author: PER CURIAM.

text:
    MCC FUNDING, LLC v. BEVERLY HILLS SUITES, LLC, ET AL.
    (AC 33755)
    DiPentima, C. J., and Beach and Bear, Js.
    Submitted on briefs May 25 —
    officially released July 24, 2012

      William F. Gallagher filed a brief for the appellants (named defendant et al.).

      Robert Laplaca filed a brief for the appellee (plaintiff).
   Opinion

PER CURIAM.

The defendants Beverly Hills Suites, LLC, and Sharok Jacobi appeal from the summary judgment of strict foreclosure rendered in favor of the plaintiff, MCC Funding, LLC. On appeal, the defendants claim that the court abused its discretion in denying their request for a continuance to present their own appraisal report on the property. We disagree with the defendants, affirm the judgment of the trial court and remand the matter to the trial court to set a new law day.

The following facts and procedural history are relevant to the resolution of this appeal. By a complaint dated September 14, 2010, the plaintiff commenced this foreclosure of commercial property located in Windsor Locks. Beverly Hills Suites, LLC, was the owner of the property, a hotel, and Jacobi is a guarantor of the debt. The property was subject to various subordinate mortgages and proceedings in Bankruptcy Court.

In a motion dated April 28, 2011, the plaintiff moved for summary judgment against the defendants. On June 21, 2011, the court issued an order granting the motion for summary judgment as to liability only in favor of the plaintiff. The plaintiff later moved for a judgment of strict foreclosure. In this motion, the plaintiff included an appraisal report indicating that the fair market value of the property was $1,400,000. The affidavit of debt listed an outstanding balance of $6,196,003.33. This amount included the unpaid principal balance of $3,700,000, interest from January 29,2009 to January 29, 2010, of $37,000, default interest from January 30, 2010 to July 1, 2011, of $1,671,005.48, late charges of $224,220 and advances to operate the hotel of $563,777.85. On July 18, 2011, the court granted the motion for a judgment of strict foreclosure and accepted the fair market value and outstanding debt listed in the plaintiffs motion. It also set the law day for August 9, 2011.

The defendants filed the present appeal on August 8, 2011. The plaintiff filed a motion to terminate the automatic appellate stay on August 11, 2011. The trial court granted that motion on September 20, 2011, and set a new law day of October 1, 2011. On September 29, 2011, the defendants filed a motion for review of that decision, triggering another appellate stay. This court granted the motion for review, but denied the relief requested.

On appeal, the defendants claim that the court improperly denied their request for a continuance to present an appraisal of the subject property. Specifically, they argue that the court abused its discretion in denying the motion for a continuance because it acted arbitrarily and prejudiced their ability to present a defense. We are not persuaded that the court abused its discretion.

In its brief, the plaintiff argues that the defendants’ appeal is moot because the law days have passed and title to the property has vested in the plaintiff. “Mootness is a question of justiciability that must be determined as a threshold matter because it implicates [a] court’s subject matter jurisdiction .... Because courts are established to resolve actual controversies, before a claimed controversy is entitled to a resolution on the merits it must be justiciable. . . . [A]n actual controversy must exist not only at the time the appeal is taken, but also throughout the pendency of the appeal. . . . When, during the pendency of an appeal, events have occurred that preclude an appellate court from granting any practical relief through its disposition of the merits, a case has become moot. . . . [I]t is not the province of appellate courts to decide moot questions, disconnected from the granting of actual relief or from the determination of which no practical relief can follow.” (Citation omitted; internal quotation marks omitted.) Reveron v. Board of Firearms Permit Examiners, 123 Conn. App. 475, 477-78, 1 A.3d 1272 (2010).

In the present case, the original law day set by the trial court was August 9, 2011. The defendants’ appeal, filed the previous day, stayed the proceedings. The trial court terminated the appellate stay and set a new law day of October 1, 2011. The defendants filed a motion for review in this court, which stayed the trial court’s order. We denied the relief requested in the motion for review on November 9, 2011, three months after the original law day and approximately five weeks after the new law day.

“[0]nce an appeal is taken, a stay is automatically imposed on the foreclosure action. See Practice Book § 61-11. Whether the appeal is dismissed or remanded to the trial court, the trial court will necessarily have to set new law days. One of the distinguishing features of a defendant’s appeal from a judgment of strict foreclosure is that a remand to the trial court is almost always required, even if the appeal resulted in a finding of no error in entry of the original judgment. Since the taking of an appeal stays the passing of the law days, once the appeal is concluded the trial court must once again act on the case and set new law days. D. Caron, Connecticut Foreclosures (2d Ed. 1989) § 17.03.” (Internal quotation marks omitted.) L & R Realty v. Connecticut National Bank, 53 Conn. App. 524, 548-49, 732 A.2d 181, cert. denied, 250 Conn. 901, 734 A.2d 984 (1999). We conclude, therefore, that the defendants’ appeal is not moot because title has not vested in the plaintiff. By virtue of the postjudgment proceedings in both courts and our determination of the merits of the defendants’ appellate claims, a new law day must be set at the conclusion of this appeal. Id., 549.

The sole issue raised by the defendants is that the court abused its discretion in denying their request for a continuance to present their appraisal report on the property. We are not persuaded by the defendants’ claim.

After summary judgment had been rendered against the defendants, the plaintiff moved for a judgment of strict foreclosure on July 1,2011. It also filed an affidavit of an appraiser, Matthew C. Mondanile, who averred that the fair market value of the property was $1,400,000. The plaintiff also submitted an affidavit of debt of $6,196,003.33. The defendants did not file a response to these submissions. At a hearing on July 18, 2011, the plaintiffs counsel indicated that interest was accruing at $4000 per day and that the plaintiff had spent approximately $500,000 on the property since the beginning of the action. Counsel for the defendants challenged the plaintiffs claim regarding the $500,000 and argued that the property was worth more than the plaintiffs appraisal. The defendants then requested a continuance to conduct their own appraisal. The court denied the request by making findings regarding the debt, the value of the property and setting the law day.

“The matter of continuance is traditionally within the discretion of the trial judge .... Decisions to grant or to deny continuances are very often matters involving judicial economy, docket management or courtroom proceedings and, therefore, are particularly within the province of a trial court. . . . Whether to grant or to deny such motions clearly involves discretion, and a reviewing court should not disturb those decisions, unless there has been an abuse of that discretion, absent a showing that a specific constitutional right would be infringed. . . . Our Supreme Court has articulated a number of factors that appropriately may enter into an appellate court’s review of a trial court’s exercise of its discretion in denying a motion for a continuance. Although resistant to precise cataloguing, such factors revolve around the circumstances before the trial court at the time it rendered its decision, including: the timeliness of the request for continuance; the likely length of the delay; the age and complexity of the case; the granting of other continuances in the past; the impact of delay on the litigants, witnesses, opposing counsel and the court; the perceived legitimacy of the reasons proffered in support of the request; [and] the defendant’s personal responsibility for the timing of the request . . . (Internal quotation marks omitted.) Campbell v. Campbell, 120 Conn. App. 760, 764-66, 993 A.2d 984 (2010). Put another way, “[a]n abuse of discretion must be proven by the appellant by showing that the denial of the continuance was unreasonable or arbitrary. . . . One relevant factor that a court may consider in evaluating a motion for a continuance is the perceived legitimacy of the reasons proffered in support of the motion.” (Internal quotation marks omitted.) Jaramillo v. Case, 100 Conn. App. 815, 832, 919 A.2d 1061, cert. denied, 283 Conn 902, 926 A.2d 670 (2007); see also de Repentigny v. de Repentigny, 121 Conn. App. 451, 454-55, 995 A.2d 117 (2010).

The defendants made their request for a continuance during the hearing that occurred seventeen days after the plaintiff had moved for a judgment of strict foreclosure. “We are especially hesitant to find an abuse of discretion where the court has denied a motion for continuance made on the day of trial.” (Internal quotation marks omitted.) Bove v. Bove, 93 Conn. App. 76, 84, 888 A.2d 123, cert. denied, 277 Conn. 919, 985 A.2d 788 (2006). Additionally, the court noted that the plaintiff incurred harm as a result of a substantial sum of unpaid interest, and the advancement of more than $560,000 to operate the hotel. Finally, the court expressly stated that the defendants would be permitted to challenge the amount of the advanced money and the fair market value at the subsequent deficiency hearing. We conclude, therefore, on the basis of our review of the record and briefs, that the defendants have failed to establish that the court abused its discretion.

The judgment is affirmed and the case is remanded for the purpose of setting a new law day.

       Although other defendants were named in the proceedings before the trial court, only Beverly Hills Suites, LLC, and Jacobi are parties to this appeal.

       The plaintiff also argues that the appeal is moot because the defendants filed their own appraisal report with the trial court at the deficiency hearing. In this report, the appraised value of the property was $4,200,000. The plaintiff contends that because this value is lower than the total debt found by the court, the defendants cannot obtain any practical relief from the order of strict foreclosure.
      “The decision whether to order a strict foreclosure or a sale lies within the discretion of the court.” National City Mortgage Co. v. Stoecker, 92 Conn. App. 787, 794, 888 A.2d 95, cert. denied, 277 Conn. 925, 895 A.2d 799 (2006); see also General Statutes § 49-24; 1D. Caron & G. Milne, Connecticut Foreclosures (5th Ed. 2011) § 6-2:1.6, p. 320. It is possible that the court, had it considered the defendants’ appraisal, would not have rendered a judgment of strict foreclosure. Simply put, even given the lower value of the appraisal done by the defendants’ expert as compared with the debt found by court, it does not follow that the court had no option except to render a judgment of strict foreclosure. We therefore reject the plaintiffs argument.


source: Caselaw Access Project

author: ESPINOSA, J.

license: Public Domain

text:
    STATE OF CONNECTICUT v. ANGEL C.

    (AC 34019)
    Alvord, Espinosa and Sullivan, Js.

      Argued May 22 —
    officially released July 24, 2012

      Auden Grogins, special public defender, for the appellant (defendant).

      Melissa L. Streeto, assistant state’s attorney, with whom, on the brief, were Gail P. Hardy, state’s attorney, and Edward R. Narus, 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 and the crime of risk of injury to a child, we decline to identify the victim or others through whom the victim’s identify may be ascertained. See General Statutes § 54-86e.

   Opinion

ESPINOSA, J.

The defendant, Angel C., appeals from the judgment of conviction, rendered following a jury trial, of sexual assault in the first degree in violation of General Statutes § 53a-70 (a) (1), sexual assault in the second degree in violation of General Statutes § 53a-71 (a) (4), sexual assault in the third degree in violation of General Statutes § 53a-72a (a) (1) and risk of injury to a child in violation of General Statutes § 53-21 (a) (2). The defendant claims that the trial court improperly (1) denied his motion to suppress evidence and (2) admitted certain evidence. 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. In 1996, when the female victim was six years of age, the defendant and the victim’s mother began a long-term romantic relationship while living in Peru. The defendant and the victim’s mother later had two children together, moved to East Hartford and were married. The victim lived at the family residence with her half-siblings, her mother and the defendant. The defendant exercised a great deal of influence and control over what occurred in the household, such that the victim was subservient to him and feared him. From the time that the victim was ten years of age, the defendant forcibly engaged in frequent and secretive sexual activities with her. These activities began with the defendant touching the victim’s private parts over her clothing with his hands and penis. They escalated to the defendant digitally penetrating the victim’s vagina. The defendant compelled the victim to view pornography and to masturbate him. Finally, from the time that the victim was fourteen years of age until she was eighteen years of age, the defendant engaged in penile-vaginal intercourse with the victim on nearly a daily basis.

For many years, the victim, who was emotionally traumatized by the defendant’s assaultive conduct, did not bring the defendant’s activities to light because of the defendant’s role as the head of the family, her fear that doing so would tear the family apart and her fear that the defendant would abuse her siblings. Additionally, the defendant often told the victim that he loved her and bought gifts for her. When the victim was a senior in high school, she began to experience panic attacks. During an ensuing psychiatric evaluation, she revealed the sexual abuse committed by her stepfather, the defendant. The defendant’s arrest followed. The present appeal followed the defendant’s conviction and sentencing.

I

First, the defendant claims that the court improperly denied his motion to suppress inculpatory statements that he made on January 11, 2008, to Patrick Sullivan, an East Hartford police officer, prior to his arrest. We disagree.

Prior to trial, the defendant filed a written motion to suppress the statements on the ground that his Miranda rights were violated. After holding an evidentiary hearing, the court issued a memorandum of decision denying the defendant’s motion. The following facts found by the court are relevant to the defendant’s claim: “On November 16, 2007, the East Hartford police department received a complaint that [the victim] had been sexually assaulted by her stepfather, the defendant, over a period of seven years. Officer Patrick Sullivan from the department’s juvenile division investigated the complaint. Based on the allegations, the defendant was his only suspect.

“Officer Sullivan first met the defendant on November 16, 2007. On that day he went to the home where the defendant and his wife, [W], and stepdaughter, [the victim], resided. The officer advised the defendant of the allegations made and asked the defendant to leave the residence during the pendency of the investigation. The defendant complied with the officer’s request. All communication was in English. The defendant appeared to understand the conversation and responded appropriately.

“On November 29, 2007, Officer Sullivan called the defendant at his place of employment and requested that the defendant come to the East Hartford police department for an interview. The defendant chose the date and time for that interview, the afternoon of December 6, 2007. He provided his own transportation both to and from the police department. At the time of the interview, the defendant was still a suspect but he was not under arrest. He was not in custody.

“Officer Sullivan spoke with the defendant in a room located in the police department juvenile division. It was a standard interview room with a desk, chairs, a television and mirror. Aware that the defendant was bom in Pern, Officer Sullivan asked that Officer Rosario, a bilingual officer, observe the interview and translate if necessary.

“Officer Sullivan spoke with the defendant in English. The defendant responded in English. He did not exhibit any difficulty comprehending the English language. Officer Sullivan could understand the defendant’s responses.

“Officer Sullivan read the defendant’s Miranda rights. The defendant acknowledged the individual rights, initialing each on the police form used by Officer Sullivan. The defendant also provided his name, age, and education. He stated that he could read, write, and understand English. The defendant was aware that he could leave the interview room at any time.

“Officer Sullivan advised the defendant that [the victim] had made some serious allegations involving the defendant, specifically sexual assault. The defendant denied all allegations, stating that there had never been any sexual contact.

“The first interview lasted approximately one hour. At the conclusion, Officer Sullivan offered the defendant an opportunity to [submit to] a polygraph [examination]. The defendant was hesitant and asked to speak with counsel before committing to a he detector test. At that point the interview ended and the defendant left the police station.

“Several weeks later, Officer Sullivan phoned the defendant and asked if the defendant had consulted an attorney about the polygraph test offer. At that time, the defendant had not made any decision.

“After that conversation, the defendant met [with W], who confronted him and demanded the truth. Initially the defendant denied any sexual contact. He subsequently told [W] that he and [the victim] were in love. He claimed the romance began after [the victim’s] sixteenth birthday and eventually progressed to sexual intercourse.

“[W] told Officer Sullivan about her meeting with the defendant. Based on [W’s] information, Officer Sullivan phoned the defendant and requested an interview. He and the defendant agreed to meet at the East Hartford police station on January 11,2008. Once again the defendant provided his own transportation to the police station. He and Officer Sullivan communicated in English. The interview occurred in the same room that the parties had used in December, 2007.

“As the defendant and Officer Sullivan walked to the interview room, the defendant indicated that he needed to talk. The officer read the defendant’s Miranda rights. The defendant again acknowledged each right and signed the accompanying waiver form. The defendant did not have any difficulty either understanding the officer or responding to questions.

“Officer Sullivan advised the defendant that [W] had provided additional information about the pending allegations. The defendant at first denied meeting [with W]. Later in the interview the defendant admitted he had met [with] his wife. He farther acknowledged that he had sexual relations with [the victim], but claimed that their relationship began after [the victim’s] sixteenth birthday. The defendant stated that he and [the victim] were in love and that all sexual contact had been consensual.

“At that point Officer Sullivan advised the defendant that he intended to apply for a warrant. The interview ended and the defendant left the police station.

“Throughout both interviews, the defendant was not in custody. He was free to leave the officer’s presence at any time. He could have terminated the interviews at any time. He was not under pressure to answer questions.”

In his motion, the defendant asserted that he was not properly advised of his constitutional rights; he did not knowingly, voluntarily and intelligently waive his constitutional rights; the statements were not voluntarily made; and the statements were the fruit of an illegal arrest. The court based its denial of the motion on several grounds. First, it concluded that the defendant was not in custody at the time that he made the statements at issue. The court stated: “[T]he interviews were not custodial. There was no evidence that the defendant was restrained at the time of the statements. He was free to move about. Officer Sullivan did not threaten the use of force. The defendant failed to establish a custodial interrogation.” Alternatively, the court concluded that the defendant knowingly, intelligently and voluntarily waived his Miranda rights. Later, at trial, the state presented evidence of the defendant’s inculpatory statements to Sullivan.

On appeal, the defendant claims that the court should have suppressed the statement that he gave to Sullivan on January 11,2008, because it was obtained in violation of his constitutional rights. He challenges the court’s determination that he was not in custody at the time he made the statements at issue. He argues that, in light of all of the circumstances surrounding his interrogation, a reasonable person in his position would have believed that he was in police custody. Moreover, he argues that the court’s determination that he waived his Miranda rights was improper because, although he signed a waiver of rights form prior to making the statements, he did not understand the form and, thus, could not properly waive his right against self-incrimination. He asserts that Spanish is his primary language, the form was in English and the police did not provide him with the services of an interpreter. He asserts that he was unfamiliar with police procedure and that “he felt pressured by Sullivan to sign the waiver form

“It is well established that the prosecution may not use statements, whether exculpatory or inculpatory, stemming from custodial interrogation of the defendant unless it demonstrates the use of procedural safeguards effective to secure the privilege against self-incrimination. . . . Two threshold conditions must be satisfied in order to invoke the warnings constitutionally required by Miranda: (1) the defendant must have been in custody; and (2) the defendant must have been subjected to police interrogation. . . . The defendant bears the burden of proving that he was in custody for Miranda purposes. . . .

“A defendant in custody is subject to interrogation not only in the face of express questioning by police but also when subjected to any words or actions on the part of the police (other than those normally attendant to arrest and custody) that the police should know are reasonably likely to elicit an incriminating response from the suspect. . . . Whether a defendant in custody is subject to interrogation necessarily involves determining first, the factual circumstances of the police conduct in question, and second, whether such conduct is normally attendant to arrest and custody or whether the police should know that such conduct is reasonably likely to elicit an incriminating response.

“As a general matter, the standard of review for a motion to suppress is well settled. A finding of fact will not be disturbed unless it is clearly erroneous in view of the evidence and pleadings in the whole record .... As we have noted previously, however, when a question of fact is essential to the outcome of a particular legal determination that implicates a defendant’s constitutional rights, and the credibility of witnesses is not the primary issue, our customary deference to the trial court’s factual findings is tempered by a scrupulous examination of the record to ascertain that the trial court’s factual findings are supported by substantial evidence. . . . [W]here 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 memorandum of decision ....

“The question of whether a defendant is in custody for purposes of a custodial interrogation involves a two step inquiry. The trial court first makes a factual determination of the circumstances surrounding the alleged interrogation and then applies those facts to an objective test as to whether a reasonable person would have felt that he or she was not at liberty to leave. . . . The first inquiry is factual and will not be overturned unless, after a scrupulous examination of the record, we find that it is clearly erroneous. . . . The second question calls for application of the controlling legal standard to the historical facts [which is a question of law]. . . . The ultimate determination of whether a defendant was subjected to a custodial interrogation, therefore, presents a mixed question of law and fact, over which our review is de novo.” (Internal quotation marks omitted.) State v. Bridges, 125 Conn. App. 72, 78-79, 6 A.3d 223 (2010), cert. denied, 300 Conn. 931, 17 A.3d 68 (2011).

“[Although the circumstances of each case must certainly influence a determination of whether a suspect is in custody for purposes of receiving Miranda protection, the ultimate inquiry is simply whether there is a formal arrest or restraint on freedom of movement of the degree associated with a formal arrest. ... A person is in custody only if, in view of all the surrounding circumstances, a reasonable person would have believed [that] he was not free to leave. . . . Further, the United States Supreme Court has adopted an objective, reasonable person test for determining whether a defendant is in custody. Thus, in determining whether Miranda rights are required, the only relevant inquiry is whether a reasonable person in the defendant’s position would believe that he or she was in police custody of the degree associated with a formal arrest.” (Citations omitted; emphasis in original; internal quotation marks omitted.) State v. Turner, 267 Conn. 414, 434, 838 A.2d 947, cert. denied, 543 U.S. 809, 125 S. Ct. 36, 160 L. Ed. 2d 12 (2004).

We observe that the defendant’s claim focuses only on the interview that Sullivan conducted on January 11,2008. The state does not appear to dispute the court’s implicit finding that, for purposes of a Miranda analysis, the defendant was interrogated by Sullivan on that date at the police department.

We readily conclude that, with regard to the issue of custody, the court’s findings of fact were supported by substantial evidence and that the court properly applied the governing law to the facts found. The record amply demonstrates that Sullivan contacted the defendant by telephone, requesting a second interview. Sullivan did not appear at the defendant’s home or place of employment and forcibly escort the defendant to the police department. The defendant voluntarily accepted Sullivan’s request, agreeing to meet Sullivan at the police department on January 11, 2008. The defendant provided his own transportation to the interview. The interview occurred in a room in which Sullivan, earlier, had interviewed the defendant, and from which the defendant freely had exited the police department. The waiver of rights form that the defendant signed and initialed prior to the interview states: “I have been advised and I know that I can refuse to answer questions, or I may stop answering questions at any time I so desire.” The defendant was not formally arrested prior to the interview and did not ask to terminate the interview. There was no evidence that the defendant physically was restrained. Rather, the defendant left the police department at the conclusion of the interview. On these facts, we do not conclude that a reasonable person in the defendant’s position would have believed that he was in police custody and not free to leave.

The defendant draws our attention to several factors which, considered individually or in combination, he argues, support a conclusion that he was in police custody. We address them briefly. He draws our attention to the uncontroverted evidence that he was alone with Sullivan during the interview, Sullivan was armed with a police revolver during the interview and the interview occurred in a closed interrogation room at the police department. The defendant points to evidence that he had to walk up a flight of stairs to reach the interrogation room, and that the room had a limited right of ingress and egress. Also, the defendant relies on evidence that he subjectively believed that, at the time of the interrogation, he was not free to leave. Finally, the defendant argues that he “had no experience dealing with the police” and had a limited understanding of the English language.

Initially, we observe that the defendant’s statement that, at the time of the interview on January 11, 2008, he “had no experience dealing with the police,” is inaccurate in light of the uncontroverted evidence that the defendant had several encounters with Sullivan during his investigation prior to that date. These encounters included the interview that occurred on December 6, 2007, as discussed in the court’s memorandum of decision denying the motion to suppress. The defendant does not assert that he had been in police custody during any of these prior interactions between himself and Sullivan. Furthermore, we observe that the defendant’s subjective lack of familiarity with police procedures or his subjective belief with regard to the issue of custody does not govern our analysis. “ ‘[T]he initial determination of custody depends on the objective circumstances of the interrogation, not on the subjective views harbored by either the interrogating officers or the person being questioned. . . . Thus ... it is irrelevant that the defendant may have been a novice to police questioning. His subjective beliefs about whether he was in fact free to leave have no bearing on whether he was in custody for Miranda purposes.’ ” State v. Edwards, 299 Conn. 419, 441, 11 A.3d 116 (2011), quoting State v. Turner, supra, 267 Conn. 439.

The defendant has not demonstrated that his command of the English language was so poor that he reasonably believed that he had been taken into police custody at the time that he made the statements at issue. In its memorandum of decision, the court expressly found that the defendant’s version of events was not credible. In another part of its decision, the court found: “During each discussion [between the defendant and the police], the defendant was articulate and cooperative. The challenged conversations were conducted in English, a language the defendant understood. There is no competent evidence that his decision to talk with the police was influenced by a lack of understanding or comprehension of what was occurring or what was being said.” Our thorough review of the evidence leads us to conclude that this finding was supported by substantial evidence.

The defendant places a great deal of emphasis on the fact that the interview in question occurred at the police department. Our case law, however, plainly instructs that this is not a dispositive factor in evaluating the issue of custody. As our Supreme Court has observed, “ [a] person, even if a suspect in a crime, is not in custody every time he is asked questions at a police station.” State v. Northrop, 213 Conn. 405, 415, 568 A.2d 439 (1990). The fact that Sullivan was alone with the defendant, that Sullivan was armed during the interview and that it occurred in a closed room with limited ingress and egress to the general public does not lead us to conclude that the defendant was in custody. There is no evidence that Sullivan took any steps to restrain the defendant’s freedom of movement, suggested that the defendant was not free to leave or gave the defendant reason to believe that he was locked in the interrogation room. The fact that Sullivan conducted the interview one on one with the defendant does not tend to demonstrate that the defendant was physically restrained.

Insofar as the defendant asserts that he was in custody because the police viewed him as a suspect and that Sullivan was seeking a confession from him, we are not persuaded. “Even a clear statement from an officer that the person under interrogation is a prime suspect is not, in itself, dispositive of the custody issue, for some suspects are free to come and go until the police decide to make an arrest.” Stansbury v. California, 511 U.S. 318, 325, 114 S. Ct. 1526, 128 L. Ed. 2d 293 (1994).

On the basis of our careful review of the record, we conclude that the court properly concluded that the defendant’s statements to Sulhvan were not the product of a custodial interrogation. Accordingly, the court properly denied the defendant’s motion to suppress evidence.

II

Next, the defendant claims that the court improperly admitted evidence concerning his financial support of three children of his, by another woman, who were living in Peru during his relationship with W. We disagree.

The record reflects that, during the state’s direct examination of W, the victim’s mother, she testified about her relationship with the defendant, which began in their native country, Peru. She described the defendant’s high degree of control of family decisions and finances during their relationship. Absent objection, she testified that it was not until 2000, after she had her second child with the defendant and had moved with the defendant from Peru to East Hartford, that she first learned that the defendant had three children with another woman in Peru outside of their relationship, and that he had been supporting those children financially.

During the defendant’s direct examination, he discussed the financial situation of both himself and W in Peru and, later, after they moved to the United States. He testified about his employment history and his obligation to support his two children with W. Specifically, he discussed his employment during his relationship with W, and how his employment affected his ability to care for W and his children with W, both before and after they moved from Peru to the United States. He testified that he worked long hours and sent funds to Peru to make sure that W, the victim and the defendant’s first child with W could come to the United States. Also, he testified that he earned the money to purchase the family home, and that the decision to purchase the home was motivated in part by his care for his children. The defendant discussed the fact that, when W became pregnant with his daughter in Peru, he began living with her out of a sense of taking responsibility for his child.

During the defendant’s cross-examination, he reiterated that he began living with W once she became pregnant with his daughter because he wanted to care for and be financially responsible for his child. The prosecutor then asked the defendant: “So, when that happened, who was taking responsibility for your other two children that you had prior to having that daughter with [W]?” The defendant’s attorney objected on the ground that the question exceeded the scope of direct examination because, on direct examination, the defendant had not testified about these other children. The prosecutor replied: “Well, that’s my point. I was getting into his willingness to take responsibility for children . . . as being the motive for moving in.” The court overruled the objection. The defendant testified that he had a third child outside of his relationship with W, in Peru, and that he provided financial support to all of his three children who were living in Peru.

Later, during questioning about the defendant’s finances, the prosecutor asked the defendant: “The mother of your other children didn’t work and have any income; correct?” The defendant’s attorney objected to the inquiry but did not set forth a ground for the objection before the court precluded reference “to the mother of his other children.”

The state inquired into the defendant’s financial obligations to his children in Peru. The prosecutor asked: “[From] [w]hich checking account or bankbook did you write the checks out for those payments to Peru?” The defendant’s attorney objected to the inquiry on the ground that “[t]here is absolutely nothing in the direct [examination] regarding him writing checks to anyone in Peru” and on the ground that the inquiry lacked a proper foundation in the evidence. The defendant’s attorney stated: “Your Honor, on direct I asked absolutely nothing about his family, money being sent to children in Peru. I never even mentioned that he had children in Peru.” The court, noting that the defendant had testified about his family responsibilities and his personal finances, overruled the objection.

In response to additional questioning by the prosecutor regarding the payments that the defendant made to support his children in Peru, the defendant testified that, immediately after he moved to the United States, he began sending support payments to Peru through “a company” and that W was aware of these payments. On the ground that it went beyond the scope of the direct examination, the defendant’s attorney objected to an inquiry about the defendant borrowing money from an employer, presumably to send to Peru. The court ruled that the inquiry was “[n]ot going fax afield,” but that the prosecutor adequately had covered the matter. Thereafter, the court precluded further inquiry into the amount of the payments to Peru and how frequently they were made.

The prosecutor did not refer to evidence of this nature in his closing argument. During the defendant’s closing argument, the defendant’s attorney argued that the inquiry concerning the defendant’s support of children in Peru was nothing more than an attempt to attack the defendant’s character on the ground that he has five children with two different women, and that he left three of those children behind, in Peru, when he moved to the United States. The defendant’s attorney suggested that the defendant’s decision to provide financial support to his children was a positive trait. Responding to this argument, the prosecutor, during rebuttal argument, stated that the point of the inquiry was to bolster W’s testimony that the defendant had a history of acting unilaterally and secretively in terms of running the family and making decisions, and that this trait carried over to his secretive and assaultive conduct toward the victim.

On appeal, the defendant claims that the inquiries discussed previously were not relevant to any issue before the jury, elicited unduly prejudicial testimony and were beyond the scope of the defendant’s direct examination. “Our standard of review is well established. Unless an evidentiary ruling involves a clear misconception of the law, the [t]rial court has broad discretion in ruling on the admissibility ... of evidence. . . . The trial court’s ruling on evidentiary matters will be overturned only upon a showing of a clear abuse of the court’s discretion. . . . We will make every reasonable presumption in favor of upholding the trial court’s ruling .... Moreover, evidentiary rulings will be overturned on appeal only where there was an abuse of discretion and a showing by the defendant of substantial prejudice or injustice.” (Citation omitted; internal quotation marks omitted.) Corbett v. Commissioner of Correction, 133 Conn. App. 310, 318, 34 A.3d 1046 (2012).

Preliminarily in our analysis of the claim, we observe that, although the defendant’s attorney raised objections to the challenged inquiries at trial, the objections were made on the grounds that the inquiries were beyond the scope of the direct examination and that they lacked an adequate foundation in the evidence. The defendant’s attorney did not distinctly raise any objection on the grounds of relevance or undue prejudice at the time of trial. Accordingly, we decline to address these aspects of the present claim, which are raised for the first time on appeal. “[T]he standard for the preservation of a claim alleging an improper eviden-tiary ruling at trial is well settled. This court is not bound to consider claims of law not made at the trial. ... In order to preserve an evidentiary ruling for review, trial counsel must object properly. ... In objecting to evidence, counsel must properly articulate the basis of the objection so as to apprise the trial court of the precise nature of the objection and its real purpose, in order to form an adequate basis for a reviewable ruling. . . . Once counsel states the authority and ground of [the] objection, any appeal will be limited to the ground asserted. . . .

“These requirements are not simply formalities. They serve to alert the trial court to potential error while there is still time for the court to act. . . . Assigning error to a court’s evidentiary rulings on the basis of objections never raised at trial unfairly subjects the court and the opposing party to trial by ambush.” (Internal quotation marks omitted.) State v. Calabrese, 279 Conn. 393, 408 n.18, 902 A.2d 1044 (2006).

In summary fashion, the defendant requests that this court review any inadequately preserved aspects of his claim under the plain error doctrine; Practice Book § 60-6; or under the doctrine set forth in State v. Golding, 213 Corm. 233, 239-40, 567 A.2d 823 (1989). The aspects of the claim involving relevance and undue prejudice are not reviewable under Golding because the unpreserved issues are evidentiary, not constitutional in nature. The defendant merely asserts that the issues are of constitutional magnitude because “[t]he convictions in this case implicate the defendant’s presumption of innocence and fair trial rights . . . .” This type of reasoning effectively would transmute every evidentiary ruling in a criminal prosecution into a ruling of constitutional magnitude. “The defendant bears the responsibility of demonstrating that his claim is indeed a violation of a fundamental constitutional right. . . . The defendant cannot raise a constitutional claim by attaching a constitutional label to a purely evidentiary claim or by asserting merely that a strained connection exists between the evidentiary claim and a fundamental constitutional right. ; . . Generally, the admissibility of evidence is a matter of state law and unless there is a resultant denial of fundamental fairness or the denial of a specific constitutional right, no constitutional issue is involved.” (Citations omitted; internal quotation marks omitted.) State v. Wells, 111 Conn. App. 84, 90, 957 A.2d 557, cert. denied, 289 Corm. 958, 961 A.2d 423 (2008). Furthermore, the defendant has not demonstrated that plain error exists with regard to these unpreserved evidentiary claims.

Having determined that the claim properly before us relates to the court’s determination that the inquiries about the defendant’s care for his children in Peru did not relate to matters outside the scope of the defendant’s direct examination, we observe that “[although cross-examination is restricted to the matters covered in direct examination, except insofar as the cross-examination relates to credibility . . . such restriction rests in the trial court’s sound discretion. ... A question on cross-examination is within the scope of the direct examination if it is designed to rebut, impeach, modify, or explain any of the defendant’s direct testimony. . . . In determining whether cross-examination is within the scope of the direct examination, the trial court is allowed a liberal discretion . . . .” (Citations omitted; internal quotation marks omitted.) State v. Scott, 11 Conn. App. 102, 107, 525 A.2d 1364, cert. denied, 204 Conn. 811, 528 A.2d 1157 (1987).

Having carefully reviewed the defendant’s examination and cross-examination, we are not persuaded that the inquiry into the defendant’s care for his children in Peru exceeded the scope of his direct examination. The direct examination encompassed the defendant’s employment and financial obligations during his relationship with W, and it elicited evidence that the defendant’s life decisions and employment were motivated in part by his concern for W, his children with W and the victim. The defendant, through his testimony, portrayed himself as a person deeply committed to the well-being of his family. The state’s inquiry obviously related to the defendant’s financial obligations during his relationship with W, as well as his commitment to providing for all of his children. On this record, we do not conclude that the court abused its broad discretion in permitting the inquiry as being within the scope of the direct examination. Furthermore, to the extent that the inquiry had a tendency to impeach the defendant’s testimony concerning his financial obligations during his relationship with W and his concern for his children, the inquiry was proper because it directly related to the jury’s assessment of the defendant’s credibility.

The judgment is affirmed.

In this opinion the other judges concurred.

       The trial court imposed a total effective sentence of thirty years incarceration.

       At trial, the defendant testified, in relevant part, that he had sexual intercourse with the victim on nearly a daily basis after she became sixteen years old. He testified that the victim initiated the relationship and that the victim falsely accused him of sexual assault because she sought attention and was upset with his decision to end the relationship.

       See Miranda v. Arizona, 384 U.S. 436, 478-79, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).

       The defendant argues that, insofar as his statements were obtained in violation of his right against self-incrimination, a violation of his federal and state constitutional rights occurred. Beyond alleging a violation of his rights under article first, § 8, of the Connecticut constitution, however, the defendant has not provided this court with an independent analysis under our state constitution. For this reason, we will confine our analysis of the claim to the federal constitution. See, e.g., State v. Benton, 304 Conn. 838, 843 n.3, 43 A.3d 619 (2012).

       The defendant also asserts that his inculpatory statements were the fruit of an illegal arrest. We do not address this aspect of the claim because it is unaccompanied by any analysis.


author: LAVINE, J.

text:
    STATE OF CONNECTICUT v. GENDER RAMOS GREGORIO
    (AC 32441)
    Lavine, Robinson and Pellegrino, Js.

      Argued April 18 —
    officially released July 24, 2012

      Susan M. Hankins, for the appellant (defendant).

      Bruce R. Lockwood, senior assistant state’s attorney, with .whom, on the brief, were Stephen J. Sedensky III, state’s attorney, and David Holzbach, senior assistant state’s attorney, for the appellee (state).
   Opinion

LAVINE, J.

“The imposition of an appropriate sentence is the function of the court regardless of the bargain of the parties. Plea agreements stem from the desire of the state to obtain a prompt disposition of criminal charges with the certainty of conviction, and from the agreement of the defendant to exchange his constitutional right to a trial, with all of its constitutional safeguards, for the certainty of a known and reduced penalty. The defendant is engaged in barter for the length of his incarceration. . . . The term of imprisonment is a defendant’s ‘bottom line’ and his paramount interest. The length of time a defendant must spend incarcerated is clearly crucial to a decision involving whether he should plead guilty. . . . When the defendant’s reasonable expectation that his sentence will not exceed a particular term is to be defeated because of the trial court’s decision, in the proper exercise of its discretion, that a sentence in excess of an agreed term is appropriate, the defendant must be given the opportunity by the trial court to withdraw his plea.” (Citations omitted.) State v. Schaeffer, 5 Conn. App. 378, 390-91, 498 A.2d 134 (1985). When a defendant is permitted to withdraw his plea under such circumstances, he is “returned to precisely the same position he had occupied before entering the plea.” State v. Thomas, 296 Conn. 375, 396, 995 A.2d 65 (2010).

In this interlocutory appeal, the defendant, Gender Ramos Gregorio, appeals from the trial court’s denial of his motion to dismiss the charges pending against him after the court declined to sentence him pursuant to a plea agreement under which he would serve no time in prison (no jail plea). On appeal, the defendant claims that the court violated (1) his constitutional rights to due process and the protection against double jeopardy and (2) Practice Book § 39-9 when it failed to sentence him in accordance with the no jail plea agreement and denied his motion to dismiss the charges against him. The defendant’s claims are controlled by our Supreme Court’s decision in State v. Thomas, supra, 296 Conn. 375. We affirm the judgment of the trial court.

The record discloses the following relevant facts and procedural history. At the defendant’s plea hearing, the prosecutor made the following representation of facts to the court, Matasavage, J. At approximately 3:42 a.m. on July 13, 2008, Danbury police officers were dispatched to the intersection of Balmforth Avenue and North Street in response to a report of a hit and run motor vehicle accident. When they arrived at the scene, the officers found a motorcyclist, Christopher Grasso, suffering from serious injuries. Another motorcyclist, Robert Prescott, informed the officers that he and Grasso were traveling in the left lane of Balmforth Avenue when a Volkswagen traveling in the right lane passed them at a high rate of speed. The Volkswagen continued until it reached the intersection of North Street. When the Volkswagen reached the intersection and began to turn right, Grasso’s motorcycle came in contact with the left side of the Volkswagen. Grasso was thrown seventy feet from the point of contact, and the operator of the Volkswagen left the scene without stopping.

Lawrence Anderson witnessed the incident. He informed the officers that he saw the Volkswagen fishtail into one of the motorcycles for no apparent reason.

The police officers broadcast information about the Volkswagen to other police departments, and Grasso’s friends used the Internet to disseminate a description of the vehicle. One of Grasso’s friends saw a vehicle matching the description of the Volkswagen with damage to the rear quarter panel in Bethel. Approximately eight hours after the collision, Bethel police officers confronted the owner of the Volkswagen. The owner provided no information to the officers until he was informed that he was going to be arrested. The owner then informed the police that the defendant had been operating his Volkswagen the night before. The defendant came forward, and the police took him into custody.

The defendant was charged with assault in the first degree in violation of General Statutes § 53a-59, evading responsibility in an accident causing serious physical injury in violation of General Statutes § 14-224 (a), reckless driving in violation of General Statutes § 14-222 and operating a motor vehicle without an operator’s license in violation of General Statutes § 14-36 (a). The defendant entered pro forma not guilty pleas to all charges.

The case was continued many times and pretried on more than one occasion before the court, Reynolds, J. As a result of the plea negotiations, the state offered to let the defendant plead guilty to evading responsibility in an accident involving serious injuries in return for a sentence of ten years in prison, suspended after two years served, and five years of probation. Judge Reynolds indicated that she would not require “jail time” and would impose a suspended sentence. The matter was continued for a plea hearing. Judge Reynolds, however, was unavailable to take the defendant’s plea of nolo contendere, so the defendant appeared before Judge Matasavage on July 17, 2009. After canvassing the defendant and finding that his plea of nolo contendere was made knowingly and understandably with the assistance of competent counsel, Judge Mata-savage ordered a presentence investigation and continued the matter for sentencing before Judge Reynolds.

The defendant appeared before Judge Reynolds for sentencing on October 2, 2009. At that time, the court had reviewed the presentence investigation report and found aggravating circumstances that she had not known of, or fully appreciated, previously. Judge Reynolds stated in part: “[T]he [presentence investigation report] has revealed to me facts that either I misunderstood or that I did not have at the time that I made the offer.” (Emphasis added.) Due to the new information in the report, the court withdrew the no jail plea offer. The court extended a new plea offer of ten years in prison, execution suspended after six months, and five years of probation (six month plea). The court continued the case, affording the defendant an opportunity to consider whether to accept the six month plea offer or to withdraw his plea of nolo contendere.

On March 10, 2010, defense counsel informed Judge Reynolds that the defendant would neither accept the court’s six month plea offer nor would he withdraw his plea of nolo contendere. Thereafter, the court withdrew its six month plea offer, vacated the defendant’s plea of nolo contendere, reinstated his not guilty pleas and placed the matter back on the juiy trial docket. The defendant then filed a motion to dismiss the charges against him, claiming that the court had violated his constitutional rights to due process and protection against double jeopardy. The court denied the motion to dismiss in an oral decision on May 21, 2010, citing State v. Thomas, supra, 296 Conn. 376, as the controlling authority. The defendant appealed. Additional facts will be set forth as necessary.

I

As a preliminary matter, because the defendant is appealing from the denial of a motion to dismiss, which ordinarily is not reviewable; see, e.g., State v. Jutras, 121 Conn. App. 756, 756-57, 996 A.2d 1212, cert. denied, 298 Conn. 917, 4 A.3d 1230 (2010); we must determine whether the appeal is properly before us. See State v. Curcio, 191 Conn. 27, 31, 463 A.2d 566 (1983) (judgment in criminal matter ordinarily is imposition of sentence). “It is axiomatic that appellate jurisdiction is limited to final judgments of the trial court. . . . [Tjhere is a small class of cases [however] that meets the test of being effectively unreviewable on appeal from a final judgment and therefore, is subject to interlocutory review. The paradigmatic case in this group involves the right against double jeopardy. . . . Because jeopardy attaches at the commencement of trial, to be vindicated at all, a colorable double jeopardy claim must be addressed by way of interlocutory review. The right not to be tried necessarily falls into the category of rights that can be enjoyed only if vindicated prior to trial, and, consequently, [is reviewable in an interlocutory appeal] . . . .” (Citations omitted; emphasis in original; internal quotation marks omitted.) State v. Crawford, 257 Conn. 769, 774-75, 778 A.2d 947 (2001), cert. denied, 534 U.S. 1138, 122 S. Ct. 1086, 151 L. Ed. 2d 985 (2002)!

In this case, the defendant claims that the court violated the constitutional prohibition against double jeopardy by vacating his guilty plea, scheduling the matter for trial and denying his motion to dismiss. This appeal therefore falls squarely within the small class of claims reviewable in an interlocutory appeal; see State v. Thomas, supra, 296 Conn. 382; and is properly before us.

II

We next set forth the applicable standard of review. “A criminal defendant may raise the defense that a [previous prosecution bar[s] the present prosecution in a motion to dismiss. Practice Book § 41-8 (6).” (Internal quotation marks omitted.) State v. Thomas, supra, 296 Conn. 383. A motion to dismiss effectively challenges the jurisdiction of the court. Id. “The standard of review to determine whether the defendant’s constitutional right against double jeopardy was violated is de novo because it is a question of law. . . . The factual findings of the court that determine that issue, however, will stand unless they are clearly erroneous.” (Citation omitted.) State v. Ellison, 79 Conn. App. 591, 598, 830 A.2d 812, cert. denied, 267 Conn. 901, 838 A.2d 211 (2003).

HI

The defendant states the issue on appeal as “[wjhether the trial court’s failure to sentence [him] in accord with the noncontingent plea agreement, and the trial court’s vacating the defendant’s unconditionally accepted plea, violated [his] rights to due process and protection against double jeopardy, and the provisions of the Connecticut Practice Book, where there was no new, important and previously unavailable information, and where [he] had a reasonable expectation of finality.” (Emphasis added.) In State v. Thomas, supra, 296 Conn. 377, our Supreme Court considered “whether the double jeopardy clause of the fifth amendment to the United States constitution bars a trial court from vacating a previously accepted guilty plea if the court later determines, on the basis of new information uncovered during the presentence investigation, that the sentence contemplated by the plea agreement is inappropriate.” In stating the issue here, the defendant attempts to distinguish his case from Thomas by claiming that his plea of nolo contendere was noncontingent and that the court accepted his plea unconditionally. We disagree.

Although the plea hearing facts in State v. Thomas, supra, 296 Conn. 377-81, are somewhat different from those of the plea hearing in this case, the same legal principles apply. We conclude that the factual differences between the two plea hearings do not lead to a different conclusion with regard to the defendant’s constitutional rights. Neither plea agreement was non-contingent, and neither plea was unconditionally accepted. Here, as in Thomas, sentencing was subject to a presentence investigation; see General Statutes § 54-91a (a); Practice Book § 43-10; and to Grasso’s right under the constitution of Connecticut to meaningfully participate in sentencing. See Conn. Const., amend. XXIX. A trial court is not duty bound to impose a sentence dictated by a plea agreement if a presentence investigation discloses new information. State v. Thomas, supra, 388, 393-94. When the court declined to impose the no jail plea agreement on the basis of the presentence investigation, it properly offered to let the defendant withdraw his plea. See id., 389.

In deciding Thomas, our Supreme Court noted that “[t]he United States Supreme Court has yet to decide when jeopardy attaches in a case disposed of by a guilty plea, although it has assumed that jeopardy attaches at least by the time of sentencing on the plea. ... In the absence of definitive guidance from the United States Supreme Court, federal and state courts have split on the question. . . .

“Courts have focused on the following four considerations when deciding the point at which jeopardy attaches to a guilty plea: (1) whether the court has accepted the defendant’s guilty plea; (2) whether the court has rendered judgment and sentenced the defendant; (3) whether the court’s acceptance of the plea was conditional; and (4) whether the circumstances surrounding the court’s acceptance of the plea implicate the policy concerns underlying the double jeopardy protection. The first two considerations focus on specific points in the judicial process.” (Citations omitted.) Id., 384-86. “The last two considerations focus on the nature of the court’s acceptance of a guilty plea.” Id., 386. “The competing methods for determining when jeopardy attaches to a guilty plea are distinguished primarily by the degree to which the reviewing courts equate a guilty plea to a conviction.” Id., 387.

The relevant facts of Thomas follow. Dereck Thomas was a forty-seven year old man who engaged in sexual intercourse with a teenage girl and was charged with four counts of sexual assault in the second degree and four counts of risk of injury to a child. Id., 377-78. Following plea negotiations, the state recommended a sentence of ten years imprisonment, suspended after five years served. The court, Rubinow, J., indicated that it would impose a sentence of five years imprisonment, suspended after one year served, and ten years of probation. Id., 378. Subsequently, Thomas pleaded guilty to one count of sexual assault in the second degree and one count of risk of injury to a child; the state agreed to nolle the remaining six charges at the time Thomas was sentenced. Id.

During the plea canvass, Judge Rubinow stated: “ ‘[T]he sentence [I would] likely impose [would] be five years in jail suspended after you serve one full year in jail, but that the victim’s position may affect the court so that you do the minimum mandatory nine months instead of the potential maximum sentence.’ . . . The court further emphasized that ‘any credit against that one year would be based upon whether or not the victim was willing to make an appropriate statement to the court, as there have been great inconsistencies between the state’s understanding of the victim’s position and the position that was identified by the public defender.’ ” (Emphasis in original.) Id., 378-79. Judge Rubinow ordered a presentence investigation at the defendant’s request. Id., 379.

Thomas’ presentence investigation revealed new and important information that was not available to the court at the time Thomas pleaded. Specifically, Thomas had provided the victim with alcohol prior to engaging in sexual relations with her, the victim had attempted suicide and engaged in self-mutilation in the months following the sexual assaults, and the victim thought Thomas should go to jail for a long time. Id. On the basis of the new information, the state’s view of Thomas’ culpability was not commensurate with a sentence including one year to serve. Id. The court offered to permit Thomas to withdraw his plea and continued the matter to permit the victim to testify. Id., 380. The victim’s testimony was consistent with the presentence investigation. She also testified that she had been hospitalized for one year and that “the letters she wrote to [Thomas], which the trial court had considered during the plea negotiations, did not represent the full extent of her ‘mixed emotions about the whole situation.’ ” Id. The victim also stated that she believed Thomas should be imprisoned for ten years. Id. “In light of the new information presented through the presentence investigation report and the victim’s testimony, [Judge Rubinow] ultimately declined to impose the sentence contemplated in the plea agreement, vacated [Thomas’] guilty plea, noted pro forma pleas of not guilty on his behalf, and placed the matter on the trial list.” Id. Our Supreme Court concluded that “[b]ecause this case does not meaningfully implicate any policy considerations underlying the double jeopardy clause, we hold that jeopardy did not attach to the trial court’s conditional acceptance of [Thomas’] plea.” Id., 397.

In the case before us, the defendant appeared before Judge Matasavage for a plea hearing on July 17, 2009. The prosecutor made the following representation to the court: “Judge Reynolds has indicated that she will impose a sentence of ten years, execution completely suspended and five years of probation. That information has been conveyed to [Grasso] and his family. They will address Judge Reynolds ... at the sentencing time when the [presentence investigation] has been presented.” After Judge Matasavage accepted the defendant’s plea, he ordered a presentence investigation.

The defendant appeared for sentencing before Judge Reynolds on October 2, 2009. The court, however, continued the matter, stating to the defendant: “I want you to understand . . . this is not the fault of your attorney at all. I informed him today when he came that after a thorough review of this presentence investigation, I’m not inclined to stand by the offer that I had made to [you], in good faith, and that your [counsel] conveyed to you. And, I apologize, also, to the state’s attorney. I have made a new offer to your attorney that you’ll have to consider, take his advice on whether you want to accept that offer or not, but the [presentence investigation] has revealed to me facts that either I misunderstood or that I did not have at the time that I made the offer to your attorney. ... I made the offer to your attorney based on what I understood at the time; no fault to either counsel for withholding things . . . from me. [Your attorney] conveyed that offer to you, and you were willing to accept it. But, I can’t go forward with it after what I’ve read in the [presentence investigation report]. So, I am giving your attorney time to investigate those things that concern me as a result of the [presen-tence investigation] . . . .” (Emphasis added.)

On March 10, 2010, the defendant again appeared before Judge Reynolds for sentencing. The court summarized the pretrial negotiations and the state’s sentencing request and stated that although Judge Matasavage may have accepted the defendant’s plea, he had not been involved at all in the negotiations. Judge Reynolds also stated: “[A presentence investigation] was ordered, as is always ordered to aid the court in sentencing, to give the court information that it’s not aware of. And I read the [presentence investigation report], and as a result of the [presentence investigation], there were matters that greatly concerned me. My impression of the accident, itself, was that everybody was stopped at a stop sign. When [the defendant] started up his car, he fishtailed and that’s what hit one of the motorcycles that was following him, [Grasso’s] motorcycle. Apparently, that’s not true. According to a witness, [the defendant] was swerving left and right, and even he says that he swerved in trying to keep the motorcycles from passing him. Also, I was told, the reason he was driving, even though he had no license, was that he found himself at a party and his cousin, who owned the car, had too much to drink and couldn’t drive home. So that’s the only reason that he drove the car home. According to the [presentence investigation report], [the defendant] even though he has no license, drives quite often. Drives to work. Drives home whenever he feels he has to. But he’s been driving, although he’s never had a valid Connecticut driver’s license. He drives once or twice a month for other reasons, in the [presentence investigation report].

“When counsel came in for sentencing, I indicated that I had to take back my offer of a totally suspended sentence and probation. That I now felt that [the defendant] had to spend at least six months in jail. ... I felt I needed some jail time as a result of the [presentence investigation], which is the whole intention of a [presen-tence investigation] in the first place. It’s a presentence report to give the court further information about the defendant.” In addition, the prosecutor represented to the court that Grasso was not happy with the plea agreement offered the defendant. The court afforded the defendant the opportunity to accept a plea offer of ten years imprisonment, suspended after six months served, and five years of probation. When the defendant rejected the court’s six month plea offer, the court withdrew all plea offers, vacated the defendant’s plea of nolo contendere and placed the case back on the jury trial docket.

The defendant argues that this case is unlike Thomas in that Judge Rubinow told Thomas the sentence it “ ‘likely’ ” would impose and that the “ ‘victim’s position may affect the court.’ ” State v. Thomas, supra, 296 Conn. 378. The defendant is correct that Judge Matasa-vage did not inform him that the court’s sentence could be influenced by the results of the presentence investigation. The defendant therefore contends that his plea agreement was noncontingent and the court accepted his plea unconditionally. The decision in State v. Thomas, supra, 375, reminds us, however, that the trial court lacks the authority to accept unconditionally a guilty plea; id., 388; pursuant to Practice Book § 43-10. Moreover, the trial court may withdraw a plea offer on the basis of new information “uncovered by a presen-tence investigation report, impose a harsher sentence and give the defendant the option of withdrawing his plea.” Id., 394. That is exactly what happened in this case.

The defendant grounds his claim of a noncontingent plea agreement and unconditionally accepted plea in Practice Book § 39-9, which is found in chapter 39 of the rules of practice, entitled “[criminal] disposition without trial.” Section 39-9 provides, if after acceptance of a plea agreement, “the case is continued for sentencing, the judicial authority shall inform the defendant that a different sentence from that embodied in the plea agreement may be imposed on the receipt of new information or on sentencing by another judicial authority, but that if such a sentence is imposed, the defendant will be allowed to withdraw his . . . plea in accordance with Sections 39-26 through 39-28.” Although we agree that Judge Matasavage should have informed the defendant that a different sentence could be imposed following the court’s receipt of the presentence investigation report, his failure to so inform the defendant did not bar Judge Reynolds from deciding that the no jail plea agreement was inappropriate given the new information she perceived to be in the presentence investigation report. Judge Reynolds appropriately gave the defendant the option of accepting a new plea agreement or withdrawing his plea of nolo contendere. Ultimately, the court vacated the defendant’s nolo contendere plea and returned the matter to the jury trial docket, which is the remedy prescribed by Practice Book § 43-10.

This is not the first time this court has considered a case in which the trial court accepted a guilty plea but neglected to inform the accused that he could withdraw his guilty plea if he was not sentenced in accord with a recommended sentence. See State v. Schaeffer, supra, 5 Conn. App. 380. In. Schaeffer, this court stated: “[D]ur-ing the course of the plea taking, [Michael V. Schaeffer] was not told by the court in accordance with Practice Book § 697 [now § 39-9] that since his case was being continued for sentencing, he might be sentenced by another judicial authority who might impose a different sentence from that which was the subject of the plea agreement, and, if so, that he would be allowed to withdraw his plea in accordance with [the rules of practice]. The failure to do so was a violation of the rules of practice and [Schaeffer’s] constitutional rights. When a case is continued for the preparation of a presentence investigation report and the court is aware of the sentence recommendation but does not indicate its unwillingness to follow it, the court is implicitly indicating that, although it is not bound by the recommendation, it will probably be accepted. At the time of the acceptance of a guilty plea where a presentence investigation report is necessary, there can be no unconditional promise of the court that a particular sentence will be imposed because that would violate the statutory mandate for such a report and public policy. Any bargain of the parties must be contingent upon its acceptance by the court after its review of the presen-tence investigation report. There is a difference between the entitlement of a defendant to a particular sentence and the expectation of the defendant that the trial court will follow the recommendation for a particular sentence.” (Emphasis added.) Id., 387.

Our Supreme Court has stated that “as a matter of Connecticut law, the trial court’s acceptance of the defendant’s guilty plea was conditioned upon the results of the presentence investigation.” (Emphasis in original.) State v. Thomas, supra, 296 Conn. 388. “Modem precepts of penology require that discretion of a sentencing judge to impose a just and appropriate sentence remain unfettered throughout the sentencing proceedings. Where a presentence investigation report is statutorily mandated, a judge cannot make any promise or determination of the sentence he will impose before he has reviewed the report. . . . Moreover, [u]ntil sentence is pronounced, the trial court maintains power to impose any sentence authorized by law; and, though the sentencing judge may be conscience-bound to perform his own prior agreements with counsel and the parties, the court is not in law bound to impose a sentence that once seemed, but no longer seems, just and appropriate. ... In those circumstances in which the judge cannot in conscience impose the sentence conditionally promised, it has been uniformly recognized that the only obligation he has is to grant the defendant the opportunity to withdraw his guilty plea. . . . State v. DeJesus, 10 Conn. App. 591, 603-604, 524 A.2d 1156 (1987). Therefore, once the trial court ordered the presentence investigation, the trial court’s acceptance of the defendant’s plea agreement necessarily became contingent upon the results of the presentence investigation report. Otherwise, the presentence investigation report would be little more than a nullity, and our law makes clear that these reports are to play a significant role in reaching a fair sentence. Simply put, any plea agreement must be contingent upon its acceptance by the court after [the court’s] review of the presentence investigation report. State v. Schaeffer, [supra, 5 Conn. App. 387].” (Emphasis in original; internal quotation marks omitted.) State v. Thomas, supra, 296 Conn. 388-89.

Moreover, pursuant to our state constitution, in addition to a presentence investigation, “the court must provide an opportunity for the victim to meaningfully participate in the defendant’s sentencing.” Id., 389. As in the case of a presentence investigation, “when the victim chooses to make a statement, acceptance of a guilty plea must be contingent upon hearing from the victim in order to provide the victim with a meaningful right to participate in the plea bargaining process.” Id., 390-91.

Here, as in Thomas, the pretrial investigation revealed information that the court perceived to be new and important. Even though the defendant claims that the mechanics of the collision were discussed during several pretrials, Judge Reynolds stated that the presen-tence investigation report revealed facts that she either misunderstood or did not have with regard to how the Volkswagen and the motorcycle came in contact. As noted, the investigation revealed that the defendant had operated motor vehicles without a license not just on the night in question but routinely. Also, the presen-tence investigation report indicated that Grasso was not happy with the no jail plea agreement and sought to address the court at the time of sentencing.

After comparing the facts of this case with those in Thomas and reviewing our Supreme Court’s decision in Thomas, our state constitution, statutes and the rules of practice, we cannot conclude that the defendant’s plea of nolo contendere was noncontingent and that Judge Matasavage accepted it unconditionally.

A

The defendant claims that the nature of the no jail plea agreement gave him an expectation of finality. We disagree that any subjective expectations that the defendant may have had prevented the court from acting as it did in this case.

Our Supreme Court has stated that “the acceptance of a guilty plea is legally different from a conviction based on a jury’s verdict, and, therefore, that jeopardy does not necessarily attach automatically upon the acceptance of a guilty plea as it does to an actual judgment of conviction. . . . This is particularly so when . . . the trial court’s acceptance of the guilty plea is conditional. . . .

“In our view, the acceptance of a defendant’s guilty plea should not trigger double jeopardy protection unless the facts and circumstances surrounding the guilty plea implicate the policy considerations underlying the double jeopardy clause.” (Citations omitted; internal quotation marks omitted.) Id., 392. An appellate court “must consider the defendant’s double jeopardy claim in light of the twin aims of the double jeopardy clause — protecting a defendant’s finality interest and preventing prosecutorial overreaching.” Id., 392-93.

The key factors used to determine whether the acceptance of “a defendant’s plea gave him an expectation of finality sufficient to trigger double jeopardy protection”; id., 393; “include the nature of the plea agreement and the degree to which the trial court’s acceptance was equivocal or contingent on the introduction of new information.” Id. The defendant claims that, because Judge Matasavage failed to comply with Practice Book § 39-9, his nolo contendere plea was accepted unconditionally. He also claims that the information in the pre-sentence investigation report was not new or sufficiently important to satisfy the standards enunciated in Thomas and required by our rules of practice and due process. We do not agree.

In this case, Judge Matasavage accepted the defendant’s plea of nolo contendere and continued the matter for a presentence investigation and sentencing. Under those same procedural circumstances in Thomas, our Supreme Court concluded that the circumstances “clearly indicated that the case had not concluded.” Id. In accordance with the analysis in Thomas-, id.; Judge Matasavage lacked authority to accept unconditionally the defendant’s plea under our rules of practice; see Practice Book § 43-10; and statutes. See General Statutes § 54-9 la. The defendant knew a presentence investigation had been ordered and that Grasso, who was seriously injured, wanted to exercise his constitutional right to have input as to sentencing. Moreover, the rules of practice permit a court to abandon a previously accepted plea agreement due to the presentation of new information uncovered by the presentence investigation, to impose a harsher sentence and to give the defendant the option of withdrawing his plea. State v. Thomas, supra, 296 Conn. 393-94. Under those circumstances, the defendant, who Judge Matasavage found was represented by competent counsel, could not have reasonably believed that his plea was noncontingent and that it had been accepted unconditionally as a matter of law. See id., 394-95.

The defendant also contends that the presentence investigation contained no new and important information. When she withdrew her no jail plea offer, Judge Reynolds stated that a presentence investigation “was ordered, as is always ordered to aid the court in sentencing, to give the court information that it’s not aware of. And I read the [presentence investigation report], and as a result of the [presentence investigation], there were matters that greatly concerned me.” The court stated on October 2, 2009, at the time it withdrew the no jail plea offer, that the presentence investigation “revealed to me facts that either I misunderstood or that I did not have at the time I made the offer.” The court later articulated the basis of its position when ruling on the defendant’s motion to dismiss.

On appeal, the defendant argues that police reports, maps, accident reconstruction analysis and medical records were before the court. The defendant’s appellate argument is predicated on his perception not only of the information the court reviewed, but also his perception of what the court knew or should have known about the case after twenty-four continuances and several pretrials. Moreover, the court explained that it does not review the police reports and the state’s file at the time of a pretrial and that the information in the presentence investigation report was new to it. It is not possible for us to know what the court knew or should have known at the time it made the no jail plea offer, particularly in light of the fact that the case was continued twenty-four times and that there were several pretrials. There is no way for this court to know how the court’s perception of the situation changed after it reviewed the presentence investigation report, but there is no reason to doubt the court’s representations. The key is not what documents were before the court, but the court’s understanding of the information provided to it. The court stated: “I don’t think I fully appreciated [the state’s position] until I read the [presentence investigation report].” Given the important role plea bargaining plays in our criminal justice system, courts should not blithely disavow plea offers. But when a presentence investigation report brings significant new information to light, or provides new insights into an offender’s criminal behavior or background, the sentencing judge must be given substantial latitude in determining how to proceed and whether to abrogate any existing understanding.

The state points out that Practice Book § 39-9 provides in relevant part that “the judicial authority shall inform the defendant that a different sentence from that embodied in the plea agreement may be imposed on the receipt of new information . . . .” (Emphasis added.) We apply the rules of statutory construction with equal force to the rules of practice. See State v. Pare, 253 Conn. 611, 622, 766 A.2d 180 (2000). “[A] useful guide to the meaning of statutory language is an identification of the principal audience of that language — that is, by answering the question: To whom is the statute primarily addressed?” State v. Brown, 242 Conn. 389, 406, 699 A.2d 943 (1997). Our plain reading of § 39-9 indicates that the rule is addressed to the judicial authority, or court. In State v. Thomas, supra, 296 Conn. 379, our Supreme Court identified new information as “information that had not been available to the court at the time of the plea negotiations.” The key is not what the defendant thought was new, but what the court was not aware of or did not fully appreciate at the time of the plea negotiations.

At the time of the sentencing scheduled on March 10, 2010, the court stated: “My impression of the accident, itself, was that everybody was stopped at a stop sign. When [the defendant] started up his car, he fishtailed, and that’s what hit . . . [Grasso’s] motorcycle. Apparently, that’s not true. According to a witness, [the defendant] was swerving left and right, and even he says that he swerved in trying to keep the motorcycles from passing him.

“Also, I was told, the reason he was driving, even though he had no license, was that he found himself at a party and his cousin, who owned the car, had too much to drink and couldn’t drive home. So that’s the only reason that he drove the car home. According to the [presentence investigation report, the defendant] even though he has no license, drives quite often. Drives to work. Drives home whenever he feels he has to. But he’s been driving, although he’s never had a valid Connecticut driver’s license. He drives once or twice a month for other reasons . . . .” The court also stated when it ruled on the defendant’s motion to dismiss, that it was not aware of Grasso’s position regarding the no jail plea. On the basis of the court’s articulation of the information it gleaned from the presentence investigation report, we cannot conclude that the information was not new or not important to the court.

B

The defendant’s final claim is that enforcement of the no jail plea agreement is required under the doctrine of manifest necessity. We conclude that the doctrine of manifest necessity does not apply in the present situation.

“[T]he concept of manifest necessity generally arises in the context of a mistrial declared after the commencement of trial and before the verdict . . . .” State v. Thomas, 106 Conn. App. 160, 186, 941 A.2d 394 (Bishop, J., dissenting), cert. denied, 287 Conn. 910, 950 A.2d 1286 (2008). “The primary definition for when manifest necessity justifies declaring a mistrial was articulated by the United States Supreme Court in United States v. Perez, 22 U.S. (9 Wheat.) 579, 580, 6 L. Ed. 165 (1824): [I]n all cases of this nature, the law has invested Courts of justice with the authority to discharge a jury from giving any verdict, whenever, in their opinion, taking all the circumstances into consideration, there is a manifest necessity for the act, or the ends of public justice would otherwise be defeated.” (Internal quotation marks omitted.) State v. Kasprzyk, 255 Conn. 186, 193, 763 A.2d 655 (2001); see Aillon v. Manson, 201 Conn. 675, 681 n.5, 519 A.2d 35 (1986) (deadlocked jury quintessential rationale for manifest necessity in declaring mistrial).

Here, the defendant argues that, in some jurisdictions, abrogation of a plea agreement is treated under the strictures of manifest necessity. See, e.g., State v. Horrocks, 17 P.3d 1145, 1151 (Utah App. 2001). Our Supreme Court has not yet so held. “The double jeopardy clause will bar a second prosecution only if jeopardy attach[ed] in an earlier proceeding. . . . [T]he conclusion that jeopardy attaches . . . expresses a judgment that the constitutional policies underpinning the [f]ifth [ajmendment’s guarantee are implicated at that point in the proceedings. . . . In a jury trial, jeopardy attaches when a jury is empanelled and sworn. ... In a trial before the court, jeopardy attaches when the court begins to hear evidence.” (Citations omitted; internal quotation marks omitted.) State v. Thomas, supra, 296 Conn. 384. As previously addressed, our Supreme Court set out four factors to be taken into consideration when deciding the point at which jeopardy attaches to a guilty plea. Id., 386. “The competing methods for determining when jeopardy attaches to a guilty plea are distinguished primarily by the degree to which the reviewing courts equate a guilty plea to a conviction.” Id., 397. As we determined in part III A of this opinion, the legal circumstances of this case are no different than they were in Thomas-, the court was not permitted to accept the defendant’s guilty plea unconditionally and jeopardy had not attached.

To support his position, the defendant relies on a decision of our Supreme Court involving a plea agreement that is factually distinct from the plea agreement in this case, namely, a plea agreement involving contract principles, not a presentence investigation report. In State v. Rivers, 283 Conn. 713, 931 A.2d 185 (2007), Jonathan Rivers appealed from the denial of his motion to dismiss certain charges against him after the court, Damiani, J., concluded that Rivers had breached his plea agreement. Id., 715. Rivers had agreed to plead guilty to kidnapping in the first degree and assist the state in the prosecution of other individuals who had participated in the murder of the victim. Id., 718. In return for Rivers’ assistance, the state agreed, among other things, to make certain sentencing recommendations to the court. Id. Rivers provided a tape-recorded statement and testified truthfully at the probable cause hearing of Miguel Estrella. Id.

Rivers was released on bond but was subsequently arrested again on unrelated charges. Id., 719. When Rivers was called to testify at Estrella’s trial, he invoked his right against self-incrimination on the advice of counsel. Id. Rivers’ probable cause testimony was introduced at Estrella’s trial and Estrella was convicted. Id. Thereafter, the state declared Rivers’ plea agreement null and void and filed a new information against him. Id. The state claimed that Rivers “had violated, and thereby had vitiated, the agreement when he refused to testify at Estrella’s trial . . . .’’Id. Rivers claimed that his invocation of his constitutional rights did not breach the plea agreement and that the state had gained the benefit of the plea agreement “by virtue of its use of [Rivers’] probable cause hearing testimony at Estrella’s trial.” Id., 720. Rivers sought specific performance of his plea agreement. Id. Our Supreme Court agreed that Rivers upheld his end of the bargain, which benefitted the state, and determined that fairness required that he receive the benefit of his bargain and ordered specific performance of the plea agreement. Id., 734. Rivers is further distinguishable from the case at hand because in Rivers, the state, not the court, reneged on the plea agreement.

For the foregoing reasons, we conclude that the court did not violate the defendant’s constitutional rights to due process and protection against double jeopardy. The court withdrew its plea offer of no jail on the basis of new information in the presentence investigation report, or a new appreciation of information in the report. The court offered the defendant a six month plea offer or the opportunity to withdraw his plea of nolo contendere. The defendant declined both the six month plea offer and to withdraw his plea. By vacating the defendant’s plea of nolo contendere, the court placed the defendant in precisely the same position he was in before entering his plea.

The judgment is affirmed.

In this opinion the other judges concurred.

       In his brief, the defendant claims that because he entered his plea before the decision in State v. Thomas, supra, 296 Conn. 376, was rendered, he “cannot be presumed to be aware of the holding that as a matter of law his plea could not be unconditionally accepted . . . We reject that argument. In deciding Thomas, our Supreme Court relied on our statutes, rules of practice, as well as cases from this court holding that when a case is continued for a presentence investigation, the defendant’s plea is conditional. The defendant, who was represented by counsel, was on notice of our rules of practice and statutes regarding plea agreements and presen-tence investigations.

       The prosecutor represented to Judge Matasavage that Grasso had sustained significant injuries, including multiple broken bones, loss of skin and damage to his spleen and brain.

       We have no transcript of a proceeding in which Judge Reynolds made the no jail plea offer.

       On November 4,2009, the defendant filed a motion to correct the presen-tence investigation report. In his motion, the defendant contended that the presentence investigation report incorrectly stated that he had conversed with law enforcement, given a statement and made admissions. The defendant contended that the statements and admissions attributed to him were erroneous. Judge Reynolds denied the motion on May 21, 2010.

       On November 9, 2010, the defendant filed a motion for specific performance of the plea agreement. The court implicitly denied the motion for specific performance by withdrawing the plea offer and vacating the defendant’s plea of nolo contendere. The defendant included the denial of his request for specific performance in the statement of the issues on appeal. The parties were ordered to appear at this court’s own motion calendar to give reasons why, if any, that claim should not be dismissed for lack of a final judgment. Thereafter, pursuant to State v. Curcio, 191 Conn. 27, 31, 463 A.2d 666 (1983), this court dismissed the defendant’s claim regarding specific performance for lack of a final judgment.

       The defendant has argued that the standard of review regarding interpretations of plea agreements is de novo in accordance with the principles of contract law pursuant to decisions of the federal courts. Our Supreme Court has decided otherwise. See State v. Thomas, supra, 296 Conn. 384-86.

       The defendant claims the court violated his rights under the United States constitution and the constitution of Connecticut, but he acknowledges that our state constitution provides no greater rights with regard to double jeopardy than the federal constitution. See State v. Michael J., 274 Conn. 321, 350, 875 A.2d 510 (2005).

       The transcript also reveals that the defendant’s sentencing was scheduled at a time convenient to Grasso and that Judge Matasavage further extended the date of sentencing to ensure that the presentence investigation report would be available for Judge Reynolds’ review.

       The case was continued twenty-four times and pretried several times.

       Practice Book § 43-10 provides in relevant part: “Before imposing a sentence or making any other disposition after the acceptance of a plea of . . . nolo contendere . . . the judicial authority shall, upon the date previously determined for sentencing, conduct a sentence 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 ... or any other document relied upon by the judicial authority in imposing sentence. . . .
      “(2) The judicial authority shall allow the victim and any other person directly harmed by the commission of the crime a reasonable opportunity to make, orally or in writing, a statement with regard to the sentence to be imposed. . . .”

       See General Statutes § 54-91a (a), which provides in relevant part: “No defendant convicted of a crime . . . the punishment for which may include imprisonment for more than one year, may be sentenced, or the defendant’s case otherwise disposed of, until a written report of investigation by a probation officer has been presented to and considered by the court, if the defendant is so convicted for the first time in this state; but any court may, in its discretion, order a presentence investigation for a defendant convicted of any crime or offense . . . .”

       At oral argument on the defendant’s motion to dismiss, defense counsel acknowledged that there was no prosecutorial overreaching in this case. We therefore do not consider it.

       In addition, the transcript of the plea hearing, trial court docket sheet and the request for a presentence investigation indicate that the defendant had the right to argue for a lesser sentence at the time of sentencing.

       At the time the court ruled on the defendant’s motion to dismiss, it stated: “I will, once again, reiterate for the record, this matter has been progressing through this court since July 18, 2008. It has had twenty-four continuances. In the course of those twenty-four continuances, I don’t believe I ever read a police report that’s in the state’s file. I do not read the police report out of the state’s file unless I have a reason to.
      “If [the defendant] made the same statements that were in the [presentence investigation report] — if he made them in the police report — when I read the [presentence investigation report], it was the first time I was aware of them. It was also the first time I was aware of other facts that came out in the [presentence investigation] that I was not aware of during the pretrial conferences, for whatever reason.
      “I also wasn’t aware — I knew the witness’ — the complainant’s position. Perhaps I wasn’t aware of the witness’ position that the state, certainly, tried to convey to me — the strength of the witness’ position — but I don’t think I fully appreciated it until I read the [presentence investigation report]. . . .

      “Based on State v. Dereck Thomas and other research that I have done on this, I am going to deny the motion to dismiss. We have restored [the defendant’s] not guilty pleas. He is back in the same position he was in before his pleas were entered.” (Emphasis added.)

       The documents that Judge Reynolds may or may not have reviewed during the several pretrials are not before us. The defendant filed a motion for articulation and rectification, which the trial court denied, and a motion for review, which this court granted but denied the relief requested. Those documents are not necessary for our review of the claims on appeal.