author: DiPENTIMA, J.

text:
    JOHN MOCK v. COMMISSIONER OF CORRECTION
    (AC 29122)
    DiPentima, Beach and Peters, Js.

      Argued November 20, 2008
    officially released June 16, 2009

      Kenneth Paul Fox, special public defender, for the appellant (petitioner).

      Richard K. Greenalch, Jr., special deputy assistant state’s attorney, with whom, on the brief, were David I. Cohen, state’s attorney, and James M. Bemardi, supervisory assistant state’s attorney, for the appellee (respondent).
   Opinion

DiPENTIMA, J.

The petitioner, John Mock, appeals following the denial of his petition for certification to appeal from the judgment of the habeas court denying his amended petition for a writ of habeas corpus. The petitioner claims that the court abused its discretion when it denied his petition for certification to appeal and improperly rejected his claim that his guilty pleas in three separate informations were not knowing, intelligent and voluntary due to ineffective assistance of counsel. This claim rests primarily on his contention that while he had separate counsel for each information, only one counsel appeared with him at the entry of his guilty pleas to all three informations. We dismiss the petitioner’s appeal.

On November 29, 1988, the petitioner pleaded guilty to, inter alia, three counts in three informations of possession of a controlled or narcotic substance with intent to sell in violation of General Statutes § 21a-277 (a). The three informations stemmed from three separate arrests that had occurred on March 1 and 10, 1988, and November 23, 1988. The petitioner received a sentence of twelve years incarceration, execution suspended after seven years, with five years of probation for each count of possession of a controlled or narcotic substance with intent to sell. The court ordered that all the sentences be served concurrently. On December 1, 1999, the petitioner filed a pro se petition for a writ of habeas corpus alleging that the guilty pleas he entered on November 29, 1988, were not voluntary because of “drug inducement.” On May 17, 2004, the petitioner, represented by counsel, filed a second amended petition for a writ of habeas corpus alleging, inter alia, ineffective assistance of counsel for failure to ensure a knowing, intelligent and voluntary plea.

On May 31, 2007, a hearing was held on the petitioner’s second amended petition. At the beginning of the hearing, the respondent, the commissioner of correction, made an oral motion to dismiss, again arguing that the court lacked subject matter jurisdiction because the petitioner was not in custody at the time he filed the initial pro se petition. The court concluded that it had subject matter jurisdiction over the claims arising from the three guilty pleas for possession of a controlled or narcotic substance with intent to sell because the petitioner was on probation for those charges when he filed his pro se petition on December 1, 1999. The court then proceeded with the trial, at which time the petitioner presented himself and one other witness in support of his petition.

At the close of the petitioner’s case, the respondent orally moved for a directed verdict. The court granted the respondent’s motion and found that there was no evidence presented to support a finding that there had been deficient performance as to any of the attorneys involved. Additionally, the court found that the petitioner failed to prove that he had suffered any prejudice. The court observed that it was “extraordinarily unlikely” that on the basis of the evidence presented, the petitioner would have been acquitted had he gone to trial. Accordingly, the court denied the petition for a writ of habeas corpus. The court thereafter denied the petition for certification to appeal. This appeal followed.

On appeal, the petitioner claims that the court abused its discretion when it denied his petition for certification to appeal. The petitioner argues that the court improperly rejected his claim that his three pleas of guilty to possession of a controlled or narcotic substance with intent to sell were involuntary, unintelligent and unknowing due to ineffective assistance of counsel. Specifically, as to his guilty plea to the charge stemming from the March 1, 1988 arrest, the petitioner argues that his privately retained attorney, Jerome Rosenblum, deprived him of effective assistance of counsel by allowing him to plead guilty while the petitioner was suffering from methadone withdrawal. As to his plea of guilty to the charge stemming from the March 10, 1988 arrest, the petitioner argues that (1) his court-appointed attorney, Allen Williams, was not present and (2) Rosenblum, who did not represent him on that charge, was ineffective because (a) he advised the petitioner that he would have to pick a jury immediately without an attorney present if he did not plead guilty and (b) he allowed the petitioner to enter a plea of guilty while the petitioner was suffering from methadone withdrawal. Last, as to the charge stemming from the November 23,1988 arrest, the petitioner argues that (1) he never had the opportunity to meet with his court-appointed attorney, who was different from Williams, (2) Rosenblum did not represent him in this matter and was not versed sufficiently in the facts of this case to provide effective assistance, and (3) Rosenblum was ineffective because he should not have allowed the petitioner to enter a plea of guilty while the petitioner was suffering from methadone withdrawal. We are not persuaded.

We begin with the standards that govern our analysis of the petitioner’s appeal. “In a habeas appeal, this court cannot disturb the underlying facts found by the habeas court unless they are clearly erroneous, but our review of whether the facts as found by the habeas court constituted a violation of the petitioner’s constitutional right to effective assistance of counsel is plenary.” (Internal quotation marks omitted.) Ricks v. Commissioner of Correction, 98 Conn. App. 497,502,909 A.2d 567 (2006), cert. denied, 281 Conn. 907, 916 A.2d 49 (2007). “The standard of review for a habeas court’s denial of a petition for certification to appeal requires the petitioner to prove that the denial of the petition for certification was an abuse of discretion and also that the decision of the habeas court should be reversed on the merits. ... To prove an abuse of discretion, the petitioner must demonstrate that the resolution of the underlying claim involves issues [that] are debatable among jurists of reason; that a court could resolve the issues [in a different manner]; or that the questions are adequate to deserve encouragement to proceed further.” (Citation omitted; internal quotation marks omitted.) Key v. Commissioner of Correction, 106 Conn. App. 211, 212, 942 A.2d 417, cert. denied, 287 Conn. 904, 947 A.2d 342 (2008).

“A habeas petitioner can prevail on a constitutional claim of ineffective assistance of counsel [only if he can] establish both (1) deficient performance, and (2) actual prejudice. . . . For ineffectiveness claims resulting from guilty verdicts, we apply the two-pronged standard set forth in Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984); Levine v. Manson, 195 Conn. 636, 639-40, 490 A.2d 82 (1985). For ineffectiveness claims resulting from guilty pleas, we apply the standard set forth in Hill v. Lockhart, 474 U.S. 52, 59, 106 S. Ct. 366, 88 L. Ed. 2d 203 (1985), which modified Strickland’s prejudice prong. . . .

“To satisfy the performance prong, the petitioner must show that counsel’s representation fell below an objective standard of reasonableness. ... A petitioner who accepts counsel’s advice to plead guilty has the burden of demonstrating on habeas appeal that the advice was not within the range of competence demanded of attorneys in criminal cases. . . . The range of competence demanded is reasonably competent, or within the range of competence displayed by lawyers with ordinary training and skill in the criminal law. . . . Reasonably competent attorneys may advise their clients to plead guilty even if defenses may exist. ... A reviewing court must view counsel’s conduct with a strong presumption that it falls within the wide range of reasonable professional assistance ....

“To satisfy the prejudice prong, the petitioner must show a reasonable probability that, but for counsel’s errors, he would not have pleaded guilty and would have insisted on going to trial. . . . Reasonable probability does not require the petitioner to show that counsel’s deficient conduct more likely than not altered the outcome in the case, but he must establish a probability sufficient to undermine confidence in the outcome. ... A reviewing court can find against a petitioner on either ground, whichever is easier.” (Citations omitted; internal quotation marks omitted.) Ricks v. Commissioner, supra, 98 Conn. App. 502-504.

We examine the petitioner’s underlying claim of ineffective assistance of counsel at the time of his guilty pleas to determine whether the habeas court abused its discretion in denying the petition for certification to appeal. Because the petitioner’s claims are somewhat repetitious, for clarity, we will summarize and discuss them as follows. The petitioner claims, as to the deficient performance prong of Strickland, that (1) all three of his attorneys, Rosenblum, Williams and an unnamed attorney, provided ineffective assistance of counsel and (2) Rosenblum provided ineffective assistance of counsel by (a) allowing the petitioner to plead guilty while the petitioner was suffering from the effects of methadone withdrawal and (b) not being versed sufficiently in the details of the charges stemming from the petitioner’s March 10 and November 23, 1988 arrests to represent him adequately when he entered the guilty plea. Our review of the record leads us to the determination that the petitioner has not met his burden of showing that he was denied effective assistance of counsel. We turn now to the petitioner’s specific claims.

We first address the petitioner’s claim that his court-appointed attorneys, Williams and the unnamed attorney, provided ineffective assistance of counsel. The petitioner testified that the court had appointed Williams to represent him for the charge stemming from the March 10, 1988 arrest and that he met with him a few times at the courthouse over the summer. Additionally, he offered an information packet indicating that his public defenders were Rosenblum and Williams. The information packet, however, related to the incidents stemming from the March 1,1988 arrest, not the March 10, 1988 arrest.

As to the unnamed court-appointed attorney, the only evidence that the petitioner offered at the habeas trial that indicated that the court had appointed a third unnamed attorney to represent him in connection with the charge stemming from the November 23,1988 arrest was his own testimony. The petitioner testified that the court had appointed for him an attorney whose name he could not recall and whom he had never met. When asked on cross-examination as to the specifics of the arraignment for the charge stemming from the November 23, 1988 arrest, the petitioner could not recall if there had been a bond argument or if he had been represented by an attorney for that argument.

The court found that there was no evidence “to support that there was any deficient performance on the part of any of the attorneys involved in the matter.” “[T]his court does not retry the case or evaluate the credibility of the witnesses. . . . Rather, we must defer to the [trier of fact’s] assessment of the credibility of the witnesses based on its firsthand observation of their conduct, demeanor and attitude. . . . The habeas judge, as the trier of facts, is the sole arbiter of the credibility of witnesses and the weight to be given to their testimony. . . . Appellate courts do not second-guess the trier of fact with respect to credibility.” (Citation omitted; internal quotation marks omitted.) Necaise v. Commissioner of Correction, 112 Conn. App. 817, 825-26, 964 A.2d 562 (2009). The court did not find credible the petitioner’s testimony that any of his attorneys had provided ineffective assistance of counsel. Because the record supports the court’s conclusion that the petitioner did not meet his burden, we conclude that this claim does not involve issues that are debatable among jurists of reason, that a court could resolve the issues in a different manner or that the questions are adequate to deserve encouragement to proceed further. See Key v. Commissioner of Correction, supra, 106 Conn. App. 212. Accordingly, the court did not abuse its discretion when it denied the petition for certification to appeal as to this claim.

We next address the petitioner’s claim that because he was suffering from methadone withdrawal on November 29, 1988, his pleas of guilty were not knowing, voluntary and intelligent and, further, that Rosenblum provided ineffective assistance of counsel by allowing him to plead guilty while suffering from the effects of the methadone withdrawal. We are not persuaded.

The petitioner testified that he was weak and aggravated on the day of the plea proceeding because he was suffering from methadone withdrawal. He further testified that he was incoherent at the plea proceeding. Additionally, the petitioner offered one witness who testified that on November 29, 1988, she was in court and thought the petitioner looked “high” and incoherent while entering his pleas of guilty. We note, however, that the petitioner never testified at the habeas trial that he informed Rosenblum that he was suffering from the effects of methadone withdrawal. We further note that due to the passage of almost twenty years between the petitioner’s guilty pleas entered on November 29, 1988, and his habeas trial on May 31, 2007, no transcript of his November 29,1988 court appearance is available.

The record presented leads us to conclude that the court correctly found that the petitioner failed to adduce evidence sufficient to sustain his burden of demonstrating that his counsel’s performance fell below an objective standard of reasonableness. See Ricks v. Commissioner of Correction, supra, 98 Conn. App. 503. The record lacks any evidence that the petitioner informed his counsel that he was suffering from the effects of methadone withdrawal or that his counsel was aware of that condition. Accordingly, the court properly determined that Rosenblum’s representation did not fall below an objective standard of reasonableness when he assisted the petitioner with his pleas of guilty. See State v. Blue, 230 Conn. 109, 122, 644 A.2d 859 (1994) (defendant’s unsupported claim that guilty plea involuntary due to medication insufficient to raise legitimate question); State v. Stith, 108 Conn. App. 126, 130, 946 A.2d 1274 (bare assertions by defendant without medical documentation showing defendant on medication not sufficient to withdraw guilty plea), cert. denied, 289 Conn. 905, 957 A.2d 874 (2008); cf. Carey v. Commissioner of Correction, 86 Conn. App. 180, 185-86, 860 A.2d 776 (2004) (affirming habeas court’s finding that plea knowingly and voluntarily given when, although petitioner claimed he had taken medication on date he entered plea and that this made him confused, there was no evidence that described medication or its effect on petitioner), cert. denied, 272 Conn. 915, 866 A.2d 1283 (2005).

The petitioner’s next claim with regard to Rosenblum’s alleged ineffective assistance of counsel is that Rosenblum was not versed sufficiently in the details of the petitioner’s March 10 and November 23, 1988 charges to represent him adequately when he entered the pleas of guilty. We disagree.

The only evidence that the petitioner offered at the habeas trial that indicated that Rosenblum was not versed sufficiently on those charges was, again, his own testimony. He testified that Rosenblum did not know the details of the other two charges and that he did not ask the petitioner for any details about them. The petitioner testified, however, that Rosenblum advised him to take the plea deal offered by the state because it was a “good deal,” as the sentences on all the charges would run concurrently. The court, in rejecting the petitioner’s claim that Rosenblum’s performance was deficient, found that the petitioner’s testimony was not credible. This court does not second-guess the habeas court’s determination of a witness’ credibility. See Necaise v. Commissioner of Correction, supra, 112 Conn. App. 826. Moreover, the petitioner did not call Rosenblum as a witness to question him regarding his knowledge as to the petitioner’s other charges. Accordingly, the court properly determined that Rosenblum’s representation did not fall below an objective standard of reasonableness. See Ricks v. Commissioner of Correction, supra, 98 Conn. App. 503.

The petitioner has presented no evidence that any of his counsels’ representation was not within the range of competence displayed by lawyers with ordinary training and skill in criminal law. See Stevens v. Commissioner of Correction, 112 Conn. App. 385, 393, 963 A.2d 62 (2009). Accordingly, the petitioner has not sustained his burden under the first prong of Strickland, which requires a showing of deficient performance by counsel. “[I]t is well settled that in order to prevail on a claim of ineffective assistance of counsel, the petitioner must prove both prongs of the Strickland test. A reviewing court [therefore] can find against a petitioner on either ground, whichever is easier.” (Internal quotation marks omitted.) Mitchell v. Commissioner of Correction, 109 Conn. App. 758, 765, 953 A.2d 685, cert. denied, 289 Conn. 950, 961 A.2d 417 (2008). Because the petitioner has not met his burden under the deficient performance prong of Strickland, his claims do not involve issues that are debatable among jurists of reason, nor could a court resolve the issues in a different manner, nor are the questions adequate to deserve encouragement to proceed further. See Key v. Commissioner of Correction, supra, 106 Conn. App. 212. The court therefore did not abuse its discretion in denying the petition for certification to appeal.

The appeal is dismissed.

In this opinion the other judges concurred.

       The petitioner also pleaded guilty to one count of criminal possession of a firearm in violation of General Statutes § 53a-217 and one count of assault in the second degree in violation of General Statutes § 53a-60 (a) (1). He received five years incarceration for the count of criminal possession of a firearm and two years incarceration for the count of assault in the second degree. All sentences were to be served concurrently.

       The petitioner’s pro se petition attacked the guilty pleas he entered for the three counts in the three informations of possession of a controlled or narcotic substance with intent to sell and the one count of assault in the second degree. The petition made no reference to the count of criminal possession of a firearm. On January 6, 2003, the respondent, the commissioner of correction, filed a motion to dismiss, arguing that the court lacked subject matter jurisdiction because the petitioner was not in custody at the time he filed his pro se petition. In a memorandum of decision, the court denied the respondent’s motion to dismiss, concluding that the petitioner was in custody because he was on probation at the time he filed his pro se petition. See Mock v. Warden, 48 Conn. Sup. 470, 850 A.2d 265 (2003).

       The court, however, did grant the respondent’s motion to dismiss the claims related to the guilty pleas for the count of criminal possession of a firearm and the count of assault in the second degree. See footnote 2. The court held that there was no jurisdiction over those two pleas because the petitioner had served his complete sentence. The petitioner does not challenge that ruling on appeal.

       The petitioner argues that the absence of his court-appointed counsel was the equivalent of failure to appoint counsel. The petitioner relies on Lackawanna Country District Attorney v. Coss, 532 U.S. 394, 121 S. Ct. 1567, 149 L. Ed. 2d 608 (2001), to argue that failure to appoint counsel is a unique constitutional defect that rises to the level of a jurisdictional defect. The petitioner, however, has not demonstrated how Lackawanna Country District Attorney applies to the facts of this case.

       See footnote 4.

       The petitioner also argues that he was prejudiced by Rosenblum’s allegedly ineffective assistance in advising him to take the plea deal because, had Rosenblum not pressured him to take the plea deal, he would have proceeded to trial on the charge stemming from his March 10, 1988 arrest. The petitioner claims that Williams had advised him to take that charge to trial because “that was one I could beat.” The habeas court found, however, that on the basis of the evidence presented in cross-examination, the petitioner’s assessment of his chances at trial were “overly optimistic” and that it “seem[ed] extraordinarily unlikely that [the petitioner] would have been acquitted on any of these matters.” The court therefore found that there was no resulting prejudice to the petitioner and denied the petition on both prongs of Strickland. We agree.
      On cross-examination it was established that the petitioner had been driving in his car with a two foot long machete placed under his seat and with drugs in his waistband. The drugs had the same “Outer Limits” label as the drugs found at the house where the petitioner was arrested on March 1,1988, when the police executed a search warrant specifically for a search of his person. On those facts, it does not appear that the petitioner would have prevailed at trial. We conclude, therefore, that the petitioner has not satisfied his burden of showing that there was a reasonable probability that, but for his counsel’s ineffective assistance, he would have not pleaded guilty and would have insisted on going to trial. See Ricks v. Commissioner of Correction, supra, 98 Conn. App. 503.


source: Caselaw Access Project

author: LAVINE, J.

license: Public Domain

text:
    IN RE S.D.

    (AC 29053)
    Bishop, Lavine and Robinson, Js.

      Argued March 16
    officially released June 16, 2009

      Gary J. C. Woodfield, for the appellant (respondent father).

      SusanneD. McNamara, for the appellee (petitioner).

      Traci J. Valery, for the minor child.

       In accordance with the spirit and intent of General Statutes § 46b-142 (b) and Practice Book § 79-3, the names of the parties involved in this appeal are not disclosed. The records and papers of this case shall be open for inspection only to persons having a proper interest therein and upon order of the Appellate Court.

   Opinion

LAVINE, J.

This appeal arises out of a termination of parental rights petition filed by the petitioner, the mother of the minor child, in the Court of Probate for the district of East Hartford pursuant to General Statutes § 45U-715. Following the termination of his parental rights as to the child, the respondent, the child’s father, appealed from that judgment to the trial court, which again terminated his parental rights. On appeal to this court, the respondent claims that the trial court improperly (1) failed to find that reasonable efforts were made to locate and to reunite him with the child, (2) found that he had abandoned the child and that there was no ongoing parent-child relationship and (3) found that it was in the best interest of the child to terminate his parental rights. We affirm the judgment of the trial court.

The following procedural history is relevant to the respondent’s appeal. On June 3, 2004, the petitioner filed an application to terminate the respondent’s parental rights as to the parties’ son in the Court of Probate for the district of East Hartford. The petitioner alleged that the child had been abandoned by the respondent, that there was no ongoing parent-child relationship between the respondent and the child, and that to allow further time for the establishment or reestablishment of the parent-child relationship would be detrimental to the best interest of the child. Following a hearing, the Court of Probate, Hon. Allan T. Driscoll, found that “[n]o evidence was presented indicating that any services were offered to the respondent to facilitate the reunion of the child with the parent” and that “[u]nder the present circumstances, the absence of such services is irrelevant.” The Court of Probate also found that the respondent had abandoned the child when he left Hartford for South Carolina in late 1999, putting his concerns for himself ahead of his responsibilities as a parent. The court found by clear and convincing evidence that because of the wilful conduct of the respondent, there was no ongoing parent-child relationship as defined by General Statutes § 45a-717 (g) and that to allow further time for the establishment or reestablishment of the parent-child relationship would be detrimental to the best interest of the child. Judge Driscoll approved the termination of the respondent’s parental rights on October 11, 2005. The respondent appealed to the trial court from the termination of his parental rights.

The trial court commenced a trial de novo on May 11, 2007, and granted the petitioner’s motion that it take judicial notice of the ruling of the Court of Probate. After determining that the respondent knowingly and voluntarily waived his right to counsel, the court appointed attorney Michael Perez as standby counsel. The court heard testimony from the petitioner, the respondent, his paternal aunt and Maria W. Cruz, a social work supervisor from the department of children and families (department). The court also received in evidence a department social study regarding termination of parental rights dated January 10, 2004, and an addendum dated May 10, 2007.

The court made the following relevant findings of fact. The petitioner and the respondent were married to one another on February 14, 1998. The child was bom on August 10, 1998. In July, 1999, the respondent went to the emergency room at Manchester Memorial Hospital for a psychotic episode and did so again one week later after having attempted to stab the petitioner with a screwdriver. The respondent was diagnosed with a mental disorder secondary to a traumatic brain injury. Shortly after being released from a psychiatric hospital in late 1999, the respondent left the marital home for parts unknown. The petitioner did not hear from the respondent until July, 2000, when he telephoned her from South Carolina, telling her that he had been arrested and that he needed bail money. The petitioner refused to give the respondent money. The petitioner learned later that the respondent was a convicted felon and that he was arrested for violation of parole and other charges. The respondent had concealed his criminal record from the petitioner. After the respondent was released from prison, he returned to Connecticut where he was arrested again and charged with sexual molestation of a minor. At the time of trial on the termination petition, the respondent was serving a sentence after being convicted of risk of injury to a child and sexual contact with a minor.

In April, 2000, the petitioner commenced an action to dissolve the parties’ marriage. The respondent was defaulted for failure to appear after the court, Hon. Simon S. Cohen, judge trial referee, found that the respondent had been served properly, was not a member of the armed forces of the United States and was incarcerated. Judge Cohen rendered judgment of dissolution on July 24, 2000, ordering the respondent to pay, among other things, $1 per year for child support. The court granted the petitioner sole custody of the child and granted the respondent visitation rights.

The petitioner filed an application for the termination of the respondent’s parental rights on June 3, 2004, on the grounds of abandonment and no ongoing parent-child relationship. The application noted that the respondent was incarcerated at Gamer Correctional Institution in Newtown. Following the Court of Probate’s termination of the respondent’s parental rights, the court on December 12, 2006, granted the respondent’s application to appeal from the termination decree to the Superior Court.

“The legal framework for deciding termination petitions is well established. [A] hearing on a petition to terminate parental rights consists of two phases: the adjudicatory phase and the dispositional phase. During the adjudicatory phase, the trial court must determine whether one or more of the . . . grounds for termination of parental rights set forth in [General Statutes § 17a-112 Q) (3)] exists by clear and convincing evidence. ... If the trial court determines that a statutory ground for termination exists, then it proceeds to the dispositional phase. During the dispositional phase, the trial court must determine whether termination is in the best interests of the child. . . . The best interest determination also must be supported by clear and convincing evidence.” (Citations omitted; internal quotation marks omitted.) In re Davonta V., 285 Conn. 483, 487-88, 940 A.2d 733 (2008).

“It is axiomatic that a trial court’s factual findings are accorded great deference. Accordingly, an appellate tribunal will not disturb a trial court’s finding that termination of parental rights is in a child’s best interest unless that finding is clearly erroneous. ... A finding is clearly erroneous when either there is no evidence in the record to support it, or the reviewing court is left with the definite and firm conviction that a mistake has been made. . . .

“On appeal, our function is to determine whether the trial court’s conclusion was factually supported and legally correct. ... In doing so, however, [g]reat weight is given to the judgment of the trial court because of [the court’s] opportunity to observe the parties and the evidence. . . . We do not examine the record to determine whether the trier of fact could have reached a conclusion other than the one reached. . . . [Rather] every reasonable presumption is made in favor of the trial court’s ruling.” (Citation omitted; internal quotation marks omitted.) Id., 488. Proof of one ground is sufficient to terminate parental rights. See In re Brea B., 75 Conn. App. 466, 473, 816 A.2d 707 (2003).

I

The respondent’s first claim is that the trial court improperly failed to find whether reasonable efforts were made to locate and to reunite him with the child as required by § 17a-112 (j) (1). More specifically, the respondent claims that the court improperly failed to find that reasonable efforts had not been made to locate him. The respondent claims, as well, that the evidence supporting the court’s finding that he had abandoned the child was not credible.

As a preliminary matter, we disagree with the respondent’s premise that a reasonable efforts finding in this case was required under § 17a-112 (j) (1)- We look first to the language of the statute. Statutory construction is a question of law to which the plenary standard of review applies. See In re William D., 97 Conn. App. 600, 606, 905 A.2d 696 (2006), aff'd, 284 Conn. 305, 933 A.2d 1147 (2007).

Section 17a-112 (j) provides in relevant part: “The Superior Court . . . may grant a petition filed pursuant to this section if it finds by clear and convincing evidence that (1) the Department of Children and Families has made reasonable efforts to locate the parent and to reunify the child with the parent in accordance with subsection (a) of section 17a-lllb, unless the court finds in this proceeding that the parent is unable or unwilling to benefit from reunification efforts . . . or determines at trial on the petition, that such efforts are not required . . . .” (Emphasis added.)

In the portion of its memorandum of decision entitled “Reasonable Efforts Finding,” the court stated that “[u]nless a court has found in an earlier proceeding that efforts to reunify are no longer appropriate, [the department], in order to terminate parental rights, initially must show by clear and convincing evidence that it ‘has made reasonable efforts to locate the parent and to reunify the [child] with the parent, unless the court finds in this proceeding that the parent is unable or unwilling to benefit from reunification.’ [General Statutes] § 17a-112 (j) (1).” Immediately thereafter, the court stated: “[Reasonable efforts to reunify [the child with the respondent] are no longer appropriate because [the respondent] continues to be involved with criminal issues; he has not maintained adequate housing or legal income; and he has abandoned [the child] in that he had not had visitation or contact with him since [the child] was five months old. [The respondent] has not kept his whereabouts known to [the petitioner] or the child.”

As we previously set forth, the court made findings of fact by clear and convincing evidence, including that the respondent abandoned the family in late 1999 and that the petitioner did not hear from him again until July, 2000, when he telephoned her from South Carolina and asked her for bail money. The court also found with regard to family history that the child’s half-sister reported that the respondent had abused her sexually. The respondent was arrested on sexual molestation charges and sentenced on June 21, 2006. At the time of the trial, the respondent was incarcerated, serving a four year sentence for risk of injury to a child and sexual contact with a minor.

On the basis of § 17a-112 and our review of the court’s memorandum of decision, we conclude that the evidence and the court’s specific findings of fact support its conclusion that reasonable efforts to reunite the respondent and the child were no longer appropriate. We deem the court’s language to be the functional equivalent of the statute’s language that such efforts were no longer required. The court found that the respondent had abandoned the child by leaving the home in late 1999 and not communicating with the child or inquiring as to his welfare while the respondent was living and incarcerated in South Carolina or when he returned to Connecticut. The respondent failed to support the child. Moreover, the respondent was convicted and incarcerated for sexual assault of a minor, the child’s half-sister. On the basis of those findings, the court found that reasonable efforts to reunite the respondent with the child were no longer appropriate. Given the court’s finding with respect to reasonable efforts to reunite, it was not necessary for the court to find that the department “made reasonable efforts to locate the parent and to reunify the child with the parent,” as § 17a-112 Q) (1) provides “that such finding is not required if the court . . . determines at trial . . . that such efforts axe not required . . . .” General Statutes § 17a-112 (j) (1); see In re Shaiesha O., 93 Conn. App. 42, 47, 887 A.2d 415 (2006) (court need not make that finding if parent is unable or unwilling to benefit from reunification efforts). Moreover, the record demonstrates that the petition to terminate indicated that the respondent was in Newtown. At the time of trial, the department knew that the respondent was incarcerated at Gamer Correctional Institution in Newtown.

We agree with the respondent’s claim that the court's finding that he had not visited with the child since the child was five months old is clearly erroneous. The word month, however, appears to be a scrivener’s error. Approximately five years had passed between the time the respondent left Connecticut in 1999 and the petitioner filed the petition to terminate the respondent’s parental rights. There is evidence in the record that the respondent made no effort to maintain a reasonable degree of interest, concern or responsibility as to the welfare of the child during those five years.

II

The respondent’s second claim is that the court’s findings that he abandoned the child and that there was no ongoing parent-child relationship pursuant to § 17a-112 (j) (3) (A) and (D) were clearly erroneous because the court improperly (1) relied on the petitioner’s testimony, (2) limited the respondent’s cross-examination of the petitioner, (3) credited the petitioner’s testimony and (4) failed to strike Cruz’ testimony. We do not agree.

The gist of the respondent’s claims is that the court should not have accepted the testimony of the petitioner, which was a credibility determination. This court repeatedly has stated that it will not reverse the decision of the trier of fact on the basis of credibility determinations. See, e.g., In re Cheila R., 112 Conn. App. 582, 589, 963 A.2d 1014 (2009).

With respect to the claim that the court failed to allow the respondent to cross-examine the petitioner, he refers to instances in which the court sustained objections on the basis of relevance, as articulated by the petitioner’s counsel. The issues at trial were whether the respondent had abandoned the child and whether there was an ongoing parent-child relationship, not the status of the petitioner’s health, employment, male companions and interaction with the department. Our law permits an opposing party to cross-examine a witness, but the cross-examination must comport with our rules of evidence. See In re Adalberto S., 27 Conn. App. 49, 57, 604 A.2d 822, cert. denied, 222 Conn. 903, 606 A.2d 1328 (1992). The court’s ruling, therefore, was not an abuse of discretion.

Finally, the respondent claims that Cruz’ testimony was not based on firsthand knowledge and that the department report was hearsay and, therefore, that evidence should be stricken. From our review of the transcript, it does not appear that the respondent, who represented himself, preserved this claim at trial. This court does not review claims of an evidentiary nature that are raised for the first time on appeal. See State v. Romero, 59 Conn. App. 469, 477, 757 A.2d 643, cert. denied, 255 Conn. 919, 763 A.2d 1043 (2000). We therefore decline to address the claim further. See id.

The court’s findings by clear and convincing evidence that the respondent had abandoned the child and that there was no ongoing parent-child relationship are supported by the record. There is no dispute that the child was bom in 1998 and that the respondent left the family in late 1999 after having been institutionalized for several months. The respondent went to South Carolina where he was arrested for a probation violation and incarcerated. When the respondent returned to Connecticut, he was arrested again in 2004 for sexually molesting the child’s half-sister. In 2006, the respondent was convicted of sexual assault of a minor and risk of injury to a child, and sentenced to four years of incarceration. At the time of trial, the child was not quite nine years old.

Abandonment is established by clear and convincing evidence that a parent has failed to maintain a reasonable degree of interest in or concern or responsibility for the welfare of the child. General Statutes § 17a-112 (j) (3) (A). “The commonly understood general obligations of parenthood entail these minimum attributes: (1) express love and affection for the child; (2) express personal concern over the health, education and general well-being of the child; (3) the duty to supply the necessary food, clothing and medical care; (4) the duty to provide an adequate domicile; and (5) the duty to furnish social and religious guidance.” (Internal quotation marks omitted.) In re Jermaine S., 86 Conn. App. 819, 840, 863 A.2d 720, cert. denied, 273 Conn. 938, 875 A.2d 43 (2005). The court found by clear and convincing evidence that the respondent had not seen the child since he left the family home in late 1999, a lengthy period of time, had not provided financial support for the child, had never sent cards, gifts or letters, had not acknowledged the child’s birthday or other special days, had not participated in the child’s education or shown an interest in the child’s health or welfare and had not inquired about the child or requested visitation.

To establish the ground of no ongoing parent-child relationship pursuant to § 17a-112 (j) (3) (D) it must be proven by clear and convincing evidence that “the relationship that ordinarily develops as a result of a parent having met on a day-to-day basis the physical, emotional, moral and educational needs of the child and to allow further time for the establishment or reestablishment of such parent-child relationship would be detrimental to the best interest of the child . . . .” General Statutes § 17a-112 Q) (3) (D). The court found that the respondent had not seen the child since late 1999. The child would not recognize the respondent, and there was no bond or ongoing communication between them. The child has no positive memories of the respondent and has no recollection of him. The court found that the respondent demonstrated that he has no interest in the child, does not want to develop a relationship with the child and does not have the knowledge, skill or capability to interact with the child on a day-to-day basis. Moreover, the court found, to permit additional time to develop a parent-child relationship would not be in the child’s best interest.

On the basis of our review of the record, we conclude that the court’s findings as to either statutory ground are not clearly erroneous, although only one ground is necessary to terminate parental rights. The respondent’s claims on appeal are focused on the petitioner and Cruz, which are not relevant to the issue of his behavior or actions. The trial transcript is devoid of any evidence to contradict the clear and convincing evidence that the respondent abandoned the child or that there is a parent-child relationship.

Ill

The respondent’s third claim is that the court improperly found that termination of his parental rights was in the best interest of the child because (1) the petitioner failed to prove one of the grounds alleged in the petition and (2) it is not in the best interest of the child to terminate the respondent’s parental rights. We decline to review these claims due to inadequate briefing. Legal analysis rather than mere abstract assertions is required to avoid abandoning appellate claims by failing to brief them. In re Melody L., 290 Conn. 131, 154, 962 A.2d 81 (2009).

IV

The respondent’s final claim is that his sixth amendment right to due process was violated during the hearing in the Court of Probate because he was not given a copy of the department report prior to the hearing. The respondent cites Brady v. Maryland, 373 U.S. 83, 83 S. Ct. 1194, 10 L. Ed. 2d 215 (1963), to support his claim but without analysis as to why Brady is applicable. Although we will not analyze the respondent’s claim for lack of adequate briefing; see In re Melody L., supra, 290 Conn. 154; the record demonstrates that the respondent received a trial de novo in the Superior Court. The respondent, therefore, cannot demonstrate harm.

The judgment is affirmed.

In this opinion the other judges concurred.

       General Statutes § 45a-715 (a) provides in relevant part: “Any of the following persons may petition the Court of Probate to terminate parental rights of all persons who may have parental rights regarding any minor child or for the termination of parental rights of only one parent provided the application so states: (1) Either or both parents . . . .”

       On appeal, counsel for the minor child has adopted the position taken by the petitioner in her brief.

       At the bottom of the first page of form PC-600 REV. 10/00 next to the box are the preprinted words, “The petitioner represents that the whereabouts of the parent(s) or putative father are unknown.” Above the printed word whereabouts is handwritten the word Newtown.

       General Statutes § 45a-717 (g) provides in relevant part: “(C) there is no ongoing parent-child relationship which is defined as the relationship that ordinarily develops as a result of a parent having met on a continuing, day-to-day basis the physical, emotional, moral and educational needs of the child

       Any person aggrieved by an order of the Court of Probate may appeal to the Superior Court as provided by statute. See General Statutes § 45a-186; In re Jessica M., 71 Conn. App. 417, 424, 802 A.2d 197 (2002).

       Counsel previously had been appointed for the respondent but counsel moved to withdraw her appearance due to a breakdown of the attorney-client relationship.

       The Court of Probate accepted the respondent’s claim in an affidavit that he never received a copy of the October 11, 2005 termination decree until he made an inquiry in September, 2006.

       General Statutes § 17a-lllb provides in relevant part: “(a) The Commissioner of Children and Families shall make reasonable efforts to reunify a parent with a child unless the court (1) determines that such efforts are not required pursuant to subsection (b) of this section ....
      “(b) The Commissioner of Children and Families or any other party may, at any time, file a motion with the court for a determination that reasonable efforts to reunify the parent with the child are not required. The court . . . may consolidate the hearing with a trial on a petition to terminate parental rights pursuant to section 17a-112. The court may determine that such efforts are not required if the court finds upon clear and convincing evidence that: (1) The parent has subjected the child to the following aggravated circumstances: (A) The child has been abandoned, as defined in subsection 0) of section 17a-112; or (B) . . . (4) the parent was convicted by a court of competent jurisdiction of sexual assault . . . .” (Emphasis added.)

       The Court of Probate decree, of which the court took judicial notice, stated in part, “[t]he parent has not maintained contact with the custodial mother for over five years, and contact prior to that time was sporadic and irregular.”

       The United States Supreme Court has held that “suppression by the prosecution of evidence favorable to an accused upon request violates due process where the evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution.” Brady v. Maryland, supra, 373 U.S. 87.


text:
    STATE OF CONNECTICUT v. RICHARD W.

    (AC 28755)
    Lavine, Beach and Borden, Js.

      Argued February 3
    officially released June 16, 2009

      Darcy McGraw, special public defender, for the appellant (defendant).

      Denise B. Smoker, senior assistant state’s attorney, with whom, on the brief, were Kevin D. Lawlor, state’s attorney, and Kimberley N. Perrelli, senior assistant state’s attorney, for the appellee (state).

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

   Opinion

LAVINE, J.

The defendant, Richard W., appeals from the judgment of conviction, rendered after a jury trial, of attempt to commit sexual assault in the first degree in violation of General Statutes §§ 53a-49 (a) (2) and 53a-70 (a) (1), and risk of injury to a child in violation of General Statutes § 53-21 (a) (2). On appeal, the defendant claims that (1) there was insufficient evidence to establish that he was guilty beyond a reasonable doubt of attempt to commit sexual assault in the first degree, (2) he was prejudiced by prosecutorial impropriety, (3) his right to due process was violated by expert witness testimony as to the ultimate issue and (4) the state violated his state and federal constitutional rights by failing to disclose exculpatory information as required by Brady v. Maryland, 373 U.S. 83, 83 S. Ct. 1194, 10 L. Ed. 2d 215 (1963). We affirm the judgment of the trial court.

The jury reasonably could have found the following facts. At the time of the first incident giving rise to the charges in this case, the victim lived with the defendant, who is her father, and her mother and brother. One night soon after Christmas, 2002, the then thirteen year old victim was lying in bed when the defendant came into her room staggering, approached her bed and separated the top and bottom of her pajamas, exposing the victim from her knees to her chest. The victim attempted to “wiggle away,” but she did not call out because she did not want to get into trouble. She also tried to keep her pajamas on. After the defendant had separated the victim’s pajamas, he lowered his trousers to mid-thigh, exposing himself to the victim, and attempted to get into bed with her. When the victim turned away, the defendant pinned her to the bed, lost his balance and fell on the victim. The victim heard a cracking noise in her back and felt extreme pain. When the defendant pushed himself up, the victim was able to free her legs. She tucked her legs to her chest and used her feet to push the defendant away from her. The defendant fell to the floor, striking his head on a piece of furniture. The defendant began to scream and swear. The victim covered herself, fearing that the defendant would approach her again. The victim’s mother came into the room and asked what had happened. The defendant stated that he had tripped and fallen and complained about the victim’s messy room. The victim did not say anything to her mother about the defendant’s behavior because she was scared and confused by the incident; having seen male genitalia for the first time, she felt violated.

The victim continued to suffer pain in her back, her legs felt numb and she had difficulty walking. The victim began to worry, and one month after the incident, she told her mother that her back hurt. Her mother took the victim to her pediatrician, Roberta Lockhart, who referred her to an orthopedic surgeon, James Marsh. Marsh was concerned that the victim not sustain any more damage to her back and ordered that she be taken out of school. The victim stayed at home with the defendant, who was not working, for approximately six months. With the exception of the four hours of tutoring she received daily, the victim remained locked in her bedroom until her mother returned from work. The defendant banged on the door of the victim’s bedroom and yelled until he gave up and went away. When the victim’s mother returned, the victim and the defendant pretended that everything was “normal” and that “nothing had happened.” The victim barely slept at night for fear of “what may happen [to her] if [the defendant]” came into her room.

Marsh had prescribed Vicodin for the victim’s pain. At some time late in her freshman year of high school and into her sophomore year, the victim abused Vicodin. She did so because it made her “feel better” and she did not “have to care” about what the defendant was doing to her. The victim’s cousin became concerned about the victim’s abuse of Vicodin and alerted the victim’s mother, and the two of them confronted the victim. The victim admitted that she was abusing the drug and agreed to treatment. In September, 2004, the victim spent five days in an inpatient treatment center and received outpatient treatment for several months thereafter. As a result of her back injury and drug abuse, the victim went from being an honors student and athlete to a failing student who had to repeat the tenth grade. She also started cutting herself. After receiving treatment, the victim was able to stop using drugs. At the time of trial, she had been drug free for two years.

During the course of these events, the victim’s parents argued constantly. In early 2005, the defendant moved from the family home into an apartment, where the victim and her brother visited the defendant regularly. During one such visit in April or May, 2005, the defendant approached the victim while she was pretending to sleep on the couch. He grabbed the victim’s crotch, causing her to open her eyes and exclaim, “What the hell do you think you’re doing?” The victim pushed the defendant away from her. The defendant shouted, “You’re a whore. You’re a bitch. I never touched you.” The defendant stormed off to his room where he remained until the victim’s mother called for her.

The victim visited the defendant only once more after this incident because she was scared for her brother and did not want him to be alone with the defendant. During the visit, the defendant argued with the victim and her brother. The victim’s brother wanted to leave, but the defendant would not permit them to use the telephone. The victim and her brother walked to the home of the victim’s boyfriend, where they telephoned their mother. The victim refused to visit the defendant again.

On June 11, 2005, the victim’s mother told her that she had to visit the defendant on Father’s Day. The victim was fearful of what might happen because she had not spoken to the defendant in almost two months, and she knew “he was [going to] be angiy.” Faced with the prospect of seeing the defendant again, the victim told her mother of the defendant’s sexual abuse. The victim’s mother took her to the police station immediately. The victim spoke with Benjamin Trabka, a youth officer detective. The victim also was interviewed at the New Haven police station and was examined by professionals at the child sex abuse clinic at Yale-New Haven Hospital. At the police station and at the hospital, the victim disclosed that the defendant had abused her sexually.

On June 12, 2005, Trabka and Detective John Hubyk spoke with the defendant at his home. Initially, the defendant denied touching the victim inappropriately. The defendant stated that he was an insomniac and took Ambien, and that maybe the Ambien caused him not to remember things he did at night. Eventually, the defendant was able to recall that he had gone into the victim’s bedroom one night and touched her breasts. The defendant expressed concern that his behavior might have led to the victim’s addiction to painkillers and asked if he could apologize to her. Trabka told the defendant that he could not speak to the victim but that he could write her a note, which Trabka would deliver to her. The defendant wrote a note, which was placed into evidence.

The defendant was arrested and charged in a six count information. After the jury found the defendant guilty of attempt to commit sexual assault and risk of injury to a child, the court sentenced him to twelve years of incarceration, execution suspended after five years, and ten years of probation with special conditions, including ten years of sex offender registration. The defendant appealed. Additional facts will be discussed as needed.

I

We will address the defendant’s first and second claims together, as they are intertwined. Briefly stated, the defendant claims that the state failed to produce evidence pursuant to which the jury could have found beyond a reasonable doubt that he was guilty of attempt to commit sexual assault in the first degree. The crux of the claims is that due to the prosecutor’s impropriety in (1) failing to put into evidence the victim’s medical records that the defendant claims do not support the victim’s testimony that he injured her back when he fell on her as she lay in bed in 2002 and (2) arguing to the jury that the defendant injured the victim’s back, the defendant was denied due process of law that lessened the state’s burden of proof. The defendant’s claims lack merit.

The following procedural history is relevant to the defendant’s claim. On December 12, 2006, the state filed a six count substitute information against the defendant. In count one of the information, the state alleged that “on or about December 2002 through January 2003, [the defendant] did, under the circumstances as he believed them to be, an act constituting a substantial step in a course of conduct planned to culminate in compelling another person to engage in sexual intercourse by the use of force against such person in violation of [§§ 53a-49 (a) (2) and 53a-70 (a) (1)].” The jury found the defendant guilty of counts one and six and not guilty of counts two through five. Thereafter, the defendant filed a motion to set aside the verdict, claiming that the verdict was inconsistent. The court denied the motion.

The defendant failed to preserve the claims he now raises and seeks to have his conviction reversed pursuant to State v. Golding, 213 Conn. 233, 239-40, 567 A.2d 823 (1989). We will review the defendant’s claims because the record is adequate for our review and his claims are of a constitutional magnitude. See State v. Brown, 90 Conn. App. 835, 838,879 A.2d 466 (defendant found guilty on basis of insufficient evidence deprived of constitutional right), cert. denied, 276 Conn. 901, 884 A.2d 1026 (2005); see also State v. Skidd, 104 Conn. App. 46,64,932 A.2d 416 (2007) (prosecutorial impropriety of constitutional magnitude can occur in final argument). The defendant’s claims fail under the third Golding prong, however, because the constitutional violations do not clearly exist, and the defendant was not deprived of a fair trial.

“Review of any claim of insufficiency of the evidence introduced to prove a violation of a criminal statute must necessarily begin with the skeletal requirements of what necessary elements the charged statute requires to be proved.” State v. Pommer, 110 Conn. App. 608, 613, 955 A.2d 637, cert. denied, 289 Conn. 951, 961 A.2d 418 (2008). “Once analysis is complete as to what the particular statute requires to be proved, we then review the evidence in light of those statutory requirements. Our review standard is well settled. In accordance with well established principles, appellate analysis of a claim of insufficiency of the evidence requires us to undertake a twofold task. We first review the evidence presented at the trial, construing it in the light most favorable to sustaining the jury’s verdict. We then determine whether, upon the facts thus established and the inferences reasonably drawn therefrom, the jury could reasonably have concluded that the cumulative effect of the evidence established guilt beyond a reasonable doubt . . . .” (Internal quotation marks omitted.) Id.

General Statutes § 53a-49 (a) provides in relevant part: “A person is guilty of an attempt to commit a crime if, acting with the kind of mental state required for commission of the crime, he . . . (2) intentionally does . . . anything which, under the circumstances as he believes them to be, is an act . . . constituting a substantial step in a course of conduct planned to culminate in his commission of the crime.” General Statutes § 53a-70 (a) provides in relevant part: “A person is guilty of sexual assault in the first degree when such person (1) compels another person to engage in sexual intercourse by the use of force against such other person

On the basis of our review of the evidence, we conclude that there was sufficient evidence pursuant to which the jury could have found that the defendant entered the victim’s bedroom while she was lying in her bed, removed the victim’s pajamas so as to expose her from her knees to her chest and exposed his genitals. As the victim sought to resist the defendant’s efforts, the defendant got onto the victim’s bed as the victim turned away from him. The defendant restrained the victim on her bed and moved over the victim until he lost his balance and the victim was able to push him away. On the basis of this evidence, the jury reasonably could have concluded that the cumulative effect of the evidence established the defendant’s guilt beyond a reasonable doubt of attempt to commit sexual assault in the first degree.

The defendant claims that the evidence was insufficient because the victim was not a credible witness. The basis of the defendant’s claim is that there was no medical evidence to substantiate her testimony that her back was injured when the defendant fell on her. Although the victim’s pediatrician testified about examining the victim for back pain and referring her to an orthopedic surgeon, none of the victim’s medical records was placed in evidence. Proof of injury to the victim’s back at the time the defendant attempted to assault her sexually is not an element of the crime of attempt to commit sexual assault in the first degree. Inasmuch as the defendant’s claim concerns the victim’s credibility, it is well established that appellate courts do not reverse criminal convictions on the basis of credibility determinations made by a jury that has had the opportunity to hear and to observe witnesses. State v. Smith, 110 Conn. App. 70, 78, 954 A.2d 202, cert. denied, 289 Conn. 954, 961 A.2d 422 (2008).

The defendant attempts to bootstrap his claim of evidentiary insufficiency by claiming that the prosecutor was guilty of impropriety in failing to put a medical record written by Marsh into evidence and making an argument for which there was no medical evidence in the record, thereby lessening the state’s burden of proof. The defendant claims that the prosecutor had a duty to put Marsh’s medical records into evidence because, the defendant asserts, they contain no mention that the victim sustained an injury to her back when the defendant fell on her and that the prosecutor improperly incorporated that evidence in final argument, thus expressing a personal opinion as to the victim’s credibility. We reject the defendant’s claim, as he has failed to provide any legal support, and we know of none, that a prosecutor has a duty to place medical records that are equally available to defense counsel into evidence.

We also reject the defendant’s claim that the prosecutor’s final argument was an improper expression of her personal opinion of the victim’s credibility. The victim testified that she heard a crack when the defendant fell on her in her bed and that she felt a sharp pain in her back. Over time, the pain caused the victim’s legs to feel numb and made walking difficult. The victim told her mother of the pain. The victim’s mother took the victim to the pediatrician because the victim complained of pain in her back. The pediatrician referred the victim to an orthopedic surgeon to evaluate the victim’s complaints of pain. During her final argument, the prosecutor stated that the defendant injured the victim when he fell on her and rhetorically asked why the victim would make this up. It is without question that a prosecutor may fairly comment on evidence and the reasonable inferences to be drawn therefrom that “lead the jury to a conclusion as to the credibility of witnesses.” (Internal quotation marks omitted.) State v. Morgan, 70 Conn. App. 255, 287, 797 A.2d 616, cert. denied, 261 Conn. 919, 806 A.2d 1056 (2002).

We conclude, therefore, that there was sufficient evidence for the jury reasonably to have found that the defendant was guilty of attempt to commit sexual assault in the first degree. Moreover, we conclude that the prosecutor committed no impropriety with respect to the victim’s medical records or during final argument and that the state’s burden of proof was not lessened.

II

The defendant’s third claim is that his right to due process was violated by the testimony of the state’s expert witness regarding child victims of sexual assault because the testimony was an improper expression of opinion regarding the victim’s credibility. Moreover, the defendant argues that although the expert never testified that he believed the victim’s allegations, the expert’s testimony bolstered the victim’s testimony because his position of eminence in the field increased the likelihood that the jury would believe him. The defendant cannot prevail on this claim.

At trial, the state called John Leventhal, professor of pediatrics at the Yale School of Medicine and director of the Yale-New Haven Hospital’s child sex abuse clinic. Defense counsel did not object to Leventhal’s testimony regarding the common characteristics and behavior of children who have been sexually assaulted. On cross-examination, Leventhal agreed with defense counsel that his testimony was of a general nature and that he was not offering an opinion as to the facts of this particular case. The defendant’s claim, therefore, is unpreserved, and he asks that we afford it review pursuant to State v. Golding, supra, 213 Conn. 239-40. Although the record is adequate for our review, we decline to review it because it is an evidentiary claim that is not of constitutional magnitude. See State v. Jackson, 86 Conn. App. 803, 811-12, 862 A.2d 880, cert. denied, 273 Conn. 909, 870 A.2d 1081 (2005).

Ill

The defendant’s fourth claim is that the state violated his state and federal constitutional rights by failing (1) to disclose records concerning a state police investigation of Trabka (investigation), (2) to preserve records relating to the investigation and (3) to provide defense counsel with accurate information about federal civil rights actions pending against Trabka. The defendant also claims that this information was relevant and material to discredit Trabka. We do not agree.

Whether there has been a violation of Brady v. Maryland, supra, 373 U.S. 83, is a question of law subject to plenary review. Walker v. Commissioner of Correction, 103 Conn. App. 485, 491, 930 A.2d 65, cert. denied, 284 Conn. 940, 937 A.2d 698 (2007). The prosecution’s suppression “of evidence favorable to an accused . . . violates [federal] due process where the evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution. To establish a Brady violation, the [defendant] must show that (1) the government suppressed evidence, (2) the suppressed evidence was favorable to the [defendant], and (3) it was material [either to guilt or to punishment].” (Internal quotation marks omitted.) Floyd v. Commissioner of Correction, 99 Conn. App. 526, 533-34, 914 A.2d 1049, cert. denied, 282 Conn. 905, 920 A.2d 308 (2007). “Impeachment evidence as well as exculpatory evidence falls within Brady's definition of evidence favorable to an accused.” (Internal quotation marks omitted.) State v. Monteeth, 208 Conn. 202, 213, 544 A.2d 1199 (1988). The state must “disclose impeachment evidence to a criminal defendant ... to ensure that the jury knows the facts that might motivate a witness giving testimony . . . .” (Internal quotation marks omitted.) Walker v. Commissioner of Correction, supra, 493.

Under the federal constitution, a criminal defendant must demonstrate bad faith on the part of the police in failing to preserve evidence in order to demonstrate a denial of due process. See Arizona v. Youngblood, 488 U.S. 51, 58, 109 S. Ct. 333, 102 L. Ed. 2d 281 (1988). The constitution of Connecticut, however, provides a criminal defendant with greater protection with regard to the state’s preservation of evidence that is favorable to the accused. Our Supreme Court held in State v. Morales, 232 Conn. 707, 726-27, 657 A.2d 585 (1995), that under our constitution “the good or bad faith of the police in failing to preserve potentially useful evidence cannot be dispositive of whether a criminal defendant has been deprived of due process of law. Rather, in determining whether a defendant has been afforded due process of law under the state constitution, the trial court must employ the [State v. Asherman, 193 Conn. 695, 724, 478 A.2d 227 (1984), cert. denied, 470 U.S. 1050, 105 S. Ct. 1749, 84 L. Ed. 2d 814 (1985)] balancing test, weighing the reasons for the unavailability of the evidence against the degree of prejudice to the accused. . . . [T]he trial court must balance the totality of the circumstances surrounding the missing evidence, including the following factors: the materiality of the missing evidence, the likelihood of mistaken interpretation of it by witnesses or the jury, the reason for its nonavailability to the defense and the prejudice to the defendant caused by the unavailability of the evidence.” (Internal quotation marks omitted.) State v. Joyce, 243 Conn. 282, 301, 705 A.2d 181 (1997), cert. denied, 523 U.S. 1077, 118 S. Ct. 1523, 140 L. Ed. 2d 674 (1998).

A

The following facts are relevant to the claims concerning the investigation. On December 13,2006, during jury selection, the defendant filed a motion for an in camera review of Trabka’s personnel file, representing to the court that he had reason to believe that Trabka had been disciplined for “lying about facts concerning cases he had investigated.” The prosecutor objected to the request, arguing that it was a “fishing expedition.” The prosecutor informed the court that she was aware of one civil action that had been filed against Trabka by a criminal defendant whose prosecution had not yet concluded. The court granted the defendant’s motion for in camera review. After thoroughly reviewing Trabka’s personnel file, the court informed counsel that it had found nothing in the file that would reflect on Trabka’s credibility.

The following day, the prosecutor represented to the court that Trabka had informed her that many years ago, he had been the subject of an investigation by the state police. The focus of the investigation was whether Trabka had provided false information during the course of his testimony in a criminal case. The prosecutor understood that Trabka had been cleared by the investigation, nonetheless she was attempting to get copies of the records pertaining to the investigation. Later in the day, the prosecutor informed the court that Peter Fearon, an investigator with the office of the chief state’s attorney, had learned that the investigation had been conducted fourteen years ago, and, because Trabka had been exonerated, the records had been destroyed. The prosecutor agreed to provide defense counsel with whatever information Fearon had obtained about the investigation.

Prior to Trabka’s testifying, the court heard arguments from the prosecutor and defense counsel regarding that testimony. Although there were no written records, on the basis of information she obtained from Fearon, the prosecutor represented to the court that Trabka was the subject of the investigation for providing false information in his testimony in a motor vehicle case. Trabka testified in that case that he had made a telephone call to police headquarters asking for information about a particular motor vehicle. He testified that he had made the call from a certain telephone booth. That telephone booth, however, did not exist at the time he allegedly made the call. The investigation was instigated by the prosecutor for that case and the supervising assistant state’s attorney. The investigation revealed that Trabka had used a telephone to call the desk officer but was “mistaken about which [telephone] he had used.” The prosecutor represented to the court that the investigation cleared Trabka of wrongdoing and found no probable cause to arrest him for perjury. The prosecutor argued that the defendant should not be permitted to question Trabka about the investigation because the incident was remote in time, had minimal bearing on Trabka’s credibility and had a tendency to interject collateral issues at trial. Defense counsel responded that although the incident may not reflect Trabka’s reputation for telling the truth, it did reflect on his ability to recollect.

The court found that the investigation was subject to the requirements of Brady v. Maryland, supra, 373 U.S. 83, especially because the investigation was requested by members of the office of the state’s attorney and the state had failed to turn over the records to the defendant as requested. The court ruled that the defendant would be permitted on cross-examination to ask Trabka “if he testified under oath that he made a phone call that was from a phone booth found not to exist, or at least not working, and if the prosecutors, including the one trying the case, had asked for a state police investigation of him for perjury.” During his cross-examination of Trabka, defense counsel asked him about the investigation.

“A lack of knowledge about the credibility of a witness involves the constitutional rights of confrontation. See Davis v. Alaska, 415 U.S. 308, 94 S. Ct. 1105, 39 L. Ed. 2d 347 (1974). That lack of knowledge can be ameliorated by an extensive and effective cross-examination.” State v. Leduc, 40 Conn. App. 233, 249, 670 A.2d 1309 (1996), on appeal after remand, 44 Conn. App. 744, 690 A.2d 1390, cert. denied, 241 Conn. 909, 695 A.2d 541 (1997).

We now apply the Asherman balancing test to the circumstances surrounding the missing report of the investigation. The first factor is the materiality of the records. “[F]avorable evidence is that evidence which . . . might have led the jury to entertain a reasonable doubt about . . . guilt . . . and this doubt must be one that did not otherwise exist. . . . [Ejvidence is material only if there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome.” (Internal quotation marks omitted.) State v. McClelland, 113 Conn. App. 142, 163, 965 A.2d 586 (2009).

In this case, Trabka testified that the defendant was distraught that he had caused the victim to abuse drugs and wanted to apologize to her. He further testified that he permitted the defendant to write the victim a note in which the defendant apologized to the victim for touching her inappropriately. The focus of the fourteen year old investigation of Trabka was whether he had perjured himself in a case, and was it material to his veracity. The investigation, however, exonerated Trabka and therefore would not have been favorable information to impeaching his credibility. The prosecutor made the facts of the investigation known to the defendant, who was permitted to question Trabka about it on cross-examination. On cross-examination, Trabka admitted that he had been investigated for allegedly giving perjured testimony and testified that he had been exonerated. The jury, therefore, was aware of the situation. The state also points out that Hubyk testified at trial and that his testimony was cumulative of Trabka’s. There was no evidence of bad faith or even negligence on the part of the state for not maintaining records of the investigation that had taken place fourteen years ago and exonerated Trabka. Compare State v. Valentine, 240 Conn. 395, 418, 692 A.2d 727 (1997). After balancing all of the circumstances, we conclude that the outcome of the defendant’s trial would not have been different had the state retained the records of the investigation and made them available to the defendant. The defendant therefore has not been denied the right to due process under either the federal or state constitutions.

B

The defendant finally claims that the prosecutor failed to provide him with information pertaining to civil actions that had been brought against Trabka. Defense counsel informed the court that he was aware of three federal civil rights cases pending against Trabka in Connecticut and that counsel would question Trabka about them. The prosecutor objected, stating that allegations in a legal action are not proof of anything and that evidence of the pending civil actions would be more prejudicial than probative. The court treated the objection as a motion in limine and granted it, citing State v. Valentine, supra, 240 Conn. 408 (evidence resulting in minitrial on collateral case properly excluded).

On appeal, the defendant claims that his right to due process was violated because the state failed to make accurate information about the pending federal actions available to him. The defendant has not briefed this claim beyond a mere assertion of it. Although we generally do not review claims that are inadequately briefed; see Stuart v. Stuart, 112 Conn. App. 160, 165 n.2, 962 A.2d 842, cert. granted on other grounds, 290 Conn. 920, 966 A.2d 237 (2009); the statement of the claim itself provides an adequate basis on which to rule. We conclude that the court properly precluded defense counsel from cross-examining Trabka on the basis of allegations in actions, in which the claims had not been proven, as they were pending at the time. See State v. Bova, 240 Conn. 210, 221, 690 A.2d 1370 (1997). As the state pointed out in its brief, it is not a party to the federal actions, the federal complaints were not in its possession, and the federal actions were a matter of public record to which the state and the defendant had equal access. We agree with the state for the reasons stated.

The judgment is affirmed.

In this opinion the other judges concurred.

       In the note, the defendant stated: “[Victim] I truly am sorry that I touched you inappropriately while you were trying to sleep! I will do whatever possible to make sure that this never happens again! Including the ambian and consoleing! [Victim] I miss you very much and I love you with my whole Heart. [Victim] please forgive me! Please. Love Dad”

       In count six of the information, the state alleged that “on or about April through May 2005, [the defendant] had contact with the intimate parts, as defined in [General Statutes § 53a-65], of a child under the age of sixteen years, in a sexual and indecent manner likely to impair the health or morals of such child, in violation of [General Statutes § 53-21 (a) (2)].”

       The jury found the defendant not guilty of the following charges:
      Count two: “[0]n or about June 2003, [the defendant] compelled another person to engage in sexual intercourse by the use of force against such person in violation of [General Statutes § 53a-70 (a) (1)].”
      Count three: “[0]n or about June 2003, [the defendant] did have contact with the intimate parts as defined in . . . [General Statutes § 53a-65] of a child under the age of sixteen years, in a sexual and indecent manner likely to impair the health or morals of such child, in violation of [General Statutes § 53-21 (a) (2)].”
      Count four: “[0]n or about January 2004, [the defendant] compelled another person to engage in sexual intercourse by the use of force against such person in violation of [General Statutes § 53a-70 (a) (1)].”

        Count five: “[0]n or about January 2004, [the defendant] had contact with the intimate parts, as defined in [General Statutes § 53a-65], of a child under the age of sixteen years, in a sexual and indecent manner likely to impair the health or morals of such child, in violation of [General Statutes § 53-21 (a) (2)].”

       The defendant is not claiming that the state failed to disclose records, in violation of the requirements of Brady v. Maryland, supra, 373 U.S. 83. The victim’s medical records were subpoenaed and examined by the court in camera. Portions of the records were made available to the parties for use at trial. The records were marked for identification.

       We have reviewed Marsh’s medical records of the victim that were marked for identification. They neither explicitly support nor refute the victim’s testimony that she felt pain in her back when the defendant fell on her. The records, which were not before the jury, indicate that a differential diagnosis was made with regard to the victim’s spine and that treatment was prescribed.
      In his brief to this court, the defendant has gone outside the record to quote from various medical dictionaries in order to persuade us that the victim was not credible about the defendant’s sexual assault. An appellate court’s review is confined to the record before the trial court. See Practice Book § 60-2 (3) (court on its own motion may order improper matter stricken from brief). We have not considered any of the material from medical dictionaries or treatises. Moreover, we will not speculate as to the relationship between the victim’s pain and her diagnosis. There was evidence in the record that the victim sought medical care after the defendant fell on her and caused her to feel pain in her back. The jury was free to believe that evidence.

       The defendant had filed a request for disclosure on December 7, 2006.

       The prosecutor represented to the court that she had no knowledge of the investigation prior to defense counsel’s bringing the matter to the court’s attention.

       The relevant portion of defense counsel’s cross-examination follows:
      “[Defense Counsel]: All right. You had some difficulty over at the state’s attorney’s office in Derby about fourteen years ago. Do you recall that?
      “[The Witness]: Um, I had—yes.
      “[Defense Counsel]: Do you recall that then assistant state’s attorney Jerry Esposito and the head of that office, Frank McQuade, had asked the state police to do an investigation of you regarding what they believed at the time to be your perjuring yourself on the [witness] stand in a particular case?
      “[The Witness]: Yes, I do.”
      Immediately thereafter, on redirect examination, the prosecutor questioned Trabka as follows:
      “[The Prosecutor]: Detective Trabka, what was the outcome of that investigation?
      “[The Witness]: I was exonerated.
      “[The Prosecutor]: And how long have you been an officer?
      “[The Witness]: Eighteen years.
      “[The Prosecutor]: And you’ve testified in court since then.
      “[The Witness]: At least forty, fifty times.”


author: ROBINSON, J.

text:
    OMAR ZABIAN v. COMMISSIONER OF CORRECTION
    (AC 29076)
    McLachlan, Robinson and Hennessy, Js.
    Argued January 9
    officially released June 16, 2009

      Kenneth Paul Fox, special public defender, for the appellant (petitioner).

      Erika L. Brookman, special deputy assistant state’s attorney, with whom, on the brief, were GailP. Hardy,
      state’s attorney, Michael E. O’Hare, supervisory assistant state’s attorney, and Vicki Melchiorre, senior assistant state’s attorney, for the appellee (respondent).
   Opinion

ROBINSON, J.

The petitioner, Omar Zabian, appeals from the judgment of the habeas court denying his petition for a writ of habeas corpus. On appeal, the petitioner claims that the court improperly refused to order specific performance of the terms of his plea agreement. Specifically, he alleges that he has not been credited with the proper amount of jail credit toward his sentence. We affirm the judgment of the habeas court.

The following facts and procedural history provide the necessary backdrop to the disposition of the petitioner’s appeal. On February 25, 2003, the petitioner was arrested on two separate files and failed to post bond. He has been held in custody by the respondent, the commissioner of correction, since that date. Between February 25 and May 13, 2003, the petitioner was arrested, arraigned and held in lieu of bond on eighteen additional files. He was charged with numerous counts of larceny in the first degree in violation of General Statutes § 53a-122 (a) (2), larceny in the second degree in violation of General Statutes § 53a-123 (a) (2) and larceny in the third degree in violation of General Statutes § 53a-124 (a) (2). The petitioner pleaded guilty under all twenty files on May 17, 2004, pursuant to a plea agreement. On August 4, 2004, he was sentenced to a total effective term of sixteen years incarceration, execution suspended after eight years, and five years probation. After the petitioner had pleaded guilty to each of the charges individually, but just prior to his total effective sentence being imposed, the following colloquy took place between the petitioner’s counsel, the prosecutor and the court:

“[The Petitioner’s Counsel]: Judge, just one more issue?
“The Court: Sure.
“[The Petitioner’s Counsel]: I think it’s just [duplicative], but I’d rather put it on the record, that [the petitioner] has been incarcerated on this matter since February 25, 2003, and, obviously, we would request that credit for time served be credited toward his disposition.
“The Court: I take it you have no objection? There’s nothing else holding the [petitioner], was there?
“[The Prosecutor]: Not that I’m—oh, I’m sorry—he has ahold out of Massachusetts, but nothing else in Connecticut.
“The Court: To the extent that he’s doing pretrial time on these files only, he’s entitled to that credit. If there’s any problem with it, [petitioner’s counsel], let me know.
“[The Petitioner’s Counsel]: Thank you, Your Honor.
“[The Prosecutor]: Thank you, Your Honor.
“The Court: Total effective sentence is sixteen years, execution suspended after eight years, five years probation, terms and conditions as indicated. Again, waive fees and costs.
“[The Prosecutor]: Thank you very much, Your Honor.
“[The Petitioner’s Counsel]: Thank you, Judge.”

The petitioner received varying amounts of jail credit on each file, ranging from 448 days to 526 days. He filed a motion to revise his sentence to be consistent with the plea agreement on November 4, 2005, which was denied on December 8, 2005, without a hearing. He filed a motion to reconsider the denial on June 23, 2006. That motion was denied without a hearing on August 24, 2006. The petitioner then filed a habeas petition seeking enforcement of the terms of his plea agreement on January 30, 2006, and an amended petition on December 15, 2006. His amended petition claimed that his trial counsel had informed him that his plea agreement would include credit for all of the time he was held in presentence custody and that this had been agreed upon by counsel, the prosecutor and the court but that his presentence confinement credit beginning on February 25, 2003, was not being applied to all of his files.

The respondent filed a return on March 6, 2007, in which she raised the affirmative defense of procedural default, and the petitioner filed a reply on March 6, 2007. The habeas proceeding was held on April 4 and 9, 2007, and the court issued its memorandum of decision on May 14, 2007, denying the petition. The court first concluded that the petitioner was not raising any direct challenge to the legality of his sentence and expressly found that the doctrines of collateral estoppel and res judicata did not apply and that the petitioner was not procedurally defaulted. The court further found that “there [was] enough for [the] court to conclude that there was an agreement that the petitioner was to receive jail credit back to February 25, 2003, on all of the files to which he entered his plea of guilty. Since he did not get the credit as he believed he would, then the plea bargain is not being fulfilled, and the petitioner is being deprived of the benefit of his bargain.” The court concluded, however, that it could not order specific performance of the plea agreement because to do so would be to order the department of correction to commit an illegal act, or at least an act that is contrary to the statutes enacted by the legislature.

The petitioner filed a motion to reconsider on May 23, 2007, which was denied on May 30, 2007. He filed a petition for certification to appeal on June 8, 2007, which was granted on June 12, 2007, and this appeal was filed on August 9, 2007.

On appeal, the petitioner claims that the court incorrectly concluded that it could not order specific performance of the terms of the plea agreement as the petitioner understood them to be. Specifically, the petitioner contends that because his sentence did not accurately reflect the plea agreement, the court had the authority to direct the sentencing court to resentence him in conformity with the terms of the agreement. The respondent argues that the court correctly denied the petitioner relief but did so for the wrong reason. She agrees with the petitioner that the habeas court had the authority to direct the trial court to resentence him in accordance with the plea agreement but asserts that the court’s decision should be upheld because (1) the petitioner’s claim is barred by res judicata or procedural default and (2) the petitioner failed to show a violation of his right to due process under the standard set forth in Santobello v. New York, 404 U.S. 257, 92 S. Ct. 495, 30 L. Ed. 2d 427 (1971).

We first address whether the petitioner’s claim is barred by procedural default, as the issue is dispositive of this appeal. The respondent claims that because the petitioner did not appeal from the trial court’s denial of his motion to revise his sentence, he is procedurally defaulted. The habeas court expressly found that the petitioner was not procedurally defaulted because “the challenge in this case does not amount to a claim of an illegal sentence,” and, therefore, he was not required to appeal from the denial of his motion to this court before filing a habeas petition. We disagree with the habeas court and conclude that the petitioner is procedurally defaulted.

The habeas court’s conclusion that the petitioner’s sentencing claim was not in procedural default involves a question of law. Our review is therefore plenary. See Johnson v. Commissioner of Correction, 285 Conn. 556, 566, 941 A.2d 248 (2008).

In his reply brief, the petitioner contends that he is not procedurally defaulted because he is not required to appeal from the denial of his motion to revise his sentence before he can pursue his habeas claim and because the purpose of a motion to correct an illegal sentence pursuant to Practice Book § 43-22 can be accomplished without requiring a direct appeal when such a motion is denied.

The respondent, in her appellate brief, characterizes the petitioner’s motion to revise his sentence as a motion to correct an illegal sentence and argues that, therefore, Cobham v. Commissioner of Correction, 258 Conn. 30, 779 A.2d 80 (2001), applies to bar the petitioner’s claim. The petitioner did not allege, in his motion or elsewhere, that his sentence was illegal and instead titled his motion a “Motion to Revise the [Petitioner’s] Sentence to be Consistent with Plea Agreement.” Although the petitioner does not specifically argue that his sentence is illegal and merely argues that it should be revised to be consistent with the plea agreement, we must acknowledge the governing principle that “[i]t is the substance of a motion . . . that governs its outcome, rather than how it is characterized in the title given to it by the movant.” (Internal quotation marks omitted.) Ocwen Federal Bank, FSB v. Charles, 95 Conn. App. 315, 320 n.7, 898 A.2d 197, cert. denied, 279 Conn. 909, 902 A.2d 1069 (2006).

His motion states in relevant part: “The [petitioner] and the state negotiated and reached an agreement for a disposition on all dockets. The [petitioner] pleaded guilty to the charges ... on May 17, 2004. ... At the [petitioner’s] sentencing hearing on August 4, 2004, on two separate occasions and at the specific request of the [petitioner], counsel for the [petitioner] requested that the [petitioner] be given jail credit for time served retroactive from February 25, 2003, the date he was originally brought in on. . . . The [petitioner], and his counsel understood that the full credit to February 25, 2003 would be given on all dockets to which the plea agreement related. . . . The transcript of that portion of the sentencing hearing supports the [petitioner’s] position that he is entitled to an extra seventy-nine (79) days of time served on [all] dockets. . . . Wherefore, the [petitioner] respectfully requests that the sentence on the . . . referenced dockets be revised in order that his sentence should run concurrent on all dockets and conclude simultaneously, as was the intention of the [petitioner] and the court.” The petitioner sought to have his sentence revised to be in accordance with the plea agreement, which in substance is a claim that his current sentence is illegal because it is not in accordance with the plea agreement. We conclude, therefore, that Cobham is applicable and bars the petitioner’s claim.

Cobham, makes clear that a Santobello claim must first be raised by either a motion to correct an illegal sentence pursuant to Practice Book § 43-22 or on direct appeal. Cobham v. Commissioner of Correction, supra, 258 Conn. 38. In Cobham, the petitioner entered written pleas of nolo contendere and was sentenced by the trial court; three years later, the issue of whether the department of correction properly understood the petitioner’s sentence was brought to the attention of the trial court. After the court clarified its position, the petitioner filed an amended petition for a writ of habeas corpus, claiming that he was incarcerated in accordance with an illegal sentence because the judgment mittimus ordered him to serve consecutively two minimum mandatory sentences. Id., 34—35. The Supreme Court, noting that Practice Book § 43-22 provided the trial court with the authority to take action to correct an illegal sentence, concluded that the habeas proceeding is not the appropriate vehicle by which to challenge the legality of a sentence. Cobham v. Commissioner of Correction, supra, 38. The court stated: “We therefore conclude that, in order to challenge an illegal sentence, a defendant either must appeal the sentence directly or file a motion to correct the sentence pursuant to Practice Book § 43-22 with the trial court before raising a challenge for the first time in a petition for a writ of habeas corpus.” Cobham v. Commissioner of Correction, supra, 39.

Unlike the petitioner in Cobham, the petitioner in this case did file what is in substance a motion to correct an illegal sentence. He failed to continue on his chosen avenue of contesting his sentence all the way to completion; he did not file an appeal from the denial of his motion and is therefore procedurally defaulted. The petitioner could have continued to pursue the denial of his motion by filing an appeal with this court. See, e.g., State v. Casiano, 282 Conn. 614, 618, 922 A.2d 1065 (2007).

Because the petitioner has failed to follow the proper procedures by which to preserve his challenge to the sentence before having filed this petition for a writ of habeas corpus, his petition is procedurally defaulted, and, therefore, we will review the petitioner’s claim only if he can satisfy the cause and prejudice standard of Wainwright v. Sykes, 433 U.S. 72, 87, 97 S. Ct. 2497, 53 L. Ed. 2d 594 (1977). See Barile v. Commissioner of Correction, 80 Conn. App. 787, 790,837 A.2d 827, cert. denied, 268 Conn. 915, 847 A.2d 310 (2004). “Generally, [t]he appropriate standard for reviewability of habeas claims that were not properly raised at trial ... or on direct appeal . . . because of a procedural default is the cause and prejudice standard. Under this standard, the petitioner must demonstrate good cause for his failure to raise a claim at trial or on direct appeal and actual prejudice resulting from the impropriety claimed in the habeas petition. . . . [T]he cause and prejudice test is designed to prevent full review of issues in habeas corpus proceedings that counsel did not raise at trial or on appeal for reasons of tactics, inadvertence or ignorance . . . .” (Internal quotation marks omitted.) Caban v. Commissioner of Correction, 113 Conn. App. 165, 172-73, 965 A.2d 601, cert. denied, 292 Conn. 901, 971 A.2d 40 (2009). Once the respondent has raised the defense of procedural default in the return, the burden is on the petitioner to prove cause and prejudice. See, e.g., Councils. Commissioner of Correction, 286 Conn. 477, 489, 944 A.2d 340 (2008). “Because [cjause and prejudice must be established conjunctively, we may dispose of this claim if the petitioner fails to meet either prong.” (Internal quotation marks omitted.) Thorpe v. Commissioner of Correction, 73 Conn. App. 773, 780, 809 A.2d 1126 (2002).

The petitioner has failed to establish good cause for his failure to appeal from the denial of the motion to revise his sentence. He argues that such an appeal was unnecessary because an appeal from a denial of a motion under Practice Book § 43-22 is not definitively mandated and because the purpose for which such a motion is required can be accomplished without having to appeal from its denial. “Failing to recognize the factual or legal basis for a claim or failing to raise a claim despite recognizing it does not constitute cause for a procedural default.” Mercer v. Commissioner of Correction, 49 Conn. App. 819, 824, 717 A.2d 763, cert. denied, 247 Conn. 920, 722 A.2d 810 (1998).

A review of the record of the habeas proceeding reveals that the petitioner failed to provide evidence of cause and prejudice for his failure to raise his claim through an appeal from the denial of his motion to correct an illegal sentence or by direct appeal. He therefore has failed to carry his burden of showing good cause and prejudice and is not entitled to review of the merits of his claim. See, e.g., Fernandez v. Commissioner of Correction, 96 Conn. App. 251, 267, 900 A.2d 54, cert. denied, 280 Conn. 908, 907 A.2d 89 (2006).

The judgment is affirmed.

In this opinion the other judges concurred.

       The petitioner’s brief claims that he initially was arrested on these files on February 23, 2003. The reason for the discrepancy is unclear.

       General Statutes § 53a-122 (a) provides in relevant part: “A person is guilty of larceny in the first degree when he commits larceny, as defined in section 53a-119, and ... (2) the value of the property or service exceeds ten thousand dollars . . . .”
      General Statutes § 53a-123 (a) provides in relevant part: “A person is guilty of larceny in the second degree when he commits larceny, as defined in section 53a-119, and ... (2) the value of the property or service exceeds five thousand dollars . . . .”
      General Statutes § 53a-124 (a) provides in relevant part: “A person is guilty of larceny in the third degree when he commits larceny, as defined in section 53a-119, and ... (2) the value of the property or service exceeds one thousand dollars . . . .”

        Santobello emphasized that “when a plea rests in any significant degree on a promise or agreement of the prosecutor, so that it can be said to be part of the inducement or consideration, such promise must be fulfilled.” Santobello v. New York, supra, 404 U.S. 262.