text:
    STATE OF CONNECTICUT v. HERBERT CLARK
    (AC 17518)
    O’Connell, C. J., and Foti and Daly, Js.

      Argued September 20
    officially released December 14, 1999

      Vicki H. Hutchinson, special public defender, for the appellant (defendant).

      Robert M. Spector, deputy assistant state’s attorney, with whom, on the brief, were Carl E. Taylor, supervisory state’s attorney, and Louis Luba, Jr., assistant state’s attorney, for the appellee (state).
   Opinion

FOTI, J.

The defendant, Herbert Clark, appeals from the judgment of conviction, rendered after a jury trial, of possession of narcotics with intent to sell by aperson who is not drug-dependent in violation of General Statutes § 21a-278 (b), possession of narcotics with intent to sell within 1500 feet of a public housing project and an elementary school in violation of General Statutes § 21a-278a (b), and possession of narcotics in violation of General Statutes § 21a-279 (a).* On appeal, the defendant claims that (1) the evidence presented by the state was insufficient to sustain his conviction and (2) the trial court improperly admitted certain evidence. We affirm the judgment of the trial court.

The jury reasonably could have found the following facts. On May 2, 1996, the police received information from a security guard for the North Central Apartments in New Britain that the defendant was loitering around the buildings, along with other individuals, one of whom was known to be a drug dealer, and was approaching people in cars. The block is in a high crime and high drug trafficking area.

At approximately 10 p.m., two officers from the New Britain police department proceeded to the area in question as a result of that call, and observed the defendant riding his bicycle. As the defendant rode his bicycle to the back of the apartment, one of the officers observed him pause momentarily and drop something from his right hand. The defendant then rode off. He was stopped and detained. At that time, there was no one else in the area. A search revealed that the object dropped was a cellophane wrapper containing seven pieces of crack cocaine and three small bags of heroin. The defendant was arrested, and $205 in mostly $10 and $20 bills, were found on his person. These events took place within 1500 feet of Smalley Elementary School and a public housing project for the elderly, overseen by the New Britain housing authority.

I

The defendant claims that the state failed to present sufficient evidence to prove him guilty beyond a reasonable doubt. Specifically, he claims that there was no direct evidence that the drugs found by the officer were his so as to establish possession, and, even if the evidence was sufficient to establish possession, it was not sufficient to establish intent to sell. We do not agree.

“The two part test for evaluating the sufficiency of the evidence in a jury trial is well established. First, the reviewing court construes the evidence presented at trial in a light most favorable to sustaining the verdict. . . . The reviewing court then determines whether the jury could have reasonably found, on the basis of the facts established and the inferences reasonably drawn from them, that the cumulative effect of the evidence established guilt beyond a reasonable doubt. ... In conducting this review, the probative force of the evidence is not diminished where the evidence, in whole or in part, is circumstantial rather than direct.” (Citations omitted.) State v. Wager, 32 Conn. App. 417, 429-30, 629 A.2d 1146, cert. denied, 228 Conn. 912, 635 A.2d 1231 (1993).

A

To prove possession of a narcotic substance, the state must prove beyond a reasonable doubt that the defendant knew of the character of the drug and its presence and exercised dominion and control over it. State v. Lee, 53 Conn. App. 690, 694, 734 A.2d 136 (1999). Our resolution of the defendant’s claim involves an assessment of credibility. The question of the credibility of witnesses is for the trier of fact to determine. State v. Madera, 210 Conn. 22, 37, 554 A.2d 263 (1989). Questions of credibility are primarily within the province of the jury as trier of fact. State v. Alfonso, 195 Conn. 624, 630, 490 A.2d 75 (1985). The jury was free to accept the officer’s testimony that he saw the defendant drop the object, that there was no one else in the area at that time, and that the officer immediately searched and retrieved the item dropped, which contained the drugs. We conclude that the jury could reasonably and logically have found from the evidence elicited at trial that the defendant possessed the drugs. “It is within the province of the jury to draw reasonable and logical inferences from the facts proven.” (Internal quotation marks omitted.) State v. Ogrinc, 29 Conn. App. 694, 697, 617 A.2d 924 (1992).

B

Sufficient evidence of the defendant’s intent to sell was offered to support his conviction. Proof of intent may be established through circumstantial evidence, from which the jury is free to draw reasonable and logical inferences. State v. Frazier, 39 Conn. App. 369, 379, 665 A.2d 142 (1995). The quantity of narcotics possessed by the defendant is probative of whether he intended to sell the drugs. State v. Glenn, 30 Conn. App. 783, 793, 622 A.2d 1024 (1993). The amount of crack cocaine and heroin, and the manner in which the drugs were wrapped or packaged may be indicative of street level drug dealing. Also, the cash found on the defendant and the $10 and $20 denominations of the bills, as well as the defendant’s activities that night, could lead a jury reasonably to conclude that the defendant possessed the drugs with the intent to sell. There was sufficient circumstantial evidence to support such an inference by the jury.

Additionally, the jury heard expert testimony that possession of the amount of drugs and the manner of packaging was more consistent with an intent to sell than possession for personal use. “Possession of narcotics in quantities ordinarily not associated with personal use is a factor on which a jury reasonably may rely to infer intent to sell.” State v. Conley, 31 Conn. App. 548, 560, 627 A.2d 436, cert. denied, 227 Conn. 907, 632 A.2d 696 (1993); see also State v. Gilbert, 52 Conn. App. 531, 544, 727 A.2d 747, cert. denied, 249 Conn. 905, 733 A.2d 224 (1999).

Given the circumstances disclosed by the evidence, it was reasonable for the jury to have concluded that the defendant possessed the drugs with the necessary intent to sell.

II

The defendant claims that the trial court improperly admitted evidence presented in the form of expert testimony regarding street level drug dealing. The defendant did not object to this testimony at trial and seeks to raise this evidentiary claim for the first time on appeal. The defendant does not seek review under State v. Golding, 213 Conn. 233, 567 A.2d 823 (1989), nor does he ask for plain error review. See Practice Book § 60-5. We decline to review his claim. State v. Tillman, 220 Conn. 487, 504, 600 A.2d 738 (1991), cert. denied, 505 U.S. 1207, 112 S. Ct. 3000, 120 L. Ed. 2d 876 (1992); State v. Nosik, 44 Conn. App. 294, 302-303, 689 A.2d 489 (1997), aff'd, 245 Conn. 196, 715 A.2d 673 (1998).

The judgment is affirmed.

In this opinion the other judges concurred.

       General Statutes § 21a-278 (b) provides: “Any person who manufactures, distributes, sells, prescribes, dispenses, compounds, transports with the intent to sell or dispense, possesses with the intent to sell or dispense, offers, gives or administ ers to another person any narcotic substance, hallucinogenic substance other than marijuana, amphetamine-type substance, or one kilogram or more of a cannabis-type substance except as authorized in this chapter, and who is not at the time of such action a drug-dependent person, for a first, offense shall be imprisoned not less than five years nor more than twenty years; and for each subsequent offense shall be imprisoned not less than ten years nor more than twenty-five years. The execution of the mandatory minimum sentence imposed by the provisions of this subsection shall not be suspended except the court may suspend the execution of such mandatory minimum sentence if at the time of the commission of the offense (1) such person was under the age of eighteen years or, (2) such person’s mental capacity was significantly impaired but not so impaired as to constitute a defense to prosecution.”

       The defendant was sentenced to a total effective sentence of ten years; seven years on the first count and a consecutive three years on the second count. The trial court did not sentence the defendant on his conviction for the third count, possession of a narcotic substance, as that count is a lesser offense included in the charge of possession of narcotics with intent to sell. See State v. Chicano, 216 Conn. 699, 584 A.2d 425 (1990), cert. denied, 501 U.S. 1254, 111 S. Ct. 2898, 115 L. Ed. 2d 1062 (1991).

       In concluding that the evidence was sufficient to establish the defendant’s guilt beyond a reasonable doubt on the first count, we find it unnecessary 1o address the second and third counts. The defendant does not challenge that 1he activity alleged occurred within 1500 feet of an elementary school and a public housing project. The state, having proven possession as to the first count, has satisfied its burden of proof as to that element in the third count as well.


source: Caselaw Access Project

author: FOTI, J.

license: Public Domain

text:
    JOSEPH D. SOLTESZ v. JOHN H. MILLER, JR.
    (AC 18755)
    Foti, Spear and Hennessy, Js.
    Argued September 14
    officially released December 14, 1999

      Timothy P. Kennedy, with whom, on the brief, was Robert C. Pinciaro, for the appellant (plaintiff).

      Philip F. von Kuhn, with whom, on the brief, was Anthony D. Sutton, for the appellee (defendant).
   Opinion

FOTI, J.

The plaintiff appeals from the judgment of the trial court denying his application for a prejudgment remedy. He claims that the trial court improperly concluded that because he had uninsured-underinsured motorist coverage available to him in excess of the defendant’s insurance coverage, there was adequate insurance coverage under General Statutes § 52-278d. We reverse the judgment and remand the case to the trial court for further proceedings.

Our review of the record and the briefs of the parties discloses the following. The plaintiff, Joseph D. Soltesz, brought an action against the defendant, John H. Miller, Jr., seeking monetary damages for serious and permanent injuries sustained by the plaintiff as a result of the alleged negligence of the defendant in causing an automobile accident. At that time, the defendant possessed motor vehicle liability insurance with a policy limit of $100,000; the plaintiff possessed a policy with $300,000 in underinsured motorist coverage.

The plaintiff filed an application for prejudgment remedy pursuant to General Statutes § 52-278c seeking to attach sufficient property to secure a sum greater than $100,000.

On August 17,1998, the parties were present in court for a prejudgment attachment hearing, pursuant to General Statutes § 52-278d. Upon being informed by counsel for the defendant that the plaintiff had uninsuredunderinsured motorist insurance coverage in the amount of $300,000, the trial court denied the plaintiffs application indicating that there was adequate insurance coverage available. This appeal followed.

A hearing on an application for prejudgment remedy “is not a full-scale trial on the merits of the plaintiffs’ claims . . . but rather concerns only whether and to what extent the plaintiff is entitled to have property of a defendant held in custody of the law pending final adjudication of the merits of the action.” (Citations omitted.) Bosco v. Arrowhead by the Lake, Inc., 53 Conn. App. 873, 874, 732 A.2d 205 (1999). Appellate review of the trial court’s decision is limited to whether it was clearly improper and whether the trial court’s conclusion was reasonable. Id., 875. “In the absence of a procedural flaw in prejudgment remedy proceedings . . . appellate courts have only a limited role to play in reviewing a trial court’s broad discretion to deny or to grant a prejudgment remedy.” (Citation omitted.) Nash v. Weed & Duryea Co., 236 Conn. 746, 749, 674 A.2d 849 (1996).

The issue of “whether a court session at which the parties are represented by counsel, introduce affidavits and make legal argument generally constitutes a ‘hearing’ within the meaning of § 52-278d (a) and sufficiently safeguards against the deprivation of property without due process of law” was recognized but not addressed by our Supreme Court. Hotz Corp. v. Carabetta, 226 Conn. 812, 815-16, 629 A.2d 377 (1993). It is clear that a “hearing” must allow the defendant an opportunity to present evidence in opposition to the plaintiffs motion for prejudgment remedy. Id., 817. It seems equally obvious that a plaintiff is entitled to a hearing to establish what is required under the statute. Failure to furnish the opportunity for such a hearing for either party is a procedural flaw requiring a remand. The record before us leads us to conclude that the plaintiff was not afforded an evidentiary hearing pursuant to § 52-278d (a).

The judgment is reversed and the case is remanded for an evidentiary hearing pursuant to § 52-278d (a).

In this opinion the other judges concurred.

       The granting or denial of a prejudgment remedy is deemed a final judgment for purposes of appeal. General Statutes § 52-2781 (a).

       The trial court filed neither a written memorandum of decision nor a signed transcript of its findings.

         The plaintiffs application stated that he sought “damages in excess of $250,000 thereby leaving a prejudgment remedy sought in the amount of $150,000.”

       General Statutes § 52-278d provides in relevant part: “(a) The defendant shall have a right to appear and be heard at the hearing. The hearing shall be limited to a determination of . . . (2) whether payment of any judgment that may be rendered against the defendant is adequately secured by insurance . . .

       Our review of the unsigned transcript shows a dialogue between the trial court and each counsel. There were neither stipulations nor affidavits submitted. No testimony was presented. During the course of the short conversation on record, counsel for the defendant stated to the court: “If we have the hearing, Your Honor will hear evidence about . . . .” Neither counsel appear to have considered that appearance before the trial court as an “evidentiary hearing.”
      The trial court also stated, relative to the underinsured motorist coverage, that “I find that there is—if there’s anything further I’ll hear it, otherwise— with regard to this limited issue of coverage. If not, I’m prepared to enter a finding.” The record does not disclose that the parties waived an evidentiary hearing.


author: VERTEFEUILLE, J.

text:
    STATE OF CONNECTICUT v. JULIO RODRIGUEZ
    (AC 17199)
    Lavery, Schaller and Vertefeuille, Js.
    Argued September 20
    officially released December 14, 1999

      Michael L. Moscowitz, special public defender, for the appellant (defendant).

      LeonF. Dalbec, Jr., senior assistant state’s attorney, with whom, on the brief, were John A. Connelly, state’s attorney, and Robin Lipsky, assistant state’s attorney, for the appellee (state).
   Opinion

VERTEFEUILLE, J.

The defendant, Julio Rodriguez, appeals from the judgment of conviction, rendered after a jury trial, of aiding and abetting murder in violation of General Statutes §§ 53a-8 (a) and 53a-54a. On appeal, the defendant claims that the trial court improperly denied his motion to suppress a written confession that he gave to the police. We affirm the judgment of the trial court.

The trial court found the following facts from evidence adduced at the suppression hearing. On February 15, 1996, Anthony DeJesus was shot to death during the course of a robbery. Approximately two weeks later, Maryanne Terpack, the defendant’s pregnant girlfriend, gave Waterbury police a statement that implicated the defendant in the killing. After giving that statement to the police, Terpack was incarcerated at York correctional institution in Niantic as a result of an outstanding warrant.

On March 8,1996, in the late morning, the defendant, a member of a street gang, was located in Bristol by the police. The defendant voluntarily agreed to return to the Waterbury police station in the company of Sergeant Michael Ricci and Detective Gary Pelosi. When they arrived, the defendant was advised of his constitutional rights orally and in writing. The defendant also signed an advisement of rights card after demonstrating his proficiency in the English language. The defendant was then questioned by Ricci in an interview room. During the questioning, the defendant admitted his involvement in the murder. At approximately 2 p.m., Ricci started taking the defendant’s written statement. The defendant signed the completed statement at approximately 5:15 p.m. After the statement was typed, Ricci called Ismael Santiago, a licensed bail bondsman, and told him that Terpack might need his services. Santiago then came to the police station and spoke briefly with Ricci. Later that evening, Santiago bonded Terpack out of the York correctional institution and took her to the Waterbuiy police department at her request. The trial court found that Ricci called Santiago out of a humanitarian concern for Terpack because she was pregnant.

The defendant contends that his confession should be suppressed because it was not voluntarily given and was induced by explicit promises that Terpack would be released if he confessed. The defendant’s testimony at the suppression hearing contradicted the state’s witnesses in every material respect. The defendant testified that he was arrested and handcuffed in Bristol and did not go to the Waterbury police station voluntarily. Further, the defendant testified that he was not given his Miranda warnings and did not sign the Miranda card until after he gave his statement. The defendant also testified that while he was in the interview room, at least four different detectives went in and out of the room and repeatedly told him that if he did not give a statement, Terpack would never see their child because the state would take the child while she was incarcerated. Also, the defendant testified that the detectives told him in the interview room that if he did give a statement, Terpack would be released and she could meet with him. The defendant further testified that he spoke with the bail bondsman, who told him that he was going to bond Terpack out at the request of the police so that he would make a statement. The defendant testified that the statement he gave the police was a lie, although it was consistent with Terpack’s statement, and that he gave the statement only so that his child would not be bom in prison and taken by the state.

The trial court, after noting that the testimony of all the state’s witnesses contradicted the defendant’s version of the events on March 8, 1996, found that the defendant was not credible. The trial court found that, other than Ricci’s call to Santiago, the bonding of Terpack was a routine bail arrangement. The trial court found further that Ricci’s call to Santiago was gratuitous and not part of a scheme to coerce a confession from the defendant. The trial court concluded that the defendant’s statement was given freely and voluntarily after he had been fully advised of his constitutional rights.

“[T]he use of an involuntary confession in a criminal trial is a denial of due process of law.” (Internal quotation marks omitted.) State v. Correa, 241 Conn. 322, 327, 696 A.2d 944 (1997). Whether a confession is voluntary and admissible is a question of fact to be decided by the trial court. State v. Schroff, 206 Conn. 182, 196, 536 A.2d 952 (1988). The trial court’s findings with respect to the circumstances surrounding the confession are factual findings that cannot be overturned unless they are clearly erroneous. State v. Correa, supra, 328-29; State v. Janice, 20 Conn. App. 212, 216, 568 A.2d 553, cert. denied, 213 Conn. 811, 568 A.2d 795 (1989). “This court cannot retry the facts or reconsider the credibility of [the] witnesses.” (Internal quotation marks omitted.) State v. Billie, 47 Conn. App. 678, 692, 707 A.2d 324 (1998), aff'd, 250 Conn. 172, 738 A.2d 586 (1999). We must, however, conduct an independent examination of the record to determine whether the trial court’s finding with respect to voluntariness is supported by substantial evidence. State v. Correa, supra, 329; State v. Schroff, supra, 196.

“In order to be voluntary a confession must be the product of an essentially free and unconstrained choice by the maker. ... If it is not, if his will has been overborne and his capacity for self-determination critically impaired, the use of the confession offends due process. . . . The determination of whether a confession is voluntary must be based on a consideration of the totality of the circumstances surrounding it.” (Citations omitted; internal quotation marks omitted.) State v. Smith, 200 Conn. 465, 477, 512 A.2d 189 (1986). “Factors that may be taken into account, upon a proper factual showing, include: the youth of the accused; his lack of education; his intelligence; the lack of any advice as to his constitutional rights; the length of detention; the repeated and prolonged nature of the questioning; and the use of physical punishment, such as the deprivation of food and sleep.” (Internal quotation marks omitted.) State v. Correa, supra, 241 Conn. 328. “The state has the burden of proving the voluntariness of the confession by a fair preponderance of the evidence.” (Internal quotation marks omitted.) State v. Pinder, 250 Conn. 385, 418, 736 A.2d 857 (1999).

After careful review of the record, we conclude that the state has met its burden of proof. We begin with consideration of the factors set forth in Correa as they relate to this case. The defendant, although young, had considerable experience with the criminal justice system and had been arrested several times prior to this arrest. Further, the defendant testified that he was knowledgeable with respect to police interrogations. The trial court found that he was properly advised of his constitutional rights prior to giving his statement. The defendant admitted his involvement in the murder within the first two hours of his detention. The court found that the interview was not constant, that the defendant had periods of time when he was alone and that all of his comfort needs were attended to.

The trial court’s finding of voluntariness is supported by substantial evidence in the record. The defendant’s claim that his confession was induced by promises to release his pregnant girlfriend from custody was rebutted by the testimony of all the police officers involved in his questioning and was not corroborated by any of the other witnesses, including Santiago. All of the officers denied making any promise to the defendant that his girlfriend would be released if he gave a confession and further denied that they requested that she be bonded out so that the defendant would give a statement. Santiago also denied that the police asked him to bond Terpack out and denied that he had any conversation with the defendant. Furthermore, Terpack testified that, to the best of her knowledge, Santiago was not working for the police. It is the sole province of the trial court to assess the credibility of witnesses. W. v. W., 248 Conn. 487, 495, 728 A.2d 1076 (1999). On the basis of the totality of the circumstances, we conclude that the trial court’s finding that the defendant’s statement was given vohmtarily and freely was not clearly erroneous.

The judgment is affirmed.

In this opinion the other judges concurred.

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


author: PER CURIAM.

text:
    ALEJANDRO ORTIZ v. COMMISSIONER OF CORRECTION
    (AC 19032)
    Landau, Schaller and Mihalakos, Js.
    Submitted on briefs November 3
    officially released December 14, 1999

      Patrice A. Cohan, special public defender, filed a brief for the appellant (petitioner).

      Michael Dearington, state’s attorney, Christopher T. Godialis, assistant state’s attorney, and Robert Katz, senior assistant state’s attorney, filed a brief for the appellee (respondent).
   Opinion

PER CURIAM.

The petitioner, Alejandro Ortiz, appeals from the judgment of the habeas court dismissing his petition for a writ of habeas corpus. On appeal, the petitioner claims that the habeas court improperly dismissed his claim of ineffective assistance of counsel. After a review of the record and briefs, we conclude that the petitioner failed to make a substantial showing that he was denied a state or federal constitutional right.

The petitioner was convicted after a jury trial of possession of a narcotic substance in violation of General Statutes § 21a-279 (a) and possession of a narcotic substance within 1500 feet of a school in violation of § 21a-279 (d). After the jury returned its verdict, the defendant pleaded guilty to the charge of being a subsequent offender because of a prior conviction for possession of a narcotic substance. On appeal, we affirmed the trial court’s judgment. State v. Ortiz, 41 Conn. App. 904, 673 A.2d 1185, cert. denied, 237 Conn. 928, 677 A.2d 949 (1996).

The habeas court’s dismissal of the petition was predicated on its factual review of the petitioner’s claim and its determination that he had failed to rebut the “strong presumption that counsel’s conduct [fell] within the wide range of reasonable professional assistance . . . .” Safford v. Warden, 223 Conn. 180, 193, 612 A.2d 1161 (1992). That court did not credit the petitioner’s testimony that his trial counsel had failed to inform him of the consequences of his plea. Consequently, there was no basis for finding that the petitioner had been provided ineffective assistance of counsel. Practice Book § 39-27, formerly § 721, provides the grounds on which a plea can be withdrawn after acceptance. The petitioner argued that his attorney failed to make him aware of the nature of the charge or of the sentence that could be imposed and, therefore, should have moved to withdraw the plea. The failure of trial counsel to do this, according to the petitioner, rendered the attorney’s assistance ineffective. The habeas court stated in its memorandum of decision that the petitioner had failed to persuade the court of his claim.

The petitioner failed to sustain his burden of proving that counsel’s performance was deficient and that the petitioner suffered actual prejudice. See Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984). We conclude that the habeas court had before it sufficient evidence to find as it did and, therefore, properly exercised its discretion.

The judgment is affirmed.

       The petition for a writ of habeas corpus included three counts. The petitioner failed, however, to brief adequately any alleged error in the habeas court’s rejection of the other two grounds advanced in the petition. Pursuant to our policy not to review claims that have been inadequately briefed, we address only the claim of ineffective assistance of counsel. State v. Pompei, 52 Conn. App. 303, 309, 726 A.2d 644 (1999).

       The habeas court noted that, at trial, the petitioner’s attorney went off the record specifically to explain the situation to Ms client, after wMch the petitioner pleaded guilty.


author: SPALLONE, J.

text:
    STATE OF CONNECTICUT v. LARRY A. GASTON
    (AC 17902)
    Schaller, Spear and Spallone, Js.
    Argued June 1
    officially released December 21, 1999

      William B. Westcott, special public defender, for the appellant (defendant).

      Michele C. Lukban, assistant state’s attorney, with whom, on the brief, were James E. Thomas, state’s attorney, and Michael Gailor, assistant state’s attorney, for the appellee (state).
   Opinion

SPALLONE, J.

The defendant, Larry A. Gaston, appeals from the judgment of the trial court revoking his probation and ordering that he serve five years of a previously suspended ten year sentence. On appeal, the defendant claims that the trial court unfairly revoked his probation in violation of his right to due process. We affirm the judgment of the trial court.

The trial court reasonably could have found the following facts. On January 16, 1997, as part of a plea bargain, the defendant pleaded guilty to one count of possession of narcotics with intent to sell in violation of General Statutes § 21a-277. The trial court sentenced the defendant to ten years incarceration, execution suspended, and three years probation. The trial court imposed special conditions of probation.

On February 14,1997, the defendant met with a probation officer and reviewed and signed a document outlining the conditions of his probation. On February 17, 1997, having successfully completed the inpatient treatment component of his probation, the defendant was discharged from Blue Hills Center (Blue Hills). Then, on April 2, 1997, the defendant met with his assigned probation officer, Laurence Reynolds. During that meeting, the defendant again reviewed and signed a document outlining the conditions of his probation, acknowledging that he understood those conditions. The defendant also revealed to Reynolds that since his discharge from Blue Hills, he had used cocaine and had also been arrested and charged with public intoxication. In light of this information, Reynolds referred the defendant to a halfway house and the Project Green program in connection with the aftercare requirements of his probation. Reynolds brought the defendant to Project Green for an intake evaluation and the defendant was accepted into the program that same day, April 2, 1997.

The defendant was reluctant to enter Project Green and requested to delay his admission for two days in order to resolve some personal matters. Reynolds agreed to allow the defendant to enter the program on April 4, 1997. The defendant failed to report to Project Green on April 4, 1997, but telephoned Reynolds and requested that his admission be delayed until Monday, April 7, 1997. While Reynolds denied the request, the defendant still failed to report for admission to Project Green. On April 7, 1997, the defendant failed to report. Late in the day on April 8, 1997, the defendant telephoned Reynolds and informed him that he did not report to Proj ect Green the previous day because he was washing his clothing. The defendant again contacted Reynolds a second time and told him that he had contacted Project Green and had arranged for admission on Wednesday, April 9. On Wednesday, the defendant, however, again failed to report to Project Green. The defendant contacted Reynolds on April 9, and Reynolds told him that failure to report to Project Green would result in the issuance of an arrest warrant for violation of probation. The defendant presented himself at and was admitted to Project Green later that day, although he arrived one-half hour later than required.

Upon admission to Project Green on April 9, 1997, the defendant reviewed and signed a copy of Project Green’s rules and agreed to follow them. The defendant also informed his case manager that he had consumed alcohol that morning and had used cocaine the previous Sunday. A subsequent urinalysis was positive for cocaine and marijuana. The same sample yielded a positive result for cocaine when tested by an outside laboratory. A breathalyzer test was negative.

On April 11, 1997, Project Green informed Reynolds that it was terminating the defendant for his (1) failure to comply with program rules, (2) refusal to complete intake paperwork and the community service component of treatment and (3) abusive and uncooperative behavior. On April 15, 1997, following Reynolds’ decision to obtain a warrant, the defendant was arrested and removed from Project Green for violating his probation.

Following a hearing on September 9 and 10, 1997, the trial court concluded that the state had established, beyond the requisite preponderance of the evidence, that the defendant had violated the terms of his probation. Indeed, the court stated that the defendant’s violation was established “beyond a clear and convincing standard.” In reaching its decision, the trial court pointed to the following violations of probation by the defendant: (1) testing positive for cocaine and marijuana use; (2) failing to comply with the special conditions of probation by not reporting to Project Green on April 2, 4, 8 and 9, 1997; (3) lying as to his inability to perform the community service component of his treatment due to injury; (4) being uncooperative and abusive with Project Green staff; and (5) lying as to why he could not report to Project Green when initially requested to do so. The trial court also stated that the defendant was no longer receiving the benefits of probation.

Additionally, during a disposition hearing on November 5,1997, the trial court noted that the defendant had participated in several different treatment programs during the past ten years and that since 1991 he had been unsuccessfully discharged from three such programs. The court also noted that the defendant already had been on probation when he was convicted of the underlying crime here, and he had a previous violation of probation in 1986.

The trial court, having determined that the defendant violated his current probation, revoked his probation and ordered the defendant to seive five year’s of the previously suspended ten year sentence. This appeal followed.

The defendant claims that the trial court improperly (1) determined that he violated the terms of his probation and (2) revoked his probation in violation of his right to due process. Specifically, the defendant claims that the trial court’s determination that he violated the terms of his probation violated his right to due process because he received deficient supervision. We disagree.

I

Initially, we determine whether the trial court improperly found that the defendant had violated the terms of his probation and whether it abused its discretion in revoking the defendant’s probation. “[U]nder § 53a-32, a probation revocation hearing has two distinct components. . . . The trial court must first conduct an adversarial evidentiary hearing to determine whether the defendant has in fact violated a condition of probation. . . . If the trial court determines that the evidence has established a violation of a condition of probation, then it proceeds to the second component of probation revocation, the determination of whether the defendant’s probationary status should be revoked. On the basis of its consideration of the whole record, the trial court may continue or revoke the sentence of probation . . . or . . . require the defendant to serve the sentence imposed or impose any lesser sentence. ... In making this second determination, the trial court is vested with broad discretion. . . .

“To support a finding of probation violation, the evidence must induce a reasonable belief that it is more probable than not that the defendant has violated a condition of his or her probation. ... In making its factual determination, the trial court is entitled to draw reasonable and logical inferences from the evidence. . . . This court may reverse the trial court’s initial factual determination that a condition of probation has been violated only if we determine that such a finding was clearly erroneous. ... A finding of fact is clearly erroneous when there is no evidence to support it . . . or when although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed. ... In making this determination, every reasonable presumption must be given in favor of the trial court’s ruling .... A fact is more probable than not when it is supported by a fair preponderance of the evidence.” (Citations omitted; internal quotation marks omitted.) State v. Welch, 40 Conn. App. 395, 400-401, 671 A.2d 379, cert. denied, 236 Conn. 918, 673 A.2d 1145 (1996). Additionally, in conducting our review pursuant to the clearly erroneous standard, “[w]e cannot retry the facts or pass on the credibility of the witnesses.” (Internal quotation marks omitted.) In re Jessica S., 51 Conn. App. 667, 674, 723 A.2d 356, cert. denied, 251 Conn. 901, 738 A.2d 1090 (1999).

Our examination of the record, transcript and briefs, with due regard to arguments of counsel, fails to indicate any improper action on the part of the trial court. The facts previously set forth in this opinion reveal ample evidence to support a finding that the defendant violated his probation. The trial court, therefore, did not abuse its discretion in revoking the defendant’s probation.

II

We next turn to the defendant’s claim that the revocation of his probation was in violation of his right to due process because his probation had been administered in an unfair manner. The defendant claims that his probation officer’s inadequate supervision should excuse the behavior that was held to have violated the conditions of his probation. He claims that because he was left unsupervised for a six week period after his release from Blue Hills until he was required to meet with his probation officer, he should not be held responsible for his actions. This claim is also without merit.

The defendant relies on the United States Supreme Court decision in Black v. Romano, 471 U.S. 606, 612, 105 S. Ct. 2254, 85 L. Ed. 2d 636 (1985), which held that a “probationer is entitled to an opportunity to show not only that he did not violate the conditions, but also that there was a justifiable excuse for any violation or that revocation is not the appropriate disposition.”

The due process clause of the United States constitution provides in relevant part: “[N]or shall any State deprive any person of life, liberty or property, without due process of law . . . .” U.S. Const, amend. XIV, § 1. Due process “requires that certain minimum procedural safeguards be observed in the process of revoking the conditional liberty created by proba,lion. Black v. Romano, [supra, 471 U.S. 610]; see Morrissey v. Brewer, 408 U.S. 471, 489, 92 S. Ct. 2593, 33 L. Ed. 2d 484 (1972). State v. Durkin, 219 Conn. 629, 635, 595 A.2d 826 (1991). This is so because the loss of liberty entailed is a serious deprivation requiring that the [probationer] be accorded due process. Gagnon v. Scarpelli, 411 U.S. 778, 781, 93 S. Ct. 1756, 36 L. Ed. 2d 656 (1973). Among other things, due process entitles a probationer to a final revocation hearing under the conditions set forth in Morrissey v. Brewer, supra [489] . . . see Gagnon v. Scarpelli, [supra, 782]; see also State v. Roberson, [165 Conn. 73, 81-82, 327 A.2d 556 (1973)]; State v. Crawford, 38 Conn. Sup. 472, 474-75, 451 A.2d 583 (1982); see generally General Statutes § 53a-32 (a). State v. Durkin, supra, 635.” (Emphasis added; internal quotation marks omitted.) State v. Davis, 229 Conn. 285, 294-95, 641 A.2d 370 (1994).

In the present case, a probation revocation hearing was held prior to the trial court’s determining that the defendant violated the terms of his probation and that his probation should be revoked. Our review of the record and transcript reveals that the trial court considered the whole record in reaching its decision. The defendant does not claim that he did not have an opportunity to present his defense that his probation violation was justified or that it should be excused because of his allegedly improper supervision. He claims instead that his probation should not have been revoked under the circumstances here. We therefore consider whether there was an abuse of discretion in revoking the defendant’s probation. See State v. Wright, 24 Conn. App. 575, 579, 590 A.2d 486 (1991) (appellate courts review revocation of probation under abuse of discretion standard).

This court recently considered an analogous claim that a defendant’s probation should not have been revoked because his probation officer failed to satisfy the requirement of General Statutes § 54-108 that he present the defendant a written statement of the terms and conditions of probation. State v. Martinez, 55 Conn. App. 622, 739 A.2d 721 (1999). In Martinez, we concluded that “as long as the probation officer advised the defendant of the conditions of his probation and the consequences of violating those conditions, the probation officer complied with the requirements of § 54-108.” Id., 627.

In this case, the defendant met with his probation officer on February 14, 1997, prior to his release from Blue Hills. He not only reviewed the conditions of probation, but signed a statement of those conditions. The defendant concedes in his brief that he “was seen on February 14, 1997, while he was still enrolled in the inpatient program by a probation officer and advised of the conditions of his probation.” There is no question in this case that the defendant’s probation officer complied with the mandates of § 54-108, which does not require the officer to supervise the defendant to a degree where the defendant is protected from himself. The defendant’s argument misstates the function of a probation officer and is contrary to the goals of probation. “Absent a showing to the contrary, a probationer is chargeable with knowledge that a breach of any condition may well result in revocation and serving the suspended sentence.” State v. Smith, 207 Conn. 152, 172, 540 A.2d 679 (1988); see State v. Martinez, supra, 55 Conn. App. 628. We conclude that, under the circumstances of this case, the trial court did not abuse its discretion in refusing to excuse the defendant from his probation violation.

The judgment is affirmed.

In this opinion the other judges concurred.

       The special conditions of probation provided that (1) “zero tolerance” apply, (2) the defendant enter and successfully complete an inpatient drug treatment program at Blue Hills Center with aftercare and halfway house treatment or electronic monitoring, (3) the defendant not possess any narcotics or weapons, (4) the defendant be subject to random searches of self, house or car, (5) the defendant provide random urine samples upon request, (6) the defendant attempt to obtain gainful employment, (7) the defendant, in the absence of gainful employment, perform twenty-five hours of community service per week with a maximum of 1250 horns and (8) the defendant abide by any curfew set by the office of adult probation.

       General Statutes § 54-108 provides in relevant part: “Probation officers shall investigate all cases referred to them for investigation by the director or by the court. They shall furnish to each person released under their supervision a written statement of the conditions of probation and shall instruct him regarding the same. They shall keep informed of his conduct and condition and use all suitable methods to aid and encourage him and to bring about improvement in his conduct and condition. . . .”


text:
    WILLIAM F. BENNETT v. CONNECTICUT HOSPICE, INC.
    (AC 18765)
    Schaller, Spear and Spallone, Js.
    Argued June 1
    officially released December 21, 1999

      William F. Bennett, pro se, the appellant (plaintiff).

      Jody Benbow, with whom, on the brief, were Glenn A. Duhl and John M. Simon, for the appellee (defendant).
   Opinion

SPALLONE, J.

The plaintiff, William F. Bennett, appearing pro se, appeals from the judgment of the trial court rendered after the motion to strike filed by the defendant, Connecticut Hospice, Inc., was granted as to all seven counts of the plaintiffs complaint. We affirm the judgment of the trial court.

The following facts and procedural history are necessary to a proper resolution of this appeal. In his amended complaint, dated June 24, 1997, the plaintiff alleged five counts of negligence, one count of invasion of privacy and one count under 42 U.S.C. § 1983 claiming the violation of his free exercise of religion.

The defendant filed a motion to strike all seven counts of the revised complaint, claiming that each count failed to state a claim on which relief could be granted. On July 28,1998, after oral argument, the trial court granted the motion to strike all seven counts of the complaint. On August 7, 1998, pursuant to Practice Book § 10-44, the court rendered judgment in favor of the defendant.

The plaintiffs twenty-nine year old daughter entered the defendant institution on March 28, 1994, where she died on April 8, 1994. On March 30, 1994, nine days prior to her death, the plaintiffs daughter was taken by her mother, the plaintiffs former wife, to an attorney’s office for consultation with regard to a letter of intent in which the daughter requested that she be cremated. The letter of intent was executed by the plaintiffs daughter on April 7, 1994.

Counts one through five of the plaintiffs revised complaint allege negligent conduct by the defendant. Specifically, the plaintiff alleges that the defendant violated General Statutes § 17a-687 by requiring him to leave his daughter’s room during a visit, by failing to inform him of the arranged meeting with the attorney and by detaining him at the reception desk and preventing him from communicating with his family following his daughter’s death. The plaintiff also alleges that the defendant denied his daughter a “homelike atmosphere” in violation of General Statutes § 19a-122b by permitting his former wife to remove their daughter from the facilities to visit the attorney when their daughter did not want to consult the attorney, and that the defendant failed to prevent his daughter from executing the letter of intent and failed to advise his daughter or him about the state statutes regarding wills and cremation. Counts six and seven, respectively, of the plaintiff’s revised complaint allege that the defendant invaded his privacy by unreasonably intruding into the private affairs of his family, and that the defendant infringed on his constitutional right to the free exercise of religion in violation of 42 U.S.C. § 1983 because he is religiously opposed to the cremation of any family member. The defendant filed its motion to strike all seven counts of the plaintiffs complaint.

The purpose of a motion to strike is to challenge the legal sufficiency of the allegations of a complaint for failure to state a claim on which relief can be granted. Practice Book § 10-39. The motion admits all facts that are well pleaded; Mingachos v. CBS, Inc., 196 Conn. 91, 108, 491 A.2d 368 (1985); but does not admit legal conclusions or the truth or accuracy of opinions. Maloney v. Conroy, 208 Conn. 392, 394, 545 A.2d 1059 (1988). On a motion to strike, the trial court’s inquiry is to ascertain whether the allegations in each count, if proven, would state a claim on which relief could be granted. Practice Book § 10-39 (a). A motion to strike is properly granted if the complaint alleges mere conclusions of law that are not supported by the facts alleged. Novametrix Medical Systems, Inc. v. BOC Group, Inc., 224 Conn. 210, 215, 618 A.2d 25 (1992).

“In an appeal from a judgment granting a motion to strike, we operate in accordance with well established rules. Because a motion to strike challenges the legal sufficiency of a pleading and, consequently, requires no factual findings by the trial court, our review of the court’s ruling on the [defendant’s motion] is plenary. . . . [W]e take the facts to be those alleged in the complaint that has been stricken and we construe the complaint in the manner most favorable to sustaining its legal sufficiency.” (Citation omitted; internal quotation marks omitted.) Pamela B. v. Ment, 244 Conn. 296, 307-308, 709 A.2d 1089 (1998).

“The essential elements of a cause of action in negligence are well established: duty; breach of that duty; causation; and actual injury.” RK Constructors, Inc. v. Fusco Corp., 231 Conn. 381, 384, 650 A.2d 153 (1994). “Negligence occurs where one under a duty to exercise a certain degree of care to avoid injury to others fails to do so.” Dean v. Hershowitz, 119 Conn. 398, 407-408, 177 A. 262 (1935). “A duty to use care may arise from a contract, from a statute, or from circumstances under which a reasonable person, knowing what he knew or should have known, would anticipate that harm of the general nature of that suffered was likely to result from his act or failure to act.” Coburn v. Lenox Homes, Inc., 186 Conn. 370, 375, 441 A.2d 620 (1982). What duty the defendant had, if any, is a question of law. Nolan v. New York, N.H. & H. R. Co., 53 Conn. 461, 471, 4 A. 106 (1885). The issue of whether the defendant owed the plaintiff a duty of care is an appropriate one for a motion to strike because the question embodies a matter of law to be decided by the court. Gordon v. Bridgeport Housing Authority, 208 Conn. 161, 171, 544 A.2d 1185 (1988).

Our plenary review of the plaintiffs claims of negligence, including an examination of the amended complaint, the record and briefs, and with due regard to oral arguments, reveals that the trial court properly struck the five counts sounding in negligence for failure to state legally sufficient claims of negligence. The plaintiff failed, in each count, to allege sufficient facts establishing that the defendant had a duty of care to the plaintiff that was breached.

The plaintiffs sixth count, claiming an invasion of privacy, was properly stricken because it fails to allege conduct that would be highly offensive to a reasonable person. See Perkins v. Freedom of Information Commission, 228 Conn. 158, 172-73, 635 A.2d 783 (1993).

The plaintiffs seventh count, alleging that the defendant infringed on his constitutional right to the free exercise of religion, was properly stricken. The choice made by the plaintiffs daughter to have her remains cremated was of her own volition, as indicated by her letter of intent. She was not under any legal impairment to act on her own behalf, no surrogate had been appointed to act in her stead and, as far as the record indicates, she was legally competent to execute her letter of intent free from the imposition of the wishes of other family members as to her funeral arrangements. Nothing in the record indicates otherwise.

Whatever the defendant did or did not do in the furtherance of the daughter’s wishes to be cremated in no way can be construed as acting under the control or encouragement of the state. See 42 U.S.C. § 1983; Leeds v. Meltz, 85 F.3d 51, 54 (2d Cir. 1996); Schlein v. Milford Hospital, Inc., 561 F.2d 427, 428 (2d Cir. 1977).

The trial court acted reasonably, properly and in accordance with applicable law in striking the plaintiffs complaint in its entirety.

The judgment is affirmed.

In this opinion the other judges concurred.

       The plaintiff brought a prior action alleging malpractice against the attorney who drafted the letter of intent. The trial court rendered judgment for the defendant attorney, and, on appeal, this court,, in a per curiam decision, affirmed the trial court judgment. Bennett v. Gibson, 47 Conn. App. 916, 702 A.2d 670 (1997), cert. denied, 243 Conn. 969, 707 A.2d 1269 (1998).

       General Statutes § 17a-687 (a) provides: “Subject to reasonable rules regarding hours of visitation which the Commissioner of Mental Health and Addiction Services may adopt, patients in any treatment facility or hospital shall be granted opportunities for adequate consultation with counsel, and for continuing contact with family and friends consistent with an effective treatment program.”


author: DUPONT, J.

text:
    JOHN D. PAULUS ET AL. v. ANDREW LASALA, JR., ET AL.
    (AC 18162)
    O’Connell, C. J., and Spear and Dupont, Js.
    Argued September 13
    officially released December 21, 1999

      James R. Fogarty, with whom was Carolyn Alexander Collins, for the appellants-appellees (defendants).

      Alan R. Spirer, for the appellees-appellants (plaintiffs).
   Opinion

DUPONT, J.

This case concerns a contractual dispute between the plaintiff homeowners, John D. Paulus and Carol A. Paulus, and the defendant builders, Andrew LaSala, Jr., and Cannondale Development Associates. The plaintiffs sought damages for the defendants’ alleged failure to construct their home in a timely and proper manner. The plaintiffs brought a three count complaint alleging a breach of contract, a violation of the Connecticut Unfair Trade Practices Act (CUTPA), General Statutes § 42-110a et seq., and a breach of the New Home Warranties Act, General Statutes § 47-116 et seq. An attorney trial referee tried the case and issued a report, setting forth findings of fact and recommending that judgment be rendered on counts one and three of the plaintiffs’ complaint in favor of the plaintiffs in the amount of $73,119.* The referee also recommended that prejudgment interest in the amount of $40,494.40 be awarded on a portion of the damages. The trial court accepted the report but disagreed with the referee’s conclusion as to the termination date for the calculation of the prejudgment interest, concluding instead that, as a matter of law, prejudgment interest runs until the date of the judgment.

The defendants appeal from the judgment of the trial court rendered in the amount of $232,907.47. The judgment includes $73,119, the compensatory damages found to be due the plaintiffs; prejudgment interest on $38,424, which was that portion of the compensatory damages found to be due pursuant to General Statutes § 37-3a, at the rate of 10 percent per year from July 6, 1987, through January 20, 1998, in the total amount of $40,494.40; and offer of judgment interest in the amount of $119,294.07. The plaintiffs cross appeal from the denial of their claim for a refund from the defendants and from the denial of their claim for damages for the defendants’ alleged unfair trade practice in violation of General Statutes § 42-110b. We affirm the judgment of the trial court.

I

THE DEFENDANTS’ APPEAL

The defendants claim (1) that the trial court should not have reviewed the conclusion of the attorney trial referee that prejudgment interest on a portion of the award terminated as of the date the trial began because the plaintiffs failed to object to the acceptance of the referee’s report and (2) that, if the referee’s conclusion was reviewable, the trial court improperly rejected the referee’s termination date and instead improperly extended the termination date of the running of interest to the date of the judgment. Subsumed in the latter issue is the defendants’ claim that the court should have remanded to the referee the issue of when interest should terminate, given the fact that the court had concluded that the termination date selected by the referee was improper. The defendants also claim that they were improperly denied oral argument on their exceptions and objections to the acceptance of the referee’s report.

As the defendants correctly note in their brief, the issues raised in their appeal are “for the most part procedural and legal in nature. Thus, most of the facts developed in trial are not relevant to the appeal.”

The undisputed relevant procedural facts are not numerous. The initial report of the attorney trial referee recommended denial of prejudgment interest. The plaintiffs and the defendants filed motions to correct the report, and, in response to the plaintiffs’ motion, the referee reconsidered his initial recommendation that prejudgment interest not be awarded and recommended an award of such interest on a portion of the plaintiffs’ compensatory damages, namely $38,424.50. The referee recommended that the interest on that sum ran from July 6,1987, to April 28,1993, the date the trial began. The trial court rejected the referee’s termination date for the running of interest, concluding that interest must run to the date of judgment, namely, January 20, 1998.

The plaintiffs filed an offer of judgment in the amount of $105,000 on April 11, 1989. If the termination of the period of time for the calculation of interest as stated by the referee is correct, the amount of prejudgment interest and compensatory damages due the plaintiffs would total less than the offer of judgment. If the prejudgment interest, however, is calculated to the date of the judgment, as the court concluded, and is added to the compensatory damages of $73,119, the total, $113,613.40, exceeds the offer of judgment. The plaintiffs and the defendants a*gree that any prejudgment interest award would begin on July 6, 1987, as found by the referee. That date was found by the referee to be the date on which the defendants indicated that all further work on the house would cease. The parties also agree that § 37-3a interest may be awarded at the discretion of the fact finder.

The defendants first claim that the plaintiffs waived their right to challenge the referee’s conclusion as to the date of termination for the calculation of interest because of their failure to file an objection to the acceptance of the report. We are not persuaded.

The plaintiffs filed a motion to correct the referee’s report by seeking an award of prejudgment interest to be added to their damages. In the motion, they argued that although an award of prejudgment interest is discretionary, equity called for interest in this case because the money had been withheld by the defendants for nine years.

In response to the plaintiffs’ motion to correct, the attorney trial referee corrected the report by recommending an award of prejudgment interest from July 6,1987, to April 28,1993, the date of the commencement of trial, on the damages that he had previously found due for incomplete contractual items and for poor workmanship items. The plaintiffs’ motion to correct was filed on February 22, 1996. On February 12, 1996, the plaintiffs filed exceptions to the referee’s report, pursuant to Practice Book § 439, now § 19-13. The exceptions related to claims (1) for a refund of $18,600 paid to the defendants at the closing, which relates to the plaintiffs’ cross appeal, and (2) that prejudgment interest should run to the date of judgment, rather than to the date on which the trial began. The defendants argue that the plaintiffs should have filed an objection to the referee’s report, and that the plaintiffs’ motion to correct and their exceptions cannot cure the failure to file an objection. The defendants filed objections to the acceptance of the report, one of which was the claim that the plaintiffs were not entitled to prejudgment interest.

To assess the defendants’ claim, we must examine the relevant rules of practice. The plaintiffs did not challenge any of the referee’s factual conclusions or evidentiary rulings, which challenges should be made byway of objection. See Practice Book § 19-14, formerly § 440. Objections and exceptions to the acceptance of a referee’s report are addressed to the trial court, whereas motions to correct are addressed to the referee. Practice Book § 19-12, formerly § 438, provides that a party may seek to correct a report by setting forth the changes and additions desired in the report. The changes may relate to the “striking out [of] any of the facts found, or by adding further facts . . . .” Practice Book § 19-12. When a plaintiff does not file an objection to the acceptance of a referee’s report but properly files “both a motion to correct pursuant to Practice Book § 438 [now § 19-12], and a subsequent exception to the report and findings of the referee pursuant to Practice Book § 439 [now § 19-13] . . . [h]e is, therefore, entitled to full appellate review of the trial court’s disposition of his exceptions to the report.” (Citations omitted.) Gargano v. Heyman, 203 Conn. 616, 619 n.3, 525 A.2d 1343 (1987).

We conclude that there was no reason for the plaintiffs to object to the acceptance of the referee’s report because, as stated in the plaintiffs’ exceptions to the report, they “accept all of the facts found” and their exceptions “relate only to two of the [referee’s] proposed conclusions of law.”

The defendants next claim that the trial court should have held oral argument prior to rendering judgment on the referee’s report. Practice Book § 19-16, formerly § 442, provides in relevant part that “[i]f exceptions or objections have been seasonably filed, the case should be claimed for the short calendar for hearing thereon . . . .” Practice Book § 11-18 (a), formerly § 211, provides in relevant part: “Oral argument is at the discretion of the judicial authority except as to motions to dismiss, motions to strike, motions for summary judgment, and motions for judgment of foreclosure. For those motions, oral argument shall be a matter of right, provided (1) the motion has been marked ready for adjudication . . . and (2) the movant indicates at the bottom of the first page of the motion or on a reclaim slip that oral argument or testimony is desired . . . The defendants did not request oral argument on the first page of their exceptions or objections to the report.

The defendants argue that Practice Book § 442, now § 19-16, obviates the necessity that they claim their objections and exceptions for a hearing on the short calendar. The plaintiffs argue that even if § 442 grants the defendants oral argument as of right, it is not automatic but must be claimed for argument as provided in § 211. We agree with the plaintiffs. Aside from the plain meaning of the words of those sections, which do not grant oral argument as of right to the defendants, judicial economy and practicality require a commonsense reading of both sections. The sheer volume of short calendar matters would cause a scheduling nightmare if each matter had to be scrutinized by clerks to see if it could be gleaned from the content of the matter that the movant, without specifically requesting argument, really wanted argument, before determining if the rules of practice allowed oral argument.

Even if Practice Book § 206, now § 11-13 (a), which provides that “all issues of law must be placed on the short calendar list,” required a hearing to determine the issue without the necessity of any claim for oral argument, the defendants do not rely on § 206. They contend the issue is not a question of law but one of fact.

The defendants’ final claim is that even if the trial court properly reviewed the decision of the attorney trial referee recommending an award of prejudgment interest, the court improperly rejected the referee’s termination date for the running of prejudgment interest and should have remanded the case to the referee to decide the allegedly factual question of when prejudgment interest should terminate. We disagree.

It is clear that Connecticut case law establishes that prejudgment interest is to be awarded if, in the discretion of the trier of fact, equitable considerations deem that it is warranted. State v. Lex Associates, 248 Conn. 612, 628, 730 A.2d 38 (1999); Middlesex Mutual Assurance Co. v. Walsh, 218 Conn. 681, 703, 590 A.2d 957 (1991); Foley v. Huntington Co., 42 Conn. App. 712, 738, 682 A.2d 1026, cert. denied, 239 Conn. 931, 683 A.2d 397 (1996). If interest is due, it is an element of damages. Nor’easter Group, Inc. v. Colossale Concrete, Inc., 207 Conn. 468, 482, 542 A.2d 692 (1988); Foley v. Huntington Co., supra, 738. The defendants in this case do not argue that the referee abused his discretion in recommending an award of prejudgment interest or that such interest is not an element of the plaintiffs’ compensatory damages. The defendants claim that the date of termination of prejudgment interest is a factual question within the discretion of the referee. The plaintiffs claim that it is a question of law properly decided by the court.

Noncontractual interest on money wrongfully detained was not sanctioned at common law; see K. Conway, “Interest on Damages in Connecticut,” 30 Conn. B.J. 407 (1956); but has long been awarded pursuant to statute in Connecticut. General Statutes (Rev. to 1949) § 6778; General Statutes (1902 Rev.) tit. 45, § 4600; General Statutes (1888 Rev.) tit. 49, § 2942. These statutes are the ancestors of § 37-3a. The statutes enacted prior to § 37-3a provided for varying maximum rates of interest, but all provided, as does § 37-3a, for recovery of interest in civil actions “as damages for the detention of money after it becomes payable.” Neither those statutes nor § 37-3a provide a date for the termination of the interest.

It has long been recognized that there is no right to interest on a disputed demand unless a contract or a statute so provides. New York, N. H. & H. R. Co. v. Ansonia Land & Water Power Co., 72 Conn. 703, 705, 46 A. 157 (1900). The annotations to § 4600 of the 1902 revision of the General Statutes indicate that statutory interest has existed since 1702, and that damages have been allowed in Connecticut cases pursuant to statute since at least 1814. See Selleck v. French, 1 Conn. 32 (1814).

We conclude that the question of whether prejudgment interest runs until the date of judgment is a legal one because it requires a resolution of the meaning of the words of a statute. Because statutory construction is a question of law, our review is plenary. Hammond v. Commissioner of Correction, 54 Conn. App. 11, 16, 734 A.2d 571, cert. granted on other grounds, 251 Conn. 919, 742 A.2d 358 (1999). In deciding this issue, we are guided by settled principles of statutory construction. “Our fundamental objective is to ascertain and give effect to the apparent intent of the legislature. ... In seeking to discern that intent, we look to the words of the statute itself, to the legislative history and circumstances surrounding its enactment, to the legislative policy it was designed to implement, and to its relationship to existing legislation and common law principles governing the same general subject matter.” (Internal quotation marks omitted.) Sears, Roebuck & Co. v. Board of Tax Review, 241 Conn. 749, 758-59, 699 A.2d 81 (1997).

The conclusions that an attorney trial referee may properly make relate to factual determinations made on the basis of subordinate facts and do not extend to questions of law. See Seal Audio, Inc. v. Bozak, Inc., 199 Conn. 496, 502, 508 A.2d 415 (1986) (“an attorney referee is simply a factfinder whose determination of the facts is reviewable in accordance with well established procedures prior to the rendition of judgment by the court”); State Bank of Westchester v. New Dimension Homes of Connecticut, Inc., 38 Conn. App. 491, 497, 661 A.2d 119 (1995) (legal conclusions reached by attorney trial referee have no conclusive effect). Because we are dealing with a question of law, the recommendation of the attorney trial referee as to when prejudgment interest terminates need not be heeded. See Seal Audio, Inc. v. Bozak, Inc., supra, 510. The defendants argue that the beginning and termination dates for the running of prejudgment interest should both be treated as factual questions to be decided by the attorney trial referee. There is no doubt that case law has established that the commencement date for prejudgment interest is a factual determination. See, e.g., Metcalfe v. Talarski, 213 Conn. 145, 160, 567 A.2d 1148 (1989); Spearhead Construction Corp. v. Bianco, 39 Conn. App. 122, 134-35, 665 A.2d 86, cert. denied, 235 Conn. 928, 667 A.2d 554 (1995).

Although the general rule is that statutory prejudgment interest runs to the date of the time of the verdict or decree; 22 Am. Jur. 2d, Damages § 674 (1988); neither we, nor the parties, are aware of any appellate case directly holding that prejudgment interest pursuant to § 37-3a or its statutory ancestors runs to the date of judgment. There are many cases, however, that imply it; see Gionfriddo v. Avis Rent A Car System, Inc., 192 Conn. 301, 308, 472 A.2d 316 (1984); Stoddard v. Sagal, 86 Conn. 346, 350, 85 A. 519 (1912); or uphold an award of interest to the date of judgment where that is not the issue; Chmielewski v. Aetna Casualty & Surety Co., 218 Conn. 646, 675-76, 591 A.2d 101 (1991) (“a trial court has discretion, under General Statutes § 37-3a, to award prejudgment interest on an arbitration award retroactively to some date prior to the date of the trial court’s judgment affirming the award” [emphasis added]); Atlas v. Miller, 20 Conn. App. 680, 684-85, 570 A.2d 219 (1990); or state it in dicta; Lawrence v. New Hampshire Ins. Co., 29 Conn. App. 484, 497, 616 A.2d 806, cert. denied, 224 Conn. 923, 618 A.2d 528 (1992) (prejudgment interest may run from date of arbitration award to date trial court rendered judgment); or hold that prejudgment interest runs to the date of the judgment without referring to a statute. Loomis v. Gillett, 75 Conn. 298, 301, 53 A. 581 (1902); Regan v. New York & New England R. R. Co., 60 Conn. 124, 142, 22 A. 503 (1891); Parrott v. Housatonic R. R. Co., 47 Conn. 575, 576 (1880). Because prejudgment interest in noncontractual cases was unknown at common law and because Connecticut has had a statute allowing such interest since our earliest cases, we conclude that the basis for the award of the interest in the latter cases must have been statutory. This imputed judicial gloss on our statutes persuades us to interpret § 37-3a as providing for interest to the date of the judgment.

The paucity of cases that specifically decide the termination date of the running of statutory prejudgment interest is more a function of a failure to litigate the obvious than a failure to raise and decide the issue. The date the interest begins to rim pursuant to § 37-3a is factual because it necessarily involves a determination of when the wrongful detention began. Patron v. Konover, 35 Conn. App. 504, 517, 646 A.2d 901, cert. denied, 231 Conn. 929, 648 A.2d 879 (1994). The date when the wrongful detention terminates is definitively known when judgment is rendered and cannot sooner occur.

The statute provides for an award of interest on money from the time money is wrongfully withheld. Harris Calorific Sales Co. v. Manifold Systems, Inc., 18 Conn. App. 559, 566, 559 A.2d 241 (1989). Money remains due until it is paid. Until such time as the damages are ascertained and are actually ordered to be paid, they remain due. Until a trial is over and judgment is rendered for a plaintiff, a plaintiff cannot be sure of any recovery. The money may have been wrongfully detained prior to judgment, and it is deemed as such when judgment finally is rendered, in effect awarding interest retroactively, but interest cannot be due and payable until judgment is rendered. See Gionfriddo v. Avis Rent A Car System, Inc., supra, 192 Conn. 307.

Sections 37-3a and 52-192a should be read together. Id. Section 52-192a provides for interest until the date of judgment. Id. There is no reason to assume that the legislature would provide that one type of interest should be treated differently from the other. Also, the word prejudgment implies interest until a judgment is rendered.

Blakeslee Arpaia Chapman, Inc. v. El Constructors, Inc., 239 Conn. 708, 751, 687 A.2d 506 (1997), is instructive in determining the question of whether prejudgment interest runs to the time of judgment. In that case, the defendant argued that an informal stay of proceedings for three years should toll § 52-192a “offer of judgment” interest. Id., 753. The plaintiff did not formally agree to a stay in state court while discovery proceeded in federal litigation. Id., 752. Because § 52-192a interest is mandatory and is intended to encourage prompt settlement of cases, the court reasoned that there should be no exception for its running until judgment. Id., 753. Although § 37-3a is not mandatory, its puipose is to compensate plaintiffs who have been deprived of the use of money wrongfully withheld by defendants. That purpose would be frustrated in cases such as this, where neither party caused a delay in the rendering of judgment, if the time for interest to be paid were shortened to a date other than that of the judgment. We hold that § 37-3a interest when awarded runs until judgment is rendered. This holding, however, is not intended to prevent a plaintiff from waiving this termination date for the running of interest and agreeing to a lesser period of time for interest as consideration for a defendant’s agreement to a stay in the proceedings or a continuance.

There is no purpose in remanding this case to the attorney trial referee or the trial court because our plenary review of this question of law has already decided the issue.

II

THE PLAINTIFFS’ CROSS APPEAL

The plaintiffs seek repayment of $18,600 that was paid to the defendants at the real estate closing. The plaintiffs argue on appeal that this amount was an overpayment in excess of the contract price and that they are entitled to its return. They also argue that the defendants violated CUTPA. We do not agree.

The attorney trial referee concluded that the demand for the additional sum was not necessarily a breach of the contract of the parties or an unfair trade practice under CUTPA. The underlying facts found by the referee were that the defendants demanded $18,600 at the closing, the plaintiffs paid it, there were no written change orders, the first time a demand for the money was made was at the closing, and the plaintiffs were sophisticated and represented by capable counsel at the closing.

The defendants did not respond in their brief to the claim that the plaintiffs are seeking the refund because the defendants breached their contract for a specific price for the building of the house. The defendants argue only that their request for the money did not violate CUTPA. The defendants characterize the payment as being for “additional expenses.” The referee characterized it as “extra work,” and stated that there was an escrow agreement and that the defendants’ request “while precipitous and untimely, was'apparently a countermove to [the] plaintiffs’ own demand for credits.” The referee found that there was no violation of CUTPA, “especially in light of the escrow agreement,” and that the defendants paid the plaintiffs $9500 of escrow funds held at the closing. Whether a practice is unfair and thus violates CUTPA is an issue of fact. DeMotses v. Leonard Schwartz Nissan, Inc., 22 Conn. App. 464, 466, 578 A.2d 144 (1990). The attorney trial referee found, and the trial court agreed, that the demand for $18,600 was not unfair and not a violation of the act. We cannot disturb that finding.

On the basis of the facts found, we agree that the demand was not unlawful, did not offend public policy as established by statutes, common law or some established concept of what is fair, was not immoral, unethical, oppressive or unscrupulous, and did not cause substantial injury to consumers or competitors. See Tarka v. Filipovic, 45 Conn. App. 46, 55, 694 A.2d 824, cert. denied, 242 Conn. 903, 697 A.2d 363 (1997). Even if, as the plaintiffs claim, the defendants breached a contract, such a breach is not sufficient to establish a CUTPA violation. Retrofit Partners I, L.P. v. Lucas Industries, Inc., 47 F. Sup. 2d 256, 271 (D. Conn. 1999).

Whether there was a breach of contract is ordinarily a question of fact. Bowman v. 1477 Central Avenue Apartments, Inc., 203 Conn. 246, 257, 524 A.2d 610 (1987). Here, the attorney trial referee did not expressly conclude that the contract was not breached, but concluded that the plaintiffs had other avenues of recourse if they did not want to accede to the defendants’ demand and, having paid the amount, could not later attempt to reclaim it. In their motion to correct the referee’s report, the plaintiffs’ did not ask for specific findings that the defendants did not do extra work or did extra work with some lesser value. The plaintiffs thus waived their opportunity to seek the addition of facts in the referee’s report.

The judgment is affirmed.

In this opinion the other judges concurred.

       The defendant Andrew LaSala, Jr., is a general partner of the defendant Cannondale Development Associates.

       The attorney trial referee concluded that the defendants’ conduct had not violated CUTPA, as alleged in count two of the plaintiffs’ complaint. The trial court, by accepting the attorney trial referee’s report in its entirety except as to the time period for the calculation of prejudgment interest, upheld that conclusion. The plaintiffs have cross appealed from the judgment for the defendants on count two of their complaint.

       General Statutes § 27-3a provides in relevant part: “Except as provided in [section] . . . 52-192a, interest at the rate of ten per cent a year, and no more, may be recovered and allowed in civil actions ... as damages for the detention of money after it becomes payable. . . .”

       General Statutes § 52-192a provides that after the commencement of any civil action based upon contract or seeking the recovery of money damages, the plaintiff may before trial file with the clerk of the court a written offer of judgment. “If the court ascertains from the record that the plaintiff has recovered an amount equal to or greater than the sum certain stated in his ‘offer of judgment’, the court shall add to the amount so recovered twelve per cent annual interest on said amount.....” General Statutes § 52-192a (b).

       The defendants do not argue on appeal that the damages and prejudgment interest should not be included in the plaintiffs’ damages for purposes of General Statutes § 52-192a. See Gionfriddo v. Avis Rent A Car System, Inc., 192 Conn. 280, 307, 472 A.2d 306 (1984); Gillis v. Gillis, 21 Conn. App. 549, 553-55, 575 A.2d 230, cert. denied, 215 Conn. 815, 576 A.2d 544 (1990); but see Black v. Goodwin, Loomis & Britton, Inc., 239 Conn. 144, 166 n.25, 681 A.2d 293 (1996); or that the mandatory application of § 52-192a renders an award of § 37-3a interest inequitable. See Loomis Institute v. Windsor, 234 Conn. 169, 182, 661 A.2d 1001 (1995); Munroe v. Emhart Corp., 46 Conn. App. 37, 44-45, 699 A.2d 213, cert. denied, 243 Conn. 926, 701 A.2d 658 (1997). Also, the defendants do not argue that the rate of interest should be less than the maximum specified in § 37-3a. See Sears, Roebuck & Co. v. Board of Tax Review, 241 Conn. 749, 766, 699 A.2d 81 (1997).


author: MIHALAKOS, J.

text:
    STATE OF CONNECTICUT v. JEFFREY GIBSON
    (AC 18591)
    O’Connell, C. J., and Mihalakos and Daly, Js.
    Argued September 27
    officially released December 21, 1999

      Glenn W. Falk, special public defender, for the appellant (defendant).

      Ellen A. Jawitz, assistant state’s attorney, with whom, on the brief, were Michael Dearington, state’s attorney, and John Waddock, senior assistant state’s attorney, for the appellee (state).
   Opinion

MIHALAKOS, J.

The defendant, Jeffrey Gibson, appeals from the judgment of conviction, rendered after a jury trial, of murder in violation of General Statutes § 53a-54a (a) and carrying a pistol or revolver without a permit in violation of General Statutes § 29-35. The defendant claims that the trial court improperly (1) permitted the state to cross-examine a witness beyond the scope of direct examination, (2) permitted the state to call the same witness as its own witness in the middle of the defendant’s presentation of evidence, (3) permitted the interjection of consciousness of guilt evidence, which had not been presented during the state’s casein-chief, and (4) charged the jury with an unduly prejudicial instruction on consciousness of guilt. We affirm the judgment of the trial court.

The jury reasonably could have found the following facts. On September 25, 1995, at approximately 9:20 p.m., John Goad, an officer with the New Haven police department, responded to gunshots he heard coming from the vicinity of Rossette and DeWitt Streets. As he approached the area, he found the victim, Andre Barnes, lying in the middle of the street, bleeding from his forehead and chest. An eyewitness saw the defendant shoot the victim and fire the initial shot. This was corroborated by forensic evidence found at the scene. The victim died as a result of his injuries.

After the shooting, the defendant went to his sister’s house, subsequently threw the gun into a river and took a bus to South Carolina, where he remained until November, 1995. On November 15, 1995, the police located the defendant in West Haven and took him into custody. After waiving his Miranda rights, the defendant gave a statement to the police that he shot the victim but that he acted in self-defense. He claimed further that the victim had fired the first shot. At trial, the defendant’s testimony was consistent with the statement he had given to the police.

Prior to the defendant’s testimony, he called Stacy Thomas to testify that she had seen the victim and another man pistol whip the defendant earlier in September, 1995. Although the trial court refused to allow the state to question Thomas on cross-examination whether she had talked to the defendant on the night of the shooting, the state was allowed, for the convenience of the witness, to call Thomas as its own rebuttal witness after it completed its cross-examination of her. Thomas then testified that the defendant had told her that he was at the movies at the time of the shooting, a statement that he later admitted was a he.

I

The defendant’s first claim is that the trial court abused its discretion in permitting the state, on cross-examination, to question Thomas beyond the scope of direct examination. We disagree.

Review of the record indicates that the trial court sustained the defendant’s objection to the proffered testimony on cross-examination. The testimony, to which the defendant’s further objection was overruled, was admitted on direct examination when Thomas was subsequently called as a rebuttal witness by the state. Consequently, the defendant’s claim of improper cross-examination is without merit.

II

The defendant next claims that the trial court improperly permitted the state to call Thomas as its own witness in the middle of the defendant’s presentation of evidence. He relies on Finch v. Weiner, 109 Conn. 616, 145 A. 31 (1929), conceding, however, that the trial court has considerable discretion over the order of proceedings. “[T]he discretion must be exercised with due regard to the substantial rights involved and in accord with that which is just and proper under the circumstances. Departure from the regular order should not be permitted where it will work injustice to either party. 6 Jones Commentaries on Evidence (2d Ed.) § 2511.” Finch v. Weiner, supra, 618-19.

The defendant’s reliance on Finch is misplaced. In Finch, the claim on appeal involved the questioning of a witness on cross-examination that was beyond the scope of direct examination. The departure in Finch, which caused the reversal, was the ability to examine another party’s witness on issues that were not raised on direct examination. Our Supreme Court held that this was prejudicial and reversed the trial court. Id., 620. In the present case, however, there has been no showing of prejudice, since the state recalled the witness as its own and was, therefore, permitted to examine her directly. “Obviously the more prudent and better procedure is for the court to determine in the absence of the jury questions as to the admissibility of evidence if for no other reason than that such a procedure obviates any risk that the jury may hear evidence which the court ultimately determines to be inadmissible. See Pinto v. Pierce, 389 U.S. 31, 32, 88 S. Ct. 192, 19 L. Ed. 2d 31 [1967].” State v. Panella, 168 Conn. 532, 540, 362 A.2d 953 (1975). The trial court properly allowed the state to call Thomas as its own witness in the middle of the defense’s presentation of evidence.

Ill

The defendant’s third claim is also rejected by this court. The defendant claims that it was improper for the trial court to permit the interjection of consciousness of guilt evidence because it had not been addressed previously by the state during its case-in-chief. Again, the defendant’s reliance on Finch v. Weiner, supra, 109 Conn. 619, is misplaced. Here, the examination of the witness as to consciousness of guilt was permitted only when the witness was presented as the state’s witness, and the trial court properly instructed the jury. Thomas was presented as a rebuttal witness even though the defendant had not, as yet, testified. The court has discretion to admit, in rebuttal, evidence that might have been properly offered in the state’s case-in-chief. See Practice Book § 42-35 (3). Our Supreme Court has stated that if the trial court were to allow a party to introduce evidence in rebuttal that was more properly presented in the case-in-chief, the opposing party would have the right to meet it. State v. Buonomo, 88 Conn. 177, 183, 90 A. 225 (1914).

The defendant testified after Thomas and, therefore, had an opportunity to rebut Thomas’ testimony. The admission of rebuttal testimony is ordinarily within the sound discretion of the trial court. See State v. Canty, 223 Conn. 703, 715-16, 613 A.2d 1287 (1992). “The trial court has wide discretion in determining the order of proof.” State v. Menzies, 26 Conn. App. 674, 692, 603 A.2d 419, cert. denied, 221 Conn. 924, 608 A.2d 690 (1992). Every reasonable presumption will be given in favor of upholding the court’s ruling when ascertaining whether the ruling amounted to an abuse of discretion. The court had just cause to permit Thomas’ testimony since the defendant had not yet testified and would be given the opportunity to address Thomas’ testimony.

IV

The defendant’s final claim is that the trial court improperly charged the jury by unfairly marshaling the evidence and giving a prejudicial instruction on consciousness of guilt, which deprived the defendant of a fair trial.

We first address the defendant’s unfair marshaling of evidence claim. “A trial court has broad discretion to comment on the evidence adduced in a criminal trial. ... A trial court often has not only the right, but also the duty to comment on the evidence.” (Internal quotation marks omitted.) State v. Adams, 52 Conn. App. 643, 648, 727 A.2d 780 (1999); see State v. Hernandez, 218 Conn. 458, 461-62, 590 A.2d 112 (1991). “The purpose of marshalling the evidence, a more elaborate manner of judicial commentary, is to provide a fair summary of the evidence, and nothing more; to attain that purpose, the [trial] judge must show strict impartiality. ... To avoid the danger of improper influence on the jury, a recitation of the evidence should not be so drawn as to direct the attention of the jury too prominently to the facts in the testimony on one side of the case, while sinking out of view, or passing lightly over, portions of the testimony on the other side, which deserve equal attention.” (Internal quotation marks omitted.) State v. Adams, supra, 648.

We conclude that the trial court’s instructions in this case as to this claim were not so egregious as to have deprived the defendant of a constitutional right to a fair trial. We therefore conclude that the trial court did not improperly marshal the evidence and abuse its discretion in a way that was prejudicially unfair to the defendant.

The defendant claims further that the trial court gave a prejudicial instruction of consciousness of guilt. Because this claim was not raised before the trial court, we must determine whether the defendant can prevail under the four-prong test articulated in State v. Golding, 213 Conn. 233, 239-40, 567 A.2d 823 (1989). See State v. Daniels, 248 Conn. 64, 79, 726 A.2d 520 (1999). In Golding, the first two prongs consider whether the defendant’s claim is reviewable, the last two prongs address the merits of the claim. Id.; State v. Beltran, 246 Conn. 268, 275, 717 A.2d 168 (1998); State v. Askew, 55 Conn. App. 34, 38, 739 A.2d 274 (1999). “In the absence of any one of these conditions, the defendant’s claim will fail. The appellate tribunal is free, therefore, to respond to the defendant’s claim by focusing on whichever condition is most relevant in the particular circumstances.” State v. Golding, supra, 240.

We conclude that the defendant’s claim fails the second prong of Golding. “It has . . . been stated numerous times that consciousness of guilt issues are not constitutional and, therefore, are not subject to review under the Evans-Golding standard. See State v. Robinson, 227 Conn. 711, 732, 631 A.2d 288 (1993); State v. Merritt, 36 Conn. App. 76, 96, 647 A.2d 1021 (1994), appeal dismissed, 233 Conn. 302, 659 A.2d 706 (1995).” State v. Snead, 41 Conn. App. 584, 591, 677 A.2d 446 (1996). It is well settled that “the trial court can be expected to rule only on those matters that are put before it. See Lee v. Lee, 174 Conn. 5, 7, 381 A.2d 529 (1977). With only a few exceptions ... we will not decide an appeal on an issue that was not raised before the trial court. See State v. Golding, [supra, 213 Conn. 239]. To review claims articulated for the first time on appeal and not raised before the trial court would be nothing more than a trial by ambuscade of the trial judge. Baker v. Cordisco, 37 Conn. App. 515, 522, 657 A.2d 230, cert. denied, 234 Conn. 907, 659 A.2d 1207 (1995).” (Internal quotation marks omitted.) Mack v. LaValley, 55 Conn. App. 150, 157, 738 A.2d 718, cert. denied, 251 Conn. 928, 742 A.2d 363 (1999); Flewellyn v. Hempstead, 47 Conn. App. 348, 353, 703 A.2d 1177 (1997). We, therefore, decline to review this unpreserved claim.

The judgment is affirmed.

In this opinion the other judges concurred.

       General Statutes § 53a-54a (a) provides in relevant part: “A person is guilty of murder when, with intent to cause the death of another person, he causes the death of such person or of a third person . . .

       General Statutes § 29-35 (a) provides in relevant part: “No person shall carry any pistol or revolver upon his person, except when such person is within his dwelling house or place of business, without a permit to carry the same . . .

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

       Practice Book § 42-35 (3) provides: “The prosecuting authority and the defendant may present rebuttal evidence in successive rebuttals, as required. The judicial authority for cause may permit a party to present evidence not of a rebuttal nature, and if the prosecuting authority is permitted to present further evidence in chief, the defendant may respond with further evidence in chief.”

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