source: Caselaw Access Project

author: ROBINSON, J.

license: Public Domain

text:
    RICHARD LAPOINTE v. COMMISSIONER OF CORRECTION
    (AC 29137)
    Harper, Robinson and West, Js.

      Argued October 20, 2008
    officially released March 31, 2009

      Paul Casteleiro, pro hac vice, with whom was W. James Cousins, for the appellant (petitioner).

      Jo Anne Sulik, senior assistant state’s attorney, with whom, on the brief, were Gail P. Hardy, state’s attorney, and Michael E. O’Hare, supervisory assistant state’s attorney, for the appellee (respondent).
   Opinion

ROBINSON, J.

The petitioner, Richard Lapointe, appeals from the judgment of the habeas court dismissing his second petition for a writ of habeas corpus. In this appeal, the petitioner claims that the court improperly dismissed his claims that his first habeas counsel was ineffective in failing to recognize or to offer proof regarding (1) the state’s suppression of exculpatory evidence and (2) the ineffective assistance of criminal trial counsel. We affirm in part and reverse in part the judgment of the habeas court.

This case has a lengthy history, and the following facts and procedural history provide the necessary backdrop for the petitioner’s appeal. On June 30, 1992, after a trial to the jury, the petitioner was convicted of capital felony in violation of General Statutes (Rev. to 1987) § 53a-54b (7), arson murder in violation of General Statutes § 53a-54d, felony murder in violation of General Statutes (Rev. to 1987) § 53a-54c, murder in violation of General Statutes § 53a-54a, arson in the first degree in violation of General Statutes § 53a-lll, assault in the first degree in violation of General Statutes § 53a-59 (a) (1), sexual assault in the first degree in violation of General Statutes § 53a-70 (a), sexual assault in the third degree in violation of General Statutes § 53a-72a (a) (1) (A) and kidnapping in the first degree in violation of General Statutes § 53a-92 (a ) (2) (A). Thereafter, the petitioner was sentenced to life in prison without the possibility of release. The petitioner directly appealed to our Supreme Court; however, his conviction was affirmed in State v. Lapointe, 237 Conn. 694, 678 A.2d 942, cert. denied, 519 U.S. 994, 117 S. Ct. 484, 136 L. Ed. 2d 378 (1996).

The facts underlying the petitioner’s conviction were recounted in the decision of our Supreme Court disposing of his direct appeal. As the petitioner makes numerous factual claims, a restatement of these facts, as the Supreme Court determined reasonably could have been found by the jury, are helpful for context. “On March 8,1987, the [petitioner] called the emergency telephone number, 911, to report a fire at the Manchester apartment of the victim, Bernice Martin, his wife’s eighty-eight year old grandmother. Manchester firefighters entered the smoke-filled apartment and found the victim lying on the floor approximately six to eight feet from a burning couch. The victim was only partially clad and a piece of fabric was tied tightly around her neck. Other fabric was tied loosely about her wrists. The firefighters noted a bloodstain on the bed in the apartment. Paramedics who arrived at the scene attempted unsuccessfully to resuscitate the victim and subsequently transported her to a hospital where she was pronounced dead shortly after her arrival. Medical personnel did not examine the victim for sexual trauma on the night of her death and did not provide the family with any information pertaining to the cause of death. A priest in attendance, however, did tell family members gathered at the hospital that the victim had been stabbed.

“A knife blade and a melted brown plastic knife handle were found in the victim’s apartment. The victim’s underwear was found on the floor of the apartment to the right of the bed. No latent fingerprints were discovered at the scene due to fire and water damage. It was determined that the fire in the victim’s apartment had three points of origin — the couch, near which the victim had been found, and two towels that were hanging in the kitchen. There was no evidence that an accel-erant had been used to hasten the fire’s progress. The couch, which had extensive fire damage, was tested and found to bum at a very slow rate and to emit copious amounts of smoke.

“At approximately midnight on the night that the victim’s body was found, Detective Edward Wilson of the Manchester police department interviewed the [petitioner]. The [petitioner] told Wilson that on March 8, from approximately 2 to 4 p.m., he had visited the victim at her apartment with his wife, Karen, and his son, Sean. The [petitioner] also told Wilson that after the family had returned home from their visit he had not left the house until his wife’s aunt, Natalie Howard, had telephoned between 7:30 and 7:45 p.m., asking him to check on the victim because she was not answering her telephone. The [petitioner] further told Wilson that, while he was walking to the victim’s apartment in order to check on her, he had smelled smoke. He also said that after arriving at the apartment and receiving no answer to his knock, he had attempted to enter both the front and the back doors but that both doors were locked. The [petitioner] stated that the back door felt warm to the touch.

“The [petitioner] said that he then had gone to the apartment of Jeannette King, a neighbor of the victim, to telephone his wife and Howard. Despite having smelled smoke and having felt the heat of the door to the victim’s apartment, the [petitioner] made no effort to secure emergency assistance at that time. Rather, he walked to King’s apartment and knocked on the door furthest from the victim’s apartment. When King opened the door, the [petitioner] greeted her calmly and without any sign of urgency. The [petitioner] asked King for change for a quarter so that he could use a pay telephone down the road. King, who had met the [petitioner] previously, invited him to use her telephone. He did so, telephoning both his wife and Howard and telling them that the victim had not answered her door and that she must have been sleeping. He never mentioned to either his wife or Howard that he had smelled smoke or that the door to the victim’s apartment had been warm to the touch. Howard reminded the [petitioner] that the victim never went to bed as early as 8 p.m. and told him that she was going to the victim’s apartment immediately to check on her. The [petitioner] then left King’s apartment and returned to the victim’s apartment. The [petitioner] claimed that upon returning to the victim’s apartment, he saw smoke emanating from under the eaves. He then returned to King’s apartment, again knocked on the more distant of the two doors, and, when admitted, called the 911 emergency telephone number.

“On March 9, 1987, an autopsy of the victim’s body by the medical examiner revealed that the victim had suffered a three inch deep stab wound to her abdomen and ten less severe stab wounds to her back. The medical examiner also determined that the victim had been strangled and that she had sustained premortem first and second degree bums. The cause of death was determined to be a combination of strangulation and smoke inhalation. The autopsy also revealed, for the first time, that the victim had suffered extensive hemorrhaging as well as lacerations and contusions to her vagina.

“The jury further could have found that a stain on the victim’s bedspread was human semen from a person who was a secretor with Type A blood. The [petitioner] has Type A blood and is a secretor. The semen stain also was found to contain no sperm, which is consistent with the semen of a person who has had a vasectomy. The [petitioner] had a vasectomy after the birth of his son in 1979. On March 9, before any information regarding a possible sexual assault became known to the police or the public, the [petitioner] stated in a conversation with Eileen Giacalone, a friend of the Lapointe family, that ‘it was a shame they killed an old lady, but they didn’t have to rape her, too.’ When asked in a June, 1989 interview by Detective Paul Lombardo how he had learned that the victim had been sexually assaulted, the [petitioner] responded that he had been informed by a doctor at the hospital on the night of the murder that the victim had been strangled, stabbed and sexually assaulted. The medical personnel who had attended to the victim unanimously testified, however, that they did not check the victim for sexual assault trauma when she was at the hospital that night and, further, that it would have been highly unusual for them to have done so under the circumstances. Other family members who had been present at the hospital corroborated the testimony of the medical personnel who said that there had been no mention of sexual assault at the hospital.

“On March 9, officer Wayne Rautenberg interviewed the [petitioner] at the Manchester police station. During the interview, the [petitioner] exhibited considerable curiosity concerning the results of the autopsy and asked if there had been causes of death other than smoke inhalation. The [petitioner’s] curiosity was further manifested by his persistent questions to Wilson and Captain Joseph Brooks of the Manchester police department concerning the status of the investigation and whether he was a suspect. These inquiries were made during numerous chance encounters that the [petitioner] had with the officers in Manchester between the dates of the victim’s death and the [petitioner’s] arrest.

“The police investigation of the victim’s death remained open and unresolved until March, 1989, when, due to internal changes at the Manchester police department, Lombardo was assigned to the case. Because the investigation had been dormant for some time, Lom-bardo decided to reinterview all those persons who had been interviewed previously. For that purpose, Lom-bardo telephoned the [petitioner] in June, 1989, and asked if he would submit to another interview. The [petitioner] initially responded, ‘Why, am I a suspect?’ The [petitioner], however, acquiesced to Lombardo’s request and, on June 8, walked to the police station where he spoke with Lombardo. At that time, in order to check the [petitioner’s] blood type, Lombardo asked the [petitioner] for a saliva sample, which the [petitioner] provided. The [petitioner’s] wife, in response to a direct question and in the [petitioner’s] presence, had previously told [Detective] Michael Ludlow that the [petitioner’s] blood was Type O. An analysis of the saliva sample, however, revealed that the [petitioner’s] blood type was in fact Type A and that he was a secretor. These results were consistent with the seminal stain found on the victim’s bedspread. During the course of his investigation, Lombardo also belatedly learned from King that she had seen the [petitioner] walking his dog near the victim’s apartment shortly after 7 p.m. on the night of the victim’s death.

“Inconsistencies in the [petitioner’s] version of his activities on the evening of March 8, 1987, and the [petitioner’s] prescience that the victim had been sexually assaulted led Lombardo to become increasingly suspicious. Therefore, Lombardo again requested that the [petitioner] come to the police station on July 4, 1989. At that time the [petitioner] was interrogated and gave several incriminating oral and written statements to Lombardo, Detective Michael Morrissey and Brooks, respectively. Morrissey also interviewed the [petitioner’s] wife on the same day, at which time she conceded that the [petitioner] had left their house on the night of the victim’s death in order to walk their dog. This was contrary to what both she and the [petitioner] had told the police previously, i.e., that the [petitioner] had not left the house after the family returned from their afternoon visit with the victim until the [petitioner] left after talking to Howard. On the basis of, among other evidence, the [petitioner’s] admissions made on July 4, 1989, an arrest warrant was issued, pursuant to which the [petitioner] was taken into custody on July 5,1989.” Id., 696-702. The Supreme Court ultimately affirmed the petitioner’s conviction. Id., 739.

Following the disposition of the petitioner’s direct appeal, he instituted a habeas corpus proceeding. The petitioner, through habeas counsel Henry Theodore Vogt, filed his first petition for a writ of habeas corpus on May 30,1997, alleging (1) newly discovered evidence regarding Dandy-Walker syndrome, a congenital brain disease afflicting the petitioner, (2) prosecutorial impropriety in the form of suppression of exculpatory evidence, (3) discrimination by the state on the basis of his mental and physical disabilities in violation of his rights to equal protection, (4) ineffective assistance of trial counsel and (5) ineffective assistance of appellate counsel. On September 6, 2000, following a full hearing on the merits, the court, Freed, J., dismissed the petition for a writ of habeas corpus. On January 22, 2002, this court affirmed the dismissal, and our Supreme Court subsequently denied the petition for certification to appeal. See Lapointe v. Commissioner of Correction, 67 Conn. App. 674, 789 A.2d 491, cert. denied, 259 Conn. 932, 793 A.2d 1084 (2002).

Thereafter, in August, 2002, after obtaining new counsel, the petitioner filed his second petition for a writ of habeas corpus, alleging that he was denied his right to the effective assistance of habeas counsel. Specifically, he alleged that his previous habeas counsel, Vogt, failed to address issues concerning the suppression of exculpatory evidence, the ineffective assistance of trial counsel and the effect of newly discovered evidence relating to Dandy-Walker syndrome. These allegations comprised counts one through three, respectively, of the petitioner’s second petition for a writ of habeas corpus.

A trial on this petition was conducted over the course of four days. After the close of the petitioner’s case, the respondent, the commissioner of correction, made an oral motion for a judgment of dismissal. Pursuant to the agreement of the petitioner, the court, Fuger, J., granted partial judgment of dismissal as to portions of counts one and two, and as to count three in its entirety. Thereafter, Judge Fuger issued a sixteen page memorandum of decision in which he granted the respondent’s motion for a judgment of dismissal on the remaining counts, concluding that “no issues [remain] to be litigated in connection with the quality of the representation received by the petitioner that culminated in his 1992 conviction.” Additional facts will be set forth as necessary.

As an initial matter, we set forth the standard of review and the legal principles that guide our resolution of the petitioner’s appeal from the judgment of dismissal. This case is different from a typical habeas appeal in that the court did not rule on the merits of the petitioner’s claim; rather, it granted a motion for a judgment of dismissal after concluding that the petitioner failed to establish the prima facie elements of his claims. Practice Book § 15-8 provides in relevant part: “If, on the trial of any issue of fact in a civil matter tried to the court, the [petitioner] has produced evidence and rested, a [respondent] may move for judgment of dismissal, and the judicial authority may grant such motion if the [petitioner] has failed to make out a prima facie case. ...” A prima facie case, in terms relevant to this case, “is one sufficient to raise an issue to go to the trier of fact. ... In order to establish a prima facie case, the proponent must submit evidence which, if credited, is sufficient to establish the fact or facts which it is adduced to prove. ... In evaluating a motion to dismiss, [t]he evidence offered by the plaintiff is to be taken as true and interpreted in the light most favorable to [the petitioner], and every reasonable inference is to be drawn in [the petitioner’s] favor.” (Citations omitted; internal quotation marks omitted.) Thomas v. West Haven, 249 Conn. 385, 392, 734 A.2d 535 (1999), cert. denied, 528 U.S. 1187, 120 S. Ct. 1239, 146 L. Ed. 2d 99 (2000). “Whether the [petitioner] has established a prima facie case entitling the [petitioner] to submit a claim to a trier of fact is a question of law over which our review is plenary.” DiStefano v. Milardo, 276 Conn. 416, 422, 886 A.2d 415 (2005); Sullivan v. Thorndike, 104 Conn. App. 297, 302, 934 A.2d 827 (2007), cert. denied, 285 Conn. 907, 908, 942 A.2d 415, 416 (2008).

I

The petitioner first asserts that the court improperly dismissed his claim that his first habeas counsel rendered ineffective assistance by failing to allege a violation of his due process rights when the state suppressed exculpatory evidence of an expert’s opinion relating to the fire’s bum time. The allegedly exculpatory opinion was contained in a note written by Detective Ludlow (Ludlow note), in which he purportedly summarized, within three days of the fire, a possible bum time of thirty to forty minutes. The petitioner claimed that this evidence depicts the window of time in which the fire was set, and, as he is able to account for his whereabouts during this specific window, it is his contention that this evidence demonstrated that it was impossible for him to have perpetrated the crimes. On appeal, the petitioner argues that the court failed to draw reasonable inferences from the evidence, viewed in the light most favorable to sustaining his claim, as is required on a motion for a judgment of dismissal.

The United States Supreme Court has held that “the suppression by the prosecution of evidence favorable to an accused upon request violates due process where the evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution.” Brady v. Maryland, 373 U.S. 83, 87, 83 S. Ct. 1194, 10 L. Ed. 2d 215 (1963); State v. Walker, 214 Conn. 122, 126, 571 A.2d 686 (1990). To establish a claim under Brady, the petitioner must establish that (1) the evidence allegedly suppressed was favorable to him, either because it was exculpatory or impeaching, (2) the evidence was suppressed by the state, either wilfully or inadvertently, and (3) prejudice resulted from its absence. State v. Ortiz, 280 Conn. 686, 717, 911 A.2d 1055 (2006).

In its memorandum of decision, the court found that the first prong of the Brady analysis was not satisfied because “[e]ven [when] viewed in the light most favorable to the petitioner, the evidence does not support a conclusion that Detective Ludlow’s notes are favorable to the defense or exculpatory.” In support of this conclusion, the court cited Ludlow’s habeas trial testimony in which he testified that the thirty to forty minute bum time referred to the absolute minimum amount of time that the fire could have been burning. The court then noted that even if the petitioner could account for his whereabouts during this window, he could not account for the complete time frame that the thirty to forty minute minimum bum time created. The court stated: “A neighbor had seen the victim alive at 5:30 p.m., and the fire was reported at 8:27 p.m. Detective Ludlow was crystal clear in his habeas trial testimony that the thirty to forty minutes in his notes referred to the absolute minimum amount of time that the fire had been burning, not the maximum. With thirty to forty minutes as the minimum amount of time that the fire could have been burning, a range of time can be established as the period in which the crime occurred: that is, between 5:30 p.m. [the last time the victim was seen alive] and approximately 7:50 p.m. [the latest possible time the fire could have been set in order for it to bum for the extreme end of the thirty to forty minute minimum window]. This window has significance only if the petitioner can verify his whereabouts during that time.” Having found that the Ludlow note was not favorable to the petitioner’s case, the court ruled that there was no basis to conclude that first habeas counsel’s performance fell below an objective standard of reasonableness. See Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984).

On appeal, the question for this court is whether the petitioner failed to make out a prima facie claim for a Brady violation; specifically, we must determine whether he failed to submit sufficient evidence to establish the exculpatory nature of the Ludlow note. “Exculpatory has been defined to mean [c]learing or tending to clear from alleged fault or guilt; excusing.” (Internal quotation marks omitted.) State v. Falcon, 90 Conn. App. 111, 121, 876 A.2d 547, cert. denied, 275 Conn. 926, 883 A.2d 1248 (2005). Therefore, for the Ludlow note to be deemed exculpatory, the petitioner must have submitted evidence to demonstrate that the thirty to forty minute minimum bum time tended to clear him from alleged fault or guilt.

As the court noted in its memorandum of decision granting the motion for a judgment of dismissal, 7:50 p.m. represents the outer limits of the minimum bum time. The following additional evidence was submitted by the petitioner at the habeas proceeding to demonstrate the exculpatory nature of the Ludlow note and must be credited for the purposes of this court’s analysis of whether the habeas court improperly granted the respondent’s motion for a judgment of dismissal. A review of the record reveals evidence that the victim was last seen outside of her apartment by Howard at about 5:45 p.m. The petitioner’s former wife, Karen Martin, testified at a suppression hearing that she prepared dinner at the petitioner’s home and that they ate dinner at about 5:15 p.m. or 5:30 p.m. Prior to sitting down for dinner, the petitioner had walked the family dog for approximately twenty minutes. Therefore, according to her testimony, the petitioner had returned from his walk before the time that the victim was last seen outside of her apartment. Karen Martin, further testified that he did not leave their house again until she received a telephone call from Howard, who requested that the petitioner walk over to the victim’s house to check on her. According to Howard, this telephone call was placed a little after 8 p.m. Prior to this telephone call, the petitioner was not always in his wife’s sight. In particular, she was upstairs bathing her son from approximately 6:15 to 7 p.m.; however, she testified at the second habeas proceeding that while she was upstairs, it was possible to hear someone downstairs. From 7 p.m. until the time the petitioner left to check on the victim at the request of Howard, he was watching television with his family. The fire was reported by the petitioner at approximately 8:27 p.m.

Viewing this evidence in the light most favorable to the petitioner, we conclude that he submitted sufficient evidence to establish the prima facie basis for the exculpatory nature of the Ludlow note. As noted by the court, the thirty to forty minute minimum bum time, if credited as an accurate estimation, establishes that the fire was set at or before 7:50 p.m. The petitioner submitted evidence that, if credited, can account for his whereabouts, albeit tenuously, for the full window of time encompassing the last time the victim was seen alive outside her apartment to the time her body was discovered. Evidence that tends to prove his temporal inability to have committed the crime satisfies the definition of exculpatory and, therefore, is sufficient to establish the first prima facie element of a Brady claim. As the court’s decision to grant the motion for a judgment of dismissal was premised on its conclusion that this prima facie element was not established, we conclude that the motion for a judgment of dismissal was granted improperly as to this portion of count one.

II

We next address the petitioner’s assertion that the court improperly dismissed his claim of ineffective assistance of habeas counsel. Count two of the second habeas petition alleges that his first habeas counsel failed to raise several issues of ineffective assistance of trial counsel during the first habeas proceeding. Specifically, the petitioner claims that his first habeas counsel should have alleged the following instances of ineffective assistance of trial counsel: (1) the failure to present testimony of an arson expert concerning the fire’s bum time; (2) the failure to employ available evidence to establish the unreliability of the petitioner’s confession; and (3) the decision to allow the petitioner to testify during the guilt phase of his trial. On appeal, the petitioner argues that the court, Fuger, J., failed either to review his claims or to evaluate them properly. For the claims that were decided, the petitioner argues that the court failed to accord him all favorable inferences as required when evaluating a motion for a judgment of dismissal and made erroneous findings of fact unsupported by the record.

As the remaining claims are based on ineffective assistance of counsel, we begin our analysis by setting forth the familiar two part test enunciated by the United States Supreme Court in Strickland v. Washington, supra, 466 U.S. 687. “In Strickland, which applies to claims of ineffective assistance during criminal proceedings generally, the United States Supreme Court determined that the claim must be supported by evidence establishing that (1) counsel’s representation fell below an objective standard of reasonableness, and (2) counsel’s deficient performance prejudiced the defense because there was a reasonable probability that the outcome of the proceedings would have been different had it not been for the deficient performance.” (Emphasis in original; internal quotation marks omitted.) Johnson v. Commissioner of Correction, 285 Conn. 556, 575, 941 A.2d 248 (2008). “The first prong is satisfied by proving that counsel made errors so serious that he was not functioning as the ‘counsel’ guaranteed by the sixth amendment. The second prong is satisfied if it is demonstrated that there exists a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.” Russell v. Commissioner of Correction, 49 Conn. App. 52, 53, 712 A.2d 978, cert. denied, 247 Conn. 916, 722 A.2d 807 (1998), cert. denied sub nom. Russell v. Armstrong, 525 U.S. 1161, 119 S. Ct. 1073, 143 L. Ed. 2d 76 (1999).

“[When] applied to a claim of ineffective assistance of prior habeas counsel, the Strickland standard requires the petitioner to demonstrate that his prior habeas counsel’s performance was ineffective and that this ineffectiveness prejudiced the petitioner’s prior habeas proceeding. . . . [T]he petitioner will have to prove that one or both of the prior habeas counsel, in presenting his claims, was ineffective and that effective representation by habeas counsel establishes a reasonable probability that the habeas court would have found that he was entitled to reversal of the conviction and a new trial . . . .” Harris v. Commissioner of Correction, 108 Conn. App. 201, 209-10, 947 A.2d 435, cert. denied, 288 Conn. 911, 953 A.2d 652 (2008). Therefore, as explained by our Supreme Court in Losada v. Warden, 223 Conn. 834, 613 A.2d 818 (1992), a petitioner claiming ineffective assistance of habeas counsel on the basis of ineffective assistance of trial counsel must essentially satisfy Strickland twice: he must “prove both (1) that his appointed habeas counsel was ineffective, and (2) that his trial counsel was ineffective.” (Emphasis added.) Id., 842; see also Denby v. Commissioner of Correction, 66 Conn. App. 809, 812-13, 786 A.2d 442 (2001), cert. denied, 259 Conn. 908, 789 A.2d 994 (2002).

Furthermore, for any ineffective assistance claim, we also are cognizant that “the performance inquiry must be whether counsel’s assistance was reasonable considering all the circumstances.” (Internal quotation marks omitted.) Johnson v. Commissioner of Correction, supra, 285 Conn. 577. “Judicial scrutiny of counsel’s performance must be highly deferential. It is all too tempting for a [petitioner] to second-guess counsel’s assistance after conviction or adverse sentence, and it is all too easy for a court, examining counsel’s defense after it has proved unsuccessful, to conclude that a particular act or omission of counsel was unreasonable. ... A fair assessment of attorney performance requires that every effort be made to eliminate the distorting effects of hindsight, to reconstruct the circumstances of counsel’s challenged conduct, and to evaluate the conduct from counsel’s perspective at the time. Because of the difficulties inherent in making the evaluation, a court must indulge a strong presumption that counsel’s conduct falls within the wide range of reasonable professional assistance; that is, the [petitioner] must overcome the presumption that, under the circumstances, the challenged action might be considered sound trial strategy. . . . There are countless ways to provide effective assistance in any given case. Even the best criminal defense attorneys would not defend a particular client in the same way.” (Citations omitted; internal quotation marks omitted.) Strickland v. Washington, supra, 466 U.S. 689.

We now address each of these claims in turn, mindful that the petitioner’s claims related to his habeas counsel must fail if the claims of ineffective assistance of trial counsel are unavailing. See Lozada v. Warden, supra, 223 Conn. 842-43.

A

Bum Time-Arson Expert

The petitioner first claims that he received ineffective assistance of habeas counsel because habeas counsel alleged a claim for ineffective assistance of trial counsel but did not include a claim regarding trial counsel's failure to investigate the fire’s bum time.

In its memorandum of decision, the court initially noted that “Vogt admitted that he did not hire an arson expert for the petitioner’s first habeas matter; however, he was not asked to explain why he did not do so.” After reviewing the petitioner’s evidence in support of this claim, the court then concluded that “[t]here is simply no proof that hiring an arson expert to investigate the fire’s bum time would, in any way, have rendered the result of the first habeas trial unreliable.” This conclusion was predicated on the court’s prior conclusion that the bum time did not establish an alibi defense. Accordingly, the court determined that the petitioner’s claim for ineffective assistance of habeas counsel failed on both prongs of Strickland. Having reached this conclusion, the court did not engage in an analysis of the claim as it related to trial counsel.

We already have concluded that there was sufficient evidence presented at the second habeas proceeding to establish the potential exculpatory nature of a bum time estimation because evidence was submitted that, if credited, tenuously would have established an alibi for the window of time created by this bum time estimation. Furthermore, the petitioner submitted additional evidence of a bum time estimation through the habeas testimony of an arson expert, Gerald Kelder, who testified that the fire lasted for a period of time between forty-five minutes and one hour. This estimation, if credited, would narrow the window of time necessitating an alibi because it served to set the outer limits of the window created by the minimum bum time estimation appearing in the Ludlow note. Taken as a collective whole, this evidentiary submission, if credited and afforded all reasonable inferences, is sufficient to establish the prejudice prong of Strickland for the broad purposes of our review of a motion for a judgment of dismissal.

As the court’s decision to grant the motion for a judgment of dismissal was premised on its conclusion that the petitioner did not establish that he was prejudiced by his first habeas counsel’s failure to present an arson expert, we conclude that the motion for a judgment of dismissal was improperly granted as to this portion of count two.

B

Failure to Employ Evidence

The petitioner next argues that the court failed to consider his claims arising from habeas counsel’s failure to allege deficient trial representation for not utilizing evidence to prove the factual unreliability of the petitioner’s inculpatory statements to the police. Specifically, regarding the latter claim, the petitioner argues that trial counsel failed to utilize evidence of (1) the clothes worn by the victim at the time of the attack, (2) the discovery of pubic hair belonging to an unknown individual that was found on the victim’s sweater, (3) the existence of gloves at the crime scene that had no connection to the petitioner or the victim, (4) the method of strangulation that did not correlate to the petitioner’s confession and (5) the location of the stabbing that did not correlate to the petitioner’s confession.

The court did not address the merits of these claims; however, a review of the memorandum of decision indicates that these claims were denied albeit without explanation. See Madagoski v. Commissioner of Correction, 104 Conn. App. 768, 771-72 n.l, 936 A.2d 247 (2007) (concluding that despite habeas court’s failure to address three counts of habeas petition expressly, all counts nevertheless disposed of because court denied entire petition, thereby rendering final judgment), cert. denied, 286 Conn. 905, 944 A.2d 979 (2008). As the current appeal arises from a decision to grant the respondent’s motion for a judgment of dismissal, our review of these claims is plenary. See DiStefano v. Milardo, supra, 276 Conn. 422.

It should also be noted from the outset of this analysis that the five issues raised have the potential to act in a cumulative capacity to attack the credibility of the petitioner’s confession in a way that carries more weight than any one issue alone; accordingly, they are best addressed in the aggregate.

The first issue concerns trial counsel’s failure to employ available evidence that the clothes worn by the victim at the time of the attack did not match the petitioner’s description of what she was wearing when he confessed to attacking her. At the second habeas trial, the petitioner submitted evidence, by way of investigation reports, crime scene photographs and the testimony of Ludlow to establish the articles of clothing found at the crime scene, which included black pants, a blue sweater and a multicolor blouse. The petitioner also submitted the police report detailing Howard’s statement that she last saw the victim outside of the victim’s apartment wearing a blue sweater and dark slacks. Howard’s testimony at various stages of the underlying proceedings reiterated this statement. When this evidence is compared with the petitioner’s confession, a clear contradiction arises. In a written statement, the petitioner stated the following: “I went into the bathroom (which is located off the bedroom). When I came out [the victim] was wearing a pink house coat type of outer wear with no bra. (T could see her breasts when she bent over).” The petitioner argues that the evidence of the specific articles of clothing found at the crime scene, in particular the absence of this pink housecoat, is indicative of the unreliability of his confession. Accordingly, he argues that his trial counsel provided ineffective representation by not utilizing this evidence to undermine the credibility of his confession.

The next issue involves the discovery of pubic hair belonging to an unknown individual that was found on the victim’s sweater. The plaintiff submitted evidence by way of the evidence report and the complete crimi-nalistics report to demonstrate that his counsel was aware that pubic hair not belonging to the victim or to the petitioner was discovered on the victim’s sweater. He argues that this evidence demonstrates, at least circumstantially, that the pubic hair belonged to the perpetrator and that it was transferred to the victim’s sweater at the time of the attack. Accordingly, it is his contention that he received inefficient assistance of trial counsel because his counsel failed to employ this evidence to demonstrate that he was not the perpetrator of this crime.

The third issue concerns the existence of gloves at the crime scene that had no connection to the petitioner or the victim. The petitioner submitted evidence that a pair of men’s gloves were discovered at the crime scene. One glove was located at the head of the victim’s bed while the other was discovered on the floor of the bedroom. The criminalistics report was submitted to establish that the victim’s head hair was discovered on both gloves. The crime scene photographs were submitted to substantiate this claim, as well as excerpts from the trial court transcript, the evidence report and the criminalistics report. He maintains that this evidence establishes that the gloves have no evidentiary connection to him, and, therefore, the gloves’ appearance at the crime scene should have been employed by his trial counsel to demonstrate, even circumstantially, that the gloves belonged to the actual perpetrator.

The fourth issue concerns trial counsel’s failure to employ evidence that the method of strangulation utilized by the perpetrator contradicts the method described by the petitioner in his confession. According to the written confession issued in the presence of Morrissey, the petitioner stated: “I admit to having strangled her.” At the criminal trial, Morrissey testified that when the petitioner made this statement, he made a motion with his hands to demonstrate. Morrissey testified that “he brought up his hands and opened palms the way you’d expect somebody to be grabbing somebody’s neck.” The medical examiner, Arkady Katsnelson, however, testified at trial that “with reasonable degree of medical certainty in this particular case, I believe this asphyxiation was caused by pressure with a blunt object, to the right side of the neck. It is not manual strangulation.” The petitioner maintains that this is evidence of inadequate trial representation because his counsel failed to address this contradiction, which would have demonstrated the unreliability of the petitioner’s confession to Morrissey.

The last evidentiary issue also involves trial counsel's alleged failure to utilize existing evidence to undermine the reliability of the petitioner’s confession due to a factual inconsistency between the evidence adduced at trial and the substance of the confession. According to the petitioner’s confession, after the victim was sexually assaulted, “she said she was going to tell my wife Karen. I then went to the kitchen and got a steak knife with a hard plastic brown handle and stabbed [the victim] in the stomach while she was laying on the couch.” Notwithstanding this recounting of the events, the petitioner argues that the forensic evidence adduced at trial demonstrated that the stabbing did not occur on the couch; rather, the victim was stabbed in the bedroom. The petitioner submitted numerous crime scene photographs of both the bedroom and the couch in support of this claim. He argues that his trial counsel failed to address this contradiction even though it demonstrates the unreliability of his statement to Morrissey.

Each of these claims involving trial counsel’s failure to employ the available evidence addresses either the credibility of the petitioner’s confession or the likelihood of a different perpetrator. Evidence of this nature has a reasonable probability of altering the outcome of the proceedings. Therefore, viewing the evidence in the light most favorable to the petitioner, we conclude that he has submitted sufficient evidence to establish a prima facie showing of prejudice under Strickland.

We turn next to the question of whether the petitioner submitted sufficient evidence to demonstrate a prima facie showing that trial counsel’s performance was deficient. “While it is incumbent on a trial counsel to conduct a prompt investigation of the case and explore all avenues leading to facts relevant to the merits of the case and the penalty in the event of conviction . . . counsel need not track down each and every lead or personally investigate every evidentiary possibility. ... In a habeas corpus proceeding, the petitioner’s burden of proving that a fundamental unfairness had been done is not met by speculation, but by demonstrable realities. . . . One cannot successfully attack, with the advantage of hindsight, atrial counsel’s trial choices and strategies that otherwise constitutionally comport with the standards of competence.” (Internal quotation marks omitted.) Torres v. Commissioner of Correction, 84 Conn. App. 561, 566-67, 854 A.2d 97 (2004). Here, the totality of the evidence submitted to demonstrate trial counsel’s failure to employ available evidence is sufficient to establish a prima facie showing of prejudice under Strickland. This evidence, if credited and viewed in the light most favorable to the petitioner, is substantial enough to take his claim out of the realm of speculation and make the issue of fundamental unfairness a demonstrable reality. Accordingly, the court improperly granted the motion for a judgment of dismissal on this portion of count two.

C

Petitioner’s Testimony

The final claim asserted by the petitioner is that his prior habeas counsel provided deficient representation in failing to present a claim arising out of trial counsels allegedly improper decision to allow the petitioner to testily during the guilt phase of the underlying criminal trial. This portion of count two was denied by the court without explanation.

At the second habeas proceeding, the petitioner elicited the following relevant testimony from attorney Patrick J. Culligan. “The theory of our defense was to try to persuade the jury that [the petitioner] was the victim of an intentional police investigation that was designed to take advantage of his mental and emotional limitations and that they should therefore give no credence to his confessions.” Specifically, regarding his decision to allow the petitioner to testify, Culligan testified that he was aware that the petitioner could be impeached; however, “[h]aving him testify to the jury in the guilt phase of the trial would give the jury an opportunity to view him as a human being and as we hoped, a person with limited intellectual, cognitive abilities, and if in fact they had to make a decision about whether he should be sentenced to death or life imprisonment, that the experience of having him testify would tend to encourage them and make it easier for them to vote for a life sentence.”

The petitioner does not submit any evidence to establish that he was prejudiced by trial counsel’s decision to have him testify. In his brief, he merely cites testimony establishing trial counsel’s awareness that the petitioner was prone to impeachment. Trial counsel’s use of this knowledge, however, was explained as part of a specific trial strategy. Therefore, even viewing this evidence in the light most favorable to the petitioner, there is insufficient evidence to substantiate his claim. Absent evidence of prejudice, he is unable to make out a prima facie case for a Strickland claim. Accordingly, we conclude that the habeas court properly granted the motion for a judgment of dismissal as it relates to this claim.

The judgment is reversed as to count one as it relates to the Ludlow note and as to those portions of count two concerning trial counsel’s failure to utilize evidence to prove the factual unreliability of the petitioner’s inculpatory statements to the police, and the case is remanded for further proceedings according to law. The judgment is affirmed in all other respects.

In this opinion the other judges concurred.

       After the close of evidence in the habeas trial but prior to judgment, attorneys W. James Cousins and Paul Casteleiro filed an appearance in lieu of Vogt. They sought to reopen the evidentiary proceedings; however, the court refused to consider the motions to reopen, finding their arguments to be beyond the scope of the proceeding. On appeal, this court affirmed this decision in Lapointe v. Commissioner of Correction, 67 Conn. App. 674, 678-79, 789 A.2d 491, cert. denied, 259 Conn. 932, 793 A.2d 1084 (2002).

       Specifically, the court determined that the note that the petitioner claimed was suppressed improperly was not exculpatory evidence, and, therefore, his first habeas counsel’s decision not to contest the suppression was not unreasonable. The court also reviewed the various allegations of trial counsel's deficientperformance and concluded that the petitioner failed to establish that his first habeas counsel was deficient for not addressing trial counsel’s failure (1) to call the petitioner’s former wife, Karen Martin, as a witness, (2) to investigate adequately the possible bum time of the fire and secure an arson expert, (3) to consult a forensic pathologist to determine the victim’s time of death and (4) to impeach the testimony of Morrissey.

       In its brief, the respondent argues that Karen Martin testified at the second habeas petition that “[the petitioner] was not in the house” but nevertheless also testified that she was truthful on previous occasions when she testified as to his whereabouts, a statement that appears to be contradictory. A review of her testimony, however, reveals the proper context in which she made this statement. She testified that the petitioner was not in the house because he had gone to her grandmother’s to check on her. She then related what she did during the petitioner’s absence. It is undisputed that the petitioner was at the victim’s apartment, having been the person who called the police. Therefore, her second habeas trial testimony does not contradict her previous testimony as the respondent seems to argue.

       The court did not engage in an analysis of whether prior habeas counsel’s performance was deficient, having determined that the petitioner had failed to establish a prima facie Brady violation. The court concluded: “Without evidence that Detective Ludlow’s note is favorable to the petitioner, it would have been pointless for [habeas counsel] to raise a Brady claim in the petitioner’s first habeas action. There is, therefore, no basis upon which this court can find that [habeas counsel’s] performance fell below an objective standard of reasonableness.”

       In the memorandum of decision, the court noted that prior habeas counsel did not provide any explanation as to why he did not hire an arson expert and that this omission is problematic when determining the deficient performance prong of the Strickland analysis. The court, however, did not reach this stage of the analysis after concluding that the petitioner did not establish the first prong of Strickland. Furthermore, under the particular facts of this case, it would appear that we cannot conduct a meaningful review of a court’s decision to render a judgment of dismissal on this claim. Specifically, our review of the court’s judgment of dismissal requires us to review the proffered evidence in the light most favorable to the petitioner to determine whether he has established a prima facie showing of a Strickland claim; see Thomas v. West Haven, supra, 249 Conn. 392; however, due to the lack of a definitive description of what constitutes “deficient performance,” we are also required to evaluate the specific circumstances of the claim and indulge a strong presumption in favor of finding that the representation was not deficient. See Henderson v. Commissioner of Correction, 80 Conn. App. 499, 504, 835 A.2d 1036 (2003), cert. denied, 267 Conn. 918, 841 A.2d 1190 (2004).

       We note that the petitioner’s failure to file a motion for articulation in the event that a court did not address the merits of his claims normally would preclude our review on the basis of an inadequate record. See Schoonmaker v. Lawrence Brunoli, Inc., 265 Conn. 210, 232, 828 A.2d 64 (2003) (stating well established principle that it is appellant’s burden to provide adequate record for review). In light of the fact that this court has plenary review over the decision to grant a motion for a judgment of dismissal; see DiStefano v. Milardo, supra, 276 Conn. 422; an adequate record exists to determine whether the petitioner submitted sufficient evidence to survive the motion underlying this appeal.


text:
    MORRIS SILVERSTEIN v. RICHARD B. LASCHEVER, ADMINISTRATOR (ESTATE OF ESTHER S. SILVERSTEIN), ET AL.
    (AC 28917)
    Gruendel, Robinson and Pellegrino, Js.

      Argued October 22, 2008
    officially released March 31, 2009

      Morris Silverstein, pro se, the appellant (plaintiff).

      Richard B. Laschever, pro se, the appellee (named defendant).
   Opinion

ROBINSON, J.

The plaintiff, Morris Silverstein, appeals from the judgment of the Superior Court upholding the order of the Probate Court for the district of Andover that mortgages be placed on certain land that is part of the estate of Esther S. Silverstein (estate) and allowing certain fees to be charged to the estate. The plaintiff claims that (1) the mortgages ordered by the Probate Court to be placed on property located in Columbia (Columbia property) are void and (2) the Superior Court should have found that certain fees incurred by the defendant administrator of the estate, Richard B. Laschever, and his attorney were the administrator’s personal obligations. We reverse the judgment of the trial court.

The decedent, Esther S. Silverstein, died intestate in 1969, and numerous cases related to disputes over her estate have traveled extensively through the probate, trial and appellate systems. The plaintiff is an heir of the decedent and one of her children. We begin with a recitation of the facts and procedural history from the Superior Court’s May 30, 2007 memorandum of decision, which led to the plaintiffs appeal. “The case has had a long and tortuous history since the death of the decedent in 1969. ... In October, 1994, the administrator of the estate filed a final accounting with the Probate Court. On December 23, 1994, the Probate Court approved the administrator’s final accounting and ordered that the [rest, residue and remainder] of the estate be distributed [by the fiduciary of the estate] in accordance with the proposed distribution. The proposed distribution provided that the equity in the Columbia property be distributed by thirds to each of the heirs. The Probate Court also approved payment of administrative fees in the amount of $18,300 [to the administrator and his attorney, George Goodberg]. That order was appealed by the plaintiff in March, 1995. By decision dated January 8, 1998, the Superior Court, Klaczak, J., ruled on the seventeen issues raised by the plaintiff in the appeal . . . ,”

The Superior Court found the first fifteen reasons for appeal to be without merit. The final two claims were that a request to mortgage the Columbia property be denied and that the Probate Court take into account a payment of taxes on behalf of the estate. The Superior Court disallowed both of these claims because they were not properly before the court in an appeal from a final accounting. The Superior Court referred the matter back to the Probate Court for the filing of a supplemental or amended final accounting in light of certain disclosures made during trial that the plaintiff improperly received funds belonging to the estate after he was removed as administrator; the Superior Court also made a minor correction to the administrator’s fee. The plaintiff appealed, and the decision was affirmed in Silverstein v. Laschever, 54 Conn. App. 901, 733 A.2d 924, cert. denied, 251 Conn. 905, 738 A.2d 1091 (1999).

On January 15,2004, the Probate Court for the district of Andover approved the administrator’s September 25, 2003 application to sell the Columbia property. The plaintiff appealed to the Superior Court for the judicial district of Tolland, and on February 24, 2005, the Superior Court reversed the order of the Probate Court granting the application to sell the Columbia property. The Superior Court found that the prior Superior Court decision had made no contrary orders regarding the Probate Court’s 1994 order of distribution and held that it could not modify that order by permitting the sale rather than the distribution of the property. The Superior Court concluded that “[s]ince the order of distribution remains in effect and that order provides that the land be distributed to the heirs, the [Probate Court] cannot order its sale.”

In April, 2004, in response to the January 8, 1998 memorandum of decision, the administrator filed a supplemental final accounting, which included fees to the administrator and his attorney for defending the appeals. The supplemental final accounting was approved by the Probate Court in September, 2004. The administrator then applied to mortgage the Columbia property to pay his administrative fees and the fees of his attorney. The Probate Court approved the application to mortgage the property on April 26, 2005, finding that the Columbia property “was the only asset of the estate remaining by which the debts of the estate can be satisfied. It is in the best interest of the parties in interest to satisfy outstanding debts of the estate.” The Probate Court ordered that the property be mortgaged and that a note for the sum of $7475 be executed payable to Laschever and a note for the sum of $5910 be executed payable to Goodberg.

The plaintiff appealed to the Superior Court from the April 26, 2005 ruling, and on May 30, 2007, that court upheld the order of the Probate Court and denied the plaintiffs appeal. The Superior Court noted that the plaintiff contended that because he did not specifically challenge the order of distribution of the Columbia property in his appeal from the 1994 order, that portion of the order remained intact and could be disposed of separately from the rest of the order. The Superior Court found this contention “illogical” because “[t]he plaintiffs appeal raised seventeen specific claims. An administrator would be in the position of trying to determine which sections may be affected [by] the court’s decision on appeal and which section may not. Further, there were issues pending in the appeal which directly applied to the specific property in Columbia, i.e., the plaintiffs sixteenth reason for appeal [which concerned the request to place two mortgages on the Columbia property] .... Testimony was heard and orders made regarding this property. While it is true that the orders of the Probate Court remained in effect until such time as they were ruled upon by the Superior Court, they could not be acted upon, i.e., this property could not have been distributed until the issues on appeal were settled.” The Superior Court also found that the administrator’s expenses, including his attorney’s fees in defending the various appeals, were paid properly out of the assets of the estate. This appeal followed.

We begin with our standard of review. “An appeal from a Probate Court to the Superior Court is not an ordinary civil action. . . . When entertaining an appeal from an order or decree of a Probate Court, the Superior Court takes the place of and sits as the court of probate. ... In ruling on a probate appeal, the Superior Court exercises the powers, not of a constitutional court of general or common law jurisdiction, but of a Probate Corut.” (Citations omitted; internal quotation marks omitted.) State v. Gordon, 45 Conn. App. 490, 494, 696 A.2d 1034, cert. granted on other grounds, 243 Conn. 911, 701 A.2d 336 (1997) (appeal dismissed October 27, 1998). When, as here, no record was made of the Probate Court proceedings, the absence of a record requires a trial de novo. See Andrews v. Gorby, 237 Conn. 12, 16, 675 A.2d 449 (1996).

The plaintiff first claims that the Superior Court improperly affirmed the April 26, 2005 order of the Probate Court for the district of Andover to mortgage the Columbia property. The plaintiff argues that the Probate Court’s 1994 order to distribute the Columbia property effectively terminated the estate and that the Probate Court did not have the authority to set aside, modify or revoke the 1994 order. He also argues that because he did not appeal from the 1994 order to distribute the Columbia property, the Probate Court’s jurisdiction over the property had long since expired by the time that court ordered that the property be mortgaged in April, 2005, and, therefore, that court had no authority to order that the mortgages in question be placed on the property.

The administrator asserts that the property was not distributed until April 26, 2005, when the Probate Court ordered that mortgages be placed on the Columbia property, and that the Probate Court continued to have jurisdiction over the estate until September 10, 2004, when the Probate Court approved the supplemental accounting. He argues that the Probate Court had jurisdiction to order the execution of the mortgages to secure the September 10, 2004 decree approving the supplemental final accounting, which included the fees to the administrator and his attorney.

“It is fundamental jurisprudence that title to real estate vests immediately at death in a deceased’s heirs, or in devisees upon the admission of the will to probate. . . . The recording of a probate certificate of devise or descent is necessary only to perfect marketable title. That certificate furnishes evidence that the heir’s or devisee’s title is no longer in danger of being cut off by a probate sale to pay debts of the estate and also because it furnishes a record of who received the title.” (Citation omitted; internal quotation marks omitted.) Santa Fuel, Inc. v. Varga, 77 Conn. App. 474, 487, 823 A.2d 1249, cert. denied, 265 Conn. 907, 831 A.2d 251 (2003). “Before a distribution valid for all purposes— one that will put an end to the settlement of the estate and the power of the court — can be made . . . the estate to be distributed must be first ascertained by that court, by the settlement of the administration account, and the deduction of the ascertained expenses and charges. This is a condition precedent to such a distribution as will put an end to the jurisdiction of the Court of Probate over the unsettled administration account.” Matthews’ Appeal, 72 Conn. 555, 559, 45 A. 170 (1900). “Under our probate practice the ascertainment of the heirs of an estate and the ordering of a distribution requires an order made after due notice, distinct from or in addition to the allowance of a final account . . . State v. Glen Falls Indemnity Co., 120 Conn. 178, 182-83, 179 A. 823 (1935). At the death of an intestate decedent, the heirs and distributees can make a valid conveyance of the decedent’s lands even before formal distribution of the property. Perkins v. August, 109 Conn. 452, 456, 146 A. 831 (1929).

“The distribution of the property in the estate of a deceased person is the division of it among those who are entitled by law to receive it.” (Internal quotation marks omitted.) Greene v. King, 104 Conn. 97, 102, 132 A. 411 (1926). General Statutes § 45a-431 provides in relevant part: “The Court of Probate shall ascertain the heirs and distributees of each intestate estate . . . [and] shall order the administrator or other fiduciary charged with the administration of the estate to deliver possession of or pay over the intestate estate .... The fiduciary shall take proper receipts for any such delivery or payment.” Similarly, General Statutes § 45a-433 provides in relevant part: “After payment of expenses and charges, an intestate estate shall be distributed by the administrator or other fiduciary charged with the administration of the estate . . . .”

The statutes further mandate that the administrator or other fiduciary of an estate promptly make such distribution. General Statutes § 45a-450 provides in relevant part: “When the real property of any deceased person, or any part thereof or interest therein, is devised or distributed or set out to the devisee or devisees, heir or heirs or spouse of such decedent or is legally divided by the voluntary act of all the persons interested therein or descends to the heir or heirs or spouse of such decedent, the fiduciary of the estate of such decedent shall, within one month thereafter, or, in case of descent to the heir or heirs or spouse of such decedent, within one month after the acceptance by the court of the final administration account of such fiduciary, procure from the judge, clerk or assistant clerk of the court of probate having jurisdiction of the settlement of the estate of such decedent, and cause to be recorded in the land records of each of the towns in which such real property is situated, a certificate signed by such judge, clerk or assistant clerk.....If any fiduciary fails to perform the duties imposed upon him by the provisions of this section, he shall be fined not more than twenty-five dollars.” (Emphasis added.)

The case law also addresses the duty of an administrator to distribute the assets of an estate. “The duties of distributors on intestate estates are statutory and ministerial; and they distribute the estate as they find it in the hands of the executor or administrator after the allowance of the final account.” (Internal quotation marks omitted.) Bankers Trust Co. v. Greims, 110 Conn. 36, 42, 147 A. 290 (1929). “[0]ne of the primary obligations resting upon an executor or administrator is to effect as speedy a settlement of the estate as is reasonably possible . . . .” Hall v. Meriden Trust & Safe Deposit Co., 103 Conn. 226, 233, 130 A. 157 (1925).

Our Supreme Court has questioned the propriety of an administrator’s failure to distribute real estate that was part of a decedent’s intestate estate. In Hall v. Meriden Trust & Safe Deposit Co., supra, 103 Conn. 226, the court, noting that an administrator of an estate occupies a position like that of a trustee, was critical of the administrator’s actions where he did not sell the decedent’s house until thirteen years after he was appointed as the administrator. Id., 233 (“[w]hile not trustees, executors and administrators do occupy a position in many respects analogous, for they have title or possession of the property of the estate solely for the benefit of those having valid charges upon it or entitled to share in its distribution”). The court stated that “no adequate reason appears for keeping the estate open so long and it must be assumed to have been the voluntary choice of the administrator . . . .” Id., 235.

The December 23, 1994 order of the Probate Court decreed that the rest, residue and remainder of the estate be distributed to the heirs. The Columbia property was specifically listed in the final accounting approved by the Probate Court at that time as estate on hand for distribution. There is no question that the Probate Court ordered that the estate be distributed at that time. Although it appears that the administrator did not comply with the order of the Probate Court, and withheld distribution of the property, this does not change the fact that distribution of the Columbia property clearly was ordered by the Probate Court in 1994.

“All orders, judgments and decrees of courts of probate, rendered after notice and from which no appeal is taken, shall be conclusive and shall be entitled to full faith, credit and validity . . . .” General Statutes § 45a-24. “[I]t is well settled that probate decrees ascertaining heirs and distributees and ordering or accepting distribution are final if original jurisdiction to administer the estates exists. Kellogg v. Johnson, 38 Conn. 269 [1871]; Hotchkiss’ Appeal, 89 Conn. 420, 95 A. 26 [1915]; Williamson’s Appeal, 123 Conn. 424, 196 A. 770 [1937]; State ex rel. Beardsley v. London & Lancashire Indemnity Co., 124 Conn. 416, 422, 200 A. 567 [1938].” Palmer v. Palmer, 31 F. Sup. 861, 866 (D. Conn. 1940). “[T]he mere taking of an appeal from a probate decree does not in and of itself vacate or suspend the decree. . . . [T]he probate decree appealed from continues in full force until the appellate tribunal otherwise determines.” (Citations omitted; internal quotation marks omitted.) Kerin v. Stangle, 209 Conn. 260, 265, 550 A.2d 1069 (1988).

A Probate Court decree is conclusive on all of the parties until or unless the decree is disaffirmed on appeal. See Kochuk v. Labaha, 126 Conn. 324, 329, 10 A.2d 755 (1940). “[T]he decree of a court of probate, in a matter within its jurisdiction, is as conclusive upon the parties, as the judgment or decree of any other court; and the superior court as a court of equity, has no more power to correct, alter, or vary it, than it has to alter or vary the judgments of any other court in the state.” Gates v. Treat, 17 Conn. 388, 392 (1845). An “appeal [brings] before the Superior Court for review only the order appealed from. ... It [does] not vacate the order, and that order [remains] untouched until modified by a judgment in the Superior Court.” (Citations omitted.) Appeal of Stevens, 157 Conn. 576, 580-81, 255 A.2d 632 (1969). “The vesting of the plaintiffs title, together with the right of possession, [is] not in suspension during the settlement of the estate . . . nor delayed by the fact that the property might be wanted for the payment of debts . . . .” (Internal quotation marks omitted.) Hewitt v. Sanborn, 103 Conn. 352, 373, 130 A. 472 (1925).

“Assets lawfully transferred or distributed from estates are protected against the effects of subsequent reconsideration of Probate Court orders.” R. Folsom, Probate Jurisdiction & Procedure in Connecticut (2d Ed. 2008) § 2:41, p. 2-110.1. When the Probate Court decree includes an order of distribution, the matter of distribution is not subject to another order of the Probate Court. See Brownell v. Union & New Haven Trust Co., 143 Conn. 662, 666, 124 A.2d 901 (1956) (noting that failure of Probate Court to include order of distribution leaves matter still subject to order of Probate Court). Only under limited circumstances and when specific procedures are followed can a probate decree be reconsidered, modified or revoked. “[A]ny order or decree other than a decree authorizing the sale of real estate made by a court of probate may, in the discretion of the court, be reconsidered and modified or revoked by the court, on the court’s own motion or on the written application of any interested person. Such application shall be made or filed within one hundred twenty days after the date of such order or decree and before any appeal is allowed or after withdrawal of all appeals.” General Statutes § 45a-128 (b).

The probate decree in question is the December 23, 1994 decree ordering the distribution of the rest, residue and remainder of the estate to the heirs. The plaintiff appealed from that decree in March, 1995, and on January 8,1998, the Superior Court ruled against the plaintiff on fifteen of his seventeen claims and referred the matter back to the Probate Court for the filing of a supplemental accounting. The plaintiff appealed from the 1998 decision, which was affirmed by this court on June 29, 1999, in Silverstein v. Laschever, supra, 54 Conn. App. 901, and the Supreme Court denied certification to appeal from that decision on September 29, 1999, in Silverstein v. Laschever, 251 Conn. 905, 738 A.2d 1091 (1999). The plaintiff thoroughly has exhausted the appeal process pertaining to the 1994 order, and the order having been affirmed on appeal, it is conclusive upon all the parties.

The Probate Court has jurisdiction over both interim and final accountings per General Statutes § 45a-175, which provides in relevant part: “Courts of probate shall have jurisdiction of the interim and final accounts of testamentary trustees, trustees appointed by the courts of probate, conservators, guardians, persons appointed by probate courts to sell the land of minors, executors, [and] administrators . . . .” Whether the Probate Court had the authority to approve the supplemental accounting filed in 2004 is not in dispute. This supplemental accounting, however, did not give the Probate Court the authority to modify its 1994 order distributing the rest, residue and remainder of the estate to the heirs. That order was a final order of the Probate Court, and the assets lawfully were ordered distributed from the estate at that time. The mere fact that the administrator failed to comply with the distribution order and did not distribute the Columbia property to the heirs at that time did not cause the Columbia property to remain part of the estate, subject to further orders of the Probate Court. The Probate Court’s order of 1994 included an order of distribution; therefore, the matter of distribution is not subject to another order of the Probate Court.

The Superior Court, in its February 24, 2005 decision disallowing the sale of the property in order to pay off administrative expenses, concluded that the Probate Court could not order the sale of property which was previously the subject of the 1994 order of distribution. The court emphasized that the order of distribution remained in effect. The court found that because an application to reconsider, modify or revoke the decree was not made under the statutory time period set forth in § 45a-128, “[n] either the appropriate timing or grounds exist for the court to reconsider the order of distribution. . . . Since the order of distribution remains in effect and that order provides that the land be distributed to the heirs, the court cannot order its sale.” An order to mortgage the property is likewise improper. The Probate Court’s 1994 decree that the Columbia property be distributed to the heirs of the estate remained in full force and effect throughout the pendency of the appeal and was not subject to another order of the Probate Court. Original jurisdiction to administer the estate unquestionably existed; the decree of the Probate Court was final. The Probate Court, therefore, lacked the authority in 2005 to order that mortgages be placed on the Columbia property.

In light of our conclusion that the order to mortgage the Columbia property was improper, it is unnecessary to address the plaintiffs second claim.

The judgment is reversed and the case is remanded with direction to render judgment for the plaintiff.

In this opinion the other judges concurred.

       The court noted in the January 8, 1998 memorandum of decision that the plaintiff was the administrator of the decedent’s estate from March 8, 1969, until October 31, 1989, when he was removed for improper performance of his duties. This judgment was affirmed in Morris Silverstein’s Appeal from. Probate, 24 Conn. App. 818, 587 A.2d 173 (1991), aff'd, 29 Conn. App. 904, 614 A.2d 496 (1992). After his removal as the administrator, the plaintiff appealed from the decree of the Probate Court approving the final accounting, which was affirmed in Morris Silverstein’s Appeal from, Probate, 29 Conn. App. 904, 614 A.2d 496, cert. denied, 224 Conn. 919, 617 A.2d 173 (1992).
      Laschever is defending the position of the estate in this appeal.

       The mortgages at issue in the 1998 appeal had been granted in favor of Dorothy Mitchell and Samuel Silverstein, the other heirs of Esther S. Silverstein and the plaintiffs sister and brother. They are not the mortgages at issue in this appeal.

       The court noted that the January 8, 1998 decision “did not address the order of distribution and no amendments to that decision were ordered.”

       The property was to be sold to Ralph C. Bowen III and Kara A. Bowen for $170,000. A January 15, 2004 order of the Probate Court approved the application of the administrator to sell the property by private sale to the Bowens for $170,000 in cash. A separate order denied the plaintiffs application for a distribution of the real property to the heirs of the estate.
      The administrator had applied to sell the property to satisfy the debts of the estate, namely, his administrative fees.

       The May 30, 2007 decision noted that the property had been distributed with the mortgages attached.

       We also note that General Statutes, § 45a-130 provides: “When a court of probate orders any person to do any act, such person shall, upon compliance with the order, make a written return to the court, which shall be prima facie evidence of the due execution of the order. The court may in its discretion require that such return be signed under penalty of false statement.”


author: BISHOP, J.

text:
    JAMES J. FINLEY, JR. v. COMMISSIONER OF MOTOR VEHICLES
    (AC 29348)
    Bishop, DiPentima and Foti, Js.

      Argued December 2, 2008
    officially released March 31, 2009

      Ira B. Grudberg, with whom was Trisha M. Morris, for the appellant (plaintiff).

      Eileen Meskill, assistant attorney general, with whom, on the brief, were Richard Blumenthal, attorney general, and Priscilla J. Green, assistant attorney general, for the appellee (defendant).
   Opinion

BISHOP, J.

The plaintiff, James J. Finley, Jr., appeals from the trial court’s judgment dismissing his appeal from the order issued by a hearing officer of the department of motor vehicles suspending his motor vehicle operator’s license for one year due to his refusal to take a chemical alcohol test in violation of General Statutes § 14-227b. The plaintiff claims that the court improperly concluded that there was substantial evidence in the record to support the hearing officer’s findings that the plaintiff (1) was identified as the operator of the motor vehicle in question and (2) improperly refused to submit to a chemical alcohol test. We affirm the judgment of the trial court.

The following facts are pertinent to our resolution of the plaintiffs appeal. On May 19, 2007, at 2:31 a.m., North Haven police dispatch received a 911 telephone call from Lamen Kupec regarding a vehicle being driven erratically. Kupec and her friend, Laura Maselli, who were driving separate vehicles, trailed the driver as he traveled northbound on Universal Drive. Kupec notified the police that a gray Nissan Pathfinder bearing the license plate, 534-TPL, was being driven “back and forth between the left and right lane.” Maselli notified the police that the vehicle “was driving very slow, then it would speed up, swerving side to side.” Kupec and Maselli followed the driver, whom they identified as male, into the Home Depot parking lot at 111 Universal Drive. They watched as the driver exited his vehicle and began talking on his cellular telephone. Kupec and Maselli drove away when the driver began walking toward their cars. After the police received Kupec’s call, Officers Thomas J. Talarico and Valdemar Queir-oga were dispatched to the parking lot. Upon Talarico’s arrival, he saw a Nissan Pathfinder matching Kupec’s description, bearing the same license plate number that Kupec had provided. The plaintiff was sitting alone in the driver’s seat, the vehicle’s motor was turned off, and he had the vehicle’s keys in his coat pocket. There were no other people in the vicinity. In response to Talarico’s question about where he had been, the plaintiff responded that he had just come from New Haven. As the plaintiff spoke, Taiarico detected the odor of alcohol from his breath and observed that he had glassy eyes and slurred speech. On the basis of those observations, Taiarico asked the plaintiff to exit the vehicle. He observed that the plaintiff’s movements were slow and unsteady. Taiarico then had the plaintiff perform three standardized field sobriety tests, which the plaintiff failed. On the basis of the eyewitness statements of the plaintiffs erratic driving, the odor of alcohol on his breath and his failing the three sobriety tests, he was placed under arrest for operating a motor vehicle while under the influence of intoxicating liquor. Thereafter, the plaintiff was escorted to police headquarters where he was charged with violating General Statutes § 14-227a. At the police station, an officer read an implied consent advisory form to the plaintiff, which apprised him of the mandatory alcohol testing requirements pursuant to § 14-227b, and requested that the plaintiff submit to a breath test. At 3:01 a.m., the plaintiff was afforded the opportunity to call his attorney. After concluding his telephone conversation, the plaintiff stated, “I’m refusing to take the test.”

On May 25,2007, the plaintiffs license was suspended for one year due to his refusal to take the chemical alcohol test. Pursuant to § 14-227b, the plaintiff requested and was granted an administrative hearing to contest the suspension. Section 14-227b (g) provides in relevant part: “The hearing shall be limited to a determination of the following issues: (1) Did the police officer have probable cause to arrest the person for operating a motor vehicle while under the influence of intoxicating liquor or drugs or both ... (2) was such person placed under arrest; (3) did such person refuse to submit to such [chemical alcohol] test or analysis . . . and (4) was such person operating the motor vehicle.” On June 21,2007, ahearing officer, acting on behalf of the defendant, the commissioner of motor vehicles (commissioner), found that all four criteria had been satisfied. Accordingly, the plaintiffs license was suspended for one year.

The plaintiff appealed to the Superior Court, claiming that the hearing officer improperly suspended his license because (1) the record did not contain rehable, probative and substantial evidence that the plaintiff was operating the vehicle on the relevant date and (2) the plaintiff did not improperly refuse to take a chemical alcohol test because that refusal took place more than two hours after his initial contact with the police. On October 19, 2007, the court dismissed the plaintiffs appeal, concluding that (1) there was substantial evidence to establish that the plaintiff was operating the vehicle at issue prior to his arrest and (2) the two hour testing window is irrelevant when a party refuses to take a chemical alcohol test. This appeal followed. Additional facts will be set forth as necessary.

I

The plaintiff first claims that the record before the hearing officer lacked sufficient evidence to show that he was identified properly as the operator of the vehicle at issue because (1) neither of the eyewitnesses identified him as the operator of the vehicle, (2) the vehicle’s motor was not running and the keys were not in the ignition when the police found him and (3) he never told the police that he was the operator of the vehicle. The commissioner contends that the police report, including two eyewitness narratives, provided substantial evidence on which the hearing officer reasonably could rely to determine that the plaintiff was identified correctly as the operator of the subject vehicle. We agree with the commissioner.

We begin by articulating the standard of review for an appeal from the decision of an admmistrative agency. “[JJudicial review of the commissioner’s action is governed by the [Uniform Administrative Procedure Act (UAPA), General Statutes § 4-166 et seq.] and the scope of that review is very restricted. . . . [Rjeview of an administrative agency decision requires a court to determine whether there is substantial evidence in the administrative record to support the agency’s findings of basic fact and whether the conclusions drawn from those facts are reasonable. . . . Neither this court nor the trial court may retry the case or substitute its own judgment for that of the administrative agency on the weight of the evidence or questions of fact. . . . Our ultimate duty is to determine, in view of all of the evidence, whether the agency, in issuing its order, acted unreasonably, arbitrarily, illegally or in abuse of its discretion. . . . The substantial evidence rule governs judicial review of administrative fact-finding under the UAPA. [See] General Statutes § 4-183 (j) (5) and (6). An administrative finding is supported by substantial evidence if the record affords a substantial basis of fact from which the fact in issue can be reasonably inferred. . . . The substantial evidence rule imposes an important limitation on the power of the courts to overturn a decision of an administrative agency .... It is fundamental that a plaintiff has the burden of proving that the commissioner, on the facts before him, acted contrary to law and in abuse of his discretion .... The law is also well established that if the decision of the commissioner is reasonably supported by the evidence it must be sustained. . . . This substantial evidence standard is highly deferential and permits less judicial scrutiny than a clearly erroneous or weight of the evidence standard of review.” (Citations omitted; internal quotation marks omitted.) Jim’s Auto Body v. Commissioner of Motor Vehicles, 285 Conn. 794, 816-17, 942 A.2d 305 (2008).

At the outset, we note that “the issue of whether one operates a motor vehicle within the meaning of § 14-227a is to be determined on a case-by-case basis, making [p]roof of operation ... a factual determination . . . .” (Citation omitted; internal quotation marks omitted.) Murphy v. Commissioner of Motor Vehicles, 254 Conn. 333, 344-45, 757 A.2d 561 (2000). “[T]here is no requirement that the fact of operation be established by direct evidence.” Id., 345. In fact, our Supreme Court has stated that “[i]t is not the function of an appellate court to insist that one particular type of evidence be presented before finding substantial evidence to be present. . . . [T]here is no distinction between direct and circumstantial evidence [so] far as probative force is concerned .... In fact, circumstantial evidence may be more certain, satisfying and persuasive than direct evidence.” (Internal quotation marks omitted.) Goldstar Medical Services, Inc. v. Dept. of Social Services, 288 Conn. 790, 834, 955 A.2d 15 (2008). We note, as well, as we begin our analysis of the plaintiffs claims, that operation of the motor vehicle is not an issue on appeal. That is, the plaintiff does not contest the finding that the motor vehicle in which he was found had been observed by the witnesses being operated in an erratic fashion. Rather, he claims that the evidence was insufficient to identify him as the operator. Our careful review of the record reveals that the commissioner’s finding is supported by substantial evidence from which the plaintiffs identity as the operator of the vehicle reasonably could be inferred.

As noted, the record clearly shows that the plaintiffs vehicle was operated in an erratic manner. The question we address is whether there was sufficient evidence to identify the plaintiff as the operator of the vehicle. The record reveals that two witnesses reported seeing a gray Nissan Pathfinder swerving northbound along Universal Drive at 2:31 a.m. on May 19, 2007. The witnesses followed the vehicle into the Home Depot parking lot but left after the driver began to approach them. An officer, who was dispatched to the scene, found the plaintiff sitting alone in the driver’s seat of the particular vehicle that the witnesses previously had identified by physical description and license plate number. When confronted by a police officer, the plaintiff stated that he had just come from New Haven and that he had the vehicle’s keys in his pocket. Although the record does not show the precise time that the police arrived at the scene, the logical inference from the sequence of events is that the police arrived at the scene shortly after receiving a 911 call. This sequence includes the arrival of the police at the scene, their initial confrontation with the plaintiff, the administration of field sobriety tests to him, the taking of the plaintiff into custody and the transporting of the plaintiff to the police department all before his 3:01 a.m. call to his attorney. In addition to the relatively short time frame and the plaintiffs response to the officer that he had just come from New Haven, evidence that the plaintiff was alone in the vehicle when the police arrived and the fact that there was no one else in the vicinity further supports the hearing officer’s conclusion that the plaintiff was the operator of the vehicle that the witnesses had seen being operated erratically.

In addition to his general attack that the evidence was insufficient to identify him as the operator, the plaintiff argues that the evidence was lacking because neither witness specifically identified him. A reasonable inference may be drawn, however, that the plaintiff was the operator of the vehicle because he was found in the vehicle in the exact location where the witnesses reported seeing the operator. See O’Rourke v. Commissioner of Motor Vehicles, 33 Conn. App. 501, 508-509, 636 A.2d 409 (inferences drawn from totality of circumstances provide sufficient evidence to establish operation), cert. denied, 229 Conn. 909, 642 A.2d 1205 (1994). In fact, this court has found sufficient evidence of the identity of the operator where there were no witnesses and the plaintiff was not in the vehicle at issue. For example, in Kirei v. Hadley, 47 Conn. App. 451, 705 A.2d 205 (1998), this court concluded that there was sufficient evidence at trial that the plaintiff operated the vehicle in question even though he was found two-tenths of a mile away from the accident scene and there were no eyewitnesses to his operation of the vehicle. Id., 453. In that case, sufficient evidence of the plaintiffs identity as the operator was based on the inferences drawn from the fact that the plaintiff claimed ownership of the vehicle, the car was warm, and he admitted to driving recently. Id. Moreover, “[t]he absence of witnesses to the plaintiffs operation of the vehicle is not dispositive on the issue of operation. To be sure, it is often the case that police officers investigate § 14-227a violations after the intoxicated driver has ceased operating the vehicle.” Murphy v. Commissioner of Motor Vehicles, supra, 254 Conn. 347.

The plaintiff also contends that there was a lack of sufficient evidence of his identity as the operator because his vehicle’s motor was not running and his key was not in the ignition when the police arrived. He relies on Sengchanthong v. Commissioner of Motor Vehicles, 281 Conn. 604, 610-11, 917 A.2d 942 (2007), and State v. Haight, 279 Conn. 546, 903 A.2d 217 (2006), in which our Supreme Court concluded that the mere insertion of a key into an ignition is an act that constitutes operation. Sengchanthong v. Commissioner of Motor Vehicles, supra, 610-11; State v. Haight, supra, 555-56. In the present case, however, the commissioner does not claim that the plaintiff was in the process of operation when the officers came upon the plaintiff in the parking lot. Rather, the claim of operation is based on the statements of the witnesses regarding erratic operation, the identification of the motor vehicle being so operated and the subsequent identification of the plaintiff as the person who had been operating the motor vehicle. Thus, the fact that the vehicle may not have been in operation when the police arrived is not material to the present analysis.

Last, the plaintiff argues that there was insufficient evidence of his identity as the operator because he did not admit to operating the vehicle. Such an admission, however, is not necessary to establish that he was the operator because operation may be proven by direct or circumstantial evidence. Murphy v. Commissioner of Motor Vehicles, supra, 254 Conn. 345.

We conclude, therefore, that the administrative record contained substantial evidence supporting the commissioner’s finding that the plaintiff was the operator of the vehicle at issue.

II

The plaintiff next claims that the hearing officer’s conclusion that he improperly refused to submit to a chemical alcohol test was erroneous because that refusal was obtained more than two hours after his initial contact with the police. We disagree.

Pursuant to § 14-227b (c), if the person arrested for driving while intoxicated refuses to submit to a chemical alcohol test or takes the test within two hours of the time of operation, and the results of such test or analysis indicate that such person has an elevated blood alcohol content, the police officer, acting on behalf of the commissioner, shall immediately revoke and take possession of the operator’s license. General Statutes § 14-227b (c).

We need not determine whether the two hour limit is applicable to refusals to submit to a test because our review of the record reveals that the plaintiff refused to take the chemical alcohol test within two hours of his initial contact with the officers. The police incident report, which indicates that it was prepared on May 19, 2007, at 4:06 a.m., includes the following information. The police received a telephone call about the plaintiffs erratic operation at 2:31 a.m., and two officers were then dispatched to the plaintiffs location. Thereafter, the plaintiff was taken into custody. At the police station, once the plaintiff was charged and read his rights, he was then afforded the opportunity to call his attorney at 3:01 a.m. After he concluded his telephone conversation, the plaintiff refused to take the chemical alcohol test. Because the initial call to the police was at 2:31 a.m. and the report, including a recitation of the plaintiffs refusal to take the test, was prepared less than two hours later, at 4:06 a.m., the refusal logically took place within the two hour period. Consequently, because the record belies the plaintiffs contentions regarding the timing of his refusal, this claim, too, fails.

The judgment is affirmed.

In this opinion the other judges concurred.

       General Statutes § 14-227a provides in relevant part: “No person shall operate a motor vehicle while under the influence of intoxicating liquor or any drug or both. A person commits the offense of operating a motor vehicle while under the influence of intoxicating liquor or any drug or both if such person operates a motor vehicle (1) while under the influence of intoxicating liquor or any drug or both, or (2) while such person has an elevated blood alcohol content.”

       General Statutes § 14-227b provides in relevant part: “(a) Any person who operates a motor vehicle in this state shall be deemed to have given such person’s consent to a chemical analysis of such person’s blood, breath or urine ....
      “(b) If any such person, having been placed under arrest for operating a motor vehicle while under the influence of intoxicating liquor or any drug or both, and thereafter, after being apprised of such person’s constitutional rights, having been requested to submit to a blood, breath or urine test at the option of the police officer, having been afforded areasonable opportunity to telephone an attorney prior to the performance of such test and having been informed that such person’s license or nonresident operating privilege may be suspended in accordance with the provisions of this section if such person refuses to submit to such test, or if such person submits to such test and the results of such test indicate that such person has an elevated blood alcohol content ....
      “(c) If the person arrested refuses to submit to such test or analysis or submits to such test or analysis, commenced within two hours of the time of operation, and the results of such test or analysis indicate that such person has an elevated blood alcohol content, the police officer, acting on behalf of the Commissioner of Motor Vehicles, shall immediately revoke and take possession of the motor vehicle operator’s license . . . .”

       The plaintiffs license was suspended for one year because his operator’s license previously had been suspended two or more times under § 14-227b.

       General Statutes § 4-183 Q) provides in relevant part: “The court shall not substitute its judgment for that of the agency as to the weight of the evidence on questions of fact. The court shall affirm the decision of the agency unless the court finds that substantial rights of the person appealing have been prejudiced because the administrative findings, inferences, conclusions, or decisions are . . . clearly erroneous in view of the reliable, probative, and substantial evidence on the whole record; or . . . arbitrary or capricious or characterized by abuse of discretion or clearly unwarranted exercise of discretion. If the court finds such prejudice, it shall sustain the appeal ... or remand the case for further proceedings. . . .”

       The basis of the plaintiff’s claim that his refusal occurred five hours after his initial contact with the police apparently is based on the Breathalyzer test printout, which is time marked at 7:25 a.m., almost five hours after his initial 2:31 a.m. contact with the police. We do not consider the printout as evidence of the timing of the plaintiffs refusal as anything more than an indication of the time on which the record of the plaintiffs refusal was printed.