author: SCHALLER, J.

text:
    STATE OF CONNECTICUT v. WILLIE YOUNG
    (AC 22860)
    Foti, Schaller and Freedman, Js.

      Argued December 9, 2002
    officially released April 29, 2003

      Mary Anne Royle, special public defender, for the appellant (defendant).

      Marjorie AUen Dauster, senior assistant state’s attorney, with whom, on the brief, were Michael Dearington, state’s attorney, and Elpedio N. Vitale, senior assistant state’s attorney, for the appellee (state).
   Opinion

SCHALLER, J.

The defendant, Willie Young, appeals from the judgment of conviction, rendered after a jury trial, of one count each of robbery in the first degree in violation of General Statutes § 53a-134 (a) (4) and larceny in the second degree in violation of General Statutes § 53a-123 (a) (2), and two counts of kidnapping in the first degree in violation of General Statutes § 53a-92 (a) (2) (B). The defendant claims that (1) the court improperly permitted the state, during jury selection, to exercise a peremptory challenge in a racially discriminatory manner, (2) the prosecutor committed misconduct during rebuttal argument to the jury and (3) the court improperly denied the defendant’s motion to suppress the in-court identification of him by a witness. We affirm the judgment of the trial court.

The jury reasonably could have found the following facts. At approximately 5:20 p.m. on December 12,1999, two employees at the Family Dollar store in Hamden, Laura Chesmar and George Cole, were approached by the defendant as they were counting cash at the registers. The defendant ordered Chesmar and Cole to sit on the floor while he took cash from the registers. He then ordered them to accompany him to the back of the store, where he forced Cole at gunpoint to unlock the door to the store’s back office. Once inside the office, the defendant forced Cole to retrieve approximately $8000 from a money box kept in a filing cabinet. He then bound Chesmar and Cole using electrical cords. They subsequently freed themselves and escaped to a nearby restaurant, where they telephoned the police. Additional facts will be set forth as necessary.

I

The defendant claims that the court improperly permitted the state, during jury selection, to exercise a peremptory challenge in a racially discriminatory manner. Specifically, the defendant argues that the court, in considering his objection to the state’s use of a peremptory challenge against a black venireperson, failed to apply the third prong of the test set forth in Batson v. Kentucky, 476 U.S. 79, 106 S. Ct. 1712, 90 L. Ed. 2d 69 (1986). The defendant further argues that the court improperly failed to make a finding of discrimination in light of what he claims was the prosecutor’s disparate treatment of that black venireperson and a white venireperson with similar characteristics.

The following additional facts are relevant to the defendant’s claim. During jury selection, the prosecutor questioned L, a black male venireperson. In response to the prosecutor’s questions, L stated that someone had once broken into his home and stolen some items. L also indicated that many of his acquaintances had been victims of crimes, including armed robbery, and that he had a good friend who was a convicted murderer. When the prosecutor asked L whether he would have any trouble making a decision as a juror in light of his familiarity with people on both sides of the law, L answered in the negative. In elaborating on his answer, however, L stated that “God is the final judge, so it’s nothing on me.” Later, during examination by defense counsel, L stated that “if [the defendant] is guilty and I see that he’s guilty, then, you know, all I can do is pray for him, because God is his judge.” Nevertheless, in response to questioning by both the prosecutor and defense counsel, L repeatedly stated that he thought he could put his personal beliefs aside and consider the case based on the judge’s explanation of the law.

The state exercised a peremptory challenge to excuse L from the venire. The defendant objected and requested that the state give a race neutral reason for the challenge. In response, the state articulated two reasons for the challenge. First, the state noted that L had given contradictory and confusing responses regarding his ability to follow instructions inconsistent with his personal beliefs. Second, the state indicated that its decision was based on L’s familiarity with both criminals and victims of crimes, and his friendship with a convicted murderer, in particular.

The defendant responded by arguing that the state’s proffered reasons for exercising the peremptory challenge were pretextual. With regard to the state’s first proffered reason, the defendant argued that L clearly had indicated that he could set his personal beliefs aside and decide the case according to the judge’s instructions. As to the state’s second proffered reason, the defendant argued that most young black men from New Haven know victims of crime and criminal defendants, and that allowing challenges on that basis would result in a situation in which the court would not “have . . . any sitting jurors that are young African-American males who live in New Haven.” The court overruled the defendant’s objection to the peremptory challenge, stating that “on this record, [the court is] not prepared to make a finding that the reasons given are pretextual.”

A

The defendant first argues that the court, in considering his objection to the state’s use of a peremptory challenge against L, failed to apply the third prong of the test, as set forth in Batson v. Kentucky, supra, 476 U.S. 79, for determining whether a peremptory chailenge has been exercised in a discriminatory manner. We are not persuaded.

We begin by setting forth the proper standard of review. The defendant’s argument requires that we determine whether the court applied the appropriate legal standard in evaluating his claim of discrimination. That issue presents a question of law, and our review is therefore plenary. See Adams v. State, 259 Conn. 831, 837, 792 A.2d 809 (2002).

Batson v. Kentucky, supra, 476 U.S. 96-98, “establishes a three-step procedure for evaluating claims that a prosecutor has used peremptory challenges in a manner violative of the equal protection clause. . . . First, the defendant must make a prima facie showing that the prosecutor has exercised a peremptory challenge on the basis of race. ... In the second step, the burden shifts to the prosecutor to articulate a race-neutral explanation for striking the jurors in question. . . . The third step requires the defendant to show that the articulated reasons of the state are insufficient or merely pretextual.” (Citations omitted.) State v. Rodriguez, 37 Conn. App. 589, 596-97, 658 A.2d 98, cert. denied, 234 Conn. 916, 661 A.2d 97 (1995). “The [party asserting the Batson claim] carries the ultimate burden of persuading the trial court, by a preponderance of the evidence, that the jury selection process in his or her particular case was tainted by purposeful discrimination.” (Internal quotation marks omitted.) State v. Carrasco, 259 Conn. 581, 585-86 n.9, 791 A.2d 511 (2002).

After hearing the defendant’s arguments as to why the state’s proffered reasons for exercising the peremptory challenge were pretextual, the court stated only that it was “not prepared to make a finding that the reasons given are pretextual.” It appears from that statement that the court concluded that the defendant had failed to carry his burden of showing that the state had purposefully discriminated in exercising the peremptory challenge against L. It therefore appears that the court applied the proper Batson analysis in evaluating the defendant’s objection to the state’s peremptory challenge.

The defendant nevertheless urges us to conclude that the court failed to make the inquiry required under the third step of the Batson analysis because “[t]he record does not show that the court made a sufficient inquiry into why the prosecutor’s explanation was race neutral.” We note in that regard that “the appellant bears the burden of providing an appellate court with 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 . . . [or] to clarify the legal basis of a ruling . . . .” (Citations omitted; internal quotation marks omitted.) Community Action for Greater Middlesex County, Inc. v. American Alliance Ins. Co., 254 Conn. 387, 394, 757 A.2d 1074 (2000). We see no reason to depart from that well established rule in the present case. The defendant has failed to establish through an adequate record that the court failed to apply the appropriate legal standard. In the absence of a motion for articulation, we will not assume that the court failed to apply the proper legal standard simply because it failed to articulate its reasoning. Consequently, on the basis of the record before us, we reject the defendant’s argument that the court applied the incorrect legal standard.

B

The defendant next argues that the court improperly failed to make a finding of discrimination in light of the prosecutor’s disparate treatment of L and a white venireperson with similar characteristics. The defendant makes his argument for the first time on appeal and seeks review pursuant to State v. Golding, 213 Conn. 233, 239-40, 567 A.2d 823 (1989).

Our Supreme Court has stated that “[i]t would be both unfair and unreasonable to require the trial court to conduct a comparative evaluation of the backgrounds of venirepersons who have not been identified by the defendant in support of his Batson claim. Because a party is entitled to raise a Batson challenge at any time prior to the swearing in of the jury . . . there is no reason why the burden of identifying, with reasonable specificity, those venirepersons whose selection by the opposing party tends to support the moving party’s Batson claim should be on the trial court, rather than on the party making the Batson claim. Moreover, because a claim of purposeful discrimination under Batson raises issues of fact to be decided by the trial court, the moving party’s failure to inform the trial court of the full factual basis for the claim renders that claim unreviewable.” (Citation omitted; internal quotation marks omitted.) State v. Mukhtaar, 253 Conn. 280, 289-90, 750 A.2d 1059 (2000). Accordingly, the defendant’s disparate treatment claim is not reviewable pursuant to Golding because the record is inadequate. See State v. Hodge, 248 Conn. 207, 227, 726 A.2d 531, cert. denied, 528 U.S. 969, 120 S. Ct. 409, 145 L. Ed. 2d 319 (1999).

II

We next address the defendant’s claim that the prosecutor committed misconduct during rebuttal argument. The defendant argues that the prosecutor violated his right to a fair trial by criticizing defense counsel’s trial tactics.

The following additional facts underlie the defendant’s claim. At trial, Chesmar and Cole both identified the defendant as the person who had robbed the Family Dollar store on December 12, 1999. Chesmar testified that earlier on the day of the robbery, she had seen the defendant in the store speaking with Wendell Gary, a store employee. During cross-examination, Chesmar could not recall the appearance of the defendant’s clothing or hairstyle when she saw him prior to the robbery. Defense counsel also questioned both Chesmar and Cole regarding the extent to which they had discussed the robbery with one another.

During closing argument, defense counsel argued that Chesmar’s and Cole’s certainty regarding their in-court identifications of the defendant was not the result of their actual memory of the robber’s appearance, but was instead the result of a number of factors, including earlier out-of-court identification procedures and their need to put the incident behind them. In addition, defense counsel argued that their memory of the robbery and of the robber’s appearance may have been colored by the fact that they spoke to each other soon after the robbery. Defense counsel also suggested that Chesmar became convinced that the defendant was the robber because she had seen him in the store on the day of the robbery.

In rebuttal, the prosecutor argued that defense counsel was attempting to distract the jury from the witnesses’ identification of the defendant. The prosecutor stated that defense counsel’s approach was “to focus attention away from what the victims saw and heard, which began, I submit to you, during the cross-examination of [Chesmar and Cole] .... [B]ecause, as you recall, during the cross-examination, the questioning was not so much, ‘Did you — were you looking at the person then? Did you stop then? What did you see?’ No. The questioning was, for the most part, asking questions about, ‘Who did you talk to? What was touched? What did you do later? Do you recall this? Do you recall that?’ ”

With regard to Chesmar’s identification of the defendant, the prosecutor argued, “Of course, if Ms. Chesmar had ever said to the police in a statement, ‘I’m unsure if I can make an identification,’ or was hesitant or unsure or changed her accounts, changed her descriptions, which you never heard happen from any cross-examination here, counsel would stand up and say, ‘Well, you can’t trust the identification because she’s not certain.’ So, either the identifications by the witnesses are too certain or they’re not certain enough. It’s never that they’re just right. It’s either one or the other. Did Ms. Chesmar ever — and I think when you consider this and you consider her credibility, ask yourself if she ever attempted to gild the lily, and I mean by this — by that I mean this: What if she claimed to recall during cross-examination that when she saw the individual talking to Wendell Gary, who we now know was the defendant, that she could remember now the clothing he was wearing or the hairstyle, okay. Things of that nature. You would say to yourself, ‘Well, she had no reason to pay attention to this person at the time. Why would she remember that now?’ It would seem kind of put on, and she didn’t do that because of the fact she had no reason at that time when she saw who we now know was the defendant in the store to pay attention to him. And so these questions are designed on cross-examination to get her to do that, to kind of take the bait and say, ‘Ah-hah!’ There’d be no reason for her to remember any of that. And she didn’t.”

In addition, the prosecutor stated, “So, you know, I always love it when counsel stands up and says, ‘Well, of course, you’re going to make an in-court [identification].’ That’s always a favorite argument to make. If both these people saw the defendant in the store, it would seem to me you would all be wondering, ‘Well, if this is the person, how come they’re not being asked to identify him?’ So, if that wasn’t done, counsel stands up here and screams, ‘You never heard, now that the witnesses saw the defendant in person, that they were asked to make an identification.’ Then, when it’s done, they say, ‘Of course, he’s going to be picked out. He’s sitting at [the] counsel table.’ So, either way, there’s an argument that’s going to be made . . . .”

In response to defense counsel’s suggestion that the witnesses’ memories of the robbery were distorted by their conversations with one another, the prosecutor stated, “And so what if they talked? That’s the, I think, something you would think as friends and people who had been victimized they would do. And so the defense strategy also is to kind of set up false premises and argue, argue from that. And don’t be fooled by that.”

At the conclusion of the state’s rebuttal argument, the defendant objected on the ground that the prosecutor had attacked defense counsel’s handling of the case. The defendant requested a mistrial and, in the alternative, that the court instruct the jmy that defense counsel’s handling of the case was not a proper matter for its consideration. The court denied both requests. Subsequently, the court, in its jury charge, instructed that statements and arguments of counsel are not evidence.

Our standar d of review concerning claims of prosecutorial misconduct is well settled. “Our Supreme Court has previously acknowledged that prosecutorial misconduct can occur in the course of closing argument.” (Internal quotation marks omitted.) State v. Brown, 71 Conn. App. 121, 126, 800 A.2d 674, cert. denied, 261 Conn. 940, 808 A.2d 1133 (2002). “[T]o deprive a defendant of his constitutional right to a fair trial . . . the prosecutor’s conduct must have so infected the trial with unfairness as to make the resulting conviction a denial of due process. . . . We do not focus alone, however, on the conduct of the prosecutor. The fairness of the trial and not the culpability of the prosecutor is the standard for analyzing the constitutional due process claims of criminal defendants alleging prosecutorial misconduct.” (Internal quotation marks omitted.) State v. Johnson, 71 Conn. App. 272, 285, 801 A.2d 890, cert. denied, 261 Conn. 939, 808 A.2d 1133 (2002).

Our first step in analyzing the defendant’s claim that the prosecutor committed misconduct during closing argument is to determine whether the challenged comments were improper. State v. Brown, supra, 71 Conn. App. 129. We previously have observed that “because closing arguments often have a rough and tumble quality about them, some leeway must be afforded to the advocates in offering arguments to the juiy in final argument. [I]n addressing the jury, [cjounsel must be allowed a generous latitude in argument, as the limits of legitimate argument and fair comment cannot be determined precisely by rule and line, and something must be allowed for the zeal of counsel in the heat of argument.” (Internal quotation marks omitted.) State v. Chasse, 51 Conn. App. 345, 358, 721 A.2d 1212 (1998), cert. denied, 247 Conn. 960, 723 A.2d 816 (1999).

Nevertheless, “[w]hile a prosecutor may argue the state’s case forcefully, such argument must be fair and based upon the facts in evidence and the reasonable inferences to be drawn therefrom. . . . Consequently, the state must avoid arguments which are calculated to influence the passions or prejudices of the jury, or which would have the effect of diverting the jury’s attention from their duty to decide the case on the evidence. . . . Furthermore, [t]he prosecutor is expected to refrain from impugning, directly or through implication, the integrity or institutional role of defense counsel.” (Citation omitted; internal quotation marks omitted.) Id., 357-58. Accordingly, we have previously found impropriety in a prosecutor’s statement that a particular argument by defense counsel was a “ ‘smoke screen’ ”; State v. Brown, supra, 71 Conn. App. 129; employed by all defense attorneys as a tactic to delude juries.

In light of our holding in Brown, the state concedes the impropriety of the prosecutor’s comment that defense counsel's argument regarding in-court identification was “always a favorite argument” of defense attorneys. Additionally, we conclude that the prosecutor should not have speculated about the argument defense counsel would have made if Chesmar’s identification of the defendant had been less certain. Although less explicit than the remarks in Brown, the prosecutor’s statements that in-court identifications are “either . . . too certain or . . . not certain enough” and that “it’s never that they’re just right” implied that the jury should not take defense counsel’s arguments seriously because defense attorneys always attack the reliability of identification evidence. It is improper for a prosecutor to tell a jury, explicitly or implicitly, that defense counsel is employing standard tactics used in all trials, because such an argument relies on facts not in evidence and has no bearing on the issue before the jury, namely, the guilt or innocence of the defendant.

The other comments challenged by the defendant were not improper. The prosecutor did not overstep the bounds of permissible argument by telling the jury not to be “fooled” by defense counsel’s arguments or by stating that defense counsel’s questions during cross-examination were designed to distract the jury from the real issues in the case. See State v. Jenkins, 70 Conn. App. 515, 536-38, 800 A.2d 1200 (statement to jury that defense counsel’s argument was “ ‘part of diverting you from the facts because the facts require you to convict his client’ ” held not improper), cert. denied, 261 Conn. 927, 806 A.2d 1062 (2002).

Having concluded that some of the prosecutor’s comments were improper, the second step of our analysis is to determine whether the defendant was substantially prejudiced by the misconduct. See State v. Brown, supra, 71 Conn. App. 129. In making that determination, we consider a number of factors, including the extent to which the misconduct was invited by defense conduct or argument, the severity of the misconduct, the frequency of the misconduct, the centrality of the misconduct to the critical issues in the case, the strength of the curative measures adopted and the strength of the state’s case. State v. Singh, 259 Conn. 693, 700-701, 793 A.2d 226 (2002).

The state’s case against the defendant was strong, as it was based on the testimony of Chesmar and Cole, both of whom saw the robber’s face during the robbery. In addition, a third witness, Wendell Gary, testified that he had seen the defendant at the store on the day of the robbery. The case was further strengthened by Gary’s testimony that the defendant was a former assistant manager of the store who knew that money was kept in the filing cabinet in the back office, and Chesmar’s testimony that the robber demanded to go to the back room and, once there, pointed to the filing cabinet while demanding the rest of the money.

Although the improper comments were uninvited and were related to a critical issue in the case, namely, the credibility of the witnesses’ identification of the defendant, the comments were not central to that issue. In addition, the misconduct was not particularly severe and was limited to two brief statements during rebuttal argument. The court in its charge specifically instructed the jury that statements and arguments of counsel are not evidence. In light of all of those factors, we are not persuaded that the prosecutor’s improper remarks deprived the defendant of a fair trial.

Ill

The defendant’s final claim is that the court improperly denied his motion to suppress Cole’s in-court identification of him. Specifically, the defendant argues that Cole’s identification violated the defendant’s right to due process because Cole previously had attended the defendant’s arraignment at the suggestion of the state office of the victim advocate.

The following additional facts underlie the defendant’s claim. Prior to trial, the defendant filed a motion to suppress Cole’s in-court identification of the defendant. At the suppression hearing, Cole testified to the following facts. At some time subsequent to the defendant’s arrest, the office of the victim advocate informed Cole that the defendant was scheduled for arraignment at the courthouse in Meriden. Cole stated that he decided to attend the arraignment because he “just wanted to see what was . . . going on with the case.” When the prosecutor asked Cole whether his intention in attending the arraignment was “to identify anybody,” Cole answered in the negative. The defendant’s name was announced as he was brought into the courtroom for arraignment. Cole was able to view the back of the defendant’s head and “kind of a profile of his face.” On the basis of his view of the defendant at the arraignment, Cole concluded that the defendant could have been the man who committed the robbery on December 12,1999.

In ruling on the motion to suppress, the court found that Cole’s ability to identify the defendant at trial would be based on his recollection of the robbery, rather than anything he might have seen at the defendant’s arraignment. The court also concluded that the action of the office of the victim advocate, in informing Cole of the defendant’s arraignment, did not constitute state action implicating the defendant’s right to due process. Accordingly, the court denied the defendant’s motion to suppress Cole’s in-court identification.

“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 .... When a factual issue implicates a constitutional claim, however, we review the record carefully to ensure that its determination was supported by substantial evidence. . . . Nonetheless, [w]e [will] give great deference to the findings of the trial court because of its function to weigh and interpret the evidence before it and to pass upon the credibility of witnesses.” (Citations omitted; internal quotation marks omitted.) State v. Cooper, 65 Conn. App. 551, 563-64, 783 A.2d 100, cert. denied, 258 Conn. 940, 786 A.2d 427 (2001).

“A defendant who challenges a ruling on a motion to suppress identification evidence must prove that (1) the identification procedures were unnecessarily suggestive, and (2) if found to have been so, the resulting identification was not reliable in the totality of the circumstances.” State v. Edwards, 201 Conn. 125, 146, 513 A.2d 669 (1986). “The reliability of an identification procedure is considered under various factors, such as the opportunity of the witness to view the criminal at the time of the crime, the witness’ degree of attention, the accuracy of [the witness’] prior description of the criminal, the level of certainty demonstrated at the confrontation, and the time between the crime and confrontation. Against these factors is to be weighed the corrupting effect of the suggestive identification itself.” (Internal quotation marks omitted.) State v. Colon, 70 Conn. App. 707, 722, 799 A.2d 317, cert. denied, 261 Conn. 933, 806 A.2d 1067 (2002). The defendant must also show that the identification was arranged by the state and did not occur spontaneously. State v. Jones, 59 Conn. App. 762, 766, 757 A.2d 689 (2000), cert. denied, 255 Conn. 924, 767 A.2d 99 (2001).

The defendant argues that the court improperly denied his motion to suppress because Cole’s viewing of the defendant at the arraignment was arranged by state action. Specifically, the defendant argues that because the office of the victim advocate, a state agency, informed Cole of the arraignment, his subsequent attendance at that proceeding was an identification compelled by state action. The defendant further argues that the court should have concluded that Cole’s viewing of the defendant at the arraignment was an unnecessarily suggestive identification procedure.

We note that the court denied the defendant’s motion to suppress without preparing a written memorandum of decision or filing a signed transcript of its oral decision, as required by Practice Book § 64-1 (a). The defendant did not avail himself of the procedures set forth in Practice Book § 64-1 (b) to compel compliance with that requirement. “It is incumbent upon the appellant to take the necessary steps to sustain its burden of providing an adequate record for appellate review. . . . [Nevertheless, we] have, on occasion, reviewed claims of error in light of an unsigned transcript as long as the transcript contains a sufficiently detailed and concise statement of the trial court’s findings.” (Internal quotation marks omitted.) Santa Maria v. Klevecz, 70 Conn. App. 10, 11-12, 800 A.2d 1186 (2002).

The transcript in the present case does not contain a sufficiently detailed statement of the court’s findings. Specifically, the court did not make any findings whatsoever regarding the suggestiveness of the arraignment proceedings. Furthermore, with regard to the reliability of the in-court identification, the court’s only express finding was that the identification was based on Cole’s observations on the day of the robbery, rather than anything that took place at the arraignment. The court did not indicate what factors it weighed in making the reliability determination. The defendant did not request an articulation of the court’s findings or reasoning on those issues. See Community Action for Greater Middlesex County, Inc. v. American Alliance Ins. Co., supra, 254 Conn. 393-94. Consequently, even if we were to agree with the defendant’s argument that the action of the office of the victim advocate in notifying a crime victim of a defendant’s arraignment constitutes the type of state action necessary for a successful challenge to the reliability of an in-court identification, the record would be inadequate to review the court’s determination regarding the suggestiveness of the arraignment proceedings and the reliability of the in-court identification. We therefore decline to review the defendant’s claim.

The judgment is affirmed.

In this opinion the other judges concurred.

       In the interest of protecting the venireperson’s privacy, we choose not to use his name.

       Because the defendant claims only that the court did not apply the proper legal standard, we do not address whether the court properly concluded that the state’s proffered reasons for exercising the peremptory challenge were not pretextual.

       In Golding, our Supreme Court held that “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. In the absence of any one of these conditions, the defendant’s claim will fail.” (Emphasis in original.) State v. Golding, supra, 213 Conn. 239-40.

       Defense counsel stated: “[I]t’s common for all of us sometimes to transfer an image of an individual from one context to another. . . . And there are times when we have an image of an individual where we are sure we know them, and we transfer that image into a different time period or different context. And a lot of times that happens at or around the scenes of a crime where somebody sees somebody earlier in a store who’s close to the description of the robber, who sees someone later in a crowd that’s close to the description of a shooter. That’s called ‘image transferred.’ ”

       The defendant also claims that the court should have suppressed Chesmar’s in-court identification of him because it was tainted by earlier out-of-court identification procedures. Specifically, he claims that after Chesmar selected the defendant’s photograph from an array presented to her by the police, she asked whether she had picked the person who was a former employee of the Family Dollar store, and the police answered in the affirmative.
      In his brief, the defendant merely states the facts and procedural background underlying the issue, but fails to provide any legal analysis. “We are not required to review issues that have been improperly presented to this court through an inadequate brief. . . . Analysis, rather than mere abstract assertion, is required in order to avoid abandoning an issue by failure to brief the issue properly. ... We will not review claims absent law and analysis.” (Internal quotation marks omitted.) State v. Van Eck, 69 Conn. App. 482, 493, 795 A.2d 582, cert. denied, 260 Conn. 937, 802 A.2d 92, cert. denied, 261 Conn. 915, 806 A.2d 1057 (2002).


source: Caselaw Access Project

author: BISHOP, J.

license: Public Domain

text:
    STATE OF CONNECTICUT v. ROBERT L. JOHNSON
    (AC 22143)
    Dranginis, Flynn and Bishop, Js.
    Argued November 22, 2002
    officially released April 29, 2003

      Jeremiah Donovan, for the appellant (defendant).

      Robert J. Scheinblum, assistant state’s attorney, with whom, on the brief, were Timothy J. Liston, state’s attorney, and Maureen Platt Temchin, assistant state’s attorney, for the appellee (state).
   Opinion

BISHOP, J.

The defendant, Robert L. Johnson, appeals from the judgment of conviction, rendered after a jury trial, of one count of sexual assault in the fourth degree in violation of General Statutes § 53a-73a (a) (1) (A), one count of risk of injury to a child in violation of General Statutes (Rev. to 1999) § 53-21 (1) and one count of risk of injury to a child in violation of § 53-21 (2). On appeal, the defendant claims (1) that the court improperly admitted evidence of acts of uncharged prior misconduct, and (2) that his due process rights, as guaranteed by the federal and state constitutions, were violated by requiring him to register as a sex offender without the benefit of a hearing to ascertain his dangerousness. We affirm the judgment of the trial court.

The jury reasonably could have found the following facts. The defendant and his wife, Carolyn Johnson, own and operate the Quarry Town Stables (stables) in Portland, and live in a house on the premises. At the stables, they run a business boarding horses and teaching horseback riding.

The victim* began taking lessons at the stables when she was seven years old. When she was nine years old, she began competing in horseback riding competitions, and her time spent at the stables, under the tutelage of the defendant and his wife, increased significantly. By the time she was thirteen years old, in 1998, she was spending nearly all of her free time at the stables, competing frequently, and was nationally ranked in her age group.

One day in the summer of 1998, the defendant approached the victim from behind, while she was cleaning a horse’s hooves, and grabbed her buttocks. The victim said nothing of that event at the time. In the summer of 1999, however, the defendant, on at least two more occasions, approached the victim from behind and grabbed her buttocks. The victim, on each occasion, told the defendant to stop.

Approximately one week before Labor Day weekend, 1999, while the victim was preparing a horse to ride, the defendant approached her from behind and grabbed her in a “bear hug” and did not release her when asked to do so. The victim bit the defendant. He let go of her and walked away.

On Labor Day weekend, the victim, then fourteen years old, helped the Johnsons prepare for the Haddam Neck Fair. The victim stayed with the Johnsons, and they went to the fair together. After the fair, the victim and the defendant rode in his vehicle back to the stables together. Upon their arrival at the stables, they began unloading the horses from the trailer. The last horse was reluctant to leave the trailer, and the victim asked the defendant for assistance. He approached her from behind, touched her buttocks, put his arms around her, placed his hands up underneath her shirt and grabbed her breast. A telephone then rang and the defendant left.

The victim reported the incident to a friend about one week later, and, several days thereafter, she told her mother. Subsequently, on September 20, 1999, the victim reported the incident to the police.

During the trial, held on May 21 through 24, 2001, the state introduced the testimony of three women who claimed that they had had similar encounters with the defendant. The court allowed those three witnesses to testify after a hearing on the defendant’s motion in limine to exclude their evidence of uncharged prior misconduct. The state argued that the prior misconduct was relevant both to show a common scheme or pattern in the defendant’s actions and to show his intent.

On May 25, 2001, the jury returned a guilty verdict on one count of sexual assault in the fourth degree and two counts of risk of injury to a child. On July 18, 2001, the defendant was sentenced on the first count to nine months imprisonment and ten years of probation concurrent with the sentence on the third count, which was six years in prison, suspended after nine months, also with ten years of probation. For the purposes of sentencing, the court merged the two counts of risk of injury to a child. The defendant was ordered to undergo a sex offender evaluation and treatment, as necessary.

Under Connecticut’s sex offender registry act, General Statutes § 54-250 et seq., the defendant was required to register as a sex offender. The defendant filed a motion to exclude himself from registration. The court denied the motion, finding that the court did not have authority to exclude the defendant from the mandatory statutory registration. The defendant subsequently registered as a sex offender with the commissioner of public safety.

On appeal, the defendant claims (1) that the court improperly admitted evidence of uncharged prior misconduct to prove a common scheme and intent, and (2) that by requiring him to register as a sex offender without the benefit of a hearing to establish that he is, in fact, dangerous, the court denied him his right to due process as guaranteed by the federal and state constitutions. Additional facts will be introduced as necessary.

I

The defendant claims that the court abused its discretion by allowing three witnesses to testify as to his prior uncharged misconduct. “As a general rule, evidence of prior misconduct is inadmissible to prove that a criminal defendant is guilty of the crime of which the defendant is accused. . . . Such evidence cannot be used to suggest that the defendant has a bad character or a propensity for criminal behavior.” (Internal quotation marks omitted.) State v. Torres, 57 Conn. App. 614, 621, 749 A.2d 1210, cert. denied, 253 Conn. 927, 754 A.2d 799 (2000).

Exceptions to the general rule exist for such purposes as proving a common plan, intent, identity, malice or motive. State v. Colon, 71 Conn. App. 217, 242, 800 A.2d 1268, cert. denied, 261 Conn. 934, 806 A.2d 1067 (2002). “To determine whether evidence of prior misconduct falls within an exception to the general rule prohibiting its admission, we have adopted a two-pronged analysis. . . . First, the evidence must be relevant and material to at least one of the circumstances encompassed by the exceptions. Second, the probative value of such evidence must outweigh the prejudicial effect of the other crime evidence.” (Internal quotation marks omitted.) Id., 243.

“Our standard of review on such matters is well established. The admission of evidence of prior uncharged misconduct is a decision properly within the discretion of the trial court. . . . [E]very reasonable presumption should be given in favor of the trial court’s ruling. . . . [T]he trial court’s decision will be reversed only where abuse of discretion is manifest or where an injustice appears to have been done.” Id.

On May 21, 2001, the court conducted a preliminary hearing to address the defendant’s motion in limine to exclude the prior misconduct testimony. The state sought to introduce the testimony of six witnesses whose allegations of prior misconduct by the defendant would be relevant to prove a common plan, scheme or pattern by the defendant in his actions. The same witnesses’ testimony also was relevant, the state asserted, to the question of intent.

The first prong of the test, which is to determine whether evidence of prior misconduct falls within an exception to the rule prohibiting its admission, involves the determination of whether the evidence is relevant and material to the exception claimed. Beginning with the claim that the prior misconduct demonstrates a common plan or scheme, we note that such evidence has been determined to be relevant and material where the behavior (1) is not too remote in time, (2) is similar to the offense charged and (3) is committed against a person in some way similar to the prosecuting witness. State v. Madore, 45 Conn. App. 512, 521, 696 A.2d 1293 (1997). In the hearing on the motion to exclude the evidence, the court employed that analysis and we reprise it here.

When evaluating the first criteria, the court found that two of the six witnesses were alleging misconduct that had occurred between sixteen and eighteen years prior to the assault against the victim. In so finding, the court determined that those incidents were too remote to be the subject of testimony regarding a common scheme. Those witnesses were not allowed to testify. The remaining witnesses, the subject of the defendant’s claim on appeal, alleged misconduct that had occurred less than three years from the date of the assault on the victim. The court found that time period to be sufficiently proximate to satisfy the first criteria. We agree.

The second criteria involves a determination that the behavior being alleged by the witnesses was relevantly similar to the behavior that has precipitated the present action before the court. Here, the victim alleged that the defendant, while at the stables, had approached her from behind while she was engaged in moving a horse from a trailer, touched her buttocks, put his arms around her, placed his hands up underneath her shirt and grabbed her breast.

The first witness, L, who took riding lessons from the defendant, alleged that while she was cleaning the hoof of her horse, the defendant approached her from behind and grabbed her buttocks. That occurred at the defendant’s stables. L alleged a second incident in which the defendant followed her into a barn, grabbed her and attempted to kiss her.

The second witness, E, an assistant trainer at the defendant’s stables, alleged that the defendant also approached her from behind, grabbed her buttocks and then attempted to kiss her. At the time, E was in the defendant’s house at the stables chopping vegetables for a salad.

The third witness, P, also a student of the defendant, alleged that he had grabbed her buttocks while she was cleaning her horse’s hooves. That also occurred at the defendant’s stables. On another occasion, while she was in his house showing him pictures of a horse show, he attempted to kiss her and pulled her to the floor. She bit his face and ran from the house.

In this case, the common denominators in the testimony of the three witnesses and the victim, thus, are as follows: Each witness alleged incidents that took place at the defendant’s stables, all the incidents involved the defendant, all the incidents involved women being approached from behind while they were unaware and engaged in work, each witness alleged that the defendant had grabbed their buttocks, in all cases the contact was unsolicited, and in all cases the contact was a prelude to further sexual advances.

Almost inseparable from the assessment of similarities in behavior is the assessment in similarity of person between the victim and the testifying witnesses; i.e. the third criteria. In each case, the testifying witness was a woman in a professional relationship with the defendant: Two were students, and one was an employee. In all cases, the defendant was in a position of professional authority superior to the witness. In those ways, the witnesses were similar to the victim.

The court found, after considering those facts and engaging in that analysis, that the testimony of the witnesses was both relevant and material to a common plan or scheme. At this point, we note that “[t]he primary responsibility for making these determinations rests with the trial court. We will make every reasonable presumption in favor of upholding the trial court’s ruling . . . .” State v. Kulmac, 230 Conn. 43, 61, 644 A.2d 887 (1994). Further, “[w]e are more liberal in admitting evidence of other criminal acts to show a common scheme or pattern in sex related crimes than other crimes.” Id., 62.

The defendant argues that because the three witnesses were adult women (the victim was a minor) and the alleged incidents were not particularly distinctive, the similarities between the actions alleged by the witnesses and those of the victim were not strong enough to support the finding that they demonstrate a common plan. We disagree.

“[T]o establish a common design, the characteristics of the two offenses must be sufficiently distinctive and unique as to be like a signature. McCormick, Evidence [3d Ed. 1984] p. 560 . . . .” (Citations omitted; internal quotation marks omitted.) In re Jason S., 9 Conn. App. 98, 108, 516 A.2d 1352 (1986). Although the mere act of grabbing a person’s buttocks, alone, might be insufficient to be considered “ ‘like a signature’ id.; the court found that the similarities in sex, circumstances, relationship and in the specific allegations — most convincingly, all the allegations involved incidents by the defendant at his stables — outweighed the distinctions pointed out by the defendant. As the court found, the allegations demonstrate that if a woman was “employed there, [was a student or rider] there — as long as you were a woman, it sounds like there was a potential to have your buttocks area touched . . . .” In other words, there were sufficient marks of similarity to justify the conclusion that the assault against the victim was a reasonable facsimile of the prior incidents. See State v. Madore, supra, 45 Conn. App. 522. We believe that those similarities constitute a common pattern of behavior. The court’s finding as to relevancy and materiality of the prior misconduct was not an abuse of discretion.

The remainder of our inquiry, the second prong of the test, concerns the balancing of the probative value of the prior misconduct against its prejudicial effect on the finder of fact. As indicated, the considerable similarities between the uncharged prior misconduct and the defendant’s behavior toward the victim render the evidence highly probative. See id., 522-23.

“The care with which the trial court weighed the evidence and devised measures for reducing its prejudicial effect militates against a finding of abuse of discretion.” State v. Wild, 43 Conn. App. 458, 464, 684 A.2d 720, cert. denied, 239 Conn. 954, 688 A.2d 326 (1996). We note that before the court allowed the prior misconduct evidence, it held a hearing on the subject, out of the presence of the jury, and that after each of the witnesses had testified during trial, the court issued curative instructions to the jury to mitigate the potential prejudice of the testimony.

We also note that “[t]he exclusion of evidence of the defendant’s other acts of uncharged misconduct reveals that the court carefully considered and weighed the prejudicial tendency against the probative value before ruling on the admissibility of evidence . . . .” State v. McPhee, 58 Conn. App. 501, 511, 755 A.2d 893, cert. denied, 254 Conn. 920, 759 A.2d 1026 (2000). Here, the court excluded highly probative testimony of two witnesses whose charges of prior misconduct were, the court determined, too remote in time to be sufficiently relevant. Additionally, the court curtailed the subject matter about which L was allowed to testify.

“Because of the difficulties inherent in this balancing process, the trial court’s decision will be reversed only where abuse of discretion is manifest or where an injustice appears to have been done.” (Internal quotation marks omitted.) State v. Jones, 205 Conn. 638, 660, 534 A.2d 1199 (1987). Weighing all those facts, we conclude that the court did not abuse its discretion by admitting the evidence of prior misconduct. With the conclusion that the evidence properly was admissible to establish a common plan or scheme, we need not reach the question of whether it also was admissible to establish motive.

II

The defendant next claims that by requiring him to register as a sex offender without providing him with the opportunity for a hearing at which he could establish that he is not currently dangerous, the court denied him the procedural due process guaranteed by the federal and state constitutions. To the extent that that claim is premised on the federal constitution, it is controlled by the recently issued opinion of the United States Supreme Court in Dept. of Public Safety v. Doe, 538 U.S. 1, 123 S. Ct. 1160, 155 L. Ed. 2d 98 (2003), in which the court held that Connecticut’s sex offender registry requirement does not violate procedural due process.

Although the defendant also asserts a state constitutional due process right, in his brief and at oral argument, he cited no decisional law in support of a view that in this instance, the state constitution’s procedural due process protections are greater than those found in the federal constitution or should, in any manner, be subject to an analysis different from that accorded a federal procedural due process claim.

The judgment is affirmed.

In this opinion the other judges concurred.

       General Statutes § 53a-73a (a) provides in relevant part: “A person is guilty of sexual assault in the fourth degree when: (1) Such person intentionally subjects another person to sexual contact who is (A) under fifteen years of age . . .
      General Statutes (Rev. to 1999) § 53-21 provides in relevant part: “Any person who (1) wilfully or unlawfully causes or permits any child under the age of sixteen years to be placed in such a situation that the life or limb of such child is endangered, the health of such child is likely to be injured or the morals of such child are likely to be impaired, or does any act likely to impair the health or morals of any such child, or (2) has contact with the intimate parts, as defined in section 53a-65, of a child under the age of sixteen years or subjects a child under sixteen years of age to contact with the intimate parts of such person, in a sexual and indecent manner likely to impair the health or morals of such child . . . shall be guilty of a class C felony.”

       To protect the identity of the underage victim, her name is not used in this opinion. See General Statutes § 54-86e.

       General Statutes § 54-251 (a) provides in relevant part that “[a]ny person who has been convicted ... of a criminal offense against a victim who is a minor or a nonviolent sexual offense, and is released into the community on or after October 1, 1998, shall, within three days following such release . . . register such person’s name, identifying factors, criminal history record and residence address with the Commissioner of Public Safety . . . .” Conviction is defined in General Statutes § 54-250 (1) as “a judgment entered by a court upon a plea of guilty, a plea of nolo contendere or a finding of guilty by a jury or the court notwithstanding any pending appeal or habeas corpus proceeding arising from such judgment.” The defendant concedes that the sex offender registry act requires him to register as a sex offender. On appeal, however, he challenges its constitutionality.

       The court noted that the remoteness would pose a problem on the intent issue as well.

       One of the four remaining witnesses died before the trial. Hereafter, we refer only to the three who testified at trial.

       The defendant concedes that point in his brief.

       See Dept. of Public Safety v. Doe, 538 U.S. 1, 123 S. Ct. 1160, 155 L. Ed. 2d 98 (2003). It is clear from the defendant’s brief and argument that his claim, premised on the fourteenth amendment to the United States constitution and article first, § 8, of the constitution of Connecticut, raises an issue of procedural and not substantive due process.


author: WEST, J.

text:
    SANDRA HARRIS v. UNITED TECHNOLOGIES CORPORATION
    (AC 22692)
    Lavery, C. J., and Foti and West, Js.
    Argued February 25
    officially released April 29, 2003

      Ian Angus Cole, for the appellant (plaintiff).

      Elizabeth M. Buckmir, for the appellee (defendant).
   Opinion

WEST, J.

In this action for personal injuries allegedly sustained during a slip and fall in an icy parking lot, we must determine whether the general verdict rule precludes our review of the plaintiff’s claim that the trial court improperly instructed the jury. We conclude that, due to the general verdict rule, we cannot determine whether the jury found that the plaintiff, Sandra Harris, failed to prove her case or that the defendant, United Technologies Corporation, prevailed on its special defense, and we decline to review the plaintiffs claim of an improper jury instruction. We therefore affirm the judgment of the trial court.

The following facts are relevant to our decision. At the time of the events that gave rise to this appeal, the plaintiff was employed by the Unites States Department of Defense as an industrial specialist at the Sikorsky helicopter plant (Sikorsky) in Stratford, which is owned by the defendant. On January 11, 1995, and until 1 a.m. on January 12, 1995, a wintry mix of precipitation fell. At 8 a.m. on January 12,1995, when the plaintiff arrived at the parking lot designated for federal employees at Sikorsky, the parking lot was covered with ice. National Weather Service records indicate that at Sikorsky Memorial Airport, which is six miles to the south of Sikorsky, there was more wintry precipitation that fell between 6 and 7 a.m. and 10 and 11 a.m. on January 12, 1995. At 11:30 a.m. that day, the plaintiff left the building to go to lunch. She fell while attempting to get into her motor vehicle.

The plaintiff subsequently commenced a personal injury action against the defendant, seeking damages for the injuries she allegedly sustained as a result of her fall. She alleged that the defendant was negligent in failing to plow or to sand or otherwise to remove the accumulations of snow and ice from the federal employees’ parking lot. In responding to the complaint, the defendant alleged that if the plaintiff had sustained any injuries and damages, as alleged, they were proximately caused by her carelessness and negligence. The plaintiff denied the allegations of the defendant’s special defense.

The case was tried to the jury, which returned a verdict in favor of the defendant. No interrogatories were submitted to the jury to explain its verdict. The plaintiff filed a motion to set aside the verdict and for a new trial, claiming that the court improperly had charged the jury. The court denied the motion, and the plaintiff appealed. According to the briefs of the parties, the sole issue on appeal is whether the court properly charged the jury. We asked the parties, sua sponte, to file supplemental briefs as to whether the general verdict rule applies to this case and precludes appellate review of the plaintiffs claim.

“Under the general verdict rule, if a jury renders a general verdict for one party, and no party requests interrogatories, an appellate court will presume that the jury found every issue in favor of the prevailing party. . . . Thus, in a case in which the general verdict rule operates, if any ground for the verdict is proper, the verdict must stand; only if every ground is improper does the verdict fall. . . . The rule rests on the policy of the conservation of judicial resources, at both the appellate and trial levels. ... On the appellate level, the rule relieves an appellate court from the necessity of adjudicating claims of error that may not arise from the actual source of the jury verdict that is under appellate review. . . . Therefore, the general verdict rule is a rule of appellate jurisprudence designed to further the general principle that it is the appellant’s responsibility to provide a record upon which reversible error may be predicated. . . .

“Our Supreme Court has held that the general verdict rule applies to the following five situations: (1) denial of separate counts of a complaint; (2) denial of separate defenses pleaded as such; (3) denial of separate legal theories of recovery or defense pleaded in one count or defense, as the case may be; (4) denial of a complaint and pleading of a special defense; and (5) denial of a specific defense, raised under a general denial, that had been asserted as the case was tried but that should have been specially pleaded.” (Emphasis added; internal quotation marks omitted.) D’Alesandro v. Clare, 74 Conn. App. 177, 180-81, 812 A.2d 76 (2002).

The court’s conclusion in D’Alesandro, another personal injury action, applies equally to the matter before us. “In [its] answer, the defendant denied the plaintiffs allegation of negligence as set forth in the complaint and raised the special defense of comparative negligence, either of which could have been the basis for the jury’s verdict because no interrogatories were submitted to the jury. Without interrogatories, we are not able to determine whether the jury found for the defendant because the plaintiff failed to prove the allegations of her complaint or because the defendant prevailed on [its] special defense. We, therefore, presume that the jury found every issue in favor of the prevailing party . . . and apply the general verdict rule. . . . Applying the general verdict rule to this case precludes our review of the plaintiffs [claim], which relate[s] only to the jury’s finding that the defendant was not negligent. [That claim does] not undermine the presumed finding of comparative negligence.” (Citation omitted; internal quotation marks omitted.) Id., 181.

The plaintiffs claim with respect to an improper jury instruction concerns the defendant’s duty to remove snow and ice during ongoing and intermittent precipitation. As such, the instruction was directed to the allegations of the defendant’s negligence contained in the complaint. It was not related to the defendant’s special defense that the plaintiff was comparatively negligent. Because there were no interrogatories submitted to the jury, we do not know whether the jury found that the defendant was negligent or that the plaintiff was comparatively negligent. If the juiy found that the plaintiff was comparatively negligent, its verdict was untainted by the plaintiffs claim of an allegedly improper jury instruction.

The judgment is affirmed.

In this opinion the other judges concurred.


author: FLYNN, J.

text:
    STATE OF CONNECTICUT v. DANIEL CARNEIRO
    (AC 22529)
    Foti, Dranginis and Flynn, Js.

      Argued January 7
    officially released April 29, 2003

      Lisa J. Steele, special public defender, for the appellant (defendant).

      Lisa A. Riggione, senior assistant state’s attorney, with whom, on the brief, were John A. Connelly, state’s attorney, Cara F. Eschuk, senior assistant state’s attorney, and David C. Nelson, certified legal intern, for the appellee (state).
   Opinion

FLYNN, J.

The defendant, Daniel Cameiro, appeals from the judgment of conviction, rendered after a jury trial, of one count of sexual assault in the first degree in violation of General Statutes § 53a-70 (a) (2), one count of risk of injury to a child in violation of General Statutes § 53-21 (a) (2) and one count of intimidating a witness in violation of General Statutes § 53a-151a (a) (1). On appeal, the defendant claims that the trial court (1) violated his constitutional rights to due process by failing to strike, sua sponte, the testimony of three expert witnesses of the state that supported the credibility of the victim and (2) abused its discretion by permitting the state to amend its information after voir dire had begun. We affirm the judgment of the trial court.

The jury reasonably could have found the following facts. The victim was bom on June 28,1986. He resided with his parents and three siblings in an apartment on the second floor of a building. The first floor of the building previously was used as a store, but prior to 2000, it consisted of an unfinished room furnished with a couch, a small television and a chair. The defendant, who was related to the victim’s mother, slept on the couch on the first floor occasionally from 1997 through 1999. On various occasions, the victim would watch television downstairs and would sometimes sleep downstairs on the couch. On one such night, the defendant lay down next to the sleeping victim and proceeded to remove both his and the victim’s clothing. The defendant then inserted his penis into the victim’s rectum. While he was assaulting the victim, the defendant held a knife on the victim and said: “If you don’t do this, I’m going to hurt you.”

The victim did not disclose the sexual assault until June 28, 1998, after he was admitted to Saint Mary’s Hospital in Waterbury for acute mental status changes. While at the hospital, the victim confided to his stepsister, who did not live with his family, that the defendant had done “something” to him. After the victim’s discharge from the hospital, he visited his step-sister at her house and described the sexual assault. On March 18, 2000, the victim was taken to Waterbury Hospital. There, he revealed to the hospital staff that the defendant had sexually assaulted him. As statutorily mandated reporters, the staff reported this sexual assault to the state department of children and families. The department of children and families then contacted the police department.

Police Detective David Bromley attempted to contact the defendant, who was then residing in Texas, by telephone on seven different occasions in April, 2000, to discuss the allegations. The defendant did not return these calls. In June, 2000, the defendant placed two calls to the victim and the victim’s mother. During the first telephone call, the defendant asked the victim’s mother why the police were looking for him and then threatened to do harm to her if he was arrested. During the second telephone call, both the victim and the victim’s mother were listening when the defendant threatened to harm them both after stating that “I heard that I did something to [the victim].” Additional facts will be set forth as necessary.

I

The defendant’s first claim is that his constitutional rights to due process were violated by the court’s failure to strike, sua sponte, the testimony of three expert witnesses of the state that supported the credibility of the victim. Specifically, the defendant argues that the testimony should have been stricken because an expert cannot testify as to her opinion of a witness’ credibility. This claim was unpreserved at trial and, therefore, the defendant seeks review under both State v. Golding, 213 Conn. 233, 567 A.2d 823 (1989), and the plain error doctrine. We decline to review this claim.

During the state’s case-in-chief, Alok Bhargava, a pediatric neurologist, testified as an expert in the evaluation of memory functions of pediatric patients. He was not asked whether the victim had fabricated the story about the defendant’s having sexually assaulted the victim. In response to questions concerning a fight at school, Bhargava stated that the victim was reliable in his story. He also testified that children with borderline intelligence, such as the victim in this case, have a difficult time “cook[ing] up things or makfing] up things.” Rosalie Guest testified as an expert in the treatment of individuals suffering from posttraumatic stress disorder and stated on cross-examination by the defendant that she believed the victim had been sexually assaulted. The court gave a curative instruction shortly after her testimony. Finally, Kimberly Massey, a lay witness who had not been qualified as an expert and who was a counselor in the child psychiatric in-patient unit at Yale-New Haven Hospital testified that she did not believe that any of the victim’s disclosures of the sexual assault were manipulative. The defendant did not object on the record to any of this testimony. Therefore, we have no record that the court was ever alerted to his claims on these issues, which the defendant raises for the first time on appeal.

Due to his failure to preserve this claim through proper objection, the defendant, in order to prevail, must do so under either Golding or the plain error doctrine. We conclude that the defendant cannot succeed under either avenue.

To prevail under Golding, a defendant must meet all of the following conditions: “(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.” State v. Golding, supra, 213 Conn. 239-40. We conclude that the defendant cannot succeed under Golding's second prong because his claim is not of constitutional magnitude.

The defendant’s claim was squarely addressed in State v. Toccaline, 258 Conn. 542, 783 A.2d 450 (2001). In that case, our Supreme Court held that an unpreserved claim alleging that an expert witness improperly testified regarding the credibility of a victim fails under the second prong of Golding. Id., 550. The facts of Toccaline were similar to those currently before us. There, a licensed clinical social worker testified that it was his opinion that a sexual assault victim’s testimony was truthful. Id., 548. Our Supreme Court stated that “[i]n essence, the defendant attempts to put a constitutional tag on a nonconstitutional evidentiary ruling. . . . We previously have stated that the admissibility of evidence is a matter of state law and unless there is a resultant denial of fundamental fairness or the denial of a specific constitutional right, no constitutional issue is involved. . . . The trial court’s exercise of discretion in admitting expert testimony is not to be disturbed unless it has been abused or the error is clear and involves a misconception of the law. . . . The errors claimed by the defendant in the present case are simply evidentiary in nature.” (Citations omitted; internal quotation marks omitted.) Id.; see also State v. Grenier, 257 Conn. 797, 806-807, 778 A.2d 159 (2001) (admission of expert testimony vouching for credibility of witness is evidentiary in nature). Accordingly, we conclude that the defendant cannot prevail under Golding because his claim is not of a constitutional nature.

The defendant also argues that the admission of the testimony of Bhargava, Guest and Massey constituted plain error pursuant to Practice Book § 60-5. This claim was also rejected in Toccaline. “Plain error review is reserved for truly extraordinary situations where the existence of the error is so obvious that it affects the fairness and integrity of and public confidence in the judicial proceedings. . . . Plain error is a doctrine that should be invoked sparingly. ... A party cannot prevail under plain error unless it has demonstrated that the failure to grant relief will result in manifest injustice.” (Citations omitted; internal quotation marks omitted.) State v. Toccaline, supra, 258 Conn. 552-53. Our Supreme Court held in Toccaline that the admission of an expert witness’ testimony concerning the credibility of a sexual assault victim did not constitute plain error. Id., 553.

We conclude that, in this case, the admission of the testimony of Bhargava, Guest and Massey does not amount to plain error. Assuming, without deciding, that the testimony was improper, “[w]e do not agree that the admission of [the] testimony undermined the fairness or integrity of the trial afforded to the defendant. Further we see nothing in the record that leads us to conclude that the verdict constituted manifest injustice to the defendant or will lead to diminished confidence in our judicial system.” Id. (no plain error in admission of expert testimony vouching for credibility of sexual assault victim).

II

The defendant’s second claim is that the court abused its discretion in allowing the state to amend the information after voir dire had begun to change the date on which the sexual assault allegedly occurred. Specifically, the defendant argues that the state is required to provide a time frame with a distinct beginning and clear end. See State v. Saraceno, 15 Conn. App. 222, 237, 545 A.2d 1116, cert. denied, 209 Conn. 823, 824, 552 A.2d 431, 432 (1988). The absence of this time frame, the defendant contends, prejudiced his rights because he was forced to disclose as his alibi that he was incarcerated for a portion of 1998, a disclosure which impaired his credibility, and because he was unable to question the venirepersons about whether the fact that he had been incarcerated would affect their impartiality in the case. We are not persuaded.

The following facts are necessary for our resolution of this claim. On July 5, 2001, the state filed a substitute long form information. In it, the state alleged that the defendant had committed sexual assault in the first degree “on a date between January 1, 1999 and June 27, 1999.” In a subsequent amended information, this six month time frame was reduced to “a date in approximately June 1998,” the preceding year. The state, in its bill of particulars filed on July 18, 2001, indicated: “The State is unable to determine the exact time the offense was committed. The complainant has no good sense of time. However, anticipated testimony from witnesses will be offered to show that the complainant’s initial disclosure was in June 1998 and such testimony may indicate that the assault took place within a relatively short time before the initial disclosure.”

The defendant was also charged in the July 5, 2001 substitute long form information with violating § 53-21 “on a date in 1999.” This time frame was changed to the preceding year “on a date in approximately June 1998” in the amended information. In its bill of particulars, the state again informed the defendant, as it did in the sexual assault count, that the victim did not have a good sense of time and that the evidence may show that the assault occurred within a relatively short time before the victim’s initial disclosure in June, 1998.

The defendant objected to the motion to amend the information and the bill of particulars, arguing that he was not provided with a specific time frame for which he had to defend. In response to the amended information, the defendant filed a notice of alibi six days later on July 24,2001, alleging that he was incarcerated when the sexual assault was committed. Evidence at trial demonstrated that the defendant was incarcerated from May 5 until September 29, 1998.

Practice Book § 36-18 provides: “After commencement of the trial for good cause shown, the judicial authority may permit the prosecuting authority to amend the information at any time before a verdict or finding if no additional or different offense is charged and no substantive rights of the defendant would be prejudiced. ...” We review the court’s determination to allow an amendment to an information after trial has commenced under an abuse of discretion standard. See State v. Nicholson, 71 Conn. App. 585, 595, 803 A.2d 391, cert. denied, 261 Conn. 941, 808 A.2d 1134 (2002). Here, however, the defendant claims that the amendments themselves caused the charging documents to provide inadequate notice, rather than merely delayed notice.

The defendant argues that the court abused its discretion in permitting an amended information in. which the state failed to provide a time frame with a distinct beginning and clear end during which the sexual assault was allegedly committed, thus violating his constitutional rights. We are not persuaded. Our Supreme Court has held that “[t]he state has a duty to inform a defendant, within reasonable limits, of the time when the offense charged was alleged to have been committed. The state does not have a duty, however, to disclose information which the state does not have. Neither the sixth amendment [to] the United States constitution nor article first, § 8, of the Connecticut constitution requires that the state choose a particular moment as the time of an offense when the best information available to the state is imprecise.” (Internal quotation marks omitted.) State v. Laracuente, 205 Conn. 515, 519, 534 A.2d 882 (1987), cert. denied, 485 U.S. 1036, 108 S. Ct. 1598, 99 L. Ed. 2d 913 (1988). Furthermore, the constitutional notice requirement “does not obligate the state to provide the defendant with a specific date of the alleged offense, when time is not a material element of the crime charged or when a precise date is unavailable.” State v. Bergin, 214 Conn. 657, 674, 574 A.2d 164 (1990).

It is important to recognize what the defendant does not contest on appeal. The defendant does not claim that the state had, or could have obtained, more precise information or purposefully withheld information concerning the dates of the sexual assault. Nor does the defendant contend that time is an essential element of the crimes charged. Finally, the defendant does not argue that the state cannot allege a lengthy time frame where it has only imprecise information from a mentally handicapped, youthful victim. Rather, the defendant argues that the court improperly allowed the state to amend its information to allege a time frame that did not have a distinct beginning and thereby did not provide him with adequate notice of the dates for which he had to prepare his defense. The defendant relies on the language oF State v. Saraceno, supra, 15 Conn. App. 237, which states: “ [A]s long as the information provides a time frame which has a distinct beginning and an equally clear end, within which the crimes are alleged to have been committed, it is sufficiently definite to satisfy the requirements of the sixth amendment to the United States constitution and article first, § 8, of the Connecticut constitution.” The defendant’s argument is misplaced.

We have consistently held that the state is permitted to charge that a defendant committed a crime “on or about” a certain date. “[W]hen time is not a material element of the crime charged or when a precise date is unavailable [and] [w]here the [information] alleges that an offense allegedly occurred on or about a certain date, the defendant is deemed to be on notice that the charge is not limited to a specific date.” (Internal quotation marks omitted.) State v. Clark, 69 Conn. App. 41, 50, 794 A.2d 541 (2002). Because the state can allege that a crime occurred “on or about” a certain date when time is not a material element of the offense, it follows that such a time frame would not have a distinct beginning or clear end. Our Supreme Court has stated that “when the [information] uses the ‘on or about’ designation, proof of a date reasonably near to the specified date is sufficient.” (Internal quotation marks omitted.) State v. Bergin, supra, 214 Conn. 674.

Our analysis of Saraceno reveals that there we confronted an information which alleged various sexual assaults that occurred on uncertain dates over a three year period. State v. Saraceno, supra, 15 Conn. App. 226 n. 1. For example, in the seventh count, the Saraceno information set out that “on uncertain dates between November 1980 and May 1983,” a three year period without a distinct beginning or end, the defendant committed sexual assault in the second degree. Id. Yet, the Saraceno court held that the trial court did not abuse its discretion in denying the defendant’s request for a further bill of particulars. Id., 237. In contrast, the time frame alleged in the charging documents in this case is more analogous to an allegation that the crime was committed “on or about” a certain date. The time frame is far shorter than that in Saraceno.

Here, the language of the charging documents revealed that the state was not alleging that the sexual assault occurred on one specific date. The amended information alleged that the sexual assault occurred “on a date in approximately June 1998 . . . .’’(Emphasis added.) The bill of particulars indicated that the sexual assault occurred “within a relatively short time” before the victim’s initial disclosure in June, 1998. Records disclosed to the defendant and the prosecutor’s remarks prior to trial informed the defendant that the victim made the disclosure on June 28, 1998, when the victim was being treated at Saint Mary’s Hospital in Waterbury. See State v. McDougal, 241 Conn. 502, 522, 699 A.2d 872 (1997) (“ ‘[t]his court has on numerous occasions adverted to sources extrinsic to the specific count or information to determine whether the defendant was sufficiently apprised of the offense charged’ ”). Furthermore, the defendant was made aware through the bill of particulars that the victim did not have a good sense of time and would be imprecise in his recollection of when the sexual assault occurred.

The defendant, therefore, had adequate notice that the sexual assault allegedly was committed on a date reasonably near June 28, 1998. The state argued to the jury that the sexual assault occurred on a date in late April or early May, 1998. These dates are not outside the bounds of “a relatively short time” before the vietim’s initial disclosure in June, 1998, and, therefore, fall within the charged time frame.

We next turn to whether the court abused its discretion in allowing the state to amend the information after voir dire had begun. Practice Book § 36-18 “is primarily a notice provision. Its purpose is to ensure that the defendant has adequate notice of the charges against which he must defend. ... It is the defendant’s burden to provide a specific showing of prejudice resulting from the state’s delay in providing notice of the charge against which [he] must defend.” (Internal quotation marks omitted.) State v. Phillips, 67 Conn. App. 535, 543, 787 A.2d 616 (2002). “It is within the trial court’s discretion to allow an amendment to the information. On appeal, review of the trial court’s decision to permit an amendment to the information is one of abuse of discretion. . . . Every reasonable presumption should be made in favor of the correctness of the court’s ruling in determining whether there has been an abuse of discretion.” (Citation omitted; internal quotation marks omitted.) State v. Nicholson, supra, 71 Conn. App. 595.

The defendant first claims that he was prejudiced by the amended information because the amorphous nature of the charging document language concerning the date of the offense allowed the state to move back the date of the offense to defeat his alibi. We disagree. The information and bill of particulars were filed on July 18, 2001. Not until six days later did the defendant file notice of his alibi. The state did not file a subsequent amended information after the defendant disclosed his alibi to allege a different time period.

“Because the bill of particulars limits the state to proving that the defendant committed the offense in substantially the manner described, we do not require the state to limit the date in the information more narrowly than the evidence available warrants, even if the defendant attempts to assert an alibi defense. . . . An alibi claim is a factual question that should be left to the jury once all of the evidence has been presented.” State v. Bergin, supra, 214 Conn. 675-76. “[A]n alibi defense does not create a per se requirement that the state limit the times in the information more narrowly than the evidence available warrants.” (Internal quotation marks omitted.) State v. Blasius, 211 Conn. 455, 461, 559 A.2d 1116 (1989). Even if the defendant had an alibi defense for a portion of the charged period, that fact does not render the time frame improper. See State v. Clark, supra, 69 Conn. App. 50. The fact that the presentation of an alibi defense may be more burdensome or difficult due to an enlarged time frame does not amount to prejudice. See State v. Evans, 205 Conn. 528, 536, 534 A.2d 1159 (1987), cert. denied, 485 U.S. 988, 108 S. Ct. 1292, 99 L. Ed. 2d 502 (1988). Our conclusion that the defendant had adequate notice of the time frame alleged leads us to find that the defendant was aware that his alibi would cover only a portion of the time period and voluntarily chose to pursue his alibi defense.

The defendant also argues that he was prejudiced by the amended information because he was precluded from questioning the venirepersons about his alibi of incarceration and what effect, if any, it would have on their impartiality. This does not amount to prejudice of a substantive right. “A bare assertion of prejudice is not sufficient to support a claim of prejudice. . . . The defendant must provide a specific showing of prejudice in order to establish that he was denied the right of due process of law . . . .” (Citation omitted; internal quotation marks omitted.) State v. Ryan, 53 Conn. App. 606, 621, 733 A.2d 273 (1999). “Such a showing amounting to a deprivation of his constitutional right to adequate notice of the charges against him is not made, however, merely by establishing that the presentation of his . . . defense may be more burdensome and difficult.” (Internal quotation marks omitted.) State v. Rogers, 38 Conn. App. 777, 789, 664 A.2d 291, cert. denied, 235 Conn. 918, 665 A.2d 610 (1995), cert. denied, 516 U.S. 1084, 116 S. Ct. 799, 133 L. Ed. 2d 747 (1996). The record does not reveal any indication that the defendant would have questioned the potential jurors on his alibi defense or that the jury was biased in any way by the presentation of his alibi defense. The defendant also failed to object to the continuation of voir dire until he had researched a potential alibi. Nor did he ask the court for permission to voir dire the already selected jurors again about the incarceration after he disclosed his alibi.

In summary, the defendant does not contest (1) that the state had, or could have obtained, more precise information or purposefully withheld information concerning the dates of the sexual assault, (2) that time is an essential element of the crimes charged or (3) that the state can charge a lengthy time frame where it only has imprecise information from a mentally handicapped, youthful victim.

Because the defendant was provided with adequate notice of the time frame dining which the sexual assault allegedly was committed and has failed to establish any prejudice resulting from the state’s amendments, we conclude that the court did not abuse its discretion in allowing the state to amend its information.

The judgment is affirmed.

In this opinion the other judges concurred.

       In accord with court policy to protect the privacy rights of victims in matters concerning sexual assault and injury or risk of injury to a child, we decline to identify the victim or others through whom her identity may be disclosed. See General Statutes § 54-86e.

       The curative instruction was as follows: “Counsel just brought to my attention and it — it did strike me when it happened, that [Guest] testified that she, in fact, believed the victim in this case, [the victim].
      “I am instructing you that that is not an area of consideration for Ms. Guest. You are the ultimate finders of fact, and that means you make the ultimate decision whether or not the victim is believable. It’s not up to [Guest] to make that determination, and you’re not to accept the fact that she believed [the victim] as binding on you.”

       Practice Book § 60-5 provides in relevant part that “[t]he court shall not be bound to consider a claim unless it was distinctly raised at the trial or arose subsequent to trial. The court may in the interests of justice notice plain error not brought to the attention of the trial court. ...”

         The defendant in his brief argues that this claim should be reviewed under Golding even though he did not specifically object to the amendment on the ground that it prejudiced his ability to voir dire the venirepersons. The state asserts, pursuant to State v. Jones, 46 Conn. App. 640, 653 n.9, 700 A.2d 710, cert. denied, 243 Conn. 941, 704 A.2d 797 (1997), that we should not review this claim because the defendant failed to object to the court on the ground that his voir dire rights were violated, but rather objected only on the ground of inadequate notice. We conclude, however, that this claim was properly preserved for appellate review. “The defendant objected and excepted to the late amendment on the ground of lack of notice when the issue was first raised. The impaired voir dire claim is not an essential component or specification of the objection to an on-trial amendment that violates Practice Book § [36-18] but rather constitutes the type of prejudice or harm to the defendant that results from the lack of notice.” State v. Welch, 25 Conn. App. 270, 274, 594 A.2d 28 (1991), rev’d on other grounds, 224 Conn. 1,615 A.2d 505 (1992). We, therefore, review the defendant’s claim.

       Because voir dire began on July 6, 2001, the state was required to seek judicial permission to file this amended information on July 18, 2001. See State v. Pickering, 38 Conn. App. 536, 542, 662 A.2d 804, cert. denied, 235 Conn. 907, 665 A.2d 905 (1995).

       In the present case, the state possessed imprecise information concerning the sexual assault due to the victim’s age and mental impairments. The victim was eleven years old when the sexual assault occurred and had been diagnosed as having borderline intelligence and mild problems with memory functions. We have noted “that in a case involving the sexual abuse of a very young child, that child’s capacity to recall specifics, and the state’s concomitant ability to provide exactitude in an information, are very limited. The state can only provide what it has. This court will not impose a degree of certitude as to date, time and place that will render prosecutions of those who sexually abuse children impossible. To do so would have us establish by judicial fiat, a class of crimes committable with impunity.” State v. Saraceno, supra, 15 Conn. App. 237. We have also recognized that the mental infirmity of a victim may also lead to imprecise dates for the commission of an offense. See State v. Blasius, 15 Conn. App. 289, 291, 543 A.2d 790 (1988), affd, 211 Conn. 455, 559 A.2d 1116 (1989). The force of these rules is strengthened where mental impairments are added to the youth of the victim.

       See State v. Saraceno, supra, 15 Conn. App. 236 (time is not essential ingredient of crime of sexual assault).

       Subsequent to our decision in Saraceno, other cases have affirmed its holding. In State v. Mancinone, 15 Conn. App. 251, 257-58, 545 A.2d 1131, cert. denied, 209 Conn. 818, 551 A.2d 757 (1988), cert. denied, 489 U.S. 1017, 109 S. Ct. 1132, 103 L. Ed. 2d 194 (1989), we held that a bill of particulars that alleged a time frame of “on divers dates between August 1982 and November 1984” did not deprive the defendant of his constitutional right to adequate notice. In State v. Blasius, 211 Conn. 455, 456, 559 A.2d 1116 (1989), our Supreme Court held that an information alleging that the offenses occurred “on or about a date between January 1, 1985 through June 22, 1985” was sufficient to survive the defendant’s motion to dismiss the information based on a claim of a violation of his constitutional rights to notice.