author: WEST, J.

text:
    STATE OF CONNECTICUT v. WILLIE A. SAUNDERS
    (AC 28596)
    Harper, Beach and West, Js.
    Argued February 4
    officially released May 19, 2009

      Arthur L. Ledford, special public defender, for the appellant (defendant).

      Melissa Patterson, deputy assistant state’s attorney, with whom, on the brief, were John A. Connelly, state’s attorney, Amy Sedensky, senior assistant state’s attorney, and DonE. Therkildsen, Jr., assistant state’s attorney, for the appellee (state).
   Opinion

WEST, J.

The defendant, Willie A. Saunders, appeals from the judgment of conviction, rendered after a jury trial, of sexual assault in the first degree in violation of General Statutes § 53a-70 (a) (2) and risk of injury to a child in violation of General Statutes § 53-21 (a) (2). On appeal, the defendant claims that (1) the state adduced insufficient evidence to sustain his conviction, (2) the trial court improperly allowed the state to comment on missing witnesses during final argument and (3) the state engaged in prosecutorial impropriety during final argument and, therefore, deprived him of his due process right to a fair trial. We affirm the judgment of the trial court.

The jury reasonably could have found the following facts. On April 20,2003, Easter Sunday, the victim, who was ten years old at the time, and several members of her family, as part of their living arrangements, were staying with the defendant’s sister, Ella Saunders, in her apartment. Also present, among others, were Walter Saunders, the defendant’s brother, who was dating the victim’s mother, the defendant’s mother, Maggie Saunders, the defendant, and Ella Saunders’ children, Asia, Nisa, Delvin and Devante. The sleeping arrangements were such that the victim shared a room with her five year old brother, C, and Asia. On that night, the victim shared a twin bed with her brother; he slept at the head and she at the foot of the bed, while Asia slept on the floor. The victim slept on her stomach, still dressed in her Easter dress with her undergarments and shoes on. At some point, the defendant entered the room and shook the victim’s arm, telling her that her mother wanted her. The victim feigned sleep and ignored the defendant, who then went into the hall outside the room. Once there, the defendant had a brief conversation with someone who then went downstairs.

The defendant reentered the room and approached the victim, who was still feigning sleep, face down on the bed. He pulled down her undergarments and left the room again. He soon returned and removed C from the twin bed he was sharing with the victim and placed him on the floor. C did not awaken. The defendant then inserted his penis into the victim’s vagina. The defendant had lubricated his penis with shampoo that burned the victim’s vagina. The defendant then tried to insert his penis fully into the victim’s vagina for five minutes to no avail. During the assault, the victim continued to feign sleep in fear that had she not, the defendant would have physically assaulted her. After ending his efforts, the defendant pulled the victim’s undergarments back up, placed C back on the bed and left the room. Neither of the children sharing the room with the victim awoke during the incident. The next morning, the victim awoke before anyone in the house and went into the bathroom that was located next to the bedroom she slept in. The victim saw a bottle of shampoo placed on the toilet and started to cry. The victim did not immediately report the assault.

On October 29, 2003, the victim was at home with C and her older brother, D, while their mother was at work. She and D were watching the movie “The Color Purple” on television. In the movie, there is a scene in which a character is raped by her father and becomes pregnant. After viewing the movie, the victim had a violent outburst in which she destroyed several glass figurines and other items she kept in her bedroom. D intervened, asking the victim what was wrong with her. The victim told D that the defendant had raped her. D then called their mother and reported to her what the victim had told him. The victim’s mother came home and called the police. Joann Sodan, a police officer, arrived at the scene and interviewed the victim. The victim reported to Sodan that the defendant had raped her on Easter Sunday, 2003. She also told Sodan that during the assault, she lay face down on her stomach. Subsequently, the victim picked the defendant’s photograph out of a photographic array at the police department. The defendant was charged by substitute long form information with sexual assault in the first degree and risk of injury to a child. After a trial to the jury, the defendant was found guilty of both crimes. The court imposed a total effective sentence of ten years imprisonment followed by fifteen years of special parole. This appeal followed.

I

The defendant claims first that there was insufficient evidence to support his conviction of both charges because the state failed to prove beyond a reasonable doubt that he was the perpetrator of the assault. In other words, the defendant claims that by itself, the victim’s identification of him as the perpetrator, under the circumstances, fails to establish beyond a reasonable doubt his identity as the perpetrator. We disagree.

“The standard of review employed in a sufficiency of the evidence claim is well settled. [W]e apply a two part test. First, we construe the evidence in the light most favorable to sustaining the verdict. Second, we determine whether upon the facts so construed and the inferences reasonably drawn therefrom the [jury] reasonably could have concluded that the cumulative force of the evidence established guilt beyond a reasonable doubt. . . .

“It is within the province of the jury to draw reasonable and logical inferences from the facts proven. . . . The jury may draw reasonable inferences based on other inferences drawn from the evidence presented. . . . Our review is a fact based inquiry limited to determining whether the inferences drawn by the jury are so unreasonable as to be unjustifiable. . . .

“[T]he inquiry into whether the record evidence would support a finding of guilt beyond a reasonable doubt does not require a court to ask itself whether it believes that the evidence . . . established guilt beyond a reasonable doubt. . . . Instead, the relevant question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. . . . We do not sit as a [seventh] juror who may cast a vote against the verdict based upon our feeling that some doubt of guilt is shown by the cold printed record. . . . Furthermore, [i]n our review of the evidence to determine its sufficiency, we do not look at the evidence to see whether it supports the defendant’s innocence. . . . Instead, our focus is whether there is a reasonable view of the evidence that supports the [trier’s] verdict of guilty.” (Citations omitted; internal quotation marks omitted.) State v. Fleming, 111 Conn. App. 337, 342-43, 958 A.2d 1271 (2008), cert. denied, 290 Conn. 903, 962 A.2d 794 (2009).

The defendant claims essentially that the victim’s identification of him as the perpetrator of the assault against her is insufficient as a matter of law to support his conviction of these crimes. He argues that because there was no physical evidence or any corroborating witness and the assault took place in a dark room, just after the victim woke up and while the victim remained face down feigning sleep, the victim lacked the opportunity to observe him and, thus, accurately to identify him as the person who assaulted her. The defendant bolsters this claim by arguing that the assault took place in a room with two sleeping children, in a house full of people just after the victim heard the defendant converse with another party in the hallway and that it is just as likely that this other person committed the assault rather than the defendant. Moreover, the defendant contends, the victim’s identification is based on her conclusion that it was the defendant who assaulted her as opposed to what she actually saw.

Although the defendant couches his argument in terms of insufficiency of the evidence, he confuses, however, the issues of sufficiency and credibility. As just noted, “[o]ur task is to view the evidence in the light most favorable to sustaining the verdict before determining if the jury reasonably could have concluded that such evidence established guilt beyond a reasonable doubt. . . . We assume that the jury credited the evidence that supports the conviction if it could reasonably have done so. Questions of whether to believe or to disbelieve a competent witness are beyond our review. As a reviewing court, we may not retry the case or pass on the credibility of witnesses. . . . We must defer to the trier of fact’s assessment of the credibility of the witnesses that is made on the basis of its firsthand observation of their conduct, demeanor and attitude.” (Citation omitted; internal quotation marks omitted.) State v. Osoria, 86 Conn. App. 507, 514-15, 861 A.2d 1207 (2004), cert. denied, 273 Conn. 910, 870 A.2d 1082 (2005).

We note, that although “[i]t is black letter law that in any criminal prosecution, the state bears the burden of proving beyond a reasonable doubt the defendant’s identity as one of the perpetrators of the crime charged”; (internal quotation marks omitted) State v. Fleming, supra, 111 Conn. App. 343; “it is for the trier of fact to determine the weight to be given [an] identification.” State v. Morgan, 274 Conn. 790, 802, 877 A.2d 739 (2005). Although the victim did not report the assault immediately, the testimony reveals that she consistently reported—to family, law enforcement and an examining physician—that it was the defendant who assaulted her. Moreover, she chose the defendant from a police photographic array and identified him in court as the person who assaulted her. See id. (“in-court identifications . . . [are] sufficient evidence by themselves to allow the tiler of fact to conclude that it was the defendant who committed the crimes charged”). On the record before us, the jury was free to credit the victim’s testimony. Because we cannot decide issues of credibility, the defendant’s claim must fail.

II

Next, the defendant claims that the court improperly allowed the state to comment on missing witnesses during final argument. Specifically, the defendant contends that (1) there was no factual basis for the state to comment on one missing witness in particular, (2) the testimony of the missing witnesses would have been cumulative and allowing the state to comment on them was an abuse of discretion and (3) the state’s comments exceeded the scope of permissible comments allowed under State v. Malave, 250 Conn. 722, 737 A.2d 442 (1999) (en banc), cert. denied, 528 U.S. 1170, 120 S. Ct. 1195, 145 L. Ed. 2d 1099 (2000). We conclude that these issues were not preserved at trial and, accordingly, do not reach the merits of this claim.

During the trial, Elizabeth Rhodes testified that the defendant was at her home in North Carolina on April 20, 2003. She testified that the defendant showed up at her house with his infant son sometime in the morning and stayed all day. She testified that her son-in-law, Bruce Bulla, and stepdaughter, Anitra Bulla, were present when the defendant arrived and that they all spent the holiday together having a cookout. She also testified that the defendant stayed until just before dark. There was also testimony from Rhodes that indicated that her husband was present in the home while the defendant and his infant son were there. The defendant did not call any of these individuals to testify as witnesses. The state asked the court’s “permission during [its] rebuttal closing argument to comment on certain—the absence of certain witnesses and [assured the court that its] argument will go no further than that.” The defendant objected to the state’s request as follows: “[T]here’s probably two different issues. Regarding the comments with regard to [Rhodes’ testimony], I think she said her stepdaughter or others who were down in North Carolina, it’s probably fair game to say that from all the people that were there, only [Rhodes] testified. That’s simply a fact. To say that [the defendant] could have produced, it’s just as difficult for us to produce [a potential witness from North Carolina] on short notice . . . as it is for the state to get [another potential witness from North Carolina] here. Now, as for the other witnesses that were relatives of [the defendant] here [in Connecticut] . . . they were on the state’s witness list and they didn’t produce them.” It seems that the defendant’s arguments were twofold: (1) that the missing North Carolina witnesses would have been difficult to produce; and (2) that the missing local witnesses, members of the defendant’s family, were on the state’s witness list, the state failed to call them as witnesses, and therefore the state should be precluded from commenting on the defendant’s failure to call any of the witnesses.

The court, after reviewing Malave, allowed the state only to “comment [in closing argument] insofar as the— those witnesses reflect on the weakness of the opposing party’s alibi. So, [the state will] have to confine [itself] to drawing attention to the absence of those people. . . . Those named people. And under Malave, I think this is allowed. I think [the state] followed the proper procedure for notifying the bench and [the defendant that it] intendfs] to argue this. . . . And I’ve noted [the defendant’s] objection.” In its rebuttal closing argument, the state made the following comments: “[L]et’s talk about Rhodes’ testimony. Was that testimony corroborated? We did not hear from her husband. Her husband was seated in the back room of the courthouse—of the courtroom—the backseat of the courtroom. She testified he saw [the defendant] that day. Did we hear from him? We didn’t hear from him. She talked about her; I think she said [that her] stepdaughter and son-in-law were present as well. We didn’t hear from them, either, and I believe her testimony was, ‘I would have brought them.’ She didn’t bring them. We didn’t hear from them. And this is a woman who has six children, ten grandchildren, big in the community, and those were the only people who were at her house that day and we did not hear from them.

“Corroboration could have also come from members of the defendant’s family themselves. You heard [the state’s] witnesses say that Easter [Sunday] 2003 or that during week, Ella Saunders, Theresa Saunders, Maggie Saunders [and] Walter Saunders were all present that day. That’s the testimony you heard from the state’s witnesses [who] were present on [April 20, 2003] and resided in that house. We didn’t hear from any of those people, and, as we know, Maggie Saunders has been in the courtroom every day since we started this trial. Did we hear from her? We did not.” The defendant did not make any further objection at any time subsequent to these statements or request a curative instruction.

On appeal, the defendant makes three arguments concerning these comments made by the state during final argument. First, the defendant contends that there was no factual basis for the state’s commenting on Rhodes’ husband’s not testifying because the evidence established that he had not returned from work prior to the defendant’s leaving the Rhodes’ residence. Second, the defendant argues that the testimony of the potential North Carolina witnesses would have been cumulative, and, therefore, allowing the state to comment on the missing witnesses was an abuse of discretion. Last, the defendant argues that the state’s comments exceeded the scope of permissible comments allowed under Malave by implicitly and improperly inviting the jury to draw an adverse inference that the testimony of Rhodes’ husband would not have supported the defendant’s alibi.

“Appellate review of evidentiary rulings is ordinarily limited to the specific legal [ground] raised by the objection of trial counsel. ... To permit a party to raise a different ground on appeal than [that] raised during trial would amount to trial by ambuscade, unfair both to the trial court and to the opposing party.” (Internal quotation marks omitted.) State v. Stenner, 281 Conn. 742, 755, 917 A.2d 28, cert. denied, 552 U.S. 883, 128 S. Ct. 290, 169 L. Ed. 2d 139 (2007); see also Practice Book § 60-5. At trial, the defendant’s objections were based on the difficulty in getting the North Carolina witnesses to Connecticut and the fact that the state did not call as witnesses the members of the defendant’s family that it wanted to comment on. On appeal, the defendant is abandoning those arguments in favor of the three arguments detailed previously. “Inasmuch as the defendant raises a claim on appeal different from the one that he raised at trial, he is not entitled to review of his claim.” State v. Sandoval, 263 Conn. 524, 556, 821 A.2d 247 (2003). Accordingly, the defendant’s claim fails.

III

The defendant next claims that the state engaged in prosecutorial impropriety during final argument and, therefore, deprived him of his due process right to a fair trial. We disagree.

The defendant concedes that he did not object to the alleged instance of prosecutorial impropriety at trial. “Once prosecutorial impropriety has been alleged, however, it is unnecessary for a defendant to seek to prevail under State v. Golding, 213 Conn. 233, 239-40, 567 A.2d 823 (1989), and it is unnecessary for an appellate court to review the defendant’s claim under Golding. . . . The reason for this is that the touchstone for appellate review of claims of prosecutorial [impropriety] is a determination of whether the defendant was deprived of his right to a fair trial, and this determination must involve the application of the factors set out by this court in State v. Williams, 204 Conn. 523, 540, 529 A.2d 653 (1987).” (Internal quotation marks omitted.) State v. Pascal, 109 Conn. App. 55, 66, 950 A.2d 566, cert. denied, 289 Conn. 917, 957 A.2d 880 (2008). Furthermore, “[i]n analyzing claims of prosecutorial impropriety, we engage in a two step analytical process. . . . The two steps are separate and distinct. . . . We first examine whether prosecutorial impropriety occurred. . . . Second, if an impropriety exists, we then examine whether it deprived the defendant of his due process right to a fair trial. ... If we conclude that prosecutorial impropriety has occurred, we then must determine, by applying the- six factors enumerated in State v. Williams, supra, [540], whether the entire trial was so infected with unfairness so as to deprive the defendant of his due process right to a fair trial. . . . These factors include the extent to which the impropriety was invited by defense conduct, the severity of the impropriety, the frequency of the impropriety, the centrality of the impropriety to the critical issues in the case, the effectiveness of the curative measures adopted and the strength of the state’s case.” (Citations omitted; internal quotation marks omitted.) State v. Pascal, supra, 67. We now turn to the defendant’s argument.

As noted previously, in its rebuttal final argument, the state made the following comments: “[L]et’s talk about Rhodes’ testimony. Was that testimony corroborated? We did not hear from her husband. Her husband was seated in the back room of the courthouse—of the courtroom—the backseat of the courtroom. She testified [that] he saw [the defendant] that day. Did we hear from him? We didn’t hear from him.” The defendant argues that the statement—“[s]he testified [that] he saw [the defendant] that day”—alluded to facts that were not in evidence and, thus, constituted prosecutorial impropriety. The state counters that it confined its rebuttal argument properly to evidence adduced at trial and the reasonable inferences drawn therefrom. It is the following exchange that is at the crux of the defendant’s claim, which took place during the state’s cross-examination of Rhodes:

“Q. So, then what did you do after [the defendant] left?

“A. I was waiting for my husband to come home

“Q. And what time does your husband get home?

“A. He got home—well, he got most time—a twelve to fourteen hour shift sometimes.

“Q. So, you—do you recall what time your husband came home on Easter of 2003?

“A. Right before dark. That’s all.

“Q. Right before dark? Was [the defendant] still there when your husband came home?

“A. Yeah.

“Q. Was the baby still there?

“A. He left with the baby.”

The defendant argues that this exchange supports the conclusion that Rhodes’ husband did not see the defendant at his home on April 20, 2003, and, therefore, the defendant was deprived of a fair trial because the prosecutor improperly referred to facts that were not in evidence during final argument. The defendant contends that Rhodes’ affirmative response to the questions “Right before dark? Was [the defendant] still there when your husband came home?” was merely an answer to the first question, leaving the second question unanswered. Therefore, the defendant asserts, the evidence supported a finding that Rhodes’ husband did not arrive home until after the defendant left and was not a witness who could have supported his alibi. On this basis, the defendant argues that the state’s contention otherwise—that he saw the defendant that day—amounted to prosecutorial impropriety. The state, however, counters that this very exchange supports the opposite conclusion. The state contends that Rhodes’ testimony is merely inconsistent on the subject and supports the conclusion that her husband did arrive home from work that day while the defendant was present, and, as a result, it is reasonable to infer that he would have seen the defendant at his home in North Carolina on April 20, 2003, and could have testified in support of the defendant’s alibi.

As noted, the first step in our analysis is to determine whether the prosecutor’s statements properly can be characterized as an impropriety. In so doing, we must bear in mind that “a prosecutor properly may ask the jury to draw reasonable inferences based on the evidence at trial.” State v. Batista, 101 Conn. App. 623, 635, 922 A.2d 1116, cert. denied, 284 Conn. 918, 933 A.2d 721 (2007). We conclude that the statements claimed by the defendant to amount to prosecutorial impropriety were arguments presented by the state during its final argument that were based on reasonable inferences drawn from the evidence in the case. To be sure, Rhodes’ testimony about the timing of her husband’s return from work on that day is not the picture of clarity. We cannot conclude, however, as the defendant urges us, that this testimony categorically establishes that Rhodes’ husband did not arrive home until after the defendant left and therefore did not see the defendant that day. This inconsistent testimony simply does not warrant such a categorical, one-sided conclusion. Although the inference that Rhodes’ husband did not arrive home while the defendant was still present is supported by Rhodes’ testimony, this circumstance alone does not foreclose the contradictory inference from being drawn reasonably from this inconsistent testimony. A conclusion supported plausibly by the testimony of Rhodes, on the record before us, is that her husband did arrive home before the defendant left, and, on that basis, it is a reasonable inference that he did see the defendant that day. Accordingly, we conclude that the statements made by the state during its rebuttal final argument cannot be characterized properly as prosecutorial impropriety.

The judgment is affirmed.

In this opinion the other judges concurred.

       General Statutes § 53a-70 (a) provides in relevant part: “A person is guilty of sexual assault in the first degree when such person ... (2) engages in sexual intercourse with another person and such other person is under thirteen years of age and the actor is more than two years older than such person . . . .”

       General Statutes § 53-21 (a) (2) provides in relevant part that a person is guilty of risk of injury to a child when he “has contact with the intimate parts, as defined in section 53a-65, 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 . . .

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

       During direct examination, the victim stated that it was a female with whom the defendant spoke in the hallway. During cross-examination, however, the victim stated that she did not know if the person with whom the defendant spoke to in the hall was a man or a woman.

       The victim and her family had moved to another residence.

       “In Malave, our Supreme Court abandoned, in criminal cases, the [rule of Secondino v. New Haven Gas Co., 147 Conn. 672, 165 A.2d 598 (1960)], also known as the missing witness rule, which sanctioned, under certain circumstances, a jury instruction that an adverse inference may be drawn from the failure of a party to produce a witness. Although our Supreme Court abandoned the Secondino rule, it did not intend to ‘prohibit counsel from making appropriate comment, in closing arguments, about the absence of a particular witness, insofar as that witness’ absence may reflect on the weakness of the opposing party’s case.’ [State v. Malave, supra], 739. Comments in closing argument that do ‘not directly exhort the jury to draw an adverse inference by virtue of the witness’ absence’ do not necessarily fall under the ambit of Secondino-, id.; and accordingly are not forbidden by Malave. Our Supreme Court further provided that ‘[o]f course, the trial court retains wide latitude to permit or preclude such a comment, and may, in its discretion, allow a party to adduce additional evidence relative to the missing witness issue.’ ” State v. Graham, 67 Conn. App. 45, 48-49, 787 A.2d 11 (2001), cert. denied, 259 Conn. 911, 789 A.2d 996 (2002). Furthermore, “[cjounsel may comment [in closing argument] upon facts properly in evidence and upon reasonable inferences to be drawn from them. . . . Counsel may not, however, comment on or suggest [in closing argument] an inference from facts not in evidence. . . . Similarly, a party cannot merely comment on the failure of the opposing party to present a witness without first providing a factual or evidentiary foundation from which to infer a weakness in the opposing party’s case.” (Citation omitted; emphasis in original; internal quotation marks omitted.) Id., 49-50.

       See part III.

       Upon the court’s request, the state clarified what it was seeking permission to say in its closing argument: “I want to state essentially that other than [Rhodes’ testimony], there’s—there’s no other corroborating evidence to support [that] testimony [and] that Maggie Saunders, Ella Saunders, Walter Saunders, Theresa Saunders, [Rhodes’] husband . . . stepdaughter and son-in-law all were absent and did not testily in this case, and that’s where my comments will end because I—I don’t think I can go any further than that.
      “And the [Malave decision] indicates that if it is a party who the—who, in this case, the defendant had in his power to produce and would naturally have produced, I think I can, under [Malave] comment just on the absence of those parties.”

       Testimony that took place in the presence of the jury indicates that Rhodes’ husband was in the courtroom during the defendant’s trial. During the defendant’s direct examination of Rhodes, the following exchange occurred:
      “Q. First things first. Who—who’s this gentleman in the back who’s smiling at you?
      “A. That’s my husband.
      “Q. Okay. And in fact, he accompanied you up here from North Carolina this morning, did he not?
      “A. Yes, sir.”

       Practice Book § 60-5 provides in relevant part: “The court shall not be bound to consider a claim unless it was distinctly raised at the trial or arose subsequent to the trial. ...”

       The defendant also requested review of this claim pursuant to State v. Golding, 213 Conn. 233, 239-40, 567 A.2d 823 (1989), but did not provide adequate analysis of it under Golding's four-pronged test. “[C]laims on appeal that are inadequately briefed are deemed abandoned. . . . This rule applies to claims that the defendant is entitled to . . . Golding review.” (Internal quotation marks omitted.) State v. Miller, 59 Conn. App. 406, 410, 757 A.2d 69 (2000), cert. denied, 255 Conn. 942, 769 A.2d 60 (2001). Accordingly, we decline to afford the defendant’s claim Golding review.
      Moreover, although the defendant characterizes his claim as constitutional, it is clear that it involves an evidentiary, rather than a constitutional, issue. See State v. Malave, supra, 250 Conn. 738.

       Even if we assume arguendo that the defendant preserved his claim properly, he could not prevail because he has failed to establish that the court abused its discretion in allowing the state to make the comments at issue. As this court has stated: “The broad discretion vested in trial courts by Malave mirrors the general standards regarding the trial court’s ability to limit closing argument. [T]he scope of final argument lies within the sound discretion of the court . . . subject to appropriate constitutional limitations. ... It is within the discretion of the trial court to limit the scope of final argument to prevent comment on facts that are not properly in evidence, to prevent the jury from considering matters in the realm of speculation and to prevent the jury from being influenced by improper matter that might prejudice its deliberations.” (Internal quotation marks omitted.) State v. Graham, 67 Conn. App. 45, 49, 787 A.2d 11 (2001), cert. denied, 259 Conn. 911, 789 A.2d 996 (2002). Our review of the record and briefs indicate that the defendant has failed to establish an abuse of discretion by the court.

       See footnote 9. Also, the defendant has not claimed on appeal that this factual assertion by the state amounted to prosecutorial impropriety.

       We note that at no time did the defendant attempt to clarify the testimony of Rhodes by further questioning her during redirect examination or otherwise attempt to resolve the inconsistency in her testimony.


source: Caselaw Access Project

author: LAVINE, J.

license: Public Domain

text:
    KING’S HIGHWAY ASSOCIATES ET AL. v. PLANNING AND ZONING COMMISSION OF THE TOWN OF NORTH HAVEN
    (AC 29441)
    Harper, Lavine and Robinson, Js.

      Argued January 12
    officially released May 19, 2009

      John A. Párese, with whom was Chris R. Nelson, for the appellant (defendant).

      Stephen G. Murphy, Jr., for the appellees (plaintiffs).
   Opinion

LAVINE, J.

The defendant, the planning and zoning commission of the town of North Haven (commission), appeals from the judgment of the trial court rendered after it sustained the appeal of the plaintiffs, King’s Highway Associates, Valley View Associates and Michael K. Murphy, from the commission’s denial of their resubdivision application (application). On appeal to this court, the commission claims that the trial court improperly (1) concluded that the commission lacked authority to consider the water supply for the resubdivision and (2) substituted its judgment for that of the commission with respect to (a) a drainage plan and (b) the need for sidewalks in the plaintiffs proposed resubdivision. We affirm the judgment of the trial court.

The following facts are not in dispute. The plaintiffs are the owners of 15.88 acres of real property (land) at 320 King’s Highway in North Haven (town), an R-40 zone. Subdivision applications concerning the land have been before the commission on several prior occasions. In 1998, King’s Highway Associates proposed a thirteen lot subdivision. After meeting with the commission’s staff, King’s Highway Associates proposed a nine lot subdivision, which the commission approved. When approval of the nine lot subdivision expired, the plaintiffs submitted two more nine lot subdivision proposals, which the commission denied. On November 8, 2005, the plaintiffs submitted the application to create two lots. The application called for a house to be constructed on lot one only and for an existing structure on the northwest comer of the land to be removed. The commission held a hearing on the application on February 6, 2006, and continued the matter until March 6, 2006, when it unanimously denied the application. The commission gave three reasons for the denial: the plan did not provide for sidewalks, it did not provide for drainage, and the water main did not extend across the entire length of the land bordering on King’s Highway.

The plaintiffs appealed to the trial court, claiming that the commission had acted illegally, arbitrarily and in abuse of its discretion by denying the application because the subdivision regulations do not require the plaintiffs to install a water main across the entire length of land adjacent to King’s Highway or to install sidewalks on both sides of King’s Highway, and because there was no evidence that the proposed resubdivision would result in any drainage problems. The court sustained the appeal, concluding that the commission lacked jurisdiction to consider the water main extension, there was no evidence of a drainage problem, the sidewalk regulations were ambiguous, and requiring sidewalks on both sides of King’s Highway led to an unreasonable result that unfairly restricted the plaintiffs’ use of the land. This court granted the commission’s petition for certification to appeal.

I

The resolution of the commission’s appeal requires us to construe the town’s zoning regulations, a question of law to which the plenary standard of review applies. See Fedus v. Zoning & Planning Commission, 112 Conn. App. 844, 848, 964 A.2d 549 (2009).

A municipality’s authority to regulate the subdivision of land comes from the state. General Statutes § 8-25 (a) provides in relevant part: “No subdivision of land shall be made until a plan for such subdivision has been approved by the commission. . . . Before exercising the powers granted in this section, the commission shall adopt regulations covering the subdivision of land. . . . Such regulations shall provide that the land to be subdivided shall be of such character that it can be used for building purposes without danger to health or the public safety, that proper provision shall be made for water, sewerage and drainage . . . .” See Property Group, Inc. v. Planning & Zoning Commission, 226 Conn. 684, 690-91, 628 A.2d 1277 (1993) (§ 8-25 directs municipalities to regulate land to be subdivided).

“[Z]oning regulations are local legislative enactments . . . and, therefore, their interpretation is governed by the same principles that apply to the construction of statutes.” (Internal quotation marks omitted.) Fedus v. Zoning & Planning Commission, supra, 112 Conn. App. 848. “When construing a statute, [o]ur fundamental objective is to ascertain and give effect to the apparent intent of the legislature. ... In other words, we seek to determine, in a reasoned manner, the meaning of the statutory language as applied to the facts of [the] case, including the question of whether the language actually does apply. ... In seeking to determine that meaning, General Statutes § l-2z directs us first to consider the text of the statute itself and its relationship to other statutes. If, after examining such text and considering such relationship, the meaning of such text is plain and unambiguous and does not yield absurd or unworkable results, extratextual evidence of the meaning of the statute shall not be considered. . . . When a statute is not plain and unambiguous, we also look for interpretive guidance to the legislative history and circumstances surrounding its enactment, to the legislative policy it was designed to implement, and to its relationship to existing legislation and common law principles governing the same general subject matter . . . .” (Internal quotation marks omitted.) Fedus v. Planning & Zoning Commission, 278 Conn. 751, 756, 900 A.2d 1 (2006).

An appellate court seeks “to determine the intent of the local legislative body as manifested in the words of the regulation; however, as zoning regulations are in derogation of common-law property rights, the regulation cannot be construed beyond the fair import of its language to include or exclude by implication that which is not clearly within its express terms.” (Internal quotation marks omitted.) 200 Associates, LLC v. Planning & Zoning Commission, 83 Conn. App. 167, 172, 851 A.2d 1175, cert. denied, 271 Conn. 906, 859 A.2d 567 (2004). “Ordinarily, [appellate courts afford] deference to the construction of a statute applied by the administrative agency empowered by law to carry out the statute’s purposes. . . . Cases that present pure questions of law, however, invoke a broader standard of review than is ordinarily involved in deciding whether, in light of the evidence, the agency acted unreasonably, arbitrarily, illegally or in abuse of its discretion. . . . Furthermore, when [an] agency’s determination of a question of law has not previously been subject to judicial scrutiny . . . the agency is not entitled to special deference. . . . [I]t is for the courts, not administrative agencies, to expound and apply governing principles of law.” (Internal quotation marks omitted.) Fedus v. Zoning & Planning Commission, supra, 112 Conn. App. 848-49.

A subdivision application is subject to the commission’s administrative authority. “A municipal planning commission, in exercising its function of approving or disapproving any particular subdivision plan, is acting in an administrative capacity and does not function as a legislative, judicial or quasi-judicial agency . . . .” (Internal quotation marks omitted.) Pansy Road, LLC v. Town Plan & Zoning Commission, 283 Conn. 369, 375, 926 A.2d 1029 (2007). “The commission is entrusted with the function of interpreting and applying its zoning regulations. . . . The trial court must determine whether the commission has correctly interpreted its regulations and applied them with reasonable discretion to the facts. . . . The plaintiffs have the burden of showing that the commission acted improperly. . . . The trial court can sustain the [plaintiffs’] appeal only upon the determination that the decision of the commission was unreasonable, arbitrary or illegal .... It must not substitute its judgment for that of the . . . commission and must not disturb decisions of local commissions as long as honest judgment has been reasonably and fairly exercised. . . . It is an appellate court function to determine whether the judgment of the trial court was clearly erroneous or contrary to the law; appellate review excludes the retrial of the facts. . . . The Appellate Court does not determine whether the trier of facts could have reached a conclusion other than the one reached. It looks both at the conclusion reached and the method by which it was reached to determine whether that conclusion is correct and factually supported.” (Internal quotation marks omitted.) 200 Associates, LLC v. Planning & Zoning Commission, supra, 83 Conn. App. 171-72.

“Conclusions reached by the commission must be upheld by the trial court if they are reasonably supported by the record. The credibility of the witnesses and the determination of issues of fact are matters solely within the province of the agency. The question is not whether the trial court would have reached the same conclusion, but whether the record before the agency supports the decision reached. . . . The action of the commission should be sustained if even one of the stated reasons is sufficient to support it. . . . The evidence, however, to support any such reason must be substantial .... This so-called substantial evidence rule is similar to the sufficiency of the evidence standard applied injudicial review of jury verdicts, and evidence is sufficient to sustain an agency finding if it affords a substantial basis of fact from which the fact in issue can be reasonably inferred. . . . [I]t must be enough to justify, if the trial were to a jury, a refusal to direct a verdict when the conclusion sought to be drawn from it is one of fact for the jury.” (Citations omitted; internal quotation marks omitted.) DeBeradinis v. Zoning Commission, 228 Conn. 187, 198-99, 635 A.2d 1220 (1994).

II

The commission’s first claim is that the court improperly concluded that the commission lacked authority to consider the manner in which water was supplied to the land. The court concluded that the regional water authority is the agency designated to address issues concerning water supply. We agree with the court.

The court stated that the controlling statute is General Statutes § 7-148 (c), which provides in relevant part: “Any municipality shall have the power to do any of the following, in addition to all powers granted to municipalities under the Constitution and general statutes . . . (4) . . . (G) Provide for the furnishing of water, by contract or otherwise . . . .” The town’s subdivision regulations provide in relevant part: “All subdivision plans shall make proper provision for water supply, and lots which are not served by a public water supply system shall be large enough and so laid out to allow a distance of not less than [seventy-five] feet between any well used for such purpose and any portion of any sewage disposal.” North Haven Subdivision Regs., § 3.3. Moreover, the regulations provide, in relevant part: “In the case of subdivisions served by public water supply, all necessary mains, branch offsets, fire hydrants and other necessary appurtenances shall be installed as approved by the municipal department and the corporation having jurisdiction.” Id., § 3.8. Lot one is to be supplied with public water service.

The court formulated the issue as whether the commission had the power to deny the plaintiffs’ application because it failed to show a water main extension across the entire length of the land on King’s Highway, a distance of 960 feet. The length of lot one adjacent to King’s Highway is approximately 160 feet. The court noted that the commission conceded in its brief that “there is no provision in the [town’s] subdivision regulations that explicitly requires the extension of the water main at issue . . . across the entire frontage of the subdivision tract.” The commission also acknowledged that the municipal corporation referred to in § 3.8 of the town’s subdivision regulations is the South Central Connecticut Regional Water Authority (water authority). The water authority was created by the General Assembly through Special Acts 1977, No. 77-98, for the “primary purpose of providing and assuring the provision of an adequate water supply of pure water at reasonable cost within the South Central Connecticut Regional Water District.” The town is in the water authority’s district.

The plaintiffs placed the water authority’s regulations in evidence before the court. The court noted the following relevant regulations: “I. DEFINITIONS . . . ‘Extension’—the linear footage of main required in order to service property(ies) according to the terms and conditions set forth by these rules. ... II. GENERAL PRINCIPLES ... 2. An extension is under the sole control and jurisdiction of the Authority. ... 10. The Authority will determine the required length, size, material, routing and location of an extension, based in general on the following principles . . . (b) Extensions installed in streets within a . . . subdivision will include all mains required to cover buildings to be served by the . . . subdivision to intersecting streets.” Regional Water Authority, Rules, Regulations & Rates Governing The Extension of Water Mains (Rev. February 19, 1998) pp. 1, 3. The court concluded that the water authority is the agency that is designated to address issues concerning water supply and water main extensions and that the commission, therefore, had no authority to deny the application. The application indicates that the existing water supply reaches lot one, which is the one to be developed. To require the plaintiffs to extend the water main beyond that basic requirement exceeds the town’s regulations, which designate that the water authority has jurisdiction over those issues.

Moreover, the court found that the water authority is the agency charged with protecting the town’s interest in supplying water. “A land use agency acting upon an administrative application should review it based upon its own regulations and whether the application meets them. Compliance or non-compliancé with the regulations of another agency is not a proper consideration, and that should be left for the other agency to decide if and when an application is made to it for the same property.” R. Fuller, 9 Connecticut Practice Series: Land Use law and Practice (3d Ed. 2007) § 21.5, pp. 608-609.

The court also concluded that even if the commission had authority to require the plaintiffs to extend the water main along the land adjacent to King’s Highway, such an extension was not necessary for any rational purpose stated in the subdivision regulations. There is no dispute that the existing water supply reaches the southern portion of lot one. That is the concern that § 3.3 of the subdivision regulations permits the commission to address. The court found no evidence, let alone substantial evidence, on which the commission could rely in denying the application for failing to extend the water main along all of the land adjacent to King’s Highway. The court concluded that to require the plaintiffs to construct a water main on land where no development was planned would place an unjustified burden on the plaintiffs’ right to make use of their land. To the extent that an extension of the water main would benefit neighboring property owners, the court concluded that such a requirement was inappropriate.

On the basis of our plenary review of the relevant regulations and the record, we conclude that the court properly determined that the commission lacked authority to require the plaintiffs to construct a water main across the land adjacent to King’s Highway. The plain language of the subdivision regulations makes clear that the means of supplying water to the land falls within the purview of the water authority. Also, there is no substantial evidence in the record that the land will not be supplied with water as required by General Statutes § 7-148 (c).

Ill

The commission’s second claim is that the corut improperly substituted its judgment with respect to a drainage plan. We disagree because, as the court found, there was no evidence that supported the commission’s decision to disregard the opinion of the plaintiffs’ expert with respect to drainage on the land.

“In appraising the sufficiency of this record, the court must determine only whether there was substantial evidence which reasonably supported the administrative decision, since [t]he credibility of witnesses and the determination of factual issues are matters within the province of the administrative agency. . . . The party challenging the agency decision has the burden to show that substantial evidence does not exist in the record as a whole to support the agency’s decision.” (Citation omitted; internal quotation marks omitted.) Fanotto v. Inland Wetlands Commission, 108 Conn. App. 235, 239, 947 A.2d 422, cert. granted on other grounds, 289 Conn. 908, 957 A.2d 869 (2008).

The subdivision regulations concerning drainage provide in relevant part: “Adequate storm water drainage shall be provided, and natural watercourse shall be altered or obstructed in such a way as to reduce the natural run off capacity unless substitute means of run off are provided. ... All provisions for storm water drainage shall be subject to the approval of the Town Engineer.” North Haven Subdivision Regs., § 3.6. “The subdivider shall construct and install all ditches, pipes, culverts, and other storm water drainage structures as required by the Commission and shall maintain them until the streets are accepted by the Town.” Id., § 3.7. In addition to the application form, for final approval of a subdivision, “the following information shall be submitted on supplementary sheets .... Methods of proposed sanitary sewage, methods of storm water drainage into existing sewers or existing natural watercourses . . . .” Id., § 8.4.4.

The commission claims authority to impose those regulations under General Statutes § 7-148 (c), which provides in relevant part: “Any municipality shall have the power to do any of the following, in addition to all powers granted to municipalities under the Constitution and general statutes . . . (6) . . . (B) . . . (i) Lay out, construct, reconstruct, repair, maintain, operate, alter, extend and discontinue . . . drainage systems . . . (iii) Regulate the laying, location and maintenance of . . . drains . . . (iv) Prohibit and regulate the discharge of drains from roofs of buildings over or upon the sidewalks, streets or other public places of the municipality or into sanitary sewers . . . .” The commission found that the application was deficient because it did not contain drainage information, and the commission was of the opinion, given prior subdivision applications, that there was a drainage problem on the land.

The court found the following facts. Scott Schatzlein, the town engineer, submitted a letter to the commission prior to the February 6, 2006 meeting in which he stated that the land had been before the commission “several times in the past as a complete subdivision of nine lots.” Schatzlein continued, stating that “[ajlthough this current application only calls for a resubdivision into two lots, the potential for further resubdivision still remains likely. Considering that a progressive (piecemeal) type process toward full subdivision potential of the property would most likely result in the same subdivision outcome without the needed public and drainage improvements ... all public improvements, as proposed for the aforementioned previous applications, should be included in this application.” The court concluded that although Schatzlein believed that “improvements” should be included in this application because they were included in prior subdivision applications and he feared piecemeal future development, Schatzlein’s belief was made “without any consideration of [drainage] problems presented by this application standing alone.” The court also found that references to drainage problems presented by the prior nine lot subdivision application were irrelevant to the two lot application before the board in February, 2006. The court reasoned that any future subdivision applications would have to be approved by the commission, ultimately concluding that Schatzlein’s letter failed to offer support for his belief that the application presented drainage problems.

The court assumed that expert testimony was required with respect to the question of drainage and found that Schatzlein’s letter and the statements he made at the public hearing were not sufficient to provide an expert basis on which the commission could deny the application. The court also found that nothing in the record would permit the court to conclude that the commission had sufficient expertise to form an opinion on the issue of drainage. Our Supreme Court has stated that “decision makers for an administrative body may not disregard competent expert testimony and rely, without more, on their own knowledge of ‘technically sophisticated and complex’ issues on which they ‘have not been shown to possess expertise . . . .’ Feinson v. Conservation Commission, 180 Conn. 421, 427, 429, 429 A.2d 910 (1980); see Jaffe v. Dept. of Health, 135 Conn. 339, 349-50, 64 A.2d 330 (1949) (questions that go ‘beyond the field of the ordinary knowledge and expertise’ of trier of fact may require expert testimony) . . . .” (Citations omitted.) Rural Water Co. v. Zoning Board of Appeals, 287 Conn. 282, 296-97, 947 A.2d 944 (2008).

The court found that the only evidence regarding drainage came from the plaintiffs’ professional engineer, E. Paul Lambert, when answering a question from Vem Carlson, the head of the commission. After reciting the colloquy, the court found it significant that one house would be built on lot one and that the existing house and bam on the northwest comer of the land would be tom down. The court found that “when pressed on the fact that he had presented no runoff figures from the proposed lot one or this northwest comer area . . . Lambert made a commonsense observation that the ‘footprint’ on the proposed house was 1800 to 2000 square feet, while the buildings to be taken down . . . were around 1800 square feet. ... In his professional opinion, Lambert said, there would be a ten flow difference between runoff resulting from the structures proposed to be removed and this one lot high rise. Common sense would seem to dictate the same result without the need of expert testimony.”

“[A]n administrative agency is not required to believe any witness, even an expert” witness. (Internal quotation marks omitted.) Kaeser v. Conservation Commission, 20 Conn. App. 309, 316, 567 A.2d 383 (1989). In Kaufman v. Zoning Commission, 232 Conn. 122, 156-57, 653 A.2d 798 (1995), our Supreme Court stated: “Although the commission would have been entitled to deny an application because it did not believe the expert testimony, however, the commission had the burden of showing evidence in the record to support its decision not to believe the experts—i.e., evidence which undermined either the experts’ credibility or their ultimate conclusion.” (Emphasis in original.) See R. Fuller, 9A Connecticut Practice Series: Land Use Law and Practice (3d Ed. 2007) § 33.12, p. 287. In this case, we are unable to find any evidence in the record that undermined Lambert’s opinion with respect to drainage, and during oral argument before us, the commission was not able to identify any such evidence. We therefore conclude that the court did not improperly substitute its judgment for that of the commission with respect to drainage.

IV

The commission’s third claim is that the court improperly substituted its judgment for that of the commission with respect to sidewalks. The court concluded that the relevant subdivision regulations were ambiguous and that the commission’s interpretation of its regulations would lead to an unreasonable result and unfairly restrict the plaintiffs’ use of the land. We agree with the court.

At the March 6, 2006 meeting, a commissioner stated with respect to sidewalks that the application “showed us no sidewalks, which . . . there should be,” and the commission’s motion to deny the application stated, in part, that “the plan lacking showing sidewalks.” On appeal to the trial court, the plaintiffs alleged that the commission misinterpreted § 4.8 of the subdivision regulations by requiring the plaintiffs’ application to include sidewalks on both sides of a highway bordering the subdivision. The court agreed, finding that the commission improperly required the plaintiffs’ application to identify sidewalks along 960 feet of the land bordering on King’s Highway, when only one lot was proposed and no construction was to take place on lot two, as well as 960 feet of sidewalk on the opposite side of King’s Highway. In reaching its conclusion that the commission improperly had denied the application on the basis of sidewalks, the court concluded that a literal construction of § 4.8 supported the commission’s decision. The court also concluded, however, that § 4.8 reasonably could be construed to require sidewalks only within the subdivision, as other subsections of the “Highway Standards” of the subdivision regulations refer to streets within the subdivision. The court ultimately found that the commission’s interpretation of § 4.8 led to an unreasonable and bizarre result that unfairly restricted the plaintiffs’ use of the land and, therefore, that the plaintiffs’ interpretation of § 4.8 should prevail.

Section 4.8 under “Highway Standards” provides: “Five foot wide, reinforced concrete sidewalks shall be installed on both sides of all streets, except where this requirement may be waived by the Commission, in its discretion, where it finds that the nature of the proposed development will result in little pedestrian traffic. Curbs shall be installed on both sides of all paved portions of streets and shall be either concrete or bituminous, at the discretion of the Commission, which discretion shall consider the existence and material of adjacent curbing and future development of the area. Five foot wide, reinforced concrete sidewalks and curbing shall be constructed on all new and existing roads within the subdivision and, with the exception of the type of material, same shall be constructed in accordance with specifications adopted by the Board of Selectmen. Sidewalks constructed on new roads may be waived by the Commission under the same standards as set forth above.” North Haven Subdivision Regs., § 4.8. The pertinent language is “sidewalks shall be installed on both sides of all streets . . . .”

Our canons of statutory construction provide guidance in analyzing this issue. “The court is not bound by the legal interpretation of the ordinance by the [commission], . . . Rather, the court determines legislative intent from the language used in the regulations. . . . We interpret an enactment to find the expressed intent of the legislative body from the language it used to manifest that intent. . . . Zoning regulations, as they are in derogation of common law property rights, cannot be construed to include or exclude by implication what is not clearly within their express terms. . . . The words used in zoning ordinances are to be interpreted according to their usual and natural meaning and the regulations should not be extended, by implication, beyond their expressed terms.” (Citations omitted; internal quotation marks omitted.) Northeast Parking, Inc. v. Planning & Zoning Commission, 47 Conn. App. 284, 293, 703 A.2d 797 (1997), cert. denied, 243 Conn. 969, 707 A.2d 1269 (1998). “[W]here more than one interpretation of language is permissible, restrictions upon the use of lands are not to be extended by implication . . . [and] doubtful language will be construed against rather than in favor of a [restriction] . . . .” (Internal quotation marks omitted.) Smith Bros. Woodland Management, LLC v. Planning & Zoning Commission, 88 Conn. App. 79, 86, 868 A.2d 749 (2005).

We agree with the court that § 4.8 is susceptible to more than one interpretation, i.e., (1) sidewalks are required on both sides of all streets adjacent to the land and within the subdivision or (2) sidewalks are required on both sides of streets within the subdivision. Our conclusion that § 4.8 is susceptible to more than one interpretation stems from a plain reading of § 4.8 and the other regulations within the “Highway Standards” section of the town’s subdivision regulations. See footnote 5. “Statutes must be interpreted to give meaning to their plain language and to provide a unified body of law.” U.S. Vision, Inc. v. Board of Examiners for Opticians, 15 Conn. App. 205, 214, 545 A.2d 565 (1988). The differences between § 4.8’s reference to “all streets” and the other regulations’ reference to “interior streets” and “streets in a subdivision” cannot be harmonized. Courts must presume that the legislature intended two statutes to be read together and to be construed, wherever possible, to avoid conflict between them. See Berger v. Tonken, 192 Conn. 581, 589-90, 473 A.2d 782 (1984). Moreover, if there are two possible interpretations of a statute and one alternative proves unreasonable or produces a possibility of bizarre results, the more reasonable alternative should be adopted. Pollio v. Planning Commission, 232 Conn. 44, 55, 652 A.2d 1026 (1995). The same logic applies to our reading of the applicable regulations in this case. We agree with the court that requiring the plaintiffs to construct almost 1000 feet of sidewalk on the opposite side of King’s Highway from their land when there is no evidence to justify the sidewalk is an absurd result.

General Statutes § 8-25 (a) provides in relevant part: “No subdivision of land shall be made until a plan for such subdivision has been approved by the commission. . . . Such regulations shall provide that the land to be subdivided shall be of such character . . . .” (Emphasis added.) The situation here is similar to the one this court noted in Property Group, Inc. v. Planning & Zoning Commission, 29 Conn. App. 18, 21, 613 A.2d 1364 (1992) (application failed to show that property plaintiff required to improve as condition of approval of subdivision was part of land to be subdivided), aff'd, 226 Conn. 684, 628 A.2d 1277 (1993). In the present case, the map submitted with the application failed to show that the property opposite the plaintiffs’ land on which the commission expected the plaintiffs to install almost 1000 feet of sidewalk was part of the land to be subdivided. See Property Group, Inc. v. Planning & Zoning Commission, supra, 226 Conn. 690. Moreover, there is no substantial evidence in the record that the property opposite the plaintiffs’ land is part of the subdivision. Although it is an open question whether § 8-25 empowers zoning boards to condition approval of a subdivision application on off-site improvements; id., 692; there must be some basis in the town’s regulations that justifies conditioning the approval of a subdivision application on the need for off-site improvements. Id., 691. In this case, there is nothing in the record that informs us of the need for a sidewalk on property opposite that of the land to be subdivided. We agree with the court’s conclusion that the most sensible reading of § 4.8 is that it is addressing streets only within the subdivision. For that reason, the commission’s denial of the plaintiffs’ application was unreasonable, arbitrary and illegal.

The judgment is affirmed.

In this opinion the other judges concurred.

       Section 1.3 of the North Haven subdivision regulations provides in relevant part: “resubdivision: as defined in the General Statutes, shall mean ‘a change in a map of an approved or recorded subdivision or resubdivision if such change (a) affects any street layout shown on such map, (b) affects any area reserved thereon for public use or (c) diminishes the size of any lot shown thereon and creates an additional building lot, if any of the lots shown thereon have been conveyed after the approval or recording of such map.’ ”

       An R-40 zone permits the development of lots with a minimum of 30,000 square feet.

       The application proposed two lots on the land. Lot one, rectangular in shape, contains approximately 0.92 acres with 160 feet bordering on King’s Highway. Lot two is a U-shaped parcel of approximately 14.96 acres surrounding lot one. Lot two has two segments totaling 800 feet adjacent to King’s Highway.

       In response to a question from Carlson, Lambert stated: “With regard to the runoff, the runoff from a one lot subdivision certainly is almost insignificant, particularly in view of the fact that originally this entire area at the northwest part of the parcel, when the owner purchased it, was covered with the existing house there, which is proposed to be removed at this point, plus some rather large bam facilities that certainly had a lot more impervious surfaces than a one lot subdivision does, with a house footprint that is somewhere in the range of 1800 to 2000 square feet, versus coverage on the northwest comer, that between paving that was there and the large bam structure total 6000 or 7000 square feet easily. ... In terms of quantity? Since it represents sheet flow, I would say that it represents a significant quantity difference between what was there before, and with the reduction ... I would say it is probably a ten flow difference, in my professional opinion.” Carlson responded that he understood that “it’s your professional opinion . . . .”

       The court found that when “streets are discussed along with various requirements for their layout, etc., internal subdivision streets are being referred to by the regulations . . . .” (Internal quotation marks omitted.) See North Haven Subdivision Regs., §§ 4.1 (“streets in subdivision shall have free access to . . . accepted public streets”), 4.2 (“design of the subdivision shall make provisions primarily for interior streets intended to accommodate the traffic of such subdivision”), 4.3 (“intersections of interior streets . . . interior streets shall be laid out), 4.6 (cul-de-sacs) and 4.7 (“all streets in a subdivision shall be graded, constructed and surfaced as shown on the plan of subdivision”).

       Inasmuch as the application did not include interior streets, the court concluded that the commission expected the plaintiffs’ application to show sidewalks on both sides of King’s Highway, even if the plaintiffs were going to request a waiver pursuant to § 4.8. The court concluded that a waiver request was not at issue in the appeal, stating that “[w]aiver, of course, only is relevant if the [commission’s] interpretation of the regulations is correct and sidewalks on both sides of a street bordering but not within a subdivision is required.” Because we conclude that the commission misconstrued and misapplied § 4.8, we agree that waiver is not an issue in the appeal.

       During oral argument before the trial court, counsel for the commission represented that the commission would have granted a waiver and not required the plaintiffs to construct a sidewalk on the property the plaintiffs did not own on the opposite side of King’s Highway. The court did not address counsel’s representation in its memorandum of decision. The representation, a conclusion, is not evidence before the court; Monette v. Monette, 102 Conn. App. 1, 11, 924 A.2d 894 (2007); which is limited to the evidence in the return of record.


author: GRUENDEL, J.

text:
    STATE OF CONNECTICUT v. GARY RYDER
    (AC 28448)
    Gruendel, Beach and West, Js.

      Argued September 18, 2008
    officially released May 19, 2009

      Gary Ryder, pro se, the appellant (defendant).

      Robert J. Scheinblum, senior assistant state’s attorney, with whom, on the brief, were David I. Cohen, state’s attorney, and Riclci Goldstein, assistant state’s attorney, for the appellee (state).
   Opinion

GRUENDEL, J.

We return to the case of the large reptile discovered by police in a Greenwich home. In an earlier decision by this court, State v. Ryder, 111 Conn. App. 271, 958 A.2d 797 (2008), we noted our inability to determine whether this court has subject matter jurisdiction over the present appeal and remanded the case for further fact-finding on that question. Now that the case has returned to us from the trial court, we conclude that we do have subject matter jurisdiction. Thus, the only remaining issue requiring our attention is whether the court properly denied the motions of the defendant, Gary Ryder, to suppress the evidence obtained as a result of the warrantless search of his home and to dismiss the case. We conclude that it did and, accordingly, affirm the judgment of the trial court.

The court found the following facts in its April, 2006 memorandum of decision disposing of the defendant’s motions to suppress and to dismiss: “Officer Andrew Kelly has been a member of the Stamford police department for approximately seven and one-half years. On August 15, 2004, he was working the 4 p.m. to 12 a.m. shift. He was ordered out of his daily ‘check out’ at the beginning of his shift and told to report to dispatch. Officer Kelly testified that such a procedure was unusual and done only in cases of emergency situations, such as a motor vehicle accident.

“[Kelly] was informed that the dispatcher received numerous telephone calls from a father in Vermont, who was sounding increasingly frantic. The father informed the police that his two sons took the train to Greenwich for the weekend to visit friends, that they were supposed to return to Vermont by train at the conclusion of the weekend and failed to do so. The children had been missing for approximately twenty-four hours prior to the time the father called the police, during which time the father indicated that he was constantly trying to contact them. The father was finally able to contact one of his sons, who informed him that the other son was at the defendant’s house in Greenwich. Officer Kelly was told by the dispatcher that the Vermont father and the defendant previously had a relationship and resided together. Officer Kelly also learned from the dispatcher that officers from the prior shift that day went to the defendant’s house, spoke with him about the Vermont father’s claim that his child inexplicably failed to return to Vermont and informed him that the father believed that he was at the defendant’s residence. The defendant directed the officers to another address where he stated the child was staying, which proved to be wrong information.

“Officer Kelly proceeded to the defendant’s house ... in Greenwich, which he described as an affluent area of town. He arrived at the house at [approximately] 4:30 p.m. and pulled into the beginning of the gated driveway, [the gate to which] was closed. He immediately noticed from that vantage point that there was a couch that was sticking partly out of the garage onto the driveway and a BMW convertible with its top down parked in the driveway.

“[Kelly], who was dressed in full uniform, used the intercom located at the driveway’s entrance, but received no response. . . . [H]e stepped over the low white fence and began to walk around the house, announcing the presence of the police. Officer Kelly rang the front doorbell and knocked on the front door to no avail. He then walked around the back of the house and approached a set of French doors. He observed through those doors a cot on which there was a bag of clothes that appeared suitable for a teenager, some video games and an otherwise impeccable house. Officer Kelly grabbed the handle, realized that the door was not locked and proceeded to open the door. At that point, he called for backup in accordance with police procedure relative to finding an open door in a residence. Officer Robert Smurlo arrived at the scene within a few minutes and was briefed by Officer Kelly before they entered the residence.

“Officer Kelly testified that based on the facts as he knew them to be, he believed that the missing child may be in danger inside the house. Important to that belief were the facts of a reportedly missing child, the nature of the couch and vehicle in the driveway area, no response to his repeated calls from outside the house, an unlocked door and the [child’s] clothes strewn on the cot on the first floor. For those and other reasons, Officer Kelly decided to enter the residence along with Officer Smurlo to look in places where a child may be located.

“The officers searched the first floor of the house for the child and then proceeded upstairs. At one point, Officer Kelly went into a bathroom on the second floor and noticed what appeared to be a dark figure through the bathtub shower door. The glass was frosted. He testified that he believed the dark figure was the missing child. In this regard, he testified as follows: T slid the door open to the tub. To the greatest bit of relief, just a crocodile or a large lizard [was] in the tub.’ Officer Kelly estimated that the reptile was six or seven feet in length.

“Officer Kelly closed the shower door, and he and officer Smurlo continued to search the rest of the residence for the child. Officer Kelly did not know at the time whether the possession of the reptile in the tub was illegal. The officers, having completed their search for the child, exited the residence and left the reptile still in the bathtub where they found it.”

“On September 8, 2004, almost four weeks later, the defendant was arrested on charges of risk of injury to a child in violation of General Statutes § 53-21 and illegal possession of a reptile in violation of [General Statutes] § 26-55. On March 6, 2006, the defendant moved to suppress the evidence obtained from the search of his home and to dismiss the charges against him. After a three day suppression hearing, the court denied the defendant’s motions. The state entered a nolle prosequi with regard to the charge of risk of injury to a child, and the defendant entered a plea of nolo contendere to the possession of a reptile charge, conditioned on reserving his right to appeal from the court’s ruling on his motions to suppress and to dismiss.” State v. Ryder, supra, 111 Conn. App. 273-74. The court found that the rulings on the defendant’s motion to dismiss and motion to suppress were dispositive of the case for the purposes of General Statutes § 54-94a and Practice Book § 61-6 (a) (2) (i) and sentenced him to pay a $35 fine, which he since has paid.

“On appeal, the defendant contends that the warrantless search of his house violated his right to be free from unreasonable searches and seizures pursuant to the fourth and fourteenth amendments to the federal constitution and article first, § 7, of the Connecticut constitution.” State v. Ryder, supra, 111 Conn. App. 274. In its appellate brief, the state did not address the defendant’s claim but, rather, asserted that “this court lacks subject matter jurisdiction, arguing that payment of the defendant’s fine prior to the hearing before this court rendered his appeal moot.” Id.

We concluded, in the earlier opinion, that the defendant’s appeal would indeed be moot unless he could demonstrate that payment of the fine was done involuntarily or that prejudicial collateral consequences were reasonably possible as a result of his conviction. Our rescript ordered the case remanded “for factual findings as to (1) whether facts came to light after the entry of judgment that would lead this court to conclude that there is a reasonable possibility that the defendant has suffered or will suffer prejudicial collateral consequences as a result of his conviction and (2) whether events occurred off the record that could lead this court to conclude that the payment of the fine was not done voluntarily by the defendant.” Id., 277-78.

On remand, in a convincing and thorough discussion of the law concerning mootness as it relates to the present case, the court determined that (1) payment of the fine was done involuntarily and (2) there exists a reasonable possibility that prejudicial collateral consequences would occur as a result of the defendant’s conviction. State v. Ryder, 51 Conn. Sup. 91, 976 A.2d 116 (2009). In light of the court’s conclusion, the state has conceded, and we agree, that we do have jurisdiction over the present appeal.

We therefore turn to the question of whether the defendant’s fourth amendment rights were violated by the warrantless search of his home. The fourth amendment to the United States constitution provides: “The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.” (Emphasis added.) “[Pjhysical entry of the home is the chief evil against which the wording of the [fjourth [ajmendment is directed. ... It is a basic principle of [fjourth [ajmendment law that searches and seizures inside a home without a warrant are presumptively unreasonable.” (Citation omitted; internal quotation marks omitted.) Payton v. New York, 445 U.S. 573, 585-86, 100 S. Ct. 1371, 63 L. Ed. 2d 639 (1980).

As our Supreme Court recently noted, “[ojur cases consistently have held that both the state and federal constitution evince a preference for obtaining search warrants to protect the individual rights of our citizens. [Ijt is a cardinal principle that searches conducted outside the judicial process, without prior approval by judge or magistrate, are per se unreasonable . . . subject only to a few specifically established and well-delineated exceptions. . . . The requirement that a warrant be obtained before conducting a search reflects the sound policy judgment that, absent exceptional circumstances, the decision to invade the privacy of an individual’s personal effects should be made by a neutral magistrate .... The point of the [fjourth [ajmendment, which often is not grasped by zealous officers, is not that it denies law enforcement the support of the usual inferences which reasonable men draw from evidence. Its protection consists in requiring that those inferences be drawn by a neutral and detached magistrate instead of being judged by the officer engaged in the often competitive enterprise of ferreting out crime.” (Citations omitted; internal quotation marks omitted.) State v. Edman, 281 Conn. 444, 454, 915 A.2d 857 (2007), quoting Mincey v. Arizona, 437 U.S. 385, 390, 98 S. Ct. 2408, 57 L. Ed. 2d 290 (1978), and California v. Acevedo, 500 U.S. 565, 586, 111 S. Ct. 1982, 114 L. Ed. 2d 619 (1991).

At trial, the prosecution argued that the warrantless search of the defendant’s home did not violate the fourth amendment under the emergency doctrine exception to the warrant requirement. “The terms exigent circumstances and emergency doctrine are often used interchangeably when discussing warrantless entries into a home. The term exigent circumstances, however, generally refers to those situations in which law enforcement agents will be unable or unlikely to effectuate an arrest, search or seizure, for which probable cause exists, unless they act swiftly and, without seeking prior judicial authorization. . . . The emergency exception refers to another type of warrantless entry that evolves outside the context of a criminal investigation and does not involve probable cause as a prerequisite for the making of an arrest or the search for and seizure of evidence. . . .

“This second type of warrantless entry was recognized by the United States Supreme Court in Mincey v. Arizona, [supra] 437 U.S. 385 . . . and adopted by the Connecticut Supreme Court in State v. Magnano, 204 Conn. 259, 528 A.2d 760 (1987). In Mincey ... the United States Supreme Court recognized the exigency or emergency exception to the warrant requirement. The court held that the fourth amendment does not bar police officers, when responding to emergencies, from making warrantless entries into premises and warrantless searches when they reasonably believe that a person within is in need of immediate aid. [Mincey v. Arizona, supra] 392-93. State v. Magnano, supra, 266. . . .

“Although it is desirable to encourage the police to make valid emergency entries into homes to protect lives, we cannot ignore the fourth amendment’s protections against unreasonable searches and seizures. . . . Thus, the test to be employed ... is whether, under the totality of the circumstances, a well-trained police officer reasonably would have believed that a warrantless entry was necessary to assist a person inside in need of immediate aid.” (Citations omitted; internal quotation marks omitted.) State v. Klauss, 19 Conn. App. 296, 300-302, 562 A.2d 558 (1989).

“[G]iven the rationale for this very limited exception, the state actors making the search must have reason to believe that life or limb is in immediate jeopardy and that the intrusion is reasonably necessary to alleviate that threat. . . . The police, in order to avail themselves of this exception must have valid reasons for the belief that an emergency exists, a belief that must be grounded in empirical facts rather than subjective feelings .... It is an objective and not a subjective test. The test is not whether the officers actually believed that an emergency existed, but whether a reasonable officer would have believed that such an emergency existed.” (Citations omitted; internal quotation marks omitted.) State v. Hoth, 50 Conn. App. 77, 83-84, 718 A.2d 28, cert. denied, 247 Conn. 922, 722 A.2d 811 (1998).

To resolve this appeal, we look beyond the state’s brief to the evidence that the trial court heard and the decision it made. “[I]n reviewing a trial court’s ruling on the emergency doctrine, subordinate factual findings will not be disturbed unless clearly erroneous and the trial court’s legal conclusion regarding the applicability of the emergency doctrine in light of these facts will be reviewed de novo. State v. Geisler, 222 Conn. 672, 694, 610 A.2d 1225 (1992). Conclusions drawn from the underlying facts must be legal and logical. Id., 693. We must determine, therefore, whether, on the facts found by the trial court, the court properly concluded that it was objectively reasonable for the police to believe that an emergency situation existed. . . .

“As a prefatory matter, we note that the emergency doctrine is rooted in the community caretaMng function of the police rather than its criminal investigatory function. We acknowledge that the community caretaking function of the police is a necessary one in our society. [I]t must be recognized that the emergency doctrine serves an exceedingly useful purpose. Without it, the police would be helpless to save life and property .... E. Mascolo, The Emergency Doctrine Exception to the Warrant Requirement Under the Fourth Amendment, 22 Buff. L. Rev. 419, 428 (1973). Constitutional guarantees of privacy and sanctions against their transgressions do not exist in a vacuum but must yield to paramount concerns for human life and the legitimate need of society to protect and preserve life . . . .” (Citations omitted; internal quotation marks omitted.) State v. Blades, 225 Conn. 609, 617-19, 626 A.2d 273 (1993).

Our review of the facts found by the court indicates that the facts known to Officer Kelly would lead a reasonable police officer to conclude that a minor was in need of immediate aid. See State v. Klauss, supra, 19 Conn. App. 302. Given the frantic telephone calls by an apparently concerned parent, the suggestion, based on the presence of the car and couch in the driveway, that someone was in the defendant’s home, the lack of an answer at the intercom and front door and the sight of a teen’s belongings on the first floor, Kelly was justified in entering the house to determine whether the allegedly missing teen was in imminent danger and in need of assistance.

The defendant argues that facts have come to light since Officer Kelly’s search that suggest that no minor was ever in any danger and that probable cause for a search did not exist. Neither of these assertions, even if true, would have any impact on our decision. The emergency doctrine does not involve a question of probable cause, and it is not dependent on the truth or completeness of the facts conveyed to the officer entering the premises. Id., 300. Rather, “[t]he reasonableness of a police officer’s determination that an emergency exists is evaluated on the basis of the facts known at the time of entry.” (Emphasis in original; internal quotation marks omitted.) State v. Blades, supra, 225 Conn. 619.

We hasten to add that “this limited privilege to investigate emergencies without a search warrant is subject to judicial scrutiny. . . . The reasonableness of police activity must always pass judicial muster according to objective, empirical criteria before the court.” (Citation omitted.) People v. Mitchell, 39 N.Y.2d 173, 179, 347 N.E.2d 607, 383 N.Y.S.2d 246 (cited with approval in State v. Colon, 272 Conn. 106, 143, 864 A.2d 666 [2004], cert. denied, 546 U.S. 848, 126 S. Ct. 102, 163 L. Ed. 2d 116 [2005]), cert. denied, 426 U.S. 953, 96 S. Ct. 3178, 49 L. Ed. 2d 1191 (1976). That being said, in light of the facts found by the court, we agree that, on the basis of what Officer Kelly knew at the time he entered the defendant’s home, he had a reasonable belief that a minor was in imminent danger inside the house. As such, the entry was reasonable, and the defendant’s fourth amendment rights were not violated.

The judgment is affirmed.

In this opinion the other judges concurred.

       General Statutes § 26-55 provides in relevant part: “No person shall import or introduce into the state, or possess or liberate therein, any live fish, wild bird, wild mammal, reptile, amphibian or invertebrate unless such a person has obtained a permit therefor from the commissioner [of environmental protection]. Any person . . . who violates any provision of this section or any regulation issued by the commissioner as provided in this section shall be guilty of an infraction. . . .”

       Practice Book § 61-6 (a) (2) (i) provides in relevant part: “When a defendant, prior to the commencement of trial, enters a plea of nolo contendere conditional on the right to take an appeal from the court’s denial of the defendant’s motion to suppress or motion to dismiss, the defendant, after the imposition of sentence, may file an appeal within the time prescribed by law. The issue to be considered in such appeal shall be limited to whether it was proper for the court to have denied the motion to suppress or the motion to dismiss. . . . The court shall not accept a nolo contendere plea . . . where the denial of the motion to suppress or motion to dismiss would not be dispositive of the case in the trial court. ...” The language of General Statutes § 54-94a is substantially similar to that of Practice Book § 61-6 (a) (2) (i).

       Although the defendant asserts that his rights under the Connecticut constitution also were violated, he has not provided an independent analysis of those rights. Therefore, we review only the federal constitutional claim. See Watson v. Commissioner of Correction, 111 Conn. App. 160, 165 n.1, 958 A.2d 782, cert. denied, 290 Conn. 901, 962 A.2d 128 (2008).

       We note that the defendant vehemently contests several of the factual findings made by the court. As noted previously, however, “factual findings will not be disturbed unless clearly erroneous . . . .” State v. Geisler, supra, 222 Conn. 694. “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. . . . Because it is the trial court’s function to weigh the evidence . . . we give great deference to its findings. ... As an appellate tribunal, this court may not retry a case. . . . The factfinding function is vested in the trial court with its unique opportunity to view the evidence . . . including its observations of the demeanor and conduct of the witnesses and parties, which is not fully reflected in the cold, printed record which is available to us. Appellate review of a factual finding, therefore, is limited both as a practical matter and as a matter of the fundamental difference between the role of the trial court and an appellate court. . . . Finally, we note that the trier of fact ... is the sole arbiter of credibility, and thus is free to accept or reject, in whole or in part, the testimony offered by either party.” (Citations omitted; internal quotation marks omitted.) Somers v. Chan, 110 Conn. App. 511, 530, 955 A.2d 667 (2008). Having reviewed the entire record, we conclude that the court’s factual determinations find support in the record and that we are not left with the definite and firm conviction that a mistake has been committed. Consequently, we will not disturb these findings.