author: DiPENTIMA, J.

text:
    STATE OF CONNECTICUT v. LAWRENCE RUSCOE
    (AC 29198)
    Flynn, C. J., and DiPentima and West, Js.

      Argued October 13, 2009
    officially released March 16, 2010

      Alice Osedach, assistant public defender, for the appellant (defendant).

      Timothy J. Sugrue, assistant state’s attorney, with whom, on the brief, were David I. Cohen, state’s attorney, and Michael A. DeJoseph, assistant state’s attorney, for the appellee (state).
   Opinion

DiPENTIMA, J.

The defendant, Lawrence Ruscoe, appeals from the judgment of conviction, rendered after a jury trial, of possession of marijuana with intent to sell or dispense in violation of General Statutes § 21a-277 (b), possession of marijuana with intent to sell or dispense within 1500 feet of a public housing project in violation of General Statutes § 21a-278a (b), possession of narcotics with intent to sell or dispense in violation of General Statutes § 21a-277 (a) and possession of narcotics with intent to sell or dispense within 1500 feet of a public housing project in violation of General Statutes § 21a-278a (b). On appeal, the defendant claims that the court improperly (1) denied his motion to dismiss, which was based on the denial of his request for a speedy trial, (2) excluded evidence during the hearing on his motion to dismiss and (3) upheld the validity of a warrant for the search of a Norwalk garage in which he had sold narcotics. We disagree and, accordingly, affirm the judgment of the trial court.

The following facts and procedural history are relevant to the disposition of the defendant’s claims. On October 29, 2004, Norwalk police officers arrived at 6 South Smith Street, Norwalk, to execute a search and seizure warrant for that location. Upon arriving, officers found the defendant, arrested him pursuant to an outstanding arrest warrant and conducted a search of the defendant’s person. A cellular telephone and $2127 in United States currency were recovered. Police then searched an office area attached to a garage on the premises, pursuant to the search warrant, where they found small ziplock bags inside a desk drawer. Inside another drawer, officers found a locked metal box. The defendant gave the officers the correct combination for the locked box. Inside of the locked box, the officers found nineteen small plastic bags containing a green leafy substance, aplastic container holding 111 pills, all marked “Myelin 4-7-7,” mail addressed to the defendant and a small digital scale. A later scientific analysis by the state toxicology lab determined that the green leafy substance was marijuana, and that the pills were diaze-pam, a generic version of the narcotic valium.

On November 1, 2004, the defendant was charged with eight counts relating to the possession of various illegal substances. On the same date, attorney James M. Lamontagne of the public defender’s office was appointed to represent the defendant. On November 10, 2004, while incarcerated for unrelated charges, the defendant sent a request for a speedy trial to the clerk’s office. On November 16, 2004, the court denied the defendant’s motion for a speedy trial.

On October 30, 2006, the defendant filed a motion to dismiss on the ground that he was denied a speedy trial. On November 2,2007, after an evidentiary hearing, the court rejected the defendant’s argument that he was effectively denied a speedy trial and denied the defendant’s motion to dismiss.

On May 9, 2007, following a jury trial, the defendant was found guilty of all four counts against him. He was sentenced to a total effective term of eight years and one day incarceration followed by eight years special parole. On September 13, 2007, the defendant appealed his conviction to this court. Additional facts will be set forth as necessary.

I

We first address the defendant’s claim that the court improperly denied his motion to dismiss on the basis of the court’s earlier denial of his request for a speedy trial. Specifically, he claims that because the court improperly denied his request for a speedy trial and he was not brought to trial within 120 days of his request, and that he was not notified of the denial of the request within that time period, the court no longer had jurisdiction over his case. We conclude that the court properly exercised its discretion to deny the defendant’s motion to dismiss.

We begin by noting the standard that this court applies in reviewing a trial court’s ruling on a motion to dismiss. “A motion to dismiss . . . properly attacks the jurisdiction of the court, essentially asserting that the plaintiff cannot as a matter of law and fact state a cause of action that should be heard by the court. . . . [0]ur review of the trial court’s ultimate legal conclusion and resulting [denial] of the motion to dismiss will be de novo. . . . Factual findings underlying the corut’s decision, however, will not be disturbed unless they are clearly erroneous. . . . The applicable standard of review for the denial of a motion to dismiss, therefore, generally turns on whether the appellant seeks to challenge the legal conclusions of the trial court or its factual determinations.” (Citations omitted; internal quotation marks omitted.) State v. Bonner, 290 Conn. 468, 477-78, 964 A.2d 73 (2008).

Thus, in order to determine the appropriate standard of review for the defendant’s claim in the present case, “we first must ascertain whether the defendant is truly challenging the trial court’s interpretation of the pertinent law, in which case our review is plenary ... or whether he is actually disputing the court’s factual findings, in which case we review those findings for clear error.” (Internal quotation marks omitted.) Id., 481.

The following facts are relevant to the disposition of the defendant’s claim. On October 30, 2006, the defendant filed a motion to dismiss on the basis of the denial of his motion for a speedy trial. The motion alleged that notice of the denial never reached the defendant and that he first learned that his speedy trial motion had been denied after inquiring about it in open court in September, 2005. On April 2, 2007, a hearing on the motion to dismiss took place. The defendant called two witnesses to testify at the hearing: Kathleen Roach, a secretary for the public defender’s office and Lamon-tagne, who was counsel to the defendant at the time that the speedy trial motion was denied. In its memorandum of decision on the defendant’s motion to dismiss, the court made the factual finding that “Lamontagne, who made a very credible witness at the hearing, received notice of the decision on the motion for a speedy trial on or about November 16, 2004, and he personally informed the defendant of the denial of the motion on November 29, 2004.” On the basis of that factual finding, the court rejected the defendant’s claim that he was denied a speedy trial by not being notified of the court’s ruling in a timely manner. Thus, because the denial of the motion to dismiss was premised on this factual finding and not on the legal sufficiency of the corut’s denial of the motion for a speedy trial, we review under the clearly erroneous standard the defendant’s claim that the motion to dismiss was denied improperly. See id.

Upon a review of the record, we conclude that there was sufficient evidence for the court to make the factual finding about the date that the defendant was notified of the denial of the motion for a speedy trial and, in turn, the legal determination to deny the defendant’s motion to dismiss. The defendant’s primary claim in the motion to dismiss was that the harm occurred when he was not notified of the denial of his speedy trial motion for an extended period of time. Therefore, we conclude that the court’s denial of the motion to dismiss on the grounds that were raised was not clear error.

II

The defendant next claims that the court improperly excluded evidence during the hearing on his motion to dismiss. The defendant specifically claims that the court improperly sustained the prosecution’s objection to admitting into evidence a letter purportedly written by the defendant to Lamontagne. We decline to review this claim.

During the evidentiary hearing on the motion to dismiss, the defendant called Lamontagne to testify. During direct examination, Lamontagne identified a letter that he had received, in the mail, from the defendant. The defendant offered this letter as a full exhibit. The state objected on the basis of hearsay and a lack of foundation. The state conducted a voir dire of Lamon-tagne and renewed its objection on the basis of the same evidentiary issues. Defense counsel responded: “I think he did, identified it as received from [the defendant]. On the hearsay issue, it’s clear that he received it in the conduct of his duties as a public defender. So, I would . . . file it as work product.” The court sustained the objection.

It is not entirely clear on what basis the court sustained the objection to the admission of the letter into evidence. The court stated, “I don’t think I need a handwriting expert if he were to identify it as the letter he received,” but it did not expand any further on the legal principles argued by the parties within its ruling.

The state asserts that the record is inadequate for review of the defendant’s claim. We agree. It is well settled that it is the duty of the appellant to provide this court with an adequate record to review his claims. See Practice Book §§ 60-5 and 61-10. Accordingly, “[a] lack of pertinent factual findings and legal conclusions will render a record inadequate.” (Internal quotation marks omitted.) State v. Sargent, 87 Conn. App. 24, 30, 864 A.2d 20, cert. denied, 273 Conn. 912, 870 A.2d 1082 (2005). “Similarly, ambiguity in a record can render it inadequate.” State v. Salerno, 36 Conn. App. 161, 165, 649 A.2d 801 (1994), appeal dismissed, 235 Conn. 405, 666 A.2d 821 (1995).

After reviewing the record, we cannot discern the reasoning of the court when it sustained the state’s objection. Our review reveals that the court did not articulate any specific legal conclusions regarding the inadmissibility of the letter. Defense counsel failed either to inquire as to the basis on which the objection to admitting the letter as a full exhibit was sustained or to expand the questioning of the witness in an attempt to overcome the court’s concerns, either of which may have elicited the basis of the ruling. Without this information, we decline to review the defendant’s claim.

HI

Last, the defendant claims that the court improperly upheld the validity of the warrant to search the Norwalk garage. Specifically, the defendant claims that the warrant did not provide a sufficient factual basis to find probable cause to search for marijuana or the other items seized, and that the warrant was too broad in that it authorized the search and seizure of items that were not particularly described. We disagree.

The following facts and procedural history are relevant to the disposition of the defendant’s claim. The affidavit for the search warrant alleged the following: On October 27, 2004 . . . Frank Corcoran . . . was arrested by the Norwalk Police Department on charges of burglary. During an interview with officers, Corcoran stated, among other things, that he had purchased narcotics from the defendant in the past, including the day before, at the defendant’s garage at 6 South Smith Street in Norwalk. On October 27, 2004, Corcoran was searched for any drugs or contraband by Norwalk police, neither of which were found on his person. Officers attached a wireless transmitter to Corcoran’s person, and they gave Corcoran money from the Norwalk police funds. Officers transported Corcoran to South Smith Street, where Officer Salvator Calise observed Corcoran entering a garage. Several minutes later, Cor-coran exited the garage and met the officers at a predetermined location, where Corcoran turned over crack cocaine to Officer Terrence P. Blake. Corcoran stated that he had bought the crack cocaine from a black male who was inside of the garage but that the defendant was not present. Later on October 27, 2004, Officer Blake submitted an application for a search and seizure warrant, which was granted.

On October 30, 2006, the defendant filed a motion to suppress evidence collected under execution of the search warrant, alleging that there was no probable cause established in the search warrant, the warrant was overly broad and the broad description allowed a blind search of the premises. On April 3, 2007, the court denied the defendant’s motion to suppress evidence. In its subsequent memorandum of decision, the court discussed the facts present in the detailed affidavit that gave rise to the probable cause for the search warrant and concluded that those facts were sufficient to establish probable cause. The court also determined that the fist of items sought to be seized was not overly broad because “the items specifically identified common, well-known tools of the drug trade, items commonly associated with the illegal possession and distribution of drugs, and one could identify the property sought to be seized with reasonable certainty.” On the basis of these determinations, the court denied the defendant’s motion to suppress.

Before addressing the defendant’s claims, we set forth the proper standard of review. “Our standard of review of a trial court’s findings and conclusions in connection with a motion to suppress is well defined. A finding of fact will not be disturbed unless it is clearly erroneous in view of the evidence and pleadings in the whole record .... [W]here the legal conclusions of the court are challenged, we must determine whether they are legally and logically correct and whether they find support in the facts set out in the memorandum of decision . . . .” (Internal quotation marks omitted.) State v. Clark, 255 Conn. 268, 279, 764 A.2d 1251 (2001).

A

We first address the defendant’s claim that there was not probable cause to search for marijuana and the other items seized pursuant to the search warrant. “The fourth amendment to the United States constitution provides in relevant part that no warrants shall issue, but upon probable cause .... We uphold the validity of [a search] warrant ... [if] the affidavit at issue presented a substantial factual basis for the magistrate’s conclusion that probable cause existed. . . . [T]he magistrate is entitled to draw reasonable inferences from the facts presented. When a magistrate has determined that the warrant affidavit presents sufficient objective indicia of reliability to justify a search and has issued a warrant, a corut reviewing that warrant at a subsequent suppression hearing should defer to the reasonable inferences drawn by the magistrate. Whe[n] the circumstances for finding probable cause are detailed, whe[n] a substantial basis for crediting the source of information is apparent, and when a magistrate has in fact found probable cause, the reviewing court should not invalidate the warrant by application of rigid analytical categories. . . .

“Probable cause to search exists if: (1) there is probable cause to believe that the particular items sought to be seized are connected with criminal activity or will assist in a particular apprehension or conviction . . . and (2) there is probable cause to believe that the items sought to be seized will be found in the place to be searched. ... In determining the existence of probable cause to search, the issuing magistrate assesses all of the information set forth in the warrant affidavit and should make a practical, nontechnical decision whether . . . there is a fair probability that contraband or evidence of a crime will be found in a particular place. . . . Probable cause, broadly defined, [comprises] such facts as would reasonably persuade an impartial and reasonable mind not merely to suspect or conjecture, but to believe that criminal activity has occurred. . . . Whether the trial court properly found that the facts submitted were enough to support a finding of probable cause is a question of law. . . . The trial court’s determination on [that] issue, therefore, is subject to plenary review on appeal.” (Citations omitted; internal quotation marks omitted.) State v. Jones, 115 Conn. App. 581, 591-92, 974 A.2d 72, cert. denied, 293 Conn. 916, 979 A.2d 492 (2009).

The extensive affidavit included with the application for the search warrant provided sufficient, corroborated evidence for the court to have granted the requested warrant. The affidavit identified the informant, gave several details regarding the informant’s knowledge of the defendant’s drug related activities and detailed police corroboration of those drug related activities. The warrant authorized police officers to search for “narcotics, heroin, cocaine, PCP, LSD, marijuana,” as well as a variety of other specific items related to the drug trade, including “any other items which can reasonably be construed to facilitate the trafficking of illegal narcotics.” A search for items connected to drug trafficking is supported by the facts found in the affidavit. The court found that “[t]he application specifically set forth facts substantiating continuing criminal drug activity at the garage . . . and was sufficiently particular in its description of the items to be seized.” The record presents a substantial factual basis for granting the search warrant application, including “Corcoran’s statement that [the defendant] sells crack cocaine, marijuana and prescription drugs out of the [location to be searched].” As the court ruled, “[i]t was . . . reasonable to believe that the garage was a secure operational base for ongoing drag traffic, that the items sought to be seized were tools of the trade, which would reasonably be expected to be at the garage, and that the facts stated in the affidavit provided a substantial basis for the conclusion that there was a fair probability of continuing illegal drag sales at the garage.” Further, “[t]he affidavit set forth facts to establish that the informant, and the information provided by him, were rehable.” We conclude that the court properly found that there was probable cause to search for marijuana and all of the other items in the warrant and denied the defendant’s motion to suppress.

B

Finally, we address the defendant’s claims that the search warrant was too broad and that it was not specific enough to be valid. “The particularity clause of the fourth amendment provides that 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. U.S. Const., amend. IV. The protections afforded by the particularity clause focus primarily on, and restrict the process of, issuing a warrant. . . . This focus makes sense in light of the chief purpose of the clause, which is to prevent general searches by requiring a neutral judicial officer to cabin the scope of the search to those areas and items for which there exists probable cause that a crime has been committed.” (Citations omitted; internal quotation marks omitted.) State v. Browne, 291 Conn. 720, 729, 970 A.2d 81 (2009).

Upon a review of the record, we find that the court correctly determined that “the items listed were specific and described common tools of the drag trade,” and the warrant was “sufficiently particular in its description of the items to be seized.” The court rejected the argument that the description of the items to be seized was overly broad, finding that the items “specifically identified common, well-known tools of the drug trade, items commonly associated with the illegal possession and distribution of drugs, and one could identify the property sought to be seized with reasonable certainty.” The court ruled that “[t]he affidavit established a factual basis to support a finding of probable cause to believe that the items sought to be seized constituted evidence of criminal activity and that the items sought existed at the 6 South Smith Street garage location.” A review of the record reveals that the search warrant was specific as to the items to be searched for and was not overly broad based on the evidence sought to be obtained, as detailed in the affidavit. Accordingly, we conclude that the court properly found that the warrant was sufficiently particular and properly denied the motion to suppress.

The judgment is affirmed.

In this opinion the other judges concurred.

       The defendant also argues on appeal that the court improperly denied his motion for a speedy trial pursuant to General Statutes § 54-82c. This claim was pursued with a subsequent motion to dismiss, the denial of which the defendant appeals from and we address herein. See part I of this opinion. Because we determine that the motion to dismiss was denied properly, the issue of the denial of the motion for a speedy trial is immaterial to our disposition of this case. Therefore, we decline to review the defendant’s claim that the court improperly denied his motion for a speedy trial because even if the court’s denial of the defendant’s motion for a speedy trial were improper, it would not compel a reversal in light of the subsequent procedural events.

       On October 6, 2006, the state filed a four count substitute information that also related to the defendant’s possession of various illegal substances.

       Corcoran also stated that the defendant had stolen a Cadillac in a burglary in Rowayton in October, 2004. Corcoran stated that the vehicle was currently located in the commuter lot off of Hendricks Avenue in Norwalk, adjacent to Interstate 95. After checking police records, the officers found a report of a burglary that had occurred at 1 Range Road in Rowayton on October 2, 2004, in which a 1998 Cadillac El Dorado was stolen. On October 27, 2004, a Norwalk police sergeant located the same Cadillac in the commuter lot off of Hendricks Avenue, as Corcoran had described.

       The substance was later field tested positive for the presence of cocaine.

       POP is also known as phencyclidine; State v. Holloway, 117 Conn. App. 798, 805, 982 A.2d 231 (2009); and LSD is also known as lysergic acid diethylamide. State v. Ryan, 182 Conn. 335, 336 n.2, 438 A.2d 107 (1980).


source: Caselaw Access Project

author: ALVORD, J.

license: Public Domain

text:
    SAVINGS BANK OF DANBURY v. ELIE M. KARAM ET AL.
    (AC 30728)
    Flynn, C. J., and Bishop and Alvord, Js.

      Submitted on briefs January 8
    officially released March 16, 2010

      Christopher G. Winans, filed a brief for the appellant (defendant 33-35 Beaver Street, LLC).

      Peter N. Buzaid, filed a brief for the appellee (defendant Nuhad K. Haddad).
   Opinion

ALVORD, J.

The defendant, 33-35 Beaver Street, LLC (Beaver Street, LLC), appeals from the judgment of foreclosure rendered by the trial court. On appeal, Beaver Street, LLC, claims that the court improperly marshaled the assets and ordered the properties to be foreclosed in a manner that is inequitable. We affirm the judgment of the trial court.

The following facts and procedural history are relevant to the appeal by Beaver Street, LLC. In May, 2001, the plaintiff, Savings Bank of Danbury, loaned the defendants, Elie M. Karam and Nuhad K. Haddad, $310,000 for the operation of a bakery located at 33-35 Beaver Street in Danbury. The loan was seemed by a mortgage on 33-35 Beaver Street as well as a mortgage on Had-dad’s primary residence located at 13 Well Avenue in Danbury. Later, in an unrelated business transaction, Karam and Haddad executed a second commercial mortgage on 33-35 Beaver Street in favor of Dorrance T. Kelly. It is undisputed that the mortgage to Kelly was subordinate to the plaintiffs mortgage.

In March, 2007, Kelly foreclosed his interest in 33-35 Beaver Street and took possession of the property, which remained subject to the plaintiffs mortgage interest. See Kelly v. Karam, Superior Court, judicial district of Danbury, Docket No. CV-06-5000684-S. In April, 2007, Haddad and Karam defaulted on their obligations to the plaintiff, and in June, 2007, the plaintiff brought this action seeking to foreclose by sale its mortgages on 33-35 Beaver Street and 13 Well Avenue. The original complaint named Karam, Haddad, Kelly, Galo Corone, Pablo Rivas and World Savings Bank, FSB, as defendants. After the complaint was filed, Kelly quitclaimed his interest in 33-35 Beaver Street to Beaver Street, LLC, and, on August 13, 2007, Beaver Street, LLC, was substituted for Kelly as a defendant. Beaver Street, LLC, and Haddad are the only parties to this appeal.

The parties agreed that the value of 33-35 Beaver Street was insufficient to satisfy the $307,654 debt owed to the plaintiff but disputed the manner in which the foreclosure should be executed. Beaver Street, LLC, sought to retain possession of 33-35 Beaver Street and urged the court to marshal the assets in its favor by ordering a foreclosure by sale of 13 Well Avenue to satisfy the entire debt. Haddad hoped to remain in her home and sought a foreclosure by sale of 33-35 Beaver Street first, followed by a foreclosure of 13 Well Avenue only if necessary. A hearing was held on September 2, 2008, and the court rendered judgment on January 9, 2009. It ordered that a foreclosure by sale of 33-35 Beaver Street proceed first, followed by a foreclosure by sale of 13 Well Avenue, if necessary, to satisfy any remaining debt. On appeal, Beaver Street, LLC, claims that the court improperly marshaled the assets and ordered the properties to be foreclosed in a manner that is inequitable.

“A foreclosure action is an equitable proceeding. . . . The determination of what equity requires is a matter for the discretion of the trial court. ... In determining whether the trial court has abused its discretion, we must make every reasonable presumption in favor of the correctness of its action. . . . Our review of a trial court’s exercise of the legal discretion vested in it is limited to the questions of whether the trial court correctly applied the law and could reasonably have reached the conclusion that it did.” (Internal quotation marks omitted.) Deutsche Bank National Trust Co. v. Angle, 284 Conn. 322, 326, 933 A.2d 1143 (2007).

“The basis of marshalling is that, where one creditor has security on two funds of his debtor, and another creditor has security for his debt on only one of those funds, the latter has a right in equity to compel the former to resort to the other fund, if it is necessary for the satisfaction of both creditors, provided it will not prejudice the rights or interests of the party entitled to the double fund, nor do injustice to the common debtor, nor operate inequitably on the interests of other persons.” (Emphasis added; internal quotation marks omitted.) Greenwich Trust Co. v. Tyson, 129 Conn. 211, 227-28, 27 A.2d 166 (1942).

In this case, the court found that a foreclosure of 13 Well Avenue without recourse to 33-35 Beaver Street would do injustice to Haddad. It noted that (1) the nature of the loan was commercial, (2) the hen on 13 Well Avenue, although not structured as such, was intended by the parties as security only to the extent necessary to satisfy the difference between the value of 33-35 Beaver Street and the debt owed to the plaintiff and (3) Haddad already had paid Beaver Street, LLC, $30,000 to protect her home. See footnote 3 of this opinion. Accordingly, we conclude that the court did not abuse its discretion when it ordered the foreclosure of the commercial property to proceed first.

The judgment is affirmed and the case is remanded for the purpose of setting a new sale date.

In this opinion the other judges concurred.

       For clarity, we refer to all defendants by name.

       The mortgage on 33-35 Beaver Street was executed jointly by Karam and Haddad. The mortgage on 13 Well Avenue was executed individually by Haddad.

       The record also reveals that, at the time of the foreclosure, Kelly received $30,000 from Haddad in consideration for Kelly’s agreement not to pursue a deficiency judgment against Haddad’s home at 13 Well Avenue. We note that the brief of Beaver Street, LLC, failed to disclose Haddad’s payment to Kelly, and we pause to remind counsel of his duty of candor to this court.

       The court found that as of the date of judgment the fair market value of 33-35 Beaver Street was $226,500, and the fair market value of 13 Well Avenue was $360,000.

       Moreover, we note that marshaling generally is inapplicable where both asset funds do not belong to the same debtor. See Quinnipiac Brewing Co. v. Fitzgibbons, 73 Conn. 191, 196, 47 A. 128 (1900) (“[a]s a general rule . . . before a court of equity will marshal securities between two persons, it must appear (1) that they are creditors of the same debtor, (2) that there are two funds belonging to that debtor, and (3) that one of them alone has the right to resort to both funds”). It is undisputed that 13 Well Avenue does not belong to Karam.


author: BEACH, J.

text:
    TYWAAN REEVES v. COMMISSIONER OF CORRECTION
    (AC 29457)
    Beach, Robinson and Schailer, Js.
    Argued October 27, 2009
    officially released March 16, 2010

      Gennaro Bizzarro, special public defender, for the appellant (petitioner).

      ToniM. Smith-Rosario, senior assistant state’s attorney, with whom, on the brief, were Kevin D. Lawlor, state’s attorney, and Angela R. Macchiarulo, senior assistant state’s attorney, for the appellee (respondent).
   Opinion

BEACH, J.

The petitioner, Tywaan Reeves, appeals following the denial of his petition for certification to appeal from the judgment of the habeas court denying his second amended petition for a writ of habeas corpus and his motion to amend his petition for the third time. On appeal, the petitioner claims that the court (1) abused its discretion in denying the petition for certification, (2) improperly rejected his claim that his trial counsel and appellate counsel provided ineffective assistance of counsel and (3) abused its discretion in denying his motion for permission to file a third amended petition. We dismiss the appeal.

The following facts are necessary for resolution of the petitioner’s appeal. On September 1, 1998, the jury found the petitioner guilty of robbery in the first degree in violation of General Statutes § 53a-134, failure to appear in violation of General Statutes § 53a-172 (a) and two counts of tampering with a witness in violation of General Statutes § 53a-151 (a). The petitioner appealed to this court from the judgments of conviction, and we affirmed the judgments of the trial court. State v. Reeves, 57 Conn. App. 337, 748 A.2d 357 (2000).

The facts underlying the petitioner’s convictions were set forth in State v. Reeves, supra, 57 Conn. App. 339-43. “At approximately 6 p.m. on February 21, [1997], Marcus Russell, age seventeen, and his girlfriend, Shaluanda Elliot, age fourteen . . . left his apartment to walk ... to her home on Homeside Avenue [in West Haven]. As they were walking, Russell and Elliot noticed that three black males were following them. Both Russell and Elliot recognized two of the individuals as the [petitioner] and Willie Minor. Elliot also recognized the third individual as John Walton. Russell told Elliot to keep walking. Both did so. When Russell and Elliot reached Glade Street, which was a few blocks from Homeside Avenue, they noticed that the three individuals who had been following them had disappeared. Shortly thereafter, however, when they had reached Terrace Street, they saw that the [petitioner] and Minor had reappeared behind them and were again following them.

“When Russell and Elliot reached Homeside Avenue, the [petitioner] shouted at them, ‘You all stop walking.’ Russell turned around and said, ‘What?’ and continued walking. The [petitioner] then said, ‘You all gots to stop walking. I’m going to shoot.’ The [petitioner] approached them, and both Russell and Elliot saw a gun in his hand. He stated to Russell, ‘You violated me,’ and that he was going to ‘run [Russell’s] jewels.’ Both men wore dark jackets and masks that covered the lower half of their faces. Thereafter, the [petitioner] held the gun against Russell’s chest. At the [petitioner’s] direction, Minor ‘popped’ a gold chain that Russell was wearing from around his neck. This chain had a round medallion with a depiction of the Virgin Mary on it and was worth approximately $600. Russell was also directed to remove a gold ring from his finger and to give it to the [petitioner]. This ring had rubies and cubic zirconias on the band and a picture of the Virgin Mary on its face, and it was worth about $80. The [petitioner], telling Russell that he knew he had more jewelry, checked Russell’s wrists for bracelets, but found none. The [petitioner] and Minor then fled toward Glade Street.

“Both Russell and Elliot immediately ran the short distance to Elliot’s house and told her mother, Luray Elliot, what had happened. Angered over this situation, Elliot’s mother, Elliot, Russell and several neighbors went to Glade Street to try to find the [petitioner].

“In the meantime, the police were called and told of the robbery. David Cahill, an officer with the West Haven police department, was dispatched to the area. Upon his arrival, he spoke to Russell and Elliot, who told him that the [petitioner] had robbed them at gunpoint. He learned that the two alleged robbers were black males, both dressed in dark coats and dark pants, and that they had worn masks that covered the lower half of their faces. He also got a description of the gold chain and the gold ring. Cahill was familiar with the [petitioner] in that he lived in the area. The police dispatcher learned that the [petitioner] lived at an apartment at 54 Glade Street and sent Officers Steven Viele and Pauline Sires, who had been in radio contact with Cahill, to that address to find him.

“Cahill proceeded to the [petitioner’s] apartment on foot, but Viele and Sires arrived there before him. Emily Reeves, the [petitioner’s] grandmother, answered Sires’ knock on the apartment door. Sires told her that the [petitioner] was a suspect in a robbery that had just occurred and that they wanted her consent to search the apartment. She consented and pointed out the [petitioner’s] room for them. In that room, Viele and Sires observed two dark jackets, one on the bed and the other on the floor, which were similar to the jackets worn by the alleged robbers. The jackets later were determined to belong to the [petitioner] and Minor. The officers continued to search the bedroom, but the [petitioner] was not there. In that bedroom, there was a closet about six feet high and four to five feet wide, with sliding doors, one to each side. ... As he stood up from examining the right side of the closet, Viele saw a piece of jewelry in front of a stack of clothes on a shelf. It was ‘very bright,’ it was ‘gold with clear stones’ and ‘red colored stones on it,’ and the face of the ring . . . had an inscription of . . . the Virgin Mary. No gun was found during that search.

“The police did not locate the [petitioner] that night, but apprehended him several days later on February 26, [1997]. He posted a bond, and his trial was eventually set to begin on April 21, 1998.

“In March, 1998, while the [petitioner] was still out on bond, Elliot was with her mother in her mother’s car on Glade Street when the [petitioner] approached the car. He apologized to ‘her for sticking [Russell] up when [she] was with him,’ and he told her that ‘he wanted to be friends’ and that ‘he was stupid for doing it.’ Later, on April 20, 1998, after Russell had been subpoenaed to attend court on that day, which was when the [petitioner’s] trial was scheduled to commence, the [petitioner] pulled up in a car as Russell was coming out of his house. The [petitioner] got out and started to speak with Russell. After Russell told him that he had been subpoenaed, the [petitioner] ‘asked him not to go to court and if [he] did to give a false statement.’ He also told Russell that ‘if [Russell] [needed] any money, he [would] give it to [him] and anything [he] wanted or needed or whatever.’ Russell rejected the [petitioner’s] offer. The next day, Russell told Joseph Zampano of the state’s attorney’s office about this incident.

“On the day that the [petitioner] had approached Russell, i.e., April 20,1998, the [petitioner] called Elliot’s mother and told her that he knew that she and Elliot had been subpoenaed to go to court the next day. He talked to her about their not saying they were sure it was him, and he wanted to know if Elliot had talked to the state’s attorney. She said that Elliot had spoken with the state’s attorney. He then wanted to know what Elliot had told the state’s attorney, and her mother said that she did not know. The [petitioner] said that he ‘needed’ to know what she said ‘so he knew what he would be walking up against when he came into the courtroom.’ He went on to say that ‘it is not like I’m going to do anything to you guys, I just want to know what I am walking up against when I go into the courtroom.’ Elliot’s mother said that she did not know what her daughter had said as she was not in the room with her. The [petitioner] then asked her if Elliot was home because he wanted to speak with her. She replied that Elliot was not home. The next day Elliot’s mother reported this by telephone to Zampano at the state’s attorney’s office.

“On April 21,1998, the [petitioner] went to court, but before his case was called for trial, he left the courthouse and did not return. The police found him on May 21, 1998, in New Haven and he was rearrested.” Id.

After the petitioner’s judgments of conviction were affirmed on appeal, the petitioner, representing himself, filed a petition for a writ of habeas corpus on December 11, 2005. His habeas counsel, Damon A. R. Kirschbaum, filed a second amended petition on December 29, 2006. In the second amended petition, the petitioner alleged that (1) his trial counsel, Jerald S. Barber, had rendered ineffective assistance of counsel, (2) his appellate counsel, also Barber, had rendered ineffective assistance of counsel and (3) the state had improperly failed to disclose material information at the criminal trial. The habeas trial was held on the matter on September 10, 2007. At the outset of the proceedings, the court denied the petitioner’s motion for permission to file a third amended petition for a writ of habeas corpus. The court then heard testimony from the petitioner and Barber. The court, Swords, J., by memorandum of decision filed November 26, 2007, denied the habeas petition on the ground that the petitioner had failed to prove that Barber’s performance was deficient as trial counsel or as appellate counsel. On December 6, 2007, the habeas court denied the petitioner’s petition for certification to appeal. This appeal followed.

When confronted with a denial of certification to appeal, we must determine whether this ruling constituted an abuse of discretion. Simms v. Warden, 230 Conn. 608, 612, 646 A.2d 126 (1994). “A petitioner satisfies that substantial burden by demonstrating that the issues are debatable among jurists of reason; that a court could resolve the issues [in a different manner]; or that the questions are adequate to deserve encouragement to proceed further.” (Internal quotation marks omitted.) Solman v. Commissioner of Correction, 99 Conn. App. 640, 643, 916 A.2d 824, cert. denied, 282 Conn. 901, 918 A.2d 888 (2007). If the petitioner can show that the habeas court abused its discretion in denying the petition for certification to appeal, then the petitioner must demonstrate that the judgment of the habeas court should be reversed on its merits. See John-sons. Commissioner of Correction, 285 Conn. 556, 564, 941 A.2d 248 (2008). To determine whether the court abused its discretion, we must consider the merits of the petitioner’s underlying claims. Taylor v. Commissioner of Correction, 284 Conn. 433, 449, 936 A.2d 611 (2007).

I

The petitioner first asserts that the court improperly dismissed his numerous claims that his trial and appellate counsel rendered ineffective assistance. We disagree.

“For the petitioner to prevail on his claim of ineffective assistance of counsel, he must establish both that his counsel’s performance was deficient and that there is a reasonable probability that, but for the counsel’s mistakes, the result of the proceeding would have been different,.” (Internal quotation marks omitted.) McClendon v. Commissioner of Correction, 93 Conn. App. 228, 230, 888 A.2d 183, cert. denied, 277 Conn. 917, 895 A.2d 789 (2006); see also Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984). “In a habeas appeal, this court cannot disturb the underlying facts found by the habeas court unless they are clearly erroneous, but our review of whether the facts as found by the habeas court constituted a violation of the petitioner’s constitutional right to effective assistance of counsel is plenary.” (Internal quotation marks omitted.) McClellan v. Commissioner of Correction, 103 Conn. App. 159, 161, 927 A.2d 992 (2007).

The petitioner claims that his trial counsel provided ineffective assistance by failing to introduce evidence of a drug dealing relationship between the petitioner and Russell. At the criminal trial, the petitioner testified that he had not robbed Russell but that Russell, in fact, had given the petitioner the jewelry as payment for a debt. The petitioner maintains that Barber should have allowed him to testify that Russell sold drugs for him and owed him money for drugs that were missing. The habeas court found that “Barber and [the] petitioner had extensive discussions on the issue of whether [the] petitioner should testify and the pros and cons of this testimony. [The] petitioner insisted that he wanted to give the jury his own explanation for his possession of Russell’s property. This explanation included a description of the drug dealing relationship between Russell and himself. Barber, however, advised [the] petitioner that his testimony about a drug debt owed to him by Russell ran the risk the jury would convict him notwithstanding any weaknesses in the state’s case but merely because he was a drug dealer.” Consequently, the habeas court found that “Barber thoroughly discussed the issue with the petitioner and weighed the potential benefit against any harm to the petitioner’s case. The criminal trial transcript indicates that the absence of the evidence did not damage [the] petitioner’s defense, and the introduction of the evidence would likely have been prejudicial. Thus, Barber exercised sound professional judgment in deciding against taking an unnecessary risk, and this court will not second-guess that trial strategy.” The decision not to disclose the drug dealing relationship between the petitioner and Russell was guided by professional judgment, and we cannot say that the decision was so unsound as to constitute ineffective assistance. “We consistently have declined to second-guess such decisions.” Beverly v. Commissioner of Correction, 101 Conn. App. 248, 252, 922 A.2d 178, cert. denied, 283 Conn. 907, 927 A.2d 916 (2007). Accordingly, we conclude that the court did not abuse its discretion in denying the petition for certification as to this claim.

Next, the petitioner claims that his trial counsel provided ineffective assistance by failing to introduce a transcript of a telephone conversation between the petitioner, Russell and Elliot’s mother in order to impeach Russell, Elliot and her mother with evidence of their relationship to the petitioner. The court rejected the petitioner’s claim because it found that (1) the petitioner failed to prove that the transcript would have been admitted at trial and (2) the transcript did not affirmatively establish that the petitioner had a relationship with Russell, Elliot and her mother prior to the robbery. The court found that the petitioner had failed to prove that he was prejudiced when his trial counsel did not offer the transcript to impeach Russell and Elliot’s mother. The transcript does not necessarily show any relationship between Elliot’s mother and the petitioner prior to the time that the robbery occurred. Although the transcript may provide evidence that Russell knew the petitioner prior to the robbery, it could not be used to impeach Russell irrefutably because Russell admitted knowing the petitioner. ****8 Had the transcript of the telephone conversation been admitted into evidence at the criminal trial, it would, with some degree of reasonable probability, likely have had virtually no impact, viewed in the entirety of the evidence, and would not have produced a different verdict. Our review of the record reveals that the petitioner did not present any credible evidence demonstrating that his trial counsel’s representation fell below an objective standard of reasonableness.

The petitioner also maintains that his trial counsel failed to provide effective assistance by not requesting jury instructions on lesser included offenses. Specifically, the petitioner asserts that (1) his trial counsel should have permitted him to decide whether to request a lesser included offense charge and (2) to the extent that requesting a lesser included offense charge was a strategic decision for counsel to make, his trial counsel was ineffective in failing to request such a charge. The court credited Barber’s testimony that he had discussed using a lesser included offense charge with the petitioner, as he does with all his clients, and that the petitioner did not argue with his trial strategy. Barber also testified that not requesting a lesser included offense was a strategic decision based on the fact that the state’s evidence on the elements of use of force and larceny was weak. Barber adopted a strategy designed to obtain a full acquittal on the robbery charge; the petitioner denied guilt and claimed that Russell had voluntarily given him the items to pay a debt. The habeas court specifically did not credit the petitioner’s testimony that he did not discuss whether to include a lesser included offense charge in the jury instructions. The petitioner’s argument that the decision to include a lesser included offense should be made solely by the defendant in a criminal case is unpersuasive. Our Supreme Court has held that “counsel’s failure to request a lesser included offense instruction does not necessarily deprive a defendant of reasonably effective assistance of counsel. ... It may be sound trial strategy not to request a lesser included offense instruction, hoping that the jury will simply return a not guilty verdict.” (Citations omitted.) Fair v. Warden, 211 Conn. 398, 404, 559 A.2d 1094, cert. denied, 493 U.S. 981, 110 S. Ct. 512, 107 L. Ed. 2d 514 (1989). If the decision to not request a lesser included offense instruction may be part of the overall trial strategy to obtain a not guilty verdict, then clearly this decision is in the realm of strategy decisions to be made by the attorney. In this case, the petitioner’s trial counsel stated that his decision not to request instructions on lesser included offenses was based on the defendant’s claim of innocence as well as the strength of the state’s case. The petitioner has not demonstrated that the issues are debatable among jurists of reason. Given the usual deference courts must afford to trial counsel’s decisions when reviewing such claims, we cannot conclude that the court abused its discretion in denying the petition for certification as to this claim.

The petitioner also asserts that the court improperly dismissed his claims that his appellate counsel provided ineffective assistance because he failed to file a petition for certification to appeal to the Supreme Court after this court affirmed the trial court’s judgments of conviction. The court rejected this claim because there were no issues in the appeal worthy of certification. Under our rules, “[c]ertification by the supreme court on petition by a party is not a matter of right but of sound judicial discretion and will be allowed only where there are special and important reasons therefor. ...” Practice Book § 84-2. The sole issue presented in the petitioner’s direct appeal was that the trial court improperly restricted his cross-examination of the state’s witnesses regarding their bias and motive for testifying. See State v. Reeves, supra, 57 Conn. App. 359-60. This issue was routine, the decision of this court was not in conflict with any other decision, and this court was unanimous in affuming the trial court’s judgments. Certification was unlikely. Moreover, the petitioner conceded at the habeas trial that he could not prove to a reasonable probability that had the Supreme Court considered his appeal, the outcome would have been different. Thus, the petitioner’s claim fails under both Strickland prongs. Because the petitioner has not met his burden under Strickland, this claim is not debatable among jurists of reason, a court could not resolve it in a different manner and it is not adequate to deserve encouragement to proceed further. Accordingly, the habeas court did not abuse its discretion when it concluded that the petitioner’s appellate counsel was not ineffective in failing to file a petition for certification to appeal to our Supreme Court.

n

The petitioner’s final claim is that the court abused its discretion in denying certification to appeal as to whether the court abused its discretion when it denied the petitioner’s motion for permission to file a third amended petition. We begin our analysis of the petitioner’s claim by setting forth the applicable standard of review. “We will not disturb a habeas court’s grant or denial of permission to amend a pleading in the absence of a clear abuse of discretion.” Correia v. Rowland, 263 Conn. 453, 472, 820 A.2d 1009 (2003). Practice Book § 23-32 states: “The petitioner may amend the petition at any time prior to the filing of the return. Following the return, any pleading may be amended with leave of the judicial authority for good cause shown.” “While our courts have been liberal in permitting amendments . . . this liberality has limitations. Amendments should be made seasonably. Factors to be considered in passing on a motion to amend are the length of delay, fairness to the opposing parties and the negligence, if any, of the party offering the amendment.” (Citation omitted; internal quotation marks omitted.) Hasan v. Warden, 27 Conn. App. 794, 798, 609 A.2d 1031, cert. denied, 233 Conn. 917, 614 A.2d 821 (1992). On the day of the habeas trial, more than seven months after the return was filed, the petitioner filed a motion to amend his petition for the third time, alleging instances of prosecutorial misconduct. Prior to filing his motion to amend his petition for the third time, the petitioner had ample time in which he could have sought the court’s permission to amend his petition to include a new claim of prosecutorial impropriety. Instead, the petitioner sought to amend his petition on the day that the habeas trial was set to commence. The court, in the exercise of its discretion, denied the petitioner’s motion to amend. In view of the last minute filing and the failure to show good cause, we conclude that the habeas court did not abuse its discretion in denying the motion to amend.

In light of the foregoing, we conclude that the petitioner has not demonstrated that the issues raised with regard to the court’s denial of his petition for a writ of habeas corpus or its denial of his motion to amend his petition for the third time are debatable among jurists of reason, that a court could resolve the issues in a different manner or that the questions raised deserve encouragement to proceed further. Having failed to satisfy any of these criteria, the petitioner cannot demonstrate that the court abused its discretion in denying the petition for certification to appeal. See Simms v. Warden, supra, 230 Conn. 616.

The appeal is dismissed.

In this opinion the other judges concurred.

       The petitioner was found not guilty of a fifth charge, larceny in the third degree in violation of General Statutes § 53a-124.

       At the habeas trial, the petitioner withdrew a claim of prosecutorial impropriety.

       When asked about his relationship with the petitioner, Russell stated that he knew the petitioner: “I know his voice and eyes. It is not hard to identify somebody.” Russell also stated that the petitioner “used to live on Glade Street and play basketball, and I would see him.” Russell further stated that he knew the petitioner’s first name, but not his last name, and had never spoken to him but had heard his voice.

       It is also difficult to find prejudice. Juries are generally instructed to consider the greater charge first and to consider lesser included offenses only if they find the defendant not guilty of the greater charge. Because the jury in this case found the defendant guilty of the greater charge, at least in theory, the jury would not have reached lesser offenses in any event.

       Practice Book § 84-2 states: “Certification by the supreme court on petition by a party is not a matter of right but of sound judicial discretion and will be allowed only where there are special and important reasons therefor. The following, while neither controlling nor fully measuring the court’s discretion, indicate the character of the reasons which will be considered:
      “(1) Where the appellate court has decided a question of substance not theretofore determined by the supreme court or has decided it in a way probably not in accord with applicable decisions of the supreme court.
      “(2) Where the decision under review is in conflict with other decisions of the appellate court.
      “(3) Where the appellate court has so far departed from the accepted and usual course of judicial proceedings, or so far sanctioned such a departure by any other court, as to call for an exercise of the supreme court’s supervision.
      “(4) Where a question of great public importance is involved.
      “(5) Where the judges of the appellate panel are divided in their decision or, though concurring in the result, are unable to agree upon a common ground of decision.”

       Our review of the record shows that the petitioner sent Ms tMrd amended petition by facsimile one business day prior to the start of the habeas trial. The third amended petition was not filed with the court until the day of trial.


author: MIHALAKOS, J.

text:
    AMI LACHOWICZ v. MATTHEW RUGENS
    (AC 30574)
    Harper, Alvord and Mihalaltos, Js.
    Argued December 2, 2009
    officially released March 16, 2010

      Anthony V. Federice, for the appellant (plaintiff).

      Maribeth M. McGloin, for the appellant (intervening plaintiff).

      Peter D. Clark, for the appellee (defendant).
   Opinion

MIHALAKOS, J.

The plaintiff, Ami Lachowicz, appeals from the summary judgment rendered by the trial court in favor of the defendant, Matthew Rugens, in this negligence action. The plaintiff claims that the court improperly granted the defendant’s motion for summary judgment after concluding that the defendant owed no legal duty to her. We affirm the judgment of the trial court.

The record reveals the following facts. It is undisputed that on June 12, 2005, the plaintiff and the defendant were volunteer firefighters for the New Hartford volunteer fire department (department). On that date, the defendant was to drive the department rescue truck to a nearby lake to conduct a cold water training session. At the time when the plaintiff boarded the truck, she was wearing a full, one piece cold water rubber rescue suit. Prior to the plaintiffs attempting to climb into the truck, the ignition switch of the vehicle was in the on position, and the vehicle’s engine was in operation. It is also undisputed that there was no forward movement of the fire truck at any time. The affidavit of the defendant attested to the fact that, although there was a vibration as a result of the engine having been turned on, there was no motion of the vehicle because the truck was in park.

In her complaint, the plaintiff alleges that as she was attempting to board the fire truck, she slipped and injured her knee. She alleges that the defendant was negligent in operating the fire truck by turning on its engine before allowing her to enter the vehicle safely, and, as a result thereof, the vibration of the vehicle caused her to fall off the vehicle. The plaintiff argues that it was foreseeable to the defendant that the plaintiff would be injured if he started the fire rescue truck’s engine prior to her boarding. We disagree with the plaintiffs contention that the harm that resulted from the defendant’s operation of the fire rescue truck was foreseeable to the defendant, and, as a result, we conclude that the court properly granted the motion for summary judgment.

At the outset we note our standard of review. “Summary judgment is appropriate when the pleadings, affidavits and any other proof submitted show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. . . . Thus, because the court’s decision on a motion for summary judgment is a legal determination, our review on appeal is plenary . . . .” (Citations omitted; internal quotation marks omitted.) Heussner v. Day, Berry & Howard, LLP, 94 Conn. App. 569, 572-73, 893 A.2d 486, cert. denied, 278 Conn. 912, 899 A.2d 38 (2006).

“The existence of a duty of care is a prerequisite to a finding of negligence.” Gomes v. Commercial Union Ins. Co., 258 Conn. 603, 614, 783 A.2d 462 (2001). “The existence of a duty is a question of law and only if such a duty is found to exist does the trier of fact then determine whether the defendant [breached] that duty in the particular situation at hand.” (Internal quotation marks omitted.) Mendillo v. Board of Education, 246 Conn. 456, 483, 717 A.2d 1177 (1998). “If a court determines, as a matter of law, that a defendant owes no duty to a plaintiff, the plaintiff cannot recover in negligence from the defendant.” RK Constructors, Inc. v. Fusco Corp., 231 Conn. 381, 384-85, 650 A.2d 153 (1994).

Our Supreme Court has stated that “the test for the existence of a legal duty of care entails (1) a determination of whether an ordinary person in the defendant’s position, knowing what the defendant knew or should have known, would anticipate that harm of the general nature of that suffered was likely to result, and (2) a determination, on the basis of a public policy analysis, of whether the defendant’s responsibility for its negligent conduct should extend to the particular consequences or particular plaintiff in the case.” (Internal quotation marks omitted.) Lodge v. Arett Sales Corp., 246 Conn. 563, 572, 717 A.2d 215 (1998).

“Our first step in an analysis of whether a duty exists and the extent of the defendant[s’] duty ... is to determine the foreseeability of the plaintiff [s’] injury . . . .” (Internal quotation marks omitted.) Id. It is a well established tenet of our tort jurisprudence, however, that “[d]ue care does not require that one guard against eventualities which at best are too remote to be reasonably foreseeable. See Palsgraf v. Long Island R. Co., 248 N.Y. 339, 345, 162 N.E. 99 [1928] .... [A] defendant [is] not required to take precautions against hazards [that are] too remote to be reasonably foreseeable. . . . Due care is always predicated on the existing circumstances.” (Citations omitted; internal quotation marks omitted.) Lodge v. Arett Sales Corp., supra, 246 Conn. 575.

The plaintiff asserts that the court improperly determined that the defendant did not owe her a duty of care. Having carefully reviewed the pleadings and evidentiary submissions to the court, we agree with the court’s thoughtful and well reasoned findings in its memorandum of decision. As the court aptly stated, “[t]he defendant was the operator of a fire rescue vehicle, which is required to respond quickly and efficiently to emergency type situations. It would not be unreasonable for such a vehicle’s engine to be turned on before responding to a routine or actual drill. Furthermore, there is nothing alleged in the complaint that such a practice is in violation of any fire department policy or manual. In addition, there is nothing in the complaint to indicate that said vehicle was anything but a normal fire rescue vehicle that was operating in accordance with fire department policy and procedure. Last, there is no allegation in the complaint that indicates that said vehicle was defective and/or vibrating at an excessive or dangerous level. In fact, the defendant states in his affidavit that ‘there is some vibration when the fire rescue truck is turned on, which is normal, and the amount of vibration was no different on June 12, 2005 than it was on any other prior occasion . . . .’ Thus, it was not foreseeable to the defendant that by the mere act of turning on the ignition of a standard fire rescue vehicle he would cause injury to the plaintiff or to any firefighter who has training and experience in mounting and/or entering a standard fire vehicle.” (Citation omitted.)

Our examination of the record persuades us that the court resolved the principles of law involved properly and that its judgment should be affirmed. Because the court’s memorandum of decision fully addresses the arguments raised in the appeal, we adopt it as a proper statement of the facts and applicable law on those issues. See Lachowicz v. Rugers, 51 Conn. Sup. 393, 990 A.2d 935 (2009). It would serve no useful purpose for us to further address the discussion contained therein. See Smith v. Trinity United Methodist Church of Springfield, Massachusetts, 263 Conn. 135, 136, 819 A.2d 225 (2003).

The judgment is affirmed.

In this opinion the other judges concurred.

       Prior to ruling on the summary judgment motion at issue in this appeal, the trial court granted the motion filed by the town of New Hartford to intervene as a plaintiff and to file a complaint against the defendant, Matthew Rugens, for reimbursement of workers’ compensation benefits that allegedly had been paid to Lachowicz. For convenience, we refer in this opinion to Lachowicz as the plaintiff.


author: Per Curiam.

text:
    KEVIN MARSHALL v. COMMISSIONER OF CORRECTION
    (AC 30379)
    Flynn, C. J., and Bishop and Alvord, Js.
    Submitted on briefs January 8
    officially released January 26, 2010
   Per Curiam.

The appeal is dismissed.


text:
    SYLVESTER J. WALDREN v. COMMISSIONER OF CORRECTION
    (AC 30273)
    DiPentima, Gruendel and Robinson, Js.
    Submitted on briefs January 8
    officially released January 26, 2010
   Per Curiam.

The appeal is dismissed.


text:
    BONNIE MACDONALD v. RICHARD C. STEWART
    (AC 30774)
    Harper, Lavine and Pellegrino, Js.
    Argued January 7
    officially released January 26, 2010
   Per Curiam.

The judgment is affirmed.


text:
    KOFI A. DWINFOUR v. DAPHNE A. BOLDEN
    (AC 30821)
    Flynn, C. J., and Harper and Alvord, Js.
    Argued January 19
    officially released February 9, 2010
   Per Curiam.

The judgment is affirmed.


text:
    WILLIAM BAGGARLY v. DAVID PARADIS
    (AC 30468)
    DiPentima, Gruendel and Robinson, Js.
    Submitted on briefs January 8
    officially released February 9, 2010
   Per Curiam.

The judgment is affirmed.


text:
    RODNEY CROSBY v. COMMISSIONER OF CORRECTION
    (AC 30525)
    DiPentima, Alvord and Hennessy, Js.
    Submitted on briefs February 4
    officially released March 9, 2010
   Per Curiam.

The judgment is affirmed.


text:
    ROBIN ELLIOTT v. THERESA LANTZ
    (AC 30896)
    Gruendel, Harper and Schaller, Js.
    Argued February 9
    officially released March 9, 2010
   Per Curiam.

The judgment is affirmed.


text:
    CHARLES J. FLANNIGAN ET AL. v. PLANNING AND ZONING BOARD OF THE CITY OF MILFORD
    (AC 30697)
    Gruendel, Harper and Schaller, Js.
    Submitted on briefs February 9
    officially released March 9, 2010
   Per Curiam.

The judgment is affirmed.


text:
    IN RE JAKE D. IN RE RYAN D.
    (AC 31148)
    Gruendel, Beach and West, Js.
    Submitted on briefs February 11
    officially released March 9, 2010
   Per Curiam.

The judgment is affirmed.


text:
    GREGORY JOHNSON v. COMMISSIONER OF CORRECTION
    (AC 30158)
    Gruendel, Alvord and West, Js.
    Argued February 11
    officially released March 9, 2010
   Per Curiam.

The appeal is dismissed.


text:
    WILLIAM PETAWAY v. COMMISSIONER OF CORRECTION
    (AC 30808)
    Gruendel, Robinson and Peters, Js.
    Submitted on briefs February 4
    officially released March 9, 2010
   Per Curiam.

The appeal is dismissed.


text:
    STATE OF CONNECTICUT v. CHARLES LOGAN
    (AC 31088)
    DiPentima, Harper and Borden, Js.
    Argued February 17
    officially released March 9, 2010
   Per Curiam.

The judgment is affirmed.