author: HARPER, J.

text:
    STATE OF CONNECTICUT v. JOHN B.

    (AC 27305)
    Schaller, Harper and Rogers, Js.

      Argued February 5
    officially released July 17, 2007

      Christopher Y. Duby, special public defender, for the appellant (defendant).

      Kathryn Ward Bare, special deputy assistant state’s attorney, with whom, on the brief, were Scott J. Murphy, state’s attorney, and Louis J. Luba, Jr., senior assistant state’s attorney, for the appellee (state).

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

   Opinion

HARPER, J.

The defendant, John B., appeals from the judgment of conviction, rendered following a jury trial, of attempt to commit sexual assault in the first degree in violation of General Statutes §§ 53a-49 (a) (2) and 53a-70 (a) (1), attempt to commit kidnapping in the first degree in violation of General Statutes §§ 53a-49 (a) (2) and 53a-92 (a) (2) (A), burglary in the first degree in violation of General Statutes § 53a-101 (a) (2), assault in the third degree in violation of General Statutes § 53a-61 (a) (1) and interfering with an officer in violation of General Statutes § 53a-167a (a). The defendant claims that (1) the trial court improperly denied his motion for a new trial on the basis of prosecutorial impropriety and (2) the evidence did not support his conviction of the crimes of attempt to commit sexual assault in the first degree, burglary in the first degree and interfering with an officer. We affirm the judgment of the trial court.

On the basis of the evidence presented at trial, the jury reasonably could have found the following facts. For several months prior to the incident underlying this appeal, the defendant and the female victim were neighbors in an apartment building. The defendant and the victim were acquaintances; they had never spoken to each other on the telephone, but the defendant had once been to the victim’s apartment, visiting with her and her granddaughter. At approximately 9:30 p.m. on May 8, 2001, the defendant called the victim on the telephone and invited her to his apartment to watch a movie with him. The victim declined the invitation, but the defendant, in a stem voice, insisted that she come to his apartment. After this initial conversation ended, the defendant called the victim again, but the victim did not answer her telephone.

A short time later, the defendant appeared at the victim’s apartment, knocking on the door and windows. The defendant identified himself and asked the victim to let him into her apartment. The victim became frightened. As she approached the door to her apartment, the defendant burst through the door, wrapped his hands around her throat and began to choke her. A physical struggle between the defendant and the victim ensued. While the victim tried to break free and to protect herself, the defendant dragged her out of her apartment and into a nearby hallway. The defendant told the victim to “go with it” and to “let go.” In a hushed voice, the defendant also told the victim that he loved her. At one point during the struggle, the victim pretended to faint, causing the defendant to loosen his grip on her neck. The victim began to flee, but the defendant grabbed her by one of her legs and pulled her back to him. Eventually, the struggle moved outdoors where the victim, experiencing difficulty as a result of the defendant’s assault, began screaming for help. The defendant caught up with her and pinned her against a wall.

A bystander, Myron St. Pierre, heard the victim’s cries for help and observed the defendant attempting to pull the victim against her will back inside the apartment building. St. Pierre approached the defendant and the victim, instructing them to break up the melee. The defendant told St. Pierre: “ [Sjhe just got out of a mental institute. She’s crazy. We can handle it . . . it’s all right.” The victim told St. Pierre that the defendant was lying and was trying to kill her. The victim also asked him to call the police. After the defendant briefly chased the victim and St. Pierre, St. Pierre physically restrained the defendant on the ground and instructed the victim to run to a nearby police station. The victim took refuge in her apartment and reported the incident to the police. St. Pierre restrained the defendant until the police arrived on the scene.

When David Posadas, an officer with the local police department, arrived at the scene, St. Pierre informed him that the defendant had attacked the victim. Posadas asked the defendant what had occurred, and the defendant replied that he had not attacked the victim. The defendant stated that the victim was suicidal and that he had tried to prevent her from harming herself. Posa-das also spoke with the victim, who appeared to be upset and disheveled. The victim related the defendant’s actions to Posadas; her account was corroborated in part by the caller identification function on her telephone, which reflected that the defendant had called the victim earlier that evening.

The defendant was placed under arrest. A search of his person incident to his arrest yielded, among other items, a pair of handcuffs and a “bondage device.” The defendant consented to a police search of his apartment. Although the defendant was calm and cooperative with the police until and immediately following his arrest, he began mumbling to himself and rocking back and forth during the search of his apartment. During the booking process at the police department, the defendant became combative with the police officers involved; he would not comply with the orders being given to him by the officers and refused to be fingerprinted. Officers ultimately used pepper spray in an effort to subdue the defendant.

At approximately 3 a.m. on the morning following his arrest, the defendant indicated that he wanted to discuss the events that culminated in his arrest. After waiving his right to remain silent, the defendant spoke with Sandra Mattucci, an officer with the local police department. The defendant stated that, on the prior evening, he had intended to help the victim by bringing her “into a deeper level of consciousness and . . . into a true reality.” He stated that he intended to accomplish this by using the handcuffs and bondage device found on his person and by raping and torturing the victim. The defendant admitted that he entered the victim’s apartment and choked the victim to “make her unconscious so that he could bring her back upstairs to his apartment . . . [and] bring her into this true reality.” He also stated that he previously had used the handcuffs and bondage device on himself and others. Additional facts will be set forth as necessary.

I

The defendant first claims that the court improperly denied his motion for a new trial because prosecutorial impropriety during closing argument deprived him of a fair trial. We disagree.

The defendant did not testify in this case. During trial, the defendant presented evidence, including expert testimony, to prove that he was not guilty by reason of mental illness. The defendant’s attorney discussed this evidence at length during closing argument and asked the jury to find that, at the time of the attack on the victim, the defendant was suffering from a mental illness to such an extent that he could not be found guilty of the crimes with which he stood charged.

During his rebuttal argument, the prosecutor attempted to cast doubt on the defendant’s affirmative defense of mental illness. In this vein, the prosecutor suggested that the expert testimony presented by the defendant was not persuasive and that other evidence tended to disprove the defense. The prosecutor argued that the evidence reflected that the defendant’s conduct on the evening of May 8, 2001, was deliberate and that the defendant knew it was wrong. The prosecutor stated: “He knew what he was doing. He planned it. He executed it. He got caught, and now he’s trying to make an excuse for why he did it.”

Rebutting the expert testimony concerning the extent of the defendant’s mental illness, the prosecutor argued: “One other thing, ladies and gentlemen, that I’m asking you to do is recall your own observations of this defendant, recall his demeanor here in court. [One of the defendant’s expert witnesses] testified that [the defendant’s] delusions or problems occurred under situations of extreme stress. What could be more stressful than to be standing here accused of these charges and on trial? You can base your opinion based on your observations of it. That’s why you’re here to observe, to scrutinize, to judge credibility. What were your observations of this defendant? Think about that when you go back in that jury deliberation room?

“Ladies and gentlemen, we weren’t there at the time that this incident occurred, but neither were the doctors. They can’t tell you what occurred. They can’t tell you what happened other than just reading your reports. You had something more. You had the testimony presented for you. [The defendant] was calm; that he was controlled, that he presented himself in a very controlled manner, made those statements not when he didn’t know what was going on, when he was collected. He intentionally lied to . . . St. Pierre and the police.”

After the state concluded its rebuttal argument, the court excused the jury. The defendant’s attorney raised several objections to the state’s closing arguments, one of which focused on the argument set forth previously. The defendant’s attorney argued that the prosecutor’s invitation to consider the defendant’s demeanor during the trial infiinged on the defendant’s right not to testify. The defendant’s attorney noted that during the trial, he had not drawn the jury’s attention to the defendant’s presence in the courtroom. He stated that the prosecutor’s argument was “completely unfair” and asked the court to deliver a curative instruction. The prosecutor maintained that his argument was not improper.

The court agreed with the defendant’s attorney that the argument was improper because the defendant’s demeanor during the trial was “not evidence in the case.” The court, however, disagreed that the argument reflected an attempt by the prosecutor to call attention to the fact that the defendant did not testify or that it was an invitation to draw an unfavorable inference from the defendant’s decision not to testify. After the jury returned to the courtroom, the court delivered the following curative instruction: “I’m going to provide you with a specific instruction that addresses an improper argument of the prosecutor. I’m referring to that portion of the argument that addressed the defendant’s outward appearance here in the courtroom during this trial. I am instructing you specifically that the state’s argument in that regard was improper, and you are to completely disregard it.

“As I’ve told you, the lawyers are not witnesses. Their arguments are not evidence in the case. How the defendant appears or doesn’t appear here in court has absolutely no bearing on the issues you are about to decide. It is not the evidence in this case. You are not to base your decision in any sense whatsoever on how the defendant appears or doesn’t appear here in the courtroom. I’m instructing you to ignore those comments. The issue before you is the events of May 8, 2001.

“As I’ve also told you repeatedly, the defendant is presumed innocent, and the burden of proof rests entirely with the state to prove his guilt beyond a reasonable doubt. The defendant has not testified in this case. An accused person has the option to testify or not to testify at the trial. An accused person is under no obligation to testify in his own behalf. He has a constitutional right not to testify. You must draw no unfavorable inferences from the defendant’s failure to testify.” Neither the defendant nor the state objected to the curative instruction.

Prior to sentencing, the defendant, claiming that “[t]he [c]ourt erred [by] issuing a curative instruction on the improper statements the [prosecutor] made to the jury during closing [argument],” moved for a new trial. The court heard argument on the defendant’s motion. The court observed, and the defendant’s attorney agreed, that the court had delivered a curative instruction at the defendant’s request. The court further observed that in addition to its curative instruction, other instructions delivered in the charge conveyed to the jury that it was not to “go outside the evidence to find the facts” and “that the argument by either counsel was not evidence.” The court then ruled: “The court does not find that the isolated remark at the end of the state’s argument was such as to have affected the defendant’s right to a fair trial and finds that his constitutional rights to due process were not violated.” The court denied the defendant’s motion for a new trial.

The defendant maintains that by inviting the jury to draw inferences from his demeanor during the trial, the prosecutor improperly based his argument on matters that were outside of the evidence. On this ground alone, the defendant claims that the argument deprived him of a fair trial. The defendant does not claim, as he did at trial, that the argument infringed on his right not to testify.

The state maintains that the argument was a proper “attack on the weakness of the defendant’s defense of mental illness and the evidence offered by the defendant in support of that claim.” The state refers in particular to the testimony of Kenneth M. Selig, a psychiatrist who examined the defendant, reviewed his mental history and testified concerning the defendant’s mental well-being. Selig testified that the defendant suffered from a “serious mental disorder,” which “make[s] him very vulnerable to becoming psychotic . . . under stress.” Selig opined that “[pjrobably the most accurate diagnosis is some form of personality disorder, which means a long-standing stable but very abnormal personality structure that renders him so vulnerable to stress that he’ll lose touch with reality.” Selig also opined that the defendant’s mental illness was “very acute” and that his “motivations were bizarre” at the time that he attacked the victim, and, thus, he lacked a substantial capacity to control his conduct within the requirements of the law. The state characterizes its argument as a proper appeal “to the jury’s common sense and observations” and asserts that the argument did not improperly besmirch the defendant’s character or invite the jury to draw any inferences from the fact that the defendant did not testify.

“Appellate review of a trial court’s decision granting or denying a motion for a new trial must take into account the trial judge’s superior opportunity to assess the proceedings over which he or she has personally presided. . . . Thus, [a] motion for a new trial is addressed to the sound discretion of the trial court and is not to be granted except on substantial grounds. . . . In our review of the denial of a motion for [a new trial], we have recognized the broad discretion that is vested in the trial court to decide whether an occurrence at trial has so prejudiced a party that he or she can no longer receive a fair trial. The decision of the trial court is therefore reversible on appeal only if there has been an abuse of discretion.” (Citation omitted; internal quotation marks omitted.) State v. McIntyre, 250 Conn. 526, 533, 737 A.2d 392 (1999). To determine whether the court abused its discretion, we must determine whether prosecutorial impropriety deprived the defendant of a fair trial.

“[I]n analyzing claims of prosecutorial [impropriety], we engage in a two step analytical process. The two steps are separate and distinct: (1) whether [impropriety] occurred in the first instance; and (2) whether that [impropriety] deprived a defendant of his due process right to a fair trial. Put differently, [impropriety] is [impropriety], regardless of its ultimate effect on the fairness of the trial; whether that [impropriety] caused or contributed to a due process violation is a separate and distinct question ....

“[T]he 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 ... in State v. Williams, 204 Conn. 523, 540, 529 A.2d 653 (1987). As [our Supreme Court] stated in that case: 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.” (Internal quotation marks omitted.) State v. Lopez, 280 Conn. 779, 799, 911 A.2d 1099 (2007).

A

We first consider whether prosecutorial impropriety occurred. “[A] prosecutor, in fulfilling his duties, must confine himself to the evidence in the record. . . . Statements as to facts that have not been proven amount to unsworn testimony, which is not the subject of proper closing argument. ... A prosecutor may invite the jury to draw reasonable inferences from the evidence; however, he or she may not invite sheer speculation unconnected to evidence.” (Internal quotation marks omitted.) State v. Skakel, 276 Conn. 633, 746, 888 A.2d 985, cert. denied, 549 U.S. 1030, 127 S. Ct. 578, 166 L. Ed. 2d 428 (2006); see also United States v. Young, 470 U.S. 1, 18, 105 S. Ct. 1038, 84 L. Ed. 2d 1 (1985) (noting that improper comment during closing argument may jeopardize defendant’s right to be tried solely on basis of evidence presented to jury). The fifth amendment’s guarantee of due process encompasses the requirement that a conviction be supported by sufficient proof. “Due process means a jury capable and willing to decide the case solely on the evidence before it, and a trial judge ever watchful to prevent prejudicial occurrences and to determine the effect of such occurrences when they happen.” Smith v. Phillips, 455 U.S. 209, 217, 102 S. Ct. 940, 71 L. Ed. 2d 78 (1982). “[0]ne accused of a crime is entitled to have his guilt or innocence determined solely on the basis of the evidence introduced at trial, and not on grounds of official suspicion, indictment, continued custody, or other circumstances not adduced as proof at trial.” Taylor v. Kentucky, 436 U.S. 478, 485, 98 S. Ct. 1930, 56 L. Ed. 2d 468 (1978).

Thus, it is a fundamental principle that the jury must base its decision solely on the evidence, whether it be direct or circumstantial, in the record. The trial affords the party who bears the burden of proof a full and fair opportunity to present evidence in support of its case. It also affords the opposing party a full and fair opportunity to challenge the admissibility of such evidence. Certainly, one of the trial court’s most important duties is to resolve evidentiary disputes that arise during trial. “Evidence” has been defined as “[a]ny species of proof, or probative matter, legally presented at the trial of an issue, by the act of the parties and through the medium of witnesses, records, documents, exhibits, concrete objects, etc., for the purpose of inducing belief in the minds of the court or jury as to their contention.” Black’s Law Dictionary (6th Ed. 1990).

Here, the defendant exercised his fundamental right to be present at his trial. See State v. Jones, 281 Conn. 613, 636, 916 A.2d 17 (2007). The defendant also exercised his right not to testify; see State v. Vega, 36 Conn. App. 41, 44 n.6, 646 A.2d 957 (1994); and, thus, did not take the witness stand. The issue is whether the courtroom demeanor of the defendant, who did not testify at trial, was evidence in the record and, accordingly, fodder for the prosecutor’s closing argument.

We may presume that the defendant was in the view of the jury during the proceedings. Nonetheless, his demeanor was not a part of the evidence in the record and, therefore, was not a proper subject of the prosecutor’s closing argument. The defendant did not testify; apart from his courtroom identification by several witnesses, his appearance or presence in the courtroom was not otherwise introduced into evidence by the parties in this case. For the prosecutor to have relied in argument on the defendant’s courtroom demeanor was not proper because it constituted argument on matters extrinsic to the evidence. See United States v. Pearson, 746 F.2d 787, 796 (11th Cir. 1984) (improper for prosecutor to comment on defendant’s behavior off witness stand because such behavior not evidence).

B

Having identified impropriety, we next consider whether it deprived the defendant of a fair trial. We already have identified the factors relevant to our analysis and will address each factor in turn.

First, the impropriety was not invited by defense argument or conduct. Second, the impropriety was not severe. Although the argument was improper because it was based on facts that were not in evidence, the argument was less prejudicial than it might have been were it based on facts of which the prosecutor, by virtue of his position and investigation of the case, had independent knowledge. Cf. State v. Griffin, 97 Conn. App. 169, 179, 903 A.2d 253 (“when a prosecutor suggests a fact not in evidence, there is a risk that the jury may conclude that he or she has independent knowledge of facts that could not be presented to the jury” [internal quotation marks omitted]), cert. denied, 280 Conn. 925, 908 A.2d 1088 (2006). Third, the prosecutorial impropriety was not frequent, occurring once at the end of the trial, during the state’s rebuttal argument.

Fourth, the impropriety was an obvious attempt to refute the expert opinion of Selig and, thus, the defendant’s affirmative defense of mental illness. We are not convinced that the prosecutor’s reference to the defendant’s courtroom demeanor was central to these critical issues. See State v. Lopez, supra, 280 Conn. 798-99 (court must evaluate “centrality of the [impropriety] to the critical issues in the case” [internal quotation marks omitted]). By discrediting Selig’s opinion in this manner, the prosecutor plainly drew the juiy’s attention to the defendant’s demeanor, and thus his mental state, at the time of the trial. With regard to the defendant’s affirmative defense, the relevant issue before the jury was not whether the defendant was mentally ill at the time of trial, but whether he suffered from a mental illness, and the extent of that illness, on May 8, 2001.

Fifth, we conclude that the curative measures taken, at the defendant’s request, were particularly strong. The defendant objected to the improper argument after the prosecutor concluded his rebuttal argument. The court thereafter summoned the juiy to the courtroom. The court then identified the portion of the argument at issue, characterized it as improper and instructed the juiy that how the defendant appeared during the trial “ha[d] absolutely no bearing on the issues” and that the jury was “to completely disregard” that portion of the prosecutor’s argument. The immediacy, specificity and clarity of the court’s curative instruction compels us to conclude that it could not have been misunderstood by the jury. Finally, the state presented a very strong case, which included largely uncontradicted eyewitness testimony concerning the defendant’s conduct on May 8, 2001. The state also presented strong evidence, including the defendant’s statements to the police, to support a finding that he acted with the mental state required for the commission of the crimes of which he stood charged.

In summary, the prosecutorial impropriety was not invited by defense conduct or argument, was not severe and was not central to a critical issue in the case. This was an isolated instance of impropriety, and the state presented a very strong case. Furthermore, we are particularly persuaded by the court’s curative instruction. The defendant posits that “a curative instruction in this instance could not overcome the damage done by the prosecutor’s comment” and that the guilty verdict reflects that the jury did not follow the court’s instruction. In light of our conclusion that the prosecutorial impropriety was not particularly severe, and absent any clear indication to the contrary, we are confident that the jury followed the court’s clear and unequivocal directive to disregard the improper argument. “[I]n the absence of a showing that the jury failed or declined to follow the court’s instructions, we presume that it heeded them.” (Internal quotation marks omitted.) State v. Carpenter, 275 Conn. 785, 828, 882 A.2d 604 (2005), cert. denied, 547 U.S. 1025, 126 S. Ct. 1578, 164 L. Ed. 2d 309 (2006). There has been no such showing here. We conclude that the defendant has not demonstrated that prosecutorial impropriety deprived him of a fair trial.

II

The defendant next claims that the evidence did not support his conviction of the crimes of attempt to commit sexual assault in the first degree, burglary in the first degree and interfering with an officer. We disagree.

“In reviewing a sufficiency of the evidence claim, we apply a two-part test. First, we construe the evidence in the light most favorable to sustaining the verdict. Second, we determine whether upon the facts so construed and the inferences reasonably drawn therefrom the [finder of fact] reasonably could have concluded that the cumulative force of the evidence established guilt beyond a reasonable doubt. ... In evaluating evidence, the trier of fact is not required to accept as dispositive those inferences that are consistent with the defendant’s innocence. . . . The trier may draw whatever inferences from the evidence or facts established by the evidence it deems to be reasonable and logical. ... In conducting this review, the probative force of the evidence is not diminished where the evidence, in whole or in part, is circumstantial rather than direct.” (Internal quotation marks omitted.) State v. McCoy, 91 Conn. App. 1, 3, 879 A.2d 534, cert. denied, 276 Conn. 904, 884 A.2d 1026 (2005). Having set forth our standard of review, we will review in turn each of the crimes at issue.

A

To convict the defendant of attempt to commit sexual assault in the first degree in the manner charged, the state bore the burden of proving beyond a reasonable doubt that he (1) acted with the specific intent to commit sexual assault in the first degree and (2) took “a substantial step in a course of conduct planned to culminate in his commission of the crime.” General Statutes § 53a-49 (a) (2); see also State v. Milardo, 224 Conn. 397, 403, 618 A.2d 1347 (1993). “A person is guilty of sexual assault in the first degree when such person (1) compels another person to engage in sexual intercourse by the use of force against such other person or a third person, or by the threat of use of force against such other person or against a third person which reasonably causes such person to fear physical injury to such person or a third person . . . .” General Statutes § 53a-70 (a).

Essentially, the defendant concedes that the state presented evidence that he physically assaulted the victim, yet posits that the state bore the burden of presenting evidence of “sexual contact” between himself and the victim. In this vein, the defendant argues that “[t]he state never demonstrated that [he] penetrated the victim in any way” and that “the state did not prove that the attack, as it occurred, was a sexual one . . . .”

We will dispose of the defendant’s claim with little difficulty. There is no basis in law for the defendant’s assertion that the state bore the burden of proving that “sexual contact” of any nature occurred between the defendant and the victim. The state presented evidence that the defendant called the victim on the telephone and that, after the victim rejected the defendant’s advances, he appeared at her apartment and physically assaulted her. The evidence further permitted a finding that the defendant, carrying devices that could assist him in restraining the victim, choked the victim and dragged her outside of her apartment. The defendant told her to “go with it” and to “let go.” He also told her that he loved her. The state also presented evidence that, following his arrest, the defendant informed police, inter alia, that he had acted with the intent of raping and torturing the victim. Further, the defendant stated that he had entered the victim’s apartment with a plan; he had choked her to make her unconscious so that he could bring her back to his apartment. It was reasonable to infer that the defendant intended to accomplish his goal of raping and torturing the victim in his apartment. The defendant’s conduct toward the victim and his statements to the victim and, later, to the police, were compelling evidence of his mental state. On the basis of the evidence, the jury reasonably could have found that the defendant acted with the specific intent required for the crime of sexual assault in the first degree and that, by assaulting the victim, he had taken a substantial step in a course of conduct planned to culminate in his commission of that crime.

B

To convict the defendant of burglary in the first degree in the manner charged, the state bore the burden of proving beyond a reasonable doubt that he (1) entered or remained unlawfully in a building, (2) intended to commit a crime therein and (3) while in the course of committing the offense, intentionally, knowingly or recklessly inflicted or attempted to inflict bodily injury on another person. General Statutes § 53a-101 (a) (2).

The defendant challenges the sufficiency of the evidence only with regard to the essential element of intent. The defendant argues that “[t]he state alleged that [he] attempted to commit sexual assault and will, in all likelihood, use this allegation and [his] conviction for this offense as the predicate offense to support the burglary conviction.” The defendant further argues that, as a matter of law, the state cannot support the burglary conviction by relying on his intent to commit the crime of attempt to commit sexual assault. The defendant, citing State v. Flowers, 278 Conn. 533, 543, 898 A.2d 789 (2006), posits that even if the state proved beyond a reasonable doubt that he entered the victim’s apartment with the intent to commit the crime of attempt to commit sexual assault, it did not prove that he acted with the mental state to commit the underlying assault and, thus, that he entered the building with the intent to commit a crime.

The defendant’s claim is based on a presumption that is wholly unsupported by the state’s arguments before this court, the information, the state’s presentation of its case at trial or the court’s charge. The state does not argue before this court that the defendant entered the victim’s apartment with the intent to commit the crime of attempt to commit sexual assault. The state alleged in the operative information that the defendant had entered the victim’s apartment “with the intent to commit a crime . . . .” The prosecutor did not argue at trial that the defendant had entered the victim’s apartment with the intent to commit the crime of attempt to commit sexual assault. Instead, he argued unambiguously that the defendant had planned and began to carry out “a cold, calculated attack” on the victim. Finally, the court did not instruct the jury that the state bore the burden of proving that the defendant entered the apartment intending to commit the crime of attempt to commit sexual assault. Rather, it instructed the jury: “You must further determine whether the unlawful entry was carried out or occurred with the defendant’s intent to commit a crime in that building. . . . The necessary intent to commit a crime must be an intent to commit a separate crime other than the crime of burglary. Even if the defendant never actually committed some crime in the premises, if the evidence established beyond a reasonable doubt that he entered into the building with such intention, this is sufficient to prove that the defendant entered unlawfully with the intent to commit a crime therein.”

Having refuted the basis for the defendant’s claim, we further conclude that the state presented an ample evidentiary basis for a finding that the defendant acted with the requisite mental state for the commission of the crime. On the basis of the evidence concerning the defendant’s conduct prior to and upon his entry into the victim’s apartment, as well as his later statements concerning his purpose for entering that apartment, the jury reasonably could have concluded beyond a reasonable doubt that the defendant entered the victim’s apartment intending to assault the victim.

C

To convict the defendant of interfering with an officer in the manner charged, the state bore the burden of proving beyond a reasonable doubt (1) that he hindered a peace officer and (2) that the peace officer was in the performance of his duties. General Statutes § 53a-167a (a).

The state presented evidence that the defendant was arrested at the scene of the crime on May 8, 2001, and that police officers soon thereafter transported him to the local police department. The state presented the following testimony from Posadas: “At some point in the beginning of the booking process, [the defendant] became combative with myself and other officers that were there, [and] refused to submit to the fingerprinting. We had to use pepper spray on him to regain control of him, bring him into a cell block and lock him up in a cell to keep him from hurting anybody.” Posadas further testified: “He wouldn’t comply with any of our orders to calm down ... he was not complying with anything we were telling him to do.” Posadas further testified that the defendant’s conduct interfered with his ability to perform his duties. Charles Smedick, a sergeant with the local police department, testified that he was the shift supervisor at the time of the defendant’s arrest. Smedick recalled witnessing “a few officers” engaged in a struggle with the defendant in the booking area. Smedick also testified that the defendant “was refusing to be booked totally” and that “he was pepper sprayed to bring him under compliance.”

The defendant states in his brief: “Concededly, [his] conduct at the . . . police department could reasonably be construed as interfering with police.” The defendant argues that the state alleged in the operative information “that [he] interfered with police on May 8, 2001.” The defendant suggests that the evidence supported a finding that his conduct at the police department, described previously, occurred during the early morning hours of May 9, 2001, not on May 8, 2001. On this ground alone, the defendant argues that the evidence was insufficient to sustain the conviction.

As a preliminary matter, we note that time was not a material element of the offense. The defendant does not claim that he was not informed adequately of the nature of the charges against him or that he was otherwise prejudiced by the information; he claims that the evidence was insufficient to convict him of the crime in the manner it was alleged in the information. Even if we were to assume arguendo that a variance existed between the time of the crime as alleged in the information and the evidence introduced, such ground would not necessarily lead us to conclude that the evidence did not support the conviction. It is a “long-established rule that it is not essential in a criminal prosecution that the crime be proved to have been committed on the precise date alleged, it being competent ordinarily for the prosecution to prove the commission of the crime charged at any time prior to the date of the complaint and within the period fixed by the Statute of Limitations.” State v. Lorusso, 151 Conn. 189, 191, 195 A.2d 429 (1963).

Furthermore, the defendant has not demonstrated that any variance actually existed between the time of the crime as alleged in the information and the evidence introduced. The state alleged in count five of the information that the defendant committed this crime “on or about May 8, 2001 . . . .” (Emphasis added.) “We have consistently held that the state is permitted to charge that a defendant committed a crime ‘on or about’ a certain date. [W]hen time is not a material element of the crime char ged or when a precise date is unavailable [and] [w]here the [information] alleges that an offense allegedly occurred on or about a certain date, the defendant is deemed to be on notice that the charge is not limited to a specific date. . . . Because the state can allege that a crime occurred ‘on or about’ a certain date when time is not a material element of the offense, it follows that such time frame would not have a distinct beginning or clear end. Our Supreme Court has stated that when the [information] uses the ‘on or about’ designation, proof of a date reasonably near to the specified date is sufficient.” (Citation omitted; internal quotation marks omitted.) State v. Carneiro, 76 Conn. App. 425, 436, 820 A.2d 1053, cert. denied, 264 Conn. 909, 826 A.2d 180, cert. denied, 540 U.S. 915, 124 S. Ct. 304, 157 L. Ed. 2d 208 (2003). “[W]hen time is not of the essence or [the] gist of the offense, the precise time at which it is charged to have been committed is not material . . . .” (Internal quotation marks omitted.) State v. Merriam, 264 Conn. 617, 650, 835 A.2d 895 (2003).

The state alleged that the defendant interfered with an officer on or about May 8, 2001, and the evidence permitted a finding beyond a reasonable doubt that the defendant, during the early morning hours of May 9, 2001, hindered one or more officers in the performance of their duties. Thus, the state proved beyond a reasonable doubt that the defendant’s criminal conduct occurred reasonably near the date specified in the information. The evidence introduced supported the allegations in the information and provided an ample evidentiary basis to support the conviction.

The judgment is affirmed.

In this opinion the other judges concurred.

       The court sentenced the defendant to a total effective term of incarceration of forty years.

       Although the parties, in their briefs and during argument before this court, addressed the claim as one of “prosecutorial misconduct,” in accordance with the recent directive of our Supreme Court; see State v. Fauci, 282 Conn. 23, 26 n.2, 917 A.2d 978 (2007); we refer to the claim as one of “prosecutorial impropriety.”

       The device also was described at trial as both a “gag ball” and a “ball gag.”

       In its brief, the state cited cases from other jurisdictions in which similar issues have been addressed. Its research sheds light on the issue. Our conclusion is reinforced by those courts that, on various grounds, have deemed improper prosecutorial commentary on a defendant’s courtroom demeanor, when such commentary is not related to a defendant’s demeanor while testifying. See, e.g., Borodine v. Douzanis, 592 F.2d 1202, 1210-11 (1st Cir. 1979) (improper for prosecutor to comment on defendant’s demeanor during trial because such observations are irrelevant); United States v. Carroll, 678 F.2d 1208, 1209-10 (4th Cir. 1982) (improper for prosecutor to comment on defendant’s courtroom behavior as evidence of guilt); United States v. Schuler, 813 F.2d 978, 981 (9th Cir. 1987) (“prosecutor’s comment on a defendant’s off-the-stand behavior constitutes a violation of the due process clause of the fifth amendment”); United States v. Wright,
        489 F.2d 1181, 1186 (D.C. Cir. 1973) (improper for prosecutor to comment on defendant’s courtroom behavior as evidence of bad character or guilt).
      Contrary to our determination, other state courts have treated a defendant’s courtroom demeanor as evidence and have deemed comment related thereto as proper. See Wherry v. State, 402 So. 2d 1130, 1133 (Ala Crim. App. 1981) (“[t]he conduct of the accused or the accused’s demeanor during the trial is a proper subject of comment”); Commonwealth v. Smith, 387 Mass. 900, 907, 444 N.E.2d 374 (1983) (prosecutor’s comment regarding defendant’s courtroom demeanor not improper because prosecutor did not suggest thereby that he had knowledge that jury did not share); State v. Lawson, 64 Ohio St. 3d 336, 347, 595 N.E.2d 902 (argument concerning defendant’s demeanor not improper because defendant’s “ ‘face and body’ ” are physical evidence subject to comment), cert. denied, 507 U.S. 1007, 113 S. Ct. 1653, 123 L. Ed. 2d 273 (1993).

       Later, during its charge, the court instructed the jury that it “may not go outside the evidence to find the facts” of the case. The court also stated: “In reaching your verdict, you should consider all the testimony and exhibits received into evidence. Certain things are not evidence, and you may not consider them in deciding what the facts are. These include arguments and statements by lawyers. The lawyers are not witnesses. What they have said in their closing arguments and at other times is intended to help you interpret the evidence, but it is not evidence.”

       At the close of the state’s case-in-chief, the defendant’s attorney moved for a judgment of acquittal challenging the sufficiency of the evidence relating to the charges of attempt to commit sexual assault in the first degree and burglary in the first degree. At that time, the defendant’s attorney conceded that the state had presented evidence to support a conviction for the crime of interfering with an officer. The court denied the motion, and the defendant’s attorney thereafter presented evidence on the defendant’s behalf.
      Prior to sentencing, the defendant filed a motion for a judgment of acquittal challenging the evidentiary basis for the attempt to commit sexual assault, burglary and interfering with an officer counts of the information. The court summarily denied this motion. With regard to the attempt to commit sexual assault and burglary counts, the defendant claims that the court improperly denied his motion for a judgment of acquittal. With regard to the interfering with an officer count, the defendant claims that the evidence did not support the verdict. The claims, in substance, axe challenges to the sufficiency of the evidence and will be addressed as such.

       We reach this conclusion mindful that the jury did, in fact, find the defendant guilty of the crime of assault in the third degree, which he does not challenge in this appeal.


source: Caselaw Access Project

author: LAVINE, J.

license: Public Domain

text:
    NEW ENGLAND RETAIL PROPERTIES, INC. v. MILDRED MATURO, EXECUTRIX (ESTATE OF JOSEPH P. MATURO)
    (AC 27382)
    Gruendel, Lavine and Foti, Js.

      Argued February 21
    officially released July 17, 2007

      William F. Gallagher, with whom, on the brief, was Hugh D. Hughes, for the appellant (defendant).

      Thomas P. Moriarty, for the appellee (plaintiff).
   Opinion

LAVINE, J.

The law is well settled that a commercial real estate broker who finds a lessee ready, willing and able to lease the subject premises on the owner’s terms is entitled to a commission pursuant to the provisions of the valid listing agreement. See, e.g., Goldblatt Associates v. Panza, 24 Conn. App. 250, 252, 587 A.2d 433 (1991). In this appeal, the defendant, Mildred Maturo, executrix of the estate of Joseph P. Maturo, appeals from the judgment of the trial court rendered in favor of the plaintiff, New England Retail Properties, Inc., requiring payment of its commission. The defendant claims that the court lacked subject matter jurisdiction to consider the action. She also claims that the court improperly (1) awarded a commission larger than the claim made to the decedent’s estate, (2) concluded that the plaintiff did not have a conflict of interest when it negotiated the lease and (3) concluded that the defendant failed to prove her second special defense. We affirm the judgment of the trial court.

The following facts are relevant to our resolution of the issues before us. On November 2, 2000, the plaintiff and the decedent executed an open listing agreement for real property located on Dixwell Avenue in Hamden. The agreement called for a 6 percent commission, payable in three parts, calculated on the total fixed annual rent for the term of the lease, which was twenty years. After the listing agreement was executed, the plaintiff disclosed to the decedent that its client, the 7-Eleven Corporation (7-Eleven), was interested in leasing the property. The decedent signed two letters of intent with 7-Eleven, one on November 30, 2000, and the other on January 3, 2001. The second letter of intent reflected an increase in rent that the plaintiff had negotiated. Both letters stated that the plaintiff represented 7-Eleven and that the decedent agreed to pay the plaintiffs commission.

Attorney William F. Gallagher represented the decedent throughout the lease negotiations with 7-Eleven, which also was represented by an attorney. An addendum to the lease set forth the annual rent over the twenty year period, which fixed the total rent of $1,251,275, requiring a commission of $75,076.50 pursuant to the listing agreement. The lease was signed by the decedent on August 3, 2001, and by 7-Eleven on November 1, 2001. On or about November 3, 2002, 7-Eleven opened a gasoline station and convenience store on the site.

In November, 2003, the plaintiff sent the decedent an invoice for the first installment of its commission. The decedent did not respond. Consequently, the plaintiff sent a second invoice and letter to Gallagher requesting payment. On April 27, 2004, Gallagher sent a letter to the plaintiff with the first installment payment. The letter stated the following: “As indicated in my telephone message, the amount of the total bill is disputed, as you are valuing the lease ... in excess of $1,000,000 without reducing the lease to present value for the purpose of assessing your fee.”

Approximately six months later, the plaintiff sent Gallagher an invoice for the second installment. On October 28, 2004, Gallagher responded that the decedent had died and that the defendant was the fiduciary of his estate. In this letter, Gallagher once again asserted that the plaintiff must reduce its commission to account for present value. He stated: “I have . . . advised you in the past that value of the lease over the twenty year period on which your fee of 6 [percent] is computed is wrong. If [you are] going to charge [your] fee due at the present time, you have to reduce the future value of the lease to present value and then compute the 6 [percent].” Gallagher did not send payment with this letter.

On November 5, 2004, the plaintiff sent an invoice for the second installment to attorney Michael D. Saffer, counsel for the estate, and sent a bill to the defendant on November 30, 2004, stating that it was filing a claim against the estate for $40,040. On December 8, 2004, the plaintiff received a response from Saffer, stating that the claim was being “investigated and reviewed” by Gallagher. The plaintiff received no further payments and commenced this action on December 17, 2004. Thereafter, the defendant filed an answer asserting four special defenses.

Just prior to trial, the plaintiff discovered that it had made a calculation error in the amount due and consequently had tendered a claim to the estate for approximately $15,000 less than actually was owed. The plaintiff sent a corrected invoice to the defendant showing an outstanding balance of $55,056.10.

At trial, Gallagher acknowledged that he knew about the error prior to the plaintiffs informing him of it and that he chose not to communicate it to the plaintiff. Also at trial, the court heard testimony from both Matthew J. Halprin, the plaintiffs agent, and Bruce Cagenello, an expert witness, that real estate commissions are freely negotiable, that the commission was within the normal range of commissions and that they had never seen or heard of a commission being reduced to present value.

On January 20, 2006, the court issued a memorandum of decision in which it concluded that the plaintiff had proved by a preponderance of the evidence that it is entitled to its commission and that the defendant failed in her proof as to all four special defenses. The court concluded that the plaintiffs claim made to the decedent’s estate was not deficient according to “the evidence or law” and found that the estate owed the plaintiff $55,056.10. This appeal followed. Additional facts will be set forth as necessary.

I

The defendant claims that the court lacked subject matter jurisdiction over the plaintiffs action. “[0]nce the question of lack of jurisdiction of a court is raised . . . [it] must be disposed of no matter in what form it is presented . . . and the court must fully resolve it before proceeding further with the case.” (Internal quotation marks omitted.) Pine v. Dept. of Health, 100 Conn. App. 175, 179, 917 A.2d 590 (2007). We therefore must consider first the defendant’s jurisdictional claim before we can reach her other claims, if at all. Specifically, the defendant claims that the court considered the action prematurely, namely, before the estate had rejected the claim as required pursuant to General Statutes § 45a-363 (a). We are unpersuaded.

Subject matter jurisdiction involves the authority of a court to adjudicate the type of controversy presented to it. It exists if the court has the power to hear and determine cases of the general class to which the particular proceeding belongs. Statewide Grievance Committee v. Burton, 282 Conn. 1, 6-7, 917 A.2d 966 (2007). If a tribunal has the authority to decide the class of case, the issue of jurisdiction should be resolved in favor of its existence. Spencer v. Star Steel Structures, Inc., 96 Conn. App. 142, 150, 900 A.2d 42, cert. denied, 280 Conn. 914, 908 A.2d 539 (2006).

Although the defendant frames the issue as implicating the court’s subject matter jurisdiction, it is viewed more properly as a question of statutory authority. “Although related, the court’s authority to act pursuant to a statute is different from its subject matter jurisdiction. The power of the court to hear and determine, which is implicit in jurisdiction, is not to be confused with the way in which that power must be exercised in order to comply with the terms of the statute.” (Internal quotation marks omitted.) Amodio v. Amodio, 247 Conn. 724, 728, 724 A.2d 1084 (1999).

General Statutes § 45a-363 (a) provides: “No person who has presented a claim shall be entitled to commence suit unless and until such claim has been rejected, in whole or in part, as provided in [General Statutes §] 45a-360.” Section 45a-360 (a) provides that the “fiduciary shall: (1) Give notice to the person presenting a claim of the rejection of all or any part of his claim, (2) give notice to any such claimant of the allowance of his claim, or (3) pay the claim.”

In the present case, the court found that the defendant had rejected the claim, stating that the plaintiff sent a bill to “Gallagher, who responded that the plaintiff must reduce the fee to ‘present value.’ [The] [plaintiff also sent its bill to . . . Saffer, who represented [the estate]. He responded that the claim was being investigated by . . . Gallagher. After an initial payment by the defendant of $20,000, no further payment was ever received on the outstanding balance of $55,056.10.”

It is well established that we will overturn a court’s findings of fact only if they are clearly erroneous. “A finding of fact is clearly erroneous when there is no evidence in the record to support it ... or when although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed.” (Internal quotation marks omitted.) Welsch v. Groat, 95 Conn. App. 658, 661-62, 897 A.2d 710 (2006).

Our review of the record reveals evidence to support the finding that the estate rejected the claim. By his letters of April 27 and October 28, 2004, Gallagher had informed the plaintiff that the estate would not pay the commission unless it was reduced to present value. As we noted previously, Gallagher stated in the October 28, 2004 letter that “I have . . . advised you in the past that value of the lease over the twenty year period on which your fee of 6 [percent] is computed is wrong. If [you are] going to charge [your] fee due at the present time, you have to reduce the future value of the lease to present value and then compute the 6 [percent].” The October 28, 2004 letter concluded with the following sentence: “In any event I suggest that you proceed in accordance with the law.” Such a “suggestion” can only be construed as an invitation to bring suit. The defendant does not contest now, nor did she contest at trial, that Gallagher refused to pay the commission as set forth explicitly in the listing agreement. Given that Gallagher twice gave notice to the plaintiff that the estate would not pay the commission as agreed to by the parties unless the plaintiff reduced it to present value and his suggestion that the plaintiff “proceed in accordance with the law,” the court’s finding that the claim was rejected was not clearly erroneous. We conclude, therefore, that § 45a~363 did not bar the court from adjudicating the plaintiffs claim.

II

The defendant next claims that the court improperly awarded the plaintiff the amount claimed on the eve of trial rather than the amount it originally submitted to the estate. Gallagher admitted at trial that he knew the proper amount of the claim prior to the plaintiffs discovery of the calculation error. In her brief, the defendant asserts that the plaintiff should have been precluded from correcting the amount of its claim on the eve of trial. Specifically, the defendant claims that pursuant to General Statutes §§ 45a-358 and 45a-363 (a), the creditor must make a specific claim, in the form of a specific dollar amount, against the estate and that the creditor is not permitted to alter the claim after its rejection and the initiation of suit. We disagree.

Our reading of §§ 45a-358 and 45a-363 (a) and the statutory scheme of which they are a part indicates that the purpose of presenting claims in writing to the fiduciary of the estate is to give him or her notice of the claim in order to facilitate the speedy settlement of estates. See Kubish v. Zega, 61 Conn. App. 608, 620, 767 A.2d 148, cert. denied, 255 Conn. 949, 769 A.2d 62 (2001). In this case, the plaintiff corrected the amount of its claim on the eve of trial because it realized that it had made a calculation error. The plaintiff provided the fiduciary with written notice of the claim as required pursuant to § 45a-358. The defendant was aware of the correct amount prior to the plaintiffs informing her of it and does not allege that she lacked notice or otherwise suffered prejudice. Accordingly, the defendant was not prejudiced in any way by the plaintiffs correction.

We are unpersuaded by the defendant’s reliance on General Statutes § 45a-395 for her assertion that §§ 45a-358 and 45a-363 (a) should be construed to forbid a creditor from correcting its claim after the estate has rejected it. Section 45a-395 requires a decedent’s creditors to give notice of their claims to the estate prior to a date set by the Probate Court. The relevant part of the statute provides that “[t]he amount of a claim may not be increased after the time for the presentation of such claim has expired.” General Statutes § 45a-395 (e). This statute is inapplicable because General Statutes §§ 45a-390 through 45a-419 “apply with respect to decedents dying before October 1, 1987.” General Statutes § 45a-390. Here, the decedent died in 2003. Even if it were applicable, our Supreme Court in Cadle Co. v. D’Addario, 268 Conn. 441, 844 A.2d 836 (2004), expressly rejected the argument that § 45a-395 requires that the exact amount of the claim be known to the executors prior to the date set by the Probate Court. In that case, the court stated that the estate must be aware only of “the extent of the demand and the character of the transaction out of which it grew.” (Internal quotation marks omitted.) Id., 448. “To hold otherwise would thwart the purpose of the statute, namely, expedient estate settlement, and would enable executors to avoid paying the decedent’s debts.” Id., 449. We conclude that because the defendant knew of the demand, the character of the transaction and the miscalculation, the court properly awarded the plaintiff the full amount of its commission.

Ill

The defendant’s third claim is that the court improperly concluded that the plaintiff had no conflict of interest when it negotiated the lease between the decedent and 7-Eleven. We are unpersuaded.

The court made the following relevant findings of fact. “[Fjrom the very beginning, the plaintiffs employee . . . Halprin, and [the decedent] conversed about the possibility of leasing [the] property. Halprin indicated that he had several prospective tenants interested in the property. Subsequently, two letters of intent were signed . . . which clearly stated that the plaintiff represented 7-Eleven and that [the decedent] would pay the plaintiffs commission. The [decedent] could have retained another broker at any time before the lease signing within the parameters of the open listing agreement. The [decedent] was aware at all times during the negotiations that the plaintiffs client was 7-Eleven and not [the decedent]. The plaintiff, however, pursuant to its promise to the [decedent], [attempted] to and did successfully negotiate a higher rent for the [decedent], all of this with [his] knowledge and consent. ... As previously stated, all of the plaintiffs actions were known to and approved by . . . [the decedent], which the defendant now claims were unethical. The plaintiff presented its expert . . . Cagenello, on the subject, who testified that as long as everybody knows what the situation is, there is no conflict of interest. The court credits this testimony and finds that the [decedent], represented by . . . Gallagher, knew of the plaintiffs representation, found no fault with it and benefited to his satisfaction from the rent increase obtained by the plaintiff. ... In this case, the credible evidence is that the plaintiff violated no codes of conduct applicable to real estate brokers . . . .” (Citation omitted.)

Whether the plaintiff had a conflict of interest when it negotiated a lease is a question of fact. See Burton v. Mottolese, 267 Conn. 1, 44, 835 A.2d 998 (2003), cert. denied, 541 U.S. 1073, 124 S. Ct. 2422, 158, L. Ed. 2d 983 (2004). We review the factual findings of the trial court under our well established clearly erroneous standard. Welsch v. Groat, supra, 95 Conn. App. 661.

In finding that there was no conflict of interest on the plaintiffs part, the court credited the expert testimony that the plaintiff violated no codes of conduct applicable to real estate brokers. This court discussed rules applicable to real estate brokers in Licari v. Blackwelder, 14 Conn. App. 46, 539 A.2d 609, cert. denied, 208 Conn. 803, 545 A.2d 1100 (1988). “A real estate broker is a fiduciary. ... As such, he is required to exercise fidelity and good faith, and cannot put himself in a position antagonistic to his principal’s interest . . . by fraudulent conduct, acting adversely to his client’s interests, or by failing to communicate information he may possess or acquire which is or may be material to his principal’s advantage. . . .

“This rule requiring a broker ... to act with the utmost good faith towards his principal places him under a legal obligation to make a full, fair and prompt disclosure to his employer of all facts within his knowledge which are, or may be material to the matter in connection with which he is employed, which might affect his principal’s rights and interests, or his action in relation to the subject matter of the employment, or which in any way pertains to the discharge of the agency which the broker has undertaken.” (Citations omitted; internal quotation marks omitted.) Id., 53-54.

We have reviewed the record, including the listing agreement and the testimony presented at trial, as well as the rules of conduct applicable to real estate brokers. On the basis of our review, we conclude that the court’s finding that the plaintiff violated no codes of conduct applicable to real estate brokers was not clearly erroneous.

IV

The defendant’s final claim is that the court improperly found in favor of the plaintiff as to her second special defense that the commission should have been reduced to present value because a commission “seeking the value of the lease into the future [twenty] years which is not discounted to present value is unconscionable and therefore unenforceable.” This claim is without merit.

“Our first consideration is the standard of review for a claim of unconscionability. [T]he question of uncon-scionability is a matter of law to be decided by the court based on all the facts and circumstances of the case. . . . Our review on appeal is not limited to determining whether there has been clear error. . . . [T]he ultimate determination of whether a transaction is unconscionable is a question of law, not a question of fact, and . . . the trial court’s determination on that issue is subject to a plenary review on appeal. It also means, however, that the factual findings of the trial court that underlie that determination are entitled to the same deference on appeal that other factual findings command. Thus, those findings must stand unless they are clearly erroneous. . . .

“The purpose of the doctrine of unconscionability is to prevent oppression and unfair surprise. . . . [T]he doctrine of unconscionability draws heavily on its counterpart in the Uniform Commercial Code which, although formally limited to transactions involving personal property, furnishes a useful guide for real property transactions. . . . [T]he basic test is whether, in the light of the general commercial background and the commercial needs of the particular trade or case, the clauses involved are so one-sided as to be unconscionable under the circumstances existing at the time of the making of the contract. . . . Unconscionability is determined on a case-by-case basis, taking into account all of the relevant facts and circumstances.” (Emphasis in original; internal quotation marks omitted.) Monetary Funding Group, Inc. v. Pluchino, 87 Conn. App. 401, 411-12, 867 A.2d 841 (2005).

In the present case, the court expressly held that the defendant had failed to prove her special defense, stating that “[n]o evidence was presented that the commission in this case was excessive. Certainly, there is nothing in the contract that is ambiguous as to the amount of commission payable. Further, the defendant has cited no authority in law to support the ‘present value’ claim.”

It is axiomatic that “[t]he purpose of a special defense is to plead facts that are consistent with the allegations of the complaint but demonstrate, nonetheless, that the plaintiff has no cause of action.” (Internal quotation marks omitted.) Fidelity Bank v. Krenisky, 72 Conn. App. 700, 705-706, 807 A.2d 968, cert. denied, 262 Conn. 915, 811 A.2d 1291 (2002). In support of its breach of contract claim, the plaintiff presented the signed listing agreement, which states that the decedent agreed to pay the plaintiff in three installments “6 [percent] of the initial lease value defined as the fixed annual rent payable for the term of the lease.” As required by General Statutes § 20-325b, the agreement explicitly provided that “the amount or rate of real estate broker compensation is not fixed by law. It is set by each broker individually and may be negotiable between you and the broker.”

Our review of the record reveals that the defendant failed to support her contention that failing to reduce the commission to present value was unconscionable. The defendant’s expert, Gary Crakes, a professor of economics, testified that he had never negotiated a commission agreement, is not a licensed real estate broker, is not familiar with brokerage procedures, is not familiar with commercial leasing practices and is not an expert in interpreting contracts. The court found, however, that “[t]he plaintiff presented evidence from the chairman of the Connecticut real estate commission . . . Cagenello, who testified that he had never seen or heard of a commission such as this being reduced to present value, and the commission here was not unusual.” The court credited Cagenello’s testimony. See Kelly v. New Haven, 275 Conn. 580, 607 n.31, 881 A.2d 978 (2005) (“[i]t is the sole province of the trial court to weigh and interpret the evidence before it and to pass upon the credibility of witnesses” [internal quotation marks omitted]). Because “[t]he party claiming unconscionability bears the burden of proof’; Emlee Equipment Leasing Corp. v. Waterbury Transmission, Inc., 31 Conn. App. 455, 464, 626 A.2d 307 (1993); the defendant’s mere assertion of unconscionability, without more than a citation to the Rules of Professional Conduct applicable to attorneys, is insufficient to establish the special defense. The fact that a party to a contract comes to regret one of its provisions does not render the contract unconscionable. The court’s determination that the defendant had failed in her proof to establish the special defense was legally correct.

The judgment is affirmed.

In this opinion the other judges concurred.

       The decedent, Joseph Maturo, was the defendant’s husband.

       An open listing is “an offer looking to a unilateral contract; that is, an offer that is accepted by performance. Although the property owner promises to pay the listing broker his commission when he produces a ready, willing and able buyer, he does not seek a promise in return from the broker, but only performance of the act requested. . . . The traditional open listing merely gives a broker permission to [lease] real property within a specified time. Since it is unsupported by consideration, an open listing may, in the absence of part performance or action in reliance, be revoked at any time before the broker’s performance without the property owner incurring any obligation.” (Citations omitted.) Real Estate Listing Service, Inc. v. Real Estate Commission, 179 Conn. 128, 133, 425 A.2d 581 (1979).

       The defendant alleged the following special defenses: (1) “[t]he commission provision ... of the listing agreement is ambiguous and therefore should be construed against the plaintiff,” (2) “[a]ny commission seeking the value of the lease into the future for [twenty] years which is not discounted to present value is unconscionable and therefore unenforceable,” (3) “[t]he commission provision of the listing agreement must be acljusted for any suspension in payment by 7-Eleven based on disputed environmental or other issues for which 7-Eleven and the [decedent’s] estate are at issue” and (4) no commission is due because “[t]he plaintiff or its principals failed to disclose all facts which would have disclosed a conflict of interest on the part of the plaintiff and its principals.”

       General Statutes § 45a-358 (a) provides in relevant part: “Every claim shall be presented to the fiduciary in writing. . . .”

       By referencing the Rules of Professional Conduct applicable to attorneys, the defendant suggests that because a real estate broker is a fiduciary under Connecticut law, just as an attorney is, brokers should be required to reduce their commission fees to present value. The defendant cites no legal support for this argument. We are unpersuaded by the analogy.


author: WEST, J.

text:
    TRAYSTMAN, CORIC AND KERAMIDAS v. MARTHA HUNDLEY
    (AC 27415)
    Schaller, DiPentima and West, Js.

      Argued March 15
    officially released July 17, 2007

      William F. Gallagher, with whom were Martin M. Rutchik, and, on the brief, Hugh D. Hughes, for the appellant (defendant).

      Drzislav Coric, with whom was Lloyd L. Langham-mer, for the appellee (plaintiff).
   Opinion

WEST, J.

The defendant, Martha Hundley, appeals from the judgment of the trial court, rendered after a jury trial, in favor of the plaintiff, the law firm of Trayst-man, Coric & Keramidas. On appeal, the defendant claims that the court improperly instructed the jury on legal malpractice. We affirm the judgment of the trial court.

The defendant hired the plaintiff in connection with her dissolution of marriage action against her husband, Bert Coppotelli, a physician. The plaintiff assigned one of its attorneys, Scott M. McGowan, to the defendant’s case. In the course of the dissolution action, Coppotelli submitted a financial affidavit but failed to include a valuation of his medical practice and its accompanying real estate. McGowan then advised the defendant to obtain her own valuation of Coppotelli’s practice and its real estate. The defendant declined to follow McGowan’s advice, and she signed a statement indicating that she wanted McGowan to proceed with the dissolution trial without obtaining the valuation. Following the dissolution trial, the defendant was not awarded any portion of the value of Coppotelli’s medical practice and its real estate.

The defendant owed the plaintiff $2825.09 for legal services provided subsequent to the dissolution trial, but she failed to pay her bill. The plaintiff then commenced this action in the small claims session of the Superior Court, seeking payment from the defendant. The defendant transferred the case to the regular docket and filed a counterclaim for legal malpractice. The plaintiff then filed a claim for a jury trial on the complaint and counterclaim. After a trial, the jury awarded the plaintiff $3345.20 in damages and found in favor of the plaintiff on the defendant’s counterclaim. The defendant then filed this appeal.

The defendant claims that the court improperly instructed the jury on legal malpractice. “When reviewing [a] challenged jury instruction . . . we must adhere to the well settled rule that a charge to the jury is to be considered in its entirety, read as a whole, and judged by its total effect rather than by its individual component parts. . . . [T]he test of a court’s charge is not whether it is as accurate upon legal principles as the opinions of a court of last resort but whether it fairly presents the case to the jury in such a way that injustice is not done to either party under the established rules of law. ... As long as [the instructions] are correct in law, adapted to the issues and sufficient for the guidance of the jury ... we will not view the instructions as improper.” (Internal quotation marks omitted.) Smith v. Greenwich, 278 Conn. 428, 437, 899 A.2d 563 (2006).

The defendant first directs us to the court’s instruction that “an attorney does not commit legal malpractice where, after impressing upon the client the importance of having an appraisal of her husband’s professional good will and his real estate, the client instructs the attorney not to proceed with the appraisals and signs a letter stating that she is proceeding without the appraisals and against the attorney’s advice.” The defendant argues that that instruction was too restrictive because it focused on McGowan’s actions rather than on whether the defendant reasonably could have agreed to proceed with the dissolution trial without obtaining a valuation of Coppotelli’s practice and its real estate. We disagree with the defendant’s argument because the issue at trial was whether McGowan properly advised the defendant, not whether the defendant made a reasonable decision to proceed with the dissolution trial. The court’s instruction was correct in law, adapted to the issue and sufficient to guide the jury.

The defendant next directs us to the court’s instruction that “[t]he standard or level of professional care to which a lawyer must be held in this case is the exercise of the same degree of care, skill and diligence which other attorneys practicing matrimonial law in Connecticut and aware of local customs must exercise under similar circumstances.” The defendant argues that the court improperly included the element of awareness of local customs in the standard of care and failed to define that term. The parties agree that the jury would have understood that term to refer to the courtroom practices of judges in the judicial district of New London. Because the defendant presented expert testimony by an attorney from the judicial district of Hartford, and the plaintiff presented expert testimony by attorneys from the judicial district of New London, the defendant argues that the court’s inclusion of local customs in the standard of care caused the jury to reject the testimony of her expert and find in favor of the plaintiff.

“An important preliminary issue in determining the standard of care is whether a general standard of practice should be applied, or a local one. The former usually means a jurisdictionwide or statewide standard, whereas the latter refers to a legal community of more limited scope. The ‘locality rule’ originated in the context of medical malpractice, but, as noted in Restatement of the Law Governing Lawyers § 52, [comment (b)], that rule was not often applied with respect to legal malpractice in any event, and has largely gone out of favor with respect to most professional malpractice claims.” 1 G. Hazard & W. Hodes, The Law of Lawyering (3d Ed. 2004 Sup.) § 4.5, pp. 4-12 to 4-13. “The professional community whose practices and standards are relevant in applying [a lawyer’s] duty of competence is ordinarily that of lawyers undertaking similar matters in the relevant jurisdiction . . . .”1 Restatement (Third), The Law Governing Lawyers § 52, comment (b) (2000).

The Vermont Supreme Court has provided a helpful explanation of the manner in which local factors properly can be considered in legal malpractice actions. “ [Knowledge of local practices, rules, or customs may be determinative of, and essential to, [an attorney’s] exercise of adequate care and skill. ... To argue this fact in support of continued application of the locality rule, however, is to confuse the degree of skill and knowledge and the relevance of local factors which constitute the knowledge required by the standard of care. . . . Although attorneys throughout this state may be required to familiarize themselves with local practices, rules or customs peculiar to their area, the crucial inquiry for malpractice purposes turns not on the substance of the underlying practice, rule, or custom but on whether a reasonable and prudent attorney can be expected to know of its existence and practical applications.” (Citations omitted; emphasis in original; internal quotation marks omitted.) Russo v. Griffin, 147 Vt. 20, 24, 510 A.2d 436 (1986).

In the present case, the defendant is correct that the court’s reference to local customs was improper in defining the standard of professional care required of attorneys because the same standard of care applies throughout this state. The court should have limited the standard of care to the ordinary degree of skill and knowledge possessed by attorneys practicing matrimonial law in Connecticut. Whether an attorney exercising that ordinary degree of skill and knowledge would have made an effort to learn about local factors, namely, the courtroom practices of judges in the judicial district of New London, should have been an issue for the jury to decide on the basis of the expert testimony that was presented. “Generally, to prevail in a case alleging legal malpractice, a plaintiff must present expert testimony to establish the standard of proper professional skill or care.” (Internal quotation marks omitted.) Dixon v. Bromson & Reiner, 95 Conn. App. 294, 297, 898 A.2d 193 (2006).

Despite the court’s improper reference to local customs in defining the standard of care, we disagree with the defendant’s claim that injustice resulted from that improper reference. None of the expert attorneys from the judicial district of New London testified that the standard of professional care in that judicial district was different from the standard in the other judicial districts of this state. Those experts testified as to the courtroom practices of certain judges but did not testify that knowledge of those judges’ practices would diminish the required standard of professional care. Therefore, the court’s instruction regarding awareness of local customs actually increased the amount of knowledge that McGowan was required to possess in order to prevail on the defendant’s counterclaim. The court instructed the jury that McGowan was required to have knowledge of local customs in order to prevail. The court’s instruction thus could have been detrimental to the plaintiff but not to the defendant. The jury determined that McGowan had exercised the same degree of care as other attorneys practicing matrimonial law in this state and that he was aware of local customs. If the jury had determined that McGowan had exercised the same degree of care as other attorneys practicing matrimonial law in Connecticut but was not aware of local customs, the jury would have concluded that he had committed legal malpractice.

The jury’s finding in favor of the plaintiff does not compel the conclusion that the defendant urges us to reach, namely, that the jury rejected the testimony of the defendant’s expert only because the plaintiffs experts testified as to local customs. The defendant’s attempt to divine how the jury reached its verdict does not establish that she suffered injustice as a result of the court’s improper instruction. “The sifting and weighing of evidence is peculiarly the function of the trier. [N] oth-ing in our law is more elementary than that the trier is the final judge of the credibility of witnesses and of the weight to be accorded to their testimony. . . . The trier is free to accept or reject, in whole or in part, the testimony offered by either party.” (Internal quotation marks omitted.) Simes v. Simes, 95 Conn. App. 39, 47, 895 A.2d 852 (2006). Moreover, the testimony regarding local customs had no relationship to the core issue in the defendant’s counterclaim, which was whether McGowan properly advised the defendant to obtain a valuation of Coppotelli’s practice and its real estate before proceeding with the dissolution trial. We therefore conclude that it is not reasonably probable that the defendant suffered injustice as a result of the court’s improper instruction regarding local customs.

The judgment is affirmed.

In this opinion the other judges concurred.


text:
    EDWARD C. DEMERS, JR. v. STEVEN C. ROSA
    (AC 27713)
    Schaller, DiPentima and Harper, Js.
    Submitted on briefs February 9
    officially released July 17, 2007

      David Compagnone filed a brief for the appellant (defendant).

      John K. McDonald filed a brief for the appellee (plaintiff).
   Opinion

HARPER, J.

This appeal arises out of an action by the plaintiff, Edward C. Demers, Jr., to recover damages from the defendant, Steven C. Rosa, for injuries sustained in an incident involving the defendant’s roaming dog. The trial court found the defendant liable under a theory of common-law negligence and awarded the plaintiff $48,381.76 in damages, plus costs. On appeal, the defendant argues that the judgment should be reversed because (1) his negligence did not proximately cause the plaintiffs injuries and (2) the court improperly relied on inadmissible hearsay statements contained in several police reports. Because we agree that a proper showing of proximate cause is absent in this case, we reverse the judgment of the trial court.

The facts underlying the defendant’s appeal are not in dispute. At approximately 5:55 p.m. on January 7, 2002, Donna Bannon called the Middlebury police department and requested assistance with a roaming dog on her property. At the time, the weather was a wintry mix of snow and sleet. Two police officers, Alton L. Cronin and the plaintiff, drove separately to Ban-non’s residence and parked their patrol cars in the driveway. They subsequently approached the home and spoke with Bannon. Bannon told the officers that her call was prompted by concern for the safety of the dog in light of the inclement weather. She also stated that she contacted the police department only after the dog warden informed her that he was unable to come to her residence.

According to his testimony, Cronin recognized the dog, a yellow labrador retriever, because the dog had been found roaming once before. Because of this prior incident, Cronin knew the identity and address of the dog’s owner. Cronin took the dog from Bannon and, while holding it by its collar, led it down the driveway to his patrol car. He put the dog in the backseat and then got into the car himself.

The plaintiff followed Cronin down the driveway and, once Cronin had gotten into his car, stopped to talk with him. It was while the plaintiff was standing next to Cronin’s car that he lost his footing and slipped on the ice and snow, falling on his back. Cronin exited the car and, upon learning that the plaintiff could not move, called headquarters. Shortly thereafter, an ambulance and Middlebury police Chief Patrick J. Bona arrived at the scene. Bona later testified that he took the dog and brought it to the defendant’s house, situated approximately one-half mile from Bannon’s residence. Bona walked the dog to the front door of the house where, according to Bona, the defendant answered the door, took possession of the dog and thanked him for bringing it home.

In August, 2002, the plaintiff filed a four count complaint against the defendant, of which only the first count is at issue. The first count alleged, inter alia, that the defendant negligently permitted the dog to roam on the day in question, thereby causing the plaintiffs fall and resulting injuries. It further alleged that the defendant frequently permitted his dogs to roam, prompting residents to file complaints with the Mid-dlebury police department. On the basis of these facts, the plaintiff requested an award of damages, interest, costs and “such other relief as may be fair and equitable.”

The parties tried the action to the court on March 1, 2006. In a memorandum of decision issued on May 3, 2006, the court found that the plaintiff had established all of the elements of his negligence claim. In addressing the causation issue specifically, the court found that it was reasonably foreseeable that negligently allowing a dog to roam could precipitate complaints from local residents. The court further determined that it was reasonably foreseeable that a police officer could be injured during the course of responding to such a complaint because police officers had responded previously when the defendant’s dogs were found roaming. Finally, the court found that the defendant’s negligence in allowing his dogs to roam was a substantial factor in causing the plaintiffs injuries. On the basis of those conclusions, the court found the defendant liable in negligence and awarded the plaintiff $48,381.76. This appeal followed.

Because causation is an essential element of a negligence claim; see Coste v. Riverside Motors, Inc., 24 Conn. App. 109, 112, 585 A.2d 1263 (1991); we address that issue first. “The question of proximate cause generally belongs to the trier of fact because causation is essentially a factual issue. ... It becomes a conclusion of law only when the mind of a fair and reasonable [person] could reach only one conclusion; if there is room for a reasonable disagreement the question is one to be determined by the trier as a matter of fact.” (Citations omitted; internal quotation marks omitted.) Stewart v. Federated Dept. Stores, Inc., 234 Conn. 597, 611, 662 A.2d 753 (1995). Accordingly, we will reverse the judgment of the court only if proximate cause is absent as a matter of law.

The defendant argues that proximate cause is absent in this case because the dog was in the backseat of Cronin’s patrol car at the time of the plaintiffs fall, and the plaintiff fell because of the ice and snow, not because of barking or some other distracting behavior by the dog. On the basis of these facts, the defendant contends that the causal nexus between the plaintiffs fall and the defendant’s negligence is too attenuated to justify the imposition of liability. The defendant also alleges that it was not reasonably foreseeable that a person responding to a complaint involving a roaming dog would slip and fall on the ice and snow after the dog already had been secured.

In response, the plaintiff focuses on the fact that the defendant would not have been standing on Bannon’s driveway were it not for the defendant’s negligence in allowing his dog to roam. He further emphasizes that the defendant’s dog had been found roaming on at least one prior occasion, necessitating police intervention. By virtue of these facts, the plaintiff maintains that it is reasonably foreseeable that a person attempting to secure a roaming dog in the snow and ice would slip and fall in the process.

At the outset, it is helpful to review some of the basic principles regarding proximate cause and causation generally. “[L]egal cause is a hybrid construct, the result of balancing philosophic, pragmatic and moral approaches to causation. The first component of legal cause is causation in fact. Causation in fact is the purest legal application of . . . legal cause. The test for cause in fact is, simply, would the injury have occurred were it not for the actor’s conduct. . . .

“Because actual causation, in theory, is virtually limitless, the legal construct of proximate cause serves to establish how far down the causal continuum tortfea-sors will be held liable for the consequences of their actions. . . . The fundamental inquiry of proximate cause is whether the harm that occurred was within the scope of foreseeable risk created by the defendant’s negligent conduct.” (Internal quotation marks omitted.) Malloy v. Colchester, 85 Conn. App. 627, 633, 858 A.2d 813, cert. denied, 272 Conn. 907, 863 A.2d 698 (2004). Finally, “[t]he test of proximate cause is whether the defendant’s conduct is a substantial factor in bringing about the plaintiffs injuries. . . . The existence of the proximate cause of an injury is determined by looking from the injury to the negligent act complained of for the necessary causal connection. . . . This causal connection must be based upon more than conjecture and surmise.” (Emphasis in original; internal quotation marks omitted.) Id., 634.

In accordance with these legal principles, we turn to an examination of the scope of foreseeable risk created by allowing a dog to roam on a snowy and icy day. The parties seemingly agree that the involvement of police officers to secure the dog is properly within the scope of the risk created by such action. The parties disagree, however, about whether the officer’s fall after the dog had been placed in the patrol car is beyond the scope of the reasonably foreseeable risk.

To resolve this dispute, we turn for guidance to our Supreme Court’s decision in Lodge v. Arett Sales Corp., 246 Conn. 563, 717 A.2d 215 (1998), a case cited by both parties in support of their respective positions. InLodge, three alarm system companies negligently activated a false fire alarm, which triggered the deployment of a fire engine truck. Id., 567. While responding to the alarm, the brakes on the fire engine truck failed, causing the truck to crash into a tree. Id. Our Supreme Court concluded that the alarm system companies could not be held liable in negligence because (1) the harm suffered by the firefighters was not reasonably foreseeable and (2) the relevant policy considerations militated against the imposition of legal responsibility for the accident. Id., 577. In determining that the accident was not reasonably foreseeable, the court found it particularly important that the direct cause was the failure of the brakes on the truck and not some condition that was in any way related to the negligent activation of the false fire alarm. Id., 574, 577. That fact was critical, the court noted, because “[liability may not be imposed merely because it might have been foreseeable that some accident could have occurred; rather, liability attaches only for reasonably foreseeable consequences.” (Emphasis in original.) Id., 577.

With regard to the underlying policy considerations, the court observed that “[ijmposing liability on these defendants for a harm that they reasonably could not be expected to anticipate and over which they had no control would serve no legitimate objective of the law.” Id., 578. To that end, the court noted that the firefighters, as city employees, had already been compensated for their injuries through the operation of the workers’ compensation system. Id., 580. Because workers’ compensation represents a policy decision that the public at large, rather than individuals, should be responsible for paying the costs associated with the hazardous nature of public safety positions, the court concluded that imposing additional liability under those circumstances “would impose an undue burden on individual members of the public.” Id., 581.

Although the Supreme Court in Lodge framed the critical question as being one of duty, it is equally relevant to our examination of proximate cause because “[i]n negligence cases ... in which a tortfeasor’s conduct is not the direct cause of the harm, the question of legal causation is practically indistinguishable from an analysis of the extent of the tortfeasor’s duty to the plaintiff.” (Internal quotation marks omitted.) Malloy v. Colchester, supra, 85 Conn. App. 633-34. Like an analysis of causation, a determination of the nature of the legal duty owed, if any, must be rooted in “the fundamental policy of the law that a tortfeasor’s responsibility should not extend to the theoretically endless consequences of the wrong.” (Internal quotation marks omitted.) Id., 634.

Turning to the facts of this case, we are persuaded that the harm that befell the plaintiff was not reasonably foreseeable as a matter of law. When examining the scope of risk created by the defendant’s negligence, one could easily foresee the possibility that a police officer could slip while in the midst of catching a roaming dog and returning it to its owner. Such a foreseeable mishap could occur, for instance, as a result of chasing after the dog, restraining the' dog or trying to contain it in a particular area. Equally imaginable are so-called “dog fright” cases, in which the dog startles the police officer and thereby causes him or her to slip and fall. All of these situations could be considered properly within the scope of the risk because the harm suffered is of the same general type as that which makes the defendant’s conduct negligent in the first instance. See Doe v. Manheimer, 212 Conn. 748, 764, 563 A.2d 699 (1989), overruled in part on other grounds by Stewart v. Federated Dept. Stores, Inc., 234 Conn. 597, 608, 662 A.2d 753 (1995). Here, however, we agree with the defendant that the plaintiff fell because of the ice and snow on the driveway and not by virtue of the dog’s roaming free or even the dog’s presence at the scene of the accident. The plaintiff did not allege, and the evidence does not suggest, that the dog’s behavior in the backseat of Cronin’s car contributed to his fall in some fashion. By prompting the plaintiff to come to the Bannon residence, the dog’s roaming became an indirect cause of the plaintiffs fall, at best.

Admittedly, as the plaintiff argues, it is reasonably foreseeable that a police officer responding to a call on a snowy and icy day may become injured through a weather related accident. The general foreseeability of a weather related accident, however, does not, by itself, make this particular accident foreseeable. Furthermore, if we accepted this argument, the lens of foreseeability could be expanded to encompass generally any type of harm sustained in the midst of responding to a call during inclement weather. Our Supreme Court has never sanctioned such a broad view of the legal concept of foreseeability. On the contrary, the court has stated that the general foreseeability of the harm that occurred cannot justify the imposition of liability if the direct cause of the accident was not reasonably foreseeable. See Lodge v. Arett Sales Corp., supra, 246 Conn. 574. Furthermore, the court has admonished that the proximate cause requirement must be used to temper the expansive view of causation in fact so as to exclude “[r] emote or trivial [actual] causes” of a harm. (Internal quotation marks omitted.) Doe v. Manheimer, supra, 212 Conn. 758. Here, although the dog’s roaming was the impetus for the plaintiffs trip to the Bannon residence, it can be viewed only as a “remote or trivial” cause of his fall and subsequent injury. As such, we reject the suggestion that by allowing the dog to roam on a snowy and icy day, the plaintiff should have been able to foresee that a police officer would slip and fall, not while catching the dog, but while standing beside a vehicle containing the dog.

Although the plaintiff probably would not have been present on Bannon’s driveway but for the dog’s roaming, “[our Supreme Court] ha[s] declined to hold that [a] defendant’s conduct in contributing to the harm, principally caused ‘in fact’ by another person or force, was a ‘proximate cause’ of the harm.” Doe v. Manheimer, supra, 212 Conn. 765. Here, the necessary relationship between the defendant’s negligence in allowing his dog to roam, and the direct cause, i.e., the slippery driveway, is lacking. Furthermore, imposing liability on the defendant in this situation would have little effect on the prevention of the type of unforeseeable mishap suffered by the plaintiff and would contribute only modestly, if at all, to the statutory scheme already in place to prevent dogs from roaming. In light of these facts, we conclude that the defendant cannot be held legally responsible for the unforeseen consequences of his negligence in allowing his dog to roam free on the day in question. Accordingly, we do not address the defendant’s alternate ground for reversing the judgment of the court.

The judgment is reversed and the case is remanded to the trial court with direction to render judgment for the defendant on the plaintiffs complaint.

In this opinion the other judges concurred.

       The court’s memorandum of decision inadvertently reported the officer’s name as “Alvin Cronin.”

       The second, third and fourth counts of the complaint alleged violations of General Statutes §§ 22-363, 22-357 and 22-364. The court determined that the plaintiff could not recover under any of those theories.

       In calculating damages, the court found that the plaintiff was 20 percent at fault for his injuries. As such, the court reduced its total damages award of $60,477.20 by 20 percent to reflect the plaintiffs contributory negligence.

       Indeed, according to the undisputed testimony of the plaintiff, Cronin and the defendant, the plaintiffs police dog was in the plaintiffs patrol car at the time of the accident. The fact that two dogs were in separate vehicles in the driveway further suggests that the presence of the defendant’s dog did not directly contribute to the harm suffered by the plaintiff.

       Cronin testified that the defendant’s dog was not barking or displaying any violent propensities at the time of the accident. On the contrary, according to Cronin, the dog merely “paced back and forth in the backseat a bit.”

       We are also persuaded that the applicable policy considerations weigh heavily in favor of disallowing recovery in this type of situation. In Lodge,
        the court decided that the alarm system companies should not have to compensate the injured firefighters because the workers’ compensation system represents a policy decision that the public at large, rather than individuals, should have to pay when “the risks inherent in [a public safety officer’s] occupation materialize.” (Internal quotation marks omitted.) Lodge v. Arett Sales Corp., supra, 246 Conn. 580. This policy relating to the compensation of firefighters injured in the performance of their duties applies with equal force to police officers.
      Furthermore, we reject the plaintiffs suggestion that recourse to the tort system is necessary to encourage the defendant to comply with General Statutes § 22-364, the “dogs roaming at large statute.” The statutory penalties for violating § 22-364, as well as the threat of liability for any foreseeable damage caused by a roaming dog, already create a substantial incentive for dog owners to take appropriate precautions.