author: FOTI, J.

text:
    STATE OF CONNECTICUT v. CARL FISHER
    (AC 29519)
    Flynn, C. J., and Alvord and Foti, Js.

      Argued December 1, 2009
    officially released May 25, 2010

      Timothy F. Butler, with whom, on the brief, was Thomas E. McCabe, for the appellant (defendant).

      Judith Rossi, special assistant state’s attorney, with whom, on the brief, -were Stephen J. Sedensky III, state’s attorney, Robin S. Schwartz, assistant state’s attorney, and Warren Murray, supervisory assistant state’s attorney, for the appellee (state).

       The listing of judges reflects their seniority status on this court as of the date of oral argument.

   Opinion

FOTI, J.

The defendant, Carl Fisher, appeals from the judgment of the trial court revoking his probation pursuant to General Statutes § 53a-32 and committing him to the custody of the commissioner of correction for six years of incarceration, execution suspended after thirty-nine months, followed by ten years probation with special conditions. The defendant makes four claims on appeal. First, the defendant claims that the court impermissibly restricted his cross-examination of a witness and violated his sixth amendment right to confrontation because the state could not provide an audio recording of that witness’ 911 telephone call. Alternatively, if we determine that the court’s ruling was proper, the defendant argues that the court improperly failed to draw a negative inference from the absence of a 911 recording. Next, he claims that the court improperly found that there was sufficient evidence before it to establish, by a preponderance of the evidence, that he violated the terms of his probation by violating a criminal law of another state. The defendant also claims that the court violated his state and federal constitutional rights by sentencing him on the basis of an inference of a lack of remorse improperly drawn from his having remained silent throughout the proceeding. Last, he claims the court exceeded its authority in sentencing him to serve six years incarceration, execution suspended after thirty-nine months, followed by ten years probation with special conditions. We affirm the judgment of the trial court.

The following facts and procedural history underlie the defendant’s appeal. In September, 1997, the defendant was convicted of sexual assault in the first degree and risk of injury to a child as a result of an incident that occurred in 1996. He subsequently was sentenced to a term of ten years incarceration, suspended after four years, followed by ten years of probation with special conditions. Some time after Ms release from incarceration and the commencement of Ms term of probation, the defendant moved to New York City and resided there in a townhouse located at 56 Bank Street. On May 30, 2007, at approximately 9:30 a.m., the New York City police department received a 911 telephone call in wMch the caller, Bittman Rivas, reported that a nude man was on the stoop of the 56 Bank Street townhouse masturbating. Rivas later testified that he saw a wMte lotion on the defendant’s hands while the defendant masturbated on the stoop. Eric Chaffer and Ms partner, both New York City police officers, were dispatched to the address. Upon arrival at the scene, the officers found no one on the stoop. The officers contacted the department’s central dispatching unit, wMch then called Rivas and instructed him to go to the officers’ police crmser located near the scene. Rivas indicated to the officers where the incident took place and described the perpetrator as well as what he had witnessed him doing. The officers then rang the doorbell at 56 Bank Street. After some minutes elapsed, the defendant answered the doorbell. After questioning the defendant for a few moments, the officers requested Ms permission to enter the residence in order to con-tmue their investigation. The defendant consented, and the officers entered the residence with him.

Accompamed by the defendant, the officers examined the entire residence. Chaffer testified that prior to entering the townhouse, he observed a trail of droplets of a “wMte liqmd” wMch he “took to be hand cream” near the doorway just outside the door. He further testified that upon entry, he observed a silver dollar sized “dollop” of the wMte liquid just inside the door on the floor. When Chaffer pointed out the wMte liquid to the defendant, the defendant attempted to wipe away the globules of wMte liqmd with Ms hand and the sole of his slipper. The officers completed their investigation and then placed the defendant under arrest. The defendant was charged with one count each of public lewdness in violation of New York Penal Law § 245.00 and exposure of a person in violation of New York Penal Law § 245.01.

Following the defendant’s arrest in New York, a probation officer in Connecticut filed a violation of probation motion, form JD-CR-59V, alleging that the defendant had violated a criminal law. A violation of probation proceeding followed. At the end of the adjudicative phase of the proceeding, the court found that the defendant had violated the terms of his probation. Then, following the dispositional phase of the proceeding, the court revoked the defendant’s probation and sentenced the defendant to a term of incarceration of six years, suspended after thirty-nine months, followed by ten years of probation. From the judgment revoking probation, the defendant appeals. Additional facts will be set forth as necessary.

I

First, the defendant claims that the court impermissi-bly restricted his cross-examination of Rivas and violated the defendant’s sixth amendment right to confrontation because the state could not provide an audio recording of Rivas’ 911 telephone call. Specifically, he claims that the court improperly failed to strike Rivas’ testimony. Alternatively, if we determine that the court’s ruling was proper, the defendant argues that the court improperly failed to draw a negative inference from the absence of a 911 recording. We disagree.

The following additional facts are relevant to our resolution of the defendant’s claim. On November 15, 2007, the defendant filed with the court a motion to dismiss in which he argued, inter alia, that Rivas’ testimony should be stricken because the failure to preserve a recording of Rivas’ 911 telephone call, as required by New York law, was also a failure by the state to preserve a prior statement of a material witness. The defendant sought, in the alternative, an adverse inference against Rivas and the state, claiming that “the content of the 911 call must be inferred to be favorable to the defendant because the evidence was not preserved under New York law.” On November 16, 2007, after the close of evidence in the adjudicatory phase, the court heard oral argument on the defendant’s motion. The defendant again argued that Rivas’ testimony should be stricken or, because the tape was not preserved and the state relied indirectly on it, that the court “kind of charge [itself] and make [itself] aware that, you know, there was this tape here.” The defendant contended that because Rivas testified that the call lasted ten minutes, but his cellular telephone records that were admitted into evidence indicated that the call lasted only three minutes, the recording was central to the determination of whether the defendant had violated his probation. The court denied the request to strike Rivas’ testimony. In regard to the defendant’s request for an adverse inference to be drawn, the court noted first that the proceeding was before the court rather than a jury. It then stated that, essentially, it understood the defendant’s motion as an appropriate request for the court to consider the absence of the tape as it related to Rivas’ overall credibility.

On December 3, 2007, the defendant filed with the court a corrected motion for a new trial. In it he argued, inter alia, that the court should grant a new trial because it improperly had denied his request to strike Rivas’ testimony or, in the alternative, because it failed to draw a negative inference against the state. The court heard oral argument on the corrected motion for a new trial on December 20, 2007, in which the defendant made essentially the same arguments he had made in his motion to dismiss and the accompanying oral argument on that motion. The court admitted into evidence, without objection, a certified copy of a New York City police department communication division certification that expressly stated that the call “did not record.” See footnote 5 of this opinion. After the court heard both parties on the matter, it denied the motion to dismiss.

On appeal the defendant contends that the “failed disclosure of the [recording of the 911 telephone call] infringed upon the defendant’s sixth amendment right [of confrontation] and his ability to have properly cross-examined Rivas” because the recording was a prior witness statement, the absence of which prejudiced the defendant. In other words, the defendant claims that the missing recording was material evidence that the state was constitutionally required to provide to him and that its failure to do such was harmful. Moreover, the defendant asserts, the state was obligated to provide the recording because under New York law, the police were required to record and to preserve Rivas’ 911 telephone call. The defendant avers that under New York law the “destruction” of 911 recordings would have led to a court in that state fashioning a remedy such as striking Rivas’ testimony or to an adverse inference being drawn as to the contents of the tape. Therefore, he maintains, the state “should not be allowed to derive the benefit of such evidence and then consequently disown the responsibilities imposed by [New York] with respect to such evidence . . . .” Such an argument here is untenable.

Initially, we note that the loss of liberty that results from a revocation of probation is a severe deprivation that requires affording probationers certain constitutional protections during the proceeding. See Payne v. Robinson, 207 Conn. 565, 574, 541 A.2d 504, cert. denied, 488 U.S. 898, 109 S. Ct. 242, 102 L. Ed. 2d 230 (1988); but see State v. Oliphant, 115 Conn. App. 542, 548 n.5, 973 A.2d 147 (noting that “[Revocation of [probation] is not part of a criminal prosecution and thus the full panoply of rights due a defendant in such a proceeding does not apply to [probation] revocations” [internal quotation marks omitted]), cert. denied, 293 Conn. 912, 978 A.2d 1113 (2009). Moreover, “[t]here is no doubt of the constitutional obligation of a prosecutor to disclose all material evidence favorable to an accused in his possession, an obligation that exists without statutory or practice book mandates.” (Internal quotation marks omitted.) State v. Green, 194 Conn. 258, 264 n.6, 480 A.2d 526 (1984), cert. denied, 469 U.S. 1191, 105 S. Ct. 964, 83 L. Ed. 2d 969 (1985).

The record reveals that this is not a case in which the state withheld, destroyed or even lost a recording of a 911 telephone call. Our review of the record reveals that the state never had possession of a recording of Rivas’ 911 telephone call for the mere fact that one never existed. The defendant does not refute that Rivas’ 911 telephone call was never recorded, and, yet, he maintains that the state’s failure to produce such a recording violated his constitutional right of confrontation. “In order to establish [a constitutional violation, however], the defendant must demonstrate [that] the prosecution had possession of material information favorable to the accused .... State v. Falcone, 191 Conn. 12, 17, 463 A.2d 558 (1983); State v. Crumble, 24 Conn. App. 57, 63, 585 A.2d 1245, cert. denied, 218 Conn. 902, 588 A.2d 1077 (1991).” (Emphasis in original; internal quotation marks omitted.) State v. DeMasi, 34 Conn. App. 46, 52, 640 A.2d 138, cert. denied, 230 Conn. 906, 644 A.2d 920 (1994). As a result, we conclude that because the defendant cannot demonstrate that the state ever possessed a recording of Rivas’ 911 telephone call, he has not established a violation of his constitutional right of confrontation.

Moreover, the defendant’s argument, which is that because New York ostensibly was obligated to preserve a recording of Rivas’ 911 telephone call, the court, in essence, was required to treat the absence of the recording as a sanctionable failure of the state, is without merit. First, we have not found, nor has the defendant provided, any case law suggesting that a trial court, when conducting a revocation of probation hearing in which the violation of probation involves the probationer’s having violated a criminal law of another state, must apply the procedural protections afforded in that state under the circumstances presented here. Moreover, on the basis of our review of the record we cannot conclude that it was improper for the court to conclude that, because the recording never existed, the state was under no obligation under statute, the rules of practice or the federal constitution to provide that which did not exist and that it was not obligated to create or to maintain.

In State v. Cain, 223 Conn. 731, 613 A.2d 804 (1992), our Supreme court concluded that “despite the fact that the language of Practice Book § 749 (2) [now § 40-15 (2)], read literally, would cover the tape recording of a 911 telephone call, it is not within the intent of that language to cover such a tape recording and that, therefore, a tape recording of a 911 telephone call is not a statement within the meaning of [Practice Book § 40-15 (2)] that is subject to preservation and to disclosure . . . .” (Internal quotation marks omitted.) Id., 738-39. See State v. Johnson, 288 Conn. 236, 279, 951 A.2d 1257 (2008) (review of our case law generally reveals nothing that would support existence of affirmative duty to create evidence or to record entirety of communications with witnesses). The court, therefore, did not act improperly in denying the defendant’s motion to dismiss and his corrected posttrial motion for a new trial or in denying the defendant’s request to strike Rivas’ testimony.

II

The defendant next claims that the court improperly found that there was sufficient evidence before it to establish, by a preponderance of the evidence, that he violated the terms of his probation by violating a criminal law of another state. We disagree.

“In a probation revocation proceeding, the state bears the burden of proving by a fair preponderance of the evidence that the defendant violated the terms of [her] probation. ... As a reviewing court, we may reverse the trial court’s initial factual determination that a condition of probation has been violated only if we determine that such a finding was clearly erroneous. . . . A finding of fact is clearly erroneous when there is no evidence to support it ... or when although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed. ... In making this determination, every reasonable presumption must be given in favor of the trial court’s ruling . . . .” (Citation omitted; internal quotation marks omitted.) State v. Lanagan, 119 Conn. App. 53, 59-60, 986 A.2d 1113 (2010).

Rivas testified at the defendant’s revocation hearing, as did Chaffer. The court noted that Rivas was the only individual who had witnessed the defendant on the stoop that morning. The court found that there was nothing in the evidence before it to indicate that Rivas had any motivation to testify as he did “other than his belief in what he observed.” The court stated, nevertheless, that “[i]t would be difficult for this court to find, even by a preponderance of the evidence, that [the defendant] had violated the terms of ... his probation based solely on the testimony of . . . Rivas.” The court, however, noted Chaffer’s corroborating testimony. Particularly, the court noted “the corroborating testimony of [Chaffer’s] observations of the white cream or liquid present at the scene, which become the link to the observations of . . . Rivas, who stated [that] he saw a white cream on [the defendant’s] hands while he was naked and touching himself, or masturbating, on the front porch.” The court then expressly found that Chaffer’s testimony was corroborative of Rivas’ testimony.

The defendant argues in support of his claim that he proffered substantial evidence that “significantly challenged the motive and credibility of [Rivas],” and, therefore, the court’s finding that the defendant violated his probation based on the exhibits and testimony was clearly erroneous. We reject this claim.

As a reviewing court, we may not retry the case or pass on the credibility of witnesses. Statewide Grievance Committee v. Dixon, 62 Conn. App. 507, 511, 772 A.2d 160 (2001). Our review of factual determinations is limited to whether those findings are clearly erroneous. Practice Book § 60-5; State v. $7379.54 United States Currency, 80 Conn. App. 471, 474-75, 844 A.2d 220 (2003). We must defer to the trier of fact’s assessment of the credibility of the witnesses, which is made on the basis of its firsthand observation of their conduct, demeanor and attitude. Boulware v. Commissioner of Correction, 66 Conn. App. 869, 872, 786 A.2d 456 (2001), cert. denied, 259 Conn. 913, 791 A.2d 564 (2002).

The court, as the finder of fact, found that Rivas’ and Chaffer’s testimony was credible. The weight to be given to the evidence and to the credibility of witnesses is solely within the determination of the trier of fact. State v. Bostwick, 52 Conn. App. 557, 561, 728 A.2d 10, appeal dismissed, 251 Conn. 117, 740 A.2d 381 (1999). The court performed its duty, and we will not usurp its function. See State v. Campbell, 61 Conn. App. 99, 103, 762 A.2d 12, cert. denied, 255 Conn. 934, 767 A.2d 105 (2000).

Ill

The defendant also claims that the court violated his state and federal constitutional rights by sentencing him based on an inference of a lack of remorse improperly drawn from Ms having remained silent tMoughout the proceeding. We disagree.

On November 20, 2007, the court commenced the dispositional phase of the revocation hearing. After hearing testimony from David Carter, the defendant’s Connecticut probation officer, as well as Eric Goldsmith, a forensic psycMatrist, the court revoked the defendant’s probation and sentenced him to serve six years of incarceration, execution suspended after thirty-nine months, followed by ten years probation with special conditions. During its oral decision, the court stated to the defendant: “I gave you your chance . . . and you’ve never [taken responsibility for your actions] and you had numerous opportuMties to do that gomg back to 1997, with the offenses there, with the offenses here, and all along the way tMough probation. And it was pointed out—and I think appropriately so— by [the state], as I looked at the offender’s attitude m your 1997 presentence investigation, and it was one of total and complete deMal, as it is here today, one of total and complete demal.”

In Ms corrected motion for a new trial, the defendant argued that the court “wrongfully inferred that [he] had no remorse for Ms actions in 1996 because he chose not to testify” at Ms probation revocation hearing. Specifically, the defendant claimed that “[f]or the [c]ourt to state that [he] did not have remorse for Ms action . . . merely because he did not make a statement prior to sentencmg is a violation of [Ms] constitutional right[s]” that materially prejudiced him. On December 20, 2007, the court held a hearing on the defendant’s corrected motion for a new trial during wMch it addressed tMs claim. The court stated: “[L]et me be very clear that when I imposed the sentence upon [the defendant], the sentence that I imposed, in no way, shape or form, was reflective of the fact that [the defendant] being within Ms rights not to make a statement at sentencing if he chose not to—he chose not to. He was within his rights. I absolutely agree with that, that he is within his rights not to say anything if he chooses not to. . . . So, I want it to be perfectly clear that I agree that he was within his rights, but I also think it should be absolutely clear—if it wasn’t then ... it should be now—that the sentence I imposed had nothing to do with the fact that he chose not to make a statement at sentencing. The sentence that I imposed was based upon a number of other [factors] with regard to the terms of his probation—which he violated—[and] the length of time he owed on his probation.” The court subsequently orally denied the defendant’s motion for a new trial. On appeal, the defendant argues that in sentencing him, the court improperly relied on the inference that he lacked remorse because it cited no eviden-tiary basis, other than his silence at the hearing, from which it could infer that he lacked remorse, and, therefore, it violated his rights under the federal and state constitutions.

As a general matter, a trial court possesses, within statutorily prescribed limits, broad discretion in sentencing matters in revocation of probation hearings. See State v. Mapp, 118 Conn. App. 470, 984 A.2d 108 (2009), cert. denied, 295 Conn. 903, 988 A.2d 879 (2010). On appeal, we will disturb a trial court’s sentencing decision only if that discretion clearly has been abused. See State v. Daniels, 248 Conn. 64, 73, 726 A.2d 520 (1999). The fifth amendment to the United States constitution by its terms precludes a person from being “compelled in any criminal case to be a witness against himself . . . .” “The fifth amendment privilege against self-incrimination not only protects the individual against being involuntarily called as a witness against himself in a criminal prosecution but also privileges him not to answer official questions put to him in any other proceeding, civil or criminal, formal or informal, where the answers might incriminate him in future criminal proceedings.” (Internal quotation marks omitted.) Olin Corp. v. Castells, 180 Conn. 49, 53, 428 A.2d 319 (1980). “The privilege against self-incrimination also carries with it the added benefit that no adverse inference may be drawn against the accused in any criminal proceeding from the accused’s invocation of the privilege.” In re Samantha C., 268 Conn. 614, 635, 847 A.2d 883 (2004). That benefit, that no adverse inference may be drawn by the invocation of the privilege, extends to sentencing hearings as well. See Mitchell v. United States, 526 U.S. 314, 326, 119 S. Ct. 1307, 143 L. Ed. 2d 424 (1999) (only where sentence fixed and judgment of conviction final is there no basis for assertion of fifth amendment privilege against self-incrimination). Cf. State v. Kelly, 256 Conn. 23, 80, 770 A.2d 908 (2001) (“[a]ugmentation of sentence based on a defendant’s decision to stand on [his or her] right to put the [state] to its proof rather than plead guilty is clearly improper” [internal quotation marks omitted]). Furthermore, a determination of whether the court sentenced the defendant on the basis of an adverse inference improperly drawn because of his invocation of the privilege should be based on the totality of the circumstances. Cf. id., 82 (review of claims that trial court lengthened sentence as punishment for exercising constitutional right to jury trial should be based on totality of circumstances).

At the time of sentencing, the court provided a lengthy and detailed analysis of its reasoning behind imposing the sentence that it did. During that discussion, the court pointed to several factors that supported its reasoning. The court first underscored that probation was not a right but a privilege for the defendant to remain incarcerated for less than the full duration of the sentence imposed. The court stated that the privilege of probation, in essence, was based on the expectation that the defendant would abide by the conditions of his probation, including, in part, engaging in rehabilitative treatment. The court indicated its awareness of the progress that the defendant had made in adhering to the conditions of probation and engaging in rehabilitative treatment, noting that he had been downgraded to a less intensive level of supervision because he had been deemed in compliance with the conditions of his probation since his release from prison. The court, however, noted that the defendant’s compliance with the terms of his probation, as well as his progress, were not the only factors to be assessed in determining how best to protect society from him while aiding him in his rehabilitation. The court stressed its need, in imposing its sentence, to balance both the punitive and rehabilitative aspects of that sentence with the need to protect society from future harm. The court then concluded that the defendant had neglected to address properly the “sexually deviant urges” that led him to commit the acts that culminated in his arrest in New York. It also stated that the neglect exhibited by the defendant led directly to the acts and that that circumstance was relevant to sentencing. The court then asserted that an overarching concern in fashioning an appropriate sentence was, in light of the acts committed, its desire to protect society from such further acts of the defendant for as long as possible under the circumstances and within its mandate. In so doing, the court eschewed Carter’s recommendation that the defendant be incarcerated for the remaining six years of the 1997 sentence. The court expressed its desire to fashion a sentence that would extend supervision over the defendant by imposing a lesser time of incarceration along with a period of probation, thereby imposing a sentence that conforms with the considerations of punishment, deterrence and rehabilitation. The court then expressed its concerns that the defendant was not amenable to rehabilitation and made the comments noted previously that the defendant complains on appeal violated his rights under the federal constitution.

On the basis of our review of the record, we conclude that the totality of the circumstances surrounding the defendant’s sentencing gives no indication that the court improperly augmented the defendant’s sentence on the basis of his decision to exercise his privilege to remain silent throughout the revocation hearing. See State v. Kelly, supra, 256 Conn. 82. As the court noted during its sentencing of the defendant, it gave particular consideration to both punishment and deterrence, as well as the rehabilitation of the defendant. Its comments during the sentencing about its concerns over the prospect of the defendant’s rehabilitation, as expressed by the court at that time, in large part, were centered around the defendant’s apparent denial as to the incidents that led to his 1997 conviction, which were reflected in the evidence before the court. Moreover, in addressing the defendant’s concerns raised in his corrected motion for a new trial, the court clarified that the imposition of the sentence on the defendant was “in no way, shape or form” influenced by the defendant’s remaining silent through the hearing. Although the defendant asserts that the court’s comments made on December 20,2007, addressing the defendant’s sentencing were a “patently inappropriate attempt to salvage its unconstitutional remarks,” we conclude that they are inherently part of the totality of the circumstances that we are required to review when addressing a claim that a trial court lengthened a sentence as punishment for exercising a constitutional right. Cf. Johnson v. Rell, 119 Conn. App. 730, 733 n.3, 990 A.2d 354 (2010) (“[t]he purpose of an articulation is to dispel any . . . ambiguity by clarifying the factual and legal basis upon which the trial court rendered its decision, thereby sharpening the issues on appeal” [internal quotation marks omitted]); see also Perugini v. Devino, 111 Conn. App. 436, 443, 959 A.2d 1031 (2008) (purpose of clarification is to take prior statement, decision or order and make it easier to understand.) As a result, we conclude that the court did not impermissibly augment the defendant’s sentence for exercising his privilege to remain silent during the revocation hearing. Therefore this claim fails.

IV

Last, the defendant claims the court exceeded its authority in sentencing him to serve six years incarceration, execution suspended after thirty-nine months, followed by ten years probation with special conditions. Specifically, the defendant argues that the court abused its discretion in imposing a sentence to serve thirty-nine months incarceration because it did not fairly reflect the seriousness of the violation of probation. This is so because the underlying criminal conduct that led to the revocation of his probation was punishable by a maximum sentence of ninety days. We disagree.

We note that “[t]he element of ‘punishment’ in probation revocation of [the] defendant is attributable to the crime for which he was originally convicted and sentenced. Thus, any sentence [the] defendant had to serve as the result of the [probation] violation . . . was ‘punishment’ for the crime of which he had originally been convicted. Revocation is a continuing consequence of the original conviction from which probation was granted.” State v. Smith, 207 Conn. 152, 178, 540 A.2d 679 (1988). Accordingly, the defendant’s argument is misplaced because the thirty-nine month sentence is punishment for the criminal conduct that led to his 1997 conviction. As the state properly recognizes, a challenge to the length of the sentence should be made through the sentence review process under General Statutes § 51-195.

Insofar as the defendant claims that the court abused its discretion in concluding that the rehabilitative and beneficial aspects of probation were not being met, we conclude that this argument lacks merit. We conclude that on the basis of the whole record, the court properly considered whether the beneficial aspects of probation were being served and, therefore, did not abuse its discretion by revoking the defendant’s probation and reinstating the remainder of the defendant’s original sentence. See part III of this opinion; see also State v. Hedge, 89 Conn. App. 348, 351, 873 A.2d 254, cert. denied, 274 Conn. 917, 879 A.2d 894 (2005). This claim, accordingly, fails.

The judgment is affirmed.

In this opinion the other judges concurred.

       The sixth amendment to the United States constitution provides in relevant part: “In all criminal prosecutions, the accused shall enjoy the right ... to be confronted with the witnesses against him

       The facts underlying the defendant’s conviction are set out in State v. Fisher, 52 Conn. App. 825, 826-27, 729 A.2d 229, cert. denied, 249 Conn. 912, 733 A.2d 232 (1999).

       We note that the defendant has not submitted a transcript signed by the trial court. See Practice Book § 64-1. He did submit, however, an unsigned transcript. “On occasion, we will entertain appellate review of an unsigned transcript when it sufficiently states the court’s findings and conclusions.” (Internal quotation marks omitted.) State v. Oliphant, 115 Conn. App. 542, 544, 973 A.2d 147, cert. denied, 293 Conn. 912, 978 A.2d 1113 (2009). We have reviewed the unsigned transcript and conclude that it provides an adequate record for review of each of the defendant’s claims.

       The motion was entitled: “Defendant’s Objection to State’s Missing Witness Notice; Defendant’s Notice of the State’s Missing Witnesses; and Motion to Dismiss With Prejudice.”

       On August 31, 2007, the defendant filed a request for disclosure and production seeking, in part, exculpatory information generally and, specifically, “any statements of the witnesses in the possession of the prosecuting authority . . . including state and local law enforcement officers, which statements relate to the subject matter about which each witness will testify . . . .” On September 5, 2007, at the commencement of the adjudicatory portion of the probation hearing, the defendant sought a continuance, in part, because the state had failed to comply fully with his discovery request. The defendant indicated to the court that he had yet to receive from the state a copy of the recording of Rivas’ 911 telephone call. The defendant contended that he could not effectively cross-examine Rivas without the recording of the 911 telephone call. The state, in response, indicated to the court that it had been notified by the communication division of the New York City police department that Rivas’ 911 telephone call had not been recorded. It also indicated that the defendant had been furnished with a certified copy of a New York City police department communication division certification that expressly stated that the call “[d]id [n]ot [rjecord.” The court denied the defendant’s motion, and the hearing proceeded.

       The defendant purports that § 5203 (e) of title 21 of the New York Codes, Rules and Regulations required the police to record Rivas’ 911 telephone call. Section 5203.2 (e) provides in relevant part: “Recorder system. The [local governmental authority operating the public safety answering point] shall: (1) ensure that all emergency communications to and from all [public safety answering points], including telephone and radio transmissions, shall be recorded; (2) have a written policy establishing procedures for the playback and recording of emergency communications; (3) have a written policy for the securing and storage of recordings; (4) establish criteria, and have a written policy for, access to recordings; (5) retain [public safety answering point] recordings for at least 90 days; and (6) ensure that instant playback units are located at all call-taker positions.”
      A public safety answering point is “a site designated and operated by a governmental entity for the purpose of receiving emergency calls from customers of a wireless telephone service supplier.” N.Y. Comp. Codes R. & Regs. tit. 21, § 5203.1 (a).

       We express no opinion as to whether, under New York law, the failure of the police to record Rivas’ 911 telephone call would expose the prosecuting authority to sanctions in a criminal proceeding there.

       The court summarized Rivas’ testimony as follows: “The primary witness for the state was Bittman Rivas. He testified he was working on the day in question, May 30, 2007, he was walking down 12th Street, which intersects with Bank Street, at approximately 9:30 in the morning. He saw the person later identified as [the defendant] on [the defendant’s] front porch, or stoop, naked, and . . . touching himself in his private area. [Rivas] stated he believed [the defendant] was masturbating. . . . Rivas [testified that he] was twenty-five to thirty feet away from [the defendant]. . . . Rivas believes he witnessed the event up to six times, six times [the defendant] coming in and out of the doorway and emerg[ing] outside, naked, masturbating. . . .
      “Rivas indicated he could see a white cream or liquid on his hand while he was touching himself. . . . Rivas was across the street on the side of a restaurant looking through a window while making this observation. . . . There [were] no other eyewitnesses to corroborate . . . Rivas’ testimony.”

       The court summarized Chaffer’s testimony as follows: “ [Chaffer] testified that he responded to [a] 911 call; he found . . . Rivas and asked him what he [had seen]; he then went to [the defendant’s] doorway; the [defendant] was [dressed] in a T-shirt, sweatpants and some kind of flip-flops; he came outside. While being questioned by [Chaffer], a white cream or liquid— described by . . . Chaffer as dollops—were observed on the ground both inside and outside of [the defendant’s] door. The officer also testified he observed the cream on the doorknob.”

       Although the defendant asserts that the court’s actions violated both the state and federal constitutions, he has failed to provide the analysis required by State v. Geisler, 222 Conn. 672, 684-85, 610 A.2d 1225 (1992), that is a prerequisite to asserting an independent claim under the state constitution. See Hogan v. Dept. of Children & Families, 290 Conn. 545, 567-68, 964 A.2d 1213 (2009) (refusing to address plaintiffs state constitutional claim where plaintiff failed to provide Geisler analysis). We therefore limit our analysis to the defendant’s claim under the federal constitution.

       See State v. Hedge, 89 Conn. App. 348, 351, 873 A.2d 254 (“In determining whether to revoke probation, the trial court shall consider the beneficial purposes of probation, namely rehabilitation of the offender and the protection of society. . . . The important interests in the probationer’s liberty and rehabilitation must be balanced, however, against the need to protect the public.” [Internal quotation marks omitted.]), cert. denied, 274 Conn. 917, 879 A.2d 894 (2005).

       Those comments were: “I gave you your chance . . . and you’ve never done that, and you had numerous opportunities to do that going back to 1997, with the offenses there, with the offenses here, and all along the way through probation. And it was pointed out—and I think appropriately so— by [the state], as I looked at the offender’s attitude in your 1997 presentence investigation, and it was one of total and complete denial, as it is here today, one of total and complete denial.”

       The defendant also claims that because the court sentenced him to serve thirty-nine months incarceration and not the full six years of his remaining sentence left not served, thereby reinstating the remainder of his original sentence, the court abused its discretion. Because in a revocation of probation hearing a “court may continue or revoke the sentence of probation . . . [and] . . . require the defendant to serve the sentence imposed or impose any lesser sentence”; (emphasis added; internal quotation marks omitted) State v. Mapp, supra, 118 Conn. App. 478; this claim has no merit.


source: Caselaw Access Project

author: DiPENTIMA, J.

license: Public Domain

text:
    FRANK ADDONA v. ADMINISTRATOR, UNEMPLOYMENT COMPENSATION ACT, ET AL.
    (AC 30721)
    Bishop, DiPentima and Beach, Js.

    Argued February 8
    officially released May 25, 2010

      Richard T. Sponzo, assistant attorney general, with whom, on the brief, were Richard Blumenthal, attorney general, and Thomas P. Clifford III and Philip M. Schulz, assistant attorneys general, for the appellant (named defendant).

      Frank Addona, pro se, the appellee (plaintiff).

       The listing of judges reflects their seniority status on this court as of the date of oral argument.

   Opinion

DiPENTIMA, J.

The defendant administrator of the Unemployment Compensation Act appeals from the judgment of the trial court reversing the decision of the employment security board of review (board). The board had affirmed the decision of an appeals referee of the employment security appeals division who had found that the plaintiff, Frank Addona, was not entitled to unemployment compensation benefits. On appeal, the defendant claims that the court improperly determined that the plaintiff had been denied due process of law. We agree and, accordingly, reverse the judgment of the trial court.

The record reveals the following facts. On March 7, 2007, the plaintiff, who had been employed full-time as a plater since 1985, spoke with the union president regarding upcoming negotiations with respect to a new contract. On March 9, 2007, the plaintiff expressed his displeasure with a part of the new contract. The plaintiff was advised that he should remain in his assigned work area and refrain from creating a disturbance. Later that day, the plaintiff left his work area and initiated a verbal conflict with his coworkers. As result of this second incident, the plaintiff was suspended from his employment with Sargent Manufacturing Company (Sargent), for a period of seven weeks. The plaintiff filed a claim for unemployment compensation benefits for this seven week period, which the defendant denied on March 29, 2007. The basis for the denial was that the plaintiff had “violated policy by creating a disturbance in the workplace, raising his voice, and speaking in an inappropriate and offensive manner to co-workers, and calling at least one co-worker an idiot.”

The plaintiff appealed the denial of his request for unemployment compensation benefits to the appeals referee. See General Statutes § 31-237j. The referee conducted a de novo hearing over two days. On April 19, 2007, the plaintiff, along with Tony Fasulo, a manager at Sargent, and Jan Tantimonico, the human resources manager of Sargent, appeared in person before the referee. On May 1, 2007, however, the same three individuals participated in the continued hearing by telephone. Sargent did not present any of the witnesses who directly had observed the plaintiffs conduct on the day that he was suspended. Instead, Fasulo and Tantimonico testified as to what these witnesses had reported to them. Thereafter, on May 4,2007, the referee affirmed the defendant’s decision to deny benefits. Specifically, the referee set forth the following: “In this case [Sargent] presented largely hearsay testimony. However, Tantimonico’s firsthand testimony about her receipt of complaints corroborates [Sargent’s] basic allegations: the [plaintiff] became overly angry about the union contract. After being warned to refrain from making a disturbance, later in the day the [plaintiff] revisited his views, creating a disturbance as revealed by numerous employees’ complaints. The ¡plaintiffs] testimony corroborates [Sargent’s] assertion that he resumed his angry tirade well after he initially spoke with [fellow employee] Bobby Cox that morning.” (Emphasis altered.) The referee concluded that the plaintiff unreasonably prolonged the argument, after being directed to refrain from such conduct, and that such conduct constituted wilful misconduct in the course of his employment. Accordingly, the plaintiff was disqualified from receiving unemployment compensation pursuant to General Statutes § 31-236 (a) (2) (B).

The plaintiff filed an appeal with the board pursuant to General Statutes § 31-249. The plaintiff argued that the referee improperly prevented him from testifying in person and that there were technical difficulties with his telephone testimony. The board adopted the findings and conclusions of the referee, affirmed the decision of the referee and dismissed the plaintiffs appeal. The board concluded: “Creating unwarranted disruption in the workplace is wilful misconduct. . . . The referee ruled that the incident which led to the [plaintiffs suspension] was not a single hot-headed incident, because he found that the [plaintiff] continued to rail against the union negotiating committee members even when he was given the opportunity to calm down. Although [Sargent] did not bring any firsthand witnesses to the [plaintiffs] conduct, [Sargent] produced the testimony of a manager and [the] human resource manager who received the complaints from several named employees who were offended and upset about the [plaintiffs] becoming agitated and raising his voice at them while they tried to work. The manager advised the [plaintiff] not to go around yelling at people because he would get in trouble and advised him not to leave his work area. . . . The [plaintiff] admitted that he was upset when a contractual provision was not included in the union contract and that he raised his voice and called another employee an idiot.”

The plaintiff appealed from the board’s decision to the Superior Court on August 3, 2007. The plaintiff raised seven issues in his appeal: (1) whether the referee improperly admitted into evidence his 2004 suspension and several documents related to that incident; (2) whether the referee and board improperly considered various hearsay statements made by Fasulo and Tanti-monico; (3) whether the referee and board improperly considered Fasulo’s statements despite the fact that he contradicted himself; (4) whether the referee and board’s reliance on hearsay statements of Fasulo and Tantimonico resulted in a due process violation; (5) whether the referee and board improperly failed to consider Fasulo’s statements that he was aware that the plaintiff often left his assigned area as part of his duties; (6) whether the referee improperly conducted a part of the hearing by telephone, despite the plaintiffs objection, as well as in an unprofessional manner; and (7) whether the referee and board improperly concluded that the plaintiff was suspended for wilful misconduct.

The court determined that the due process claim was dispositive of the plaintiffs appeal. Specifically, it concluded that “in the circumstances of this case, the plaintiff had met his burden of demonstrating that he suffered substantial prejudice as the result of procedural defects in the conduct of the hearing. The court finds that the combination of a telephone hearing, conducted over objection and without explanation, with the admission of nearly exclusive hearsay, rises to the level of a procedural due process violation. The court finds that hearsay evidence constituted the substantial basis for the denial of unemployment compensation benefits to the plaintiff and concludes that said circumstance, in combination with a telephone hearing, warrants remedial action by the court.” Accordingly, it sustained the appeal and ordered the board to remand the case to a referee for a new hearing. This appeal followed. Additional facts will be set forth as necessary.

As a preliminary matter, we note the unique place this type of appeal holds in our appellate jurisprudence. “[Ajppeals from the board to the Superior Court are specifically exempted from governance by General Statutes § 4-166 et seq., the Uniform Administrative Procedure Act. All appeals from the board to the court are controlled by [General Statutes] § 31-249b.” Calnan v. Administrator, Unemployment Compensation Act, 43 Conn. App. 779, 783, 686 A.2d 134 (1996); see also Shah v. Administrator, Unemployment Compensation Act, 114 Conn. App. 170, 175, 968 A.2d 971 (2009). We also are mindful of the remedial nature of our state’s statutory scheme of unemployment compensation. Church Homes, Inc. v. Administrator, Unemployment Compensation Act, 250 Conn. 297, 306, 735 A.2d 805 (1999). This remedial purpose, however, does not support the granting of benefits to an employee guilty of wilful misconduct. Todd v. Administrator, 5 Conn. App. 309, 312, 497 A.2d 1035 (1985).

We now set forth our standard of review. “In appeals under ... § 31-249b, the Superior Court does not retry the facts or hear evidence but rather sits as an appellate court to review only the record certified and filed by the board of review. Practice Book § 519 [now § 22-9]. The court is bound by the findings of subordinate facts and reasonable factual conclusions made by the appeals referee where, as here, the board of review adopted the findings and affirmed the decision of the referee. . . . Judicial review of the conclusions of law reached administratively is also limited. The court’s ultimate duty is only to decide whether, in light of the evidence, the board of review has acted unreasonably, arbitrarily, illegally, or in abuse of its discretion.” (Citations omitted; internal quotation marks omitted.) Burnham v. Administrator, 184 Conn. 317, 321-22, 439 A.2d 1008 (1981); see also Mattatuck Museum-Mattatuck Historical Society v. Administrator, 238 Conn. 273, 276, 679 A.2d 347 (1996). Nonetheless, issues of law afford a reviewing court a broader standard of review when compared to a challenge to the factual findings of the referee. See United Parcel Service, Inc. v. Administrator, 209 Conn. 381, 385, 551 A.2d 724 (1988).

In the present case, the court determined that the combination of the hearsay testimony and the telephone hearing resulted in a violation of due process. At the outset, we note that § 31-237g-17 of the Regulations of Connecticut State Agencies expresses a preference for in-person hearings but allows for hearings by telephone. Additionally, the board consistently has concluded that telephone hearings do not violate due process and are constitutional. See, e.g., Bizub v. Fitness 4000, LLC, Employment Security Appeals Division Board of Review, Case No. 983-Br-06 (August 18, 2006) (stating both federal and state court have ruled that telephone hearings satisfy due process); Smith v. Tempo Staffing, Employment Security Appeals Division Board of Review, Case No. 124-BR-03 (March 5, 2003) (citing Gerardi v. Administrator, Unemployment Compensation Act, Superior Court, judicial district of Hartford-New Britain at Hartford, Docket No. 288425 [June 14,1984]); Langevin v. Barrieau Express, Inc., Employment Security Appeals Division Board of Review, Case No. 196-BR-01 (March 16, 2001) (citing case law and board decisions concluding that telephone hearing are constitutional); Morales v. Dolce International Heritage, Inc., Employment Security Appeals Division Board of Review, Case No. 1535-BR-98 (October 20, 1998) (stating federal, state courts have determined that telephone hearings not violative of due process and are constitutional). Last, we note that sibling authorities have concluded that telephone hearings in the context of unemployment compensation benefits are permissible and described them as “a pragmatic solution, made possible by modem technology, which attempts to reconcile the problem of geographically separated adversaries with the core elements of a fair adversary hearing . . . .” Slattery v. Unemployment Ins. Appeals Board, 60 Cal. App. 3d 245, 251, 131 Cal. Rptr. 422 (1976); see also Greenberg v. Simms Merchant Police Service, 410 So. 2d 566 (Fla. App. 1982); Babcock v. Employment Division, 72 Or. App. 486, 489-91, 696 P.2d 19 (1985).

Looking at the second part of the court’s conclusion, we begin by noting that hearsay testimony, so long as it is sufficiently trustworthy, generally is admissible in administrative hearings. Carlson v. Kozlowski, 172 Conn. 263, 266, 374 A.2d 207 (1977); see also Richardson v. Perales, 402 U.S. 389, 91 S. Ct. 1420, 28 L. Ed. 2d 842 (1971). The General Assembly expressly has provided that “[t]he referees and the board shall not be bound by the ordinary common law or statutory rules of evidence or procedure.” (Emphasis added.) General Statutes § 31-244a. “Nonetheless, procedural due process is a requirement of adjudicative administrative hearings . . . and the admission of hearsay material . . . without an opportunity to cross-examine is ordinarily a deprivation of procedural due process.” Balkus v. Terry Steam Turbine Co., 167 Conn. 170, 177, 355 A.2d 227 (1974). In the present case, none of the employees present for the verbal conflicts involving the plaintiff testified either in person or by telephone. Only Fasulo and Tantimonico appeared for the two hearings, and neither was present during either incident on March 9, 2007. The referee found that “[s]everal employees informed . . . Tantimonico that they felt uncomfortable about the [plaintiffs] anger and use of profanity.” The plaintiff was unable to cross-examine these coworkers and those involved in the verbal confrontation. We also note that the referee’s written decision states: “In this case [Sargent] presented largely hearsay testimony.”

Even if we assume, arguendo, that the plaintiff was denied due process by the admission of and reliance on unreliable hearsay evidence, we conclude that he did not suffer material prejudice as a result. The plaintiff himself testified that he engaged in a second confrontation after the initial incident. The referee found that it was that conduct that formed the basis for his conclusion that the plaintiff had engaged in wilful misconduct and thus resulted in the plaintiffs ineligibility to receive unemployment compensation benefits pursuant to § 31-236 (a) (2) (B). In other words, there was other evidence, namely, the plaintiffs own testimony, apart from the hearsay evidence on which the referee found wilful misconduct. We conclude, therefore, that the plaintiff was not harmed by the referee’s consideration of the hearsay evidence presented by Sargent. See Testone v. C. R. Gibson Co., 114 Conn. App. 210, 219, 969 A.2d 179 (harmless error if record as a whole supports ultimate conclusion of agency), cert. denied, 292 Conn. 914, 973 A.2d 663 (2009); see also Megin v. Zoning Board of Appeals, 106 Conn. App. 602, 614, 942 A.2d 511, cert. denied, 289 Conn. 901, 957 A.2d 871 (2008); Crabtree Realty Co. v. Planning & Zoning Commission, 82 Conn. App. 559, 571, 845 A.2d 447, cert. denied, 269 Conn. 911, 852 A.2d 739 (2004).

In his brief, the plaintiff claims that he never admitted to wilful misconduct and that there never was “an angry tirade.” The referee, however, expressly found that the plaintiffs testimony corroborated Sargent’s assertion that he had resumed his “angry tirade” well after the initial incident. The plaintiff did not file a motion for correction of the findings in accordance with Practice Book § 22-4. Our case law is clear that the failure to file such a motion acts as a bar to any further review of the facts found in an unemployment compensation benefits hearing. See JSF Promotions, Inc. v. Administrator, Unemployment Compensation Act, 265 Conn. 413, 422-23, 828 A.2d 609 (2003); Reeder v. Administrator, Unemployment Compensation Act, 88 Conn. App. 556, 558, 869 A.2d 1288, cert. denied, 275 Conn. 918, 883 A.2d 1245 (2005); Catnan v. Administrator, Unemployment Compensation Act, supra, 43 Conn. App. 784-85.

We conclude that the court improperly concluded that the combination of the telephone hearing and the use of hearsay evidence denied the plaintiff his right to due process. We are persuaded that the record fails to establish any infirmity as to the telephone hearing and that any impropriety with respect to the hearsay evidence was harmless as a result of the plaintiffs own testimony.

The judgment of the trial court is reversed as to the plaintiff’s due process claim and the case is remanded to that court for consideration of the plaintiff’s remaining claims.

In this opinion the other judges concurred.

       The plaintiffs employer, Sargent Manufacturing Company, was a defendant at trial but is not involved in this appeal. We refer in this opinion to the administrator of the Unemployment Compensation Act as the defendant.

       Specifically, the plaintiff voiced his complaints to “lead man” Bobby Cox.

       “The employment security administrative appellate system established pursuant to General Statutes § 31-237b provides for an employment security board of review and a referee section which are separate and apart from the administrator of the unemployment act.” Robinson v. Unemployment Security Board of Review, 181 Conn. 1, 2, 434 A.2d 293 (1980).

       General Statutes § 31-327j (a) provides in relevant part: “The referees shall promptly hear and decide appeals from the decisions of the administrator of this chapter, or his designee, appeals from all other determinations made pursuant to any provision of this chapter and appeals from any proceeding conducted by authorized personnel of the Employment Security Division pursuant to directives of the United States of America and the Secretary of Labor of the United States. ...”

       See Valley Surgical Group, P.C. v. Administrator, 6 Conn. App. 588, 589, 506 A.2d 1075 (appeals referee conducts de novo hearing of administrator’s decision), cert. denied, 200 Conn. 802, 509 A.2d 516 (1986).

       The board did make certain minor corrections to the referee’s findings.

       See General Statutes § 31-249b and Practice Book § 22-1.

       Accordingly, the court reasoned that it was not necessary to reach the merits of the other claims raised by the plaintiff.

       Our Supreme Court has stated: “Under our existing case law, we have distinguished . . . between two kinds of administrative remands. A trial court may conclude that an administrative ruling was in error and order further administrative proceedings on that very issue. In such a circumstance, we have held the judicial order to be a final judgment, in order to avoid the possibility that further administrative proceedings would simply reinstate the administrative ruling, and thus would require a wasteful second administrative appeal to the Superior Court on that very issue. ... A trial court may alternatively conclude that an administrative ruling is in some fashion incomplete and therefore not ripe for final judicial adjudication.” (Citations omitted.) Schieffelin & Co. v. Dept. of Liquor Control, 202 Conn. 405, 410, 521 A.2d 566 (1987). There is nothing in the record to suggest that the court concluded that the board’s ruling was incomplete and not ripe for final adjudication; therefore, we determine the decision of the court to be an appealable final judgment.

       Specifically, § 31-237g-17 (a) of the Regulations of Connecticut State Agencies provides in relevant part: “To the extent practicable and reasonable under the circumstances of each intrastate appeal, in-person hearings, whereby all parties and witnesses are expected to be physically present at the same hearing location, shall be the preferred manner of scheduling and conducting intrastate hearings, but the Appeals Division may, on its own initiative or upon the timely request of a party made prior to the hearing which shows good cause therefor, make arrangements for conducting a telephone hearing on an intrastate appeal whereby some or all of the parties and witnesses testify by telephone, subject to the availability of sufficient telephone lines at the hearing location. . . .”

       The plaintiff also challenges the sound quality and nature of a telephone hearing. The referee did not make any findings regarding the sound quality, or lack thereof, or the nature of the telephone hearing. Because the plaintiff failed to file a motion to correct pursuant to Practice Book § 22-4, as we will discuss, we are unable to review this claim.

       The board also noted that Sargent had failed to “bring any firsthand witnesses to the [plaintiffs] conduct . . . .”

       We have stated that “wilful misconduct refers to conduct evincing a wilful disregard of an employer’s interest such as deliberate violations of the employer’s procedures or a disregard of expected standards of behavior. . . . Wilful misconduct includes deliberate disobedience or the intentional violation of a known rule.” (Citations omitted; internal quotation marks omitted.) Todd v. Administrator, supra, 5 Conn. App. 312; see also Bigelow Co. v. Waselik, 133 Conn. 304, 308, 50 A.2d 769 (1946) (“The breach of a rule by one who knows at the time that he is breaking the rule is a wilful breach .... It follows that improper or wrong conduct which is intentional, that is, such as is done purposely with knowledge, constitutes wilful misconduct, and therefore the deliberate violation of a reasonable rule in connection with work is sufficient to constitute wilful misconduct.” [Internal quotation marks omitted.]).

       The plaintiff has represented himself throughout these proceedings. “Although we are mindful of our policy to be solicitous of pro se litigants . . . such policy is applicable only when it does not interfere with the rights of other parties. Although our courts allow pro se litigants some latitude, the right of self-representation provides no attendant license not to comply with the relevant rules of procedural and substantive law.” (Citation omitted; internal quotation marks omitted.) Shah v. Administrator, Unemployment Compensation Act, supra, 114 Conn. App. 177.


author: ROBINSON, J.

text:
    JAY WALSHON v. BALLON STOLL BADER AND NADLER, P.C., ET AL.
    (AC 30216)
    DiPentima, Robinson and Mihalakos, Js.

      Argued December 2, 2009
    officially released May 25, 2010

      Thomas P. Willcutts, for the appellant (plaintiff).

      JohnR Harness, for the appellee (named defendant).

       The listing of judges reflects their seniority status on this court as of the date of oral argument.

   Opinion

ROBINSON, J.

The plaintiff, Jay Walshon, appeals

from the judgment of the trial court rendered in favor of the defendant Ballon Stoll Bader & Nadler, P.C. The plaintiff claims on appeal that the court improperly granted the defendant’s motion to dismiss for lack of personal jurisdiction. Specifically, the plaintiff argues that the court improperly (1) failed to order an eviden-tiary hearing on the defendant’s motion to dismiss, (2) found that the defendant had not transacted business within the state as required by General Statutes § 52-59b (a) (1) and (3) found that the defendant had not established the minimum contacts with Connecticut required by due process to justify personal jurisdiction over the defendant. We disagree and, accordingly, affirm the judgment of the trial court.

The following undisputed facts and procedural background are necessary for our resolution of the plaintiffs appeal. The defendant is a New York professional corporation engaged in the practice of law, with its principal office in New York, New York. The defendant also has affiliate offices in Hackensack, New Jersey; Philadelphia, Pennsylvania; and Moscow, Russia. The plaintiff, a Connecticut resident, retained the defendant to represent him in a securities fee claim initiated by Fiserv Correspondent Services, Inc. (Fiserv), a Colorado securities trading company, against the plaintiff for breach of margin and customer agreements associated with a sale of stock. The defendant sent a letter of retention dated May 30, 2000, to the plaintiff in Connecticut. The plaintiff altered a portion of the document regarding conflict of interests and sent the letter back to the defendant in New York, where the defendant ultimately signed the contract. The defendant made the venue choice to arbitrate the Fiserv matter before the National Association of Securities Dealers in New York. The National Association of Securities Dealers scheduled the hearing to commence on May 20, 2002. Neither the defendant nor the plaintiff was present at the hearing. A default award and judgment in the amount of $84,920.60 was entered against the plaintiff.

On February 3, 2006, the plaintiff filed an action alleging breach of contract against the defendant. On March 15, 2006, the defendant moved to dismiss the action for lack of personal jurisdiction. On May 23,2008, the court granted the motion to dismiss and filed a memorandum of decision. The court concluded that the defendant had no substantial contact with Connecticut. The court found that because the defendant was hired to practice law in New York, did not meet with the plaintiff in Connecticut, accepted the retainer contract in New York, had no personnel, offices or assets in Connecticut and did not advertise in Connecticut, it was not subject to the jurisdiction of the court. On May 23, 2008, the court rendered judgment on the defendant’s motion, dismissing the plaintiffs action. This appeal followed.

On appeal, the plaintiff first argues that the court should have ordered an evidentiary hearing with respect to the defendant’s motion to dismiss. Further, the plaintiff challenges the determination of the court that the transactions from which this cause of action arose did not constitute “transact[ing] any business within the state” on the part of the defendant. General Statutes § 52-59b (a) (1). The plaintiff argues that because the defendant was representing multiple Connecticut clients and the securities matter for which the plaintiff hired the defendant to represent him was governed by Connecticut law, the defendant transacted business within the state. The plaintiff also asserts that the defendant should not have anticipated litigating the case in New York because, as decided by the federal court in New York, venue was transferred to the Eastern District of Michigan. See footnote 3 of this opinion. Additionally, the plaintiff argues that the defendant had “minimum contacts” with the forum state, as required by due process for our courts to have personal jurisdiction. The plaintiff attempts to bolster this argument with such factors as the minimal burden on the defendant to litigate in Connecticut, Connecticut’s interest in the case and the judicial economy in keeping the plaintiffs claim against codefendants within the same trial and social policy. We reject the plaintiffs claims.

“[W]e note, preliminarily, that [i]n ruling [on] whether a complaint survives a motion to dismiss, 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. ... A motion to dismiss tests, inter alia, whether, on the face of the record, the court is without jurisdiction. . . . Furthermore, [i]f a challenge to the court’s personal jurisdiction is raised by a defendant, either by a foreign corporation or by a nonresident individual, the plaintiff must bear the burden of proving the court’s jurisdiction.” (Citation omitted; internal quotation marks omitted.) Ryan v. Cerullo, 282 Conn. 109, 117-18, 918 A.2d 867 (2007).

“In view of the dual roles of a motion to dismiss— that is, as a motion to erase and as a plea in abatement— this court has previously considered the undisputed factual allegations in the complaint as well as the undisputed factual allegations in the various affidavits when adjudicating the motion where no evidentiary hearing has been held.” Knipple v. Viking Communications, Ltd., 236 Conn. 602, 608, 674 A.2d 426 (1996). Because an evidentiary hearing was not requested in this case by either party, the trial court properly accepted all undisputed factual allegations for the purpose of determining whether the plaintiff sustained his burden of proving that the court had personal jurisdiction over the defendant under the long arm statute. See id. Because it is the plaintiffs burden both to request an evidentiary hearing and to present evidence that establishes disputed factual allegations in support of an evi-dentiary hearing, and the plaintiff failed to do either, the court properly decided the motion on the basis of the pleadings and affidavits.

We now proceed with our analysis of the plaintiffs claim that the court improperly found that the defendant was not subject to personal jurisdiction in Connecticut. We begin by setting forth the appropriate standard of review. “[A] challenge to the jurisdiction of the court presents a question of law over which our review is plenary.” Ryan v. Cerullo, supra, 282 Conn. 118.

First, with respect to Connecticut’s long arm statute, because “[t]he General Statutes do not define what the phrase ‘transacts any business’ means in the context of § 52-59b . . . we construe the term ‘transacts any business’ to embrace a single purposeful business transaction.” (Citations omitted.) Zartolas v. Nisenfeld, 184 Conn. 471, 474, 440 A.2d 179 (1981). In that case, the court concluded that the defendants’ execution of a warranty deed in Iowa that conveyed real property in Connecticut subjected the defendants to personal jurisdiction in Connecticut. Id., 472, 478. “In determining whether the plaintiffs’ cause of action arose from the defendants’ transaction of business within this state we do not resort to a rigid formula. Rather, we balance considerations of public policy, common sense, and the chronology and geography of the relevant factors.” Id., 477.

There must be some definitive act taken by the defendant that evinces a purposeful availment of the privileges of conducting the subject activity within the forum state and that, subsequently, invokes the benefits and protections of its laws. See Ryan v. Cerullo, supra, 282 Conn. 120, citing Hanson v. Denckla, 357 U.S. 235, 253, 78 S. Ct. 1228, 2 L. Ed. 2d 1283 (1958). In Ryan, the court found that the defendants, a New York accountant and associated accounting firm, had not transacted any business in Connecticut because the nexus between the defendants’ activities and the state was too attenuated. Id., 121. The court based its decision on the following factors: the defendants derived only minimal income from Connecticut, did not solicit business in Connecticut, did not promote their services in Connecticut, performed their services exclusively in New York, met with the plaintiff in New York and were hired to prepare tax returns on income earned in New York. Id., 120. Further, the court concluded that even if the defendants had transacted business in Connecticut, the plaintiffs claim of negligent preparation of his New York tax returns did not arise from such activity. Id., 122-23.

The court looked to similar factors in Rosenblit v. Danaher, 206 Conn. 125, 537 A.2d 145 (1988), in which it concluded that the defendant attorney, a Massachusetts resident, was not subject to Connecticut’s jurisdiction because the plaintiffs claim concerned events that mainly occurred in Massachusetts, arose out of the plaintiffs business efforts in Massachusetts and involved a number of potential witnesses from Massachusetts. Id., 140; see also Solano v. Calegari, 108 Conn. App. 731, 738-39, 949 A.2d 1257 (no jurisdiction when conversation about loan took place in Connecticut but actual loan funds were not withdrawn from financial institution in Connecticut), cert. denied, 289 Conn. 943, 959 A.2d 1010 (2008); Green v. Simmons, 100 Conn. App. 600, 608, 919 A.2d 482 (2007) (two unanswered letters mailed to Connecticut, not including any substantive information about negotiating or litigating plaintiffs claims, not sufficient to support jurisdiction).

The present case is analogous to Ryan in that the defendant was retained “to practice law in New York, not Connecticut, in an arbitration proceeding before the [National Association of Securities Dealers].” Further, the defendant never met with the plaintiff in Connecticut, which is evidence of an even weaker connection with the forum state than the defendant in Rosenblit had, where the court declined to find jurisdiction appropriate. See Rosenblit v. Danaher, supra, 206 Conn. 138. Although the defendant knew the plaintiff, its client, resided in Connecticut, there is nothing to indicate that the defendant anticipated litigating or arbitrating in Connecticut. When considering whether a claim arose from a purposeful transaction within the forum state, we look to the facts as they occurred, not as they hypothetically could have occurred. See Ryan v. Cerullo, supra, 282 Conn. 122. It is, therefore, irrelevant that venue in the underlying litigation ultimately was transferred to Michigan by the United States District Court for the Southern District of New York because it does not change the fact that the defendant anticipated litigating in New York. Additionally, the defendant accepted the retainer agreement regarding the representation in New York.

Moreover, the claim arises from the defendant’s alleged failure to appear, or to give notice to the plaintiff to appear, in New York at the arbitration hearing. Although the defendant agreed to represent the plaintiff, a Connecticut resident, we look to the particular transaction that gave rise to the plaintiffs claim. Irrespective of where National Association of Securities Dealers or other arbitration forums had offices, the hearing was scheduled to take place in New York. Accordingly, the defendant’s alleged breach of contract occurred in New York. In the present case, therefore, the transaction giving rise to the plaintiffs claim occurred in New York.

Without any of the substantive activities associated with the representation of the plaintiff or the activities giving rise to the plaintiffs claim occurring in Connecticut, we conclude that there is no conduct that demonstrates a business transaction within the state and that the plaintiffs claim does not arise from such. Because we conclude that the statutory requirements were not met, it is not necessary for us to decide whether the exercise of jurisdiction over the defendant violated constitutional principles of due process. See Rosenblit v. Danaher, supra, 206 Conn. 142.

The judgment is affirmed.

In this opinion the other judges concurred.

       Winget, Spadafora & Schwartzberg, LLP, also was a defendant in this action but is not a party to this appeal. We therefore refer in this opinion to Ballon Stoll Bader & Nadler, P.C., as the defendant.

       The underlying litigation also involved Interface Systems, Inc., a Michigan corporation that sold its stock to the plaintiff through the business transaction involving Fiserv.

       The defendant also filed three separate actions, one including Walshon as a plaintiff, as part of its representation of the plaintiff. Those actions alleged violations of federal securities laws, fraud and other common-law torts against Robert A. Nero, Interface Systems, Inc., and “John Doe” in the United States District Court for the Southern District of New York. The court denied the motion to dismiss, filed by the defendants in that consolidated action, for improper venue but granted their motion to transfer the actions to the Eastern District of Michigan.

       “When a defendant files a motion to dismiss challenging the court’s jurisdiction, a two part inquiry is required. The trial court must first decide whether the applicable state long-arm statute authorizes the assertion of jurisdiction over the [defendant]. If the statutory requirements [are] met, its second obligation [is] then to decide whether the exercise of jurisdiction over the [defendant] would violate constitutional principles of due process.” (Internal quotation marks omitted.) Matto v. Dermatopathology Associates of New York, 55 Conn. App. 592, 599-600, 739 A.2d 1284 (1999). In the court’s memorandum of decision it recites the relevant subsection of Connecticut’s long arm statute, § 52-59b (a) (1), which confers personal jurisdiction. From the decision’s discussion section, however, it is unclear whether the court decided that the defendant did not meet the statutory or the due process requirements for personal jurisdiction. Because we have plenary review over the appeal, we will analyze the plaintiffs claim that both the requirements of our long arm statute and the federal constitution were satisfied by the defendant’s contact with the state. See Ryan v. Cerullo, 282 Conn. 109, 118, 918 A.2d 867 (2007).

       On June 12, 2008, the plaintiff moved the court to reargue and to reconsider the court’s granting of the defendant’s motion to dismiss. The court granted the motion for reargument and reconsideration but after hearing further argument ruled that the decision as previously ordered still stood. The court then denied the plaintiffs June 12, 2008 motion for articulation. No motion for review was filed with this court.

       It should also be noted that the federal court did not find venue in New York improper but, rather, that venue in the Eastern District of Michigan was more appropriate because the “locus of operative events” occurred there.


author: PER CURIAM.

text:
    JO-ANN JACKSON v. PASCALE P. LEE
    (AC 31182)
    Bishop, Beach and West, Js.
    Argued April 6
    officially released May 25, 2010

      Matthew B. Woods, for the appellant (defendant).

      Stephen J. Conover, with whom was Susan R. Briggs, for the appellee (plaintiff).
   Opinion

PER CURIAM.

In this quiet title action, the defendant Pascale P. Lee appeals from the judgment of the trial court rendered in favor of the plaintiff, Jo-Ann Jackson, declaring that the plaintiff had acquired a prescriptive easement over a portion of the defendant’s real property. The defendant claims that the evidence was insufficient to support the court’s finding that the plaintiff had established all of the elements of a prescriptive easement.

After examining the record on appeal and considering the briefs and the arguments of the parties, we conclude that the judgment of the trial court should be affirmed. Because the court’s memorandum of decision resolves properly the issues raised in this appeal, we adopt the court’s concise and well reasoned decision as a statement of the facts and the applicable law on the issue. See Jackson v. Lee, 51 Conn. Sup. 399, 996 A.2d 762 (2009). Any further discussion by this court would serve no useful purpose. See, e.g., Socha v. Bordeau, 289 Conn. 358, 362, 956 A.2d 1174 (2008).

The judgment is affirmed.

      Wachovia Mortgage Corporation is also a defendant in this action. Because, however, it is not a party to this appeal, we refer to Pascale P. Lee as the defendant.

       Although the plaintiff filed an eight count complaint seeking relief, she prevailed only as to her claim for a prescriptive easement over a portion of the defendant’s property. The plaintiff is not challenging the court’s decision on appeal.