author: HARPER, J. BERDON, J.,

text:
    STATE OF CONNECTICUT v. JARRELL RICHARDS
    (AC 28567)
    Harper, Beach and Berdon, Js.

      Argued October 28, 2008
    officially released April 21, 2009

      Mary Beattie Schairer, special public defender, for the appellant (defendant).

      Laurie N. Feldman, special deputy assistant state’s attorney, with whom, on the brief, were Jonathan C.

      Benedict, state’s attorney, and Charles M. Stango, assistant state’s attorney, for the appellee (state).
   Opinion

HARPER, J.

The defendant, Jarrell Richards, appeals from the judgment of conviction following his conditional plea of nolo contendere to possession of a weapon in a motor vehicle in violation of General Statutes § 29-38. The plea followed the trial court’s denial of the defendant’s motion to suppress evidence that the police seized from an automobile that the defendant was driving prior to an investigatory detention by the police of the automobile and its occupants. The defendant argues that the court’s denial of the motion to suppress was improper because the investigatory detention was not constitutionally permissible and the evidence seized from the automobile was the fruit of this police activity. We affirm the judgment of the trial court.

The record reveals the following facts and procedural history. In February, 2006, the defendant was arrested and charged wdth possession of a weapon in a motor vehicle, possession of narcotics and using a motor vehicle without the owner’s permission. In July, 2006, the defendant filed a motion to suppress all evidence that the police seized from the automobile that he was driving prior to his arrest. The defendant argued that the search of the automobile violated his rights against unlawful search and seizure afforded by the federal and state constitutions. On October 2, 2006, the court, Ginocchio, J., held an evidentiary hearing on the motion to suppress. At the conclusion of the hearing, the court announced its ruling denying the motion. On October 3,2006, the defendant entered a plea of nolo contendere to the charge of possession of a weapon in a motor vehicle, conditioned on his right to appeal from the court’s denial of his motion to suppress. The court, Carroll, J., accepted the plea and, on January 2, 2007, sentenced the defendant to a five year term of incarceration, suspended after nine months, followed by a three year period of probation. This appeal followed.

At the hearing on the motion to suppress, the state presented testimony from Orlando Rosado, David Riehl and Carl Bergquist, three of the Bridgeport police officers who took part in the defendant’s apprehension and arrest. Viewed in its entirety, the testimony of these officers described the following version of events. At times relevant, Rosado and Riehl were members of the narcotics and vice tactical narcotics team, having received specialized training in such matters as surveillance of drug related activities. As members of this team, the officers gathered information from a variety of sources and targeted the activities of suspected drug dealers. During the early morning hours of February 22, 2006, the officers conducted surveillance in the area of Washington, Highland and Sanford Avenues. On the basis of information provided to the police, as well as their experience in the area, the police knew this residential area to be a place where drug related activities occurred. The officers recalled that at that time, the police recently had made both drug and prostitution arrests in the area.

At approximately 1:30 a.m., the officers observed an automobile, being operated by the defendant, stop along Sanford Avenue. The automobile displayed Vermont license plates, a fact that raised the officers’ awareness because it was unusual to observe visitors from Vermont in that area, out-of-state plates are commonly found on rented automobiles and drug dealers commonly use rented automobiles in their drug related activities in an attempt to escape police detection.

For several minutes, the officers observed the defendant and two passengers merely sitting in the automobile. By virtue of their training and experience, the officers were aware that this seemingly innocuous behavior was consistent with drug related activity. That is, the officers were aware that drug dealers and buyers often park their automobiles along the street in this manner while waiting for others to approach, either on foot or in other automobiles, to transact drug related business. The fact that this conduct was occurring at that early morning hour, on a February weeknight and in an area where drug related activity was prevalent, reinforced these suspicions of criminal activity.

After a few minutes, the officers observed a female pedestrian walking along the street approach the passenger side of the automobile and briefly converse with one or more of the automobile’s occupants before continuing on her way. The officers did not observe any hand-to-hand transaction take place. Thereafter, the defendant drove off, and the officers approached and spoke to the pedestrian. The officers asked her what had transpired, to which she replied that the occupants of the automobile had asked her to approach them and asked her if she “was straight.” The officers and the pedestrian clearly understood this slang expression to be a way of asking whether she wanted to buy drugs. The officers did not recognize the pedestrian, did not detain her and did not obtain any personal information from her because she did not want to provide such information. In light of their experience with other members of the public in analogous situations, the officers judged the pedestrian to be cooperative and forthcoming with regard to the information that she did provide. The officers also deemed her version of what had occurred during her brief encounter with the occupants of the automobile to be consistent with what they had observed. The officers’ observations of the encounter and their conversation with the pedestrian elevated their suspicion that one or more occupants of the automobile was engaged in the unlawful sale of drugs.

Following their conversation with the pedestrian, Rosado and Riehl contacted Bergquist, a police sergeant who, along with another officer, was on patrol in the area. Rosado and Riehl relayed a description of the automobile and its occupants and asked Bergquist to stop the automobile. Bergquist located the automobile as it was traveling nearby. He activated his vehicle’s police lights and stopped the automobile. Before exiting his police cruiser, Bergquist observed the occupants of the automobile move around, turn their heads and duck. This movement elevated Bergquist’s suspicion, on the basis of his training and experience, that the occupants were engaged in some type of illegal activity and that they could be secreting contraband within their automobile. The officer who was on patrol with Bergquist that night removed the front passenger from the automobile. This passenger was behaving in an “extremely suspicious” manner in that he had been twisting and turning in the automobile and could be seen moving his hands. Upon his removal from the automobile, the passenger was behaving in a manner that suggested to Bergquist that he might attempt to flee the scene. After the front passenger was placed in handcuffs, the officers removed the defendant and the backseat passenger from the automobile and patted them down for weapons.

At this point, Bergquist began to search the passenger compartment of the automobile. Bergquist located a smaller compartment, behind a child’s car seat, in the backseat area of the automobile. In this smaller compartment, Bergquist discovered a loaded .25 caliber Beretta handgun. The police later found inside the automobile a substance that they believed to be crack cocaine.

At the close of the evidentiary hearing on the motion to suppress, the court, in an oral ruling, set forth its findings and conclusions. The court stated: “[T]he police testified that they had a whole source of tips and information that leads them to set up an investigation for drugs; they determined this was a high crime area. The court makes a finding based on the testimony by these credible witnesses that it was a high crime area. It’s now 1:30 in the morning, very late at night, and you have a car in the vicinity of the area in question, which has Vermont plates. The officers found that to be suspicious. The court, based on the testimony, finds that to be one of the suspicions that would make up the totality of the circumstances in this case, which would give rise to a further investigation. They see an unknown pedestrian female coming down the road; she approaches the vehicle. The court finds that testimony credible. A conversation ensues with the three males in the car at 1:30 in the morning on a Thursday night. . . .

“At 1:30 in the morning, this female has a conversation with these gentlemen in the car, and the officers approach the female shortly thereafter and they have a conversation with her. And the female indicates that the question they ask this female is, is she straight. The testimony was that she understood the question, and it was her belief that . . . they were going to sell her drugs. The court finds that testimony to be credible and that in conjunction with the other facts, [it] would heighten their suspicion, certainly, and I think it would give them the right at that point to at least do an investigatory stop of the automobile in question.

“They radio Officer Bergquist, and he stops the vehicle. As he’s approaching the vehicle . . . the passengers appear to be nervous, they’re ducking, there’s head turning, and this is the movement of the people in the car. And the court will make a finding that [this conduct] certainly constitutes furtive movement. The testimony of the officer was that this movement was consistent with weapons and narcotics, and that would give the officers, based on the totality of [the] circumstances, every right to continue to investigate the people in the car and at least pull them out of the car, pat them down, and search . . . the passengers for weapons and then the vehicle for weapons.

“And in this case, once the officer did search the vehicle, he located behind the car seat an automatic weapon, which would then be an indication that a criminal act was being committed by the . . . possession of this weapon, which would give rise to a more in-depth search. So, based on those findings and the totality of the circumstances, [the] motion to suppress is denied.”

On appeal, there appears to be no dispute concerning the questions of if and when an investigatory detention occurred. The court determined that an investigative detention was warranted after Rosado and Riehl spoke with the pedestrian and that Bergquist thereafter stopped the defendant’s automobile. Our review of the arguments that were advanced by the parties, both at the suppression hearing and before this court, reveals that the parties agree with the court that an investigatory detention occurred when the defendant stopped the automobile he was driving. This occurred after the defendant observed Bergquist, in his police cruiser, follow his automobile. The issue presented is whether an investigative detention was constitutionally permissible at that time.

The defendant does not challenge the court’s findings of fact. The defendant claims that the police detention of the automobile and its occupants violated his constitutional rights because the police lacked a reasonable and articulable suspicion that criminal activity was afoot. The defendant argues that the search of the automobile and subsequent discovery and seizure of the gun was the fruit of this police illegality. Accordingly, the defendant argues that the court improperly denied his motion to suppress the evidence discovered during the search.

“[0]ur standard of review of a trial court’s findings and conclusions in connection with a motion to suppress is well defined. A finding of fact will not be disturbed unless it is clearly erroneous in view of the evidence and pleadings in the whole record .... [When] the legal conclusions of the court are challenged, [our review is plenary, and] we must determine whether they are legally and logically correct and whether they find support in the facts set out in the court’s [ruling] .... Because a trial court’s determination of the validity of a . . . search [or seizure] implicates a defendant’s constitutional rights ... we engage in a careful examination of the record to ensure that the court’s decision was supported by substantial evidence. . . . However, [w]e [will] give great deference to the findings of the trial court because of its function to weigh and interpret the evidence before it and to pass upon the credibility of witnesses.” (Citation omitted; internal quotation marks omitted.) State v. Kimble, 106 Conn. App. 572, 579, 942 A.2d 527, cert. denied, 287 Conn. 912, 950 A.2d 1289 (2008).

The defendant challenges the constitutionality of the investigative detention under the state and federal constitutions; our review of the claim is limited to the federal constitution. “Under the fourth amendment to the United States constitution and article first, §§ 7 and 9, of our state constitution, a police officer is permitted in appropriate circumstances and in an appropriate manner to detain an individual for investigative purposes if the officer believes, based on a reasonable and articulable suspicion that the individual is engaged in criminal activity, even if there is no probable cause to make an arrest. . . . Reasonable and articulable suspicion is an objective standard that focuses not on the actual state of mind of the police officer, but on whether a reasonable person, having the information available to and known by the police, would have had that level of suspicion. . . .

“[I]n justifying [a] particular intrusion the police officer must be able to point to specific and articulable facts which, taken together with rational inferences from those facts, reasonably warrant that intrusion. ... In determining whether a detention is justified in a given case, a court must consider if, relying on the whole picture, the detaining officers had a particularized and objective basis for suspecting the particular person stopped of criminal activity. When reviewing the legality of a stop, a court must examine the specific information available to the police officer at the time of the initial intrusion and any rational inferences to be derived therefrom. ... A recognized function of a constitutionally permissible stop is to maintain the status quo for a brief period of time to enable the police to investigate a suspected crime. . . .

“[EJffective crime prevention and detection . . . [underlie] the recognition that a police officer may in appropriate circumstances and in an appropriate manner approach a person for purposes of investigating possibly criminal behavior even though there is no probable cause to make an arrest. . . . Therefore, [a]n investigative stop can be appropriate even where the police have not observed a violation because a reasonable and articulable suspicion can arise from conduct that alone is not criminal. ... In evaluating the validity of such a stop, courts must consider whether, in light of the totality of the circumstances, the police officer had a particularized and objective basis for suspecting the particular person stopped of criminal activity.” (Citations omitted; internal quotation marks omitted.) State v. Lipscomb, 258 Conn. 68, 75-76, 779 A.2d 88 (2001).

“When considering the validity of [an investigatory] stop, our threshold inquiry is twofold. . . . First, we must determine at what point, if any, did the encounter between [the police officer] and the defendant constitute an investigatory stop or seizure. . . . Next, [i]f we conclude that there was such a seizure, we must then determine whether [the police officer] possessed a reasonable and articulable suspicion at the time the seizure occurred.” (Citation omitted; internal quotation marks omitted.) State v. Santos, 267 Conn. 495, 503, 838 A.2d 981 (2004).

The defendant argues that before the police spoke with the pedestrian, the facts known by the police did not support a reasonable and articulable suspicion of criminal activity. In this regard, the defendant emphasizes that the police observed activity that was not criminal in nature; the police did not observe any exchange of money or drugs. The defendant next argues that the officers’ brief conversation with the pedestrian, viewed in isolation, did not yield facts that supported a reasonable and articulable suspicion of criminal activity. In this regard, the defendant argues that despite the officers’ favorable assessment of the pedestrian’s credibility, there was no showing that the pedestrian was rehable such that the pohce could justify an investigative detention on the basis of the information she provided. The defendant emphasizes that the pedestrian was not a known informant with a record of providing information to the pohce. Moreover, the very identity of the pedestrian was unknown to the pohce; she was not in pohce custody and took steps to maintain her anonymity. The defendant argues that a finder of fact could not reasonably infer that the pedestrian had any interest in assisting the pohce by providing accurate information because she did not contact the pohce; rather, they contacted her while she was walking along the street. The defendant argues that the pohce did not investigate why the pedestrian concealed her identity, what she was doing in the area at that hour of the day and whether she had any motive to he to the pohce. The defendant argues that under these circumstances, the pedestrian had the ability to “ ‘he with impunity.’ ” In hght of what little information the pohce knew about the pedestrian, the defendant argues, the pohce could not, absent any further investigation, properly rely on the information she provided.

To the extent that the defendant invites us to compartmentalize the facts known by the pohce, viewing them in terms of facts known before and after the pohce spoke with the pedestrian, we decline such a method of review. In determining whether the pohce had a reasonable and articulable suspicion of criminal activity, we look at ah of the information known by the pohce prior to the investigative detention. “Whether a reasonable and articulable suspicion exists depends on the totality of the circumstances.” State v. Torelli, 103 Conn. App. 646, 652, 931 A.2d 337 (2007).

Here, there were many factors that constituted the totality of the circumstances known to the pohce. First and foremost, the police knew that this was an area known for drug activity and arrests, and that it was common for those involved in the drug activity to engage in conduct similar to that exhibited by the defendant and the other occupants of the automobile. “Although presence in a high crime area alone cannot constitute a reasonable suspicion [of criminal activity], an officer is not required to ignore the circumstances and area around the observed suspect.” State v. Ward, 83 Conn. App. 377, 383, 849 A.2d 860, cert. denied, 271 Conn. 902, 859 A.2d 566 (2004). Although human experience teaches that it is neither unusual nor suspicious for three men to sit together in a parked automobile, that same experience teaches that such conduct is somewhat unusual and suspicious at 1:30 a.m. on a weekday in February, particularly in an area known for drug trafficking. Thus, the conduct exhibited by the individuals in the automobile reasonably aroused the suspicions of the officers.

Additionally, the Vermont license plates on the automobile reasonably heightened the suspicions of the officers. In evaluating whether a reasonable and articulable suspicion of criminal conduct exists, we must consider all of the relevant facts known to the police. The police knew that the Vermont license plates were out of place in the neighborhood. Additionally, the out-of-state plates made it more likely that the automobile was rented, and the police knew from their training and experience that persons involved in the drug trade typically used rented automobiles to evade police detection. These facts were additional and significant factors in evaluating the suspicions of the police.

After observing the automobile for several minutes, the officers noticed the pedestrian walking along the street. They observed her brief encounter with one or more occupants of the automobile after one of the occupants called her to the automobile. This activity was consistent with criminal conduct. As noted previously, the police were aware, from their training and experience, that drugs are typically bought or sold in this manner. In light of their prior observations and the inferences to be drawn therefrom, the fact that this brief encounter took place was yet another relevant factor in evaluating the suspicions of the police.

After the defendant drove off, the police had a face-to-face conversation with the pedestrian about what had transpired. That type of conversation afforded the officers an opportunity to gauge the pedestrian’s credibility and demeanor. See State v. Gaston, 82 Conn. App. 161, 167, 842 A.2d 1171 (2004). The officers deemed her to be forthcoming and her version of events, plainly related to the sale of drugs, to be credible.

The police had reason to suspect that this version of events was true because, apart from the information that the pedestrian provided, the police had observed the conduct of the individuals in the automobile, as well as the pedestrian’s interaction with one or more of these individuals. There was no evidence that the police told the pedestrian that they had witnessed the entire encounter at issue or that the occupants of the automobile were suspected of committing any crime. That the pedestrian related a version of events that was consistent with what the police had observed, therefore, bolstered by their belief that she had related accurate and reliable information. See State v. Johnson, 286 Conn. 427, 439-40, 944 A.2d 297 (noting that police corroboration of even innocuous details of informant’s information is one factor in establishing reliability of informant), cert. denied, 555 U.S. 883, 129 S. Ct. 236, 172 L. Ed. 2d 144 (2008); State v. Velez, 215 Conn. 667, 674, 577 A.2d 1043 (1990) (noting that police corroboration of some information provided by informant is one factor in establishing reliability of informant). The reliability of her information also was bolstered by the fact that the police were aware that she was relating a firsthand encounter and, thus, knew her basis of knowledge. See State v. Smith, 257 Conn. 216, 225, 777 A.2d 182 (2001). Additionally, the conversation between the police and the pedestrian occurred just moments after the event in question. As experience teaches that the passage of time tends to affect negatively one’s ability to recall events, this fact made it less likely that the pedestrian had forgotten the events in question.

The defendant makes much of the fact that the pedestrian did not want to provide any personal information to the police. The defendant also deems it material and significant that the police were unaware of why she did not want to provide such information, that the police knew nothing about her activities that night or that the police were unaware if she had a motive to lie. We agree that ascertaining this additional information certainly might have bolstered the pedestrian’s reliability as a police witness. This is not a situation, however, in which the police conducted an investigative detention solely on the basis of an anonymous tip. Although the police did not know much about the pedestrian, they conversed with her face to face and had information from their independent investigation that corroborated her version of events. They knew that she had spoken with one or more persons in the automobile for a brief period of time because they had witnessed that occurrence take place. Although the police could not be certain that the pedestrian lacked a motive to lie, there is nothing in the evidence to suggest that she had such a motive or that when she spoke with the police, at their behest, she knew that regardless of what she told the police, she would be free to go on her way. Accordingly, we reject the defendant’s argument that the police could not rely to some degree on the information provided by the pedestrian. We conclude that the police, in their evaluation of the totality of the circumstances, properly relied on the information that the pedestrian provided.

We have reviewed the facts known by the police prior to the investigative detention. These facts, considered as a whole and along with the rational inferences that could be drawn therefrom, led to a reasonable and articulable suspicion that one or more occupants of the automobile was selling drugs. “The inquiry into reasonable and articulable suspicion does not deal with hard certainties, but with probabilities. Long before the law of probabilities was articulated as such, practical people formulated certain commonsense conclusions about human behavior; jurors as factfinders are permitted to do the same — and so are law enforcement officers. . . . [T]he evidence thus collected must be seen and weighed not in terms of library analysis by scholars, but as understood by those versed in the field of law enforcement.” (Internal quotation marks omitted.) Tarro v. Commissioner of Motor Vehicles, 279 Conn. 280, 292 n.17, 901 A.2d 1186 (2006).

Finally, to the extent that the defendant deems it significant that the police did not observe any type of drug transaction take place and that there were plausible noncriminal justifications for the conduct that the police observed, such arguments are not persuasive. “The fact that an innocuous explanation for the conduct observed may have existed is of no consequence to our analysis when . . . there was a reasonable basis for the police to suspect criminal activity. Suspicious activity) by its very nature, is equivocal and ambiguous. . . . The possibility of an innocent explanation does not deprive the officers of the capacity to entertain a reasonable suspicion of criminal conduct.” (Citation omitted; internal quotation marks omitted.) State v. Days, 89 Conn. App. 789, 802, 875 A.2d 59, cert. denied, 275 Conn. 909, 882 A.2d 677 (2005).

Having concluded that the investigatory detention was supported by a reasonable and articulable suspicion of criminal conduct, we conclude that it did not violate the defendant’s constitutional rights. Accordingly, we conclude that the court properly denied the defendant’s motion to suppress.

The judgment is affirmed.

In this opinion BEACH, J., concurred.

BERDON, J.,

dissenting. I disagree with the majority opinion. In my opinion, police Officers Orlando Rosado and David Riehl of the Bridgeport police department violated the federal constitutional rights of the defendant, Jarrell Richards, when they ordered the defendant’s vehicle to be stopped, because they lacked a reasonable and articulable suspicion that the defendant or the other occupants of his vehicle were engaged in criminal activity. In other words, “[a]n investigatory stop must be justified by some objective manifestation that the person stopped is, or is about to be engaged in criminal activity.” United States v. Cortez, 449 U.S. 411, 417, 101 S. Ct. 690, 66 L. Ed. 2d 621 (1981).

“Our review of the defendant’s claim is governed by well established principles. Under the exclusionary rule, evidence must be suppressed if it is found to be the fruit of prior police illegality. ... On appeal, we apply a familiar standard of review to a trial court’s findings and conclusions in connection with a motion to suppress. A finding of fact will not be disturbed unless it is clearly erroneous in view of the evidence and pleadings in the whole record .... [W]here the legal conclusions of the court are challenged, we must determine whether they are legally and logically correct and whether they find support in the facts set out in the memorandum of decision .... Whether the trial court properly found that the facts submitted were enough to support a finding of probable cause is a question of law. . . . The trial court’s determination on the issue, therefore, is subject to plenary review on appeal. . . . Because a trial court’s determination of the validity of a . . . search [or seizure] implicates a defendant’s constitutional rights, however, we engage in a careful examination of the record to ensure that the court’s decision was supported by substantial evidence. . . . However, [w]e [will] give great deference to the findings of the trial court because of its function to weigh and interpret the evidence before it and to pass upon the credibility of witnesses.” (Citations omitted; internal quotation marks omitted.) State v. Reynolds, 264 Conn. 1, 42-43, 836 A.2d 224 (2003), cert. denied, 541 U.S. 908, 124 S. Ct. 1614, 158 L. Ed. 2d 254 (2004).

In State v. Santos, 267 Conn. 495, 509, 838 A.2d 981 (2004), our Supreme Court concluded that “the defendant’s presence in a high crime area at night, without any other facts, cannot form the basis for a reasonable and articulable suspicion that the defendant had engaged or was about to engage in criminal activity.” Certainly, the police had no reason to stop the defendant’s automobile on the ground that it had Vermont license plates, was parked at 1:30 a.m. in a high crime area known for its narcotics and prostitution activities and that there were three men (including the defendant) in the vehicle. Even Rosado conceded that these facts provided an insufficient basis for an investigatory stop.

There had to be something more. The something more that the majority depends on and that the court found is the “mystery woman.”

The court found credible a mystery woman who was walking on the street at 1:30 a.m. in this high crime area known not only for its narcotics activities but also for prostitution. The mystery woman approached the defendant’s vehicle on her own volition shortly before it drove off. It was not until after the officers approached the mystery woman that she stated (in slang language) that one or more of the men in the defendant’s vehicle offered to sell her narcotics. It is more reasonable and logical to conclude, however, that the mystery woman, whose name is unknown because she refused to give it to police, was probably offering her services to the men in the defendant’s vehicle, rather than to conclude that the men were attempting to sell her narcotics when she approached the vehicle. This must be viewed in the context that this mystery woman was walking in an area known for its prostitution at 1:30 in the morning and, as found by the court, that she approached the vehicle. One would not expect her to confess to the police that she was soliciting business but, rather, to give some other excuse.

It is well established that the level of scrutiny that a reviewing court must employ when evaluating the credibility of an anonymous witness depends on the nature of the witness. See State v. Barton, 219 Conn. 529, 542, 594 A.2d 917 (1991). Courts have properly distinguished between a “confidential informant,” the term usually used in a more restricted sense “to describe a person who is himself in the underworld,” and a “citizen informer,” the term used to describe an “average citizen who, as a victim or a witness, happens to have information useful to the police. Such ‘citizen informers’ are considered more deserving of credibility than are underworld informers, and courts have accordingly tended to examine the basis and sufficiency of a citizen informer’s information more closely than his credibility.” Id., 542 n.10. On the other hand, “confidential informants are . . . often criminals, drug addicts, or even pathological liars . . . .” (Internal quotation marks omitted.) Id., 542. For a court to assess the reliability of information obtained from a confidential informant, it must consider how the informant gained the information and why the police officer believes that the information is rehable. Then, the court independently must decide whether the police officer’s inferences from the informant’s statements are reasonable. Id., 542-43.

I would conclude that the mystery woman in this case is more like a confidential informant than a citizen informer and, further, that the police did not demonstrate that she was credible. She did not approach the police voluntarily, and she was walking the streets in the early hours of the morning in a high crime area known for narcotics and prostitution activities. Additionally, the police had no information that would verify the alleged information from the mystery woman. They never obtained her name, and they never had past dealings with her to verify that she was credible and dependable. There was no evidence about her demeanor or any evidence describing her facial expressions or any other matter to form a basis of her veracity. “[A]nanony-mous tip alone seldom demonstrates the informant’s basis of knowledge or veracity . . . .” Alabama v. White, 496 U.S. 325, 329, 110 S. Ct. 2412, 110 L. Ed. 2d 301 (1990).

At the very best, for the state, this is a close case. “In a close case . . . the balance ought to be struck on the side of the freedom of the citizen from governmental intrusion. To conclude otherwise would be to elevate society’s interest in apprehending offenders above the right of citizens to be free from unreasonable stops.” State v. Oquendo, 223 Conn. 635, 657, 613 A.2d 1300 (1992).

I would reverse the judgment of the trial court and remand the case with direction to vacate the conditional guilty plea and to dismiss the case.

Accordingly, I respectfully dissent.

       General Statutes § 54-94a provides: “When a defendant, prior to the commencement of trial, enters a plea of nolo contendere conditional on the right to take an appeal from the court’s denial of the defendant’s motion to suppress or motion to dismiss, the defendant after the imposition of sentence may file an appeal within the time prescribed by law provided a trial court has determined that a ruling on such motion to suppress or motion to dismiss would be dispositive of the case. The issue to be considered in such an appeal shall be limited to whether it was proper for the court to have denied the motion to suppress or the motion to dismiss. A plea of nolo contendere by a defendant under this section shall not constitute a waiver by the defendant of nonjurisdictional defects in the criminal prosecution.”

       Pursuant to a plea agreement, the state entered a nolle prosequi with regard to the two other crimes with which the defendant stood charged. The court subsequently determined that its ruling on the motion to suppress was dispositive of the case. See General Statutes § 54-94a, set forth in footnote 1.

       One of the officers observed someone in the automobile motion to the pedestrian, inviting her to approach the automobile.

       “A person is seized by the police and thus entitled to challenge the government’s action under the Fourth Amendment when the officer, by means of physical force or show of authority, terminates or restrains his freedom of movement . . . through means intentionally applied .... Thus, an unintended person . . . [may be] the object of the detention, so long as the detention is willful and not merely the consequence of an unknowing act. ... A police officer may make a seizure by a show of authority and without the use of physical force, but there is no seizure without actual submission; otherwise there is at most an attempted seizure, so far as the Fourth Amendment is concerned.” (Citations omitted; internal quotation marks omitted.) Brendlin v. California, 551 U.S. 249, 254, 127 S. Ct. 2400, 168 L. Ed. 2d 132 (2007).
      The evidence reflects that Bergquist, upon receiving a radio transmission from his fellow officers, Rosado and Riehl, located the defendant’s automobile while it was traveling on a city street. At a late hour, Bergquist activated his vehicle’s police lights and approached the defendant’s automobile from behind. The defendant responded by stopping his automobile. In light of this show of authority by the police, as well as the defendant’s conduct in response to such show of authority, we conclude that a finding that a seizure occurred at that time is both supported by fact and reasonable.

       Apart from claiming that the investigative detention was improper, the defendant does not challenge the legality of the search by the police of the automobile.

       In his principal appellate brief, the defendant, citing provisions of the federal and state constitutions, claimed that the investigatory detention was unconstitutional. The defendant cited State v. Geisler, 222 Conn. 672, 684-86, 610 A.2d 1225 (1992), and listed the six considerations set forth in Geisler for construing the provisions of bur state constitution. The defendant, however, failed to discuss these considerations and, in fact, did not conclude that our state constitution provides any greater protection than its federal counterpart with regard to the specific claim presented in this appeal.
      During oral argument before this court, the defendant’s attorney, in response to an inquiry as to whether the defendant was arguing that his claim should be analyzed differently under the state constitution, acknowledged that under both constitutions the relevant legal principles were the same. The defendant’s attorney, however, did not indicate that the defendant was withdrawing the state constitutional claim.
      The constitutional principles that govern the defendant’s claim are the same under both the state and federal constitutions. Nevertheless, we note that because the defendant has not provided this court with a separate and distinct analysis of his claim under the state constitution, we address only his federal constitutional claim. See State v. Smith, 289 Conn. 598, 614 n.21, 960 A.2d 993 (2008); State v. Joyce, 243 Conn. 282, 288 n.6, 705 A.2d 181 (1997), cert. denied, 523 U.S. 1077, 118 S. Ct. 1523, 140 L. Ed. 2d 674 (1998).

       Judge Berdon, in his dissenting opinion, faults the majority for concluding that the police officers reasonably relied on the information provided by the pedestrian in their evaluation of the totality of the circumstances. We already have discussed all of the articulable facts known by the police officers prior to their discussion with the pedestrian, as well as the facts relevant to that encounter. We are also mindful that the police officers who spoke with the pedestrian were found to have testified credibly that on the basis of their experience, the pedestrian was forthcoming with regard to what had transpired. These facts lead us to conclude that the police properly relied on the information provided by the pedestrian to the degree that they did in evaluating the totality of the circumstances.
      Parting company with the majority’s independent evaluation of the pedestrian’s reliability, Judge Berdon states that it is “more reasonable and logical” to conclude that the pedestrian was a prostitute who lied to the police. Our Supreme Court has stated: “Courts have properly distinguished between . . . confidential informants and the average citizen who, as a victim or a witness, happens to have information useful to the police. Such citizen informers are considered more deserving of credibility than are underworld informers, and courts have accordingly tended to examine the basis and sufficiency of a citizen informer’s information more closely than his credibility.” (Emphasis added; internal quotation marks omitted.) State v. Barton, 219 Conn. 529, 542 n.10, 594 A.2d 917 (1991). We have considered the evidence that the pedestrian declined to give her name to the police and that she was walking alone, at a late hour, in an area known for illegal activity. Nonetheless, we respectfully distance ourselves from Judge Ber-don’s readiness to conclude that this individual who provided information to the police was a criminal engaged in prostitution.

       Although the defendant also raises in his brief the issue under our state constitution, which at times our courts have determined affords greater rights than the federal constitution; Stole v. Oquendo, 223 Conn. 635, 649-50, 613 A.2d 1300 (1992); at oral argument he agreed that he was not pursuing his claim under the state constitution.

       Activities or movements by the occupants in the automobile that may have occurred subsequent to the stop are irrelevant to determining whether the initial stop was constitutional.

       Question by defense counsel: “So, basically, when the [defendant’s] car pulled away, you had absolutely no reason to stop that car; did you?” Answer by Rosado: “No.” Additionally, although Riehl claimed that the defendant did not have a seat belt on, the court made no such finding, and, regardless, Officer Carl Bergquist did not stop the defendant’s vehicle on that basis.

       There was no finding that “[o]ne of the officers observed someone in the automobile motion to the . . . [mystery woman] inviting her to approach the automobile”; rather, the court found that “she approached the vehicle.”


source: Caselaw Access Project

author: DUPONT, J.

license: Public Domain

text:
    STEVEN TALENTI ET AL. v. MORGAN AND BROTHER MANHATTAN STORAGE COMPANY, INC., ET AL.
    (AC 29507)
    Bishop, Harper and Dupont, Js.
    Argued December 10, 2008
    officially released April 21, 2009

      Suzanne Lisa Smith, for the appellants (plaintiffs).

      Barbara M. Schellenberg, with whom was Stuart M. Katz, for the appellee (named defendant).
   Opinion

DUPONT, J.

The plaintiffs, Steven Talenti and his wife, Tonianne Talenti, appeal from the judgment of the trial court dismissing their complaint pursuant to the motion filed by the defendant Morgan & Brother Manhattan Storage Company, Inc., to dismiss for lack of personal jurisdiction. The plaintiffs claim that the court has personal jurisdiction over the defendant because the defendant maintains its principal place of business in Connecticut, is authorized to do business in Connecticut, accepts service of process in Connecticut and was served properly with process in accordance with General Statutes § 52-57 (c), and they seek redress for acts that took place in Connecticut. We agree with the plaintiffs and, therefore, reverse the trial court’s judgment of dismissal and remand the matter for further proceedings.

The following facts are relevant to the plaintiffs’ appeal. They filed a six count complaint against the defendant. In the complaint, the plaintiffs alleged that Steven Talenti had been an employee of the defendant for approximately twelve years when he failed a mandatory company drug test and was summarily discharged at the defendant’s corporate headquarters in Greenwich. Immediately thereafter, the defendant, acting through an employee, sent an e-mail from that office to all of its employees in Connecticut, New York and New Jersey, advising that the plaintiff had failed a drug test and had been discharged. In counts one through six of the complaint, the plaintiffs alleged (1) a violation of General Statutes § 31-5 lx, (2) a violation of General Statutes § 31-51u, (3) invasion of privacy, (4) a prima facie tort, (5) intentional infliction of emotional distress and (6) loss of consortium. The complaint also alleged that the lawsuit “arises under and is governed by the laws of the state of Connecticut.”

The defendant moved to dismiss the complaint in its entirety on the ground of a lack of personal jurisdiction. The defendant alleged that because it is a foreign corporation, the plaintiffs must use the Connecticut corporate long arm statute, General Statutes § 33-929 (f), to obtain personal jurisdiction over it but are unable to do so because they are not residents of Connecticut or persons having a usual place of business in this state, as required by the statute. The plaintiffs, in their memorandum of law in opposition to the defendant’s motion to dismiss, argued that they obtained personal jurisdiction by serving process on the defendant’s vice president, Jeffrey Morgan, at his home in Riverside, and on the defendant’s executive vice president, Brian Clark, at the defendant’s corporate headquarters in Greenwich. The plaintiffs asserted that they did not utilize the corporate long arm statute, and, therefore, they did not have to meet its residency requirements.

At oral argument before the trial court, the defendant argued that because the corporate long arm statute required that the plaintiffs be residents of Connecticut, “[t]he jurisdictional issue [that was] raised in [their] motion to dismiss is probably erroneously described as an issue of personal jurisdiction. . . . Whether or not a plaintiff can bring an action tinder the long arm statute is truly an issue of subject matter jurisdiction because it goes to the standing of the plaintiff to commence the lawsuit.” In response, the plaintiffs maintained that it was an issue of personal jurisdiction and that the court had such jurisdiction. After hearing argument from both the plaintiffs and the defendant, the court granted the defendant’s motion to dismiss for lack of personal jurisdiction, stating: “The court finds that (1) the plaintiffs are not Connecticut residents, (2) they do not maintain a usual place of business in Connecticut or (3) their statutory claims are not within the scope of General Statutes § 33-929. Accordingly, they can not maintain an action against a New York corporation [in Connecticut].”

Our review of the court’s dismissal is governed by certain well settled principles. “A motion to dismiss . . . properly attacks the jurisdiction of the court, essentially asserting that the plaintiff cannot as a matter of law and fact state a cause of action that should be heard by the court. ... A motion to dismiss tests . . . whether, on the face of the record, the court is without jurisdiction.” (Internal quotation marks omitted.) Ertel v. Rocque, 108 Conn. App. 48, 51, 946 A.2d 1251, cert. denied, 289 Conn. 926, 958 A.2d 158 (2008). “[A] challenge to the jurisdiction of the court presents a question of law over which our review is plenary.” Ryan v. Cerullo, 282 Conn. 109, 118, 918 A.2d 867 (2007).

In this appeal, the plaintiffs concede that they are not residents of Connecticut, and, therefore, they are unable to take advantage of Connecticut’s corporate long arm statute. They argue, however, that the court should not have applied that statute and its residency requirements to dismiss their complaint because the court instead acquired personal jurisdiction over the defendant by virtue of the facts that the defendant maintains its principal place of business in Connecticut, is authorized to do business in Connecticut, accepts service of process in Connecticut and that it was served with process in accordance with § 52-57 (c) and they seek redress for acts that took place in Connecticut.

In response, the defendant argues that the court correctly granted its motion to dismiss because § 33-929 (f) is applicable and pursuant to that statute, the plaintiffs lack standing to bring a lawsuit against a foreign corporation in Connecticut because they are not residents of Connecticut or persons having a usual place of business in this state, which implicates subject matter jurisdiction. The defendant concedes that its motion to dismiss was based on lack of personal jurisdiction and that the court treated “the issue before it [as] one of personal jurisdiction,” but avers that “[s]ince the trial court made the necessary findings to determine that [the] plaintiffs lacked standing [i.e., the plaintiffs are not residents of Connecticut] the judgment can and should be affirmed on this alternate ground [of subject matter jurisdiction].” The defendant also maintains that because the plaintiffs are nonresidents, the court lacked personal jurisdiction pursuant to § 33-929 (f) as well, and the plaintiffs cannot claim that the court acquired personal jurisdiction by service of process pursuant to § 52-57 (c) because the plaintiffs did not rely on that statute before the court.

I

We will first address the issue of standing because it presents a question of the court’s subject matter jurisdiction. In re Anthony A., 112 Conn. App. 643, 650, 963 A.2d 1057 (2009). We are not persuaded by the defendant’s argument that the court’s decision to dismiss the plaintiffs’ complaint should be affirmed on the ground of lack of subject matter jurisdiction because the plaintiffs lack standing to pursue their causes of action in Connecticut. The defendant bases this argument on its belief that the plaintiffs can obtain jurisdiction over it only through the use of the corporate long arm statute, § 33-929 (f), which allows only a “resident of this state or ... a person having a usual place of business in this state” to subject foreign corporations to suit in Connecticut. General Statutes § 33-929 (f).

“The issue of standing implicates [a] court’s subject matter jurisdiction.” (Internal quotation marks omitted.) Ragin v. Lee, 78 Conn. App. 848, 859, 829 A.2d 93 (2003). “[I]n the absence of standing the court lacks subject matter jurisdiction to determine the merits of the case . . . .” Sadloski v. Manchester, 235 Conn. 637, 650, 668 A.2d 1314 (1995). “Standing is not a technical rule intended to keep aggrieved parties out of court; nor is it a test of substantive rights. Rather it is a practical concept designed to ensure that courts and parties are not vexed by suits brought to vindicate nonjusticiable interests and that judicial decisions which may affect the rights of others are forged in hot controversy, with each view fairly and vigorously represented. . . . These two objectives are ordinarily held to have been met when a complainant makes a colorable claim of direct injury he has suffered or is likely to suffer, in an individual or representative capacity. Such a personal stake in the outcome of the controversy . . . provides the requisite assurance of concrete adverseness and diligent advocacy. . . . The requirement of directness between the injuries claimed by the plaintiff and the conduct of the defendant also is expressed, in our standing jurisprudence, by the focus on whether the plaintiff is the proper party to assert the claim at issue. . . .

“Two broad yet distinct categories of aggrievement exist, classical and statutory. . . . Classical aggrievement requires a two part showing. First, a party must demonstrate a specific, personal and legal interest in the subject matter of the [controversy], as opposed to a general interest that all members of the community share. . . . Second, the party must also show that the [alleged conduct] has specially and injuriously affected that specific personal or legal interest. . . . Statutory aggrievement exists by legislative fiat, not by judicial analysis of the particular facts of the case. In other words, in cases of statutory aggrievement, particular legislation grants standing to those who claim injury to an interest protected by that legislation. . . . Standing can be established by proving statutory or classical aggrievement.” (Citation omitted; internal quotation marks omitted.) PNC Bank, N.A. v. Kelepecz, 289 Conn. 692, 705-706, 960 A.2d 563 (2008).

In this case, the defendant does not claim that the plaintiffs cannot demonstrate aggrievement. Instead, the defendant argues that because the plaintiffs are nonresidents, they cannot take advantage of our corporate long arm statute, and, therefore, they are improper parties to initiate this action. The court rejects this argument.

“Subject matter jurisdiction is the power [of the court] to hear and determine cases of the general [type or] class to which the proceedings in question belong.” (Internal quotation marks omitted.) MBNA America Bank, N.A. v. Boata, 283 Conn. 381, 389, 926 A.2d 1035 (2007). Nothing bars the nonresident plaintiffs in this matter from bringing in this state the type or class of claims alleged in their complaint. Two of the plaintiffs’ claims are established by Connecticut statutes, §§31-5 lx and 31-51u. The remaining four, namely, invasion of privacy, a prima facie tort, intentional infliction of emotional distress and loss of consortium, have long been recognized as causes of action, or subject matter, over which the Superior Court has jurisdiction. Undoubtedly, if the defendant were a Connecticut resident, or was otherwise amenable to service of process, as the plaintiffs allege, the Superior Court would have subject matter jurisdiction to decide this dispute. See University of Connecticut v. Atlantic Coast Conference, Superior Court, judicial district of Tolland, Docket No. X07-CV-03-0082695-S (February 23, 2004) (36 Conn. L. Rptr. 623). Thus, the inability of the nonresident plaintiffs to take advantage of our long arm statute merely deprives them of the opportunity to use that statute to acquire personal jurisdiction over a foreign corporation. This impediment does not prevent the court from determining the case once personal jurisdiction over the defendant has been obtained by some other means. See id., 627.

II

We will now consider the plaintiffs’ claim that the court improperly dismissed their complaint for lack of personal jurisdiction. Jurisdiction over the person is the legal power and authority of a court to render a personal judgment against a party to an action or proceeding. The exercise of this jurisdiction requires (1) the service of process on the defendant, or on his agent for the service of process, (2) the consent to the jurisdiction of the court by the defendant or (3) waiver of any objection to the court’s exercise of personal jurisdiction by the defendant. See Foster v. Smith, 91 Conn. App. 528, 536, 881 A.2d 497 (2005). The consistent constitutional rule is that a court has no power to adjudicate a personal claim or obligation unless it has jurisdiction over the person of the defendant. Pennoyer v. Neff, 95 U.S. 714, 24 L. Ed. 565 (1878), overruled in part on other grounds by Shaffer v. Heitner, 433 U.S. 186, 97 S. Ct. 2569, 53 L. Ed. 2d 683 (1977).

The defendant argues that we cannot review the plaintiffs’ claim because they did not bring § 52-57 (c) to the attention of the trial court, and, therefore, their claim is unpreserved. In this appeal, the plaintiffs renew substantially the same claim that the trial court rej ected, namely: (1) the court has personal jurisdiction over the defendant because the defendant maintains its principal place of business in Connecticut, is authorized to do business in Connecticut, accepts service of process in Connecticut and was served properly with process and (2) the long arm statute should not be applied to their claim because they did not utilize it to obtain personal jurisdiction over the defendant. We are not persuaded, therefore, that in this particular case, the plaintiffs’ failure to bring a statute to the trial court’s attention renders their claim unpreserved.

We find that there are two bases in this case for the successful assertion of personal jurisdiction over the defendant, decisional and statutory. First, when a foreign corporation complies with the requisites of General Statutes § 33-920 by obtaining a certificate of authority and complies with the requisites of General Statutes § 33-926 by authorizing a public official to accept service of process, it has consented to the exercise of jurisdiction over it by the courts of this state. Wallenta v. Avis Rent A Car System, Inc., 10 Conn. App. 201, 207-208, 522 A.2d 820 (1987). “This consent is effective even though no other basis exists for the exercise of jurisdiction over the corporation.” (Internal quotation marks omitted.) Id., 208. “Such a corporation has purposely avail[ed] itself of the privilege of conducting activities within [this] [s]tate, thus invoking the benefits and protections of its laws.” (Internal quotation marks omitted.) Id., 207. Therefore, when a foreign corporation is authorized to conduct business in this state and has appointed a registered agent, nothing in § 33-929 (f) limits the court’s exercise of personal jurisdiction over the corporation. See id., 208 (because defendant consented to personal jurisdiction, plaintiff did not have to establish that defendant made itself amenable to suit). In the present case, there is no dispute that the defendant has registered with the secretary of the state to conduct business in Connecticut, in accordance with § 33-920, and has authorized the secretary of the state to accept service on its behalf, in accordance with § 33-926, as the defendant acknowledged in its oral argument to the trial court. Therefore, the defendant has voluntarily consented to the personal jurisdiction of it by the courts of this state.

The second basis for the assertion of personal jurisdiction lies in § 52-57 (c), which provides that in an action against a foreign corporation, service of process may be made on its vice president. In the present case, the defendant does not dispute that the plaintiffs served the defendant’s vice president, Jeffrey Morgan, at his home in Riverside and served the defendant’s executive vice president, Brian Clark, at the defendant’s corporate headquarters in Greenwich. The court, therefore, acquired personal jurisdiction over the defendant by service in accordance with § 52-57 (c). We conclude that both personal and subject matter jurisdiction exist in this case.

The judgment is reversed and the case is remanded for further proceedings according to law.

In this opinion the other judges concurred.

       The individual defendant, Jeffrey Morgan, is not a party to this appeal, as he did not contest the court’s personal jurisdiction over him. We therefore refer in this opinion to Morgan & Brother Manhattan Storage Company, Inc., as the defendant.

       Practice Book § 10-31 (a) provides in relevant part: “The motion to dismiss shall be used to assert ... (2) lack of jurisdiction over the person .. . .”

       General Statutes § 31-51x (a) provides in relevant part: “No employer may require an employee to submit to a urinalysis drug test unless the employer has reasonable suspicion that the employee is under the influence of drugs or alcohol which adversely affects or could adversely affect such employee’s job performance. . . .”

       General Statutes § 31-51u provides: “(a) No employer may determine an employee’s eligibility for promotion, additional compensation, transfer, termination, disciplinary or other adverse personnel action solely on the basis of a positive urinalysis drug test result unless (1) the employer has given the employee a urinalysis drug test, utilizing a reliable methodology, which produced a positive result and (2) such positive test result was confirmed by a second urinalysis drug test, which was separate and independent from the initial test, utilizing a gas chromatography and mass spectrometry methodology or a methodology which has been determined by the Commissioner of Public Health to be as reliable or more reliable than the gas chromatography and mass spectrometry methodology.
      “(b) No person performing a urinalysis drug test pursuant to subsection (a) of this section shall report, transmit or disclose any positive test result of any test performed in accordance with subdivision (1) of subsection (a) of this section unless such test result has been confirmed in accordance with subdivision (2) of said subsection (a).”

       The plaintiffs concede that the defendant is a foreign corporation, organized under the laws of the state of New York.

       General Statutes § 33-929 (f) provides: “Every foreign corporation shall be subject to suit in this state, by a resident of this state or by a person having a usual place of business in this state, whether or not such foreign corporation is transacting or has transacted business in this state and whether or not it is engaged exclusively in interstate or foreign commerce, on any cause of action arising as follows: (1) Out of any contract made in this state or to be performed in this state; (2) out of any business solicited in this state by mail or otherwise if the corporation has repeatedly so solicited business, whether the orders or offers relating thereto were accepted within or without the state; (3) out of the production, manufacture or distribution of goods by such corporation with the reasonable expectation that such goods are to be used or consumed in this state and are so used or consumed, regardless of how or where the goods were produced, manufactured, marketed or sold or whether or not through the medium of independent contractors or dealers; or (4) out of tortious conduct in this state, whether arising out of repeated activity or single acts, and whether arising out of misfeasance or nonfeasance.”

       General Statutes § 52-57 (c) provides in relevant part: “In actions against a private corporation, service of process shall be made either upon the president, the vice president, an assistant vice president, the secretary, the assistant secretary, the treasurer, the assistant treasurer, the cashier, the assistant cashier, the teller or the assistant teller or its general or managing agent or manager or upon any director resident in this state, or the person in charge of the business of the corporation or upon any person who is at the time of service in charge of the office of the corporation in the town in which its principal office or place of business is located. In actions against a private corporation established under the laws of any other state . . . service of process may be made upon any of the aforesaid officers or agents . . . .” (Emphasis added.)

       “[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.) Simmons-Cook v. Bridgeport, 285 Conn. 657, 665 n.7, 941 A.2d 291 (2008).

       If the defendant were correct in its assertion that the plaintiffs lack standing to bring suit in Connecticut, that would mean that a nonresident could never initiate a suit in Connecticut, which we know not to be true.

       See footnote 7.

       General Statutes § 33-920 (a) provides in relevant part: “A foreign corporation . . . may not transact business in this state until it obtains a certificate of authority from the Secretary of the State. . . .”

       General Statutes § 33-926 (a) provides that a foreign corporation authorized to transact business in Connecticut must maintain a registered agent. Subsection (b) of that statute provides that a foreign corporation may appoint the secretary of the state to act as its registered agent.

       See also Fudge v. Alliant Foodservice, Inc., Superior Court, judicial district of Hartford, Docket No. CV-01-0812056-S (July 12, 2002) (32 Conn. L. Rptr. 539); Advanced Technology Enterprises Corp. v. Surecomp Services, Inc., Superior Court, judicial district of Stamford-Norwalk, Docket No. CV-00-0175787-S (November 8,2000) (28 Conn. L. Rptr. 549); Wenderv. Trading Cove Associates, Superior Court, judicial district of New London, Docket No. 549346 (May 21, 1999); Granger v. Marriott Corp., Superior Court, judicial district of Hartford-New Britain at Hartford, Docket No. CV-91-398893-S (October 28, 1993); Xerox Corp. v. Axel Johnson Energy Development, Inc., Superior Court, judicial district of Stamford-Norwalk, Docket Nos. CV-92-0125804-S and CV-92-0126094-S (April 2, 1993) (8 Conn. L. Rptr. 551); Daddio v. Holiday Inns, Superior Court, judicial district of New Haven, Docket No. 336126 (March 8, 1993) (8 Conn. L. Rptr. 749).

       As the defendant has consented to jurisdiction, the exercise of jurisdiction by the court does not violate due process. Therefore, the court does not need to undertake an analysis of any constitutional due process issues.

       It is true that General Statutes § 33-929 (c) provides in relevant part that “[w]hen the Secretary of the State [has] been appointed a foreign corporation’s registered agent, a foreign corporation may be served by any proper officer ... by leaving two true and attested copies thereof together with the required fee at the office of the Secretary of the State or depositing the same in the United States mail, by registered or certified mail, postage prepaid, addressed to said office. . . .”
      General Statutes § 33-929 (h), however, provides that “[t]his section does not prescribe the only means, or necessarily the required means, of serving a foreign corporation.” Thus, service under § 33-929 (c) is permissible, but not mandatory.


author: Per Curiam.

text:
    PHILLIP WHITE v. COMMISSIONER OF CORRECTION
    (AC 29359)
    Harper, Lavine and Hennessy, Js.
    Argued February 5
    officially released March 17, 2009
   Per Curiam.

The judgment is affirmed.


text:
    JAMES DRAUGHN v. COMMISSIONER OF CORRECTION
    (AC 29311)
    Flynn, C. J., and Lavine and Borden, Js.
    Argued February 10
    officially released March 17, 2009
   Per Curiam.

The appeal is dismissed.


text:
    ERIC S. v. COMMISSIONER OF CORRECTION
    (AC 29502)
    Gruendel, Robinson and Lavery, Js.
    Argued February 19
    officially released March 17, 2009
   Per Curiam.

This case is controlled by Ghant v. Commissioner of Correction, 255 Conn. 1, 9, 761 A.2d 740 (2000).

The appeal is dismissed.


text:
    LLOYD G. MORGAN, JR. v. COMMISSIONER OF CORRECTION
    (AC 28166)
    Flynn, C. J., and Lavine and Beach, Js.
    Argued February 18
    officially released March 17, 2009
   Per Curiam.

The appeal is dismissed.


text:
    PAUL JIMENEZ v. COMMISSIONER OF CORRECTION
    (AC 29490)
    DiPentima, Gruendel and Lavery, Js.
    Submitted on briefs March 18
    officially released April 14, 2009
   Per Curiam.

The appeal is dismissed.


text:
    MYRNA LABOW v. RONALD LABOW
    (AC 27401)
    (AC 29214)
    Bishop, DiPentima and Pellegrino, Js.
    Argued March 19
    officially released April 14, 2009
   Per Curiam.

The judgment is affirmed.


text:
    MYRNA LABOW v. ROBERT RUBIN ET AL.
    (AC 29216)
    Bishop, DiPentima and Pellegrino, Js.
    Argued March 19
    officially released April 14, 2009
   Per Curiam.

The judgment is affirmed.


text:
    KELWOOD WHITE v. COMMISSIONER OF CORRECTION
    (AC 29781)
    Flynn, C. J., and Robinson and Stoughton, Js.
    Argued March 10
    officially released April 14, 2009
   Per Curiam.

The judgment is affirmed.


text:
    CAINE COOPER v. COMMISSIONER OF CORRECTION
    (AC 29392)
    Bishop, Lavine and Robinson, Js.
    Argued March 16
    officially released April 14, 2009
   Per Curiam.

The appeal is dismissed.


text:
    WAVERLY KNIZE v. FRANCIS KNIZE
    (AC 29206)
    DiPentima, Robinson and Foti, Js.
    Argued March 16
    officially released April 14, 2009
   Per Curiam.

In this dissolution of marriage action, the defendant, Francis Knize, appeals from the judgment awarding attorney’s fees to the plaintiff, Waveriy Knize. After a scrupulous review of the record and briefs in this matter and a careful consideration of the oral arguments, we conclude that the defendant’s claims are without merit.

The judgment is affirmed.


author: BORDEN, J. BISHOP, J.,

text:
    STATE OF CONNECTICUT v. ROBERT DIXON
    (AC 28587)
    Bishop, Gruendel and Borden, Js.
    Argued October 31, 2008
    officially released April 28, 2009

      Ruth Daniella Weissman, special public defender, for the appellant (defendant).

      Richard K. Greenalch, Jr., special deputy assistant state’s attorney, with whom, on the brief, were Michael Dearington, state’s attorney, and Maxine V. Wilensky, senior assistant state’s attorney, for the appellee (state).
   Opinion

BORDEN, J.

The defendant, Robert Dixon, appeals from the judgment of conviction rendered by the trial court, after a plea of guilty pursuant to the Alford doctrine, of sexual assault in the third degree in violation of General Statutes § 53a-72a (a) (1) (A), unlawful restraint in the first degree in violation of General Statutes § 53a-95, and attempt to commit assault in the second degree in violation of General Statutes §§ 53a-49 and 53a-60 (a) (1). Before sentencing the defendant, the court denied his oral motion to redact the presentence investigation report (report). The defendant claims that with respect to the section of the report devoted to his current personal history, (1) the entire section should be suppressed as materially false and unreliable, or, in the alternative, (2) it should be redacted in large part so as to remove certain references to unreliable innuendo. We disagree and therefore affirm the judgment of the trial court.

The following procedural history is undisputed. On September 21, 2007, the defendant entered into an agreement to plead guilty under the Alford doctrine to sexual assault in the third degree, unlawful restraint in the first degree and attempt to commit assault in the second degree. The state and the defendant agreed on a recommendation for a total effective sentence of fifteen years incarceration, execution suspended after ten years, followed by ten years of probation, with the following conditions of probation: (1) no contact with the victim; (2) registration as a sex offender for life; and (3) sex offender evaluation and treatment as deemed appropriate by the office of adult probation. Although the defendant was willing to waive a report, the court ordered one to be prepared.

As disclosed by the plea proceedings, the following facts underlie the offenses and are not challenged by the defendant. On May 1, 2006, the victim, an intern at a social service agency in New Haven, made a home visit to an apartment on Munson Street to counsel a woman who lived there. When the victim arrived, she was greeted by the defendant, who recognized her from previous visits. The defendant told the victim that the woman for whom she was looking was in the shower and that he would go get her. The victim then entered the apartment and sat down on the couch. The defendant returned naked and sat down next to the victim. The victim told the defendant that she was uncomfortable and had to leave. When the victim attempted to leave, the defendant blocked the door, preventing her from leaving.

The defendant then pushed the victim backward into a bedroom and onto the floor, straddled the victim and demanded that she masturbate him. WTien the victim refused, the defendant began to choke the victim, causing bruising on her neck and shoulder blades. The victim pleaded with him not to hurt her and indicated that she would comply with his demand. After the defendant ejaculated, he forced the victim to give him her wallet. He removed $30 from the wallet and took her cellular telephone from her purse. The defendant was arrested later that same day.

On January 12, 2007, the sentencing hearing took place. The court first noted the agreed recommendation for sentencing and then stated that it had read the report, which, the court stated, was “in twenty-one years as a judge . . . probably the worst presentence investigation report I’ve ever read for a sex offender.” The court indicated that the defendant “is in a revolving door situation. There’s no question in my mind that once he’s released, he’ll be back into the system.”

The state contended that, in agreement with the conclusion of the report, the defendant “presents a danger to the community,” shows no remorse, has no employment experience, has a lengthy history of involvement with social service agencies and the criminal justice system and has demonstrated repeatedly his failure to respond to any kind of intervention that had been fashioned for him. The state also noted that according to the report, the defendant “has a lengthy history of sexual misconduct . . . [and] has not been amenable to treatment.” The state urged that the defendant “be removed from society, not only as punishment but certainly for the protection of the public.” The victim’s advocate then read written statements by the victim and her mother.

The defendant, through counsel, requested that the court exercise its discretion to redact five specific portions of the report, referring to them by page and line number. The basis of the defendant’s request was that the portions sought to be redacted were unreliable because they constituted “hearsay within hearsay,” did not identify the individual source of the hearsay, were not under oath or subject to cross-examination and the court could not determine the demeanor of the declarants. Although the defendant recognized that the court would not be relying on the report when fashioning the sentence because his plea was in accordance with an agreed recommendation, he nonetheless urged the court to make the redactions because they would be “very damaging down the line” for purposes of possible decisions regarding the defendant by the department of correction or the parole or probation authorities.

In general terms, the five specific portions of the report that the defendant sought to have redacted were as follows. The first referred to a discharge summary upon the defendant’s release from an in-home services program provided by the department of children and families (department) and reported a history of sexual molestation of, and certain youthful sexual behavior by, the defendant and a course of mental health treatment. The second referred to the defendant’s placement in a residential treatment center for young offenders for sexual offender evaluation and summarized the records of that placement. The third referred to an acknowledgment by the defendant of certain youthful sexual behavior. The fourth referred to the department’s summary of the defendant’s placement in a residential facility for sexual offenders in Pennsylvania and his social worker’s opinion regarding his behavior in that facility. The fifth referred to records of the department regarding the defendant’s former girlfriend and described incidents during which the defendant was present in the girlfriend’s home and his interaction with the girlfriend and her children.

The court denied the defendant’s motion to redact. It stated that the information sought to be redacted played “no part in [its] decision as to what [it] thought would be a fair and appropriate sentence” for the defendant. It also stated that the information had sufficient reliability to be used by the court in sentencing and that it was “important for the department of correction to have a full picture of [the defendant] so they know exactly who and what they are dealing with.” The court then imposed the agreed upon sentence. This appeal followed.

It is useful to begin by noting what is not properly before us. First, the defendant does not challenge the sentence imposed by the court. Thus, he does not claim that the parts of the report that he challenges on appeal resulted in an improper sentence. Second, although on appeal the defendant claims that the entire report should be suppressed by this court, or, in the alternative, that certain parts of the report that were not challenged in the trial court should nonetheless be redacted by this court, we decline to consider those claims. This is because those claims were not presented to the trial court; we do not ordinarily consider claims that were not so presented; State v. Mounds, 110 Conn. App. 10, 21, 953 A.2d 938, cert. denied, 289 Conn. 938, 958 A.2d 1247 (2008); and the defendant has not properly claimed to prevail under State v. Golding, 213 Conn. 233, 567 A.2d 823 (1989), or the plain error doctrine. See Practice Book § 60-5.

Thus, the only claim that is properly before us is the claim that the court abused its discretion in failing to redact the five portions of the report that the defendant challenged in that court. This claim, however, founders on the notion that, as the state argues, it is not cognizable in this court because the defendant does not challenge the sentence imposed by the court. “The sole purpose [of a report] is to enable the court, within limits fixed by statute, to impose an appropriate penalty, fitting the offender as well as the crime.” (Internal quotation marks omitted.) State v. Miller, 56 Conn. App. 191, 201, 742 A.2d 402 (1999), cert. denied, 252 Conn. 937, 747 A.2d 4 (2000), quoting State v. Patterson, 236 Conn. 561, 574, 674 A.2d 416 (1996); see also State v. Collette, 199 Conn. 308, 321, 507 A.2d 99 (1986) (mere reference in report to information outside record does not require sentence to be set aside unless defendant shows information materially false and unreliable and court relied on information in determining sentence). That being so, in the absence of a challenge to the sentence itself, ordinarily a claim of abuse of discretion in failing to redact certain portions of a report is not cognizable on appeal. Moreover, it has been held that a defendant has no constitutional liberty interest in the accuracy of such a report. See Pouncey v. Commissioner of Correction, 84 Conn. App. 734, 738-39, 854 A.2d 1129 (2004). These authorities suggest that a defendant who does not challenge his sentence has no judicial remedy, by way of direct appeal or habeas corpus, to redact inaccurate statements of fact in a report. We are not prepared, however, to say this would be true in all cases.

Under Practice Book § 43-10 (1), a defendant has a right to controvert a report prior to sentencing. It is also true that this section contemplates that a report will follow the defendant into the correctional system for appropriate use by those officials. In fact, General Statutes § 54-9 la (c) requires that such a report accompany a defendant into that system. Thus, it may be that even in a case in which a defendant does not challenge the legality of his sentence, there might be some misstatements in a report that are so patently false, unreliable and harmful to the defendant’s future incarceration, probation or parole that he could challenge them on direct appeal from the sentence.

The present case, however, does not present such a circumstance. The five portions of the report challenged by the defendant in the trial court fall well within the bounds of reliability, as the court found.

This leaves only the question of the rescript. The concurring opinion contends that this court should dismiss the appeal for lack of subject matter jurisdiction, rather than affirm the judgment appealed from because (1) the defendant was the prevailing party in the trial court in that the judgment was the result of his own plea and (2) the likely future harm to him from the material in the report of which he complains is too speculative and conjectural. We disagree.

First, although the defendant received the benefit of the plea agreement in the trial court, so did the state. Therefore, neither he nor the state may accurately be considered the prevailing party. More importantly, he did not prevail on the precise issue that he raises on appeal, namely, the court’s refusal to redact the report.

Second, although we agree with the concurrence that aggrievement or standing to appeal requires something more than conjecture or speculation of injury; see Gay & Lesbian Law Students Assn. v. Board of Trustees, 236 Conn. 453, 465-66, 673 A.2d 484 (1996); we disagree that the likely effects of the report on the defendant fall into that category. In our view, it is neither conjectural nor speculative that the entire report will be used by both correction and parole officials in making their decisions regarding the defendant’s incarceration and possible parole. Indeed, that is precisely why the rules of practice contemplate that the report accompany the defendant into the correctional system; see Board of Pardons v. Freedom of Information Commission, 19 Conn. App. 539, 543, 563 A.2d 314 (board of pardons considers report, along with all other information, in determining whether to issue pardon), cert. denied, 212 Conn. 819, 565 A.2d 539 (1989); and specifically why the court in this case declined to amend the report.

Thus, the point of the authorities cited previously for the proposition that a defendant who does not challenge his sentence has no judicial remedy, by way of direct appeal or habeas corpus, to redact inaccurate statements of fact in a presentence investigation report, is not that those statements may not affect his future incarceration. The point is, instead, that despite the fact that the statements may affect his future incarceration, he nonetheless may not challenge them by way of appeal or habeas corpus.

We therefore conclude that this court has subject matter jurisdiction over the defendant’s appeal. Consequently, the appropriate rescript is to affirm the judgment.

The judgment is affirmed.

In this opinion GRUENDEL, J., concurred.

BISHOP, J.,

concurring. “It is well established that the subject matter jurisdiction of the Appellate Court. ... is governed by [General Statutes] § 52-263, which provides that an aggrieved party may appeal to the court having jurisdiction from the final judgment of the court.” (Emphasis in original; internal quotation marks omitted.) King v. Sultar, 253 Conn. 429, 434, 754 A.2d 782 (2000). “In a criminal proceeding, there is no final judgment until the imposition of a sentence.” (Internal quotation marks omitted.) State v. Jenkins, 288 Conn. 610, 617, 954 A.2d 806 (2008).

In this case, it is clear there is a final judgment; the defendant, Robert Dixon, has been convicted by plea and sentenced. Although the defendant nominally appeals from the judgment, he seeks no relief from it. He asks this court to take no action with respect to the judgment of conviction or the sentence imposed, as both were the fruits of plea negotiations. He does not claim that he has been wrongfully convicted or illegally sentenced, nor does he ask that his conviction be reversed or that his sentence be vacated or modified. In sum, he claims no aggrievement from either his conviction or the sentence he received. Rather, the defendant complains of a ruling made by the court regarding portions of his presentence investigation report. On appeal, he seeks an order redacting certain portions of that report that he believes are inaccurate and potentially harmful to him. Although “[t]he sole purpose [of a presentence investigation report] is to enable the court ... to impose an appropriate penalty”; (internal quotation marks omitted) State v. Patterson, 236 Conn. 561, 574, 674 A.2d 416 (1996); the defendant does not claim that the court improperly considered the report in imposing his sentence. Thus, the defendant’s claim regarding the contents of the presentence investigation report have no connection to the terms of the judgment.

Normally, a party who prevails in the trial court is not aggrieved. Seymour v. Seymour, 262 Conn. 107, 110, 809 A.2d 1114 (2002). In a sense, the defendant in this instance may be said to have prevailed in the trial court because he was convicted by his own plea and received an agreed sentence. On that basis, he cannot be said to be aggrieved by the judgment.

There is, however, a narrow band of cases in which a prevailing party may nevertheless be aggrieved by a decision of the court entered during the course of proceedings leading to a judgment. In such cases, one may be able to demonstrate that such an order of the court is likely to have an adverse effect on his legal interests in a future proceeding. Thus, for example, it has been stated that “a prevailing party may appeal a collateral adverse ruling that can serve as a basis for the bar of res judicata, collateral estoppel, or law of the case in the same or other litigation.” 4 C.J.S. 236, Appeal and Error § 252 (2007). To be aggrieved by such a decision, however, an appellant must demonstrate that the attendant deprivation of his right is likely and not merely speculative, “concrete and particularized . . . and . . . actual or imminent, not conjectural or hypothetical . . . .” (Citations omitted; internal quotation marks omitted.) Lujan v. Defenders of Wildlife, 504 U.S. 555, 112 S. Ct. 2130, 119 L. Ed. 2d 351 (1992).

In this instance, the defendant makes no such particularized claims. Rather, he claims that he is harmed by the “libelous innuendo” contained in the report because it may, at some uncertain point in the future, impact his conditions of incarceration or his eligibility for parole or probation. The defendant’s claim, however, is contingent on the occurrence of some event that has not, and may not, happen. Therefore, the consideration of the issue he raises on appeal would require us to engage in speculation and conjecture regarding events yet to occur.

Under these circumstances, because the claims made by the defendant are inadequate to demonstrate his aggrievement, it is likely this court has no subject matter jurisdiction over this appeal. Accordingly, rather than affirming the judgment of the trial court, I would invite the parties to submit supplemental briefs to this court on the question of whether this matter should be dismissed for lack of subject matter jurisdiction.

        “North Carolina v. Alford, 400 U.S. 25, 91 S. Ct. 160, 27 L. Ed. 2d 162 (1970), holds that a criminal defendant need not admit guilt but may consent to being punished as if he is guilty to avoid the risk of proceeding to trial.” State v. Sutton, 95 Conn. App. 139, 140 n.1, 895 A.2d 805, cert. denied, 278 Conn. 920, 901 A.2d 45 (2006).

       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.

       Although the defendant did not present a Golding or plain error analysis in his opening brief to this court, he attempted to do so in his reply brief. That is unavailing, however, because it is well established that such claims may not be presented for the first time in a reply brief. See, e.g., Embalmers’ Supply Co. v. Giannitti, 103 Conn. App. 20, 60-61, 929 A.2d 729, cert. denied, 284 Conn. 931, 934 A.2d 246 (2007).

       Practice Book § 43-10 provides in relevant part: “Before imposing a sentence . . . after the acceptance of a plea of guilty . . . the judicial authority shall, upon the date previously determined for sentencing, conduct a sentencing hearing as follows:
      “(1) The judicial authority shall afford the parties an opportunity to be heard and, in its discretion, to present evidence on any matter relevant to the disposition, and to explain or controvert the presentence investigation report. . . relied upon by the judicial authority in imposing sentence. When the judicial authority finds that any significant information contained in the presentence report... is inaccurate, it shall order the office of adult probation to amend all copies of any such report in its possession and in the clerk’s file, and to provide both parties with an amendment containing the corrected information. . . .”

       General Statutes § 54-91a (c) provides: “Whenever an investigation is required, the probation officer shall promptly inquire into the circumstances of the offense, the attitude of the complainant or victim, or of the immediate family where possible in cases of homicide, and the criminal record, social history and present condition of the defendant. Such investigation shall include an inquiry into any damages suffered by the victim, including medical expenses, loss of earnings and property loss. All local and state police agencies shall furnish to the probation officer such criminal records as the probation officer may request. When in the opinion of the court or the investigating authority it is desirable, such investigation shall include a physical and mental examination of the defendant. If the defendant is committed to any institution, the investigating agency shall send the reports of such investigation to the institution at the time of commitment.” (Emphasis added.)

       Pursuant to General Statutes § 54-95, appellate criminal jurisdiction lies when there is an appeal from a final judgment. See State v. Piorkowski, 236 Conn. 388, 401, 672 A.2d 921 (1996). Generally, to have standing, one who appeals from a final judgment must claim to be aggrieved by it. See State v. T.D., 286 Conn. 353, 944 A.2d 288 (2008). In this instance, the defendant makes no such claim; rather, he claims to be aggrieved by a pretrial decision of the court not connected to its judgment.

       For example, in the matter of In re Allison G., 276 Conn. 146, 883 A.2d 1226 (2005), our Supreme Court permitted an appeal by the department of children and families (department) even though the trial court had found in favor of the department on one count of a two count petition alleging, in one count that the child was uncared for and, in another count, that the child was neglected. In adjudicating the matter, the trial court granted the relief sought by the department, the commitment of the child to the department, and found in favor of it on the “uncared for” count but dismissed the neglect count. Even though the department prevailed at trial, the Supreme Court, on review, found that the department was aggrieved by the dismissal of the neglect count on the ground that an adjudication of that count likely would affect the course of future proceedings between the department and the parents of the child.

       In reaching this view, I offer no opinion on what other legal and, or, equitable avenues of redress may be available to the defendant administratively or in the trial court concerning the contents of the subject presentence investigation report.