author: GRUENDEL, J.

text:
    STATE OF CONNECTICUT v. ANTHONY L. FAVOCCIA, JR.
    (AC 30266)
    DiPentima, Gruendel and Lavery, Js.

      Argued October 22, 2009
    officially released January 19, 2010

      Gary A. Mastronardi, for the appellant (defendant).

      AdamE. Mattei, special deputy assistant state’s attorney, with whom, on the brief, were John C. Smriga, state’s attorney, Jonathan C. Benedict, former state’s attorney, and Cornelius P. Kelly, senior assistant state’s attorney, for the state (appellee).
   Opinion

GRUENDEL, J.

The defendant, Anthony L. Favoccia, Jr., appeals from the judgment of conviction, rendered after a jury trial, of two counts of risk of injury to a child in violation of General Statutes § 53-21 (a) (2). He claims that the trial court abused its discretion in permitting the state to offer certain expert testimony that allegedly bolstered the credibility of the victim in the present case. We agree and, accordingly, reverse the judgment of the trial court.

From the evidence adduced at trial, the jury reasonably could have found the following facts. The events underlying the defendant’s conviction occurred in the fall of 2005 and the summer of 2006. At that time, the victim, D, was under sixteen years of age. Following the divorce of her parents when she was three years old, the victim resided with her mother, S. The victim regularly spent weekends with her father, R, pursuant to a court approved visitation schedule.

The defendant was a longtime friend of R, whom the victim had known since early childhood as “Uncle Tony.” During one of her weekend visits with R in the fall of 2005, the defendant spent the night at R’s residence. R worked an overnight shift as a 911 operator that evening. After R departed the residence and his girlfriend, M, had gone to bed, the defendant entered the victim’s bedroom and lay next to her. The defendant kissed her neck and touched her back, stomach, upper legs and buttocks. The encounter ended abruptly after approximately fifteen minutes, and the defendant told the victim that he would “[s]ee [her] tomorrow . . . .” The victim thereafter did not report that incident to her parents. She did, however, inform two classmates and close friends, J and B, of her encounter with the defendant. Although the victim instructed J and B to keep the matter secret, they encouraged the victim to report the incident to her mother.

A second incident involving the defendant and the victim occurred in the summer of 2006, during another weekend visit at R’s residence. On that particular evening, the defendant was present when R, a volunteer firefighter, left the residence to respond to a fire. At that time, the victim took a shower and then retreated to her bedroom robed in a towel. After she closed the door, the defendant suddenly entered the room. As the victim testified, “he [got] on top of me and started kissing me on my neck . . . well, first it was on the lips and then my neck. . . . [H]e was on top of me, my towel had started to come off ... I guess because of being on top of me, and it was not a relatively big towel, and he was . . . touching on my sides and everything and then . . . after maybe five, ten minutes, I told him that I needed to get dressed and that he needed to leave, so he had to get off of me.” The defendant complied with her request. The victim did not report the incident to her parents but did inform J and B of the encounter, who again encouraged the victim to report the incident to her mother. The victim falsely assured her friends that she had done so.

One year later, S finally learned of the incidents involving her daughter and the defendant. On that evening in late June or early July, 2007, S overheard the victim, J and B talking about a recent incident in which the defendant attempted to “[look] down [the victim’s] shirt . . . .” J then recounted to S the details of the victim’s two encounters with the defendant in the fall of 2005 and summer of 2006, and the victim began to cry. Shocked, S took the victim, J and B to the Stratford police department to report the incidents.

The defendant thereafter was arrested and charged, by amended information dated May 29, 2008, with one count of sexual assault in the second degree in violation of General Statutes (Rev. to 2005) § 53a-71 (a) (l), one count of sexual assault in the fourth degree in violation of General Statutes (Rev. to 2005) § 53a-73a (a) (l), and two counts of risk of injury to a child in violation of § 53-21 (a) (2). A jury trial followed. The state’s case included testimony from the victim, J and B, and two exhibits. In addition, the state presented the expert testimony of psychologist Lisa Melillo. The defense consisted of testimony from R, M and E, the victim’s high school color guard coach, as well as four exhibits. Following the close of evidence, the defendant moved for a judgment of acquittal. The court granted that motion as to the sexual assault in the fourth degree count only, concluding that the state had not proven beyond a reasonable doubt that the victim was under the age of fifteen at the time of the alleged incidents. The matter was submitted to the jury, which found the defendant guilty on both counts of risk of injury to a child. The jury further informed the court that it was “deadlocked on the issue of sexual assault in the second degree” and saw “no possibility of unanimity on this issue.” The court thus declared a mistrial on that count. The court rendered judgment accordingly and sentenced the defendant to a total effective term of twenty years incarceration, execution suspended after ten years, with twenty-five years of probation. This appeal followed.

On appeal, the defendant maintains that the court abused its discretion in permitting the state to offer certain expert testimony that vouched for and bolstered the credibility of the victim. He focuses on four colloquies between the prosecutor and Melillo in which Mel-illo allegedly conveyed to the jury her opinion that the victim had suffered sexual abuse. The state argues that the defendant’s claim is unpreserved in part, that the court did not abuse its discretion in admitting Melillo’s expert testimony and, alternatively, that the defendant has failed to demonstrate harm stemming from any abuse of that discretion. On the particular facts of this case, we agree with the defendant.

I

FACTS

The following additional facts are relevant to our review. Prior to trial, the state disclosed a list of potential witnesses. That disclosure stated in relevant part: “Lisa Melillo [to] testify as to characteristics of children who claim they were sexually abused.” At trial, the state commenced its case-in-chief with the testimony of the victim, followed by the constancy of accusation testimony of J and B. The state then called Melillo to the witness stand.

That testimony began with a recitation of Melillo’s qualifications. Melillo testified that she is “a nationally certified school psychologist, which is the highest level of certification in the practice of school psychology.” She testified that she had been a full-time school psychologist for twenty-one years. In addition, Melillo had seven years of experience as a forensic interviewer, during which she has conducted “between 150 and 160 interviews . . . .” Melillo attested to her ample training as a forensic interviewer, which involved instruction with respect to behavioral characteristics of children who claimed to have been sexually abused. Her professional training included participation in the Cor-nerHouse model in Minneapolis, Minnesota, the Beyond Finding Words program in Indianapolis, Indiana, and a related program in Huntsville, Alabama, as well as “various trainings” in Connecticut. Melillo testified that she was “very involved in the Finding Words” training program, serving as both trainee and trainer. She explained that Finding Words is “a weeklong program, and part of it is certainly the interview protocol itself, but it’s the whole aspect of child abuse, child sexual abuse, investigation stemming from the role of law enforcement, the role of child protective services, the department of children and families, being able to understand the dynamics or the behavioral characteristics of the children who experience abuse, prosecution for the children who have been abused, and so . . . it’s a full program package.” In addition, Melillo testified that she was part of the multidisciplinary investigative team at the Center for Women and Families of Greater Bridgeport.

Melillo testified that she had not interviewed or spoken with the victim in the present case. Rather, she reviewed certain police reports and a report prepared by Donna Vitulano, her colleague at the Center for Women and Families of Greater Bridgeport, who had conducted a forensic interview with the victim. Melillo testified that she watched the video of that forensic interview twice. In addition, Melillo testified that she had spoken with the prosecutor about the case prior to the commencement of trial. She opined that her testimony at trial was predicated on her review of “the documents, [her] discussions [with the prosecutor] and the DVD.”

In this appeal, the defendant challenges the admission of opinions expressed by Melillo in four separate colloquies with the prosecutor. We detail the pertinent portions of each in turn.

A

First Opinion

The first challenged opinion concerns Melillo’s testimony that the present case involved an accidental disclosure of sexual abuse:

“[The Prosecutor]: . . . What types of disclosures are there?
“[The Witness]: They can be accidental disclosures. They can be purposeful disclosures. . . .
“[The Prosecutor]: . . . What is an accidental disclosure?
“[The Witness]: An accidental disclosure is a situation where a child has decided never to talk about their experiences for various reasons, but, despite the efforts of that child to keep this ... to themselves, it has come out by an accident, by a discovery process outside of themselves.
“[The Prosecutor]: And you mentioned the term purposeful?
“[The Witness]: Purposeful disclosure is exactly what it sounds like. The child has made a conscious decision to tell someone who can stop it or do something about it. . . .
“[The Prosecutor]: Upon your review of the documents in this case and the video that you reviewed . . . would you state for us whether this was an accidental or purposeful disclosure on the part of [the victim]?
“[Defense Counsel]: Objection, Your Honor. . . . [F]or her to express an opinion as to whether it was purposeful or not, I think would run counter ... to someone in her position making a statement about the credibility of a witness in this case, which is prohibited by . . . State v. Grenier, 257 Conn. 797, 778 A.2d 159 (2001), and other cases cited in the opinion, including State v. Ali, 233 Conn. 403, 433, 660 A.2d 337 (1995), and talking about a particular alleged victim. This witness should not be allowed to answer questions about the credibility and the definition of what that person is alleged to have done, putting some kind of stamp of approval on it.
“The Court: All right. The objection is overruled. The witness is absolutely not allowed to testify as to credibility, but she is an expert and can render an opinion, and the jury is entitled to give it whatever weight [it] deem[s] appropriate based on her expertise. . . .
“[The Prosecutor]: With respect to your formal review of the documents, and I believe you said you looked at the DVD of [the victim’s forensic] interview, can you render an opinion whether her disclosure was an accidental disclosure or a purposeful disclosure?
“[The Witness]: I can render an opinion. . . . My opinion is, it was an accidental disclosure.
“[The Prosecutor]: Why is that?
“[The Witness]: Okay. When I was reviewing the videotape of [the victim], it was my understanding that she had not wanted to tell someone in a position of authority, a parental, parental figure, what was happening. She had shared it with some girlfriends in confidence, and they said they wouldn’t say anything, which we all know teenagers do .... It was my opinion, as I said before, that it was my understanding that she did not intend to tell, make a purposeful disclosure, and so she shared it with some Mends and it came out by accident.
“[The Prosecutor]: Okay. ... In addition to some of the documents that you reviewed and the DVD that you reviewed, have you had an opportunity before the trial started to speak to me about the case as well?
“[The Witness]: I have.”

B

Second Opinion

The second challenged opinion concerns Melillo’s testimony that the present case involved a delayed disclosure of sexual abuse:

“[The Prosecutor]: Is it an unusual or usual situation that a child would refrain from telling someone in authority about the abuse?
“[The Witness]: It would be—
“[Defense Counsel]: Objection, Your Honor.
“The Court: Overruled. . . .
“[The Witness]: It is my experience [that] it is more typical for them not to share it with somebody who can be in a position to intervene.
“[The Prosecutor]: Is there a term associated with that type of disclosure?
“[The Witness]: There is. . . . It’s called delayed disclosure.
“[The Prosecutor]: Okay. And what is that?
“[The Witness]: Again, we talk about the word disclosure, about it being a report or statement from the child. Oftentimes, we believe that kids just automatically tell, but what we found is, it’s just the opposite. They . . . either delay in reporting it or they never tell at all. So, the process of disclosure ... is not one event. It’s a process. And delayed disclosures are also found out, people report things that have happened in the past to them.
“[The Prosecutor]: And in this particular case, upon reviewing the documentation, as well as the DVD, what is your opinion with respect to whether or not [the victim] engaged in this process that you’re talking about, delaying her disclosure?
“[The Witness]: My opinion is [that] she did fit the characteristics of a delayed disclosure.”

C

Third Opinion

The third challenged opinion concerns Melillo’s testimony that, as a coping mechanism, the victim remained polite and respectful to the defendant following the incidents:

“[The Prosecutor]: Now, also in your training, experience, as well as the literature that exists in the field, is it possible for a child to continue to show signs of respect toward the abuser after the abuse has occurred?
“[The Witness]: Yes, that is very possible.
“[The Prosecutor]: Okay. And why is that?
“[The Witness]: Oftentimes, if a child has made a decision not to tell anybody and wants to keep this within themselves, they have to cope somehow to maintain that, and if they either act differently than what they are typically doing or don’t act in a certain way, that can bring, you know, some suspicion. So, if a person’s conduct, a child’s conduct, is typically respectful and polite to someone, if they should suddenly change, that might arouse suspicion and then being asked questions, sending a flag to somebody, saying, what’s the matter, why aren’t you nice to that person anymore. That is a coping method to accommodate keeping that inside them.
“[The Prosecutor]: And did you see any evidence of that in your review of the documentation and, or, the DVD?
“[Defense Counsel]: Objection, Your Honor. It goes to . . . what’s in the mind of the . . . person who is being talked about, and it reflects—
“The Court: He said documentation as well as the DVD, [defense counsel]. Overruled. She is an expert rendering an opinion, and I’m sure you will be cross-examining her on her opinions.
“[Defense Counsel]: It goes to the credibility issues, Your Honor.
“The Court: It does not, [counsel]. It is an opinion.
“[The Prosecutor]: Miss Melillo? . . .
“[The Witness]: [A]s I viewed the videotape, again ... I saw her talk about how she, you know, was raised to be polite and respectful and wasn’t going to change that behavior ... in a situation like that.”

D

Fourth Opinion

The fourth and final challenged opinion concerns Melillo’s testimony that, as a coping mechanism, the victim attempted to make herself unattractive to the defendant:

“[The Prosecutor]: Have you . . . ever encountered in your dealings as a forensic interviewer, as well as a school psychologist, behavioral issues or behaviors that young ladies may engage in to address issues of their contact with the abuser?
“[The Witness]: Yes, I have. . . .
“[The Prosecutor]: Did you see any examples of this, whether it be by the documentation or the DVD that you viewed?
“[The Witness]: I did see—
“[Defense Counsel]: . . . Objection, Your Honor. There’s an allegation. This case is an allegation. [The prosecutor] is now using the language that I previously objected to. That is an assumption that there was abuse in prior cases and that she’s supposed to be comparing to this case when there’s an allegation and building in a presumption that the allegation is true.
“The Court: Overruled. . . .
“[The Witness]: There are many, I used the word accommodations before. There are many ways that a child or teen can cope. Typically, if a child feels kind of powerless and trapped, they might—particularly with some of the females that I work with at the high school level, have told me, I really just made myself look unattractive. . . . That [is] one of the things they can control—is how they present themselves, their appearance. So, oftentimes, they might try to make themselves look unattractive, hoping that would turn somebody away. Yes, that is a coping mechanism. That is the way of accommodating something, to be able to control a situation that they really can’t control. Similar to what I have said before about changing or not changing a certain behavior to try to cope and survive in a situation.
“[The Prosecutor]: Did you note [the victim’s] examples of that in the documentation or the DVD?
“[The Witness]: I did.”

For convenience, we refer in this opinion to the aforementioned colloquies as the first, second, third and fourth opinions, respectively, unless indicated otherwise.

II

PRESERVATION

Before considering the merits of the defendant’s claim, we first address the state’s contention that it was “not entirely preserved.” Our rules of practice require that a party “intending to raise any question of law which may be the subject of an appeal must either state the question distinctly to the judicial authority in a written trial brief ... or state the question distinctly to the judicial authority on the record before such party’s closing argument and within sufficient time to give the opposing counsel an opportunity to discuss the question. . . .” Practice Book § 5-2; see also Practice Book § 5-5 (“[w]henever an objection to the admission of evidence is made, counsel shall state the grounds upon which it is claimed or upon which objection is made, succinctly and in such form as he or she desires it to go upon the record, before any discussion or argument is had”). It is axiomatic that issues not properly raised before the trial court ordinarily will not be considered on appeal. Practice Book § 60-5; see also State v. Faison, 112 Conn. App. 373, 379-80, 962 A.2d 860, cert. denied, 291 Conn. 903, 967 A.2d 507 (2009).

The sine qua non of preservation is fair notice of the claim to the trial court. As our Supreme Court repeatedly has observed, “the essence of the preservation requirement is that fair notice be given to the trial court of the party’s view of the governing law . . . .” (Emphasis in original.) State v. Ross, 269 Conn. 213, 335-36, 849 A.2d 648 (2004); accord State v. King, 289 Conn. 496, 505, 958 A.2d 731 (2008); Lin v. National Railroad Passenger Corp., 277 Conn. 1, 13, 889 A.2d 798 (2006). A secondary purpose of the preservation requirement is to prevent the possibility that an appellee “would be lured into a course of conduct at the trial which it might have altered if it had any inkling that the [appellant] would . . . claim that such a course of conduct involved rulings which were erroneous and prejudicial to him.” (Internal quotation marks omitted.) Willow Springs Condominium Assn., Inc. v. Seventh BRT Development Corp., 245 Conn. 1, 48, 717 A.2d 77 (1998).

The state argues that the defendant’s claim regarding the admission of Melillo’s expert testimony is unpre-served with respect to Melillo’s second and fourth opinions. Although the state concedes that the claim properly was preserved with respect to the first and third opinions, we nevertheless examine the defendant’s initial objection at trial, which arose in response to Melillo’s first opinion. Defense counsel stated: “Objection, Your Honor. . . . [F]or her to express an opinion as to whether [the victim’s disclosure to S] was puxposeful or not, I think would run counter ... to someone in her position making a statement about the credibility of a witness in this case, which is prohibited by State v. Grenier, [supra, 257 Conn. 797], and other cases cited in the opinion, including State v. Ali, [supra, 233 Conn. 433], and talking about a particular alleged victim. This witness should not be allowed to answer questions about the credibility and the definition of what that person is alleged to have done, putting some kind of stamp of approval on it.” Thus, in objecting to Melillo’s testimony, defense counsel plainly articulated the distinct basis thereof. In so doing, the defendant apprised both the court and the state of a question of law that was a potential subject of appeal, namely, Melillo opining on the credibility of the victim. In overruling that objection, the court responded in unequivocal terms: “The witness is absolutely not allowed to testify as to credibility, but she is an expert and can render an opinion, and the jury is entitled to give it whatever weight [it] deem[s] appropriate based on her expertise.”

It is undisputed that the defendant objected to all four of the opinions now challenged on appeal. At the same time, the state emphasizes that the defendant failed to expressly predicate his objections to the second and fourth opinions on the credibility basis earlier advanced, thereby precluding our review thereof. We disagree. The purpose of the preservation requirement is to provide fair notice to the trial court and the opposing party of a question of law that may form the subject of an appeal. The transcript of the defendant’s initial objection to Melillo’s testimony and the court’s response thereto amply demonstrates that such notice was provided in the present case. To the extent that the defendant failed to assert more clearly the particular objection he now pursues on appeal regarding the second and fourth opinions, it cannot be said to be part of a trial strategy. Cf. State v. Fabricatore, 281 Conn. 469, 482, 915 A.2d 872 (2007) (“[t]o allow [a] defendant to seek reversal now that his trial strategy has failed would amount to allowing him to induce potentially harmful error, and then ambush the state [and the trial court] with that claim on appeal” [internal quotation marks omitted]); Jones v. Ippoliti, 52 Conn. App. 199, 205 n.12, 727 A.2d 713 (1999) (“defendants never raised this issue at trial but instead held that arrow in their appellate quiver, while reaping the benefit of a full trial”). Moreover, this court has afforded review in instances in which a party did not object to certain testimony but previously alerted the court to a precise question of law pertaining thereto. See State v. Guckian, 27 Conn. App. 225, 239 n.7, 605 A.2d 874 (1992) (because record “clearly shows that the state repeatedly alerted the trial court to the issue it now presses on appeal,” failure to object to specific testimony not waiver of state’s claim as long as claim remains same on appeal), aff'd, 226 Conn. 191, 627 A.2d 407 (1993); Sokolowski v. Medi Mart, Inc., 24 Conn. App. 276, 279-80, 587 A.2d 1056 (1991) (although defendant did not object to specific testimony, review of claim granted in light of “the trial court’s previously expressed sentiment about the issue”). Given the court’s ruling that “[t]he witness is absolutely not allowed to testify as to credibility” in response to his initial objection, the defendant understandably could have relied on that expressed sentiment as to subsequent opinions expressed by Melillo.

Finally, we are mindful that “a trial is not a game of technicalities, but one in which the facts and truth are sought.” (Internal quotation marks omitted.) State v. Allen, 205 Conn. 370, 375-76, 533 A.2d 559 (1987). In objecting to Melillo’s testimony as improper commentary on the victim’s credibility, the defendant provided notice to the court and to the state of that distinct legal issue. For that reason, we disagree with the state that the defendant’s claim was “not entirely preserved.”

Ill

IMPROPRIETY

The defendant contends the court abused its discretion in admitting portions of Melillo’s expert testimony. He claims that the challenged testimony constituted an indirect assertion on the victim’s credibility.

We begin by noting the standard by which we review the trial court’s determinations concerning the admissibility of evidence. “The trial court’s ruling on eviden-tiary matters will be overturned only upon a showing of a clear abuse of the court’s discretion. . . . The trial court has wide discretion in ruling on the qualification of expert witnesses and the admissibility of their opinions. . . . The court’s decision is not to be disturbed unless [its] discretion has been abused, or the error is clear and involves a misconception of the law. . . . Generally, expert testimony is admissible if (1) the witness has a special skill or knowledge directly applicable to a matter in issue, (2) that skill or knowledge is not common to the average person, and (3) the testimony would be helpful to the court or jury in considering the issues. . . .

“The determination of the credibility of a witness is solely the function of the jury. ... It is the trier of fact which determines the credibility of witnesses and the weight to be accorded their testimony. . . . Expert witnesses cannot be permitted to invade the province of the juiy by testifying as to the credibility of a particular witness or the truthfulness of a particular witness’ claims. . . . An expert witness ordinarily may not express an opinion on an ultimate issue of fact, which must be decided by the trier of fact. . . . Experts can [however] sometimes give an opinion on an ultimate issue where the trier, in order to make intelligent findings, needs expert assistance on the precise question on which it must pass. . . .

“Additionally, in cases that involve allegations of sexual abuse of children . . . expert testimony of reactions and behaviors common to victims of sexual abuse is admissible. . . . Such evidence assists a jury in its determination of the victim’s credibility by explaining the typical consequences of the trauma of sexual abuse on a child. ... It is not permissible, however, for an expert to testify as to his opinion of whether a victim in a particular case is credible or whether a particular victim’s claims are truthful. ... In this regard, we have found expert testimony stating that a victim’s behavior was generally consistent with that of a victim of sexual or physical abuse to be admissible, and have distinguished such statements from expert testimony providing an opinion as to whether a particular victim had in fact suffered sexual abuse. . . .

“[E]ven indirect assertions by an expert witness regarding the ultimate issue in a case can serve inappropriately to validate the truthfulness of a victim’s testimony. . . . Finally, in cases in which an expert witness reaches a conclusion on the ultimate issue in part based upon statements made by the victim . . . Connecticut case law has previously recognized the general rule of law that the expert is necessarily making a determination about the victim’s credibility. . . . Such credibility determinations are more properly within the sole province of the jury.” (Citations omitted; internal quotation marks omitted.) State v. Iban C., 275 Conn. 624, 634-36, 881 A.2d 1005 (2005).

The defendant argues that Melillo’s opinions amounted to indirect assertions on the victim’s credibility, which are not permitted under Connecticut law. See State v. Grenier, supra, 257 Conn. 806. He argues that, in each, the prosecutor first elicited expert testimony from Melillo as to certain general behavioral characteristics of children who had been sexually abused and then concluded by asking Melillo to opine specifically as to whether this particular victim demonstrated those characteristics. According to the defendant, when Melillo testified that the victim in the present case (1) accidentally disclosed to her mother her sexual encounters with the defendant, (2) delayed her disclosure thereof, (3) remained polite and respectful toward the defendant as a coping mechanism, and (4) attempted to make herself unattractive to the defendant as a coping mechanism, Melillo crossed the line of permissible expert testimony.

The crux of the defendant’s appeal is the import of those concluding portions of the four challenged colloquies between the prosecutor and Melillo. The state maintains that Melillo testified simply that the victim’s behaviors were consistent with that of other victims of sexual abuse. The state further emphasizes that the prosecutor never asked Melillo to render an opinion as to whether the victim was credible but merely asked her to evaluate the victim’s behavior. As to the state’s latter point, we note that opinions other than literal statements as to credibility may constitute improper expert testimony. As the court recognized in Grenier, expert testimony that “was not a literal statement of [the expert’s] belief in [the victim’s] truthfulness” nevertheless may possess “the same substantive import and could be perceived as a conclusive opinion that [the victim] had testified truthfully.” (Internal quotation marks omitted.) Id.

The state’s principal contention, which is that Melillo simply testified that the victim’s behaviors were consistent with that of other victims of sexual abuse, implicates the “critical distinction between admissible expert testimony on general or typical behavior[al] patterns of minor victims and inadmissible testimony directly concerning the particular victim’s credibility.” State v. Spigarolo, 210 Conn. 359, 379, 556 A.2d 112, cert. denied, 493 U.S. 933, 110 S. Ct. 322, 107 L. Ed. 2d 312 (1989). We conclude that the challenged opinions fall on the latter side of that spectrum.

Each of the four colloquies giving rise to the challenged opinions begins with a discussion of a general behavioral characteristic of sexually abused children. In that preliminary testimony, Melillo explained that victims of sexual abuse may delay their disclosure thereof, may accidentally make such a disclosure, may remain polite and respectful toward the perpetrator as a coping mechanism and likewise may attempt to make themselves unattractive to the perpetrator as a coping mechanism. Such expert testimony plainly is permissible. See State v. Iban C., supra, 275 Conn. 635 (“in cases that involve allegations of sexual abuse of children . . . expert testimony of reactions and behaviors common to victims of sexual abuse is admissible”). Furthermore, such testimony served to assist the jury in evaluating the victim’s conduct and whether it was generally consistent with that of a sexually abused child. See State v. Freeney, 228 Conn. 582, 592-93, 637 A.2d 1088 (1994); State v. Borrelli, 227 Conn. 153, 173, 629 A.2d 1105 (1993).

The Supreme Court has held that “where defense counsel has sought to impeach the credibility of a complaining minor witness in a sexual abuse case, based on inconsistency, incompleteness or recantation of the victim’s disclosures pertaining to the alleged incidents, the state may offer expert testimony that seeks to demonstrate or explain in general terms the behavioral characteristics of child abuse victims in disclosing alleged incidents.” (Emphasis added.) State v. Spigarolo, supra, 210 Conn. 380. Our appellate courts regularly have affirmed the admission of such general testimony. See, e.g., State v. Ali, supra, 233 Conn. 429-30 (expert testimony on general characteristics of women who delay reporting sexual assault); State v. Borrelli, supra, 227 Conn. 168-69 (expert testimony on general characteristics of battered woman’s syndrome); State v. Juan V., 109 Conn. App. 431, 437, 951 A.2d 651 (expert testimony in form of “general statement that a normal physical examination is not necessarily inconsistent with sexual abuse”), cert. denied, 289 Conn. 931, 958 A.2d 161 (2008); State v. Whitley, 53 Conn. App. 414, 421, 730 A.2d 1212 (1999) (expert testimony that “a finding of no physical injury is consistent with sexual assault”). Our courts further have permitted expert testimony in response to hypothetical questions about the behavior of abuse victims couched in general terms. See, e.g., State v. Christiano, 228 Conn. 456, 460-63, 637 A.2d 382 (no error when expert answered hypothetical questions based on hypothetical victims in similar situation without specifically referencing victim), cert. denied, 513 U.S. 821, 115 S. Ct. 83, 130 L. Ed. 2d 36 (1994); State v. Crespo, 114 Conn. App. 346, 370-71, 969 A.2d 231 (expert testimony that “the hypothetical victim described in questions had behaved in a manner consistent with victims of sexual assault generally” properly admitted), cert. granted on other grounds, 292 Conn. 917, 973 A.2d 1276 (2009); State v. R.K.C., 113 Conn. App. 597, 605, 967 A.2d 115 (2009) (“[t]he hypothetical questions posed by the state used facts that properly were in evidence, did not specifically reference the victim and did not elicit from [the expert] a statement as to the victim’s credibility”), cert. denied, 292 Conn. 902, 971 A.2d 689 (2009). In each case, the general expert testimony assisted the jury in answering the specific question of whether the particular victim exhibited such behavior.

Accordingly, whether the expert opined on the particular victim’s behavior is a paramount consideration in evaluating challenged expert testimony. For example, in State v. Freeney, supra, 228 Conn. 590-91, two experts opined on the recollection of sexual assault victims immediately after the assault and the tendency for such victims to “go to sleep as an emotional ‘coping mechanism’ . . . .” Id., 591. In considering the propriety of that testimony, our Supreme Court emphasized that “[i]n this instance, neither expert gave an opinion as to whether this particular victim had told the truth or whether she had in fact suffered physical or sexual abuse. The expert testimony that a victim of sexual or physical abuse might not necessarily attempt to escape and might recount the circumstances of the abuse in a disjointed fashion, could have assisted the jury substantially in determining the central issue in the case . . . .” (Emphasis added.) Id., 592-93; accord State v. Christiano, supra, 228 Conn. 460 (hypothetical questions posed to expert “made no specific reference to the victim” and expert testified that he “was not testifying as to the specifics of her case”); State v. R.K.C., supra, 113 Conn. App. 605 (hypothetical questions posed to expert “did not specifically reference the victim”). In that regard, State v. Yusuf, 70 Conn. App. 594, 800 A.2d 590, cert. denied, 261 Conn. 921, 806 A.2d 1064 (2002), is instructive. The expert in Yusuf testified as to certain general characteristics of battered woman’s syndrome. Id., 613-17. In deeming that testimony proper, this court stated: “[The expert] did not give his opinion as to . . . whether [the victim] in fact suffered from battered woman syndrome.” Id., 620.

When Melillo went beyond a general discussion of characteristics of sexual abuse victims and offered opinions, based on her review of the videotaped forensic interview and other documentation, as to whether this particular victim in fact exhibited the specified behaviors, her testimony crossed the line of permissible expert opinion. In contrast to the expert in Yusuf, Mel-illo stated her opinion as to whether the victim in fact made an accidental disclosure of her sexual encounters with the defendant and whether the victim had delayed that disclosure. Melillo opined on whether the victim, as mechanisms of coping with sexual abuse, attempted to make herself unattractive to the defendant and remained polite and respectful toward him. During her testimony at trial and in her forensic interview that was before the jury, the victim made such allegations. As a result, Melillo’s expert opinion confirming those allegations “necessarily endorsed the victim’s credibility, and functioned as an opinion as to whether the victim’s claims were truthful.” State v. Iban C., supra, 275 Conn. 636. Given Melillo’s extensive qualifications and expertise as a forensic interviewer, the jury easily could perceive her testimony “as a conclusive opinion that [the victim] had testified truthfully.” (Internal quotation marks omitted.) State v. Grenier, supra, 257 Conn. 806.

The impropriety is compounded by the fact that Mel-illo expressly predicated her testimony on, inter alia, her review of the victim’s videotaped forensic interview. When an expert bases a conclusion in part on statements made by the victim, that expert is making a determination about the victim’s credibility. State v. Iban C., supra, 275 Conn. 636; State v. Apostle, 8 Conn. App. 216, 232-33, 512 A.2d 947 (1986). This is not a case in which the expert avowed that she had not examined the victim and was not testifying as to the specifics of the case; see State v. Christiano, supra, 228 Conn. 460; or one in which the expert’s “knowledge of the case was limited to the facts contained in the state’s hypothetical questions.” State v. Crespo, supra, 114 Conn. App. 375. In each of the four colloquies at issue, the prosecutor concluded by asking Melillo whether she observed, in the victim’s forensic interview testimony, the characteristic of sexual abuse victims that was the subject of the colloquy. Melillo responded affirmatively each time. In so doing, she necessarily commented on the credibility of the victim.

The challenged opinions also are improper in that they were not beyond the ken of the average juror. Melillo properly explained to the jury four specified characteristics of abuse victims, of which the victim already had made detailed allegations in her testimony. For example, the victim stated in the forensic interview and testified at trial that she “tried to make [herself] look less attractive. . . . Poor hygiene, wearing clothes that didn’t fit [her] right, just anything to make [her] not look attractive. ... So maybe [the defendant] wouldn’t [sexually assault her] again . . . .” In her subsequent expert testimony, Melillo stated that “[t]here are many, I used the word accommodations before. There are many ways that a child or teen can cope. Typically, if a child feels kind of powerless and trapped, they might—particularly with some of the females that I work with at the high school level, have told me, I really just made myself look unattractive. . . . That [is] one of the things they can control—is how they present themselves, their appearance. So, oftentimes, they might try to make themselves look unattractive, hoping that would turn somebody away. Yes, that is a coping mechanism. That is a way of accommodating something, to be able to control a situation that they really can’t control. Similar to what I have said before about changing or not changing a certain behavior to try to cope and survive in a situation.” “When inferences or conclusions are so obvious that they could be as easily drawn by the jury as the expert from the evidence, expert testimony regarding such inferences is inadmissible.” State v. Iban C., supra, 275 Conn. 639. In light of the aforementioned testimony, an assessment as to whether the victim in fact had employed that coping mechanism was well within the capabilities and understanding of the jurors. Thus, Mel-illo’s affirmative response on that issue was unnecessary.

Had the state stopped after offering Melillo’s expert testimony explaining “in general terms the behavioral characteristics of child abuse victims”; State v. Spigarolo, supra, 210 Conn. 380; the defendant would have little complaint. Melillo’s testimony, however, continued in each of the challenged colloquies to an opinion as to whether this particular victim demonstrated certain characteristics of child abuse victims in her videotaped forensic interview and other documentation, as the victim alleged in her trial testimony. In so doing, Melillo’s testimony exceeded the bounds of permissible expert testimony and amounted to an indirect assertion on the victim’s credibility, which Connecticut law forbids. See State v. Grenier, supra, 257 Conn. 806. We, therefore, conclude that the trial court abused its discretion in admitting that testimony in the present case.

IV

HARM

That conclusion does not end the inquiry. The remaining question is whether admission of the improper testimony constituted harmful error. “[T]he proper standard for determining whether an erroneous evidentiary ruling is harmless should be whether the jury’s verdict was substantially swayed by the error. . . . [I]t expressly requires the reviewing court to consider the effect of the erroneous ruling on the jury’s decision. . . . Accordingly ... a nonconstitutional error is harmless when an appellate court has a fair assurance that the error did not substantially affect the verdict.” (Citations omitted; internal quotation marks omitted.) State v. Sawyer, 279 Conn. 331, 357, 904 A.2d 101 (2006) (en banc).

In Grenier, the Supreme Court considered the following factors in conducting its harmlessness analysis. They were: (1) “[f]irst, and most important, the state’s case rested entirely on [the victim’s] credibility”; (2) “[t]he state neither introduced physical or medical evidence of abuse nor presented any eyewitness testimony other than that of [the victim]”; (3) “[t]he state’s case consisted of [the victim’s] testimony, the constancy of accusation testimony of several witnesses and the [expert] testimony”; (4) the defendant testified and denied the allegations of abuse; (5) the improper expert testimony “struck at the heart of the central—indeed, the only—issue in the case, namely, the relative credibility of [the victim] and the defendant”; (6) “inasmuch as [the victim’s] version of the events provided the only evidence of the defendant’s guilt, the state’s case was not particularly strong”; and (7) “[t]he testimony that the state properly adduced to underscore the expert qualifications [of its witnesses] . . . increased the likelihood that the jury would rely on their evaluations of the victim’s credibility.” State v. Grenier, supra, 257 Conn. 807-808. The court therefore concluded that the substantial prejudice resulting from the inadmissible expert testimony entitled the defendant to a new trial. Id., 812.

Other than the fact that the defendant did not testify at trial, the Grenier factors all are met in the present case. As the state neither introduced physical or medical evidence of abuse, nor presented any eyewitness testimony other than that of the victim, the case rested primarily on her credibility and, thus, was not particularly strong. Furthermore, the improper testimony concerned that central issue. Whereas Grenier involved only one indirect assertion by each expert as to the complainant’s credibility, the expert in this case made four such assertions. Finally, the ample evidence of Melillo’s expert qualifications at the outset of her testimony made it probable that the jury would rely on her indirect assertions that the victim was credible.

The state nevertheless insists that the fact that the jury deadlocked on the sexual assault in the second degree count indicates that the jury did not rely on Melillo’s testimony. As it states in its appellate brief, “[h]ad the jury interpreted Melillo’s opinions in the way that the defendant claims, it would have at least reached a decision on that count.” We disagree. Our Supreme Court has observed that “reports of jury deadlock indicate that the fact finder itself did not view the state’s case against the defendant as particularly strong.” State v. Angel T., 292 Conn. 262, 294, 973 A.2d 1207 (2009). As the defendant persuasively argues in light of that precept, “any claim of difficulty on the part of the jury in returning a verdict of any kind on any count . . . would demonstrate that the state’s case was not a strong one, and that . . . any improperly admitted evidence could very well have been sufficient to swing the balance of the jury’s deliberations in favor of conviction.” Furthermore, the court in Iban C. rejected a claim similar to that advanced by the state: “[T]he state claims that any error associated with admitting the improper evidence was harmless because the defendant was acquitted of the more serious charges of first degree sexual assault, thus suggesting that the jurors were not overly influenced by [the expert’s] testimony and had carefully weighed all of the evidence in arriving at a verdict. This claim is . . . without merit. The primary difference between the crimes of sexual assault in the first degree and risk of injury to a child is the act of ‘sexual intercourse,’ or penetration of the victim’s vagina. We conclude that, merely because the jury did not find, beyond a reasonable doubt, that the defendant had penetrated the victim’s vagina as part of the two sexual assaults, does not establish that the jury failed to be influenced by [the improper expert opinion] in reaching guilty verdicts on the risk of injury counts. At a minimum, [the expert’s improper opinion] endorsed and provided credibility to the victim’s claim that some type of inappropriate contact had taken place between the victim and the defendant . . . .” State v. Iban C., supra, 275 Conn. 644-45. That reasoning applies with equal force in the present case. Indeed, Melillo’s endorsement of the victim’s credibility very possibly was the deciding factor in the jury’s finding of guilt on the risk of injury to a child counts.

Finally, it is not insignificant that the impropriety before us implicates the defendant’s constitutional right to a fair trial. As we have noted, “[c]entral to a defendant’s right to a fair trial is the right to have issues of fact and credibility decided by the jury.” State v. Vargas, 80 Conn. App. 454, 462, 835 A.2d 503 (2003), cert. denied, 267 Conn. 913, 840 A.2d 1175 (2004); see also Ardoline v. Keegan, 140 Conn. 552, 555, 102 A.2d 352 (1954) (“[i]t must always be borne in mind that litigants have a constitutional right to have issues of fact decided by the jury”). Credibility determinations are the exclusive province of the fact finder, into which no expert may venture. State v. Grenier, supra, 257 Conn. 806; State v. Iban C., supra, 275 Conn. 634.

Because we lack a fair assurance that the improperly admitted expert testimony did not substantially affect the verdict, we conclude that the defendant has satisfied his burden of demonstrating harm. Evaluating the victim’s credibility was the task for the finder of fact, not Melillo as an expert witness. See State v. Iban C., supra, 275 Conn. 636-37. Accordingly, the defendant is entitled to a new trial.

The judgment is reversed and the case is remanded to the trial court for a new trial.

In this opinion the other judges concurred.

       General Statutes § 53-21 (a) provides in relevant part: “Any person who ... (2) has contact with the intimate parts ... of a child under the age of sixteen years or subjects a child under sixteen years of age to contact with the intimate parts of such person, in a sexual and indecent manner likely to impair the health or morals of such child . . . shall be guilty of ... a class B felony . . . .”

       In accordance with our policy of protecting the privacy interests of the victims of the crime of risk of injury to a child, we decline to identity the victim or others through whom the victim’s identity may be ascertained. See General Statutes § 54-86e.

       General Statutes (Rev. to 2005) § 53a-71 (a) provides in relevant part: “A person is guilty of sexual assault in the second degree when such person engages in sexual intercourse with another person and: (1) Such other person is thirteen years of age or older but under sixteen years of age and the actor is more than two years older than such person . . . .”

       General Statutes (Rev. to 2005) § 53a-73a (a) (1) provides in relevant part that a person is guilty of sexual assault in the fourth degree when “[s]uch person intentionally subjects another person to sexual contact who is . . . (A) under fifteen years of age . . .

       The defendant’s probation was subject to numerous special conditions, including registration as a sexual offender.

       In her testimony, Melillo explained that a forensic interview “is a structured or semistructured interview process that is neutral, objective and fact-finding. It’s to have a child, whetherit be a child or adolescent, sit down with an interviewer who is trained to ask nonleading questions to be able to report their experiences or abuse.”

       Vitulano’s report was not offered into evidence at trial.

       The video was introduced into evidence by the state. Following Melillo’s testimony, the jury viewed that video as the concluding part of the state’s case-in-chief.

       Put another way, the defendant reasons that the prosecutor purposefully employed a syllogistic approach that began with a major premise—that sexual abuse victims exhibit a certain behavioral characteristic. He then proceeded to a minor premise, in which Melillo opined that she observed that characteristic in this particular victim. Left unstated is the conclusion that the victim in fact suffered sexual abuse.

       At oral argument before this court, the state’s attorney was asked if he was aware of any similar case in which the expert was asked to opine as to the particular victim in that case. He answered in the negative.

       The forensic interview of the victim conducted by Melillo’s colleague at the Center for Women and Families of Greater Bridgeport was more than one hour long. Melillo testified that she viewed the video of that interview twice prior to trial.

       The defendant possessed a constitutional right not to testify at trial. That right “is rooted in the privilege against self-incrimination under both the federal and the state constitutions. The fifth amendment to the United States constitution provides that no person shall be compelled in any criminal case to be a witness against himself. That provision acts as a restraint upon the individual states as well as the federal government under the fourteenth amendment to the United States constitution. Malloy v. Hogan, 378 U.S. 1, 84 S. Ct. 1489, 12 L. Ed. 2d 653 [1964], Article first, § 8, of the Connecticut constitution affords criminal defendants a similar protection in language at least as broad as its federal counterpart. That section, which sets forth the rights of accused persons in criminal prosecutions, provides that [n]o person shall be compelled to give evidence against himself . . . .” (Internal quotation marks omitted.) State v. Yurch, 229 Conn. 516, 521-22 n.5, 641 A.2d 1387, cert. denied, 513 U.S. 965, 115 S. Ct. 430, 130 L. Ed. 2d 343 (1994).


source: Caselaw Access Project

author: ALVORD, J.

license: Public Domain

text:
    PHILIP J. DEFEO v. IRENA DEFEO
    (AC 30267)
    Lavine, Alvord and West, Js.
    Argued November 10, 2009
    officially released January 19, 2010

      Irena DeFeo, pro se, the appellant (defendant).
   Opinion

ALVORD, J.

The defendant, Irena DeFeo, appeals from the denial of her motion for contempt. We affirm the judgment of the trial court.

The following facts and procedural history are relevant to the defendant’s appeal. The parties were divorced on August 2, 2005. As part of the property settlement, the defendant was granted sole ownership of the couple’s Las Vegas time share property (time share). The plaintiff, Philip DeFeo, was ordered to pay all expenses related to the time share through the end of 2005, including any remaining mortgage debt, the common charges and the property taxes. The defendant was ordered to pay all time share fees arising after 2005. The plaintiff failed to transfer title to the time share to the defendant, and the defendant filed a motion for contempt on June 2, 2008. In her motion, she claimed that the time share had been foreclosed and sought compensation for its value plus interest since the date of dissolution as well as attorney’s fees.

A hearing was held on July 21, 2008, after which the court denied the defendant’s motion from the bench. The court found that the plaintiff paid all of the time share expenses through 2005, but that the defendant failed to make any payments thereafter. It concluded that the plaintiffs failure to transfer the time share to the defendant was troubling but excusable in light of the defendant’s failure to transfer other property to the plaintiff. Finally, the court noted that since the time share had been foreclosed in 2007, it was now beyond the plaintiffs power to transfer title. This appeal followed. The defendant claims that the court improperly found that the plaintiff paid the time share expenses through 2005 and determined that the defendant was responsible for fees accruing after 2005.

“A finding of indirect civil contempt must be established by sufficient proof that is premised on competent evidence presented to the trial court and based on sworn testimony.” (Internal quotation marks omitted.) Bunche v. Bunche, 36 Conn. App. 322, 324, 650 A.2d 917 (1994). Appellate review of a denial of a motion for contempt is limited to “whether the trial court abused its discretion in failing to find that the actions or inactions of the defendant were in contempt of a court order.” Id.

The defendant’s first claim presents a question of fact. “The trial court’s findings [of fact] are binding upon this court unless they are clearly erroneous .... A finding of fact is clearly erroneous when there is no evidence in the record to support it ... or when although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed.” (Internal quotation marks omitted.) Cifaldi v. Cifaldi, 118 Conn. App. 325, 330-31, 983 A.2d 293 (2009). In this case, both parties testified at the hearing on the motion. The plaintiff testified that he paid the time share fees through 2005. The defendant did not contradict the plaintiffs testimony or introduce any additional evidence to refute the plaintiffs testimony. As a result, the court’s finding is in accord with the evidence.

The defendant next claims that the court improperly held her responsible for the time share expenses that arose after 2005. She argues that her responsibility for payment was, in fact, conditioned on the transfer of title. The dissolution judgment provides in relevant part: “The defendant shall have sole ownership of the Las Vegas [t]ime [s]hare property and the plaintiff shall pay the remaining mortgage on such property, if any, and pay any common charges, property taxes or other debt related to such property, if any, through the end of calendar year 2005. Thereafter, the defendant shall be solely responsible to pay any debts related to the time share property.”

“The construction of a judgment is a question of law for the court. ... As a general rule, judgments are to be construed in the same fashion as other written instruments. ... To determine the meaning of a judgment, we must ascertain the intent of the court from the language used and, if necessary, the surrounding circumstances. . . . We review such questions of law de novo.” (Internal quotation marks omitted.) Sosin v. Sosin, 109 Conn. App. 691, 699, 952 A.2d 1258, cert. granted in part, 289 Conn. 934, 935, 958 A.2d 1245 (2008). The plain language of the judgment does not support the defendant’s claim. It contains no conditional language. Instead, it expressly requires the defendant to pay the time share fees beginning in 2006. Accordingly, the court did not abuse its discretion when it denied the defendant’s motion for contempt.

The judgment is affirmed.

In this opinion the other judges concurred.

       The defendant filed several prior, unsuccessful motions for contempt relating, in part, to the time share. The propriety of the denial of the defendant’s previous motions is not at issue in this appeal.

       The defendant does not challenge this portion of the court’s findings on appeal.

       We decline to address the defendant’s third argument, namely, that the court improperly found that the plaintiff did not receive notice of the foreclosure. Although the plaintiff testified that he did not receive notice of the foreclosure, the court made no such finding.

       The defendant attempted to introduce into evidence three letters that were mailed to the plaintiff and provided notice of the foreclosure. The letters were ruled inadmissible hearsay.


author: BISHOP, J.

text:
    ERIK M. PIN ET AL. v. DAVID L. KRAMER ET AL.
    (AC 29314)
    Bishop, Lavine and Schaller, Js.

      Argued September 8, 2009
    officially released January 19, 2010

      Lawrence F. Reilly, for the appellants (plaintiffs).

      Daniel E. Ryan III, for the appellees (defendants).
   Opinion

BISHOP, J.

The plaintiffs, Erik M. Pin, a minor, and his mother, Carrie L. Pin, appeal from the judgment in favor of the defendants, David L. Kramer, an orthopedic surgeon, and Danbury Orthopedic Associates, P.C., following a jury trial on their medical malpractice claim. On appeal, the plaintiffs claim that the court improperly (1) restricted their questioning of potential jurors during voir dire, (2) assumed the role of an advocate and interfered with the presentation of their case, examination of witnesses and cross-examination of the defendants’ expert witness, (3) refused to admit Kramer’s deposition testimony into evidence, (4) prevented them from offering rebuttal testimony regarding the defendants’ learned treatises, as well as interfered with their cross-examination by improperly finding that they lacked foundation for questions regarding the learned treatises, (5) applied the learned treatise doctrine to admit inadmissible hearsay and (6) denied their motion for a mistrial or for a curative instruction after hearing improper and harmful testimony from the defendants’ medical expert. We agree that the court abused its discretion by denying the plaintiffs’ request for a curative instruction following the testimony from the defendants’ medical expert and thereby prevented the plaintiffs from receiving a fair trial. Accordingly, we reverse the judgment of the trial court and remand the case for a new trial.

The jury reasonably could have found the following facts. In 2001, when he was ten years old, the plaintiff was given a scoliosis examination at school, which revealed an abnormality in his back. His pediatrician, Jay D’Orso, referred him for X rays and a computerized tomography (CT) scan of his spine, which revealed that a 2.5 centimeter bony mass “exhibit[ing] the features of an osteochondroma” was growing out of the plaintiffs spine. Prior to this discovery, the plaintiffs had no knowledge of this mass, nor had the plaintiff exhibited any symptoms related to it. D’Orso next referred the plaintiff to Danbury Orthopedic Associates, P.C., where he was examined by Kramer. During the plaintiffs first visit with Kramer in April, 2001, Kramer physically examined the plaintiff and reviewed reports of the X rays and CT scan that previously had been taken. Kramer confirmed that the mass was an osteochon-droma but recommended to the plaintiffs that they take a conservative approach. He did not recommend immediate removal of the mass but told the plaintiffs that they would need to keep an eye on it because lesions of this nature have a “propensity toward increasing in size during periods of active growth.” Kramer informed the plaintiffs that if the lesion increased in size or became symptomatic, they should then consider having it removed. After the visit, Kramer reviewed the actual films from the X rays and CT scan to verify the findings in the radiologist’s report.

At his next visit, eight months later, the plaintiff informed Kramer that the mass was “somewhat irritating . . . especially upon lying down or when pressing his back against a wall” and that he had decided that he wanted the tumor removed. Kramer explained the steps involved in such a surgery and informed the plaintiffs of the risk of infection and of regrowth of the mass. Kramer scheduled the surgery for December 28, 2001. Prior to the surgery Kramer did not order updated X rays, a CT scan or a magnetic resonance imaging (MRI) scan. Kramer’s plan was to remove the lesion by using a technique called a marginal resection. This method contemplates cutting the lesion off at its base, where it is growing from the good bone, and removing it in one piece.

During the surgery, Kramer was able to cut the lesion away from the spine in one piece, using a chisel, but was unable to extract the tumor. Kramer testified that the tumor appeared to be caught up on some portion of the plaintiffs anatomy. The operative report revealed that the “mass had extended between the T5 and T6 transverse processes and ribs,” and it was protruding inward toward the plaintiffs lungs. Kramer decided to break the tumor into pieces so that he could remove the entire mass. The parties disagree over the method used to break apart the tumor. Although the postoperative report stated that Kramer used curets to break the tumor into fragments, he testified, at trial, that he used an osteotome to break the tumor in half, take out half of it, break it in half again and take out the other two pieces.

After the surgery, the plaintiff stayed in the hospital overnight. Kramer saw him on two occasions after the surgery. He examined the plaintiffs wound to look for infection but did nothing further. He did not order any X rays or monitor the plaintiff to see if the tumor had regrown. Kramer testified that he was satisfied that he had removed the entire tumor and that the recurrence rate was extremely small. At trial, the defendants’ medical expert, orthopedic surgeon Todd Albert, testified that Kramer had complied with the standard of care before, during and after the operation.

In June, 2002, about three months after his last visit with Kramer, the plaintiff went to see his primary care physician, D’Orso, about an asymmetry in his ribs. D’Orso ordered X rays, which revealed that the tumor had regrown. The radiologist determined that the tumor was regrowing in the area of the earlier mass. The tumor was growing inward toward the plaintiffs chest cavity and may have encroached into an opening in the spine called a neural foramen. Kramer saw the plaintiff again on July 8, 2002, to evaluate the tumor and decided to refer the plaintiffs to a tumor specialist, Dempsey S. Springfield. Springfield believed that the tumor would continue to grow and thus should be removed. He recommended to the plaintiffs that they watch the growth pattern of the tumor and do another CT scan in September. The September CT scan showed that the tumor had, in fact, continued to grow, and the plaintiffs scheduled surgery for September 19, 2002.

Springfield performed a block excision, which required the entire tumor and the surrounding area, including sections of bone from the ribs and vertebrae, to be removed in one piece. He did not recommend doing another piecemeal extraction, as that was likely to result in another recurrence of the tumor. Due to the need to remove the entire mass in one piece, the surgery required the removal of portions of healthy bone that were attached to the tumor. As a result of the loss of bone, the plaintiff also underwent a bone graft that was done during the surgery to fuse the spine. This bone graft was unsuccessful and on June 25, 2003, Springfield conducted a second surgery to insert metal rods into the plaintiffs back to align and prevent curvature of the spine. As a result of the surgeries, the plaintiff was required to wear a hard body brace, which made it difficult to walk. In addition to incurring high medical costs, the plaintiff was unable to attend school for one year, requiring that he be taught at home by a private tutor. His academic performance declined greatly, he was unable to participate in sports or dance, and he suffered from depression.

Thereafter, the plaintiffs filed this medical malpractice action against the defendants, alleging that Kramer was negligent in his presurgical care, in the method he used to remove the initial tumor and in his failure to properly follow the plaintiffs progress after the surgery had been completed and that his negligence was the proximate cause of the tumor’s regrowth. On August 23, 2007, the juiy returned a verdict in favor of the defendants. The plaintiffs’ motion to set aside the verdict was denied, and this appeal followed. Additional facts will be set forth as necessary.

The plaintiffs claim that the court improperly denied their motion for a mistrial, or in the alternative, for a curative instruction, after the defendants’ witness, Albert, testified that the proliferation of medical malpractice claims has caused the cost of health care to increase and has caused some physicians to leave the practice. We agree.

The following additional facts are relevant to the plaintiffs’ claim. The subject testimony occurred on the eighth day of trial during the defendants’ direct examination of Albert. After testifying that, in this case, the standard of care did not require additional radiology tests, Albert explained why he would have ordered such tests had he been the treating physician. When asked why he would have ordered the radiology tests, Albert explained:

“Well, a few reasons. One, I am with residents, fellows, and medical students all the time. So, we are ordering a lot of tests on everything so they have the opportunity to read them. And you could say, oh, that’s wasteful, but that is part of being at a teaching institution. One. It is for teaching purposes as much as anything, for they have one more chance to look at just one more—they have another dot in their exposure.
“The second reason is much different than in this part of the country and this state. I live in the worst malpractice community in the world. And people—and we practice a lot of defensive medicine. It’s true. It’s unfortunate, but it’s true. And so we order way more tests. You hear about the cost of medicine going up. We are the epicenter of it because we have more doctors leaving because they can’t get insurance and things like that. So, we order way more tests than are necessary to protect ourselves. And that’s just a fact. And so we get acclimated to practicing like that. So, there’s lots of reasons.”

At this point, the plaintiffs’ counsel asked the court to excuse the jury. With the jury excused, the plaintiffs’ counsel explained that he thought the witness had injected improper issues into the case that were extremely prejudicial to the plaintiffs. The plaintiffs requested a mistrial, or in the alternative, an instruction to Albert not to refer to “things like that again,” as well as a curative instruction to the jury. The defendants disagreed with the plaintiffs’ position, arguing that the comments did not rise to a level that would necessitate a mistrial. The defendants argued that Albert should be permitted to explain why he would have ordered the tests, even while testifying that it was not required by the standard of care. The defendants’ counsel also noted that he had not invited the answer by his question, expecting only that Albert would explain how he worked at a teaching hospital and thus would do more than was required to provide learning opportunities for the students. The defendants’ counsel concluded by saying that although he did not think that the comments rose to the level warranting a mistrial, if the court wanted to instruct the jury to ignore what Albert had said, he would not object.

In response, as the court was stating that just because the word “insurance” is used, that does not necessarily mean that there are grounds for a mistrial, the defendants’ counsel interjected to argue that the use of the word “insurance” was prejudicial to the defendants. The court went on to explain how the “insurance word” is not used in trial because it is prejudicial to “the one person in the room who is vulnerable to that suggestion,” meaning the defendants. The court stated that in the context of the entire statement, the court did not find the comment to be prejudicial and that, if anything, it affected the defendants, not the plaintiffs. The court also surmised that the comment would have, in all likelihood, come out during cross-examination because the plaintiffs were certainly going to press the witness as to why he testified that the radiology tests were not required by the standard of care, even though he testified that he would have ordered them. The court also was concerned that if it were to give a curative instruction, it risked “further poisoning of the well toward the defendants.” The court concluded, “[s]o you know, my inclination is to leave it alone. For the reasons I have articulated.” Accordingly, the court did not issue a curative instruction. As to the motion for a mistrial, the court denied the motion, concluding that there was no prejudice toward the plaintiffs, and, considering the length and expense of the trial, it would be unjust to grant the motion for a mistrial. The plaintiffs later clarified for the record that their objection was not only to the use of the word insurance, but to the entire statement regarding medical malpractice litigation and rising medical costs.

“[T]he principles that govern our review of a trial court’s ruling on a motion for a mistrial are well established. Appellate review of atrial court’s decision granting or denying a motion for a [mistrial] must take into account the trial judge’s superior opportunity to assess the proceedings over which he or she has personally presided. . . . Thus, [a] motion for a [mistrial] is addressed to the sound discretion of the trial court and is not to be granted except on substantial grounds.” (Internal quotation marks omitted.) State v. Nash, 278 Conn. 620, 657, 899 A.2d 1 (2006). In our review of the denial of a motion for a mistrial, we have recognized that “[t]he trial court has wide discretion in ruling on motions for mistrial.” Shelnitz v. Greenberg, 200 Conn. 58, 80, 509 A.2d 1023 (1986). The decision of the trial court is, therefore, reversible on appeal only if there has been an abuse of discretion. Viejas Band of Kumeyaay Indians v. Lorinsky, 116 Conn. App. 144, 169, 976 A.2d 723 (2009). “In general, abuse of discretion exists when a court could have chosen different alternatives but has decided the matter so arbitrarily as to vitiate logic, or has decided it based on improper or irrelevant factors.” (Internal quotation marks omitted.) State v. Nash, supra, 658. “If there was such an abuse of discretion, the reviewing court then must determine whether the defendant has established that, in light of the totality of evidence at trial and the trial court’s subsequent instructions to the jmy, the impropriety constituted harmful error.” State v. Davis, 286 Conn. 17, 54, 942 A.2d 373 (2008).

Even though the granting of a mistrial is sometimes required, it is not preferable. “[A] mistrial should be granted only as a result of some occurrence upon the trial of such a character that it is apparent to the court that because of it a party cannot have a fair trial and [the] whole proceedings are vitiated.” (Internal quotation marks omitted.) Hirsh v. Squillante, 17 Conn. App. 354, 357, 552 A.2d 1222 (1989). “If curative action can obviate the prejudice, the drastic remedy of a mistrial should be avoided.” (Internal quotation marks omitted.) State v. Day, 233 Conn. 813, 836, 661 A.2d 539 (1995). Indeed, the courts “have always given great weight to [curative] instructions in assessing claimed errors.” (Internal quotation marks omitted.) Id., 841; see also Shelnitz v. Greenberg, supra, 200 Conn. 80.

During his testimony, Albert introduced highly prejudicial issues into the case. Albert explained that he would have done more radiology tests on the plaintiff due to his concern about malpractice claims. He noted that there is a need to practice “defensive medicine” in order to protect against malpractice litigation and discussed how this trend is leading to the increased cost of medicine and is forcing physicians to leave the profession. The unspoken inference to be drawn from this testimony was that the only reason Kramer would have needed to do additional radiology tests on the plaintiff would be to protect himself against the very litigation that he was then experiencing. After hearing this testimony, it would be difficult to imagine that the jury could or would have ignored its logical implications when considering whether the defendants should be held liable. In addressing the plaintiffs’ claim, we are cognizant that the trial court is often better positioned to determine whether a particular section of testimony was prejudicial and that the court’s determination of whether or not to grant a remedy for any such prejudice should be given great deference. We cannot, however, defer to the court’s decision not to act in this case.

The court’s initial concern over the mention of insurance was proper, but this was not the primary issue with which the court was presented. We agree that the general prohibition against mentioning insurance coverage is to protect defendants. The rationale is that if a jury thinks the defendant is insured and that any damages it chooses to award will be paid by the insurance company rather than by the defendant, then the jury will be more likely to find in favor of the plaintiff. In this case, the court was not presented with evidence that the defendants had insurance coverage, but, rather, the topic arose in the context of discussing the difficulties that physicians face in the current legal climate.

In this instance, the plaintiffs, not the defendants, objected to Albert’s comments, and, when responding to the plaintiffs’ claim of prejudice, the defendants initially did not suggest that they might have been prejudiced in some way. It was not until a moment later when the court mentioned that not every instance where the word “insurance” is mentioned merits a mistrial, that the defendants’ counsel made a comment alleging that the defendants were prejudiced by the witness’ statement. Although the word “insurance” was used, it arose in a context helpful, not harmful, to the defendants. This testimony painted a picture sympathetic to physicians, portraying them as constantly forced to defend against malpractice claims and to bear the exorbitant cost of insurance. Whether or not the comment has merit in public discourse, it had no place in this trial.

In reaching its decision not to grant a mistrial or to give a curative instruction to the jury, the court stated that it took into account the status of the trial and the prejudice that might be caused to the defendants by allowing the testimony to stand or by highlighting the testimony with a curative instruction. Eight days into the trial, the court would have needed a compelling reason to declare a mistrial. If, in denying the motion for a mistrial, the court had nevertheless given the jury a curative instruction in an effort to mitigate the damage likely caused by Albert’s testimony, the plaintiffs would be in a different position on appeal. Instead, the court denied the plaintiffs’ unopposed request that it give a curative instruction and simply told the witness not to mention the insurance again. Because the court did not take any action, this testimony went to the jury as evidence for its consideration during deliberation. The thrust of this expert testimony was highly prejudicial to the plaintiffs because it drew the jury’s attention to the claimed economic and professional practice hardships faced by medical practitioners due to claims made against them.

Upon review, we conclude that the court’s failure to issue a curative instruction in the face of Albert’s inflammatory and prejudicial testimony was an abuse of discretion that likely influenced the jury’s deliberations. Although the improper statements by Albert were not pervasive, they introduced a highly controversial and legally improper issue into the case. We conclude that based on the likelihood of prejudice, due to the nature of Albert’s comments, and the court’s refusal to provide the jury with an appropriate curative instruction, the plaintiffs were harmed. Accordingly, the plaintiffs were deprived of their right to a fair trial.

The judgment is reversed and the case is remanded for a new trial.

In this opinion the other judges concurred.

       Carrie L. Pin brought this action as a parent and next friend of her minor son. She also brought the action on her own behalf for damages arising from her son’s injuries.
      Erik M. Pin is referred to in this opinion individually as the plaintiff, and Erik M. Pin and his mother, Carrie L. Pin, are referred to collectively in this opinion as the plaintiffs.

       Because we reverse on the basis of the plaintiffs’ sixth claim, we do not, and need not, reach claims one through five, as we do not believe they are issues that are likely to arise again in a retrial of this case.

       The plaintiffs’ brief describes an osteochondroma as a benign bone tumor, which consists of a bony protrusion covered by a cartilage cap.

       Throughout the record, the plaintiffs osteochondroma is interchangeably referred to as a “lesion,” a “tumor” and a “mass.”

       The defendants contended at trial that it was unnecessary to take a CT scan because a physical examination showed that the lesion had not changed and the original X ray showed that the lesion was slow growing. Additionally, an MRI scan was not necessary because the plaintiff did not show signs of neurological symptoms.

       The defendants argue that the tumor was cut twice, making three pieces, which were each carefully removed. The plaintiffs claim, however, that Kramer broke the tumor into a large number of small pieces. Medical records do not reveal the number of pieces removed, only that the mass was “broken down into fragments that could be retrieved through the incision.”

       A neural foramen is described by the plaintiffs as a tunnel in the spine leading to the spinal canal. During his deposition, Albert responded affirmatively when asked if the tumor had begun to encroach into the plaintiffs neural foramen, but at trial he testified that the tumor was near, but not in, the neural foramen.

       Springfield also refers to the procedure as an en bloc resection, which incorporates a laminectomy, partial rib resections and excision of the lateral portion of the vertebral body.

       Albert testified that he is a professor of orthopedic surgery and the chairman of the department of orthopedics at Thomas Jefferson University in Philadelphia, Pennsylvania He is also the president of the Rothman Institute, which is one of the departments of orthopedic surgery. Albert testified that he was responsible for 75 to 100 orthopedic surgeons.

       The court stated: “And, moreover, it is the elephant in the room. I mean, everybody knows that professionals do carry, you know, responsible professionals carry some form of errors and omissions or malpractice. That’s just reality. So, if anything, if anything, it affects Dr. Kramer and not your client.”


text:
    STATE OF CONNECTICUT v. LUIS ALMEDINA
    (AC 29671)
    Bishop, DiPentima and Hennessy, Js.
    Argued November 10, 2009
    officially released January 19, 2010

      Mary Beattie Schairer, special public defender, for the appellant (defendant).

      James A. Kitten, senior assistant state’s attorney, with whom, on the brief, were Gail P. Hardy, state’s attorney, and Robin D. Krawczyk, senior assistant state’s attorney, for the appellee (state).
   Opinion

BISHOP, J.

The defendant, Luis Almedina, appeals from the judgment of the trial court dismissing his motion to correct an illegal sentence, which he filed pursuant to Practice Book § 43-22. On appeal, the defendant claims that the court improperly dismissed his motion on the basis of collateral estoppel. We affirm the judgment of the trial court.

The procedural history of this case was set forth in this court’s opinion in Almedina v. Commissioner of Correction, 109 Conn. App. 1, 950 A.2d 553, cert. denied, 289 Conn. 925, 958 A.2d 150 (2008), in which this court affirmed the habeas court’s denial of a petition for a writ of habeas corpus filed by the defendant stemming from the same conviction. “The [defendant] was involved in a shooting on the evening of February 18, 1994. He was charged with murder in violation of General Statutes § 53a-54a. On October 2, 1995, the [defendant] pleaded guilty under the Alford doctrine to manslaughter in the first degree with a firearm in violation of General Statutes § 53a-55a and conspiracy to commit assault in the first degree in violation of General Statutes §§ 53a-48 and 53a-59 (a).

“The plea agreement provided that the [defendant] would receive a sentence of twenty years imprisonment but have the right to argue for as few as fifteen years. The agreement also provided that the [defendant] could be subjected to a longer sentence if the state obtained additional incriminating evidence against him between the time of the plea and the date of sentencing. If the [defendant] was to be subjected to a sentence longer than twenty years, however, the agreement provided that he could withdraw his plea and proceed to trial. If the [defendant] elected to withdraw his plea and proceed to trial, the state could reinstitute the murder charge. The trial court canvassed the [defendant] and determined that his plea was made knowingly and voluntarily with the assistance of competent counsel. The court accepted the [defendant’s] plea and set a date for sentencing.

“The initial sentencing proceeding took place on November 17, 1995. At that time, the state revealed that it had obtained substantial additional incriminating evidence as envisioned in the plea agreement. The court then explained to the [defendant] his options in light of the additional evidence: ‘And so your options are this . . . that you may receive more than twenty years in jail [and] up to forty years in jail .... So, now the option is that knowing that you could receive up to forty years in jail under this statute that you’ve pleaded under, you would have the option to request that you be sentenced under that statute or, if the court were to give you more than twenty years, and I would tell you at the time of sentencing that then you would have the option of withdrawing your plea, taking everything that we’ve done back so far and going to trial. In which case it is the court’s understanding that you would be tried under the charge of murder, which carries a minimum sentence of twenty-five years in jail up to life, which, in Connecticut, is sixty years in jail.’ The [defendant] stated that he understood his options, and the court granted a continuance so he could consider those options with the advice of counsel.

“On December 11, 1995, sentencing took place. The prosecutor requested that the court impose the maximum sentence of forty years available under the plea on the basis of the additional incriminating evidence uncovered by the state. The [defendant’s] counsel argued that regardless of the additional evidence, the maximum penalty for manslaughter is twenty years and that ‘it would be inappropriate for this essentially one act, for which there’s an Alford plea—for this essentially one act of manslaughter to result in a [total effective sentence] that would be greater than twenty years.’ The court then informed the [defendant] twice of his right to proceed to trial. The [defendant] elected not to exercise this right by withdrawing his plea.

“The court imposed a sentence of twenty years incarceration for manslaughter in the first degree with a firearm and twenty years incarceration for conspiracy to commit assault in the first degree. The court ordered that the sentences run consecutively for a total effective sentence of forty years incarceration. The [defendant] did not file a direct appeal.

“Eight years after he was sentenced, the [defendant] filed a petition for a writ of habeas corpus, alleging that his conviction was illegal because his plea was not made knowingly, intelligently and voluntarily. Specifically, he claimed that the trial court (1) did not explain the consequences of not withdrawing his plea and (2) misled him to believe that he would get out of prison sooner if he decided to plead guilty instead of proceeding to trial. The habeas court found that the trial court had conducted a full and thorough canvass of the [defendant] regarding his plea agreement on October 2, 1995, and that on that date and on November 17,1995, the [defendant] stated that he understood the plea agreement and what would happen if the state discovered substantial additional evidence against him. The court concluded that the [defendant’s] plea was made knowingly, intelligently and voluntarily.” Almedina v. Commissioner of Correction, supra, 109 Conn. App. 2-5. This court affirmed the judgment of the habeas court, stating: “The record reflects that the court conducted a full and thorough canvass of the [defendant] on October 2, 1995, regarding his guilty plea, after which the [defendant] stated that he understood the plea agreement. . . . Moreover, the [defendant] testified at his habeas hearing that he understood that the plea agreement called for him to be sentenced to twenty years and that if new information arose, he would be facing forty years. Furthermore, the [defendant] also knew that he had the option to withdraw his guilty plea and proceed to trial.

“Although the court did not explicitly inform the [defendant] of its intention to impose a sentence greater than twenty years, the record reflects that the [defendant] was aware at the December 11, 1995 sentencing hearing that the court planned on imposing a sentence greater than twenty years incarceration. Specifically, the [defendant’s] attorney stated: ‘[The defendant] does acknowledge—and going forward with the sentencing proceeding at this time is an acknowledgement of the fact that the state’s case is considerably stronger today than it was a month ago, at a time that we were proceeding toward an agreement that was calling for a—a specific sentence that is probably going to be less than what Your Honor will be imposing at this time.’ The [defendant’s] argument that prior to sentencing he was unaware of the court’s intention of imposing a sentence greater than twenty years, therefore, is belied by the record. Moreover, our review of the record reveals no evidence that the [defendant] was unaware of his potential sentence or that he could withdraw his guilty plea.” (Citations omitted.) Id., 7-8. This court concluded: “The [defendant’s] habeas testimony makes clear that he understood his plea agreement and the potential sentence he faced if he proceeded to trial.” Id., 9.

In September, 2007, after the habeas court had denied the defendant’s habeas petition, but before the appeal had been decided, the defendant filed a motion to correct an illegal sentence. In that motion, the defendant claimed that he was sentenced in an illegal manner because the court imposed “the maximum sentence allowed by law without [affording him] the opportunity to withdraw his [guilty] plea” and that the court exceeded the sentence that was specified in his plea agreement and that the “court did not keep its plea agreement promises . . . .” The defendant asked that the court resentence him “to the original plea agreed upon,” whichhe claimed was a sentence of twentyyears with the right to argue for as little as fifteen. Following a hearing on the defendant’s motion to correct an illegal sentence, the court dismissed the motion under the collateral estoppel doctrine on the basis that the motion raised an issue that had already been resolved in the defendant’s prior habeas action. This appeal followed.

The determination of whether the court properly applied the doctrine of collateral estoppel is a question of law over which we exercise plenary review. Byars v. Berg, 116 Conn. App. 843, 846, 977 A.2d 734 (2009). “The common-law doctrine of collateral estoppel, or issue preclusion, embodies a judicial policy in favor of judicial economy, the stability of former judgments and finality. . . . Collateral estoppel, or issue preclusion, is that aspect of res judicata which prohibits the relitigation of an issue when that issue was actually litigated and necessarily determined in a prior action between the same parties upon a different claim. . . . For an issue to be subject to collateral estoppel, it must have been fully and fairly litigated in the first action. It also must have been actually decided and the decision must have been necessary to the judgment. . . .

“An issue is actually litigated if it is properly raised in the pleadings or otherwise, submitted for determination, and in fact determined. ... An issue is necessarily determined if, in the absence of a determination of the issue, the judgment could not have been validly rendered. ... If an issue has been determined, but the judgment is not dependent [on] the determination of the issue, the parties may relitigate the issue in a subsequent action.” (Citations omitted; internal quotation marks omitted.) Lyon v. Jones, 291 Conn. 384, 406, 968 A.2d 416 (2009). Thus, we must determine whether the issue raised by the defendant in his motion to correct an illegal sentence was already litigated and determined in the earlier habeas action.

In his motion to correct an illegal sentence, the defendant claimed that the court failed to afford him the opportunity to withdraw his guilty plea in compliance with Practice Book § 39-10. Section 39-10 provides, in relevant part, that if a court decides to reject a plea agreement, the court shall “afford the defendant the opportunity then to withdraw the plea . . . .” The defendant argued that Practice Book § 39-10 is mandatory and, because the court did not explicitly give him the opportunity to withdraw his plea at the December 11, 1995 hearing, he was illegally sentenced.

In his second amended petition for a writ of habeas coipus, the defendant claimed that “the [c]ourt did not adequately canvass him as to whether he wanted to proceed with sentencing or withdraw his guilty pleas, because the [cjourt never asked [him] how he wanted to proceed and did not engage in the typical colloquy that constitutes a proper canvass.” Although the defendant’s habeas claim did not specifically implicate Practice Book § 39-10, for the habeas court to have determined whether the defendant had been properly canvassed, it had to find that the sentencing court complied with all applicable statutes and rules of practice. In other words, although the habeas court examined the defendant’s canvass in the broader context of whether the defendant’s plea was made knowingly and voluntarily, in holding that the sentencing court properly canvassed the defendant, a finding that this court affirmed, compliance with Practice Book § 39-10 necessarily was determined by the habeas court. Thus, the court properly concluded that the defendant’s motion to correct an illegal sentence was barred by the doctrine of collateral estoppel.

The judgment is affirmed.

In this opinion the other judges concurred.

       Practice Book § 43-22 provides: “The judicial authority may at any time correct an illegal sentence or other illegal disposition, or it may correct a sentence imposed in an illegal manner or any other disposition made in an illegal manner.”

       See North Carolina v. Alford, 400 U.S. 25, 37, 91 S. Ct. 160, 27 L. Ed. 2d 162 (1970).

       In fact, the habeas court found: “At sentencing on December 11, 1995, the [defendant], through counsel, stated that although he maintain[ed] his innocence, he was proceeding with sentencing based on the strength of the state’s case.”