author: BEAR, J.

text:
    LOCALS 2863, 3042, 1303-052 AND 1303-115, COUNCIL 4, AFSCME, AFL-CIO v. TOWN OF HAMDEN ET AL.
    (AC 31751)
    Harper, Bear and Pellegrino, Js.
    Argued February 9 —
    officially released May 17, 2011

      J. William Gagne, Jr., for the appellants (plaintiffs).

      JaradM. Lucan, with whom, on the brief, was Christopher M. Hodgson, for the appellee (named defendant).

      Karen K. Buffkin, general counsel, with whom, on the brief, was Alexandra M. Gross, assistant general counsel, for the appellee (defendant state board of labor relations).
   Opinion

BEAR, J.

The plaintiffs, locals of Council 4, American Federation of State, County and Municipal Employees (union), appeal from the judgment of the trial court affirming the decision of the defendant state board of labor relations (board) dismissing complaints brought by the union against the defendant town of Hamden (town). The union claims that the town violated General Statutes § 7-467 et seq. of the Municipal Employee Relations Act (act); General Statutes § 7-460 et seq.; by refusing to pay retroactive wages to former employees who had been union members. The union argues that the trial court erred in holding that the union’s former members were not “employees,” as defined in the act, and affirming the board’s finding that it was without jurisdiction to consider the union’s claims. We affirm the judgment of the trial court.

. The following facts and procedural history are relevant to the union’s appeal. The union was subject to a collective bargaining agreement that expired on June 30,2003. In late 2006, locals 2863,3042 and 1303-052 and the town settled, ratified and implemented successor collective bargaining agreements for the period of July 1, 2003, to June 30, 2007. The wage schedule in each of these agreements was as follows:

“Effective retroactively to July 1, 2003, all wage rates in effect on June 30, 2003 shall be increased by two and one half (2 1/2) percent.

“Effective retroactively to July 1, 2004, all wage rates in effect on June 30, 2004 shall be increased by three (3) percent.

“Effective retroactively to July 1, 2005, all wage rates in effect on June 30, 2005, shall be increased by three (3) percent.

“Effective July 1, 2006, all wage rates in effect on June 30, 2006, shall be increased by three (3) percent.”

None of the collective bargaining agreements at issue contain any provision concerning retroactive wages and/or other financial benefits for former employees.

On November 8, 2006, an arbitrator issued an interest arbitration award in the matter of the town and local 1303-115 covering the period of July 1, 2003, through June 30, 2007. The wage provisions in the award were identical to the aforementioned successor collective bargaining agreements. The interest arbitration award did not contain any provision concerning retroactive wages and/or other financial benefits to former employees.

During the period after June 30, 2003, in which the bargaining process was ongoing but before ratification or implementation of the agreements, various members of each local either retired or otherwise left the town’s employ. On October 20, 2006, and February 8, 2007, the union filed complaints with the board, alleging that the town had refused to bargain in good faith and had violated the act in that the town refused to pay to the former employees the retroactive wages provided for in the new agreement.

On October 12, 2007, the town submitted a motion to dismiss both complaints, asserting that it had no obligation to bargain on the subject of retroactive wages for retirees who were not employees, as defined in the act. The town further asserted that, because it had no obligation to bargain with nonemployees, the board lacked jurisdiction over the union’s claims. On October 17, 2007, the town filed two complaints alleging that the union was bargaining in bad faith by pursuing the complaints.

On May 19, 2008, the matters were heard before the board. The board issued its ruling on October 3, 2008, concluding that the case is “clearly answered by our case law, which is based on the federal law. . . . The [a]ct’s duty to bargain in good faith applies only to people who are employees within the meaning of the [a]ct and within the bargaining unit. . . . Once an employee leaves the bargaining unit, the duty to bargain imposed by the [a]ct no longer has any application. . . . Accordingly, an employer cannot be found to have committed a refusal to bargain with respect to persons who are not employees within the meaning of the [a]ct. Likewise, the [ujnion has no duty to represent [nonbargaining], [nonemployees].” (Citations omitted.) The board also rejected the union’s argument that the issue of nonemployee retroactive wages has an effect on current employees because current employees are concerned with whether they will receive retroactive wages when they leave their jobs. The board determined that the matter “solely concerns the rights of [nonemployees].” Accordingly, the board granted the town’s motion to dismiss.

The union appealed from the board’s decision to the Superior Court. On November 9, 2009, the trial court dismissed the union’s appeal, holding that the board correctly concluded that the retired members were not employees as defined in the act and, therefore, that the board “did not err in finding that it was without jurisdiction to consider the union’s claim of the town’s bargaining in bad faith.” Accordingly, the court held that the board did not act illegally or in abuse of its discretion in granting the motion to dismiss. This appeal followed.

“Our review of an agency’s decision on questions of law is limited by the traditional deference that we have accorded to that agency’s interpretation of the acts it is charged with enforcing. ... In this case, General Statutes § 7-471 (2), which defines the powers of the state board of labor relations, authorizes the board to determine whether a position is covered by sections 7-467 to 7-477, inclusive, in the event of a dispute between the municipal employer and an employee organization. Our duty is to decide whether, in light of the evidence, the [agency charged with enforcement] has acted unreasonably, arbitrarily, illegally, or in abuse of its discretion.” (Citations omitted; internal quotation marks omitted.) Police Dept. v. State Board of Labor Relations, 225 Conn. 297, 300, 622 A.2d 1005 (1993).

The union argues that the court erred in holding that the board correctly concluded that the union’s retired members were not “employees” as defined in the act. We disagree.

General Statutes § 7-469 provides in relevant part: “The municipal employer and such employee organization as has been designated as exclusive representative of employees in an appropriate unit, through appropriate officials or their representatives, shall have the duty to bargain collectively. . . .” “Municipal employers or their representatives or agents are prohibited from ... (4) refusing to bargain collectively in good faith with an employee organization which has been designated in accordance with the provisions of said sections as the exclusive representative of employees in an appropriate unit . . . .” General Statutes § 7-470 (a). The act defines “employee” as “any employee of a municipal employer, whether or not in the classified service of the municipal employer, except elected officials, administrative officials, board and commission members, certified teachers, part-time employees who work less than twenty hours per week on a seasonal basis, department heads and persons in such other positions as may be excluded from coverage under sections 7-467 to 7-477, inclusive . . . .” General Statutes § 7-467 (2).

The union argues that, for the purposes of the prerequisite of subject matter jurisdiction, the date that should be used in determining who is an “employee” for the purposes of the act is July 1, 2003, the initial retroactive date of the pay increase. We note that the statutory definition of “employee” does not include retired or former employees. “The meaning ascribed to the term employee under labor law is consistent with its common meaning. We ordinarily look to the dictionary definition of a word to ascertain its commonly approved usage. . . . Webster’s Third New International Dictionary, for example, defines the term employee as T: one employed by another usually in a position below the executive level and usually for wages; 2: in labor relations: any worker who is under wages or salary to an employer and who is not excluded by agreement from consideration as such a worker.’ . . . See also Black’s Law Dictionary (8th Ed. 2004) (defining employee as ‘[a] person who works in the service of another person [the employer] under an express or implied contract of hire, under which the employer has the right to control the details of work performance’). These definitions make it evident that, like the meaning of employee under labor law, the currency of the relationship is paramount.” (Citations omitted.) Garcia v. Hartford, 292 Conn. 334, 345, 972 A.2d 706 (2009). Additionally, “[t]he seminal case of Allied Chemical & Alkali Workers of America, Local Union No. 1 v. Pittsburgh Plate Glass Co., 404 U.S. 157, 172, 92 S. Ct. 383, 30 L. Ed. 2d 341 (1971), squarely held that retirees are not employees within the bargaining unit.” Garcia v. Hartford, supra, 343.

Pursuant to Allied Chemical & Alkali Workers of America, Local Union No. 1, retirees who are no longer employees lose their status as bargaining unit members and are outside the scope of representational responsibility of their unions. See Allied Chemical & Alkali Workers of America, Local Union No. 1 v. Pittsburgh Plate Glass Co., supra, 404 U.S. 181 n.20 (“[s]ince retirees are not members of the bargaining unit, the bargaining agent is under no statutory duty to represent them in negotiations with the employer”). Once an employee leaves the bargaining unit, the duty of a municipality to bargain under the act with that employee ceases. Thus, we agree with the board that “an employer cannot be found to have committed a refusal to bargain with respect to persons who are not employees within the meaning of the [a]ct.” On the basis of our statutes and case law, it is clear that the board did not act unreasonably, arbitrarily, illegally or in abuse of its discretion in determining that the town was not obligated to bargain with the union with respect to the claims of former employees, regardless of when their claims arose.

The union, however, also argues that the board should have jurisdiction because the issues presented “vitally affect the terms and conditions of employment”; (internal quotation marks omitted) Allied Chemical & Alkali Workers of America, Local Union No. 1 v. Pittsburgh Plate Glass Co., supra, 404 U.S. 176; of current employees. See id., 178 (subjects for mandatory collective bargaining normally include only issues that settle an aspect of relationship between employer and employees, but matters involving individuals outside employment relationship not wholly excluded). The union argues that current employees are concerned with whether they will receive retroactive wages when they leave their jobs. This case, however, concerns former employees and does not concern current employees negotiating for a future benefit for themselves. Therefore, the board did not abuse its discretion in determining that the issue “solely concerns the rights of [nonemployees]” who were no longer members of the bargaining units, and it correctly determined that it thus lacked jurisdiction to act on their claims. See Allied Chemical & Alkali Workers of America, Local Union No. 1 v. Pittsburgh Plate Glass Co., supra, 182 (“[effect that] bargaining on behalf of pensioners would have on the negotiation of active employees’ retirement plans is too speculative a foundation on which to base an obligation to bargain”).

We conclude that the board did not act unreasonably, arbitrarily, illegally or in abuse of its discretion in concluding that the town had no duty to bargain on a subject affecting the rights of former employees. Accordingly, we conclude that the trial court properly determined that the board did not err in granting the town’s motion to dismiss.

The judgment is affirmed.

In this opinion the other judges concurred.

       The original complaint was filed with the defendant state board of labor relations by locals 818, 2863, 3042 and 1303-052. On February 8, 2007, local 1303-115 filed another complaint containing the same allegations. The complaint subsequently was amended on October 12, 2007, and the amended complaint eliminated local 818 as a party.

       Local 2863 is the exclusive bargaining representative of all nonsupervisory town hall employees working twenty or more hours per week as crossing guards regularly employed by the town. Local 3042 is the exclusive bargaining representative of all nonsupervisory employees working twenty or more hours per week in the department of parks and recreation. Local 1303-052 is the exclusive bargaining representative of all regular, full-time technical and professional employees in the town engineering department.

       Local 1303-115 represents all full-time and part-time employees of the town library system.

       The board also dismissed the town’s complaints against the union.

       The union argues that the question of whether the board has jurisdiction to consider their claim is a legal question not subject previously to judicial scrutiny, and, therefore, the board’s determination is not entitled to deference. See Dept. of Public Safety v. Freedom of Information Commission, 103 Conn. App. 571, 576, 930 A.2d 739, cert. denied, 284 Conn. 930, 934 A.2d 245 (2007). For the reasons we will discuss, we disagree that this issue has not previously been subject to judicial scrutiny.

       AH of the former employees were employees on July 1, 2003, the date of the initial retroactive period. None were employed in late 2006 when the new agreement was reached.

       The union urges us to adopt the reasoning in Summit County Children’s Services Board v. Local No. 4546, Communications Workers of America (AFL-CIO), Docket No. 21184, 2003 WL 356300 (Ohio App. February 19, 2003). In Summit County Children's Services Board, the union filed a grievance on behalf of former employees who claimed that they were due a retroactive pay increase pursuant to a collective bargaining agreement. Id. An arbitrator awarded the pay increase, and the employer appealed, claiming that the arbitrator lacked jurisdiction because the former employees were no longer members of the bargaining unit, and, therefore, neither the union nor the employees had standing to file grievances on behalf of former employees. Id. The Court of Appeals of Ohio, Ninth District, concluded that the arbitrator did not act unlawfully or capriciously in concluding that he had jurisdiction. Id. We are not persuaded that we should adopt the Summit County Children’s Services Board court’s reasoning.
      First, Summit County Children’s Services Board involved review of a decision by an arbitrator regarding whether the arbitrator had jurisdiction over the former employees’ grievances. In the present case, we are reviewing, with our “traditional deference that we have accorded to that agency’s interpretation of the acts it is charged with enforcing”; Police Dept. v. State Board of Labor Relations, supra, 225 Conn. 300; a determination by our state board of labor relations that it did not have jurisdiction over the union’s claims. Second, other courts in Ohio have declined to apply Summit County Children’s Services Board. See Carter v. Trotwood-Madison City Board of Education, 181 Ohio App. 3d 764, 773, 910 N.E.2d 1088 (2009) (“[w]hile [the Summit County Children’s Services Board court’s] approach has some logic ... we cannot ignore the wording of the [collective bargaining agreement] and the case law, which seems almost uniformly to follow the approach that retirees axe not bound by the grievance procedure in the collective-bargaining agreement unless they are specifically included”); see also Independence Fire Fighters Assn. v. Independence, 121 Ohio App. 3d 716, 721, 700 N.E.2d 909 (retired firefighters challenging calculation of amounts paid to them upon retirement for accrued but unused holidays, sick leave, and vacation time were not required to exhaust administrative remedies because they no longer were employees and therefore were not governed by collective bargaining agreement), appeal denied, 80 Ohio St. 3d 1449, 686 N.E.2d 276 (1997), cited in Garcia v. Hartford, supra, 292 Conn. 344.

       The collective bargaining agreements at issue were in effect between July 1, 2003, and June 30, 2007, and they did not include any provision for retroactive wages for current employees who retired after June 30, 2007.

       The union makes additional arguments that denying the former employees retroactive pay would lead to an inequitable result or be unlawful pursuant to the state’s wage statutes. We do not address these issues because they are unrelated to the board’s decision that it lacked jurisdiction. The issue of whether the former employees may have other remedies, including a possible breach of contract claim against the town, is not before us.


source: Caselaw Access Project

author: FLYNN, J.

license: Public Domain

text:
    STATE OF CONNECTICUT v. KENNETH WILDER
    (AC 31369)
    DiPentima, C. J., and Gruendel and Flynn, Js.

      Argued January 31 —
    officially released May 17, 2011

      Michael V. Laubach, certified legal intern, with whom was Elizabeth M. Inkster, senior assistant public defender, for the appellant (defendant).

      Timothy F. Costello, assistant state’s attorney, with whom, on the brief, were Michael L. Regan, state’s attorney, Vincent Dooley, senior assistant state’s attorney, and Thomas M. DeLillo, assistant state’s attorney, for the appellee (state).
   Opinion

FLYNN, J.

The defendant, Kenneth Wilder, appeals from the judgment of conviction, following a jury trial, of attempt to possess crack cocaine in violation of General Statutes §§ 53a-49 (a) (1) and 21a-279 (a) and possession of drug paraphernalia with intent to use in violation of General Statutes § 21a-267 (a). On appeal, the defendant claims that (1) the trial court improperly failed to instruct the jury on the defense of entrapment and (2) the evidence presented at trial was insufficient for the jury to find beyond a reasonable doubt that he was guilty of possession of drug paraphernalia. We affirm the judgment of the trial court.

The jury reasonably could have found the following facts. On the morning of April 8, 2007, Officer Michael McKinney of the Norwich police department was operating undercover and posing as a drug dealer in the area of Boswell Avenue and Lake Street in Norwich. McKinney wore a concealed microphone and radio transmitter that delivered an audio feed to police officers stationed in an unmarked van parked nearby. He also carried crushed macadamia nuts in a small plastic bag to resemble crack cocaine. Inside the unmarked van, Sergeant James Tetreault and Officer Christopher Merrill monitored the audio feed and also could visually observe McKinney’s location through the van’s windows.

At approximately 2 a.m., the defendant rode into the area on a bicycle. The defendant initiated a conversation, asking McKinney if he “had anything.” McKinney asked the defendant what he was looking for. The defendant responded “rock” which McKinney understood was a street term for crack cocaine. McKinney asked how much the defendant had to spend, and was told $20. McKinney responded that he only had $50 bags of cocaine for sale and told the defendant to go get more money. The defendant then rode a distance away on his bicycle before circling back. The defendant remained moving on his bicycle while they discussed a lower sale price. Again, McKinney refused, and the defendant rode away out of earshot. After the defendant had departed, Tetreault called McKinney on his cellular telephone and McKinney explained how the defendant had only $20, to which Tetreault responded, “I don’t care, you sell it for twenty then.”

Thereafter, the defendant returned on his bicycle and approached McKinney for a third time to barter for the drugs. McKinney agreed to sell them for $20 if the defendant would send other customers to him, and the transaction occurred. Both Tetreault and Merrill testified that they witnessed the transaction. Once the transaction was completed, the defendant rode south on Boswell Avenue and McKinney gave Tetreault and Merrill a physical signal that the transaction was completed.

The defendant testified that when he approached the area of Boswell Avenue and Lake Street, he heard someone calling his name and shouting, “Yo, yo, yo.” The defendant admitted that he stopped and talked to that person. He further testified that “[i]t was only that one time I stopped and talked to him.” It is of some significance that the defendant testified that he had only one encounter with McKinney. On appeal, the defendant argues that because there were three encounters, he was entitled to an entrapment defense instruction. The only evidence as to the last two encounters came from the testimony of McKinney, and the jury was entitled to credit his testimony. McKinney testified that the defendant broached the idea to purchase the drugs and that the defendant rode away and came back a second time, but McKinney refused the sale because of price. McKinney further testified that the defendant finally rode back a third time with $20 and purchased the drugs.

After a trial to a jury, the defendant was found guilty as charged and sentenced to a total effective sentence of eighteen months of imprisonment. This appeal followed. Additional facts will be set forth as necessary.

I

The defendant first claims that the court erred in refusing his request for a jury instruction on the defense of entrapment. We disagree.

We begin by setting forth our standard of review. In reviewing the defendant’s claim that he was entitled to instructions on entrapment, we look at the evidence in a light most favorable to his claim. See State v. Connelly, 46 Conn. App. 486, 507, 700 A.2d 694 (1997), cert. denied, 244 Conn. 907, 908, 713 A.2d 829, cert. denied, 525 U.S. 907, 119 S. Ct. 245, 142 L. Ed. 2d 201 (1998).

General Statutes § 53a-15, our entrapment statute, provides: “In any prosecution for an offense, it shall be a defense that the defendant engaged in the proscribed conduct because he was induced to do so by a public servant, or by a person acting in cooperation with a public servant, for the purpose of institution of criminal prosecution against the defendant, and that the defendant did not contemplate and would not otherwise have engaged in such conduct.” Our Supreme Court has held that the test for entrapment is a subjective test that “focuses on the disposition of the defendant to commit the crime of which he or she is accused.” State v. Lee, 229 Conn. 60, 78, 640 A.2d 553 (1994).

“It is well settled that the fact that officers or employees of the Government merely afford opportunities or facilities for the commission of the offense does not defeat the prosecution. Artifice and stratagem may be employed to catch those engaged in criminal enterprises. ... In their zeal to enforce the law, however, Government agents may not originate a criminal design, implant in an innocent person’s mind the disposition to commit a criminal act, and then induce commission of the crime so that the Government may prosecute. . . . Thus, the subjective defense of entrapment succeeds only if the government, not the accused, is the source of the criminal design. The subjective defense fails if the accused is previously disposed to commit the crime, and the government merely facilitates or assists in the criminal scheme. . . .

“As the subjective entrapment doctrine has been applied in Connecticut, the defendant has the initial responsibility to present sufficient evidence that the state induced him or her to commit the offense charged .... Once that burden has been met, however, the burden shifts to the state to prove beyond a reasonable doubt that the defendant was predisposed to commit the offense. . . . [T]he defense of entrapment raises a question of fact, and, where there is a claim of entrapment, the issue must be resolved by the trier . . . . ” (Citations omitted; internal quotation marks omitted.) State v. Nero, 122 Conn. App. 763, 784 — 85, 1 A.3d 184 (2010).

It is well established that where there is no evidence that the defendant either was induced by the police to commit a crime in which he would not have engaged except for such inducement or that he admitted to committing a crime, a charge on entrapment is not required. State v. Hawkins, 173 Conn. 431, 437-38, 378 A.2d 534 (1977); State v. Avery, 152 Conn. 582, 584, 211 A.2d 165 (1965); State v. Grant, 8 Conn. App. 158, 164, 511 A.2d 369 (1986). There is, in the present case, insufficient evidence that the defendant either was induced by the police to commit a crime in which he would not have engaged except for such inducement or that he admitted to committing a crime. Therefore, the court did not err in refusing to instruct the jury on the defense of entrapment. We will address the inducement issue and admission issue, each in turn.

A

Because our Supreme Court in State v. Hawkins, supra, 173 Conn. 437-38, has required to merit an entrapment charge either admission or police inducement resulting in the commission of a crime that the defendant otherwise would not have committed, we first address the inducement aspect of our analysis. The defendant claims that he carried his burden by presenting evidence of inducement sufficient to merit an instruction on entrapment. In response, the state argues that the trial court was not obligated to give the requested entrapment instruction because there was no evidence that the police induced the defendant to engage in a drug deal. We agree with the state.

We begin with a brief overview of the level of inducement our courts have considered sufficient to support a jury charge of entrapment. Our Supreme Court has held that a defendant was entitled to an entrapment instruction where the facts of the case demonstrated inducement. State v. Marquardt, 139 Conn. 1, 89 A.2d 219 (1952). In Marquardt, the court defined the degree of undercover police activity that must be shown before inducement is established. The Marquardt court found inducement where the officer “was the one who not only first broached to [the defendant] the subject of taking bets but persisted, after being repelled, and on subsequent dates coaxed and lined the defendant into accepting money and finding someone with whom to place it as a wager, and who on each of four different occasions paid him $1 for so doing.” Id., 8. This prolonged, persistent and repeated level of activity, involving coaxing and luring, amounted to a showing of inducement sufficient to warrant an instruction on entrapment. Id. The Supreme Court also noted that “if the criminal intent or the willing disposition to commit the crime originates in the mind of the accused and the criminal offense is completed, the fact that the opportunity is furnished or the accused is aided in the commission of the crime in order to secure the evidence necessary to prosecute him for it constitutes no defense. On the other hand, if the evil intent and the criminal design originate in the mind of the government agent and the accused is lured into the commission of the offense charged in order to prosecute him for it, when he would not have committed an offense of that general character except for the urging of the agent, no conviction may be had.” Id., 5.

In contrast, it is also well settled that a simple request by a police officer that a defendant break the law is not inducement sufficient to merit a charge on entrapment. See State v. Hawkins, supra, 173 Conn. 436; see also State v. Marino, 23 Conn. App. 392, 394, 400, 580 A.2d 990 (where undercover police officer approached defendant, explained usual drug dealer unavailable and purchased cocaine, court provided entrapment instruction although “doubtful” of defendant’s entitlement to such instruction), cert. denied, 216 Conn. 818, 580 A.2d 63 (1990); Statev. Grant, supra, 8 Conn. App. 164 (where undercover police officer approached defendant and purchased marijuana with premarked $5 bill, court properly refused to give entrapment instruction). “A predisposition to commit the crime, which is triggered by circumstances created by, or under the control of, the police, does not set the stage for the defense of entrapment.” State v. Taylor, 153 Conn. 72, 84, 214 A.2d 362 (1965), cert. denied, 384 U.S. 921, 86 S. Ct. 1372, 16 L. Ed. 2d 442 (1966).

In Hawkins, an undercover police officer, on three separate occasions, posed as a drug buyer, engaged the defendant in conversation regarding purchasing drugs and, following such negotiation, ultimately purchased cocaine from the defendant. State v. Hawkins, supra, 173 Conn. 433-34. The defendant requested an instruction on entrapment, but the trial court refused. Id., 435. Our Supreme Court affirmed and held that there was no evidence that raised an issue of inducement. Id., 436.

With this precedent in mind, we now turn to the defendant’s claims. The defendant argues that McKinney’s actions rose to the level of inducement because there were three encounters between him and the defendant. In response, the state argues that even taking the evidence in the light most favorable to his claim, the activity amounts to only one solicitation, at best.

Simply put, “under our state decisional law, [e]vidence of unlawful inducement may be found where the police . . . appeal to the [accused’s] sympathy or friendship, or where they repeatedly or persistently solicit the [accused] to commit the crimes.” (Emphasis in original; internal quotation marks omitted.) One Way Fare v. Dept. of Consumer Protection, 96 Conn. App. 780, 784, 901 A.2d 1246 (2006). Even if we accept the defendant’s view of the facts that there were three encounters, the encounters viewed individually and cumulatively do not rise to the level of “repeated” or “persistent” solicitation as required by our case law.

In the present case, McKinney, like the undercover officer in Hawkins, was engaged with the defendant in conversation, on three separate occasions, regarding the purchase of drugs. This is not a case where, as in Marquardt, the undercover officer coaxed, incited and aroused the defendant on four separate dates to buy the drugs and an entrapment instruction was warranted. The undercover officer in Marquardt even refused to accept the defendant’s return of the bet money and paper slip. Conversely, in the present case, McKinney is the one who refused the defendant’s offer to purchase the drugs because the defendant did not have enough money. After the refusal, the defendant left the area on his bicycle and returned of his own free will to complete the sale. There is no evidence that McKinney repeatedly or persistently incited the defendant to return and to purchase drugs. We conclude that despite McKinney’s conversation with the defendant and the multiple encounters, the court properly determined that there was no evidence raising an issue of inducement.

Three encounters between the defendant and McKinney do not amount to inducement, especially when taking into account the fact that the defendant is the one who approached McKinney and inquired each time about the drugs in question. It is undisputed on appeal that the defendant first approached McKinney and initiated the conversation. McKinney actually refused to sell the drugs to the defendant twice, which prompted the defendant to leave to obtain the requisite $50 amount demanded for a bag of drugs. Even viewing the interaction as three separate encounters, it does not rise to the level of persistent coaxing, inciting or luring to warrant an entrapment instruction. See State v. Marquardt, supra, 139 Conn. 8.

Whether there was one encounter or three encounters between the defendant and McKinney does not change our conclusion. At trial, the defendant admitted to only one encounter, but on appeal cites three, by virtue of McKinney’s testimony, as the basis of his entitlement to an entrapment defense. Although in his appellate brief he now concedes that he initiated the conversation, the defendant at trial testified that McKinney initiated the conversation and shouted, “Yo, yo, yo.” McKinney’s testimony does not indicate that he initiated the conversation. The defendant still is not entitled to an entrapment instruction because the encounter described by the defendant does not rise to the level of persistent urging required by our case law. The defendant admits to only one encounter but relies on three encounters by virtue of McKinney’s testimony. However, McKinney testified that he refused the defendant’s first and second entreaties to sell the drugs and only did so, at the defendant’s request, at the third encounter. This is an indication of a desire on the part of the defendant to buy the drugs. There is no evidence that McKinney in any way induced the defendant by persistent urging and pressure as required by case law interpreting § 53a-15, our entrapment statute. See State v. Marquardt, supra, 139 Conn. 8.

The defendant also claims that entrapment has been “incorrectly labeled as not of constitutional magnitude.” He further claims that failure to provide an entrapment instruction violates his right to due process and to present a defense. As the state correctly points out in its brief, there is no constitutional infirmity in the failure to charge on entrapment. See State v. Ebron, 292 Conn. 656, 692-93, 975 A.2d 17 (2009), overruled on other grounds by State v. Kitchens, 299 Conn. 447, 10 A.3d 942 (2011). We, therefore, need not address this claim further.

B

We next address the defendant’s claim that the jury should have been instructed on the defense of entrapment even though he denied performance of the acts. In support of his claim, the defendant further argues that despite his denial, the jury should have been given an entrapment instruction because inconsistent defenses are expressly permitted in Connecticut courts. See State v. Harris, 189 Conn. 268, 273, 455 A.2d 342 (1983). We disagree.

Our Supreme Court’s holding in State v. Avery, supra, 152 Conn. 582, the seminal case concerning instruction on the defense of entrapment, is dispositive. The court in Avery held that where the findings do not support that the defendant admitted to the commission of a crime and, rather, indicate a complete denial of any connection with the crime, or there is no evidence of inducement, a charge on entrapment is not required. Id., 584. This precisely is the case before us. In Avery, as in the present case, the evidence shows a complete denial of any connection with the crime. In fact, in the present case, the defendant’s main defense at trial was actual innocence and mistaken identification. There was no evidence that he admitted to any elements of the crime as required by Avery, and, therefore, the court properly declined to charge the jury on the defense of entrapment.

The defendant also argues that the United States Supreme Court’s rationale in. Matthews v. United States, 485 U.S. 58, 108 S. Ct. 883, 99 L. Ed. 2d 54 (1988), should be extended to apply to the present case. We review the defendant’s claim but find that Matthews is inapplicable to this case.

The United States Supreme Court in Matthews v. United States, supra, 485 U.S. 62, held that “even if the defendant denies one or more elements of the crime, he is entitled to an entrapment instruction whenever there is sufficient evidence from which a reasonable jury could find entrapment.” The court, however, decided the case on the basis of federal criminal law and procedure as opposed to the law of entrapment in Connecticut, and, therefore, it does not influence our decision. See State v. Avery, supra 152 Conn. 582. Matthews makes no reference to constitutional principles that would control our decision, and therefore it is inapplicable.

We conclude that the court properly determined that there was inadequate evidence presented during trial to warrant an entrapment instruction.

II

The defendant next claims that the state failed to prove beyond a reasonable doubt that he had committed the crime of possession of drug paraphernalia with intent to use.

The defendant maintains that the evidence was insufficient to permit the jury to find that the glass tube belonged to him and was in his possession at the time of his arrest. Specifically, he argues that to conclude, from the evidence presented, that he possessed the crack pipe would amount to mere conjecture and speculation on the part of the jury. In response, the state contends that testimony from Officer Christopher Conley, the arresting officer, provided sufficient evidence to support the jury’s verdict. We agree with the state.

As a threshold matter, we set forth the two-pronged standard of review for claims of insufficiency of the evidence. “First, we construe the evidence in the light most favorable to sustaining the verdict. Second, we determine whether upon the facts so construed and the inferences reasonably drawn therefrom the [trier of fact] reasonably could have concluded that the cumulative force of the evidence established guilt beyond a reasonable doubt.” (Internal quotation marks omitted.) State v. Butler, 296 Conn. 62, 76, 993 A.2d 970 (2010).

Additionally, “the jury must find every element proven beyond a reasonable doubt in order to find the defendant guilty of the charged offense, [but] each of the basic and inferred facts underlying those conclusions need not be proved beyond a reasonable doubt. . . . If it is reasonable and logical for the jury to conclude that a basic fact or an inferred fact is true, the jury is permitted to consider the fact proven and may consider it in combination with other proven facts in determining whether the cumulative effect of all the evidence proves the defendant guilty of all the elements of the crime charged beyond a reasonable doubt. . . . Moreover, it does not diminish the probative force of the evidence that it consists, in whole or in part, of evidence that is circumstantial rather than direct. . . . It is not one fact, but the cumulative impact of a multitude of facts which establishes guilt in a case involving substantial circumstantial evidence. ... In evaluating evidence, the [finder] of fact is not required to accept as dispositive those inferences that are consistent with the defendant’s innocence. . . . The [finder of fact] may draw whatever inferences from the evidence or facts established by the evidence it deems to be reasonable and logical.” (Citation omitted; internal quotation marks omitted.) State v. Brown, 299 Conn. 640, 647-48, 11 A.3d 663 (2011). “Our review of factual determinations is limited to whether those findings are clearly erroneous.” (Internal quotation marks omitted.) State v. Moody, 121 Conn. App. 207, 219, 994 A.2d 702, cert. denied, 297 Conn. 920, 996 A.2d 1193 (2010).

To sustain a conviction for the crime of possession of drug paraphernalia with intent to use pursuant to § 2 la-267 (a) in this case, the state needed to prove beyond a reasonable doubt that the defendant “possessed” the crack pipe. General Statutes § 53a-3 (2) defines “possess” as “to have physical possession or otherwise to exercise dominion or control over tangible property . . . .” Possession may be actual or constructive. State v. Bowens, 118 Conn. App. 112, 120, 982 A.2d 1089 (2009), cert. denied, 295 Conn. 902, 988 A.2d 878 (2010). Actual possession, the type of possession at issue here, “requires the defendant to have had direct physical contact with the [contraband].” (Internal quotation marks omitted.) Id., 120-21. Typically, the state will proceed under a theory of constructive possession only when the contraband is not found on the defendant’s person at the time of arrest, but the accused still exercises dominion and control. Id., 121.

The defendant challenges the sufficiency of the evidence as to the actual possession element, namely, the testimony that Conley saw the defendant holding the crack pipe in his hand, without any independent confirmation from another witness. In support, the defendant also points out that the state did not present fingerprint evidence to corroborate Conley’s observations. After reviewing the cumulative evidence presented at trial, and viewing it in the light most favorable to sustaining the verdict, we conclude that there was sufficient evidence for the jury to find beyond a reasonable doubt that the defendant unlawfully possessed drug paraphernalia with the intent to use in violation of § 2la-267 (a).

On the basis of Conley’s direct testimony presented a trial, the jury reasonably could have found that the defendant had a crack pipe tube on his person at the time of the undercover drug deal. Conley testified that he found the crack pipe in the defendant’s hand when he went to handcuff him. The credited testimony of even a single witness may be sufficient to sustain a defendant’s conviction. State v. Whitaker, 215 Conn. 739, 757 n.18, 578 A.2d 1031 (1990). Additional corroborating fingerprint evidence was not required. The seized crack pipe, which consisted of a broken glass tube with pieces of steel wool inside it, was admitted as evidence and shown to the jury. See General Statutes § 21a-240 (20) (A) (defining “drug paraphernalia” to include “glass . . . pipes with screens”). Conley also testified that drug users manufacture a crack pipe by inserting pieces of a steel wool scouring pad into a glass tube to serve as a filter. The jury reasonably could have found from Conley’s testimony that the defendant had the glass tube on his person at the time of his arrest.

The defendant also points out that the defendant was seen by McKinney during the encounter, yet no testimony was elicited from McKinney about a crack pipe in the defendant’s hand. This contention has no merit. We cannot speculate as to why certain testimony was not elicited from McKinney, nor is it necessary for us to do so. The testimony of Conley alone was enough to support the defendant’s conviction. “This court cannot substitute its own judgment for that of the jury if there is sufficient evidence to support the jury’s verdict.” (Internal quotation marks omitted.) State v. Brown, supra, 299 Conn. 648. It is within the exclusive province of the fact finder to weigh the evidence and to determine the credibility of witnesses. See State v. Serrano, 123 Conn. App. 530, 542, 1 A.3d 1277 (2010), cert. denied, 300 Conn. 909, 12 A.3d 1005 (2011). We conclude that the evidence in the present case, viewed in the light most favorable to sustaining the verdict, was sufficient to support a finding that the defendant had drug paraphernalia on his person.

The judgment is affirmed.

In this opinion the other judges concurred.

       “The jury is free to juxtapose conflicting versions of events and to determine which is more credible. . . . [T]he [jury] can disbelieve any or all of the evidence . . . and can construe [the] evidence in a manner different from the parties’ assertions.” (Citation omitted; internal quotation marks omitted.) State v. Person, 236 Conn. 342, 347, 673 A.2d 463 (1996).


author: PELLEGRINO, J.

text:
    STATE OF CONNECTICUT v. GARY ROGERS
    (AC 31895)
    Gruendel, Beach and Pellegrino, Js.

      Argued March 8 —
    officially released May 17, 2011

      Norman Pattis, with whom, on the brief, was K. Murray Smith, for the appellant (defendant).

      Rita M. Shair, senior assistant state’s attorney, with whom, on the brief, was Michael Dearington, state’s attorney, and James G. Clark, former senior assistant state’s attorney, for the appellee (state).
   Opinion

PELLEGRINO, J.

The defendant, Gary Rogers, appeals from the judgment of conviction, rendered after a jury trial, of attempt to commit robbery in the first degree in violation of General Statutes §§ 53a-134 (a) (4) and 53a-49 (a) (2), assault in the first degree in violation of General Statutes § 53a-59 (a) (5), and carrying a pistol or revolver without a permit in violation of General Statutes § 29-35 (a). The defendant also appeals from the judgment of conviction, rendered after a trial to the court, of criminal possession of a firearm in violation of General Statutes § 53a-217. On appeal, the defendant claims that the court improperly (1) denied his motion to suppress the victim’s identification of the defendant, (2) announced his nickname, “G-Bo,” to the first group of prospective jurors and (3) sentenced him as a persistent felony offender based on his convictions for unclassified felonies. We affirm the judgment of the trial court.

The jury reasonably could have found the following facts. On August 16, 2007, around midnight, the victim, Jamal Glasgow, was riding his bicycle home from a friend’s house when he noticed several acquaintances outside a bar on Dixwell Avenue in New Haven. After a brief conversation, as the victim began to leave on his bicycle, he noticed a man holding a baseball cap in front of his face approaching him. The defendant grabbed the handlebars of the victim’s bicycle, hit him in the face with a gun and demanded that he hand over the contents of his pockets. The defendant pulled the victim from his bicycle and forced him toward a comer where three other men were waiting. During the straggle, the defendant’s face was revealed, and the victim recognized the defendant as a man he knew through friends as “G-Bo.” After a brief struggle, the victim broke free from the defendant’s grasp, turned, and ran away. The defendant remained standing there holding the gun that he had used to strike the victim. As the victim ran, he heard someone say, “don’t shoot,” followed by the noise of the gunshots that struck him in the back. The victim testified that as he lay in the street, he again saw the defendant. The victim was taken to Yale-New Haven Hospital where an examination revealed that he had been shot twice in the back, causing spinal damage and partial paralysis.

The defendant subsequently was charged with attempt to commit robbery in the first degree, assault in the first degree, carrying a pistol or revolver without a permit and criminal possession of a firearm. After a jury trial, he was found guilty of counts one, two and four. Subsequently, he was found guilty of count three by the court. Thereafter, the court found the defendant to be a persistent felony offender and imposed a total effective sentence of forty-five years imprisonment. This appeal followed. Additional facts and procedural history will be set forth as necessary.

I

The defendant first claims that the state adduced insufficient evidence to prove his identity. According to the defendant, the court improperly denied his motion to suppress the victim’s identification of him as the shooter because the evidence was unreliable and manufactured by unnecessarily suggestive photographic array procedures. In response, the state argues that the victim’s identification was sufficiently reliable to be admissible. We agree with the state.

Our Supreme Court has held that the question of pretrial identification is a mixed question of law and fact. State v. Marquez, 291 Conn. 122, 136, 967 A.2d 56, cert. denied, 558 U.S. 895, 130 S. Ct. 237, 175 L. Ed. 2d 163 (2009). “We review the [trial] [c]ourt’s decision for abuse of discretion, applying clear error review to its underlying factual findings and plenary review to its conclusions drawn from such facts. ” (Internal quotation marks omitted.) Id. “In determining whether identification procedures violate a defendant’s due process rights, the required inquiry is made on an ad hoc basis and is two-pronged: first, it must be determined whether the identification procedure was unnecessarily suggestive; and second, if it is found to have been so, it must be determined whether the identification was nevertheless rehable based on examination of the totality of the circumstances. . . . [A]n out-of-court eyewitness identification should be excluded on the basis of the procedure used to elicit that identification only if the court is convinced that the procedure was so suggestive and otherwise unreliable as to give rise to a very substantial likelihood of irreparable misidentification.” (Citations omitted; emphasis in original; internal quotation marks omitted.) Id., 141-42.

“Because the inquiry into whether evidence of pretrial identification should be suppressed contemplates a series of factbound determinations, which a trial court is far better equipped than this court to make, we will not disturb the findings of the trial court as to subordinate facts unless the record reveals clear and manifest error. ... In determining whether identification procedures violate a defendant’s due process rights . . . [t]he defendant bears the burden of proving both that the identification procedures were unnecessarily suggestive and that the resulting identification was unreliable.” (Citations omitted; emphasis in original; internal quotation marks omitted.) State v. Mitchell, 127 Conn. App. 526, 533, 16 A.3d 730 (2011).

The following additional facts, adduced at the defendant’s suppression hearing, are relevant to the defendant’s claim. The victim testified that when police officers initially arrived on the scene, he described the shooter as wearing a white shirt with writing on it, black jeans and a black hat, but he was too frightened to identify his defendant. The victim recognized the shooter as the defendant, G-Bo, whom he knew through mutual friends. That afternoon, Herbert Johnson, a detective with the New Haven police department, met with the victim at the hospital; however, they did not have a conversation at that time because the victim was on pain medication and too frightened to speak with the police. On the day of the shooting, at the hospital, the victim did tell his father, Jonathan McElveen, that he recognized a man named G-Bo as the shooter.

The following day, Johnson learned from Brett Runlett, a detective with the New Haven police department, that the defendant was a suspect in another homicide on Dixwell Avenue. The victim had not yet told the police that he recognized the defendant as the shooter. On August 17 and 20, 2007, Johnson visited the hospital but was unable to speak to the victim. Johnson did speak with the victim’s aunt on August 20, 2007, who informed him that the victim had identified the defendant as the shooter. The next day, on August 21, 2007, Johnson returned to the hospital and briefly discussed the shooting with the victim, who identified the defendant as the shooter, described his clothing, height and weight, and stated that the defendant had a beard and mustache.

On August 22, 2007, Johnson returned with a photo board containing eight photographs, the sixth of which was a photograph of the defendant. Prior to viewing the photo board, the victim signed a form that stated that the photographic array may or may not include the perpetrator. Johnson then showed him the photo board. According to the victim’s testimony, he almost immediately pointed out the defendant, known to him as GBo, as the shooter and stated that he was 100 percent sure of that identification. The victim stated that he did not initially identify the shooter to the police because he was afraid for himself, as well as his pregnant girlfriend and family.

In ruling on the defendant’s motion to suppress the victim’s identification, the court, Alexander, J., made the following findings in its February 3, 2010 memorandum of decision.

“The court finds in this case that the law enforcement procedures were not suggestive. The photographic array used by the police in this case contained pictures of individuals who looked substantially similar. . . . The defendant’s photograph was not prominently displayed or otherwise highlighted in an impermissible manner. In the court’s opinion, the evidence established that the officer administering the identification procedure remained neutral and did nothing to influence the witness in making the identification. . . .

“Even if the identification procedure had been unnecessarily suggestive, the court finds that the identification by [the victim] was nonetheless reliable given the totality of the circumstances. The court finds that the victim had a more than adequate opportunity to view the defendant at the time of the incident and that he was in extremely close proximity to the defendant during this time. The court further finds that even though the victim only provided a clothing description initially because of his fear of the defendant, he demonstrated a certainty to the officers at the time of the identification at the hospital. . . . Most compelling, however, is the fact that the victim and the defendant were acquainted with each other over the course of several years.” (Citations omitted.)

We conclude that the court properly considered all of the factors relevant to determining the overall reliability of the victim’s identification. “[Reliability is the linchpin in determining the admissibility of identification testimony .... To determine whether an identification that resulted from an unnecessarily suggestive procedure is reliable, the corruptive effect of the suggestive procedure is weighed against certain factors, such as the opportunity of the [witness] to view the criminal at the time of the crime, the [witness’] degree of attention, the accuracy of [the witness’] prior description of the criminal, the level of certainty demonstrated at the [identification] and the time between the crime and the [identification].” (Internal quotation marks omitted.) State v. Santos, 104 Conn. App. 599, 619, 935 A.2d 212 (2007), cert. denied, 286 Conn. 901, 943 A.2d 1103, cert. denied, 555 U.S. 851, 129 S. Ct. 109, 172 L. Ed. 2d 87 (2008).

The court determined that the victim had sufficient opportunity to view the defendant at close range when the defendant approached him, both during the attack and again after the shooting. Although the defendant claims that the attack took place in a dimly lit area, the court heard evidence to support the victim’s testimony that there was adequate ambient light in the area that allowed him to identify his defendant. The victim also witnessed the defendant, whom he had met previously, standing over him immediately after the shooting, and gave a description of the shooter that matched the physical appearance of the defendant. After viewing Johnson’s photo board and identifying the defendant as the shooter, the victim stated that he was 100 percent certain of his identification.

Because we uphold the court’s determination that the victim’s identification was reliable on the basis of the totality of the circumstances, the defendant’s remaining suggestiveness claim does not provide a basis for overturning the court’s decision to deny the defendant’s motion to suppress. “To prevail on his claim, the defendant has the burden of showing that the trial court’s determinations of suggestiveness and reliability both were incorrect.” (Internal quotation marks omitted.) State v. Cook, 262 Conn. 825, 832, 817 A.2d 670 (2003).

We conclude, therefore, that the court properly denied the defendant’s motion to suppress. The court’s determination that the victim’s identification of the defendant was inherently reliable was supported by its findings of fact, and the defendant has failed to show that these findings are clearly erroneous.

II

The defendant also claims that the court violated his right to due process when it improperly announced the defendant’s nickname, G-Bo, to the first group of prospective jurors. We disagree.

The following additional facts are relevant to the defendant’s claim. On September 16, 2009, during voir dire, the court read to a jury panel a version of the information that identified the defendant by his street name, G-Bo. Four jurors were selected from that jury panel, two of whom served on the final panel. The corat held an in-chambers conversation, the outcome of which was put on the record during the afternoon session: “And for the record all parties are present including [the defendant] and, by agreement of the court, based on our chambers discussion, because contested as part of the evidence is the name G-Bo, the court, in its preliminary instructions to the voir dire panel, as well as its opening instructions to the jury, will not be referring as it is alleged in the actual information to that name.

“However, the court did indicate that counsel would have to renew at the end of the trial before the deliberations that the information needed to be amended completely to remove that name if there was, in fact, an absence in proof that allowed the state to charge that as part of its information. . . .

“So with respect to it, and the court did note that as this jury panel was instructed, it was only mentioned once. It was never referred to again. And I don’t believe counsel is claiming any error as a result of that single mention. Is that correct . . . ?” The defendant’s attorney responded, “[y]es, that’s correct, Your Honor.” On September 30, 2009, the parties entered into a stipulation, published to the jury, as follows: “G-Bo is a nickname used by . . . the defendant.”

On appeal, the defendant argues that by stating the defendant’s nickname to the jury panel, the court established that the defendant was known by a street name that placed him at the scene of the crime. The defendant requests review of his claim under the doctrine set forth in State v. Golding, 213 Conn. 233, 239-40, 567 A.2d 823 (1989). The defendant’s affirmative statement to the court waived any claim of error, and, therefore, his claim must fail under Golding. The court summarized its agreement with counsel to exclude any further mention of the defendant’s street name on the record. Counsel for the defendant verbally responded that the defendant would not be claiming any error as to the single mention of his street name. Moreover, that single mention only occurred in the presence of two jurors. Finally, a stipulation was later entered by the parties agreeing that G-Bo was a nickname used by the defendant. We conclude, therefore, that the defendant’s claim fails under the third prong of Golding. See State v. Kitchens, 299 Conn. 447, 467, 10 A.3d 942 (2011).

Ill

The defendant’s final claim is that the court improperly sentenced him as a persistent felony offender pursuant to General Statutes § 53a-40 (f) on the basis of his prior convictions for unclassified felonies. We disagree.

The defendant was convicted of attempt to commit robbery in the first degree, assault in the first degree, carrying a pistol or revolver without a permit and criminal possession of a firearm. The defendant had previously been convicted of larceny in the second degree in violation of General Statutes § 53a-123, a class C felony, and two separate convictions for possession of narcotics in violation of General Statutes § 21a-279 (a), an unclassified felony. On appeal, the defendant argues that the court improperly sentenced him as a persistent felony offender because his two prior convictions for possession of narcotics, an unclassified felony, were not contemplated by the legislature as felonies that would make a defendant a persistent felony offender.

We first set forth the applicable standard of review. “[IJssues of statutory construction raise questions of law, over which we exercise plenary review. . . . The process of statutory interpretation involves the determination of the meaning of the statutory language as applied to the facts of the case, including the question of whether the language does so apply. . . . When construing a statute, [o]ur fundamental objective is to ascertain and give effect to the apparent intent of the legislature. ... In other words, we seek to determine, in a reasoned manner, the meaning of the statutory language as applied to the facts of [the] case, including the question of whether the language actually does apply. ... In seeking to determine that meaning, General Statutes § l-2z directs us first to consider the text of the statute itself and its relationship to other statutes. If, after examining such text and considering such relationship, the meaning of such text is plain and unambiguous and does not yield absurd or unworkable results, extratextual evidence of the meaning of the statute shall not be considered.” (Internal quotation marks omitted.) State v. Elliott, 127 Conn. App. 464, 477-78, 14 A.3d 439 (2011).

We conclude that the plain and unambiguous language of the statute clearly delineates class D felonies as being distinct from all other felonies. Section 53a-40 (f) requires that a defendant must be “twice convicted of a felony other than a class D felony.” An unclassified felony, therefore, qualifies as “a felony other than a class D felony.” General Statutes § 53a-40 (f). Based on the clearly written language of the statute, only class D felonies, which carry a lesser maximum punishment than unclassified felonies, are excluded as predicate felonies for purposes of the statute. The maximum punishment for a first offense of possession of narcotics, an unclassified felony, is seven years; General Statutes §§ 53a-35a and 21a-279 (a); while the maximum punishment for a class D felony is five years. General Statutes § 53a-35a. In crafting the language of § 53a-40 (f), the legislature specifically chose not to exclude unclassified felonies. We conclude, therefore, that on the basis of the clear and unambiguous text of § 53a-40 (f), the court correctly sentenced the defendant as a persistent felony offender.

The judgment is affirmed.

In this opinion the other judges concurred.

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

       General Statutes § 53a-40 (1) provides: “A persistent felony offender is a person who (1) stands convicted of a felony other than a class D felony, and (2) has been, at separate times prior to the commission of the present felony, twice convicted of a felony other than a class D felony.”


author: DiPENTIMA, C. J.

text:
    EDWARD A. PERUTA v. COMMISSIONER OF PUBLIC SAFETY ET AL.
    (AC 31142)
    DiPentima, C. J., and Harper and Pellegrino, Js.

      Argued January 4 —
    officially released May 24, 2011

      Rachel M. Baird, for the appellant (plaintiff).

      Matthew B. Beizer, assistant attorney general, with whom, on the brief, was Richard Blumenthal, former attorney general, for the appellants (defendants).
   Opinion

DiPENTIMA, C. J.

The plaintiff, Edward A. Peruta, appeals from the judgment of the trial court granting the defendants’ motion to dismiss his complaint for lack of subject matter jurisdiction. On appeal, the plaintiff claims that the court improperly determined that (1) he had failed to exhaust his administrative remedies and (2) the administrative remedies available to him were not inadequate and futile. We affirm the judgment of the trial court.

The record reveals the following facts and procedural history relevant to our discussion. The plaintiff travels throughout the state and possesses a permit to carry pistols or revolvers (permit) issued by the department of public safety (department) pursuant to General Statutes § 29-28 (b). On July 28, 2007, the plaintiff sent an e-mail to the department and to the board of firearms permit examiners (board) stating that he was researching the laws and regulations that govern the possession of a permit to carry a firearm and set forth nine questions seeking to clarify the extent to which the holder of a valid permit may openly carry a firearm in the state. The plaintiff delivered a document with these same questions to the department on July 30, 2007. In response, the department’s legal affairs unit sent a letter to the plaintiff on August 1, 2007, stating that it was unable to provide answers to his questions and recommended that he seek the advice of an attorney.

Thereafter, the plaintiff commenced an action for a declaratory judgment in the Superior Court naming three defendants: the department, the board and the police officer standards and training council (council). In Ms complaint, the plaintiff asserted that the department and the mumcipalities served by the council had violated the statutory and constitutional rights of Connecticut citizens to bear arms by proMbiting, under tMeat of arrest, valid permit holders from opeMy carrymg a pistol or revolver and by immediately confiscatmg a holder’s valid permit upon such arrest. The plaintiff alleged that the board had denied Ms request for a declaratory ruling, and, consequently, he suffered from uncertainty with respect to Ms legM obligations to conceal Ms firearm and relinquish, upon demand, Ms permit to the department. Thus, the plaintiff requested a judiciM determination of whether he lawfully could carry a pistol or revolver opeMy in the state and whether the defendants lawfully may confiscate permits if a permit holder is arrested for opeMy carrying a firearm. The plaintiff served a copy of Ms complaint on the office of the attorney general.

The defendants, represented by the attorney general’s office, filed a motion to strike the plaintiffs complaint, wMch the court deMed. Thereafter, the defendants filed a motion to dismiss the plamtiff s complaint claiming, inter alia, that the court shoMd exercise its discretion and refuse to issue a declaratory judgment because the plaintiff had adequate admiMstrative remedies available to him. After a hearing on the matter and after both parties filed supplemental briefs, the court granted the defendants’ motion to dismiss. The court reasoned that Mthough the plaintiff had presented a petition for a declaratory ruling to the board, wMch had declined to rale on the matter, the department had a central role to play m deciding the petition and should be given an opportuMty to do so. The court then determmed that because the plamtiff had not submitted a petition to the department, he had not complied with General Statutes §§ 4-175 and 4-176. The court further concluded that because the plaintiff had only claimed that the department was “likely” to issue a ruling adverse to him, futility could not be established.

Thereafter, the plaintiff filed a motion to reargue claiming that the department’s failure to promulgate rules of practice for filing requests for declaratory rulings acted as a waiver of its jurisdiction to issue such rulings and excused the plaintiffs failure to petition the department. The court summarily denied this motion. The plaintiff then filed a second motion to reargue claiming that the e-mail he sent to the department on July 28,2007, was avalid petition for a declaratory ruling and because the department lacked rules of practice for submitting petitions for declaratory rulings, he had exhausted his administrative remedies to the extent possible. The court, however, denied the plaintiffs motion concluding that the overall thrust of the questions he presented to the department were not sufficient to satisfy the requirements of § 4-176. The plaintiff then appealed to this court and, pursuant to Practice Book § 66-5, filed a motion for articulation with respect to the trial court’s conclusion that his July 28, 2007 e-mail to the department was not a petition for a declaratory judgment.

As a preliminary matter, we set forth our standard of review. “A motion to dismiss . . . properly attacks the jurisdiction of the court, essentially asserting that the plaintiff cannot as a matter of law and fact state a cause of action that should be heard by the court.” (Internal quotation marks omitted.) C. R. Klewin Northeast, LLC v. State, 299 Conn. 167, 174, 9 A.3d 326 (2010). “A motion to dismiss tests . . . whether, on the face of the record, the court is without jurisdiction. . . . When a . . . court decides a jurisdictional question raised by a pretrial motion to dismiss, it must consider the allegations of the complaint in their most favorable light. ... In this regard, a court must take the facts to be those alleged in the complaint, including those facts necessarily implied from the allegations, construing them in a manner most favorable to the pleader. . . . The motion to dismiss . . . admits all facts which are well pleaded, invokes the existing record and must be decided upon that alone.” (Internal quotation marks omitted.) State v. Marsh & McLennan Cos., 286 Conn. 454, 463-64, 944 A.2d 315 (2008). “[O]ur review of the trial court’s ultimate legal conclusion and resulting [grant] of the motion to dismiss will be de novo. . . . Factual findings underlying the court’s decision, however, will not be disturbed unless they are clearly erroneous. . . . The applicable standard of review for . . . a motion to dismiss, therefore, generally turns on whether the appellant seeks to challenge the legal conclusions of the trial court or its factual determinations.” (Internal quotation marks omitted.) LaSalle Bank, National Assn. v. Bialobrzeski, 123 Conn. App. 781, 786-87,3 A.3d 176 (2010). With these principles in mind, we turn to the plaintiffs claims.

I

The plaintiff first claims that the court erroneously concluded that he had failed to exhaust his administrative remediés. Specifically, the plaintiff argues that because the department has failed to promulgate rules setting forth the required form and filing procedure for petitions for declaratory rulings in accordance with its duty under § 4-176 (b), he was unable to know what the department required for such petitions. Therefore, according to the plaintiff, his July 28, 2007 e-mail to the department, to the extent possible, was a petition for a declaratory ruling. We disagree.

Our Supreme Court has determined previously that whether a party’s communication with an agency constitutes a petition for a declaratory ruling is “essentially [a] fact-based issue . . . .” See Cannata v. Dept. of Environmental Protection, 239 Conn. 124, 135 n. 18, 680 A.2d 1329 (1996). We, therefore, will not disturb the court’s conclusion unless it is clearly erroneous. Id.

The right to petition an agency for a declaratory ruling is statutorily granted to a party by § 4-176 (a). That section, in relevant part, provides: “Any person may petition an agency ... for a declaratory ruling as to the validity of any regulation, or the applicability to specified circumstances of a provision of the general statutes, a regulation, or a final decision on a matter within the jurisdiction of the agency.” (Emphasis added.) General Statutes § 4-176 (a). That section sets “the ground rules” for bringing a petition for a declaratory ruling before a state agency; see Hill v. State Employees Retirement Commission, 83 Conn. App. 599, 606, 851 A.2d 320, cert. denied, 271 Conn. 909, 859 A.2d 561 (2004); and, in the absence of additional agency direction, sets the standards required for such a petition. See Cannata v. Dept. of Environmental Protection, supra, 239 Conn. 135-36 (using § 4-176 to evaluate party’s correspondence with agency as petition for declaratory ruling); Liberty Mobile Home Sales, Inc. v. Cassidy, 6 Conn. App. 723, 726-27, 507 A.2d 499 (1986) (same). Thus, in order for the plaintiffs e-mail correspondence with the department to constitute a petition for a declaratory judgment it needed to set forth specific circumstances and seek to have the department apply a regulation, statute or final decision on a matter in its jurisdiction to those specific circumstances.

We cannot conclude that the court was clearly erroneous in determining that the plaintiffs July 28, 2007 e-mail to the department was not a petition for a declaratory ruling. In that e-mail, the plaintiff stated that he was “in the process of researching the laws and regulations that govern the possession of a permit” in the state. Then, through a series of nine questions, the plaintiff asked the department to identify and to provide the source of legal authority preventing, in whole or in part, a valid permit holder from carrying a firearm in the state, openly or exposed, and from doing so in a “restaurant” or “an establishment that serves alcoholic beverages . . . .” The plaintiff did not seek to have the department apply or examine a regulation or statute with respect to a specified set of circumstances. Rather, because he was “in the process of researching,” he supplied the department with details of general scenarios, such as a permit holder carrying a holstered firearm into a restaurant or an establishment that serves alcoholic beverages, so that the department could then create a list of germane legal authority for him. The plaintiffs e-mail lacks any indication that he sought any form of reasoned analysis or decision from the department. See Cannata v. Dept. of Environmental Protection, supra, 239 Conn. 135.

II

The plaintiff next claims that the court improperly granted the defendants’ motion to dismiss because two exceptions to the doctrine of exhaustion applied in his case. Specifically, the plaintiff argues that he is not required to first petition the department for a declaratory ruling pursuant to § 4-176 because the action for a declaratory judgment he brought in the Superior Court pursuant to General Statutes § 52-29 presents a facial challenge to state statutes that the judicial branch must resolve, and it would be futile to seek a declaratory ruling from the department because the department is biased and lacks the authority to grant the relief he seeks. We are not persuaded.

A

The plaintiff contends that he was not required to first exhaust his administrative remedies by petitioning the department for a declaratory ruling because his action for a declaratory judgment in the Superior Court presented a facial challenge to the constitutionality of the “suitability” requirement of § 29-28 (b), incorporated by reference into General Statutes §§ 29-32b and 29-35. He then argues it is the duty of the judiciary to resolve such challenges. Acknowledging that he did not present this claim to the trial court, the plaintiff seeks review of this claim pursuant to the “exceptional circumstances” doctrine of State v. Evans, 165 Conn. 61, 70, 327 A.2d 576 (1973), as refined by State v. Golding, 213 Conn. 233, 239-40, 567 A.2d 823 (1989). Specifically, the plaintiff calls our attention to McDonald v. Chicago, 561 U.S. 742, 130 S. Ct. 3020, 177 L. Ed. 2d 894 (2010), and argues that review of his claim is warranted under the exceptional circumstances doctrine because “anew constitutional right not readily foreseeable has arisen between the time of trial and appeal.” State v. Evans, supra, 165 Conn. 70; State v. Golding, supra, 213 Conn. 239 n.8; see Imperial Casualty & Indemnity Co. v. State, 246 Conn. 313, 321, 714 A.2d 1230 (1998). We are not persuaded.

In McDonald v. Chicago, supra, 561 U.S. 742, the United States Supreme Court held that a Chicago, and virtually identical Oak Park, municipal ordinance that effectively prevented all inhabitants of those municipalities from possessing a firearm in their home was unconstitutional under the second amendment to the constitution of the United States. Id., 742. In so holding, the Supreme Court, for the first time, applied the second amendment, through incorporation into the fourteenth amendment, to the actions of the states. Id., 749-50. The plaintiff asserts that in light of the Supreme Court’s holding in McDonald, §§ 29-28 (b), 29-32b and 29-35 are unconstitutional on their face because they make a person’s second amendment right to keep and to bear arms contingent upon a “suitability” requirement for which there is no statutory definition or guidance.

The plaintiff, however, has failed to advance any legal analysis explaining to this court how McDonald confers on him a new constitutional right that renders the statutes he identifies unconstitutional on their face. “ [Analysis, rather than mere abstract assertion, is required in order to avoid abandoning an issue by failure to brief the issue properly.” (Internal quotation marks omitted.) State v. Claudio C., 125 Conn. App. 588, 600, 11 A.3d 1086 (2010), cert. denied, 300 Conn. 910, 12 A.3d 1005 (2011). “We do not review constitutional claims that are inadequately briefed.” State v. Bryant, 106 Conn. App. 97, 101 n.4, cert. granted, 287 Conn. 905, 950 A.2d 1282, 940 A.2d 858 (2008); see Townsend v. Hogan, 115 Conn. App. 671, 673 n.l, 974 A.2d 65 (2009) (“[w]e . . . decline to review any vaguely framed or inadequately briefed constitutional issues”). We conclude that the plaintiffs claim of a new constitutional right is inadequately briefed, and, accordingly, we decline to review the plaintiffs unpreserved claim pursuant to the exceptional circumstances doctrine. See State v. Saunders, 114 Conn. App. 493. 504 n.11, 969 A.2d 868, cert. denied, 292 Conn. 917, 973 A.2d 1277 (2009).

B

The plaintiffs final claim is that the court improperly determined that a petition for a declaratory ruling to the department would not be futile or inadequate. Specifically, the plaintiff argues that it would be futile to petition the department for a declaratory ruling because it cannot act in an unbiased manner in interpreting Connecticut’s firearm statutes, and, even if it could, the department lacks the authority to provide the relief he seeks. We disagree.

“It is a settled principle of administrative law that, if an adequate administrative remedy exists, it must be exhausted before the Superior Court will obtain jurisdiction to act in the matter.” (Internal quotation marks omitted.) Pet v. Dept. of Health Services, 207 Conn. 346, 350-51, 542 A.2d 672 (1988). “Notwithstanding the important public policy considerations underlying the exhaustion requirement, [our Supreme Court] has carved out several exceptions from the exhaustion doctrine . . . although only infrequently and only for narrowly defined purposes. . . . Such narrowly defined purposes include when recourse to the . . . remedy would be futile or inadequate.” (Citations omitted; internal quotation marks omitted.) Garcia v. Hartford, 292 Conn. 334, 340, 972 A.2d 706 (2009).

The plaintiff first argues that a petition for a declaratory ruling to the department would be futile because the department is incapable of acting in an unbiased manner. The plaintiff cites Wallingford Center Associates v. Board of Tax Review, 68 Conn. App. 803, 809-10, 793 A.2d 260 (2002), and claims that, as in that case, the administrative remedy available to him is futile because the department cannot agree with the plaintiffs interpretation of § 29-35 without “ ‘backing away’ ” from the position that it takes on a daily basis in revoking state permits and defending appeals from such revocations before the board. We are not persuaded.

In Wallingford Center Associates, the plaintiff appealed from the city tax assessor’s valuation of its property to the defendant board of tax review and, when that was unsuccessful, to the Superior Court. Wallingford Center Associates v. Board of Tax Review, supra, 68 Conn. App. 805. While the appeal to the Superior Court was pending, title to the property changed hands, and the new owner filed a motion to be joined as a party so that it too could challenge the tax assessor’s valuation for the years that it was in ownership of the property. Id. The Superior Court denied the motion reasoning that the new owner had failed to first exhaust its administrative remedies by taking its own appeal to the defendant. Id. We concluded that the new owner did not first need to exhaust its administrative remedies by filing its own appeal with the defendant because, at the time, the defendant was engaged in vigorously defending the same valuation, with respect to the very same piece of property, that the new owner sought to challenge. Id., 810. We reasoned that to require the new owner to appeal to the board itself would be futile because the defendant could not have provided the relief the new owner sought without changing a position that it was then vigorously defending at trial. Id.

In Wallingford Center Associates, the administrative remedy had been exhausted by the old owner, and the new owner of the property sought to join an action properly before the Superior Court. Moreover, the new owner sought a determination with respect to the same issue that the defendant had first addressed in the administrative appeal. In the present case, however, the plaintiff seeks to challenge the language of a statute that, according to the trial court, the department has “never officially” addressed, let alone presented a position that it has defended vigorously. The plaintiff, in fact, has alleged that the department considers the statute ambiguous with respect to a permit holder’s ability to carry a firearm openly in the state. The administrative remedy has not been exhausted and, unlike in Wallingford Center Associates, there is nothing to indicate that requiring the plaintiff to first do so would be mandating an exercise in futility. See Greenwich v. Liquor Control Commission, 191 Conn. 528, 542, 469 A.2d 382 (1983) (“[a] remedy need not be exhausted if to do so would be a futile gesture” [internal quotation marks omitted]).

We are mindful that, “[i]n light of the policy behind the exhaustion doctrine, these exceptions are narrowly construed. See, e.g., Simko v. Ervin, 234 Conn. 498, 507, 661 A.2d 1018 (1995) (plaintiffs’ mere suspicion of bias on part of defendant, without more, not sufficient to excuse them, on ground of futility, from exhaustion requirement); O & G Industries Inc. v. Planning & Zoning Commission, 232 Conn. 419, 429, 655 A.2d 1121 (1995) (actual bias, rather than mere potential bias, of administrative body renders resort to administrative remedies futile); Polymer Resources, Ltd. v. Keeney, [227 Conn. 545, 561, 630 A.2d 1304 (1993)] (mere conclusory assertion that agency will not reconsider decision does not excuse compliance, on basis of futility, with exhaustion requirement); Housing Authority v. Papandrea, [222 Conn. 414, 430, 610 A.2d 637 (1992)] (fact that commissioner previously indicated how he would decide plaintiff’s claim did not excuse compliance, on ground of futility, with exhaustion requirement); Concerned Citizens of Sterling v. Sterling, [204 Conn. 551, 557-60, 529 A.2d 666 (1987)] (futility is more than mere allegation that administrative agency might not grant relief requested).” Fish Unlimited v. Northeast Utilities Service Co., 254 Conn. 1, 13-14, 756 A.2d 262 (2000). We conclude, therefore, that the plaintiffs allegation that the department routinely enforces an adverse interpretation of § 29-35 before the board, if proved, does not render futile the administrative remedy available to him.

The plaintiff next claims that even if he does petition the department for a declaratory ruling, such a petition would be futile because the department lacks the authority to provide the relief he seeks. Specifically, the plaintiff argues that the department’s interpretation of § 29-35 is not binding on municipal law enforcement agencies, which also have the authority to arrest individuals for violations of state criminal law. Thus, according to the plaintiff, the administrative remedy provided by the department is futile because it would require additional litigation before he is conclusively informed of his right to carry a firearm openly throughout the state. We disagree.

“A remedy is futile or inadequate if the decision maker is without authority to grant the requested relief.” (Internal quotation marks omitted.) Garcia v. Hartford, supra, 292 Conn. 340. “The law does not require the doing of a useless thing.” (Internal quotation marks omitted.) Labbe v. Pension Commission, 229 Conn. 801, 813, 643 A.2d 1268 (1994). Section 29-28 (b) grants the department the authority to issue permits, and § 29-32 (b) grants it the authority to revoke them “for cause . . . .” As a corollary to this authority, and pursuant to its obligation to issue a declaratory ruling under § 4-176, the department is able and, indeed, even required to interpret § 29-32 (b). See Connecticut Life & Health Ins. Guaranty Assn. v. Jackson, 173 Conn. 352, 356, 377 A.2d 1099 (1977) (“[A]dministrative agencies must necessarily interpret statutes which are made for their guidance. To rule otherwise would be to ignore the subtle and intricate interaction of law and fact.”). Thus, the department’s authority to revoke a permit for cause necessarily requires it to determine if our statutes proscribe the open carry of a firearm.

To the extent that the plaintiff seeks an unequivocal declaration that he will not be arrested for openly carrying a firearm, it is not the department’s lack of authority that keeps the plaintiff from the remedy he seeks; rather, it is a consequence of the question’s indefinite parameters. “It is inherent in our judicial system of dispute resolution that the interpretation of statutes, like the development of the common law, grows out of the filtering of a set of facts through the law, as seen by the administrator or judge. The result of this application is a hybrid, composed in part of fact, in part of law, which by its existence contributes to the interpretation of a statute. As is recognized by our policy of declining to give advisory opinions . . . and by our desire that even declaratory rulings be grounded in some real controversy, a statute cannot be read in a vacuum but must be illuminated by the force of concrete, everyday pressures.” (Citation omitted.) Id., 356-57. Depending on the specific circumstances, a person who openly carries a pistol conceivably may be subject to arrest for violating several statutes, even if § 29-35 does not prohibit a permit holder from carrying a pistol openly. In sum, if the plaintiff petitions the department for a declaratory ruling by supplying it with specific factual circumstances, the department has the authority to interpret § 29-35 to determine if it allows for the open carry of a firearm under the circumstances provided. If aggrieved, the plaintiff may appeal the department’s ruling to the Superior Court. See General Statutes § 4-183. We will not speculate as to the possible consequences of such a ruling on the arrest actions of municipal law enforcement departments who must enforce all of our criminal statutes. “It is not the [plaintiffs] preference for a particular remedy that determines whether the remedy before the agency is adequate . . . and an administrative remedy, in order to be ‘adequate,’ need not comport with the [plaintiffs] opinion of what a perfect remedy would be.” (Citation omitted.) Connecticut Mobile Home Assn., Inc. v. Jensen’s, Inc., 178 Conn. 586, 590, 424 A.2d 285 (1979). Accordingly, we conclude that a petition to the department for a declaratory ruling would not be futile.

The judgment is affirmed.

In this opinion the other judges concurred.

       The record includes, inter alia, the complaint, the evidence submitted at the March 12, 2009 hearing, affidavits and the court’s memorandum of decision.

       Although the document contained in the record is dated July 28, 2006, at oral argument before this court the plaintiff asserted that the correct date the e-mail was sent was June 28, 2007. In the record, however, the plaintiffs amended second affidavit states that the correct date this e-mail was sent was July 28, 2007. The plaintiffs brief to this court also states the correct date as July 28, 2007. We take the date set forth in the plaintiffs amended second affidavit to be the correct date.

       In his e-mail, the plaintiff asked the following questions: (1) “What state statute(s), regulation^), policies or case law(s) mandates concealment of a firearm while being carried by an individual in possession of a valid license to carry same?”; (2) “What state statute(s), regulation(s), policies or case law(s) prevents the wearing of an exposed firearm while being carried by an individual in possession of a valid license to carry same?”; (3) “What state statute(s), regulation(s), policies or case law(s) establish the standards for concealment of a firearm while being carried by an individual in possession of a valid license to cany same?”; (4) “What state statute(s), regulation©, policies or case law(s) establishes the simple act of carrying of a holstered firearm, by an individual in possession of a valid permit/license to carry same, into a restaurant as an element of a crime?” (5) “What state statute©, regulation©, policies or case law© establishes the simple act of carrying of a holstered firearm, by an individual in possession of a valid permit/license to carry same, into an establishment that serves alcoholic beverages, (such as a bar or restaurant), as an element of a crime?”; (6) “Is there any existing criminal case law where the simple act of carrying of a concealed holstered firearm, (by an individual in possession of a valid permit/ license to carry same), into a restaurant meets the necessary elements contained in [General Statutes §] 53a-181 — Breach of peace in the second degree?”; (7) “Is there any existing criminal case law on the simple act of carrying of an exposed, holstered firearm, (by an individual in possession of a valid permit/license to carry same), into arestaurant meets the necessary elements contained in [§] 53a-181 — Breach of the peace in the second degree?”; (8) “What state statute©, regulation©, policies, case law© or situations grant or provide the authority to a local police officer or department to seize and/or confiscate a pistol permit from the holder of same?”; (9) “What state statute©, regulation©, policies, case law© or situations grant or provide the authority to a local police officer to determine ‘MATURE JUDGMENT’ as the phrase pertains to carrying a firearm by aperson permitted or licensed to do so?”

       The plaintiff also sent an e-mail document entitled “Request and [P] etition for Review, [[Investigation and Declaratory Ruling Reg. Section 29-32b-15” to the board on August 6, 2007, wherein he asked whether a valid permit holder may openly carry a firearm in the state. By e-mail, the board declined to issue a declaratory ruling stating that the plaintiffs request did not conform to the requirements of § 29-32b-15 of the Regulations of Connecticut State Agencies. The plaintiff subsequently filed another such document with the board, which the board declined to address, stating that such a “ruling on the petition as presented . . . would be inappropriate.”

       The department is created pursuant to General Statutes § 29-lb (a). The board is an administrative body that exists within the department; see General Statutes § 29-32b; and the council is an administrative body that exists within the division of state police of the department. See General Statutes § 7-294b; see also General Statutes § 29-lzz.

       General Statutes 4-176 (a) provides: “Any person may petition an agency, or an agency may on its own motion initiate a proceeding, for a declaratory ruling as to the validity of any regulation, or the applicability to specified circumstances of a provision of the general statutes, a regulation, or a final decision on a matter within the jurisdiction of the agency.”

       In its ruling, the court explained that it had concluded the plaintiffs July 28, 2007 e-mail to the department was not a request for a declaratory ruling because it was “not denominated a declaratory ruling, [it gave] no factual background, and lack[ed] any statement of position, factual or legal, on the appropriate declaratory ruling to be given.”

       At oral argument before this court, the department conceded that it has not adopted rules or regulations establishing a prescribed form and filing procedure for petitions for declaratory rulings. Section 4-176 (b) provides: “Each agency shall adopt regulations, in accordance with the provisions of this chapter, that provide for (1) the form and content of petitions for declaratory rulings, (2) the filing procedure for such petitions and (3) the procedural rights of persons with respect to the petitions.”

       We summarily reject the plaintiffs second claim that the department’s failure to adopt rules of practice governing the submission of petitions for declaratory rulings constitutes a waiver of its jurisdiction to rule on such petitions. Section 4-176 statutorily enables a party to petition an agency for a declaratory ruling and imposes a duty on an agency to act pursuant to various deadlines upon the receipt of such a petition. See Southern New England Telephone Co. v. Dept. of Public Utility Control, 64 Conn. App. 134, 141, 779 A.2d 817 (2001), appeal dismissed, 260 Conn. 180, 799 A.2d 294 (2002). The plaintiff has provided this court with no legal support, and our review of the case law has uncovered none, for the novel contention that the rights granted to him by § 4-176 (a), and the duties imposed on the department by § 4-176 (c) through (j) are dependent on the department first promulgating rules pursuant to § 4-176 (b).

       See footnote 3 of this opinion.

       The plaintiff draws our attention to a letter dated June 9, 2009, that the department sent to him in response to six questions, all similar in substance to his original nine questions, that he had e-mailed to them on June 2, 2009. In that letter, the department stated that the newly e-mailed questions appear to “present a request or requests for a declaratory ruling . . . .” The plaintiff argues that the department’s alternating interpretation of his similar questions is proof that a person cannot know the form, content and filing procedure required by the department for consideration of a request for a declaratory ruling. We disagree. As discussed above, § 4-176 (a), which grants aparty the right to file a petition for a declaratory ruling to an agency, does provide standards with which a party may fashion such a petition. In addition, the department’s letter was written by a member of its legal affairs unit and expressly refused to provide answers to his questions because the plaintiffs appeal from the dismissal of his action for declaratory relief in the Superior Court was pending before this court.

       General Statutes § 29-28 (b) provides in relevant part: “Upon the application of any person having a bona fide residence or place of business within the jurisdiction of any such authority, such chief of police, warden or selectman may issue a temporary state permit to such person to carry a pistol or revolver within the state, provided such authority shall find that such applicant intends to make no use of any pistol or revolver which such applicant may be permitted to carry under such permit other than a lawful use and that such, person is a suitable person to receive such permit. ...” (Emphasis added.)

       In a footnote in his appellate brief, the plaintiff also broadly asserts that in light of McDonald v. Chicago, supra, 561 U.S. 742, it is now unconstitutional for Connecticut to prohibit the open carry of a firearm outside the home by one in possession of a permit. “We consistently have held that [ajnalysis, rather than mere abstract assertion, is required in order to avoid abandoning an issue by failure to brief the issue properly.” (Internal quotation marks omitted.) Watkins v. Thomas, 118 Conn. App. 452, 455, 984 A.2d 106 (2009). “Because the law on this issue is unsettled, and the [plaintiffs] claim is inadequately briefed, we decline to review it.” State v. Bruno, 293 Conn. 127, 143 n.13, 975 A.2d 1253 (2009). We, accordingly, do not review this claim.

       General Statutes § 29-28 (b) provides in relevant part: “Upon issuance of atemporary state permit to the applicant, the local authority shall forward the original application to the commissioner [of the department]. Not later than sixty days after receiving a temporary state permit, an applicant shall appear at a location designated by the commissioner [of the department] to receive the state permit. Said commissioner [of the department] may then issue, to any holder of any temporary state permit, a state permit to carry a pistol or revolver within the state. ...”

       General Statutes § 29-32 (b) provides in relevant part: “Any state permit or temporary state permit for the carrying of any pistol or revolver may be revoked by the Commissioner of Public Safetyfor cause and shall be revoked by said commissioner upon . . . the occurrence of any event which would have disqualified the holder from being issued the state permit or temporary state permit . . . (Emphasis added.)

       See, e.g., General Statutes §§ 53a-62 (threatening in second degree), 53a-64 (reckless endangerment in second degree), 53a-181 (breach of peace in second degree), 53a-181a (creating public disturbance) and 53a-182 (disorderly conduct).