author: STOUGHTON, J.

text:
    JAMES BRULE ET AL. v. NERAC, INC., ET AL.
    (AC 31834)
    DiPentima, C. J., and Bear and Stoughton, Js.

      Argued December 1, 2010
    officially released March 15, 2011

      Francis G. Gleason, Jr., for the appellants (named plaintiff et al.).

      Victoria Woodin Chavey, with whom was Stacy Smith Walsh, for the appellees (defendants).
   Opinion

STOUGHTON, J.

The plaintiffs, James Brule, Stephen Warner and Dawn Wynkoop, appeal from the judgment of the trial court rendered in favor of the defendants, Nerac, Inc. (Nerac), and five individual employees of Nerac (individual defendants), following the court’s granting of the defendants’ motion to strike. The plaintiffs, former employees of Nerac, commenced this action against the defendants following the termination of their employment. On appeal, they claim that the court (1) improperly concluded that Warner’s contract based claims were insufficient as a matter of law and (2) improperly concluded that the individual defendants did not owe the plaintiffs a legal duty. We affirm the judgment of the trial court.

The plaintiffs’ amended complaint, taken as true and construed in the manner most favorable to sustaining its legal sufficiency; see Greenfield v. Reynolds, 122 Conn. App. 465, 466,1 A.3d 125, cert, denied, 298 Conn. 922, 4 A.3d 1226 (2010); asserts the following facts. Nerac, a Delaware corporation headquartered in Tol-land, employed each of the plaintiffs for a period of time before they were terminated from their employment. Brule held the position of advisor and was terminated on February 6, 2007. Warner served as a business unit director-strategic accounts and was terminated on February 5, 2007. Wynkoop was employed as a client service manager and was terminated on January 12, 2007.

By amended complaint filed August 21, 2008, the plaintiffs sought to recover damages from the defendants on the basis of a number of legal theories. The gravamen of these claims is that in 2003 Nerac provided a management training course, entitled “Managing Within the Law,” which was attended by certain Nerac managers, including Warner and several of the individual defendants. The plaintiffs alleged that the training materials used in the course directed Nerac’s managers to provide progressive discipline, open communication and an opportunity for improvement prior to terminating their subordinates’ employment. By virtue of teaching the attendees the contents of this training course, the plaintiffs claimed, Nerac formed contractually binding obligations not to terminate its managing employees absent such discipline. Because Warner attended the course as a manager, he alleged against Nerac breach of an express or implied employment contract and breach of the implied covenant of good faith and fair dealing.

Additionally, each plaintiff alleged that the individual defendants had committed negligence by terminating their employment. They claimed that the contracts of employment included a duty on the part of the individual defendants not to terminate their subordinates without affording progressive discipline and an opportunity to improve, and that the individual defendants had breached this duty by not providing these procedures prior to the plaintiffs’ terminations.

The defendants subsequently filed a motion to strike Warner’s claims of breach of contract and breach of the implied covenant of good faith and fair dealing. The defendants contended that the terms of the alleged employment contract that arose out of the “Managing Within the Law” course were too indefinite to form an enforceable contract and, therefore, that Warner had failed to state a cognizable contract based claim. The defendants’ motion also sought to strike each count in the amended complaint that alleged a claim of negligence against the individual defendants. They argued that such claims were insufficient because the individual defendants did not owe a legal duty to the plaintiffs.

The court, by memorandum of decision, granted the defendants’ motion to strike. In addressing Warner’s contract based claims, the court explained that the purpose of the “Managing Within the Law” course was to instruct the attendees on effective managing strategies and to provide useful advice regarding what managers “ ‘should’ ” do with respect to their subordinate employees. The course materials, however, did not manifest an intention on the part of Nerac to undertake any employment related contractual obligations of the type asserted by the plaintiffs. The court concluded, therefore, that any representations made in the management course could not reasonably be construed as contractual promises and were unenforceable as a matter of law.

Turning to the plaintiffs’ claims against the individual defendants, the court explained that these allegations were premised on the notion that the individual defendants were negligent by failing to follow Nerac’s customs and policies, including a duty to provide progressive discipline prior to terminating their subordinates’ employment. The plaintiffs contended that such obligations arose from the employment contracts between the individual defendants and Nerac that allegedly were formed when they attended the “Managing Within the Law” course. The court disagreed, reasoning that a duty to provide progressive discipline could not have arisen as a result of the individual defendants attending such a course, “which contained advice and suggestions, not contractual obligations.” Accordingly, the court concluded that, as a matter of law, the plaintiffs’ negligence claims did not allege a legal duty owed to them by the individual defendants. After judgment was rendered in favor of the defendants pursuant to Practice Book § 10-44, the plaintiffs filed the present appeal.

“The standard of review in an appeal from the granting of a motion to strike is well established. Because a motion to strike challenges the legal sufficiency of a pleading and, consequently, requires no factual findings by the trial court, our review of the court’s ruling . . . is plenary. ... It is fundamental that in determining the sufficiency of a complaint challenged by a defendant’s motion to strike, all well-pleaded facts and those facts necessarily implied from the allegations are taken as admitted. . . . For the purpose of ruling upon a motion to strike, the facts alleged in a complaint, though not the legal conclusions it may contain, are deemed to be admitted. ... A motion to strike is properly granted if the complaint alleges mere conclusions of law that are unsupported by the facts alleged.” (Citations omitted; internal quotation marks omitted.) Metcoff v. Lebovics, 123 Conn. App. 512, 516, 2 A.3d 942 (2010). With these principles in mind, we turn to the plaintiffs’ claims on appeal.

I

The plaintiffs first claim that the court improperly granted the defendants’ motion to strike Warner’s contract based claims asserted against Nerac. Specifically, the plaintiffs argue that the facts alleged in their complaint demonstrate that the language in the “Managing Within the Law” course set forth contractually binding mandatory directives by which Nerac promised to provide Warner with progressive discipline and adequate warning prior to his termination. The defendants counter that, consistent with the court’s decision, the language in the course relied on by the plaintiffs was not sufficiently promissory to support contractual liability. We agree with the defendants.

“Under established principles of contract law, an agreement must be definite and certain as to its terms and requirements.” (Internal quotation marks omitted.) Bayer v. Showmotion, Inc., 292 Conn. 381, 411, 973 A.2d 1229 (2009). “Furthermore, [t]o form a valid and binding contract in Connecticut, there must be a mutual understanding of the terms that are definite and certain between the parties.” (Internal quotation marks omitted.) LeBlanc v. New England Raceway, LLC, 116 Conn. App. 267, 283, 976 A.2d 750 (2009). Although the determination of whether the parties intended to undertake a contractual commitment is generally a question of fact; see Finley v. Aetna Life & Casualty Co., 202 Conn. 190, 199, 520 A.2d 208 (1987), overruled in part on other grounds by Curry v. Burns, 225 Conn. 782, 786, 626 A.2d 719 (1993); when the proposed language could not reasonably be construed as a basis for a contractual promise, the issue should not be submitted to the trier of fact. See Christensen v. Bic Corp., 18 Conn. App. 451, 457-58, 558 A.2d 273 (1989).

In granting the defendants’ motion to strike, the court determined that the provisions in the “Managing Within the Law” course contained no language that was promissory in nature. We agree with that determination. Con-tiary to the plaintiffs’ assertions, the representations allegedly made during the course manifested no present intention on the part of Nerac to undertake immediate contractual obligations to the plaintiffs. See D’Ulisse-Cupo v. Board of Directors of Notre Dame High School, 202 Conn. 206, 214-15, 520 A.2d 217 (1987). Our review of the course text reveals that the language at issue could not reasonably be construed as mandatory directives but instead was meant to inform the attendees on suggested managing practices. For example, in the section of the training materials entitled “At-will vs. Progressive Discipline,” the text allegedly stated: “[A]twill employment . . . means that you do not have to follow any specific procedures or processes before you terminate someone. You do not need to follow a specific ‘progressive discipline program.’ ” (Emphasis added.) The materials went on to instruct the attendees that this language did not prohibit them from using progressive discipline as part of their management strategy; instead, it simply meant that they were “not bound by any formal rules or discipline.” This section is followed by a series of suggested principles that the managers should observe, including terminating employees without prior warning or discipline only when their conduct resulted in egregious company violations. The materials are devoid, however, of any language that demonstrates an intention to contractually bind the parties by way of directing the attendees to follow specified management procedures in a mandatory fashion.

We conclude that the “Managing Within the Law” materials merely suggested how the attendees, including Warner, should manage their subordinates and, thus, cannot reasonably be construed as sufficiently definite to create an enforceable contract. The plaintiffs’ amended complaint, therefore, did not sufficiently allege an express or implied employment based contract claim by Warner against Nerac.

II

We turn next to the plaintiffs’ claim that the court improperly granted the defendants’ motion to strike the counts of their amended complaint that alleged negligence on the part of the individual defendants. The plaintiffs contend that the court failed to construe their amended complaint in the light most favorable to sustaining its legal sufficiency when it concluded that their negligence counts failed adequately to allege a duty of care owed to them by the individual defendants. We are not persuaded.

“The essential elements of a cause of action in negligence are well established: duty; breach of that duty; causation; and actual injury. . . . Duty is a legal conclusion about relationships between individuals, made after the fact, and [is] imperative to a negligence cause of action. . . . Thus, [t]here can be no actionable negligence . . . unless there exists a cognizable duty of care.” (Internal quotation marks omitted.) Mazurek v. Great American Ins. Co., 284 Conn. 16, 29, 930 A.2d 682 (2007). “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.” (Internal quotation marks omitted.) Ward v. Greene, 267 Conn. 539, 565-66, 839 A.2d 1259 (2004) (Katz, J., dissenting).

The plaintiffs contend that the individual defendants had a duty to use progressive discipline and to provide an opportunity for employees to improve prior to being terminated. They claim that this duty arose from the alleged employment contracts that were formed between Nerac and several of the individual defendants when they attended the “Managing Within the Law” course; see D'Angelo Development & Construction Corp. v. Cordovano, 121 Conn. App. 165, 186, 995 A.2d 79 (“[t]here is no question that a duty of care may arise out of a contract”), cert, denied, 297 Conn. 923, 998 A.2d 167 (2010); and that the individual defendants breached this duty when they elected to terminate the plaintiffs in a manner that was inconsistent with the principles espoused at the course.

As set forth in part I of this opinion, the materials used in the training course did not set forth mandatory directives that bound the individual defendants to provide their subordinates with progressive discipline or an opportunity for improvement prior to termination. Because the training materials completely lacked any promissory language, they could reasonably be construed only as suggestive guidelines for managing Nerac employees. Accordingly, there was no contractual obligation from which the alleged duty may have arisen. See Sheiman v. Lafayette Bank & Trust Co., 4 Conn. App. 39, 45, 492 A.2d 219 (1985) (“[njegligence cannot be predicated upon the failure to perform an act which the actor was under no duty or obligation to perform”). We conclude, therefore, that the court concluded correctly that the plaintiffs’ negligence counts failed adequately to allege a legal duty owed to them.

The judgment is affirmed.

In this opinion the other judges concurred.

       The five individual employees named as defendants are Kevin A. Bouley, Betsy Petrie, Geni Potash, Jil Corso and Paul Harger, all of whom were managers or executives of Nerac.

       Two additional former employees of Nerac, Carol Green and Jennifer Santry, who were named as plaintiffs and listed as appellants in the docketing statement filed pursuant to Practice Book § 63-4, have withdrawn their appeals. We therefore refer in this opinion to Brule, Warner and Wynkoop as the plaintiffs.

       Brule and Wynkoop also alleged similar contract based claims against Nerac. The defendants did not challenge these claims in their motion to strike. After judgment was rendered on the motion to strike, Nerac filed a motion for summary judgment on Brule’s and Wynkoop’s contract based claims. The court granted Nerac’s motion and rendered summary judgment on those remaining claims, and the plaintiffs do not challenge that ruling on appeal.

       The plaintiffs allege in their amended complaint that Warner’s claim of breach of the implied covenant of good faith and fair dealing was “imposed” on Nerac as a result of his alleged employment contract with Nerac. Because we conclude that the court properly determined that such a contract did not exist, his breach of the implied covenant of good faith and fair dealing claim also was properly stricken. See generally Magnan v. Anaconda Industries, Inc., 193 Conn. 558, 567-72, 479 A.2d 781 (1984); Cowen v. Federal Express Corp., 25 F. Sup. 2d 33, 37-38 (D. Corm. 1998).


source: Caselaw Access Project

author: BEACH, J.

license: Public Domain

text:
    GINA MCCARTHY, COMMISSIONER OF ENVIRONMENTAL PROTECTION v. CHROMIUM PROCESS COMPANY ET AL.
    (AC 31331)
    Harper, Beach and Schaller, Js.

      Argued October 18, 2010
    officially released March 15, 2011

      AlanM. Kosloff, for the appellant (named defendant).

      Patricia A. Horgan, assistant attorney general, with whom were Matthew I. Levine, assistant attorney general, and, on the brief, Richard Blumenthal, former attorney general, and Kimberly P. Massicotte, assistant attorney general, for the appellee (plaintiff).
   Opinion

BEACH, J.

This case arises from a stipulated judgment between the plaintiff, Gina McCarthy, the commissioner of environmental protection (commissioner), and the defendant, the Chromium Process Company. The defendant claims that the court erred in (1) determining that, pursuant to the terms of the stipulated judgment, it lacked the authority to assess an amount of less than $25,000 for each postjudgment violation and (2) failing to address the applicability of the writ of audita querela to the issue of penalty assessment pursuant to the stipulated judgment. We affirm the judgment of the trial court.

The record reveals the following relevant facts. In September, 2007, the commissioner filed a revised amended complaint against the defendant alleging numerous environmental violations, including violations of the defendant’s National Pollution Discharge Elimination System permit (national permit), which authorized the discharge of treated metal finishing wastewater into the Housatonic River in accordance with certain conditions; violations of its State Pollution Discharge Elimination System permit (state permit), which authorized the discharge of wastewater associated with metal finishing manufacturing processes into the Shelton sanitary sewer system; violations of its storm water general permit, which authorized the discharge of storm water associated with industrial activity; and hazardous waste violations. The commissioner sought, inter alia, temporary and permanent injunctive relief as well as the imposition of civil penalties. On August 25, 2008, the parties filed both a stipulation for judgment and a motion for judgment in accordance with the stipulation. On the same date, the court entered judgment in accordance with the parties’ stipulation for judgment, which provided for injunctive relief, imposed monetary penalties for violations alleged in the complaint and imposed stipulated penalties for postjudgment violations of the injunctions.

On December 9, 2008, the commissioner filed a motion requesting the court to schedule a hearing to assess stipulated penalties in accordance with the stipulated judgment. The defendant filed a request for a one year extension of time to pay the existing civil penalties agreed to in the stipulated judgment and filed an objection to the assessment of additional stipulated penalties. The commissioner filed an objection to the defendant’s motion for extension. On February 10, 2009, the court held an evidentiary hearing in response to the commissioner’s December 9, 2008 motion. The parties filed posthearing briefs, and on March 2, 2009, the court heard oral argument. The court heard further argument on April 7,2009. On April 8,2009, the defendant notified the court that it had filed a petition for bankruptcy, and on April 15, 2009, the court stayed the matter. The commissioner filed a motion requesting reconsideration of the bankruptcy stay pursuant to § 362 (b) (4) of title 11 of the United States Code. The defendant filed a reply on June 9, 2009, stating that it did not oppose the commissioner’s motion for reconsideration of the stay.

On July 15, 2009, the court filed its memorandum of decision. In its decision, the court granted the commissioner’s motion for reconsideration of the bankruptcy stay and lifted the stay. The court found six violations of the stipulated judgment, including a September 18, 2008 violation of the chronic toxicity limits for the Daph-nia pulex species. Pursuant to the terms of the stipulated judgment, the court assessed the stipulated penalties at $25,000 per violation for a total penalty of $150,000. The court further determined that, because it found more than four violations, pursuant to the stipulated judgment, the defendant must immediately surrender its national and state permits. The court deferred ruling on the defendant’s motion to extend the time to pay civil penalties. This appeal followed.

Following oral argument before this court, we, sua sponte, ordered the trial court to articulate its reasoning with respect to its finding of the September 18, 2008 violation. On December 14, 2010, the court held a hearing on the articulation. At the hearing, the commissioner orally moved, with the consent of the defendant and approval by the court, to open the judgment for the sole purpose of withdrawing her claim pertaining to the September 18, 2008 violation. The commissioner stated that she was seeking, pursuant to paragraph HID of the stipulated judgment, financial penalties for four violations at $25,000 each, for a total of $100,000 and no more. As a result, the court modified its prior judgment and reduced the penalties to a total of $100,000. The court noted in its articulation that despite the commissioner’s withdrawal of her claim of a September 18, 2008 chronic toxicity violation, the defendant still had five violations and, thus, must, according to the stipulated judgment, surrender its national and state permits.

We first set forth the following principles of law regarding stipulated judgments. “A stipulated judgment constitutes a contract of the parties acknowledged in open court and ordered to be recorded by a court of competent jurisdiction. ... A stipulated judgment allows the parties to avoid litigation by entering into an agreement that will settle their differences once the court renders judgment on the basis of the agreement. ... A stipulated judgment, although obtained through mutual consent of the parties, is binding to the same degree as ajudgment obtained through litigation.” (Citations omitted; internal quotation marks omitted.) Wal-lerstein v. Stew Leonard’s Dairy, 258 Conn. 299, 310, 780 A.2d 916 (2001). “A judgment rendered in accordance with ... a stipulation of the parties is to be regarded and construed as a contract.” (Internal quotation marks omitted.) Suffield Development Associates Ltd. Partnership v. National Loan Investors, L.P., 97 Conn. App. 541, 555, 905 A.2d 1214, cert, denied, 280 Conn. 942, 943, 912 A.2d 479 (2006).

I

The defendant first claims that the court erred in determining that, pursuant to the terms of the stipulated judgment, it lacked the authority to assess an amount of less than $25,000 per postjudgment violation. We disagree.

We set forth our standard of review. “Where the language of the contract is clear and unambiguous, the contract is to be given effect according to its terms. A court will not torture words to import ambiguity where the ordinary meaning leaves no room for ambiguity .... Similarly, any ambiguity in a contract must emanate from the language used in the contract rather than from one party’s subjective perception of the terms. . . . [T]he mere fact that the parties advance different interpretations of the language in question does not necessitate a conclusion that the language is ambiguous. . . . [I]n construing contracts, we give effect to all the language included therein, as the law of contract interpretation . . . militates against interpreting a contract in a way that renders a provision superfluous. ... If a contract is unambiguous within its four corners, intent of the parties is a question of law requiring plenary review. . . . When the language of a contract is ambiguous, the determination of the parties’ intent is a question of fact, and the trial court’s interpretation is subject to reversal on appeal only if it is clearly erroneous.” (Citations omitted; internal quotation marks omitted.) Honulik v. Greenwich, 293 Conn. 698, 710-11, 980 A.2d 880 (2009).

Paragraph III of the stipulated judgment, which is entitled “Bond,” sets forth a system for assuring that the defendant would comply with the injunctive provisions of the stipulated judgment, as provided in paragraphs IIA through IIL. The relevant portions are as follows:

“A. [The] Defendant . . . shall, within fifteen (15) days of [the] entry of this Judgment, provide a cash bond of Fifty Thousand Dollars ($50,000.00), to be held by the Superior Court or to be held by a person designated by the Superior Court, to benefit the State of Connecticut Department of Environmental Protection. The purpose of the bond is to assure performance of injunctive provisions contained in Paragraphs IIA. through II.L. of this Judgment and to secure Stipulated Penalties assessed for any future violation of Paragraphs IIA. through ILL. of this Judgment ....
“B. The Defendant . . . shall maintain the bond of $50,000.00 consistent with the provisions of this Section III. In the event that the bond of $50,000.00 is depleted, the Defendant . . . shall, within ten (10) days of depletion, replenish the bond with an additional $50,000.00 cash bond in the same manner and for the same purposes as set forth in Paragraph IH.A. . . .
“C. The bond provisions shall remain in place for five years from entry of this Judgment.
“D. Until such time as the bond is released, fully exhausted or expires pursuant to paragraph III. C., any violation of paragraphs II.A. through ILL. of this judgment shall result in a stipulated interim civil penalty (‘Stipulated Penalty’) of Twenty-Five Thousand Dollars ($25,000) per day for each day of each violation.
“E. In the event of violations of Paragraphs II.A. through ILL. of this Judgment, the Commissioner may file a Request for a hearing for an Order of Assessment of the Stipulated Penalty with the Superior Court. After a hearing and any assessment by the court, such Stipulated Penalty or penalties shall be deducted from the principal amount of the bond and paid to the ‘Treasurer, State of Connecticut’ . . .
“F. In the event that there are violations of Paragraphs IIA. through II.L. of this Judgment, and the bond has been exhausted, any further violation of Paragraphs IIA. through II.L. of this Judgment shall automatically, upon a finding of such violation by the court, be deemed a surrender of [National Pollution Discharge Elimination System] Permit No. CT0000744 and State Permit No. SP0001259 and discharges under these permits shall immediately cease.”

The defendant claims in its brief that the court erred in concluding that the penalties being sought by the commissioner fell within paragraph HID, which provides for penalties of $25,000 per day per violation. The defendant contends, essentially, that the stipulated judgment is ambiguous because paragraph V16, in contradiction to paragraph HID, provides that the civil penalty for each violation shall not exceed $25,000 per day.

In its memorandum of decision, the court found six violations and, pursuant to paragraph HID of the stipulated judgment, assessed each violation at $25,000 for a total stipulated penalty of $150,000. At the hearing on the motion for articulation, however, the commissioner stated that she was seeking, pursuant to paragraph HID of the stipulated judgment, financial penalties for only four violations at $25,000 each for a total of $100,000 and no more. As a result, the court modified its prior judgment and reduced the penalties to a total of $100,000. Accordingly, the court assessed financial penalties for four violations under paragraph HID of the stipulated judgment. To the extent that the defendant’s claim still stands, we conclude that the court did not eix in assessing financial penalties for four violations under paragraph HID of the stipulated judgment.

The challenged language of the stipulated judgment is clear and unambiguous. Paragraph HID clearly provides that “[u]ntil such time as the bond is released, fully exhausted or expires pursuant to paragraph III.C,” any violation of the injunctive provisions “shall result in a stipulated interim civil penalty ... of Twenty-Five Thousand Dollars ($25,000) per day for each day of each violation.” Under the clear language of this paragraph, a penalty of $25,000 is imposed on the defendant for each day of each violation of the injunctive provisions. It is clear that paragraph HID governs penalties for violations of the injunctive provisions that occur before the exhaustion of the required bonds.

The defendant argues, however, that the language of paragraph IIID contradicts the language of paragraph V16. We do not agree. Paragraph V16 provides that “[i]n the event that any provision of this Judgment is violated by [the] defendants, the Superior Court may assess an additional civil penalty for each such violation, not to exceed $25,000.00 per day.” Construing the contract as a whole; see Barnard v. Barnard, 214 Conn. 99, 109, 570 A.2d 690 (1990); and giving “ ‘effect to all the language included therein’ ”; Honulik v. Greenwich, supra, 293 Conn. 711; we conclude that penalties provided in paragraph V16 apply after the pendency of the bond. “A court will not torture words to import ambiguity where the ordinary meaning leaves no room for ambiguity and words do not become ambiguous simply because lawyers or laymen contend for different meanings.” (Internal quotation marks omitted.) Barnard v. Barnard, supra, 110. Thus, once the bond has been released, fully exhausted or expires, and the defendant violates the injunctive provisions of the stipulated judgment, then, according to paragraph V16, the court may assess penalties of up to $25,000 per day per violation.

Paragraph IIID governs until the bond is exhausted. Pursuant to paragraph IIIB, the defendant is required to maintain a bond of $50,000 and is required to replenish the bond with an additional $50,000 in the event that the first bond is depleted. Accordingly, the two consecutive cash bonds of $50,000 would be exhausted once the defendant’s stipulated penalties under paragraph IIID reach $100,000. With a stipulated penalty of $25,000 per violation under paragraph IIID, the bond would be exhausted after a total of four violations. Accordingly, the court properly applied paragraph IIID and properly assessed the penalty at $25,000 for each of the four violations for which the commissioner sought financial penalties.

II

The defendant next claims that court erred in failing to address in its decision the issue of the applicability of the writ of audita querela to the issue of penalty assessment pursuant to the stipulated judgment. We decline to review this claim.

During the March 2, 2009 hearing, the court asked the parties to brief the issue of whether the writ of audita querela could be invoked regarding the defendant’s motion for extension of time to pay the existing penalties. The court heard further argument on April 7, 2009. The court’s memorandum of decision did not contain any specific finding regarding the applicability of the writ of audita querela.

It is the duty of the appellant to provide this court with an adequate record for review, and the defendant failed to file a motion for articulation. “It is well established that [i]t is the appellant’s burden to provide an adequate record for review. ... It is, therefore, the responsibility of the appellant to move for an articulation or rectification of the record where the trial court has failed to state the basis of a decision ... to clarify the legal basis of a ruling ... or to ask the trial judge to rule on an overlooked matter. ... In the absence of any such attempts, we decline to review this issue.” (Internal quotation marks omitted.) Dickinson v. Mulla-ney, 284 Conn. 673, 680, 937 A.2d 667 (2007); see also Practice Book §§ 60-5 and 66-5. Accordingly, we decline to review this claim.

The judgment is affirmed.

In this opinion the other judges concurred.

       Daniel T. Martin, the general manager of the Chromium Process Company, was also named as a defendant in the complaint. The complaint contained one count against Martin, individually, for discharge to the waters of the state without a permit. Martin was a party to the stipulated judgment but did not individually participate in this appeal. We therefore refer to the Chromium Process Company as the defendant.

       The defendant made an additional claim on appeal, which we need not address. See footnote 5 of this opinion.

       Daphnia pulex are crustaceans, known as water fleas, that are used to test the toxicity of pollutants.

       The court noted that the defendant’s motion to extend the time to pay civil penalties arguably lost its significance because the defendant filed for bankruptcy protection on April 8, 2009, but nevertheless the court deferred its ruling in light of the defendant’s bankruptcy.

       On appeal, the defendant also claims that the court erred in finding that the results of a September 18, 2008 sample, which exceeded the chronic toxicity limits of its national permit for discharge to the Housatonic River, violated the terms of the stipulated judgment. The defendant argued that, according to paragraph IIH of the stipulated judgment, it is not subject to stipulated penalties for the September 18, 2008 sample. We, sua sponte, ordered the court to articulate the following: “(1) Did the court resolve the defendant’s claim that penalties should not be assessed for the September 18,2008 violations because paragraph IIH of the stipulated judgment requires the defendant within thirty days of the entry of judgment, but no later than September 26, 2008, to correct all violations pleaded in the complaint? (2) If so, please state the factual and legal basis for the resolution of that issue. The parties may file simultaneous supplemental briefs of no more than ten pages within ten days after notice of the trial court’s articulation is issued.” In light of the fact that the commissioner withdrew her claim of a violation based on the September 18, 2008 chronic toxicity reading, we need not address this claim.

       Neither party filed supplemental briefs in response to the court’s articulation.

       The defendant argues, referencing the testimony of Oswald Inglese, the director of the department of environmental protection water permitting and enforcement division, that the commissioner’s intent in executing the stipulated judgment was to seek assessment of stipulated penalties “up to $25,000” per day. The testimony of Inglese does not supersede the language of the stipulated judgment. The stipulated judgment is clear and unambiguous, and the intent of the parties is clear from the language of the stipulated judgment itself. The parties’ “intent must be determined from the language of the instrument and not from any intention either of the parties may have secretly entertained. . . . When the language is clear and unambiguous . . . the contract is to be given effect according to its terms.” (Internal quotation marks omitted.) Crews v. Crews, 107 Conn. App. 279, 289-90, 945 A.2d 502 (2008), affd, 295 Conn. 153, 989 A.2d 1060 (2010).
      The defendant further argues that the stipulated judgment cannot be read to include the “onerous and patently unjust requirement” of $25,000 per day per violation and that the commissioner is not authorized by General Statutes § 22a-438 (a) to collect the fixed penalty of $25,000. Section 22a-438 (a) provides in relevant part: “Any person who or municipality which violates any provision of this chapter, or section 22a-6 or 22a-7 shall be assessed a civil penalty not to exceed twenty-five thousand dollars, to be fixed by the court, for each offense. . . .” This argument is unavailing. The parties agreed to the terms of the stipulated judgment, which the court accepted, and the $25,000 penalty provided by paragraph HID is within the limits of the penalty set forth in § 22a-438 (a).

       “A writ of audita querela is a writ issued to afford a remedy to a defendant against whom judgment had been rendered, but who had new matter in defense . . . arising, or at least raisable for the first time, after judgment.” (Internal quotation marks omitted.) State v. Cotto, 111 Conn. App. 818, 819 n.3, 960 A.2d 1113 (2008).


author: HARPER, J.

text:
    STATE OF CONNECTICUT v. RONALD LITTLE
    (AC 30967)
    Bishop, Harper and Pellegrino, Js.

      Argued October 29, 2010
    officially released March 15, 2011

      Neal Cone, senior assistant public defender, for the appellant (defendant).

      Nancy L. Chupak, senior assistant state’s attorney, with whom, on the brief, were John C. Smriga, state’s attorney, and Tatiana A. Messina, assistant state’s attorney, for the appellee (state).
   Opinion

HARPER, J.

The defendant, Ronald Little, appeals from the judgment of conviction, rendered after a trial to the court, of failing to comply with the registration requirements imposed by General Statutes § 54-252 (a) on persons who have committed a sexually violent offense. First, the defendant claims that there was insufficient evidence to support his conviction because the evidence was insufficient for the court to conclude that (1) he was a sexually violent offender required to register under § 54-252 and (2) he failed to comply with the registration requirements of § 54-252. Second, the defendant claims that the retroactive application of § 54-252 is unconstitutional under the constitution of Connecticut. We disagree and affirm the judgment of the trial court.

The record reveals the following facts and procedural history that are relevant to our resolution of the defendant’s appeal. In 1991, the defendant pleaded guilty to sexual assault in the third degree in violation of General Statutes § 53a-72a and was sentenced to two years of imprisonment, execution suspended, with three years of probation. In compliance with the requirements of § 54-252, the defendant first registered with the sex offender registry unit of the state police (registry) on July 9, 1999. Pursuant to § 54-252, a person required to register under the statute must complete and return forms to verify his or her address during the registration period. The registry sends address verification forms directly to registrants every ninety days, which the registrants must complete and return within ten days. The defendant complied with these registration and reporting requirements until June, 2007, when he failed to return an address verification form. Additional correspondence was sent to the defendant’s last known address on July 3 and 14, 2007, in an attempt to obtain the defendant’s compliance. The defendant did not respond to this additional correspondence. The registry did not receive any correspondence from the defendant until December 4, 2007, when he sent an e-mail to the registry that stated: “I need to update my registry. If you can, send the letter to my new address.” The e-mail provided a new address at which the defendant was residing. By reply e-mail, a detective with the registry informed the defendant that he needed to send his information in writing to the registry. Subsequently, the registry sent a verification form to the new address, which the defendant returned. The defendant has since remained in compliance with registry requirements.

On January 12, 2008, the defendant was charged by substitute information with failing to register as a sex offender in violation of § 54-252 (a). Specifically, the information charged that the defendant, who had previously been convicted of a sexually violent offense and who resided in Connecticut, “failed to complete and return forms mailed to his address to verify his residence address . . . .” After a trial to the court, the defendant was found guilty of failing to comply with the registration requirements of § 54-252. The court sentenced the defendant to three years of imprisonment, execution suspended, and three years of probation with the special condition that he complete 100 hours of community service for each year he is on probation. This appeal followed. Additional facts and procedural history will be set forth as necessary.

I

The defendant’s first claim is that there was insufficient evidence to support his conviction. The defendant challenges the sufficiency of the evidence to support his conviction in two respects. First, the defendant claims that the evidence was insufficient to establish that he was a sexually violent offender subject to the registration requirements of § 54-252. Second, the defendant claims that even if the evidence was sufficient to establish that he was subject to the registration requirements of § 54-252, there was insufficient evidence for the court to conclude that he failed to comply with those requirements.

Before addressing each of these claims in turn, we set forth our standard of review when addressing the sufficiency of the evidence to support a criminal conviction. “In reviewing the sufficiency of the evidence to support a criminal conviction we 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 [finder of fact] reasonably could have concluded that the cumulative force of the evidence established guilt beyond a reasonable doubt. . . . We note that the [finder of fact] must find every element proven beyond a reasonable doubt in order to find the defendant guilty of the charged offense, [but] each of the basic and inferred facts underlying those conclusions need not be proved beyond a reasonable doubt. ... If it is reasonable and logical for the [finder of fact] to conclude that a basic fact or an inferred fact is true, the [finder of fact] is permitted to consider the fact proven and may consider it in combination with other proven facts in determining whether the cumulative effect of all the evidence proves the defendant guilty of all the elements of the crime charged beyond a reasonable doubt.” (Internal quotation marks omitted.) State v. Rosario, 113 Conn. App. 79, 86, 966 A.2d 249, cert, denied, 291 Conn. 912, 969 A.2d 176 (2009).

“When there is conflicting evidence ... it is the exclusive province of the court, as the trier of fact, to weigh the conflicting evidence, determine the credibility of witnesses and determine whether to accept some, all or none of a witness’ testimony. . . . 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. . . . On appeal, we do not ask whether there is a reasonable view of the evidence that would support a reasonable hypothesis of innocence. We ask, instead, whether there is a reasonable view of the evidence that supports the [finder of fact’s] verdict of guilty.” (Citations omitted; internal quotation marks omitted.) State v. Muckle, 108 Conn. App. 146, 148-49, 947 A.2d 972, cert, denied, 288 Conn. 909, 953 A.2d 654 (2008).

A

The first aspect of the defendant’s sufficiency of the evidence claim is that there was insufficient evidence for the court to conclude that he was a violent sexual offender who was required to register under § 54-252. The defendant does not dispute that he previously pleaded guilty to third degree sexual assault in violation of § 53a-72a, but, rather, contends that there was insufficient evidence to establish that his conviction under § 53a-72a qualified as a sexually violent offense for purposes of § 54-252.

The registration requirements of § 54-252 are only applicable to persons who have “been convicted . . . of a sexually violent offense . . . .” General Statutes § 54-252 (a). A sexually violent offense, as the term is used in § 54-252, includes a violation of “[§] 53a-72a, except subdivision (2) of subsection (a) of said section . . . .” (Emphasis added.) General Statutes § 54-250 (11). Section 53a-72a provides in relevant part: “(a) A person is guilty of sexual assault in the third degree when such person (1) compels another person to submit to sexual contact (A) by the use of force against such other person or a third person, or (B) by the threat of use of force against such other person or against a third person, which reasonably causes such other person to fear physical iryury to himself or herself or a third person, or (2) engages in sexual intercourse with another person whom the actor knows to be related to him . . . .” Thus a conviction under § 53a-72a (a) (1) would qualify as a sexually violent offense for purposes of § 54-252, but a conviction under § 53a-72a (a) (2) would not. Although the defendant does not dispute that he pleaded guilty to third degree sexual assault in violation of § 53a-72a, he contends that the evidence was insufficient for the court to conclude that he had been convicted under the subsection of § 53a-72a that constitutes a sexually violent offense under § 54-252.

After a careful review of the record, we conclude that the defendant conceded that he had been convicted of a sexually violent offense and waived his right to require proof of that element of the offense. The following additional facts are relevant to this claim. At the beginning of the defendant’s criminal trial, the prosecutor asked that the court “take judicial notice of the fact that the defendant was convicted in 1991 of a sexually violent offense.” Defense counsel did not object to this request. The court then stated: “The state’s exhibit 1 . . . indicates [that the defendant was convicted] of sexual assault in the third degree. The court has reviewed the statute, and the court will take judicial notice of the fact that sexual assault in the third degree does fit the definition of a sexually violent offense for purposes of the registration statute.” Defense counsel did not object to this ruling. In the state’s summation, the prosecutor stated: “As Your Honor well knows, the first element of failure to register is [that] the defendant was convicted of a crime. The second element is that he was required to register. The third element is that he was released into the community. And the fourth element is that the defendant failed to register. Element number one, two and three, Your Honor, at this point are not disputed.” In the defendant’s summation, defense counsel stated: “As the state indicated, the only issue presented to the court, or, I believe, an issue of fact that the court has to make a determination, is that if [the defendant] failed to complete and return the form mailed to him to verify his address.” Ultimately, the court found that “the defendant was convicted in 1991 of sexual assault in the third degree in violation of . . . [§] 53a-72a. This fact and [the] first element of the offense charged was not really in dispute and was proven through the state’s exhibit 1, the testimony of [state police] Trooper [Rupert] De Los Reyes and in fact was conceded by the defendant.”

Although this court and our Supreme Court have “acknowledged that the state usually must prove all undisputed elements of a crime beyond a reasonable doubt, an element may be conceded by the defendant . . . and we have not required an express waiver of the right to require the state to prove each element of a crime.” (Citation omitted.) State v. Cooper, 38 Conn. App. 661, 669-70, 664 A.2d 773, cert, denied, 235 Conn. 908, 665 A.2d 903 (1995), cert, denied, 517 U.S. 1214, 116 S. Ct. 1837, 134 L. Ed. 2d 940 (1996). Moreover, “waiver of the right to require the state to prove each element of a crime may be made by counsel and may be inferred from the absence of an objection.” Id., 670.

In Cooper, this court held that the defendant, who had been convicted of operating a motor vehicle while under the influence of intoxicating liquor, had waived his right to require the state to prove that he was operating his vehicle on a public highway, which was an element of the crime charged. Id. We noted that a review of the record indicated that “proof of the public highway element clearly was not in dispute . . . .” Id. Specifically, we noted that “the state’s attorney, in closing argument, argued that the evidence was uncontro-verted that the defendant operated on a public highway. The defendant’s attorney, in his suihmation, did not dispute that fact.” Id., 668.

Our review of the record in the present case indicates that the issue of whether the defendant had been previously convicted of a sexually violent offense, which gave rise to the requirement that he register, was not in dispute at his trial and that he waived the state’s burden of proving that element of the offense. As was the case in Cooper, the prosecutor in the present case argued to the trier of fact that this element of the crime was uncontroverted. Additionally, in the present case, not only did defense counsel not dispute this fact but she explicitly affirmed the state’s assertion by indicating that the only element in dispute was whether the defendant had failed to register. The defendant did not object to the state’s request that the court take judicial notice of the fact that he had been convicted of a sexually violent offense to which the registry requirements applied, nor did he object to the court’s finding that he had conceded this element. The defendant cannot be heard to claim on appeal that there was insufficient evidence to support a finding that he had committed a sexually violent offense to which the registry requirements applied when, at trial, he made affirmative representations to the prosecution and the court that he was not disputing that fact. See id., 670 (“[t]o allow the defendant to seek reversal now that his trial strategy has failed would amount to allowing him to induce potentially harmful error, and then ambush the state with that claim on appeal” [internal quotation marks omitted]). On this record, we conclude that the defendant waived his right to require the state to prove that he had been convicted of a sexually violent offense to which the registration requirements of § 54-252 applied.

Although we reject the claim raised on appeal because we conclude that the defendant waived his right to have the state prove that he had previously been convicted of a sexually violent offense to which the registration requirements apply, we nonetheless conclude, as an alternate ground on which to reject the claim, that the record contains sufficient evidence for the court to have found that he had previously been convicted of a sexually violent offense. The defendant offered a copy of his sex offender registration form as a full exhibit at trial. This form was signed by the defendant when he first registered as a sex offender. The first section of the form contains the defendant’s name and personal information. The next section of the form reads, “[t]he person named above was convicted or found not guilty by reason of mental disease or defect of: ([check] all that apply).” The form then contains two boxes listing various offenses that would give rise to the requirement that the offender register with the registry. The second box contains the heading, “a sexually violent offense, such as one or more of the following crimes.” Within this box are various statutory provisions, the violation of which constitutes a sexually violent offense. Next to each statutory provision listed in this box is an area for the party filling out the form to place a check mark. The individual who filled out the defendant’s form placed a check mark in this box in the area next to the statutory provision reading, “[§] 53a-72a; except (a) (2),” thereby indicating that the individual named above, i.e., the defendant, had been convicted of a sexually violent offense for violating the provisions of § 53a-72a, except (a) (2). The defendant’s signature appears on the bottom of the form.

Additionally, De Los Reyes testified that the defendant was required to register because “he falls under the general guidelines to register as a sex offender in the state of Connecticut. And that particular crime is— is considered a crime of sexual violence which carries a mandatory lifetime registration.”

Construing this evidence in a light most favorable to sustaining the court’s finding, we conclude that the court reasonably could have found that the defendant had previously been convicted of a sexually violent offense. The court reasonably could have concluded from the defendant’s sexual offender registration form that he had previously been convicted under the subsection of § 53a-72a that constituted a sexually violent offense under § 54-252. Moreover, De Los Reyes testified specifically that the defendant was required to register because he had previously been convicted of a sexually violent offense. Thus, while our review of the record leads us to conclude that the defendant waived his right to require that the state prove that he had previously been convicted of a sexually violent offense, we nonetheless acknowledge that the record contains sufficient evidence to support the court’s finding.

B

The second aspect of the defendant’s claim regarding the sufficiency of the evidence to support his conviction is that the evidence was insufficient for the court to conclude that he had failed to comply with the registration requirements of § 54-252. We disagree.

The state offered ample evidence, including the testimony of De Los Reyes, that the defendant did not return the June, 2007 verification form as required by § 54-252 and did not contact the registry to notify it of his address change until his December, 2007 e-mail. The defendant, however, testified that at the end of May or at the start of June, 2007, he went in person to the state police barracks and provided a trooper with a new address. The defendant testified that the trooper told him he would be contacted. Additionally, the defendant and his wife testified that after he spoke with the trooper, they checked the sex offender registry website and saw that the defendant’s address had been changed. The state offered evidence, however, that the website indicated that the defendant was out of compliance with the registry requirements. In its thorough and well reasoned decision, the court noted that the defendant was “evasive” and “defensive” and that his testimony was “internally inconsistent.” Ultimately, the court chose not to credit the testimony of the defendant or the defendant’s wife.

The defendant’s claim regarding the sufficiency of the evidence to support the court’s finding that he failed to comply with the registry requirements essentially amounts to a challenge to the court’s credibility determinations. As previously noted, it is the sole province of the trial court, as fact finder, to make determinations regarding the credibility of witnesses and to weigh conflicting evidence. See, e.g., State v. Muckle, supra, 108 Conn. App. 148. On appeal, “[i]t is . . . not our function to retry the case or to pass upon the credibility of witnesses.” (Internal quotation marks omitted.) Clement v. Clement, 34 Conn. App. 641, 650, 643 A.2d 874 (1994). In the present case, the court’s findings were supported by ample evidence in the record, and the defendant’s claim is without merit.

II

The defendant’s next claim is that the retroactive application of § 54-252 is a violation of his rights under the constitution of Connecticut. Although the constitution of Connecticut does not contain an express prohibition of ex post facto laws, the defendant contends that the due process protections embodied in article first, §§ 8 and 9, prohibit the retroactive application of the sex offender registry requirements. We conclude that the defendant has failed to demonstrate that his rights under the constitution of Connecticut have been violated by the retroactive application of § 54-252.

We begin with a brief discussion of the history of the sex offender registry requirements as set forth by our Supreme Court. “[Section 54-252] is one provision of Megan’s Law, which is codified in chapter 969 of the General Statutes, the intent of which was to alert the public by identifying potential sexual offender recidivists when necessary for public safety. . . . The seriousness of the harm that sex offenders’ actions cause to society and the perception, supported by some data, that such offenders have a greater probability of recidivism than other offenders . . . combined to prompt the enactment of numerous laws across the country directed specifically toward persons convicted of crimes involving sexual conduct. . . . Chapter 969, entitled Registration of Sexual Offenders; General [Statutes § 54-250 et seq.; is such an enactment. Prior to the enactment of Megan’s Law, the law imposed a registration requirement only on specified sex offenders who were convicted on or after January 1, 1995. See General Statutes (Rev. to 1995) § 54-102r. The law was broadened in 1997 to include all convicted sex offenders. . . . The current statutory scheme imposes registration requirements based on four classifications: (1) the victims are minors or the sexual offenses are nonviolent; General Statutes § 54-251; (2) the sexual offenses are violent; General Statutes § 54-252; (3) the sexual offense was committed in another jurisdiction; General Statutes § 54-253; or (4) a felony was committed for a sexual purpose. See General Statutes § 54-254.” (Citations omitted; internal quotation marks omitted.) State v. Waterman, 264 Conn. 484, 490, 825 A.2d 63 (2003). As noted previously, the defendant was convicted of sexual assault in the third degree in 1991. Thus, the defendant contends that because the conduct that led to his conviction occurred prior to the enactment of Megan’s Law, the requirement that he register as a sex offender violates his rights under the constitution of Connecticut.

As an initial matter, we note that although the defendant did not assert his ex post facto argument before the trial court, he has affirmatively requested review of his claim under the doctrine set forth in State v. Golding, 213 Conn. 233, 239-40, 567 A.2d 823 (1989). Under Golding, a defendant can “prevail on a claim of constitutional error not preserved at trial only if all of the following conditions are met: (1) the record is adequate to review the alleged claim of error; (2) the claim is of constitutional magnitude alleging the violation of a fundamental right; (3) the alleged constitutional violation clearly exists and clearly deprived the defendant of a fair trial; and (4) if subject to harmless error analysis, the state has failed to demonstrate harmlessness of the alleged constitutional violation beyond a reasonable doubt.” (Emphasis in original.) Id. “The first two [prongs of Golding] involve a determination of whether the claim is reviewable; the second two . . . involve a determination of whether the defendant may prevail.” (Internal quotation marks omitted.) State v. Peeler, 271 Conn. 338, 360, 857 A.2d 808 (2004), cert, denied, 546 U.S. 845, 126 S. Ct. 94, 163 L. Ed. 2d 110 (2005).

First, given the nature of the defendant’s claim, we conclude that the record before us is adequate for review. Second, because the defendant has alleged that the application of the sex offender registry requirements violates the constitution of Connecticut he has satisfied the second prong of Golding. Therefore, the defendant’s claim is reviewable under Golding. As will be discussed, however, the defendant’s claim fails under the third prong of Golding because he has not established that the alleged constitutional violation exists.

The constitution of Connecticut does not contain a provision expressly prohibiting ex post facto laws. See, e.g., Abed v. Commissioner of Correction, 43 Conn. App. 176, 183, 682 A.2d 558, cert, denied, 239 Conn. 937, 684 A.2d 707 (1996). Although the original committee draft of article first, § 10, of the constitution of Connecticut, now article first, § 9, contained an ex post facto clause, the delegates to the constitutional convention of 1818 revised the committee draft and omitted entirely the ex post facto clause. See W. Horton, The Connecticut State Constitution: A Reference Guide (1993) p. 62. Despite the fact that the constitution of Connecticut does not contain an express ex post facto clause, the defendant contends that a protection against ex post facto laws can be implied from the due process protections embodied in article first, §§ 8 and 9.

Our Supreme Court has recognized that certain rights are implied in our constitution even in the absence of an express provision relating to those rights. See, e.g., State v. Ross, 230 Conn. 183, 246-47, 646 A.2d 1318 (1994) (concluding that although constitution of Connecticut does not contain express prohibition of cruel and unusual punishment, such prohibition can be implied from article first, §§ 8 and 9), cert, denied, 513 U.S. 1165, 115 S. Ct. 1133, 130 L. Ed. 2d 1095 (1995); Kohlfuss v. Warden, 149 Conn. 692, 695, 183 A.2d 626 (holding that despite lack of express provision, constitution of Connecticut impliedly contains protection against double jeopardy as part of due process clause of article first, § 9 [now § 8]), cert, denied, 371 U.S. 928, 83 S. Ct. 298, 9 L. Ed. 2d 235 (1962). Therefore, the defendant is correct in his assertion that the mere absence of an express provision in the constitution of Connecticut protecting a certain right does not necessarily mean that such a right is not protected by our constitution. This court has held, however, that article first, §§ 9 and 13, when read in conjunction, do not create an ex post facto clause in the constitution of Connecticut. Abed v. Commissioner of Correction, supra, 43 Conn. App. 183. Although acknowledging this court’s holding in Abed, the defendant contends that article first, §§ 8 and 9, should be read to prohibit ex post facto laws and that such prohibition renders the requirement that he register as a sex offender unconstitutional. We are not persuaded.

We need not determine whether the defendant is correct in his assertion that an ex post facto provision is implied in article first, §§ 8 and 9, of the constitution of Connecticut, because even if we assume, without deciding, that such a provision exists, the defendant has failed to demonstrate by means of an analysis under State v. Geisler, 222 Conn. 672, 610 A.2d 1225 (1992), that any protection against ex post facto laws allegedly provided for in the constitution of Connecticut is broader than that provided for in the federal constitution. Because our Supreme Court has held that Megan’s Law is not punitive and therefore does not violate the ex post facto clause of the federal constitution; State v. Kelly, 256 Conn. 23, 94-95, 770 A.2d 908 (2001); the defendant must establish not only that the constitution of Connecticut contains a prohibition of ex post facto laws but that such prohibition is broader than that encompassed within the federal constitution.

In Kelly, our Supreme Court addressed the issue of whether the registration requirements of Megan’s Law violated the ex post facto clause of the federal constitution. The court relied heavily on the reasoning of the United States Court of Appeals for the Second Circuit in Doe v. Pataki, 120 F.3d 1263, 1285 (2d Cir. 1997), cert, denied, 522 U.S. 1122, 118 S. Ct. 1066, 140 L. Ed. 2d 126 (1998), in which the court held that New York’s sex offender registry statute was not punitive and, therefore, did not violate the ex post facto clause of the federal constitution. State v. Kelly, supra, 256 Conn. 92-94. In Doe, the court applied a two part test in making its determination, examining first whether the legislature intended the statute to be punitive and second, whether even if the statute was not intended to be punitive, it was nonetheless “so punitive either in purpose or effect as to negate that intention.” (Internal quotation marks omitted.) Doe v. Palaki, supra, 1274. Our Supreme Court applied this two part test to Connecticut’s sex offender registry requirements and held that the statute was regulatory and not punitive, and, therefore, did not violate the ex post facto clause of the federal constitution. State v. Kelly, supra, 95.

In State v. Waterman, supra, 264 Conn. 484, our Supreme Court again discussed the regulatory nature of Megan’s Law. In Waterman, the defendant alleged that the trial court did not have jurisdiction to make a finding that he was required to register as a sex offender because the finding was made several weeks after the court sentenced him. Id., 488-89. The defendant claimed that the registration requirement was a “punitive sanction constituting] a substantive change in the judgment,” which the court did not have jurisdiction to impose after he had started serving his sentence. (Internal quotation marks omitted). Id., 489. Our Supreme Court discussed Kelly at length as well as recent federal cases that “underscore[d] the vitality” of its holding in Kelly regarding the regulatory nature of Megan’s Law. Id., 493. Ultimately, the court reaffirmed its holding in Kelly, holding that Megan’s Law was not a punitive statute, and concluded that “[b]ecause [the] regulatory requirements [of Megan’s Law] are ministerial,” the trial court had jurisdiction to “inform the defendant of his [obligation]” to register even after he had been sentenced. Id., 497.

In light of the clear precedent from our Supreme Court holding that the sex offender registry requirements are regulatory and do not violate the federal constitution, the defendant, to succeed on his claim, must establish that the protection against ex post facto laws that he claims is implied in our constitution is broader than the protection provided in the federal constitution. Specifically, because our Supreme Court has repeatedly held that Megan’s Law is a regulatory statute, in order to succeed, the defendant must demonstrate that the ex post facto protection that he alleges is contained in the constitution of Connecticut prohibits the retroactive application of regulatory statutes. He has failed to do so.

Our careful review of the defendant’s brief and arguments reflects that, although he has provided a detailed analysis in an effort to demonstrate that the constitution of Connecticut embodies an ex post facto protection, he has not attempted to demonstrate that such protection exceeds that embodied in the federal constitution. Rather, through a detailed Geisler analysis, he urges this court to adopt the reasoning of the dissenting justices in Smith v. Doe, 538 U.S. 84, 123 S. Ct. 1140, 155 L. Ed. 2d 164 (2003), who concluded that Alaska’s sex offender registry requirements were punitive; id., 113 (Stevens, J., dissenting); id., 118 (Ginsburg, J., dissenting); as well as the reasoning of the Indiana Supreme Court in Wallace v. State, 905 N.E.2d 371 (Ind. 2009), in which the court reached the same conclusion analyzing Indiana’s version of Megan’s Law under the constitution of Indiana. As discussed, however, our Supreme Court has repeatedly concluded that Megan’s Law is regulatory, not punitive in nature. As an intermediate appellate court, we are bound by our Supreme Court’s conclusion that Megan’s Law is aregulatory statute. See, e.g., James v. Valley-Shore Y.M.C.A., Inc., 125 Conn. App. 174, 184, 6 A.3d 1199 (2010) (“It is axiomatic that this court, as an intermediate body, is bound by the decisions of our Supreme Court. . . . Accordingly, [w]e are not at liberty to overrule or discard the decisions of our Supreme Court but are bound by them. . . . [I]t is not within our province to reevaluate or replace those decisions.” [Citation omitted; internal quotation marks omitted.]). This precedent is no less binding because the defendant in this case is alleging a violation of the constitution of Connecticut, rather than the federal constitution.

We conclude that even if we assume, without deciding, that the constitution of Connecticut contains an implied protection against ex post facto laws, the defendant has failed to demonstrate in any way that such protection exceeds that provided for in the federal constitution. Therefore, the defendant has not demonstrated that his rights under the constitution of Connecticut were violated by the requirement that he register as a sex offender under § 54-252. Because the defendant has not demonstrated that a constitutional violation clearly exists, his claim fails under the third prong of Golding.

The judgment is affirmed.

In this opinion the other judges concurred.

       In addition to our Supreme Court’s conclusions in the Kelly and Waterman cases regarding the regulatory nature of Megan’s Law, both our Supreme Court and this court subsequently have acknowledged that Megan’s Law is regulatory, not punitive in nature. See State v. Pentland, 296 Conn. 305, 314, 994 A.2d 147 (2010) (“the requirement to register as a sex offender under Megan’s Law is regulatory rather than punitive”); State v. Arthur H., 288 Conn. 582, 590, 953 A.2d 630 (2008) (“[t]he requirement to register as a sex offender is regulatory, rather than punitive, in nature”); State v. Pierce, 69 Conn. App. 516, 528, 794 A.2d 1123 (2002) (“Connecticut’s Megan’s Law, as to registration, was enacted by the legislature as a regulatory measure, not a punitive one, and was not intended as punishment”), rev’d on other grounds, 269 Conn. 442, 849 A.2d 375 (2004).

       In reaching this conclusion, we are mindful that our Supreme Court has held that the absence of an express provision in the constitution of Connecticut “strongly suggests” that any protection that may be implied in our constitution “mirrors, rather than exceeds, the federal constitutional protection.” (Internal quotation marks omitted.) State v. Michael J., 274 Conn. 321, 350, 875 A.2d 510 (2005). Moreover, that suggestion is strengthened when, as with the ex post facto clause, “a historical review reveals the exclusion of a textual ban . . . from the constitution of Connecticut was not the result of oversight but, rather, the product of a conscious decision by our constitutional forebears.” Id., 350-51.


author: BISHOP, J.

text:
    STATE OF CONNECTICUT v. PETER J. GOULD
    (AC 31545)
    Bishop, Lavine and Schaller, Js.

      Argued January 4
    officially released March 15, 2011

      Jeffrey P. Chartier, for the appellant (defendant).

      Lisa A. Riggione, senior assistant state’s attorney, with whom, on the brief, were David I. Cohen, state’s attorney, and Mitchell D. Rubin, senior assistant state’s attorney, for the appellee (state).
   Opinion

BISHOP, J.

The defendant, Peter J. Gould, appeals from the judgment of conviction, rendered following a jury trial, of two counts of reckless endangerment in the second degree in violation of General Statutes § 53a-64 (a). On appeal, the defendant claims that the trial court improperly (1) failed to instruct the jury regarding mistake of fact and (2) restricted his cross-examination of his then wife, Cynthia Gould. We affirm the judgment of the trial court.

The jury reasonably could have found the following facts. In 2007, the defendant and his wife, Cynthia Gould, were in the midst of divorce proceedings, which had commenced in 2005. In March, 2007, the defendant no longer resided with his wife and children in the marital home located at 429 Taconic Road in Greenwich but often visited the property to spend time with his children. On March 18,2007, unbeknownst to the defendant, Cynthia Gould called George Christiansen, who previously had served process on the defendant, to notify him that the defendant was at the marital home and available to be served.

When Christiansen and state marshal George Ritchie arrived, the defendant was backing his truck, which had a plow attached to it, into a garage. While Christiansen stayed in his vehicle, Ritchie approached the passenger side of the defendant’s vehicle and displayed his badge in one hand and a subpoena and restraining order in the other against the truck window. Ritchie identified himself as a state marshal and told the defendant that he had papers for him and asked the defendant to lower his window. The defendant responded that he could not hear Ritchie and increased the volume on the radio. When Ritchie went around to the back of the defendant’s truck, the defendant moved the truck in reverse, striking Ritchie, forcing him against the garage and causing him to fall on the ice. Christiansen then exited his vehicle and Ritchie told him to call the police. The defendant then struck Ritchie again with the truck, causing him to fall a second time. The defendant continued to drive forward and back a number of times. He struck Christiansen with the truck and then caught him between the plow and the hood of the truck, dragging him five to ten feet. Both Ritchie and Christiansen were treated for minor orthopedic injuries as a result of the incident.

As a result of the March 18, 2007 incident, the defendant was charged with assault of a peace officer in violation of General Statutes § 53a-167c (a), assault of an elderly person in the third degree in violation of General Statutes § 53a-61a (a) (l) and two counts of reckless endangerment in the second degree in violation of § 53a-64 (a). The jury found the defendant guilty of the reckless endangerment counts and not guilty of the other charges. The court sentenced the defendant to a total effective term of one year of incarceration, execution suspended, and two years of probation. This appeal followed.

I

The defendant first claims that the court improperly declined to instruct the jury on mistake of fact regarding his contention that he did not know that Ritchie was a state marshal. In seeking such an instruction, counsel for the defendant argued to the trial court that “whether [the defendant] knew . . . [that] it was a marshal involved or not is specifically why this charge is so important. Count one states that the state accuses the defendant . . . with committing the crime of assault on a peace officer . . . with intent to prevent a reasonable, identifiable peace officer . . . from performing his duties, and while such peace officer is acting in the performance of his duties, such person caused physical injury to such peace officer in violation of [the] Connecticut General Statutes.” Defense counsel went on to indicate that he sought a mistake of fact instruction to “negate a mental state required for the commission of an offense. Here, [the offense] requires that [the defendant] intended to prevent a reasonably identifiable peace officer from performing his duties. If [the defendant] did not know he was a peace officer, he could not have been trying to prevent him from doing his duties. And that, therefore, would negate the mental element.” The court declined to instruct the jury on mistake of fact as requested by the defendant.

The requested instruction pertained only to the offense of assault of a peace officer, of which the defendant was acquitted. Because the defendant’s conviction did not stem from the court’s decision not to instruct the jury regarding mistake of fact, his claim in this regard fails.

II

The defendant also claims that the court abused its discretion in limiting his cross-examination of Cynthia Gould. Specifically, the defendant claims that the court improperly limited his ability to call into question his wife’s ability to recall the events of that day and to impeach her credibility on the basis of the contested divorce proceeding in which the parties were involved at the time. We disagree.

“[I]n . . . matters pertaining to control over cross-examination, a considerable latitude of discretion is allowed. . . . The determination of whether a matter is relevant or collateral, and the scope and extent of cross-examination of a witness, generally rests within the sound discretion of the trial court. . . . Every reasonable presumption should be made in favor of the corr ectness of the court’s ruling in determining whether there has been an abuse of discretion.” (Internal quotation marks omitted.) State v. Moore, 293 Conn. 781, 790, 981 A.2d 1030 (2009).

Cynthia Gould testified that she observed the incident on March 18, 2007, from her third floor office window. She indicated that she did not see Ritchie display a badge when he approached the defendant’s truck. She testified that the defendant would not open the truck window when Ritchie approached him and that, instead, he drove the truck back and forth, trying to maneuver the truck so that he could avoid being served. In doing so, he struck both Ritchie and Christiansen with the truck before he fled. Her testimony was essentially cumulative of Christiansen’s testimony except that her testimony supported the defendant’s contention that Ritchie did not display his badge when he approached the defendant.

On recross-examination, the defendant asked Cynthia Gould whether she was under the influence of alcohol on the day of the incident in question. The court sustained the state’s objection to this question on the ground that the question was outside the scope of redirect examination. Nevertheless, despite the pendency of the state’s objection, Cynthia Gould answered, “no,” when asked whether she had been drinking on the day in question, and her response was not stricken from the record. The question, therefore, was asked and answered. Despite the fact that the witness had answered the question, defense counsel protested the court’s ruling, arguing that the question went to the witness’ “ability to recall events.” The court explained to defense counsel that his recross-examination would be limited to what was brought out on redirect. Following this colloquy, defense counsel did not seek to make an offer of proof regarding this issue and, instead, indicated that he had no further questions.

The defendant claims on appeal that the question regarding whether Cynthia Gould had been drinking on the day in question was relevant to her ability to recall the events of that day. Our review of the record reveals not only that the witness answered the question in the negative, an answer that remained unstricken before the jury, but that the court properly determined that the defendant’s inquiry on this issue was beyond the scope of the state’s redirect examination. Thus, the court did not abuse its discretion in disallowing that question.

The defendant also claims that the court improperly limited his cross-examination of Cynthia Gould relating to their divorce proceedings and that such testimony was relevant to her bias. In support of this claim, the defendant points to portions of Cynthia Gould’s testimony on cross-examination in which defense counsel asked several questions regarding the parties’ divorce proceedings, all of which were allowed and answered by her. Thus, the portion of the transcript cited in the defendant’s brief does not support his claim on appeal that he was prevented from asking Cynthia Gould questions regarding animus flowing from the divorce proceedings. To the contrary, the record reflects that counsel was able to delve into this area without objection. To the extent the defendant may now be claiming that there were other questions during recross-examination that he was not permitted to pose, he has not provided any pertinent transcript citation. It is an appellant’s burden to support his claims on appeal by appropriate references to the page or pages of the transcript on which the party relies. See Practice Book § 67-4 (c). Additionally, “it would be beyond the proper role of this court in resolving the issues raised on appeal to sift through the voluminous record before us and speculate as to the specific evidence at issue in the present claim.” State v. Tocco, 120 Conn. App. 768, 786-87, 993 A.2d 989, cert, denied, 297 Conn. 917, 996 A.2d 279 (2010). Accordingly, because the defendant’s claim is briefed inadequately, we decline to address it.

The judgment is affirmed.

In this opinion the other judges concurred.

       Christiansen was not a state marshal but had served the defendant as an “indifferent person.” See General Statutes § 52-50 (a).

       Christiansen was sixty-two years old on the date of the incident.

       The defendant also contends that “[t]he jury could have determined that the defendant’s actions were justifiable had [it] been instructed by the court as to the rights of property owners.” Defense counsel conceded in oral argument to this court that, although he orally sought such an instruction in chambers, ihe record does not reflect that he made such a request Because the defendant did not preserve this claim at trial and he is not asserting a constitutional claim for which he has sought an extraordinary level of review, we decline to afford it review.

       In setting forth the standard of review in his brief, the defendant makes a reference to the constitutional right of a defendant to confront witnesses as guaranteed by the sixth and fourteenth amendments to the United States constitution. He has not briefed a constitutional violation, however, nor did he raise such a claim in the trial court. He conceded at oral argument to this court that his claim is, therefore, limited to whether the court abused its discretion.

       We note that, at trial, the defendant did not claim that he did not operate his truck in the manner that the witnesses had testified, nor did he contest the allegations that he struck Ritchie and Christiansen with the truck. Rather, he testified that he acted in that manner because he did not know who the men were and that he feared them.

       The defendant also argues that he was seeking to impeach Cynthia Gould’s credibility in asking her if she had been drinking on the day in question. Because this claim is made for the first time on appeal, we decline to address it.

       On cross-examination, defense counsel elicited testimony from Cynthia Gould that the divorce proceedings had been going on since 2005 and that a large estate was at issue. Earlier on direct examination, Cynthia Gould testified that the divorce had “droned on for too long,” that there had been many court appearances and that the defendant had made it difficult for her to serve him. From our review of the record, it is clear that the contentious nature of the divorce litigation had been conveyed to the jury.


author: PER CURIAM.

text:
    KAREN M. BUDAHAZY v. JAY R. BUDAHAZY
    (AC 31725)
    Bishop, Lavine and Bear, Js.
    Argued January 13
    officially released March 15, 2011

      Jay R. Budahazy, pro se, the appellant (defendant).

      Stephanie M. Weaver, for the appellee (plaintiff).
   Opinion

PER CURIAM.

The defendant, Jay R. Budahazy, appeals from the judgment of the trial court dissolving his marriage to the plaintiff, Karen M. Budahazy, and issuing certain financial orders, including awarding attorney’s fees to the plaintiff. After a careful review of the trial court record and the briefs and oral arguments of the parties in this matter, we conclude that the defendant has not sustained his burden with respect to any of the eight “[p]rincipal [i]ssues” he raises in his appeal.

The judgment is affirmed.