text:
    ANTHONY W. OLIPHANT v. COMMISSIONER OF CORRECTION
    (AC 23549)
    Lavery, C. J., and Schaller and McLachlan, Js.
    Argued January 20
    officially released May 18, 2004

      Temmy Ann Pieszak, chief of habeas corpus services of the office of chief public defender, for the appellant (petitioner).

      James A. Killen, senior assistant state’s attorney, with whom, on the brief, was Michael Dearington,
      state’s attorney, and Linda N. Howe, senior assistant state’s attorney, for the appellee (respondent).
   Opinion

SCHALLER, J.

The facts are as follows. On April 25, 1995, the petitioner was convicted of two crimes under docket numbers CR7-16272 and CR7-163805. On CR7-16272, he was sentenced to incarceration for one year; on CR7-163805 he was sentenced to incarceration for three months to run consecutive to the one year term for a total effective sentence of fifteen months incarceration (April sentences or April convictions). On September 1, 1995, the petitioner was convicted on another charge and sentenced to fifteen years of incarceration, execution suspended after seven years, with five years of probation (September sentence or September conviction). The September sentence was to run concurrent to the April sentences. One hundred and twenty-nine days passed between the imposition of the April sentences and the imposition of the September sentence.

On November 16, 1998, the petitioner, acting pro se, filed the present petition for a writ of habeas corpus. In the space provided to list sentences on the preprinted form, the petitioner listed only the April sentences. On the form the petitioner claimed, inter alia, that his right to be free of double jeopardy was violated, that his attorney failed to contact certain witnesses and threatened other witnesses, that he was the victim of selective or vindictive prosecution and that he was not tried by an impartial jury. The form allowed the petitioner to challenge the legality of his convictions or the terms of his confinement. The form provided that it was to be used to challenge either the former or the latter, but not both. The petitioner challenged only the underlying convictions and not his confinement. Appended to the form were two typed pages containing a litany of allegations, including: a conspiracy had been formed against the petitioner because he had made a civil rights complaint; the petitioner’s name had been changed without his consent, which led to the denial of telephone privileges during his trials; a conflict existed between him and his attorney; and his attorney was ineffective for a variety of reasons.

The court, Pittman, J., dismissed the petitioner’s telephone claim as moot. Subsequently, a special public defender was assigned to represent the petitioner. Thereafter, the special public defender moved to withdraw claiming that there were no nonfrivolous claims that she could present. The petitioner opposed that motion. On June 12, 2002, the court, R. Robinson, J., dismissed the petition and allowed the special public defender to withdraw.

In dismissing the petition, the court noted that the petitioner had finished serving the April sentences, which were the subject of the present habeas action. The court held that “in order for a habeas court to have jurisdiction over a habeas matter, the petitioner must be ‘in custody.’ In the instant action, the petitioner was not in the custody of a Connecticut facility or official, or on a Connecticut based probation or parole for the subject convictions [the April convictions] at the time of the filing of said petition. This court does not have jurisdiction to grant the petitioner the relief that he seeks and, therefore, this matter must be dismissed.” The court based its decision on this court’s holding in Ford v. Commissioner of Correction, 59 Conn. App. 823, 826, 758 A.2d 853 (2000). This appeal followed.

Whether a court has subject matter jurisdiction is a question of law, and our review of the trial court’s determination is plenary. Doe v. Roe, 246 Conn. 652, 660, 717 A.2d 706 (1998). If a court lacks subject matter jurisdiction, it may not entertain the matter. “[S]ubject matter jurisdiction, if lacking, may not be conferred by the parties, explicitly or implicitly.” Williams v. Commission on Human Rights & Opportunities, 257 Conn. 258, 266, 777 A.2d 645 (2001).

To determine whether the court’s ruling was correct, we must first determine what the petitioner actually was challenging in his petition for a writ of habeas corpus. The petitioner argues that the court should have interpreted the petition as challenging the September conviction as well as the April convictions. The petitioner also argues that the court should have read the petition to claim that the April convictions were unlawfully enhancing the September conviction. We are not persuaded.

The cornerstone of the petitioner’s arguments is that “a pro se complaint, however inartfully pleaded, must be held to less stringent standards than formal pleadings drafted by lawyers . . . .” (Internal quotation marks omitted.) Estelle v. Gamble, 429 U.S. 97, 106, 97 S. Ct. 285, 50 L. Ed. 2d 251 (1976). Even when the petition is read broadly, however, the petitioner fails in his arguments. In the section of the petition form that allowed the petitioner to list the convictions challenged, he listed only the April convictions. Further, although the petitioner indicated that there was an overlap of issues in the petition and in another that he had filed, he qualified any potential overlap by explaining that one petition addressed the conditions of his imprisonment and that the other addressed the circumstances surrounding his convictions. In addition, the petition did not allege that his April convictions were enhancing the September conviction. The petitioner chose to allege that his convictions were illegal and specifically chose not to challenge his confinement. The portion of the form relating to the terms of confinement was left blank. The petition does not support the petitioner’s arguments; the petition challenged only the legality of the April convictions.

Because the petition challenged only the April convictions, we must determine whether the petitioner was' still in custody with respect to those convictions at the time of the filing of the petition. “[P]ursuant to General Statutes § 52-466, a Connecticut habeas court has subject matter jurisdiction only over those cases brought by a petitioner who is ‘illegally confined or deprived of his liberty’ under the challenged conviction.” Ford v. Commissioner of Correction, supra, 59 Conn. App. 826. Because “[t]he history of Connecticut’s habeas coxpus jurisprudence is ‘wholly in accord’ with federal habeas corpus jurisprudence”; id.; we may rely on federal cases interpreting the contours of the great writ. Federal cases interpreting the custody requirement indicate that to satisfy the requirement, the petitioner must be under some legal restraint, e.g., imprisoned or paroled, at the time the petition is filed. See Maleng v. Cook, 490 U.S. 488, 491-93, 109 S. Ct. 1923, 104 L. Ed. 2d 540 (1989) (petitioner must be under some restraint when petition filed or petitioner not in custody and cannot bring challenge on conviction or collateral consequences stemming therefrom); Carafas v. LaVallee, 391 U.S. 234, 239-40, 88 S. Ct. 1556, 20 L. Ed. 2d 554 (1968) (custody requirement does not mean petitioner must be in custody during entire pendency of legal proceedings, but only at time petition filed).

It is uncontested that at the time the petition was filed, the petitioner was no longer under the physical control of the respondent, the commissioner of correction, as a result of the April convictions. That fact alone suggests that the court did not have subject matter jurisdiction. Ford v. Commissioner of Correction, supra, 59 Conn. App. 826-30. The petitioner argues that if he is found to have been “in custody,” his habeas case would not be rendered moot as a result of the expiration of his sentence on the April convictions, as stated by the habeas court, because he could still be afforded practical relief. The petitioner maintains that if his April convictions were reversed, the 129 days he spent in jail for the April convictions prior to the start of the September sentence could be treated as presentence confinement credit under General Statutes § 18-98d for the September sentence. In light of our conclusion that the petitioner does not satisfy the “in custody” requirement, we do not have to address the petitioner’s argument that his habeas action is not moot. We note, however, that the petitioner’s argument is meritless. In Ford v. Commissioner of Correction, supra, 829, this court held that “concurrent sentences automatically begin to run at the same time.” Consequently, the petitioner’s September sentence began to run retroactively from the date of his April sentences. In other words, according to Ford, the longer September sentence completely overlapped the April sentences. Thus, the petitioner’s September sentence already has been shortened by 129 days. It is the petitioner’s position, however, that Ford was incorrectly decided and that the April sentences and the September sentence did not overlap for 129 days. We decline to reconsider our holding in Ford.

The petitioner also argues that he satisfied an exception to the custody requirement by asserting equitable tolling. He maintains that the respondent did not allow him to file his petition. Additionally, the petitioner argues that his case fits within an exception to the custody requirement because he claims that he was not guilty of the crimes. In support of those arguments, the petitioner cites Lackawanna County District Attorney v. Coss, 532 U.S. 394, 121 S. Ct. 1567, 149 L. Ed. 2d 608 (2001). Lackawanna County District Attorney determined the relationship between 28 U.S.C. § 2254 and the custody requirement. The petitioner does not explain how Lackawanna County District Attorney supports his arguments. Further, we note that the petitioner’s argument relating to equitable tolling could not confer subject matter jurisdiction on the court as “subject matter jurisdiction, if lacking, may not be conferred by the parties, explicitly or implicitly.” Williams v. Commission on Human Rights & Opportunities, supra, 257 Conn. 266. One party cannot create subject matter jurisdiction by alleging that the other party prevented the filing of the petition. Indeed, Williams suggests that equitable tolling is not a consideration when determining whether a court has subject matter jurisdiction. Id., 277-78.

The petition challenged only the April convictions, which the petitioner had finished serving when the petition was filed. The petitioner failed to satisfy the custody requirement and, therefore, the court lacked subject matter jurisdiction to hear the petition.

The judgment is affirmed.

In this opinion the other judges concurred.

       Because the September sentence was to run concurrent to the April sentences, Garlotte v. Fordice, 515 U.S. 39, 115 S. Ct. 1948, 132 L. Ed. 2d 36 (1995), does not apply. See Ford v. Commissioner of Correction, supra, 59 Conn. App. 828-29. Ford, like the present case, involved concurrent sentences imposed at different times. Id., 824-25. “Therein lies the fundamental difference between this case and Garlotte. The Garlotte court was concerned that if it held that a prisoner could not challenge a consecutive term that already had been served, but that a prisoner could challenge an unserved consecutive term; see Peyton v. Rowe, 391 U.S. 54, 67, 88 S. Ct. 1549, 20 L. Ed. 2d 426 (1968); then the question of whether a prisoner serving consecutive sentences had met the ‘in custody’ requirement would turn on the arbitrary decision of a trial court to have one consecutive sentence run before another. See Garlotte v. Fordice, supra, [45-46]. The concern expressed by the court in Garlotte does not arise in cases such as this one where the petitioner is serving concurrent sentences because concurrent sentences automatically begin to run at the same time.” Ford v. Commissioner of Correction, supra, 828-29.


source: Caselaw Access Project

author: HENNESSY, J.

license: Public Domain

text:
    IN RE VANNA A.

    (AC 23579)
    Dranginis, DiPentima and Hennessy, Js.
    Argued December 2, 2003
    officially released May 18, 2004

      David B. Rozwaski, for the appellant (respondent mother).

      John B. Ashmeade, assistant attorney general, with whom, on the brief, were Richard Blumenthal, attorney general, and Susan T. Pearlman, assistant attorney general, for the appellee (petitioner).

       In accordance with the spirit and intent of General Statutes § 46b-142 (b) and Practice Book § 79-3, the names of the parties involved in this appeal are not disclosed. The records and papers of this case shall be open for inspection only to persons having a proper interest therein and upon order of the Appellate Court.

   Opinion

HENNESSY, J.

The respondent mother appeals from the judgment of the trial court terminating her parental rights with respect to her minor child, Vanna A. On appeal, the respondent claims that the court improperly concluded that (1) she failed to achieve a sufficient degree of personal rehabilitation within the meaning of General Statutes § 17a-112 (j) (3) (B), (2) there was no ongoing parent-child relationship within the meaning of § 17a-112 (j) (3) (D) and (3) termination of her parental rights was in the best interest of the child. We disagree and affirm the judgment of the trial court.

In its memorandum of decision, filed September 9, 2002, the court found the following facts and procedural history. The child, bom January 30, 1996, was the subject of a neglect petition filed May 7, 1997, by the petitioner, the commissioner of children and families (commissioner), alleging that the child had sustained injuries in a manner inconsistent with the explanation given by the respondent. The child was found to be neglected. The court entered a disposition of protective supervision that allowed the respondent to have custody and to receive counseling for family preservation. In April, 1998, during the period of protective supervision, neglect petitions were again filed by the commissioner, alleging that the child had suffered inadequately explained physical injuries. The petitions also alleged that she suffered from malnutrition and a lack of medical attention. An order of temporary custody was granted, stemming from the neglect petitions filed in April, 1998. On February 9, 1999, following a judicial pretrial, the parties agreed to, and the court granted, the commissioner’s motion to modify the disposition from protective supervision to commitment to the department of children and families (department) and placement in foster care.

On February 11,1999, just two days later, the respondent filed a motion to revoke the commitment to the department. The respondent’s progress with individual counseling was a central issue in the revocation hearing. The motion was denied on the basis of the respondent’s failure to acknowledge responsibility for the injuries to the child and to the child’s brother. The court ordered that the respondent address the issue of her responsibility for the child’s injuries in counseling sessions and extended the commitment of the child to July 23, 2000. The court further approved a permanency plan calling for unification of the respondent with her child and set forth the following expectations: The respondent was required to (1) cooperate with the department; (2) participate in individual and parenting counseling; (3) have no involvement with the criminal justice system; (4) maintain adequate housing; and (5) visit with the child and demonstrate appropriate parent-child interaction during the visits.

On July 23, 2000, the period of commitment to the department lapsed. On November 2, 2000, the commissioner, realizing that she no longer had legal guardianship over the child, filed a neglect petition and sought an order of temporary custody. The petition alleged that the child was neglected and requested that she be committed to the department. The commissioner further alleged that the respondent had abused the child physically and failed to visit regularly while the child was in foster care. Finally, on the basis of the results of a psychological examination, the commissioner alleged that there was no parent-child attachment.

At the hearing on the order of temporary custody, the parties agreed to allow the child to remain in foster care under the custody of the department pending a full hearing on the neglect petition. In addition, the respondent also entered into a court approved agreement with the department to undertake the following specific steps to be granted custody: (1) keep appointments and cooperate with the department; (2) participate in individual and family counseling; (3) sign necessary releases; (4) maintain adequate housing; (5) have no further involvement with the criminal justice system and maintain compliance with the requirements of her probation; (6) visit with the child as permitted by the department; and (7) cooperate with the child’s therapy.

On March 21, 2001, after a contested hearing, the court entered an adjudication of neglect and committed the child to the commissioner for placement in foster care until March 21, 2002. The term of the commitment was extended by the court, and on April 18, 2002, the commissioner filed a petition to terminate the respondent’s parental rights. The petition alleged two grounds for termination, the respondent’s failure to achieve a sufficient degree of personal rehabilitation and no ongoing parent-child relationship. At the conclusion of a contested hearing, the court found that the commissioner had proven by clear and convincing evidence that (1) the department had made reasonable efforts to reunify the respondent and the child, (2) the respondent had failed to achieve sufficient personal rehabilitation for purposes of § 17a-112 (j) (3) (B), (3) there was no ongoing parent-child relationship for purposes of § 17a-112 (j) (3) (D) and (4) it was in the child’s best interest to terminate the respondent’s parental rights. This appeal followed.

“Our standard of review on appeal from a termination of parental rights is whether the challenged findings are clearly erroneous. . . . The determinations reached by the trial court that the evidence is clear and convincing will be disturbed only if [any challenged] finding is not supported by the evidence and [is], in light of the evidence in the whole record, clearly erroneous. . . . On appeal, our function is to determine whether the trial court’s conclusion was legally correct and factually supported. . . . We do not examine the record to determine whether the trier of fact could have reached a conclusion other than the one reached . . . nor do we retry the case or pass upon the credibility of the witnesses. . . . Rather, on review by this court every reasonable presumption is made in favor of the trial court’s ruling. . . .

“A hearing on a petition to terminate parental rights consists of two phases, adjudication and disposition. ... In the adjudicatory phase, the trial court determines whether one of the statutory grounds for termination of parental rights . . . exists by clear and convincing evidence. If the trial court determines that a statutory ground for termination exists, it proceeds to the dispositional phase. In the dispositional phase, the trial court determines whether termination is in the best interests of the child. ... In the dispositional phase of a termination of parental rights hearing, the trial court must determine whether it is established by clear and convincing evidence that the continuation of the parents’ parental rights is not in the best interests of the child. In arriving at that decision, the court is mandated to consider and make written findings regarding seven factors delineated in ... § [17a-112 (k)] . . . .” (Citations omitted; internal quotation marks omitted.) In re Sheena I., 63 Conn. App. 713, 719-21, 778 A.2d 997 (2001).

I

The respondent claims that the court improperly found that the commissioner proved, by clear and convincing evidence, that the respondent had failed to achieve a sufficient degree of personal rehabilitation within the meaning of § 17a-112 (j) (3) (B).

It is clear from the record that the child had been abdicated neglected on two previous occasions. It is also clear from the record that the respondent had been provided with specific steps to facilitate the child’s return to her custody. She does not argue that the requirements of the statute have been met. The respondent does argue, however, that there was no reason to believe that she could not assume aposition of responsibility in the life of the child within a reasonable period of time. She contends that in determining whether a parent is restored to the position of being a caretaker does not mean taking full responsibility without some type of support services. The respondent claims that she engaged in services provided by therapists, that her visits with the child were consistent and that she participated in family counseling. Those actions on her part resulted in progress in the development of the necessary coping skills required to reunite her with her child. The respondent argues that in light of the progress she already had made, if given continued help, she could achieve the necessary degree of rehabilitation. Therefore, she argues that the court improperly found that she had failed to rehabilitate herself.

Although the respondent’s contentions are noble, she fails to apprehend the requirements of § 17a-112 (j) (3) (B). We have stated that “[p]ersonal rehabilitation as used in the statute refers to the restoration of a parent to his or her former constructive and useful role as a parent. . . . [Section 17a-112] requires the trial court to analyze the [parent’s] rehabilitative status as it relates to the needs of the particular child, and further, that such rehabilitation must be foreseeable within a reasonable time. . . . The statute requires the court to find by clear and convincing evidence that the parent’s level of rehabilitation is less than that which would encourage a belief that he or she can assume a responsible position in the child’s life within a reasonable time.” (Citation omitted; internal quotation marks omitted.) In re Shyliesh H., 56 Conn. App. 167, 173, 743 A.2d 165 (1999). The respondent contends that to avoid the requisite finding, a parent does not need to be “restored to the position of caretaker” or to “take full responsibility without some type of services.” Rather, if the parent produces sufficient evidence to encourage the belief that rehabilitation is foreseeable within a reasonable time, the court cannot find by clear and convincing evidence that such rehabilitation cannot be achieved.

In this case, the court’s finding that the respondent failed to achieve rehabilitation is supported by the evidence. The child was bom January 30, 1996, and between that date and April 18, 2002, when the petition to terminate the respondent’s parental rights was filed, the child was adjudicated neglected twice. The respondent had custody of the child under protective supervision for a brief period of time. The commissioner, however, has maintained custody and guardianship for several years — the result of ninety-six hour holds, orders of temporary custody and commitment stemming from adjudications of neglect. The child has been in foster care most of her life and in the same foster home since 1998.

Since 1998, the respondent has been arrested several times and has been incarcerated on three occasions. The respondent was incarcerated as of the filing date of the petition to terminate her parental rights. She was, however, scheduled to be released a short time thereafter. When she was available to participate in such activities as therapy sessions and supervised visits with the child, the respondent did so. The court found that the respondent generally complied with the majority of specific steps set forth by the court. Nevertheless, her continued involvement with the criminal justice system evidenced her lack of insight into the importance of meeting that step toward unification with her child. We agree with the court that by her actions, the respondent elevated her desires over the child’s need for her as a mother.

The respondent participated in individual counseling to address issues of self-esteem, communication and her inability to tell the truth about important matters. For example, although on one occasion she admitted having abused the child’s brother, the respondent has never taken responsibility for abusing the child, herself. In addition, the respondent subsequently denied to a court-appointed psychologist and a counselor that she had abused the brother. The respondent maintains that the children suffered their many injuries by falling or running into objects. The respondent’s failure to honestly address that issue resulted in the court’s conclusion that her participation in therapy would not benefit her to an extent that could result in unification with the child. The respondent’s continued involvement with the criminal justice system rendered her unavailable to parent her child. Other evidence demonstrated that the respondent had not progressed in her counseling and therapy to an extent that would allow for the possibility of reunification with her child. We cannot conclude that the court was clearly erroneous in finding that the respondent had failed to achieve the required degree of personal rehabilitation demanded by the statute.

II

The respondent’s second claim is that the court improperly found that there was no parent-child relationship as defined in § 17a-112 (j) (3) (D). “Because the statutory grounds necessary to grant a petition for termination of parental rights are expressed in the disjunctive, the court need find only one ground to grant the petition. Thus, we may affirm the court’s decision if we find that it properly concluded that any one of the statutory circumstances existed.” In re Brea B., 75 Conn. App. 466, 473, 816 A.2d 707 (2003). Having concluded that the court properly found that there was clear and convincing evidence that the respondent had failed to achieve the required degree of personal rehabilitation demanded by the statute, we need not address the claim.

Ill

The respondent further claims that the court improperly found, in the dispositional phase of the proceeding, that it would be in the best interest of the child to terminate the respondent’s parental rights. “In the dis-positional phase of a termination of parental rights hearing, the trial court must determine whether it is established by clear and convincing evidence that the continuation of the respondent’s parental rights is not in the best interest of the child. In arriving at this decision, the court is mandated to consider and make written findings regarding seven factors delineated in [§ 17a-112 (k)]. On appeal, we will disturb the findings of the trial court in both the adjudication and disposition only if they are clearly erroneous.” In re Tabitha P., 39 Conn. App. 353, 361-62, 664 A.2d 1168 (1995).

The court, as required, considered and addressed in writing the seven factors set forth in § 17a-112 (k). The respondent argues that the commissioner, as statutorily required, did not make reasonable efforts to reunify the child with the respondent. The respondent claims that the commissioner did not actually provide services to her, but it made referrals, which she contends, does not constitute an actual service.

In support of her argument, the respondent cites In re Vincent B., 73 Conn. App. 637, 646, 809 A.2d 1119 (2002), cert. denied, 262 Conn. 934, 815 A.2d 136 (2003). In re Vincent B., however, may be distinguished from the case at hand. In In re Vincent B., the department determined that because the respondent father had failed to benefit from its services to achieve reunification with his two other children, he also would be unwilling, or unable, to benefit from any services aimed at reunification with the child who was the subject of the termination petition in that case. Id., 642. This court noted that the respondent in In re Vincent B. may have failed to benefit from the department’s services in the past due to a problem with alcohol. Id., 645. The respondent, however, had undergone treatment and was sober during his attempts to reunite with the child at issue, a factor that increased the possibility that he might benefit from such services. Id., 646. As such, this court required that reasonable efforts by the department be utilized to assist the respondent to formulate an appropriate plan to achieve reunification. Id., 646-47.

In the case at hand, although many efforts were arranged for the respondent to address the effects of her abuse on her child, the efforts were without benefit to the respondent because of her inability to admit to herself and to others that she had abused the child. Her denial of the abuse thwarted her achievement of positive results from the programs provided and placed the child in danger of further abuse if returned to the respondent. On the basis of the facts contained in the record, we conclude that it was not clearly erroneous for the corut to have found that it was in the best interest of the child to terminate the parental rights of the respondent.

The judgment is affirmed.

In this opinion the other judges concurred.

       The respondent identified Frank M. as the child’s father, but did not supply an address for him. He was served by publication and never appeared. He has not appealed in this matter. Joseph A. also was listed in the petition as a putative father. The court found that he was duly served, but he never appeared in this matter. The court terminated the parental rights of both men. Only the respondent mother has appealed, and we therefore refer to her in this opinion as the respondent.

       The respondent was convicted of assault in the third degree on the brother, who was adjudicated as neglected in a separate proceeding and was not a subject of the termination petition at issue in this case.

       General Statutes § 17a-112 Q) (3) (B) provides that “the child (i) has been found by the Superior Court or the Probate Court to have been neglected or uncared for in a prior proceeding, or (ii) is found to be neglected or uncared for and has been in the custody of the commissioner for at least fifteen months and the parent of such child has been provided specific steps to take to facilitate the return of the child to the parent pursuant to section 46b-129 and has failed to achieve such degree of personal rehabilitation as would encourage the belief that within a reasonable time, considering the age and needs of the child, such parent could assume a responsible position in the life of the child . . . .”

       Rudolpho Rosado, a psychologist assigned by the court to conduct evaluations of the child and the respondent, testified that the respondent “never took personal responsibility for any of the accidents or injuries, always citing an extenuation.” He further testified that “if there’s no initial acknowledgement and then you go into therapy, then there really isn’t anything that you bring to the therapist to work on that leads toward changing those factors that originally caused the original problems, and, if you can’t address those factors, then — then it has the potential to sustain the same degree of risk for the children over time.”

       General Statutes § 17a-112 (j) (3) (D) provides that “there is no ongoing parent-child relationship which means the relationship that ordinarily develops as a result of a parent having met on a day to day basis the physical, emotional, moral and educational needs of the child and to allow further time for the establishment or reestablishment of such parent-child relationship would be detrimental to the best interest of the child . . . .”

       General Statutes § 17a-112 (k) provides: “Except in the case where termination is based on consent, in determining whether to terminate parental rights under this section, the court shall consider and shall make written findings regarding: (1) The timeliness, nature and extent of services offered, provided and made available to the parent and the child by an agency to facilitate the reunion of the child with the parent; (2) whether the Department of Children and Families has made reasonable efforts to reunite the family pursuant to the federal Adoption Assistance and Child Welfare Act of 1980, as amended; (3) the terms of any applicable court order entered into and agreed upon by any individual or agency and the parent, and the extent to which all parties have fulfilled their obligations under such order; (4) the feelings and emotional ties of the child with respect to the child’s parents, any guardian of such child’s person and any person who has exercised physical care, custody or control of the child for at least one year and with whom the child has developed significant emotional ties; (5) the age of the child; (6) the efforts the parent has made to adjust such parent’s circumstances, conduct, or conditions to make it in the best interest of the child to return such child home in the foreseeable future, including, but not limited to, (A) the extent to which the parent has maintained contact with the child as part of an effort to reunite the child with the parent, provided the court may give weight to incidental visitations, communications or contributions, and (B) the maintenance of regular contact or communication with the guardian or other custodian of the child; and (7) the extent to which a parent has been prevented from maintaining a meaningful relationship with the child by the unreasonable act or conduct of the other parent of the child, or the unreasonable act of any other person or by the economic circumstances of the parent.”

       In In re Vincent B., the respondent’s parental rights as to his two other children previously had been terminated. In re Vincent B., supra, 73 Conn. App. 639 n.3.

       The child was found to be suffering from enuresis. The testimony revealed that enuresis is a symptom of anxiety characterized by bed-wetting during the day and nighttime hours.

       See footnote 4.


author: WEST, J.

text:
    STATE OF CONNECTICUT v. GREGORY PIERRE
    (AC 24225)
    Foti, West and Hennessy, Js.

      Argued December 3, 2003
    officially released May 18, 2004

      William T. Koch, Jr., special public defender, with whom was Jeremiah Donovan, special public defender, for the appellant (defendant).

      Peter A. McShane, senior assistant state’s attorney, with whom, on the brief, were Kevin T. Kane, state’s attorney, Michael L. Regan, supervisory assistant state’s attorney, and Courtney Morris, legal intern, for the appellee (state).
   Opinion

WEST, J.

The defendant, Gregory Pierre, appeals from the judgment of conviction, rendered after a jury trial, of manslaughter in the first degree in violation of General Statutes § 53a-55 (a) (1), felony murder in violation of General Statutes § 53a-54c, robbery in the first degree in violation of General Statutes § 53a-134 (a) (1), and two counts of kidnapping in the first degree in violation of General Statutes § 53a-92 (a) (2) (A) and (B). On appeal, he claims that the trial court improperly (1) denied his motion to suppress written and oral statements that he made to the police and (2) admitted into evidence a prior inconsistent statement for substantive consideration pursuant to State v. Whelan, 200 Conn. 743, 753, 513 A.2d 86, cert. denied, 479 U.S. 994, 107 S. Ct. 597, 93 L. Ed. 2d 598 (1986). We affirm the judgment of the trial court.

The jury reasonably could have found the following facts. On August 23, 1998, at approximately 6 a.m., a taxicab driver picked up three males at a closed supermarket in Waterford and drove them to the defendant’s apartment at 103 Michael Road in New London. At 6:30 a.m., Waterford police began investigating a Saab that belonged to the victim’s father and had been found partially submerged in the town’s duck pond. Inside the car, the police discovered a business card from Lucky’s Cafe in New London on which a private telephone number was handwritten. On January 10, 1999, the victim’s remains were found in Bates Woods, a recreation area in New London located across from Michael Road, where the defendant lived. Additional facts will be set forth as needed.

I

The defendant first claims that the court improperly denied his motion to suppress written and oral statements he made to the police subsequent to his arrest. Specifically, he argues that his right to counsel under the sixth amendment to the United States constitution and the constitution of Connecticut, article first, § 8, attached at the time of his arrest by warrant. We disagree.

The following additional facts are necessary for our resolution of the defendant’s claim. On June 14, 1999, the defendant was arrested in Garden City, New York. While in custody, he made an incriminating written statement to the police after being advised of, and having waived, his rights under Miranda v. Arizona, 384 U.S. 436, 478-79, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966). On June 24,1999, the defendant made an incriminating oral statement to the police while en route to Connecticut, again after being advised of his Miranda rights.

“Our standard of review of a trial court’s findings and conclusions in connection with a motion to suppress is well defined. A finding of fact will not be disturbed unless it is clearly erroneous in view of the evidence and pleadings in the whole record. . . . [WJhere the legal conclusions of the court are challenged, we must determine whether they are legally and logically correct and whether they find support in the facts set out in the memorandum of decision .... When a factual issue implicates a constitutional claim, however, we review the record carefully to ensure that its determination was supported by substantial evidence.” (Internal quotation marks omitted.) State v. Perez, 78 Conn. App. 610, 616, 828 A.2d 626 (2003).

“We have consistently held that a defendant’s right to counsel under the sixth amendment or its state constitutional counterpart arises only at or after the initiation of adversary judicial criminal proceedings— whether by way of formal charge, preliminary hearing, indictment, information or arraignment.” (Internal quotation marks omitted.) State v. Falcon, 196 Conn. 557, 560, 494 A.2d 1190 (1985). It is well settled that “an arrest, whether or not accompanied by a warrant, does not mark the start of adversarial judicial proceedings.” Id., 561.

Moreover, even if we were to agree with the defendant’s claim that his right to counsel attached at the time of his arrest, the court properly denied his motion because he did not invoke that right. See State v. Lewis, 220 Conn. 602, 612-13, 600 A.2d 1330 (1991). At no point in the taking of his written statement or in the conversation taking place during extradition to Connecticut did the defendant ask for an attorney or state that he wanted to end the conversation. See State v. Perez, supra, 78 Conn. App. 618. Therefore, we conclude that the court properly denied the defendant’s motion to suppress the written and oral statements.

II

The defendant also claims that the court improperly allowed the introduction of a Whelan statement containing the assertions of a codefendant. He argues that (1) a third party statement within a prior inconsistent statement precludes satisfaction of the “personal knowledge” requirement of Whelan, (2) the third party statement at issue constituted inadmissible hearsay and (3) admitting the prior inconsistent statement into evidence violated his sixth amendment right to confront the witnesses against him. We disagree.

The following additional facts are necessary for our resolution of the defendant’s claim. The state called Norman Carr as a witness during its case-in-chief. Carr was friendly with the defendant and the two codefendants, Abin “A.B.” Britton and Jeffrey Smith. On February 16,1999, Carr provided the state police with a seven page written statement at his attorney’s office, describing certain incriminating statements made by Britton and the defendant in Carr’s presence. During his testimony at trial, however, Carr insisted that he never had heard Britton or the defendant discuss the killing of the victim. He maintained that any assertion to the contrary in his February 16, 1999 written statement to the police was false. The court ruled that Carr’s prior inconsistent statement could be admitted for substantive consideration under Whelan.

We first note the standard of review. “The admissibility of evidence, including the admissibility of a prior inconsistent statement pursuant to Whelan, is a matter within the wide discretion of the trial court. ... On appeal, the exercise of that discretion will not be disturbed except on a showing that it has been abused.” (Citation omitted.) State v. Newsome, 238 Conn. 588, 596, 682 A.2d 972 (1996).

A

The defendant first argues that the “personal knowledge” requirement of Whelan is negated by a third party statement. We disagree.

In Whelan, our Supreme Court adopted a rule “allowing the substantive use of prior written inconsistent statements, signed by the declarant, who has personal knowledge of the facts stated, when the declarant testifies at trial and is subject to cross-examination.” State v. Whelan, supra, 200 Conn. 753. In State v. Grant, 221 Conn. 93, 99, 602 A.2d 581 (1992), the Supreme Court explained that the “personal knowledge” requirement of Whelan does not necessitate an eyewitness account of the facts or events recited in the prior statement. Instead, the Supreme Court emphasized that “a prior inconsistent statement ha[s] to be given under circumstances ensuring its reliability and trustworthiness in order to be admissible.” Id., 100.

We find no case law to support the defendant’s contention that a third party statement, by itself, precludes satisfaction of the “personal knowledge” requirement of Whelan. In State v. Buster, 224 Conn. 546, 552-53, 620 A.2d 110 (1993), on the contrary, the prior inconsistent statement at issue included, in part, what the declarant heard the defendant’s cousin say in the defendant’s presence about a gun and certain plans for its disposal. The court stated that “[h]ad [the declarant] stated that [the defendant’s cousin] said he had done something with the gun, [the declarant] would have met the ‘personal knowledge’ prong of Whelan and the state could have introduced it to show what [the defendant’s cousin] said.” Id., 560 n.8. The fact that the defendant’s cousin made the statements instead of the defendant himself, it is important to note, did not strip the declarant of personal knowledge of the statements he had heard.

In this case, we are satisfied that Carr’s written statement to the police was sufficiently reliable for substantive use. At trial, Carr testified that he had known the defendant and Britton for approximately two years before the summer of 1998. Carr described himself as friendly with both men and testified that they all had socialized and worked together. He testified that he had frequented Lucky’s Cafe in New London, where the victim sought to purchase crack cocaine on August 23, 1998. He also testified that he had visited the defendant’s apartment on Michael Road. According to Carr’s statement to the police, the incriminating statements by Brit-ton and the defendant in late August or September, 1998, were made as all three men rode in the back of a company van upon returning from a work site.

We therefore conclude that Carr had enough personal knowledge of the facts and circumstances surrounding the statements he heard for the court properly to rule that his written statement was rehable for substantive use. See State v. Grant, supra, 221 Conn. 100-102. Furthermore, a detective testified at trial that Carr had agreed to be interviewed at his attorney’s office concerning the victim’s homicide. The detective also testified that Carr had scrutinized his written statement, made several changes to it and met with his attorney alone for approximately twenty minutes before agreeing to sign the statement.

B

The defendant next argues that the statement attributed to Britton, recounted within Carr’s written statement, was improperly admitted into evidence against the defendant as a dual inculpatory statement and an adoptive admission. We disagree.

Our Supreme Court has “expressly adopted the definition of statement against penal interest contained in Fed. R. Evid. 804 (b) (3).” State v. Schiappa, 248 Conn. 132, 147, 728 A.2d 466, cert. denied, 528 U.S. 862, 120 S. Ct. 152, 145 L. Ed. 2d 129 (1999). Rule 804 (b) (3) of the Federal Rules of Evidence “carves out an exception to the hearsay rule for an out-of-court statement made by an unavailable declarant if the statement at the time of its making ... so far tended to subject the declarant to . . . criminal liability . . . that a reasonable person in the declarant’s position would not have made the statement unless believing it to be true.” (Internal quotation marks omitted.) State v. Schiappa, supra, 147-48. In Schiappa, the Supreme Court further recognized that “trustworthy, dual inculpatory statements fall squarely within the purview of Fed. R. Evid. 804 (b) (3).” State v. Schiappa, supra, 149. “In determining the trustworthiness of a statement against penal interest, the court shall consider (A) the time the statement was made and the person to whom the statement was made, (B) the existence of corroborating evidence in the case, and (C) the extent to which the statement was against the declarant’s penal interest.” Conn. Code Evid. § 8-6 (4).

At trial, Britton exercised his rights under the fifth amendment and therefore was unavailable to testify. There is also no doubt that Britton’s statement; see footnote 4; was the type of statement that would subject him to criminal liability. With respect to the reliability of Britton’s statement, we must consider its timing, its audience and the circumstances in which it was made. As set out in part II A, Britton’s statement was made a short time after the victim’s homicide, in the company of his friend, Carr, and the defendant, as the three sat in close quarters in the back of a work van. We agree with the court’s ruling, based on the totality of the circumstances, that Britton’s statement was reliable.

Moreover, the facts recounted in Britton’s statement were corroborated by the testimony produced at trial. In his statement, Britton asserted that the victim had attempted to purchase drugs from him at Lucky’s Cafe. At trial, a detective testified that telephone records indicated that the victim had called a private line to Lucky’s Cafe at 1:29 a.m. on August 23,1998. The number dialed matched the telephone number found on the Lucky’s Cafe business card in the Saab. Britton also stated that he drove with the victim in the victim’s Saab to the defendant’s apartment on Michael Road, attacked him in the parking lot, and killed and buried him, with the defendant’s aid, in Bates Woods. He then described their attempt to dump the car into the Waterford pond. In fact, the abandoned Saab, belonging to the victim’s father, was found partially submerged in the Waterford duck pond on the morning of August 23, 1998. The victim’s remains were found in Bates Woods. We therefore conclude that the court properly admitted Britton’s statement into evidence as a dual inculpatory statement.

We also conclude that it was proper to admit Britton’s statement into evidence as an adoptive admission against the defendant. “An admission may be introduced only against the party who made the admission. ... An accused can be held to have adopted a statement as his own, however, when his conduct indicates that he assents to or adopts a statement made by another person. . . . Even if a defendant makes no response to a statement made within his hearing, that statement may be introduced when the circumstances . . . naturally called for a reply from him if the statement was not true. . . . Such an admission by one cries out for denial by the other.” (Citations omitted; internal quotation marks omitted.) State v. Reddick, 36 Conn. App. 774, 785-86, 654 A.2d 761, cert. denied, 232 Conn. 922, 656 A.2d 671 (1995).

In this case, Carr’s statement reflects that Britton and the defendant each contributed to the story surrounding the victim’s homicide. See footnote 4. When Britton spoke alone, the nature of his statement naturally called for a denial from the defendant. For instance, according to Carr, Britton stated that “after [we] killed the guy, [we] dragged his body into the woods. [We] tried to bury his body but the ground was too cold, so [we] took some type of tarp and covered his body.” The defendant’s contributions to the story reflect a willingness to adopt Britton’s statement as his own. He had every opportunity to deny his involvement in the killing of the victim, but failed to do so. Any reasonable person listening to Britton’s description of the homicide and the concealment of the victim’s body would have done so.

C

The defendant’s final argument is that the admission of Carr’s prior inconsistent statement violated the defendant’s sixth amendment right to confront the witnesses against him. Specifically, he argues that he could not cross-examine Carr in any meaningful way about his written statement because Carr claimed not to remember most of its contents. The defendant also argues that admitting Britton’s statement into evidence, as part of Carr’s Whelan statement, violated the defendant’s constitutional right of confrontation. We disagree.

“The sixth amendment to the [United States] constitution guarantees the right of an accused in a criminal prosecution to confront the witnesses against him. . . . The primary interest secured by confrontation is the right to cross-examination . . . and an important function of cross-examination is the exposure of a witness’ motivation in testifying. . . . Cross-examination to elicit facts tending to show motive, interest, bias and prejudice is a matter of right and may not be unduly restricted. . . . However, [t]he [confrontation [c]lause guarantees only an opportunity for effective cross-examination, not cross-examination that is effective in whatever way, and to whatever extent, the defense might wish. . . . Every reasonable presumption should be made in favor of the correctness of the court’s ruling in determining whether there has been an abuse of discretion.” (Internal quotation marks omitted.) State v. Eaton, 59 Conn. App. 252, 265, 755 A.2d 973, cert. denied, 254 Conn. 937, 761 A.2d 763 (2000).

With respect to Carr, it is important to note that although he claimed in his testimony to have lapses of memory as to some matters, he was able to testify about other matters that he did remember. On direct examination, Carr claimed that he never gave a statement to the police. He testified that he did not read the statement that the police gave him to sign on February 16, 1999. Although Carr did claim a loss of memory at certain times on direct examination, the thrust of his testimony was that he never said what was attributed to him in the written statement.

On cross-examination, defense counsel immediately attacked Carr’s motives and interests by inquiring into the charges that were pending against Carr as of February 16, 1999, and how those charges were resolved subsequent to his meeting with the police. Carr also testified that his act of signing the statement represented only an attempt to stop the police from bothering him and that the statement merely restated facts that the police purportedly knew already about the killing of the victim.

As for the contents of his written statement, Carr confirmed on cross-examination that, as described in the statement, he had seen television newscasts about the victim’s death. He confirmed the truth of the statement’s assertion that he went to work for a cleaning company for one day in the summer of 1998, possibly in late August or September. He confirmed as true the statement’s assertion that he worked with Smith and a supervisor named Todd. He also confirmed that he did in fact drink beer on that day, as described in the statement. As soon as defense counsel asked Carr, however, to confirm the truth of the assertion that he had heard a conversation in the back of the company van about a homicide, Carr claimed to have a loss of memory.

Defense counsel was presented with, and used, plenty of ammunition to attack Carr’s credibility and truthfulness on cross-examination. Because the jury had reason to doubt the sincerity of Carr’s testimony in court, it had reason to doubt the value of an out-of-court statement attributed to him. See id., 267. “The most successful cross-examination at the time the prior statement was made could hardly hope to accomplish more than has already been accomplished by the fact that the witness is now telling a different, inconsistent stoiy.” (Internal quotation marks omitted.) Id., 268. “While [t]he denial of all meaningful cross-examination into a legitimate, area of inquiry fails to comport with constitutional standards under the confrontation clause . . . that is not the situation in this case.” (Internal quotation marks omitted.) Id., 266. We conclude that the defendant had a meaningful opportunity to cross-examine Carr in satisfaction of the sixth amendment right to confrontation.

The defendant also challenges the admission of Brit-ton’s statement, contained in Carr’s Whelan statement, as violative of the defendant’s sixth amendment right of confrontation. We conclude that Britton’s statement did not contravene the defendant’s constitutionally protected right to confront the state’s witnesses against him.

“The United States Supreme Court has held that the confrontation clause of the sixth amendment . . . does not necessarily bar the admission of hearsay statements against a criminal defendant. . . . Certain hearsay statements are admissible if (1) the declarant is unavailable to testify, and (2) the statement bears adequate indicia of reliability. . . . Evidence admitted under such an exception thus is presumed to be so trustworthy that adversarial testing would add little to its reliability.” (Citations omitted; internal quotation marks omitted.) State v. Schiappa, supra, 248 Conn. 158-59.

Our analysis in part IIB of this opinion on the admissibility of Britton’s statement settles the matter. We concluded that the requirements for a dual inculpatory statement were satisfied in this case under the hearsay exception for a statement against penal interest. Therefore, the defendant’s confrontation clause claim with respect to Britton’s statement is without merit.

We therefore conclude that the court did not abuse its discretion by admitting Carr’s prior inconsistent statement for substantive use pursuant to Whelan.

The judgment is affirmed.

In this opinion the other judges concurred.

       We note that “[t]he right to counsel is guaranteed by both the fifth and sixth amendments to the United States constitution. The sixth amendment accords the right of an accused to the assistance of counsel in all criminal prosecutions; this right attaches only at or after the time that adversary judicial proceedings have been initiated . . . .” (Internal quotation marks omitted.) State v. Jones, 205 Conn. 638, 647-48, 534 A.2d 1199 (1987). “[T]he fifth amendment, unlike the sixth amendment, contains no explicit language providing for the right to counsel. The United States Supreme Court, however, held in [Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966)] that such a right was necessary to protect an accused’s fifth amendment privilege against compelled self-incrimination during custodial interrogation. . . . Thus, [t]he Sixth Amendment right to counsel is analytically distinct from the Fifth Amendment right created by Miranda.” (Citations omitted; internal quotation marks omitted.) State v. Jones, supra, 648-49. Here, the defendant’s right to counsel claim is based on the sixth amendment, not the fifth amendment.

       The defendant raised two additional arguments contingent on our concluding that his right to counsel attached at the time of his arrest. We conclude, however, that it did not. Therefore, we do not address those arguments.

       Abin “A.B.” Britton and Jeffrey Smith were codefendants at trial.

       Carr’s statement was a description of what he heard the defendant and Britton say about the victim’s homicide. Carr stated that the conversation took place sometime in the summer of 1998, possibly late August or September, when he, the defendant and Britton sat in the back of a company van while returning from a work site. According to Carr’s statement, Britton began by describing how the victim came into Lucky’s Cafe, attempting to purchase some crack cocaine. Britton said that he drove with the victim in the victim’s Saab to the defendant’s apartment in New London to execute a drug sale. The defendant, Smith and an individual nicknamed “Nito” followed them in a separate car. Carr’s statement provided, in relevant part, as follows, referring to Britton by his nickname, A.B., and the defendant by his nickname, Coyote: “A.B. and Coyote then said that after they beat the guy, they put the guy back inside the Saab and drove him to Bates Woods behind the dog pound. A.B. and Coyote then said that once they arrived at Bates Woods parking lot, they took the guy out from the car and again started to beat on him. A.B. started to brag and said that he took a pole and placed it into the guy’s mouth. A.B. said that he really jammed the pole down his throat and then twisted the pole to break his neck. A.B. said that prior to doing this with the pole, the guy was still alive but after he did this, the guy died immediately.”

       Substantive use of Carr’s prior inconsistent statement allowed the jury to consider whether Britton and the defendant actually made the statements attributed to them in Carr’s statement. In other words, the truth of Carr’s statement, “A.B. and Coyote then said . . .” was that Britton and the defendant actually said what had been attributed to them by Carr in his prior statement. Substantive use of Britton’s statement is a separate issue that we address in part H B of this opinion.


author: BISHOP, J.

text:
    GWENDOLYN FISHER v. ROBERT G. ZBOROWSKI
    (AC 20835)
    Schafler, Bishop and McLachlan, Js.

      Argued January 6
    officially released May 18, 2004

      Gary J. Strickland, for the appellant (plaintiff).

      Alan L. Robertson, for the appellee (defendant).
   Opinion

BISHOP, J.

This appeal concerns evidentiary and postverdict rulings made by the trial court in the course of a dental malpractice action tried before a jury. The plaintiff, Gwendolyn Fisher, commenced this action against the defendant, Robert G. Zborowski, an oralmaxillofacial surgeon, to recover damages for injuries she allegedly sustained as a result of the improper placement of a dental implant. She appeals from the judgment of the court rendered after it denied her motion to set aside the jury’s verdict in favor of the defendant. On appeal, the plaintiff contends that the court improperly (1) limited her direct examination of one of her expert witnesses, (2) denied her the opportunity to cross-examine adequately the defendant’s expert witness and (3) denied her motion to set aside the verdict, which she claims was against the weight of the evidence. We affirm the judgment of the trial court.

The jury reasonably could have found the following facts. At the time of the trial, the plaintiff was thirty-five years old. Prior to her treatment with the defendant, she had a history of dental maladies. At age thirteen, she underwent at least three root canal procedures involving several teeth, including tooth number nineteen. As part of those procedures, the contents of the affected teeth were extracted. Shortly thereafter, the plaintiff visited a hospital with complaints of dental pain. There, she was informed that areas of her mouth had become infected because the cavities of the teeth involved in the root canal procedures had not been coated with a protective substance. The plaintiff continued to see a dentist for regular cleanings until she was eighteen years old. She did not, however, see a dentist again for at least twelve years.

During that hiatus from treatment, the plaintiff noticed that her teeth, specifically her molars, had begun to “decay from the inside out and break apart and break off.” She became increasingly unhappy with the condition and appearance of those teeth and, ultimately, consulted a general dentist in August, 1994. That general practitioner, in turn, referred the plaintiff to the defendant.

Accordingly, in September, 1994, the plaintiff discussed various restorative dental procedures with the defendant and elected a treatment plan whereby eleven of her teeth, including tooth number nineteen, would be extracted and replaced by dental implants. On November 22, 1994, the defendant performed the planned extractions. Thereafter, in preparation for placing the implants in the sites of the extracted teeth, the defendant took a panoramic X ray of the plaintiffs mouth to locate her inferior alveolar nerve, a branch of the mandibular nerve, positioned in her lower left jaw. T. Stedman, Medical Dictionaiy (25th Ed. 1990) p. 1039. He then placed a plastic, transparent template, which was provided by the implant manufacturer, over the X ray so that he could identify an implant length that would be long enough to have sufficient strength and durability, but short enough so as not to impinge the inferior alveolar nerve.

On April 13, 1995, the defendant performed an implant procedure during which he placed a sixteen millimeter implant in the site of extracted tooth number nineteen. A few days later, the plaintiff complained of numbness, pain and discomfort in her lower left jaw. When the plaintiff returned to see the defendant on April 21, 1995, the defendant took another panoramic X ray of her jaw. From that X ray, it appeared to him that the implant at tooth number nineteen had intersected the top line of the mandibular nerve canal. Accordingly, the defendant removed the implant on April 24, 1995. After the effects of the anesthesia from that procedure wore off, the plaintiff noticed that the pain and discomfort in her jaw had subsided. She claimed, however, that the numbness she had experienced in the lower left jaw remained. The defendant continued to treat the plaintiff until May, 1996. One month later, the plaintiff commenced an alternative treatment plan with a periodontist, David Gelb, and a dentist, Frederick Landry. That additional treatment involved extensive bridge and crown work, which included crown lengthening procedures in the area of tooth number nineteen.

In April, 2000, the plaintiff filed an amended one count complaint against the defendant, alleging medical malpractice. In turn, the defendant filed an answer, denying negligence in any of the ways alleged by the plaintiff. At trial, the jury returned a general verdict for the defendant. In a posttrial motion, the plaintiff sought to set the verdict aside and sought a new trial. The court denied the plaintiffs motion, accepted the jury’s verdict and rendered judgment for the defendant. This appeal followed.

I

The plaintiff makes two evidentiary claims on appeal. She claims that the court improperly (1) refused to allow direct examination of one of her experts concerning techniques that were available in 1995 to determine an implant size that would not impinge the inferior alveolar nerve and (2) refused to permit cross-examination of the defendant’s expert as to the basis of his opinion that nerve injury is a normal risk of that dental implant procedure. We address each of those arguments in turn.

A

The plaintiffs first claim is that the court improperly precluded her from questioning Gelb, one of her expert witnesses, concerning the methods of measurement the defendant could have utilized in 1995 to prevent the implant at tooth number nineteen from striking the inferior alveolar nerve. She argues that the proffered testimony would have informed the jury of the wide range of measurement alternatives that could have been employed by the defendant to prevent her injuries. She further contends that because Gelb would have testified that the use of those available means would have been consonant with the requisite standard of care, the court’s exclusion of that evidence was improper and, thus, she is entitled to a new trial.

The following additional facts and procedural history are relevant to our disposition of the plaintiffs claim. At trial, Lawrence Wagenberg, a periodontist, was the first expert to testify for the plaintiff with regard to implant dentistry. During direct examination, Wagenberg was asked about the preoperative measures that were available in 1995 to prevent an implant from striking the inferior alveolar nerve during placement. The defendant’s counsel objected to that line of questioning on the ground of irrelevancy, arguing, in essence, that the precautions available in 1995 to prevent that injury were irrelevant because those that satisfied the standard of care had not yet been established by the plaintiff. The court overruled the objection, stating: “I understand that, but I’m assuming that’s going to be forthcoming.” Wagenberg then testified that the use of computerized axial tomography (CAT) scans, diagrams, panoramic X rays, intraoperative gauges and periapical X rays all were preoperative measures that were available in 1995 to prevent an implant from impinging the inferior alveolar nerve.

Following Wagenberg’s testimony, the plaintiff called Gelb to testify. Gelb’s testimony concerned, inter alia, the standard of care in 1995. During the plaintiffs direct examination of Gelb, he was asked about the range of available preoperative measures that the defendant could have employed to prevent the plaintiffs injury from occurring. The court limited Gelb’s response to those preoperative measures that a physician could take in 1995 to prevent injury to a patient’s inferior alveolar nerve. Gelb then testified that the use of periapical X rays, intraoperative depth gauge measurements, millimeter rulers, cross-sectional CAT scans and shorter implants could have prevented such an injury. Gelb was not, however, permitted to give testimony concerning those preoperative measures he preferred in his practice.

The plaintiff claims on appeal that the court abused its discretion when it precluded her from exploring with Gelb the range of available preoperative measures that the defendant could have employed to prevent an impingement of her inferior alveolar nerve. We are not persuaded.

We begin our analysis of the plaintiffs claim by setting forth the well established standard by which we review the court’s determinations concerning the admissibility of evidence. “[T]he trial court has wide discretion in ruling on the admissibility of expert testimony and, unless that discretion has been abused or the ruling, involves a clear misconception of the law, the trial court’s decision will not be disturbed.” (Internal quotation marks omitted.) State v. Henry, 72 Conn. App. 640, 654, 805 A.2d 823, cert. denied, 262 Conn. 917, 811 A.2d 1293 (2002).

In the present case, the record belies the plaintiffs claim that she was not able to question Gelb about the available methods of measurement. The record reveals that the plaintiff was precluded from questioning Gelb only about the preoperative methods of measurement he preferred to use in his practice in 1995. Because such testimony would not have aided the trier of fact in its determination of whether the defendant’s use of panoramic X rays violated the standard of care, the court did not improperly exclude it on the ground of irrelevance. See id. (“ ‘A predicate to the admissibility of expert testimony is its relevance to some issue in the case. Relevant evidence is evidence that has a logical tendency to aid the trier in the determination of an issue.’ ”). Accordingly, the plaintiffs claim is unpersuasive.

B

The plaintiff next claims that she is entitled to a new trial because the court improperly denied her the opportunity to cross-examine fully the defendant’s expert witness, Alfred Nemerich. Specifically, she contends that the court improperly refused to allow her to explore the basis of Nemerich’s opinion that a nerve injury of the type allegedly suffered by the plaintiff could have occurred in the absence of negligence. The plaintiff maintains that Nemerich’s response to that question was essential to her claim that the defendant deviated from the applicable standard of care. The plaintiff argues that Nemerich would have testified that he did not know whether the nerve injuries he had seen and on which he had relied to form the opinion at issue were the result of deviations from the standard of care or simply were normal consequences of the procedure. The plaintiff further contends that without that explanation, “the jury was left with the impression that permanent nerve injury was simply a normal consequence of the implant procedure, one that commonly occurs without negligence on the part of the doctor” and, thus, the jury “would be justified in not holding the defendant hable in this case.” Because we conclude that the plaintiff has failed to demonstrate the likelihood that the testimony at issue would have changed the outcome of the trial, we need not review the propriety of the court’s evidentiary ruling.

“[Our Supreme Court has] often stated that before a party is entitled to a new trial because of an erroneous evidentiary ruling, he or she has the burden of demonstrating that the error was harmful. . . . When determining that issue in a civil case, the standard to be used is whether the erroneous ruling would likely affect the result [of the trial].” (Internal quotation marks omitted.) Ludington v. Sayers, 64 Conn. App. 768, 778, 778 A.2d 262 (2001). Thus, the determinative question is whether, had the jury been presented with the testimony at issue, it likely would have returned a different verdict. Our close inspection of the record leads us to answer that question in the negative.

It is axiomatic that in a medical negligence action, the plaintiff must prove “(1) the requisite standard of care for treatment, (2) a deviation from that standard of care, and (3) a causal connection between the deviation and the claimed injury.” (Internal quotation marks omitted.) Carusillo v. Associated Women’s Health Specialists, P.C., 79 Conn. App. 649, 654, 831 A.2d 255 (2003). In the present case, even if we assume arguendo that the testimony at issue was relevant to the plaintiffs claim that the defendant deviated from the applicable standard of care, it did not bear on the question of causation. Regarding causation, we note that the juiy was presented with conflicting evidence. Although the jury heard testimony that, if credited, would have been sufficient to establish the required causal connection, the jury also had ample evidence that rebutted that connection. That evidence included testimony that the plaintiff had a history of poor dental health and lack of treatment, that the dental procedures the plaintiff underwent after those performed by the defendant could have led to an injury that exhibited symptoms similar to those allegedly suffered by the plaintiff and testimony that some of the plaintiffs alleged injuries would not logically stem from an impingement of the inferior alveolar nerve. Thus, even if the plaintiff had been able to erode the defendant’s claim that her alleged injury did not arise from his negligence, the jury still reasonably could have returned a verdict in favor of the defendant on the basis of a lack of causation. We conclude, therefore, that the court’s ruling regarding the plaintiffs cross-examination of Nemerich was not likely to affect the trial’s outcome. As such, that claim, too, must fail.

II

The plaintiffs final claim is that the court improperly denied her motion to set aside the verdict because the verdict in favor of the defendant was against the weight of the evidence. We disagree.

We begin by noting that “we review the court’s denial of a motion to set aside the verdict under an abuse of discretion standard. The court is vested with wide discretion in such matters, and we will not disturb the court’s decision unless it has abused that discretion. . . . Generally, the court should not set aside a verdict where the jury reasonably could have found as it did from the evidence before it. The court’s refusal to set aside a verdict is entitled to great weight, and every reasonable presumption should be indulged in favor of its correctness. . . . On appeal, the evidence in the record is to be considered in a light most favorable to the parties who prevailed at trial.” (Citations omitted; internal quotation marks omitted.) Mojica v. Benjamin, 64 Conn. App. 359, 361-62, 780 A.2d 201 (2001).

Our review of the record discloses that there was ample evidence in support of the juiy’s verdict. As noted, the jury heard testimony challenging the causal connection between the alleged negligence of the defendant and the plaintiffs alleged injuries. In light of that testimony, we conclude that a reasonable jury, in determining the facts and inferences that reasonably could be drawn from them, could have found that the defendant’s actions did not cause the symptoms that the plaintiff attributed to the defendant’s placement of the implant. Because there was sufficient evidence to support the jury’s verdict in favor of the defendant, we further conclude that the court did not abuse its discretion in denying the plaintiffs motion to set it aside. As a consequence, the plaintiffs final claim also is unavailing.

The judgment is affirmed.

In this opinion the other judges concurred.

       A dental implant is a metal cylinder that is placed beneath the soft tissues and in contact with, or embedded into, the jawbone for the purpose of supporting an artificial tooth. Stedman’s Medical Dictionary (25th Ed. 1990) p. 770.

       Tooth number nineteen is the first molar in the lower left jaw.

       The plaintiff alleged that the defendant had caused her to sustain, inter alia, “injuries of a severe and permanent nature including paresthesia and dysthesia of her lower left jaw, numbness and loss of feeling in her lower left jaw, left cheek and lower lip, difficulty chewing, headaches, and drooling out of the left side of her mouth.” She specifically claimed that those injuries were caused by the defendant in “one or more the following ways: (a) IN THAT he improperly placed the implant at #19 against the nerve; (b) IN THAT he failed to accurately locate the inferior alveolar nerve prior to placing the implant; (c) IN THAT he failed to refer the plaintiff to an appropriate specialist; (d) IN THAT he failed to take appropriate radiographic studies to determine the safe and proper placement of the implant so as not to impinge said nerve; (e) IN THAT he failed to use appropriate measurements, gauges and/or devices to determine the safe and proper placement of the implant so as not to impinge the inferior alveolar nerve; (f) IN THAT he failed to timely respond to the plaintiffs complaints of pain and numbness following surgery by having her return to the office for re-examination; (g) IN THAT he failed to render timely treatment to the plaintiff following surgery, such as removing the implant, before permanent nerve injury could occur; or (h) IN THAT he used an implant that was too big.”

       Our review of the record reveals that Gelb in fact was permitted to testify in that regard. See part I A.

       In response to a question by the plaintiff, Nemerich, an oral-maxillofacial surgeon, testified that an injury to the inferior alveolar nerve was a well known risk of a dental implant procedure. The plaintiff sought to challenge that testimony by exploring the basis for Nemerich’s opinion. She specifically sought to ask Nemerich if he believed that this type of nerve injury occurs in the absence of negligence and, if so, how he came to form that opinion. The court, however, refused to allow that line of questioning.

       The following exchange, in relevant part, occurred during the plaintiffs voir dire of Nemerich:
      “[The Plaintiffs Counsel]: The question is, doctor, how much permanent nerve injuries have you seen in the nature that [the plaintiff] has?
      “[The Witness]: I don’t know.
      “[The Plaintiffs Counsel]: And in any one of those, have you investigated, or were they a maloccurrence opposed to the result of a deviation from a standard of care?
      “[The Witness]: None before this, no.
      “[The Plaintiffs Counsel]: So, you have no basis on which to say that injuries of this nature are a normal risk of the procedure that can happen in the absence of negligence, do you?
      “[The Witness]: Well, yes I do.
      “[The Plaintiffs Counsel]: From past experience, you’re saying?
      “[The Witness]: You have — it’s certainly very possible to have this type of injury without any malpractice or negligence.
      “[The Plaintiffs Counsel]: But you have never seen one, correct?
      “[The Witness]: No, I didn’t say that. You asked me if I ever investigated them. I never investigated patients that have been referred to me, and I think we discussed this at the deposition, personally referred to me. This is a combination of a problem, and you want me to solve it, and I’m not going to go back and, you know, and do due diligence as such as we’ve done here.
      “[The Plaintiffs Counsel]: Not asking for an explanation of why you don’t know, but the point is you do not know whether the nerve injuries that you have seen were the result of a deviation of the standard of care or not because you haven’t investigated it, correct?
      “[The Witness]: Well, that’s true.”

       Specifically, the jury heard testimony indicating that (1) the plaintiffs childhood dentist had “butchered” her teeth, (2) nerve damage could result from crown lengthening procedures, (3) shooting pain could result from crown work, (4) drooling and shooting pain do not result from an injury to the inferior alveolar nerve, (5) the plaintiff had reported to Gelb that she experienced pain in her lower jaw, not numbness and (6) the first time the plaintiff experienced shooting pain was after she was fitted for a bridge.


text:
    MARY E. CALO-TURNER v. WILLIAM TURNER
    (AC 23783)
    Lavery, C. X, and SchaUer and Bishop, Js.

      Argued February 10
    officially released May 18, 2004

      Roberts. Kolesnik, Sr., for the appellant (defendant).

      Kenneth J. Bartschi, with whom, were Karen L. Dowd, and, on the brief, Rosemary E. Giuliano, for the appellee (plaintiff).
   Opinion

BISHOP, J.

In this marital dissolution appeal, the defendant, William Turner, challenges the financial orders entered by the trial court in its judgment dissolving the parties’ marriage. The defendant alleges that the court (1) incorrectly concluded that the parties were equally responsible for the breakdown of the marriage (2) abused its discretion by awarding the plaintiff, Mary E. Calo-Tumer, $300 per week in alimony and (3) abused its discretion by awarding the plaintiff one half of the 66,176 shares of Sycamore Networks, Inc., stock that were held solely in the defendant’s name. We affirm the judgment of the trial court.

The following facts and procedural history are relevant to our discussion of the issues on appeal. The parties were married on February 24,1990. The plaintiff, who was bom in 1957, was diagnosed in 1998 with a life threatening illness. Confined to a wheelchair, she has difficulty with speech and motor functioning and requires assistance with cooking and cleaning. As of the date of the dissolution, she had a weekly income, not including pendente lite alimony, of $324 in social security disability payments and rental income, and she had weekly expenses totaling $795. Her assets included a bank account with a balance of $2527, a life insurance policy with a cash surrender value of $4449.94, a 401 (k) plan with a value of $31,203 and another worth $2211.20. She also had $6000 in liabilities, not including legal fees owed to trial counsel.

Bom in 1955, the defendant was, on the date of dissolution, employed by Sycamore Networks, Inc., and had a net weekly income of $1308, assets of approximately $689,000 and liabilities of approximately $54,000. His assets included his vested interest in 66,176 shares of Sycamore Networks, Inc., stock and options to purchase an additional 6000 shares.

In its judgment dissolving the parties’ marriage, the court made numerous findings, including a determination that the parties had separated on December 1,2000, and that the parties shared equal culpability for the breakdown of the marriage. The court ordered the defendant to pay to the plaintiff $300 per week in alimony, and the court divided the 66,176 shares of Sycamore Networks, Inc., stock equally between the parties, leaving the stock options solely in the defendant’s name. This appeal followed.

I

The defendant first claims that the court incorrectly found that the parties were equally at fault for the breakdown of the marriage. We decline to review his claim.

To respond to the defendant’s claim, we are required to determine whether there was a basis from which the trial court could have found that the parties were equally at fault for the breakdown of the marriage. See Jewett v. Jewett, 265 Conn. 669, 691, 830 A.2d 193 (2003). The defendant, however, has failed to provide this court with a complete transcript of the trial proceedings. Additionally, the trial court was not asked to articulate its finding in this regard. In light of the inadequate record, we are not able to assess the defendant’s claim.

It is well established that “[i]t is the responsibility of the appellant to provide an adequate record for review as provided in [Practice Book §] 61-10. . . . Conclusions of the trial court cannot be reviewed where the appellant fails to establish through an adequate record that the trial court incorrectly applied the law or could not reasonably have concluded as it did . . . .” (Citations omitted; internal quotation marks omitted.) Bradley v. Randall, 63 Conn. App. 92, 95-96, 772 A.2d 722 (2001).

In its memorandum of decision, the court did not elucidate its reasoning or the basis for its determination that the parties were equally at fault for the breakdown of the marriage. Furthermore, as noted, the defendant has provided this court only with exceipts of his trial testimony and not the complete trial transcript. “[B]ecause the defendant failed to present an adequate record for review, [w]e . . . are left to surmise or speculate as to the existence of a factual predicate for the trial court’s rulings. Our role is not to guess at possibilities, but to review claims based on a complete factual record developed by the trial court. . . . Without the necessary factual and legal conclusions furnished by the trial court, either on its own or in response to a proper motion for articulation, any decision made by us respecting this claim would be entirely speculative.” (Internal quotation marks omitted.) Knutson Mortgage Corp. v. Bernier, 67 Conn. App. 768, 773, 789 A.2d 528 (2002). Accordingly, we decline to review the defendant’s claim.

II

The defendant next claims that the court abused its discretion in awarding the plaintiff $300 per week in alimony. Specifically, he argues that the court failed to consider that he had provided the plaintiff with a mortgage free residence that had a monthly rental value of approximately $1800. We disagree.

The following additional facts are relevant to our discussion of that issue. On September 15, 2000, the court approved a stipulation by the parties that the plaintiff would vacate the marital residence and that the defendant, in turn, would deposit $250,000 in trust for the plaintiff to purchase a new home. To secure the funds needed to effectuate the agreement, the defendant sold several shares of stock held in his name. Pursuant to the parties’ agreement, the plaintiff vacated the marital residence on December 1, 2000, in conjunction with her purchase of a residence for $192,000 on Green Hill Road in Middlebury. The balance of the $250,000 was utilized for the payment of taxes and homeowner’s insurance for the plaintiffs new residence. As stipulated, the parties considered that residence to be marital property subject to equitable distribution by the court in conjunction with the parties’ marital dissolution.

Pursuant to the judgment orders of December 6,2002, the plaintiff was awarded the residence on Green Hill Road, and the defendant retained the residence at Burr Road in the Higganum section of Haddam. As noted, the court ordered the defendant to pay the plaintiff $300 per week in alimony. In making its alimony order, the court rejected the defendant’s argument that the amount of alimony ordered should be reduced due to the fact that he had provided the funds for a new mortgage free residence for the plaintiff and that the plaintiffs residence allegedly had a fair market rental value of approximately $1800 per month.

“The standard of review in family matters is that this court will not disturb the trial court’s orders unless it has abused its legal discretion or its findings have no reasonable basis in fact. ... It is within the province of the trial court to find facts and draw proper inferences from the evidence presented. . . . [E]very reasonable presumption will be given in favor of the trial court’s ruling, and [n]othing short of a conviction that the action of the trial court is one which discloses a clear abuse of discretion can warrant our interference. ... In determining whether there has been an abuse of discretion, the ultimate issue is whether the court could reasonably conclude as it did. . . . Accordingly, it is only in rare instances that the court’s decision will be disturbed.” (Citations omitted; internal quotation marks omitted.) Rosato v. Rosato, 77 Conn. App. 9, 13, 822 A.2d 974 (2003).

Our careful review of the record leads us to conclude that the court did not abuse its discretion in its alimony order. In its memorandum of decision, the court noted that in fashioning its alimony order, it reviewed the statutory guidelines as established by General Statutes § 46b-82. Additionally, the court noted that it had examined thoroughly the parties’ financial situation, the length of the marriage, the health of the parties and the cause for the breakdown of the marriage. From the record, we note, as well, that the financial affidavits filed by the parties plainly reveal that the plaintiff had significantly fewer assets and less income and earning capacity than did the defendant. Furthermore, as noted by the court at the time of the marital dissolution hearing, the plaintiff was receiving social security disability income and was confined to a wheelchair as a result of her debilitating illness, and she required assistance to carry out her routine daily activities. Finally, whether or not the plaintiffs residence had a monthly rental value and required no mortgage payments by the plaintiff, her affidavit clearly showed that she operated with a monthly budget deficit. Consequently, the court’s alimony order was not an abuse of discretion.

Ill

The defendant last claims that the court improperly awarded the plaintiff one half of the 66,176 shares of Sycamore Networks, Inc., stock that was held solely in his name. We disagree.

The following additional facts are relevant to our discussion of that issue. In July, 1999, the defendant was affiliated with Sirocco Systems (Sirocco) as an independent contractor. While an independent contractor, he purchased 15,000 shares of Sirocco stock under its stock option plan. On November 1,1999, as an incentive and in conjunction with the defendant becoming an employee of Sirocco, he was given an option, which he exercised, to purchase 55,000 shares of company stock, subject to a restriction that he would be required to sell that stock back to the company should he leave its employment within a stated time frame. Subsequently, on September 7, 2000, Sirocco merged with Sycamore Networks, Inc. As of the merger date, the defendant had an interest in 116,250 shares of Sirocco stock, some of which he owned outright and the balance of which were subject to the restriction regarding his continuing employment. As a result of the merger, his interest in Sirocco stock converted to approximately 79,850 shares of Sycamore Networks, Inc., stock, 28,336 of which were subject to the employment resale restriction. The defendant’s interest in those once restricted shares, however, became vested over the next two years so that by October, 2002, the defendant’s stock holdings in Sycamore Networks, Inc., were fully unrestricted. As of the date of dissolution, the defendant owned 66,176 shares of Sycamore Networks, Inc., stock outright. Additionally, he held options to purchase an additional 6000 shares through an offering made to him by the company in April, 2001. The court divided the defendant’s stock equally between the parties while permitting the defendant to retain sole ownership of the options that he had received in April, 2001, and had not yet exercised. With those additional facts as a backdrop, we now turn to the defendant’s claim regarding the division of stock.

“As a general framework, [t]here are three stages of analysis regarding the equitable distribution of each resource: first, whether the resource is property within [General Statutes] § 46b-81 to be equitably distributed (classification); second, what is the appropriate method for determining the value of the property (valuation); and third, what is the most equitable distribution of the property between the parties (distribution).” (Internal quotation marks omitted.) Bender v. Bender, 258 Conn. 733, 740, 785 A.2d 197 (2001). As noted, we review the court’s financial orders under an abuse of discretion standard. See Rosato v. Rosato, supra, 77 Conn. App. 13.

On appeal, the defendant does not dispute that the 66,176 shares of stock were marital property subject to distribution under § 46b-81. Rather, he argues that because a majority of the shares became fully vested in him after the parties separated, the court abused its discretion in awarding the plaintiff one half of the stock. He reasons that because the plaintiff did not contribute to his acquisition of that stock or to its appreciation after their separation, it was improper for the court to have assigned a portion of those postseparation assets to the plaintiff. We are not persuaded.

The defendant premises his argument on the notion that a court does not have the authority to assign property acquired by either party after separation or any part of the postseparation appreciation of an asset. Specifically, he claims that in Wendt v. Wendt, 59 Conn. App. 656, 665, 757 A.2d 1225, cert. denied, 255 Conn. 918, 763 A.2d 1044 (2000), we established a rule that a spouse is not entitled to share in assets or the appreciation of those assets that are received or earned after the date of separation. The defendant misconstrues Wendt. In that case, we found that the court did not abuse its discretion in declining to award the plaintiff the appreciated value in the defendant’s property that was acquired after the parties’ separation, but we did not determine the inverse, i.e., that it would have been an abuse of discretion for the court to have done so. Id. Indeed, in Wendt, we reiterated the general proposition that a trial court has “extensive discretion regarding financial awards in dissolution actions”; id.; and that “no single rule or formula is applicable to every dissolution case involving employee stock options.” (Internal quotation marks omitted.) Id., 667.

In the present case, the court thoroughly examined each criterion set forth in § 46b-81 (c) in awarding the plaintiff one half of the defendant’s Sycamore Networks, Inc., stock. Although the trial court in Wendt afforded great weight to one of the criteria, the spouse’s contribution to the acquisition and appreciation of an asset, the court in this case was not required to afford the same weight to that factor. See id.; Parley v. Parley, 72 Conn. App. 742, 752, 807 A.2d 982 (2002) (court need not give equal weight to each statutory factor). Under the facts of this case and for the reasons noted in part II, the stock disposition made by the court was well within the parameters of its discretion. Accordingly, the defendant’s claim must fail.

The judgment is affirmed.

In this opinion the other judges concurred.

       The defendant also claims that the court relied on fault only in formulating its orders. Aside from the court’s reference to General Statutes § 46b-81, in its decision, the court did not indicate the weight it assigned to each of the statutory factors. Absent an articulation of the § 46b-81 factors on which the court based its orders, that claim, too, is not amenable to review.

       Although the court must consider all the statutory criteria, the court is not required to make explicit findings regarding each one. Mongillo v. Mongillo, 69 Conn. App. 472, 479, 794 A.2d 1054, cert. denied, 261 Conn. 928, 806 A.2d 1065 (2002).

       To the extent that the defendant makes a claim that vested stock is not marital property, we find that claim patently without merit. It is well established that vested property is subject to distribution as of the date of dissolution. See Krafick v. Krafick, 234 Conn. 783, 797, 663 A.2d 365 (1995). Furthermore, recent decisions from our Supreme Court indicate that presently existing property rights are subject to distribution under § 46b-81. See Bender v. Bender, supra, 258 Conn. 748; Lopiano v. Lopiano, 247 Conn. 356, 371, 752 A.2d 1000 (1998) (holding that spouse’s personal injury award is marital property because it was received during marriage). Last, the defendant’s reliance on Bornemann v. Bornemann, 245 Conn. 508, 515-16, 752 A.2d 978 (1998), is misplaced, as Bornemann concerned presently existing stock options that had not been exercised, and not vested stock. Here, all of the defendant’s 66,176 shares of stock were vested as of the date of dissolution.

       From the court’s orders, it is clear, however, that the court did consider that factor, as the court declined to award the plaintiff any of the defendant’s Sycamore Networks, Inc., stock that he received after April 9, 2001.

       The defendant also claims that the court’s finding of the date of separation to be December 1,2000, was clearly erroneous. As we already have concluded that the court did not abuse its discretion by awarding the plaintiff stock that vested postseparation, we need not address that claim.