that the plaintiff was guilty of . . . Bubar’s allegations against her [and] resulted in employment actions that were adverse to the plaintiff,” including, inter alia, being reassigned to lesser positions, being denied opportunities for training, promotion and transfer, receiving lower employee evaluation marks and being assigned to “environments which were known to contain hazards and which were harmful to her . . . .” In count four, the plaintiff alleged that “[o]n or about January 9, 2001, in an effort to clear her name and prevent further adverse employment actions against her, the plaintiff . . . submitted a written incident report to . . . Castronova and requested that an investigation be initiated and conducted into the false allegations which had been brought against her by . . . Bubar on August 8 and 10, 2000,” but Castronova failed to do so, resulting in the adverse employment actions listed in count three.

In both counts three and four, the plaintiff alleged that reports of workplace violence within the department of correction involving employees other than the plaintiff are “properly investigated and acted upon” even though the allegations concerning the plaintiff were not. Counts three and four both alleged that the plaintiff has “constitutionally protected significant property interests in her reputation, employment and promotions that would affect her benefits and pension.” Count three alleged that Carini’s “failure, refusal and neglect to investigate and act upon the reported assault was an abuse of his authority, and constituted a deliberate indifference to the plaintiffs rights to equal protection and due process guaranteed to her by the [fourteenth] [a]mendment to the United States [constitution and protected by 42 U.S.C. § 1983.” Count four alleged that Castronova’s “failure to investigate constituted a deliberate indifference and/or denial of the plaintiffs rights to the equal protection and due process of law guaranteed to her by the [fourteenth] [a]mendment to the United States [c]onstitution and protected by 42 U.S.C. § 1983.”

In sum, the plaintiff essentially alleged that an investigation into Bubar’s accusations against her would have cleared her name and that Carini’s and Castronova’s failure to conduct such an investigation, as required by the executive order and as is normally conducted regarding other similarly situated employees, resulted in damage to her reputation, which, in turn, resulted in adverse employment actions being taken against her. The plaintiff alleged that the failures to conduct investigations constituted violations of her equal protection and due process rights. To determine whether Carini and Castronova are entitled to qualified immunity, we must determine whether the facts alleged do in fact state clear and cognizable violations of the rights to due process and to equal protection.

We turn first to the question of whether the facts presented make out a due process violation. “The procedural component of the [d]ue [p]rocess [c]lause does not protect everything that might be described as a benefit: To have a property interest in a benefit, a person clearly must have more than an abstract need or desire and more than a unilateral expectation of it. He must, instead, have a legitimate claim of entitlement to it. . . . Such entitlements are, of course, . . . not created by the [constitution. Rather, they are created and their dimensions are defined by existing rules or understandings that stem from an independent source such as state law.” (Citation omitted; internal quotation marks omitted.) Town of Castle Rock v. Gonzales, 545 U.S. 748, 756, 125 S. Ct. 2796, 162 L. Ed. 2d 658 (2005). The issue, therefore, is whether the plaintiff had a constitutionally cognizable property interest in an investigation being conducted into the allegations against her.

In Town of Castle Rock, the United States Supreme Court considered the issue of whether an individual who has obtained a restraining order has a constitutionally protected interest in its enforcement by police. In its analysis of the issue, the court concluded that the relevant language of the state statute that set forth the duties of the police with regard to restraining orders did not make the enforcement of the orders mandatory. Id., 759-60. The court further stated that “[e]ven if the statute could be said to have made enforcement of restraining orders ‘mandatory’ . . . that would not necessarily mean that state law gave ... an entitlement to enforcement of the mandate.” Id., 764-65. This is because “[m]aking the actions of government employees obligatory can serve various legitimate ends other than the conferral of a benefit on a specific class of people.” Id., 765. The state statute at issue in Town of Castle Rock did not mention an entitlement to enforcement to the protected persons. Id. The court also stated that “it is by no means clear that an individual entitlement to enforcement of a restraining order,” were one to exist, “could constitute a ‘property’ interest for purposes of the [d]ue [p]rocess [c]lause” because “[s]uch a right would not . . . resemble any traditional conception of property.” Id., 766. On the basis of these conclusions, the court held that “the benefit that a third party may receive from having someone else arrested for a crime generally does not trigger protections under the [d]ue [p]rocess [cjlause, neither in its procedural nor in its ‘substantive’ manifestations.” Id., 768.

The Supreme Court’s decision in Town of Castle Rock guides our analysis. Even if we were to assume, arguendo, that the executive order made the investigation of complaints of workplace violence by supervisors such as Carini and Castronova mandatory, we are not to conclude that the executive order granted to an accused employee, for the purpose of constitutional analysis, an entitlement to an investigation, or that such an entitlement, were it to exist, constituted a “property” interest for purposes of the due process clause. See id., 764-66. The executive order does not mention any entitlement to an individual, such as the plaintiff, who is accused of an act of workplace violence, to an investigation to clear her name. It prohibits acts of workplace violence, directs individuals who believe they have been victims of workplace violence or a threat of violence to report them and directs supervisors to initiate investigations of the complaints. It does not directly speak of individuals who are accused of acts of workplace violence, let alone grant them an entitlement to an investigation to clear their name. We certainly cannot draw something as significant as a constitutional right from such circumstances.

Moreover, we do not find a property interest in an entitlement to an investigation, were such an entitlement to exist, because an entitlement to process cannot constitute a property interest within the meaning of the due process clause. In Town of Castle Rock v. Gonzales, supra, 545 U.S. 748, the dissent argued that the state statute governing police officers’ responsibilities with regard to restraining orders made mandatory the obligation either to make an arrest or to seek an arrest warrant. Id., 785 (Stevens, J., dissenting). The majority responded to this argument by stating that “the seeking of an arrest warrant would be an entitlement to nothing but procedure—which we have held inadequate even to support standing . . . much less can it be the basis for a property interest.” (Citation omitted.) Id., 764. In his concurrence, Justice Souter expanded upon this point. He stated: “The [d]ue [p]rocess [c]lause extends procedural protection to guard against unfair deprivation by state officials of substantive state-law property rights or entitlements; the federal process protects the property created by state law. But [the respondent] claims a property interest in a state-mandated process in and of itself. This argument is at odds with the rule that [p]rocess is not an end in itself. Its constitutional purpose is to protect a substantive interest to which the individual has a legitimate claim of entitlement. ... In putting to rest the notion that the scope of an otherwise discernible property interest could be limited by related state-law procedures, this [c]ourt observed that [t]he categories of substance and procedure are distinct. . . . Property cannot be defined by the procedures provided for its deprivation. . . . Just as a [s]tate cannot diminish a property right, once conferred, by attaching less than generous procedure to its deprivation . . . neither does a [s]tate create a property right merely by ordaining beneficial procedure unconnected to some articulable substantive guarantee.” (Citations omitted; internal quotation marks omitted.) Id., 771 (Souter, J., concurring).

In the present case, the plaintiffs claim that Carini’s and Castronova’s failure to conduct an investigation constituted a deprivation of her due process rights is necessarily premised on her having a property right to an investigation into the allegations made against her. To assert a right to an investigation is to assert a right to process, as in Town of Castle Rock. See id., 764. The plaintiff does not have a property right to such an investigation, according to the Town of Castle Rock majority, because an investigation is process. We conclude that the facts alleged do not state a due process violation.

We turn next to the issue of whether the facts alleged state an equal protection violation. Counts three and four allege equal protection violations by Carini and Castronova for their failure to conduct an investigation into the allegations of workplace violence against the plaintiff when allegations against other similarly situated employees were investigated. The plaintiff does not assert that her different treatment was caused by her membership in a particular class. As such, the plaintiffs equal protection claim may be considered a “class-of-one” claim. See Engquist v. Oregon Dept. of Agriculture, 553 U.S. 591, 594, 128 S. Ct. 2146, 170 L. Ed. 2d 975 (2008) (describing “class-of-one” theory of equal protection as claim by public employee alleging arbitrarily different treatment from other similarly situated employees with no assertion that different treatment was based on employee’s membership in particular class).

In Engquist, the United States Supreme Court similarly considered a “class-of-one” claim. Id. The petitioner in that case was a public employee who claimed that “she was fired not because she was a member of an identified class (unlike her race, sex, and national origin claims), but simply for ‘arbitrary, vindictive, and malicious reasons.’ ” Id., 595. She argued that the equal protection clause “forbids public employers from irrationally treating one employee differently from others similarly situated, regardless of whether the different treatment is based on the employee’s membership in a particular class.” Id., 597. The court rejected this argument and held that the class-of-one theory of equal protection does not apply in the public employment context. It concluded that “ratifying a class-of-one theory of equal protection in the context of public employment would impermissibly constitutionalize the employee grievance. . . . The federal court is not the appropriate forum in which to review the multitude of personnel decisions that are made daily by public agencies. . . . Public employees typically have a variety of protections from just the sort of personnel actions about which [the petitioner] complains, but the [e]qual [protection [c]lause is not one of them. (Citations omitted; internal quotation marks omitted.) Id., 609.

Like the petitioner’s claim discussed by the court in Engquist, the plaintiffs equal protection claim in the present case is premised on the class-of-one theory because it is based not on membership in a particular class but, rather, on her allegedly receiving arbitrarily different treatment from similarly situated individuals. In light of the Supreme Court’s decision in Engquist, we conclude that the facts alleged do not state an equal protection violation.

Because there is no genuine issue of material fact as to whether a constitutionally protected property interest or a constitutionally cognizable equal protection right has been clearly violated, we conclude that Carini and Castronova are entitled to qualified immunity. We note that the absence of relief in the form of damages pursuant to 42 U.S.C. § 1983 does not mean that aperson in the plaintiffs position is without remedy. The United States Supreme Court has repeatedly held that constitutional remedies are simply not substitutes for traditional state court remedies. See, e.g., Engquist v. Oregon Dept. of Agriculture, supra, 553 U.S. 591; Connick v. Myers, 461 U.S. 138, 103 S. Ct. 1684, 75 L. Ed. 2d 708 (1983); Bishop v. Wood, 426 U.S. 341, 96 S. Ct. 2074, 48 L. Ed. 2d 684 (1976).

The judgment is reversed and the case is remanded with direction to grant the defendants’ motion for summary judgment as to all counts of the plaintiffs amended complaint.

In this opinion the other judges concurred.

       The standard of review applies to parts II and III.

       On December 18, 2008, we notified the parties via letter to be prepared to address at oral argument “any questions that the court may have as to whether the portions of the defendants’ appeal that do not pertain to the doctrine of absolute immunity should be dismissed for lack of a final judgment.”

       The defendants also claim that the plaintiffs § 1983 claims were not viable because the plaintiffs equal protection and due process rights were not violated. We do not consider these claims on appeal. See Cox v. Aiken, 86 Conn. App. 587, 591 n.4, 595 n.7, 595 n.8,862 A.2d 319 (2004) (defendants’ claim regarding exhaustion of contractual remedies could not be reviewed in appeal from denial of motion to dismiss because, unlike their colorable claims of sovereign immunity, their exhaustion claim did not constitute appealable interlocutory ruling), rev’d on other grounds, 278 Conn. 204, 897 A.2d 71 (2006).

       This administrative directive explicitly incorporates under “Authority and Reference” administrative directive 2.1, which outlines the affirmative action unit grievance procedure.

       Paragraph twelve of administrative directive 2.1 itself prohibits adverse action for “filing a complaint, testifying, assisting or participating in any manner in an investigation proceeding or hearing.”

       The plaintiff does not include in her brief to this court any articulated claim that workplace violence has nothing to do with affirmative action beyond quoting, for the purpose of showing that an affirmative action investigation never occurred, Burton’s statement that the allegations were “not an affirmative [action] matter.” It is unclear from the record exactly why Bubar requested that the affirmative action unit become involved in an accusation of workplace violence. From the plaintiffs testimony during a deposition, it appears that the plaintiff and Bubar were under the impression that Bubar’s accusations against the plaintiff would fall within the scope of a “hostile work environment” claim to the affirmative action unit. Because this issue was not clearly raised, it does not affect our analysis. See Hare v. McClellan, 234 Conn. 581, 588 n.5, 662 A.2d 1242 (1995).

       The executive order provides in pertinent part: “I, John G. Rowland, [gjovemor of the [sjtate of Connecticut, acting by virtue of the authority vested in me by the [c]onstitution and by the statutes of this state, do hereby ORDER and DIRECT:
      “1. That all state agency personnel, contractors, subcontractors, and vendors comply with the following Violence in the Workplace Prevention Policy.

      “The [sjtate of Connecticut adopts a statewide zero tolerance policy for workplace violence.
      “Therefore, except as may be required as a condition of employment. . . [n]o employee shall cause or threaten to cause death or physical injury to any individual in a state worksite. . . .
      “3. That all managers and supervisors are expected to enforce this policy fairly and uniformly.
      “4. That any employee who feels subjected to or witnesses violent, threatening, harassing, or intimidating behavior in the workplace immediately report the incident or statement to their supervisor, manager, or human resources office.
      “5. That any employee who believes that there is a serious threat to their safety or the safety of others that requires immediate attention notify proper law enforcement authorities and his or her manager or supervisor.
      “6. That any manager or supervisor receiving such a report shall immediately contact their human resources office to evaluate, investigate and take appropriate action. . . .
      “9. That this order applies to all state employees in the executive branch.
      “10. That each agency will monitor the effective implementation of this policy.
      “11. That this order shall take effect immediately.” (Emphasis in original.)


source: Caselaw Access Project

author: STOUGHTON, J.

license: Public Domain

text:
    STATE OF CONNECTICUT v. RANDAL LICARI
    (AC 28735)
    Flyim, C. J., and Robinson and Stoughton, Js.

      Argued March 10
    officially released July 14, 2009

      Raymond L. Durelli, special public defender, for the appellant (defendant).

      Frederick W. Fawcett, supervisory assistant state’s attorney, with whom, on the brief, were Jonathan C. Benedict, state’s attorney, and Howard S. Stein, assistant state’s attorney, for the appellee (state).
   Opinion

STOUGHTON, J.

The defendant, Randal Licari, appeals from the judgment of conviction, rendered after a jury trial, of arson in the first degree in violation of General Statutes § 53a-lll (a) (3), larceny in the first degree in violation of General Statutes §§ 53a-122 (a) (2) and 53a-119, insurance fraud in violation of General Statutes § 53a-215 (a) (l), and conspiracy to commit larceny in the first degree and insurance fraud in violation of General Statutes §§ 53a-48, 53a-122 (a) (2), 53a-119 and 53a-215. The defendant claims: (1) the trial court abused its discretion when it admitted evidence of uncharged misconduct for the purpose of establishing a common scheme, intent and absence of accident or to corroborate other evidence; (2) the court abused its discretion in admitting the written statement of the defendant’s former wife as substantive evidence under the rule of State v. Whelan, 200 Conn. 743, 753, 513 A.2d 86, cert. denied, 479 U.S. 994, 107 S. Ct. 597, 93 L. Ed. 2d 598 (1986), where the purported written statement was not sufficiently reliable for admission under the rule; (3) the defendant’s conviction of both larceny and insurance fraud violated the double jeopardy clause of the federal constitution; and (4) the defendant was deprived of a fair trial by the prosecutor’s pretrial conduct. We affirm the judgment of the trial court.

The jury reasonably could have found the following facts. On December 15, 2002, the defendant, an employee for the city of New York department of environmental protection (department), left his home around 2 p.m. for a 3:30 p.m. shift at the Croton Lake Gatehouse. In the early morning of December 16, 2002, the defendant received notice, while still at work, that his house, located at 1330 Huntington Turnpike in Trumbull, had been severely damaged by fire. The defendant first called the Trumbull police and fire departments to see if they knew whether his wife and daughter were safe. Once he learned that his wife and daughter were safe, he received permission to leave work and drove to the fire scene, arriving at approximately 2:30 a.m.

Three detectives from the state fire marshal’s office of the Connecticut state police, Roger Baxter, Edgar Rodriguez and John Kananowicz, investigated the fire. Baxter was the electrical consultant, Rodriguez was the case officer and Kananowicz was responsible for the site sketch included in the final report prepared by Rodriguez. Baxter investigated the fire and determined that the origin of the fire was in the comer of the downstairs living area near a stack of Duraflame logs located next to a Christmas tree. He observed that an electrical cord from the Christmas tree lights ran across the top of the stack of Duraflame logs and into an electrical outlet located directly above the Duraflame logs but determined that neither the electrical cord nor the electrical outlet was the cause of the fire. Baxter did not observe any other potential sources of the fire and concluded that the fire was of an “undetermined” origin. A report prepared by Rodriguez determined that the fire appeared “to be accidental in nature and more probably than not caused by the Christmas tree,” but the report indicated that this determination was not absolute and that the investigation could be opened in the future if additional information was obtained.

The defendant hired John Cotter, Jr., of Nutmeg Adjusters Incorporated, a licensed Connecticut public adjuster, to represent him in his insurance claim. Cotter estimated the replacement cost of the house to be $230,000, and the defendant’s insurance company, The Standard Fire Insurance Company, estimated the replacement cost of the house to be $254,500, depreciated to $190,900. On the basis of this information, both Cotter and the insurance company agreed that the full amount of the homeowner’s insurance policy, $181,000, should be paid. After receiving full payment from his insurance company in February, 2003, the defendant began construction on a new house at 1330 Huntington Turnpike. During the time of the construction, the defendant and his family rented a house from his mother, which was located in Patterson, New York.

In addition to his employment with the department, the defendant owned a limousine chauffeur business (business). The primary customers of the business were people needing rides to and from area airports. In April, 2002, the defendant filed for bankruptcy protection pursuant to chapter 7 of the United States Bankruptcy Code as a result of a significant decrease in persons traveling due to the events of September 11, 2001. Although the defendant was granted a discharge in bankruptcy pursuant to 11 U.S.C. § 727, some of his debts relating to the business were not discharged. To pay for his business debts, which totaled more than $80,000; see footnote 8; the defendant refinanced his house, taking out an additional mortgage. At the time of the fire in December, 2002, the defendant had three mortgages on his house. The defendant had been an active gambler since the 1970s and had “financial problems all the time,” thus requiring him to work more than one job.

Heather Licari, the defendant’s daughter from his first marriage, also worked at the department. She had gotten the job through the help of her father and grandfather. In late 2001, Heather Licari moved in with the defendant and his second wife, Angela Licari, in an effort to combat her addiction to prescription drugs. The defendant placed some restrictions on her while she was living at his house. For example, Heather Licari’s boyfriend was not allowed over, and she was not allowed to bring or to use drugs in the defendant’s house. About one or two months before the fire, the defendant asked Heather Licari to leave his house after finding her boyfriend and drug supplier, Frank, in his house.

Near Thanksgiving of 2002, the defendant asked Heather Licari to rent a storage unit. The defendant told Heather Lieari that he was having financial problems and was going to bum down his house. Although Heather Lieari did not rent the storage unit, she helped the defendant transport items to the unit, which the defendant rented on December 12, 2002. On the night of the fire, the defendant called Heather Lieari sometime between 11 p.m. and 1 a.m. and told her that he was on his way back to work and that he had started the fire. He then called her a second time and told her that as he was getting out of the shower in the locker room at work, he was notified of the fire. Edward Olsen, the defendant’s co-worker, received a call from the defendant’s brother regarding the fire and went to find the defendant to notify him of it. Olsen found the defendant as the defendant was leaving the locker room. Olsen testified that he did not know whether the defendant was at the gatehouse the entire night.

Heather Lieari went to the defendant’s house after the fire on December 16, 2002, and walked through it with the defendant. When they were in the living room, the defendant told her that that was the location where he had started the fire, explaining that he had placed Duraflame logs under the Christmas tree. Moreover, as they were walking through the house, the defendant was laughing at the fire investigators calling them “stupid . . . because he thought he got away with [setting the fire].”

In January, 2003, Heather Lieari entered a drug detoxification program, which required her to miss several weeks of work. Because she failed to inform the department that she would be missing work, she lost her job at the department. She then moved in with her new boyfriend, Olivier Vanecci, in Vermont. In December, 2003, the Vermont residence in which Heather Lieari was living was burglarized. One of the items taken in the burglary was a laptop computer that the defendant had stolen from the department. The defendant was unable to use the computer because he did not know the password. Heather Licari, however, had a friend who was able to identify the password, and, because she was able to use the stolen computer, she kept it.

In December, 2004, Heather Licari received a telephone call from the New York state police informing her that they had the items taken in the burglary. When she went to retrieve the items, she spoke with two investigators affiliated with the department. The investigators told her that they had spoken with the defendant and that he told them that she had stolen the laptop. She then told the investigators about the defendant’s burning down his house. She also told them that the defendant had caused a fire that destroyed her automobile in Milford in the summer of 2001 so that she could recover the insurance proceeds and pay off her automobile loan. The investigators relayed this information to Detective Anthony Recupero of the Trumbull police department. On the basis of this information, Recupero began a second investigation of the house fire. As part of his investigation, Recupero received and executed a search and seizure warrant for the defendant’s new house at 1330 Huntington Turnpike on February 14, 2005. During his search, Recupero seized numerous items that the defendant indicated were lost in the fire in the claims submitted to his insurance company. Recupero also interviewed Heather Licari and, in April, 2005, received a sworn written statement from her, detailing the defendant’s involvement in the house fire. In May, 2005, Recupero applied for and was granted an arrest warrant for the defendant.

The defendant’s trial began on October 3, 2006. At the close of the state’s case-in-chief, the defendant made an oral motion for a judgment of acquittal on all counts, which the court denied. The jury returned a verdict of guilty as to all counts. Thereafter, on December 15, 2006, the defendant filed a motion for a new trial and a second motion for a judgment of acquittal. The court denied both motions after a hearing and rendered judgment accordingly. This appeal followed. Additional facts will be set forth as necessary.

I

The defendant first claims that the court improperly admitted testimony that he had set fire to Heather Licari’s automobile in order that she might collect insurance money. The court admitted this testimony under § 4-5 (b) of the Connecticut Code of Evidence, and the defendant claims that the court’s ruling constituted harmful error. We disagree.

“We review the trial court’s decision to admit evidence, if premised on a correct view of the law . . . for an abuse of 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.” (Internal quotation marks omitted.) State v. Beavers, 290 Conn. 386, 396, 963 A.2d 956 (2009).

The defendant contends that the court abused its discretion in admitting the evidence for the purposes of establishing a common scheme, intent and absence of accident or corroboration of other evidence. He claims that the challenged evidence fails to meet the requisite standards for admissibility for any of the purposes for which it was admitted. The state contends that the evidence was relevant on the issue of intent, as to whether the fire was accidentally caused, and to show a common scheme.

The defendant filed a motion in limine requesting that the court preclude the state from introducing any evidence relating to any fire or fires that had occurred in or to a motor vehicle either owned or driven by the defendant. In an offer of proof, the prosecutor informed the court that Heather Licari would testify that the defendant told her that she was foolish to be making car payments on her automobile, an Audi A4, and said that they would get rid of it so that she would not have to make payments anymore. He told his daughter that he was going to start a fire in the car and make it look like an electrical fire so that she could collect the insurance and pay off the automobile loan. The defendant drove the automobile, on August 8, 2001, to the Amateur Jai Alai Fronton in Milford, where he had a second job, and, at about 10:45 p.m., the Milford fire department responded to a fire in Heather Licari’s Audi A4. The defendant told the fire department investigators that he had come out and found the automobile smoking and burning inside. An investigation showed that an electrical fire that appeared accidental had occurred underneath the dashboard. The automobile was a total loss; an insurance claim was paid, and the automobile loan paid off.

The state claimed that this misconduct evidence was admissible for several different reasons under § 4-5 (b). The defendant claimed that he had not benefited from the automobile fire, as he did not receive any of the insurance proceeds, that he never had been charged with any crime in connection with it and that the probative value of this evidence was outweighed by the resulting prejudice to him. The court determined that the relevant rule of evidence was § 4-5 (b) under which evidence of other crimes, wrongs and acts is admissible to prove, among other things, intent, motive, common plan or scheme, absence of mistake or accident, knowledge or a system of criminal activity. The court decided that the evidence was relevant, that it went to show a common plan or scheme but was not the sort of thing that was going to shock the jury and that its probative value was not outweighed by the danger of unfair prejudice. Thereafter, the court instructed the jury that the evidence was not offered to prove the defendant’s bad character or tendency to commit criminal acts but was offered solely to show or to establish “a method or plan or scheme ... in the commission of criminal acts or the existence of intent or the absence of accident.”

It is well established that evidence of prior misconduct is generally inadmissible to prove that a defendant is guilty of the crime charged. State v. Beavers, supra, 290 Conn. 399. On the other hand, evidence of crimes so connected as to tend directly to prove the commission of the charged crime is admissible. Id. For such evidence to be admissible, it must first be relevant to one of the exceptions set forth in § 4-5 (b), and, second, its probative value must outweigh its prejudicial effect. Id., 400. “[T]he trial court’s decision will be reversed only whe[n] an abuse of discretion is manifest or whe[n] an injustice appears to have been done. . . . On review by this court, therefore, every reasonable presumption should be given in favor of the trial court’s ruling.” (Internal quotation marks omitted.) Id.

We agree with the defendant that evidence of the automobile fire was not admissible to show a common scheme or plan. That fire occurred some sixteen months before the house fire. There was no evidence indicating that the two fires were part of a single, overall plan conceived by the defendant to bum both his daughter’s car and his house. Although there was evidence that each fire was set to obtain insurance proceeds, there was no evidence that there was a plan to obtain insurance money by burning insured properties. See State v. Randolph, 284 Conn. 328, 339-46, 933 A.2d 1158 (2007).

The evidence was admissible, however, to prove the closely related issues of intent, which the state was required to prove, and lack of accident or mistake. See State v. Beavers, supra, 290 Conn. 400-401. The evidence that the defendant started a fire in the automobile in order that his daughter might recover insurance proceeds tended to prove that he knew how to start a fire that appeared to be accidental in nature and that he intentionally set fire to his residence to recover insurance proceeds. The defendant testified that he had absolutely nothing to do with the house fire. In addition, no evidence that the house fire had been set was found by the fire investigator and the fire investigation report stated that the fire appeared to be accidental. On the other hand, Heather Licari testified that the defendant told her that he had started the fire. Thus, whether the house fire had been set or was caused accidentally was at issue. The defendant’s success in destroying his daughter’s automobile in what appeared to be an accidental fire so that she might recover the insurance proceeds makes utterly limpid his subsequent intent to bum down his house in what appeared to be an accidental fire to recover the insurance proceeds.

We agree with the court that this evidence was not such as to shock the sensibilities of the jury and that its probative value exceeded its prejudicial effect. We conclude, therefore, that the court did not abuse its discretion in admitting the evidence of the automobile fire.

II

The defendant next claims that the court improperly admitted the written statement of his former wife for substantive purposes under State v. Whelan, supra, 200 Conn. 743, because that statement was not sufficiently reliable. We disagree.

In Whelan, our Supreme Court adopted a hearsay exception allowing the substantive use of prior written, inconsistent statements signed by a declarant who has personal knowledge of the facts stated when he testifies at trial and is subject to cross-examination. Id., 753. Section 8-5 (1) of the Connecticut Code of Evidence codifies this rule and incoiporates subsequent developments and clarifications. See State v. Simpson, 286 Conn. 634, 642, 945 A.2d 449 (2008). The exception applies to a relatively narrow category of prior inconsistent statements and is carefully limited to those prior statements that carry such substantial indicia of reliability as to warrant their substantive admissibility. Id. As with all other admissible nonhearsay evidence, we allow the fact finder to determine the credibility of the hearsay statement upon consideration of all the relevant circumstances. Id., 643. “[A] prior inconsistent statement that fulfills the Whelan requirements may have been made under circumstances so unduly coercive or extreme as to grievously undermine the reliability generally inherent in such a statement, so as to render it, in effect, not that of the witness.” State v. Mukhtaar, 253 Conn. 280, 306, 750 A.2d 1059 (2000). In such circumstances, the court must act as a gatekeeper to ensure that the statement does not go to the jury for substantive purposes if it is persuaded that the statement is so untrustworthy that its admission into evidence would subvert the fairness of the fact-finding process. Id.

The following additional facts are relevant to the defendant’s claim. Barbara Grascia had once been married to the defendant and was the mother of Heather Licari. Grascia testified for the defendant and told the jury that Heather Licari was angry at her father. Grascia testified that the day after Heather Licari gave her statement to the police, Heather Licari told her that the statement was not true and that she was angry and on drugs when she gave the statement. During the trial, but before her testimony, Grascia went to the Trumbull police department and gave a statement to Recupero. In the statement, she explained that she was afraid of the defendant, that he had threatened harm to their daughter, to her and to others in retribution for what was happening to him, and said that she did not want to testify. During his cross-examination of Grascia, the prosecutor offered the statement pursuant to § 8-5 (1).

During her cross-examination, Grascia testified that she had provided the information contained in the nine page, handwritten statement, that she had signed each page of the statement and that each page included a certification that the facts contained therein were true. Grascia testified that she did not want to go to the police department and was advised by her attorney not to do so. She then offered several reasons for having gone to the police department and given the statement. Some of the reasons were that her present husband made her do it; someone from the prosecutor’s office called her brother-in-law, who worked for the district attorney in Westchester, New York, to put pressure on her husband; she was scared; everyone around her was telling her that she would be arrested; and that the prosecutor had tricked her and lied to her. Moreover, she testified that her former father-in-law said that the prosecutor had threatened to arrest every member of the family until he could get to the defendant. On redirect, Grascia admitted that she was not threatened by police while she was at the police department.

When the statement was offered, the defendant conceded that it was a prior inconsistent statement in writing signed by the witness who had personal knowledge of its contents and was available for cross-examination. Although it met the requirements of § 8-5 (1), the defendant objected on the ground that the statement had nothing to do with the charges. When asked if there were any other objections, the defendant replied that there were none. Neither then, nor at any other time, did the defendant make the claim that he makes on appeal; that is, that the circumstances under which the statement was taken were so coercive as to make the statement unreliable.

The defendant acknowledges that this claim was not raised at trial, but he claims that Grascia’s testimony was sufficient to raise the issue of unreliability. He argues that under the circumstances, it would be redundant and a mere formality to specify unreliability as a ground for objection and that the court ought to have conducted a hearing such as suggested in State v. Mukhtaar, supra, 253 Conn. 307 n.27. We agree with the state that this claim is unreviewable because the defendant failed to object to the admission of the Grascia statement on this ground. To preserve an evidentiary ruling for review, trial counsel “must properly articulate the basis of the objection so as to apprise the trial court of the precise nature of the objection and its real purpose, in order to form an adequate basis for a reviewable ruling. . . . [This] serve [s] to alert the trial court to potential error while there is still time for the court to act.” (Internal quotation marks omitted.) State v. Simpson, supra, 286 Conn. 645. “[L]imiting appellate review of evidentiary claims to the ground asserted at trial applies with equal force to Whelan issues.” Id., 646. Accordingly, we decline to review the defendant’s claim.

The defendant has also requested review under the plain error doctrine. See Practice Book § 60-5. “[T]he plain error doctrine ... is not ... a rule of review-ability. 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. ... A party cannot prevail under plain error unless it has demonstrated that the failure to grant relief will result in manifest injustice. ... [A] defendant cannot prevail under [the plain error doctrine] . . . unless he demonstrates that the claimed error is both so clear and so harmful that a failure to reverse the judgment would result in manifest injustice.” (Internal quotation marks omitted.) State v. Simpson, supra, 286 Conn. 647-48 n.16.

The defendant bases this claim on his assertion that the court should have conducted a Mukhtaar type hearing on the reliability of Grascia’s statements. Grascia testified to a number of circumstances, which she offered as reasons for her false statement to the police. She also testified, however, that she had signed each page of her nine page, handwritten statement and that each page included her certification that the facts contained therein were true. Moreover, she admitted that she was not threatened by police when she gave her statement. The court, therefore, properly left the credibility of Grascia’s testimony to the jury. We find no error at all, much less plain error, which results in manifest injustice, in the failure of the court, sua sponte, to conduct such a hearing.

III

Next, the defendant claims that his conviction of both larceny in the first degree and insurance fraud violated his federal constitutional guarantee against double jeopardy. Although he failed to raise this claim in the trial court, we grant review under the now familiar holding of State v. Golding, 213 Conn. 233, 239-40, 567 A.2d 823 (1989).

It is well established that the double jeopardy clause of the United States constitution is applicable to the states. State v. Re, 111 Conn. App. 466, 468, 959 A.2d 1044 (2008), cert. denied, 290 Conn. 908, 964 A.2d 543 (2009). "Double jeopardy analysis in the context of a single trial is a two-step process. First, the charges must arise out of the same act or transaction. Second, it must be determined whether the charged crimes are the same offense.” (Internal quotation marks omitted.) Id., 469. The second prong requires application of the test set forth in Blockburger v. United States, 284 U.S. 299, 52 S. Ct. 180, 76 L. Ed. 306 (1932); that is, whether each offense as charged requires proof of a fact which the other does not. State v. Re, supra, 469.

The double jeopardy clause bars cumulative punishment for nominally distinct offenses arising out of the same act or transaction only if the two offenses are substantially the same, requiring therefore a determination as to whether each count requires proof of an additional fact that the other does not. State v. Alvarez, 257 Conn. 782, 789, 778 A.2d 938 (2001). It is undisputed that both the larceny charge and the insurance fraud charge arise out of the same act or transaction—the obtaining of the fire insurance proceeds from The Standard Fire Insurance Company after the defendant’s house was destroyed by fire. The larceny in the first degree count in the information requires the state to prove that the defendant committed larceny in the amount in excess of $10,000, but it did not require any proof as to the method or manner of the obtaining of the currency. See footnote 2. The insurance fraud count required the state to prove that the defendant, with intent to injure, defraud or deceive an insurance company, presented or caused to be presented in support of a claim for payment statements he knew contained false, incomplete or misleading information concerning material facts. See footnote 5. Thus, it is apparent that each count required proof of a fact or facts that the other did not.

The defendant claims that insurance fraud in the circumstances of this case is a lesser offense included within larceny. “[I]f two offenses stand in the relationship of greater and lesser included offense, [however] then [t]he greater offense is ... by definition the same for purposes of double jeopardy as any lesser offense included in it.” (Internal quotation marks omitted.) State v. Peloso, 109 Conn. App. 477, 510, 952 A.2d 825 (2008). If it is possible to commit the greater offense in the manner described in the information without having first committed the lesser offense, then the lesser is not an included offense. See State v. Sanseverino, 291 Conn. 574, 590 n.12, 969 A.2d 710 (2009). Because the commission of the larceny charged did not require presentation of false, incomplete or misleading statements in support of a fraudulent claim for payment, the charge of insurance fraud was not a lesser offense included within the larceny charge. Thus, the defendant’s claim fails.

rv

Finally, the defendant claims that the prosecutor committed improprieties during pretrial, which deprived him of a fair trial. More specifically, the defendant claims that the prosecutor used his position to fabricate evidence and to control those who did and did not testify for the defense. We disagree.

Because this claim was not raised at trial, the defendant seeks to prevail under State v. Stevenson, 269 Conn. 563, 849 A.2d 626 (2004). In Stevenson, our Supreme Court clarified that in cases involving prosecutorial impropriety, “it is unnecessary for the defendant to seek to prevail under the specific requirements of State v. Golding, [supra, 213 Conn. 233], and, similarly, it is unnecessary for a reviewing court to apply the four-pronged Golding test. The reason for this is that the touchstone for appellate review of claims of prosecutorial [impropriety] is a determination of whether the defendant was deprived of his right to a fair trial, and this determination must involve the application of the factors set out by this court in State v. Williams, 204 Conn. 523, 540, 529 A.2d 653 (1987).” State v. Stevenson, supra, 572-73.

“In analyzing claims of prosecutorial impropriety, we engage in a two step analytical process. . . . The two steps are separate and distinct. . . . We first examine whether prosecutorial impropriety occurred. . . . Second, if an impropriety exists, we then examine whether it deprived the defendant of his due process right to a fair trial. ... In other words, an impropriety is an impropriety, regardless of its ultimate effect on the fairness of the trial. Whether that impropriety was harmful and thus caused or contributed to a due process violation involves a separate and distinct inquiry. . . .

“[T]he touchstone of due process analysis in cases of alleged [harmful] prosecutorial [impropriety] is the fairness of the trial, and not the culpability of the prosecutor. . . . The issue is whether the prosecutor’s [actions at trial] so infected [it] with unfairness as to make the resulting conviction a denial of due process. ... In determining whether the defendant was denied a fair trial . . . we must view the prosecutor’s [actions] in the context of the entire trial.” (Citations omitted; internal quotation marks omitted.) State v. Fauci, 282 Conn. 23, 32, 917 A.2d 978 (2007).

During trial, four witnesses, William Unden, Randi Licari, Grascia and the defendant, claimed to have been threatened with arrest for failing to cooperate with authorities. Both Unden and Randi Licari testified outside the presence of the jury. Unden testified that Officer Mike Carroll, a department investigator, and another officer threatened to arrest him because he “wasn’t telling them what they wanted to hear” and that they wanted him to lie. Randi Licari testified that her grandparents, the defendant’s mother and father, complained to her about being threatened by Carroll and another officer from New York. Even if true, there is no claim that the prosecutor made or was in any way involved in the making of any such alleged threats. These claims, therefore, do not constitute evidence of prosecutorial impropriety. Moreover, it is unclear how such threats, even if made, precluded the defendant from presenting a defense. Randi Licari did not state that she was directly threatened, only that her grandparents were. Further, there was no evidence that either Randi Licari or Unden altered his testimony as a result of the alleged threats.

The defendant next asserts that the prosecutor “coerced Grascia into providing [her] statement with the sole intent of using the statement as a tool with which to discredit Grascia’s in-court testimony.” We conclude that the defendant is merely reasserting his unpreserved evidentiary claim “through the guise of a claim of prosecutorial impropriety with constitutional implications.” State v. Burgos-Torres, 114 Conn. App. 112, 121, 968 A.2d 476 (2009); see State v. Cromety, 102 Conn. App. 425, 431, 925 A.2d 1133 (“[although our Supreme Court has held that unpreserved claims of prosecutorial impropriety are to be reviewed under the Williams factors, that rule does not pertain to mere evidentiary claims masquerading as constitutional violations”), cert. denied, 284 Conn. 912, 931 A.2d 932 (2007). We therefore decline to review this unpreserved evidentiary claim.

Finally, the defendant asserts that his mother did not testify because she was threatened with arrest by the prosecutor. Grascia testified that the defendant’s father told her that the prosecutor had threatened to arrest every member of the family until he could get to the defendant. The defendant claims that the prosecutor relied heavily on the rent receipts to prove that the defendant was guilty of larceny and insurance fraud; therefore, his mother’s testimony was necessary to discredit the state’s theory that the defendant never paid rent to her while he was rebuilding his home. Our review of the record reveals that there was myriad evidence presented by the state to prove that the defendant was guilty of larceny and insurance fraud. Although Grascia testified that the defendant’s parents told her that they were threatened by the prosecutor, the defendant did not call his mother, father or any other family member who was allegedly threatened to the witness stand to testify. Thus, there was no direct evidence that they were threatened or that they were prevented or discouraged from testifying. We therefore conclude that the defendant has not established that he was denied his right to a fair trial.

The judgment is affirmed.

In this opinion the other judges concurred.

       General Statutes § 53a-lll (a) provides in relevant part: “A person is guilty of arson in the first degree when, with intent to destroy or damage a building ... he starts a fire or causes an explosion, and ... (3) such lire or explosion was caused for the purpose of collecting insurance proceeds for the resultant loss . . . .”

       General Statutes § 53a-122 (a) provides in relevant part: “A person is guilty of larceny in the first degree when he commits larceny, as defined in section 53a-119, and ... (2) the value of the properly or service exceeds ten thousand dollars . . . .”
      General Statutes § 53a-119 provides in relevant part: “A person commits larceny when, with intent to deprive another of property or to appropriate the same to himself or a third person, he wrongfully takes, obtains or withholds such property from an owner. . . .”

       See footnote 5.

       General Statutes § 53a-48 (a) provides: “A person is guilty of conspiracy when, with intent that conduct constituting a crime be performed, he agrees with one or more persons to engage in or cause the performance of such conduct, and any one of them commits an overt act in pursuance of such conspiracy.”

       General Statutes § 53a-215 (a) provides in relevant part: “A person is guilty of insurance fraud when the person, with the intent to injure, defraud or deceive any insurance company: (1) Presents or causes to be presented to any insurance company, any written or oral statement including computer-generated documents as part of, or in support of, any application for any policy of insurance or a claim for payment or other benefit pursuant to such policy of insurance, knowing that such statement contains any false, incomplete, or misleading information concerning any fact or thing material to such application or claim; or (2) assists, abets, solicits, or conspires with another to prepare or make any written or oral statement that is intended to be presented to any insurance company in connection with, or in support of, any application for any policy of insurance or any claim for payment of other benefit pursuant to such policy of insurance, knowing that such statement contains any false, incomplete, or misleading information concerning any fact or thing material to such application or claim for the purposes of defrauding such insurance company.”

       The Croton Lake Gatehouse is approximately a one hour car ride from the defendant’s home in Trumbull.

       The $181,000 limit only applied to the dwelling structure. As Cotter explained, additional coverage was available under the defendant’s insurance policy for such things as debris removal, other appurtenant structures (e.g., a garage), replacement cost of personal property and living expenses incurred while a new residence was secured. Under the defendant’s insurance policy, debris removal was covered up to $6300, other appurtenant structures were insured up to $18,100, personal property was insured up to $126,700 and living expenses were covered up to $36,200; therefore, an additional $187,300 was available to the defendant. The defendant submitted claims and received moneys under these additional policy limits.

       The business debts that were not discharged included a $28,000 to $32,000 car loan for a limousine, which was co-signed by the defendant’s wife, Angela Licari, and a $53,000 Small Business Administration loan, which was secured by the defendant’s house.

       The record does not disclose Frank’s last name.

       Such items, to name a few, included old bankbooks, financial documents, pictures, wedding cards, magazines, a 35 millimeter Canon camera and a Heritage antique telephone.

       Section 4-5 (b) of the Connecticut Code of Evidence provides in relevant part: “Evidence of other crimes, wrongs or acts of a person is admissible for purposes other than those specified in subsection (a), such as to prove intent. . . common plan or scheme, absence of mistake or accident, knowledge [or] a system of criminal activity ... or to corroborate crucial prosecution tesimony.” Subsection (a) provides: “Evidence of other crimes, wrongs or acts of a person is inadmissible to prove the bad character or criminal tendencies of that person.”

       Section 8-5 of the Connecticut Code of Evidence states in relevant part: “The following are not excluded by the hearsay rule, provided the declarant is available for cross-examination at trial: (1) ... A prior inconsistent statement of a witness, provided (A) the statement is in writing ...(B) the writing ... is duly authenticated as that of the witness, and (C) the witness has personal knowledge of the contents of the statement.”

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

       In Williams, our Supreme Court stated: “In determining whether prosecutorial [impropriety] was so serious as to amount to a denial of due process, this court, in conformity with courts in other jurisdictions, has focused on several factors. Among them are the extent to which the [impropriety] was invited by defense conduct or argument . . . the severity of the [impropriety] . . . the frequency of the [impropriety] . . . the centrality of the [impropriety] to the critical issues in the case . . . the strength of the curative measures adopted . . . and the strength of the state’s case.” (Citations omitted.) State v. Williams, supra, 204 Conn. 540.

       Unden is an employee of the department and worked with the defendant at the Croton Lake Gatehouse.

       Randi Licari is the youngest daughter of Grascia and the defendant.

       The officer’s name was not provided in the record.

       The officer’s name was not provided in the record.

       See discussion in part II.