author: DiPENTIMA, C. J.

text:
    IN RE JA-LYN R.

    (AC 33423)
    DiPentima, C. J., and Bear and Schaller, Js.

      Argued October 12
    officially released November 29, 2011

      John M. Eichholz, for the appellant (respondent mother).

      Stephen G. Vitelli, assistant attorney general, with whom, on the brief, were George Jepsen, attorney general, and Benjamin Zivyon, assistant attorney general, for the appellee (petitioner).

      Michael J. Culkin, 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

DiPENTIMA, C. J.

The respondent mother appeals from the judgment of the trial court committing her minor child Ja-lyn R. to the custody of the petitioner, the commissioner of the department of children and families (commissioner). On appeal, the respondent claims that the court (1) had insufficient evidence to support a determination of neglect and (2) improperly concluded that it was in the best interest of Ja-lyn to commit him to the custody of the commissioner. We affirm the judgment of the trial court.

The following facts and procedural history are relevant to this appeal. On January 22, 2010, Ja-lyn was bom and then placed directly into the custody of the department of children and families (department) under a ninety-six hour administrative hold pursuant to General Statutes § 17a-101g (e) and (f). On January 28,2010, the commissioner filed a neglect petition on behalf of Ja-lyn and obtained an order of temporary custody from the court that same day. The petition alleged that Ja-lyn was being denied proper care and attention physically, educationally, emotionally or morally and that he was being permitted to live under conditions, circumstances or associations injurious to his well-being. In an addendum to the petition, the commissioner alleged that the respondent had cognitive limitations and ongoing unresolved mental health and substance abuse issues. The commissioner also alleged that the respondent exhibited poor parenting and serious anger management issues. Finally, the commissioner alleged that the respondent had a criminal charge of risk of injury to a child pending in regard to her older child, a daughter, and that there were issues of domestic violence between the respondent and the father of Ja-lyn.

On February 23, 2010, the respondent agreed to the order of temporary custody. On March 4,2011, the court denied the respondent’s motion to vacate the order. On March 4, 2011, after a trial, the court determined that Ja-lyn was a neglected child and committed him to the custody of the commissioner. The court found that the respondent had been working with the department since the birth of her older child. The court found that the respondent’s history confirmed that “even after taking advantage of offered services [the respondent] has been unable to safely care for [her children]. [The respondent’s] history is that she manages to successfully complete the work required for reunification, but fails to apply what she has learned when given the opportunity.” The court concluded that the respondent “must make a commitment to cooperate with [the department] and any offered services to earn reunification with her children.” Accordingly, the court adjudicated Ja-lyn neglected and committed him to the custody of the commissioner. This appeal followed.

Before addressing the respondent’s claims, we first set forth the procedures governing neglect proceedings. “Neglect proceedings, under . . . [General Statutes] § 46b-129, are comprised of two parts, adjudication and disposition. . . . During the adjudicatory phase, the court determines if the child was neglected. Practice Book § 35a-7 (a) provides in relevant part: In the adjudicatory phase, the judicial authority is limited to evidence of events preceding the filing of the petition or the latest amendment. . . . [General Statutes § 46b-120 (9)] provides that a child may be found neglected if the child is being denied proper care and attention, physically, educationally, emotionally or morally, or is being permitted to live under conditions, circumstances, or associations injurious to the well-being of the child or youth .... The standard of proof applicable to nonpermanent custody proceedings, such as neglect proceedings, is a fair preponderance of the evidence.” (Citations omitted; internal quotation marks omitted.) In re Kamari C-L., 122 Conn. App. 815, 824-25, 2 A.3d 13, cert. denied, 298 Conn. 927, 5 A.3d 487 (2010).

I

The respondent first claims that there was insufficient evidence to support the court’s determination of neglect. We disagree.

We begin our analysis by setting forth the applicable standard of review. “When considering a challenge to the sufficiency of the evidence, the function of an appellate court is to review the findings of the trial court, not to retry the case. . . . [W]e must determine whether the facts set out in the memorandum of decision are supported by the evidence or whether, in light of the evidence and the pleadings in the whole record, those facts are clearly erroneous. . . . We also must determine whether those facts correctly found are, as a matter of law, sufficient to support the judgment. . . . [W]e give great deference to the findings of the trial court because of its function to weigh and interpret the evidence before it and to pass upon the credibility of witnesses . . . .” (Internal quotation marks omitted.) Id., 824.

“Our statutes clearly and explicitly recognize the state’s authority to act before harm occurs to protect children whose health and welfare may be adversely affected and not just children whose welfare has been affected. . . . General Statutes § 17a-101 (a) provides: The public policy of this state is: To protect children whose health and welfare may be adversely affected through injury and neglect; to strengthen the family and to make the home safe for children by enhancing the parental capacity for good child care; to provide a temporary or permanent nurturing and safe environment for children when necessary; and for these purposes to require the reporting of suspected child abuse, investigation of such reports by a social agency, and provision of services, where needed, to such child and family.” (Citation omitted; emphasis in original; internal quotation marks omitted.) In re T.K., 105 Conn. App. 502, 511-12, 939 A.2d 9, cert. denied, 286 Conn. 914, 945 A.2d 976 (2008). The doctrine of predictive neglect provides that “[t]he department, pursuant to [§ 46b-120], need not wait until a child is actually harmed before intervening to protect that child. . . . This statute clearly contemplates a situation where harm could occur but has not actually occurred.” (Internal quotation marks omitted.) In re Jermaine S., 86 Conn. App. 819, 831, 863 A.2d 720, cert. denied, 273 Conn. 938, 875 A.2d 43 (2005).

Here, the department took custody of Ja-lyn before he left the hospital. The commissioner filed a neglect petition on behalf of Ja-lyn and obtained an order of temporary custody just six days after his birth. The court concluded, however, that an adjudication of neglect was warranted on the basis of, among other things, the respondent’s prior history with the department and her unresolved anger management issues. See, e.g., In re Kamari C-L., supra, 122 Conn. App. 826-27 (applying predictive neglect where child was three days old at time of neglect petition, where respondent had long history with department relating to care of her eldest child). The court referenced the testimony of Mary Howard, a social worker for the department, who stated the following at trial: “At the time of Jalyn’s birth, the department invoked a ninety-six hour hold, based on that [the respondent] had a long [department] history. There — also, that [the respondent] had unaddressed substance abuse problems and mental health issues. [The respondent] had a child in [the department’s] care, her oldest child .... That [the respondent] tested positive for marijuana, at the time of Ja-lyn’s birth. [The respondent] also had anger management and poor parenting issues. And the father of Ja-lyn was incarcerated at the time of his birth. And there was a domestic — there’s domestic violence history, between [the respondent] and the father . . . .”

The court expressed concern that the respondent’s anger management issues posed a risk to the welfare of Ja-lyn, stating: “[The respondent] has neither completed her specific steps [nor] learned to contain her characteristic outbursts at this time.” The specific steps, drafted by the commissioner and approved by the court on the day it approved the order of temporary custody, ordered that the respondent “take responsibility for anger and controlling behaviors and the impact it has on [her] children.” The court cited the social study filed by the commissioner in support of the neglect petition, which alleged that the respondent “has a violent temper and needs to find more appropriate skills to express her anger and frustration.” See, e.g., In re Brianna C., 98 Conn. App. 797, 802, 912 A.2d 505 (2006) (predictive neglect doctrine applied where father suffered from mental health issues and respondent mother was unable to protect child from him). As noted previously, this allegation was supported by testimony at trial.

The court noted the respondent’s prior arrests for assault in the third degree and for assault in the third degree and risk of injury. The latter arrest arose from an incident that occurred on September 3, 2009, when her older child was brought to the emergency room. The court referenced the testimony of emergency room physician Jennifer Gannon, who stated that the child presented with a bruise on her left thigh, as well as other minor injuries, and opined that “the cause of the [bruise on her left thigh] was a slap inflicted by an adult.” Gannon, however, did not testify that the respondent caused these injuries; rather, she stated: “I don’t have any idea who slapped her.”

The court also noted the criminal record of Ja-lyn’s father and the history of domestic violence between him and the respondent. See In re T.K., supra, 105 Conn. App. 512 (applying doctrine of predictive neglect where marital relationship of respondent parents was strained, resulting in verbal and physical conflict, and both suffered from mental health issues); see also In re Francisco R., 111 Conn. App. 529, 537-38, 959 A.2d 1079 (2008) (applying doctrine of predictive neglect where respondent father was charged with multiple counts of sexual assault against his daughters and had history of domestic violence with mother). The court stated that Sergeant Michael Dethlefsen appeared at trial “to authenticate sixteen documents for the purpose of admission as exhibits offered by [the department] as to criminal activity and domestic violence in the family. ’ ’ The record discloses, for example, an incident that occurred on December 3, 2009, between Ja-lyn’s father and the respondent, who was seven months pregnant at the time. According to the police report, the respondent stated that Ja-lyn’s father “came home drunk and began an argument with her while they were in the bedroom.

. . . [He] then grabbed her by the hair with both hands and slammed her onto her bed. [He] then began to strangle [her] by placing both hands around her throat and squeezing tightly [where] she could not breath[e] and to the point where she almost passed out of consciousness.” On January 15, 2010, one week before the birth of Ja-lyn, a protective order was issued against Ja-lyn’s father in favor of the respondent.

We conclude, on the basis of the record in this case, that there was sufficient evidence, as a matter of law, from which the court reasonably could have determined Ja-lyn to be a neglected child.

II

The respondent also claims that the court improperly concluded that it was in the best interest of Ja-lyn to commit him to the care of the commissioner. We disagree.

We first set forth the applicable standard of review. “[W]hen making the determination of what is in the best interest of the child, [t]he authority to exercise the judicial discretion under the circumstances revealed by the finding is not conferred upon this court, but upon the trial court, and . . . we are not privileged to usurp that authority or to substitute ourselves for the trial court. ... A mere difference of opinion or judgment cannot justify our intervention. Nothing short of a conviction that the action of the trial court is one which discloses a clear abuse of discretion can warrant our interference. ... In determining whether there has been an abuse of discretion, the ultimate issue is whether the court could reasonably conclude as it did.” (Internal quotation marks omitted.) In re Haley B., 81 Conn. App. 62, 67, 838 A.2d 1006 (2004).

After an adjudication of neglect is made, “a court may (1) commit the child to the commissioner, (2) vest guardianship in a third party or (3) permit the parent to retain custody with or without protective supervision. General Statutes § 46b-129 (j).” In re Brianna C., supra, 98 Conn. App. 804. In determining the disposition portion of the neglect proceeding, the court must decide which of the various custody alternatives are in the best interest of the child. “To determine whether a custodial placement is in the best interest of the child, the court uses its broad discretion to choose a place that will foster the child’s interest in sustained growth, development, well-being, and in the continuity and stability of [the child’s] environment.” (Internal quotation marks omitted.) Id.

The court, in committing Ja-lyn to the custody of the commissioner, also ordered the department to construct a visitation program for the respondent providing for supervised visits with Ja-lyn and his sister. The court ordered the department to “continue to provide treatment and training services designed to control [the respondent’s] explosive behavior and improve her child care skills,” and ordered the respondent to “seek and successfully complete another program of cognitive behavioral therapy designed to support her efforts to control her anger and support her children.” The court’s commitment of Ja-lyn to the custody of the commissioner “is not one of permanency, such as a judgment of termination of parental rights, but one that requires, pursuant to § 46b-129 (j), the court to order specific steps which the parent must take to facilitate the return of the child or youth to the custody of such parent.” (Internal quotation marks omitted.) In re Brianna C., supra, 98 Conn. App. 805.

Here, the court committed Ja-lyn to the custody of the commissioner after finding that the respondent was unable to care for him safely on the basis of the respondent’s prior history with the department, her anger management issues and her inability to work with the department to improve her parenting skills. The court noted, but did not explicitly credit, the testimony of Howard, who expressed “concerns about sexual/physical abuse, domestic violence, [and] criminal activity . . . ,” The court also referenced the testimony of Elizabeth Schiaroli, a social worker for the department, who testified regarding the respondent’s anger management issues. The court reasonably found that “[the respondent] is not yet able to control and support both children simultaneously during supervised visitation.” At trial, Pam Williams, an employee of Community Residences, Inc., who supervised visits between the respondent and her children, testified that the respondent had difficulty managing both children at once. The court properly found that the respondent “is not inclined to follow through with recommendations offered by [the department] providers to enhance her child caring skills.” See, e.g.,In re Stanley D., 45 Conn. App. 606, 612-13, 697 A.2d 370 (committing child to custody of commissioner where respondent wilfully failed to cooperate with department), cert. denied, 243 Conn. 910, 701 A.2d 333 (1997).

We conclude that the court did not abuse its discretion in determining that it was in the best interest of Jalyn to commit him to the custody of the commissioner.

The judgment is affirmed.

In this opinion the other judges concurred.

       The court’s adjudicatory and dispositional order also named the respondent father, but he has not filed an appeal of the court’s judgment. We therefore refer in this opinion to the respondent mother as the respondent. Additionally, we note that pursuant to Practice Book § 67-13 (2), counsel for Ja-lyn filed a statement adopting the brief of the commissioner in this appeal.

       Although the respondent conflates these two claims in her brief, we note that the court’s determination of neglect and the court’s commitment of Jalyn to the custody of the commissioner are distinct legal conclusions with differing standards of review on appeal. See In re Kamcuri C-L., 122 Conn. App. 815, 824-25, 829-30, 2 A.3d 13, cert. denied, 298 Conn. 927, 5 A.3d 487 (2010). We therefore will review these claims separately.

       We note that the commissioner’s social study in support of its neglect petition alleged the following: “On [January 22, 2010], [the respondent] gave birth to her second child, Ja-lyn .... At the time of [the respondent’s] admission to the hospital, [the respondent] tested positive for marijuana. A referral was made to the [department] by Waterbury Hospital due to [the respondent’s] substance abuse problem and her erratic behavior towards the hospital staff. The staff was afraid to leave the child unsupervised around [the respondent].”

       The respondent argues that there was insufficient evidence before the court to show that Ja-lyn himself actually was neglected. Because our conclusion that the doctrine of predictive neglect applies is dispositive, we need not address this argument.

       With regard to the respondent’s alleged substance abuse issues, the court cited the testimony of Joyce James, a clinician from the Morris Foundation, who reported that the respondent was discharged from a program aimed at treating persons exposed to drug environments after she had failed to attend meetings.

       The court also found that the respondent was unable to control her anger during supervised visits with her children. We note, however, that “any evidence of sound parenting, or lack thereof, that occurred after the filing of the neglect petition relating to [the minor child], [is] not relevant to the abdication stage of the neglect proceeding.” (Emphasis added.) In re Kamari C-L., supra, 122 Conn. App. 827; see also Practice Book § 35a-7 (a). This evidence is relevant to the disposition stage of the proceebg, however; accorbgly, we consider the evidence in part II of this opinion.

       The court incorrectly stated that the respondent was arrested for these charges on June 26, 2009, and November 4, 2009. In fact, the respondent was arrested on June 26, 2009, and September 4, 2009. In addition, the court’s memorandum of decision refers to Ja-lyn as female, but in fact, he is male. Finally, the court incorrectly spells the name of the respondent’s daughter. These factual inaccuracies, however, do not undermine the court’s reasoning. See, e.g., Roberson v. Aubin, 120 Conn. App. 72, 75, 990 A.2d 1239 (2010). We therefore will not disturb the decision of the court on the basis of these inaccuracies.

       The respondent argues that there is no evidence in the record that Jalyn was sexually abused. We need not reach this issue, however, because there is ample evidence in the record otherwise supporting the court’s decision.

       At trial, for example, Schiaroli recalled the following incident: “[The respondent] was complaining rather loudly about Ja-lyn’s hair. There was, I believe, food stuck in it. And she was getting quite upset, she was yelling. . . . And both children appeared to be visibly upset. And shortly after [the respondent’s daughter] did wet her pants. It caused me concern that [the respondent’s] angry outburst affected [her daughter].”

       The court noted the testimony of Howard, who testified as follows: “There [were] other concerns that if I tried to direct [the respondent] in any type of parenting that I thought would be a good recommendation or a good suggestion, she would make comments towards me, derogatory comments at me, or she would minimize the situation and would get upset. And any time I would try to instruct her on something that I thought would be helpful for her, as far as parenting goes, she would take that as criticism. And she would just ignore what I had to say.”


source: Caselaw Access Project

author: GRUENDEL, J.

license: Public Domain

text:
    IAFF LOCAL 834 v. CITY OF BRIDGEPORT
    (AC 32472)
    DiPentima, C. J., and Gruendel and Flynn, Js.
    Argued October 18
    officially released November 29, 2011

      John T. Bochanis, with whom, on the brief, were Thomas J. Weihing and Virginia C. Foreman, for the appellant (plaintiff).

      JaradM. Lucan, with whom, on the brief, was Christopher M. Hodgson, for the appellee (defendant).
   Opinion

GRUENDEL, J.

The plaintiff union, IAFF Local 834, appeals from the judgment of the trial court denying its application to vacate an arbitration award. The plaintiff claims that the court improperly concluded that the award of the arbitration panel was final and definite as to the parties. We affirm the judgment of the trial court.

The pertinent facts and procedural history are as follows. The plaintiff and the defendant, the city of Bridgeport, are parties to a collective bargaining agreement that provides for the arbitration of disputes regarding certain terms and conditions of the employment of union members. Ronald Morales was hired by the defendant’s fire department (department) in August, 1987. Morales’ alleged misconduct in May, June and July, 2006, caused the department to bring eight charges against him. Following a disciplinary hearing on these charges, Morales was found to be in violation of certain provisions of the department’s rules and regulations, a department directive and an order from the department chief. By letter dated October 6, 2006, the department chief, Brian Rooney, imposed a penalty on Morales of a fifteen day suspension and a demotion from provisional senior fire inspector to the position of fire inspector.

Morales filed a grievance disputing the penalties. The defendant denied the grievance, and the plaintiff claimed the matter for arbitration. The unrestricted submission by the parties to the arbitration panel requested that the arbitrators consider the following: “Was the discipline of [Morales] (15 working day suspension and demotion as provisional senior inspector to fire inspector) contained in Chief Rooney’s October 6, 2006 letter for just cause? If not, what should the remedy be?” The arbitration panel heard evidence during multiple days of hearings. On January 22, 2009, the arbitration panel ruled that just cause existed for the suspension and demotion, and that the actions taken by Morales “were in the vast majority, but not all instances” clear violations of the rules and regulations of the department.

On February 23,2009, the plaintiff filed an application to vacate the arbitration award pursuant to General Statutes § 52-418. The plaintiff claimed that the award should be vacated because the arbitration panel exceeded its powers or so imperfectly executed them that a mutual, final and definite award upon the subject matter submitted was not made, in that the award: (1) does not conform to the parties’ submission, (2) is beyond the scope of the submission, (3) is contrary to law and (4) is indefinite and illegal because it is in violation of § 52-418. The plaintiff did not file a motion to correct and/or modify the award. On July 31,2009, the defendant filed an application to confirm the arbitration award pursuant to General Statutes § 52-417. On June 22, 2010, the court rendered judgment, granting the defendant’s application to confirm the arbitration award and denying the plaintiff’s application to vacate the award. The court found that the arbitration panel acted within its broad scope of authority and that “[t]he decision was specifically based upon the panel’s determination that there was just cause for the discipline imposed upon the grievant Morales.” This appeal followed.

“Judicial review of arbitral decisions is narrowly confined. . . . When the parties agree to arbitration and establish the authority of the arbitrator through the terms of their submission, the extent of our judicial review of the award is delineated by the scope of the parties’ agreement. . . . When the scope of the submission is unrestricted, the resulting award is not subject to de novo review even for errors of law so long as the award conforms to the submission. . . . Because we favor arbitration as a means of settling private disputes, we undertake judicial review of arbitration awards in a manner designed to minimize interference with an efficient and economical system of alternative dispute resolution. . . .

“Where the submission does not otherwise state, the arbitrators are empowered to decide factual and legal questions and an award cannot be vacated on the grounds that . . . the interpretation of the agreement by the arbitrators was erroneous. Courts will not review the evidence nor, where the submission is unrestricted, will they review the arbitrators’ decision of the legal questions involved. ... In other words, [u]nder an unrestricted submission, the arbitrators’ decision is considered final and binding; thus the courts will not review the evidence considered by the arbitrators nor will they review the award for errors of law or fact. . . .

“The significance ... of a determination that an arbitration submission was unrestricted or restricted is not to determine what the arbitrators are obligated to do, but to determine the scope of judicial review of what they have done. Put another way, the submission tells the arbitrators what they are obligated to decide. The determination by a court of whether the submission was restricted or unrestricted tells the court what its scope of review is regarding the arbitrators’ decision.

“Even in the case of an unrestricted submission, we have . . . recognized three grounds for vacating an award: (1) the award rules on the constitutionality of a statute ... (2) the award violates clear public policy . . . [and] (3) the award contravenes one or more of the statutory proscriptions of § 52-418. . . . [Section] 52-418 (a) (4) provides that an arbitration award shall be vacated if the arbitrators have exceeded their powers or so imperfectly executed them that a mutual, final and definite award upon the subject matter submitted was not made. In our construction of § 52-418 (a) (4), we have, as a general matter, looked to a comparison of the award with the submission to determine whether the arbitrators have exceeded their powers.” (Internal quotation marks omitted.) Harty v. Cantor Fitzgerald & Co., 275 Conn. 72, 80-81, 881 A.2d 139 (2005).

The plaintiff claims that the arbitration panel’s award is not final or definite as to the charges presented and that the court therefore erred in confirming the arbitration award. Specifically, the plaintiff claims that it is impossible to determine, from the panel’s ruling, which charges Morales was found to be responsible for and which charges he was relieved of responsibility, and thus the panel’s award is not final as to the charges presented. Because the panel’s award conforms to the submission, we disagree.

The issue that the parties submitted to the panel was whether the discipline Morales received was for just cause. The panel determined that the “suspension and demotion [of Morales] was warranted” and “there is a clear preponderance of the evidence to support a finding of just cause for the discipline imposed by the [defendant] on [Morales].” The plaintiff claims that the award is not final because it does not address each of the charges against Morales individually, and asserts that the submission to the panel was the eight separate charges contained in the department chiefs letter of October 6, 2006. The parties’ submission to the panel did not, in fact, request a finding as to each charge but merely required the panel to determine if the discipline of Morales was for just cause.

Every reasonable presumption should be made in favor of the arbitration award, and the burden of proof rests with the plaintiff to present sufficient evidence to set the award aside. Milford Employees Assn. v. Milford, 179 Conn. 678, 683, 427 A.2d 859 (1980). Upon review of the submission and the award, we determine that the award answered the question of whether Morales was disciplined for just cause, and thus falls within the scope of the submission. Although the plaintiff has alleged to the contrary, it has not sustained its burden of proof on this issue. Therefore, we conclude that the arbitration panel did not exceed its powers nor did it imperfectly execute them within the meaning of § 52-418.

The judgment is affirmed.

In this opinion the other judges concurred.

       General Statutes § 52-418 (a) provides in relevant part: “Upon the application of any party to an arbitration, the superior court . . . shall make an order vacating the award if it finds any of the following defects ... (4) if the arbitrators have exceeded their powers or so imperfectly executed them that a mutual, final and definite award upon the subject matter submitted was not made.”


author: PER CURIAM.

text:
    GAIL APRIL GREEN v. STEVEN J. DEFRANK
    (AC 32948)
    Lavine, Alvord and Borden, Js.
    Argued October 24
    officially released November 29, 2011

      Gail April Green, pro se, the appellant (plaintiff).

      Steven J. DeFrank, for the appellee (defendant).
   Opinion

PER CURIAM.

The self-represented plaintiff, Gail April Green, commenced this action to dispute the attorney’s fees paid from the proceeds of her workers’ compensation award. On appeal, the plaintiff claims that the trial court improperly granted the motion for summary judgment filed by the defendant, Steven J. DeFrank, one of several attorneys who represented her. In ruling on the motion for summary judgment, the court issued a memorandum of decision, which is a concise and thoughtful statement of the facts and the applicable law on the issue. See Green v. DeFrank, 52 Conn. Sup. 160, 33 A.3d 899 (2010). We therefore adopt the decision of the trial court as our own. It would serve no useful purpose for this court to repeat the discussion contained therein. See Norfolk & Dedham Mutual Fire Ins. Co. v. Wysocki, 243 Conn. 239, 241, 702 A.2d 638 (1997).

The judgment is affirmed.

       General Statutes § 31-280 (b) (11) (C) provides that the chairman of the workers’ compensation commission shall issue annually guidelines for the maximum fees payable to a claimant for legal services. The chairman of the workers’ compensation commission has promulgated a 20 percent cap on attorney’s fees. See www.ctworkerscomplaw.com; see also Arcano v. Board of Education, 81 Conn. App. 761, 769, 841 A.2d 742 (2004).


text:
    APPLE SALON v. COMMISSIONER OF PUBLIC HEALTH ET AL.
    (AC 33023)
    Lavine, Alvord and Bishop, Js.

      Argued October 19
    officially released November 29, 2011

      Mark F. Katz, for the appellant (plaintiff).

      Jacqueline S. Hoell, assistant attorney general, with whom, on the brief, was George Jepsen, attorney general, for the appellee (named defendant).

      John W. Mullin, assistant corporation counsel, for the appellee (defendant department of health and social services of the city of Stamford).
   Opinion

PER CURIAM.

The plaintiff, Apple Salon, appeals from the judgment of the trial court dismissing its appeal from the decision of the defendant commissioner of public health upholding a cease and desist order issued by the defendant department of health and social services of the city of Stamford. On appeal, the plaintiff claims that the court improperly dismissed its appeal by finding that the administrative hearing officer’s factual findings were supported by substantial evidence. The defendants argue that, during oral argumerit before the trial court, the plaintiff waived any claim that the hearing officer’s decision was not based on substantial evidence. We agree with the defendants and therefore affirm the judgment of the trial court.

“Waiver is the intentional relinquishment or abandonment of a known right or privilege. ... As a general rule, both statutory and constitutional rights and privileges may be waived. . . . Waiver is based upon a species of the principle of estoppel and where applicable it will be enforced as the estoppel would be enforced. . . . Estoppel has its roots in equity and stems from the voluntary conduct of a party whereby he is absolutely precluded, both at law and in equity, from asserting rights which might perhaps have otherwise existed .... Waiver does not have to be express, but may consist of acts or conduct from which waiver may be implied. ... In other words, waiver may be inferred from the circumstances if it is reasonable to do so.” (Internal quotation marks omitted.) Wiele v. Board of Assessment Appeals, 119 Conn. App. 544, 549, 988 A.2d 889 (2010). On the basis of our review of the record, including the transcript of the hearing before the court, we conclude that the plaintiff waived any claim that the hearing officer’s decision was not based on substantial evidence.

The judgment is affirmed.

       In its memorandum of decision, the court stated: “While [the plaintiff] argues in its brief that there was no substantial evidence of violations, at oral argument in this court on November 3, 2010, it stated that it did not intend to rely on those portions of its brief.” On appeal, the plaintiff does not claim that that factual finding is clearly erroneous.

       The following colloquy took place during oral argument in the trial court:
      “The Court: All right. So, there’s two, really two issues here; and that is,
      the authority of this Ms. [Ok Soon] Moon to make the statement. And the second is whether or not the state people, the state board had the — they only said we’re only going to look into x, y and z and we’re not going to look into a, b and c because it’s not health related? Is that ....
      “[The Plaintiffs Counsel]: Correct.
      “The Court: Are those your two issues?
      “[The Plaintiffs Counsel]: Yes.”


text:
    GARY SADLER v. COMMISSIONER OF CORRECTION
    (AC 31455)
    Gruendel, Bear and Dupont, Js.
    Argued October 26
    officially released November 29, 2011

      Gary Sadler, pro se, the appellant (petitioner).

      Denise B. Smoker, senior assistant state’s attorney, with whom, on the brief, were John A. Connelly, former state’s attorney, and John J. Davenport, supervisory assistant state’s attorney, for the appellee (respondent).
   Opinion

PER CURIAM.

The pro se petitioner, Gary Sadler, appeals following the denial of his petition for certification to appeal from the judgment denying his second amended petition for a writ of habeas corpus. We dismiss the appeal.

The petitioner was involved in a shooting incident on June 26, 1996, that resulted in the death of David Moore. On November 6, 1996, the petitioner was arrested, at which time he signed a voluntary statement confessing to the killing. In addition, two eyewitnesses identified the petitioner as the shooter, one of whom knew the petitioner and identified him by name. As a result, the petitioner was charged with murder in violation of General Statutes § 53a-54a. He thereafter pleaded guilty, pursuant to the Alford doctrine, to manslaughter in the first degree with a firearm in violation of General Statutes § 53a-55a (a). Consistent with the terms of his plea agreement, the petitioner was sentenced to a term of thirty years incarceration. The petitioner did not directly appeal that judgment of conviction.

In July, 2001, the petitioner commenced a habeas action alleging ineffective assistance of his trial counsel. He claimed, inter alia, that counsel was ineffective in failing to file a motion to suppress his statement to police, which he maintained was coerced and involuntary. Following a trial, the court rejected all of the petitioner’s claims and dismissed the petition for a writ of habeas corpus, which judgment this court affirmed on appeal. Sadler v. Commissioner of Correction, 90 Conn. App. 702, 703, 880 A.2d 902, cert. denied, 276 Conn. 902, 884 A.2d 1025 (2005).

The petitioner commenced the present habeas action on July 1, 2004. His second amended petition for a writ of habeas corpus contained three counts. The first count alleged ineffective assistance on the part of Theresa Dalton, his initial trial counsel. The second count alleged ineffective assistance on the part of Thomas Nalband, his trial counsel at the time he entered into the plea agreement. The third count alleged ineffective assistance on the part of Kenneth Fox, who represented the petitioner in the prior habeas action. A trial was held on February 3, 2009, at the outset of which the respondent, the commissioner of correction, moved to dismiss the first two counts of the petition. The respondent contended, and the court agreed, that those counts were predicated on the same grounds as the petition previously dismissed and failed to state new facts or proffer new evidence not reasonably available at the time of the prior petition. See Practice Book § 23-29 (3). Accordingly, the court dismissed the first two counts of the petition.

The court further rejected the petitioner’s allegation in the third count of the petition that his counsel in the prior habeas proceeding rendered ineffective assistance. Applying the familiar test for ineffective assistance of counsel under Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984), as modified for guilty plea cases by Hill v. Lockhart, 474 U.S. 52, 59, 106 S. Ct. 366, 88 L. Ed. 2d 203 (1985), the court determined that “the merits of the claims against Attorney Fox are easily disposed of under the prejudice prong. The petitioner has not presented any evidence that even remotely undermines this court’s confidence in the outcome of the prior habeas case, let alone the underlying criminal case. The petitioner has consistently admitted to his attorneys and the habeas courts in which he has filed his writs that he shot and killed the victim. The petitioner has just as steadfastly stated that he inadvertently killed the wrong person. The petitioner has utterly failed to show that he would not have pleaded guilty, proceeded to trial and prevailed.” In addition, the court found that the petitioner “has also not proven the required deficient performance . . . .” Accordingly, the court denied the petition and subsequently denied the petition for certification to appeal.

Before we may reach the merits of the petitioner’s claim that the court improperly decided the issues raised in his petition for a writ of habeas corpus, he first must establish that the court abused its discretion in denying the petition for certification to appeal. See Sadler v. Commissioner of Correction, supra, 90 Conn. App. 703. To do so, the petitioner must demonstrate “that the issues are debatable among jurists of reason; that a court could resolve the issues [in a different manner]; or that the questions are adequate to deserve encouragement to proceed further.” (Internal quotation marks omitted.) Simms v. Warden, 230 Conn. 608, 616, 646 A.2d 126 (1994). After a careful review of the record and briefs, we conclude that the petitioner has not met that substantial burden. See Lozada v. Deeds, 498 U.S. 430, 431-32, 111 S. Ct. 860, 112 L. Ed. 2d 956 (1991); Simms v. Warden, supra, 616.

The appeal is dismissed.

       “Under North Carolina v. Alford, 400 U.S. 25, 91 S. Ct. 160, 27 L. Ed. 2d 162 (1970), a criminal defendant is not required to admit his guilt . . . but consents to being punished as if he were guilty to avoid the risk of proceeding to trial. . . . A guilty plea under the Alford doctrine is a judicial oxymoron in that the defendant does not admit guilt but acknowledges that the state’s evidence against him is so strong that he is prepared to accept the entry of a guilty plea nevertheless.” (Internal quotation marks omitted.) Johnson v. Commissioner of Correction, 285 Conn. 556, 558 n.2, 941 A.2d 248 (2008).


author: ESPINOSA, J.

text:
    STEPHEN J. BRUNO v. LISA BRUNO
    (AC 30879)
    (AC 32079)
    Beach, Espinosa and Dupont, Js.
    Argued May 20
    officially released December 6, 2011

      Lisa Bruno, pro se, the appellant-appellee (defendant).

      Norman A. Roberts II, filed a brief for the appelleeappellant (plaintiff).
   Opinion

ESPINOSA, J.

These appeals arise out of two post-judgment orders related to the judgment of dissolution of the parties’ marriage on March 17, 2008. In the cross appeal by the defendant, Lisa Bruno, from the trial court’s ruling on the motion by the plaintiff, Stephen J. Bruno, to modify his alimony obligations, AC 30879, the defendant claims that the court improperly (1) modified the plaintiffs alimony obligation on the basis of a substantial change in his financial circumstances and (2) ordered her to pay expert witness fees.

In the defendant’s appeal from the trial court’s post-dissolution order regarding the division of certain assets held in a Charles Schwab bank account, AC 32079, the defendant claims that the court improperly (1) failed to order that the account be divided as of the date of the dissolution judgment and (2) concluded that certain pendente lite orders remained in effect during a stay associated with prior appeals. We reverse in part and affirm in part the judgment of the trial court in AC 30879 and reverse the judgment of the trial court in AC 32079.

The following facts, as found by the trial court, and procedural history are relevant to our resolution of these appeals. The parties’ marriage was dissolved on March 17,2008. At the time of the dissolution, the court, Hon. Sidney Axelrod, judge trial referee, ordered the plaintiff to pay alimony to the defendant in the amount of $4000 per week. On January 2, 2009, the plaintiff filed a motion to modify the court’s alimony order, citing a substantial change in his financial circumstances. On February 26, 2009, the court, Winslow, J., granted the plaintiffs motion for modification, ordering that the plaintiffs alimony be reduced to $1500 per week as of the date of the judgment, increasing to $3000 per week on January 1, 2010. The court also ordered that the defendant pay $1000 to cover deposition fees for an expert witness. The plaintiff filed an appeal from this order, AC 30879, and the defendant filed a cross appeal in AC 30879. The plaintiffs appeal was dismissed by this court.

In addition to the orders regarding alimony, the court, in the March 17, 2008 judgment of dissolution, ordered the division of certain assets in a Charles Schwab bank account (Schwab account). The defendant filed several appeals, which had the effect of staying the equitable division of the marital assets, including the Schwab account, during the pendency of the appeals. On August 31, 2009, the defendant withdrew her appeals, thereby lifting the stay. On September 19, 2009, the defendant filed a motion for contempt in an effort to compel the plaintiff to comply with the court’s order regarding the division of the Schwab account. Ultimately, the court, Winslow, J., calculated the amount owing out of the Schwab account based on the value of the assets as of August 31, 2009, the date the stay was lifted. The defendant challenges the propriety of Judge Winslow’s ruling in AC 32079. We will address each of the defendant’s appeals in turn. Additional facts and procedural history will be set forth as necessary.

I

AC 30879

In the first of these appeals, AC 30879, the defendant alleges that the court (1) improperly modified the plaintiffs alimony obligation based on a substantial change in the plaintiffs financial circumstances and (2) improperly ordered that she pay $1000 in expert witness fees. We will address each of these claims in turn.

A

With regard to the defendant’s first claim in AC 30879, the defendant contends that the court improperly concluded that there was a substantial change in the plaintiffs financial circumstances that rendered the original alimony order unjust. The following additional facts are relevant to this aspect of the appeal. At the time of dissolution, on March 17, 2008, the plaintiff was unemployed but was seeking employment as a “senior portfolio manager running individual portfolios devoted to technology and telecommunications;” a position where the plaintiff expected to earn $1 million per year. Prior to his unemployment, the plaintiff earned $2.1 million during his most recent full year of compensation. The court found that the plaintiff was employable as a senior portfolio manager. At the time of the dissolution, there were only 102 such positions available in the country. The court concluded that the plaintiff had a gross annual earning capacity of $1 million and the defendant had a gross annual earning capacity of $100,000. The court ordered weekly alimony payments to the defendant in the amount of $4000.

On January 2, 2009, the plaintiff brought a motion to modify the original alimony orders entered pursuant to the March 17,2008judgment of dissolution. The plaintiff claimed that there was a substantial change in his circumstances because his “earning capacity had been substantially reduced and/or eliminated” and he had “obtained employment at a compensation level that is substantially less than his earning capacity was determined to be.” At the hearing on the motion to modify, the plaintiff presented testimony from David Bartram, a partner at an executive search firm specializing in financial services, who testified as an expert on “the current status of the job market, employment opportunities and compensation levels in the portfolio management field.” Bartram testified that there were presently no portfolio management jobs available. Bartram also testified, however, that he did not know if executive search firms other than the firm at which he was a partner had available positions similar to that of a portfolio manager.

At the hearing, the plaintiff testified that, although he actively sought employment prior to the date of dissolution, he was no longer seeking employment as a portfolio manager. Rather, the plaintiff described himself as self-employed since January, 2008, two months prior to the date of the judgment entering the original alimony orders. Specifically, the plaintiff testified that he was currently running a hedge fund that he had founded. Although he was not yet earning a profit from this employment, the plaintiff testified that he believed the endeavor would become profitable and that he decided to start the hedge fund because he believed that it was the only way he could replicate the level of compensation he had received at his previous employment.

In light of this evidence, the court concluded that there had been a substantial change in the plaintiffs financial circumstances. The court reasoned that this substantial change occurred “because, essentially, of economic conditions that have occurred [as evidenced by] the testimony of Mr. Bartram that there has been a substantial decline in the availability of positions in the field with which [the plaintiff] is most familiar as well as [the plaintiffs] testimony himself.” The court then held that the plaintiff had a present earning capacity of $150,000, which would increase to $650,000 by January 1, 2010, when the court believed, based on evidence presented at the hearing, that the plaintiffs hedge fund would become profitable. Therefore, the court reduced the plaintiffs alimony payment to $1500 per week as of the date of the judgment, increasing to $3000 per week on January 1, 2010.

Before addressing the plaintiffs claim, we set forth our standard of review. “The standard of review in family matters is well settled. An appellate court will not disturb a trial court’s orders in domestic relations cases unless the court has abused its discretion or it is found that it could not reasonably conclude as it did, based on the facts presented. ... In determining whether a trial court has abused its broad discretion in domestic relations matters, we allow every reasonable presumption in favor of the correctness of its action. . . . Appellate review of a trial court’s findings of fact is governed by the clearly erroneous standard of review. The trial court’s findings are binding upon this court unless they are clearly erroneous in light of the evidence and the pleadings in the record as a whole. ... A finding of fact is clearly erroneous when there is no evidence in the record to support it ... or when although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed. . . . Therefore, to conclude that the trial court abused its discretion, we must find that the court either incorrectly applied the law or could not reasonably conclude as it did.” (Citations omitted; internal quotation marks omitted.) Demartino v. Demartino, 79 Conn. App. 488, 492-93, 830 A.2d 394 (2003).

“General Statutes § 46b-86 governs the modification or termination of an alimony or support order after the date of a dissolution judgment. When, as in this case, the disputed issue is alimony, the applicable provision of the statute is § 46b-86 (a), which provides that a final order for alimony may be modified by the trial court upon a showing of a substantial change in the circumstances of either party. . . . Under that statutory provision, the party seeking the modification bears the burden of demonstrating that such a change has occurred. . . . Alimony decrees may only be modified upon proof that relevant circumstances have changed since the original decree was granted. ... In general the same sorts of [criteria] are relevant in deciding whether the decree may be modified as are relevant in making the initial award of alimony. They have chiefly to do with the needs and financial resources of the parties. ... To obtain a modification, the moving party must demonstrate that circumstances have changed since the last court order such that it would be unjust or inequitable to hold either party to it. Because the establishment of changed circumstances is a condition precedent to a party’s relief, it is pertinent for the trial court to inquire as to what, if any, new circumstance warrants a modification of the existing order. In making such an inquiry, the trial court’s discretion is essential. The power of the trial court to modify the existing order does not, however, include the power to retry issues already decided ... or to allow the parties to use a motion to modify as an appeal. . . . Rather, the trial court’s discretion only includes the power to adapt the order to some distinct and definite change in the circumstances or conditions of the parties.” (Citations omitted; internal quotation marks omitted.) Borkowski v. Borkowski, 228 Conn. 729, 734-38, 638 A.2d 1060 (1994).

On the basis of our thorough review of the record, we conclude that the court abused its discretion by granting the plaintiffs motion to modify his alimony obligations. In the present case, there was no distinct and definite change in the plaintiffs circumstances that would warrant modification of his alimony obligations. Although the court credited Bartram’s testimony regarding the status of the job market for portfolio managers, the plaintiff testified that he was not searching for a job as a portfolio manager and was currently self-employed at a hedge fund, an endeavor that he voluntarily began two months prior to the original judgment setting the alimony amount. Moreover, although the plaintiff testified that he had unsuccessfully searched for a job as a portfolio manager prior to the judgment of dissolution, this evidence, relating to events and circumstances prior to the dissolution, was not a proper basis for the court’s determination regarding a substantial change in circumstances for purposes of a motion to modify alimony. See, e.g., id-, 746 (error for court to consider evidence of events and circumstances antecedent to most recent alimony order when determining whether there was substantial change in circumstances). Thus, for the entirety of the relevant period of time between the original judgment of dissolution and the modification, the plaintiffs employment situation remained unchanged. In light of this, we conclude that the court could not reasonably find that there was a decrease in the plaintiffs earning capacity that constituted a substantial change in the plaintiffs financial circumstances.

B

The defendant’s next claim in AC 30879 is that the court improperly ordered that she pay expert witness fees in the amount of $1000 for her deposition of Bar-tram. The defendant contends that the court violated her right to due process by ordering that she pay Bar-tram’s expert fees without providing an adequate hearing. We disagree.

The defendant acknowledges that she did not raise this claim before the trial court and requests review under the doctrine set forth in State v. Golding, 213 Conn. 233, 239-40, 567 A.2d 823 (1989). “Our Supreme Court held in Golding that a party can prevail on an issue not preserved at trial only if all of the following four conditions are met: (1) the record is adequate to review the claim; (2) the claim is of constitutional magnitude alleging the violation of a fundamental right; (3) the alleged constitutional violation clearly exists and clearly deprived the appellant of a fair trial; and (4) if subject to harmless error analysis, the state has failed to demonstrate harmlessness of the alleged constitutional violation beyond a reasonable doubt. ... If any one of these conditions is not met, the appellant cannot prevail. . . . The first two questions relate to whether a defendant’s claim is reviewable, and the last two relate to the substance of the actual review. . . . Golding applies to civil as well as criminal cases.” (Internal quotation marks omitted.) Corriveau v. Corriveau, 126 Conn. App. 231, 234, 11 A.3d 176, cert. denied, 300 Conn. 940, 17 A.3d 476 (2011).

The defendant has provided this court with a transcript of the entire relevant proceeding, and her claim therefore meets the first prong of Golding. Additionally, the defendant has satisfied the second prong of Golding because the claim is of a constitutional magnitude alleging a deprivation of her right to due process. As such, her claim is reviewable. The defendant has failed, however, to demonstrate that the alleged constitutional violation exists and deprived her of a fair trial. Therefore, she cannot prevail under the third prong of Golding.

The following additional facts are relevant to the defendant’s claim. The defendant conducted a deposition of Bartram on January 19, 2009. Subsequently, the plaintiff submitted several requests to the defendant to pay Bartram’s deposition fee, in accordance with Practice Book § 13-4 (c) (2). The defendant did not comply with these requests, and the plaintiff filed a motion for contempt on February 20, 2009. Bartram testified on behalf of the plaintiff at the February 24, 2009 hearing on the plaintiffs motion to modify. At the hearing, the plaintiff offered Bartram’s bill for the January 19, 2009 deposition as an exhibit, to which the defendant did not object. Additionally, Bartram testified regarding the contents of the bill and the time spent at the deposition. The defendant’s attorney cross-examined Bartram regarding these topics. At the conclusion of the hearing, the court ordered the defendant to pay $1000 for her deposition of Bartram.

The defendant claims that the court violated her constitutional rights to due process by ordering that she pay Bartram’s deposition fee without providing an adequate hearing. The defendant argues that the court erred by deciding issues raised in the plaintiffs motion for contempt “without conducting a trial like hearing on the issues.” As an initial matter, we note that the court never ruled on the plaintiffs February 20, 2009 motion for contempt. No order entered regarding that motion and the defendant was not held in contempt. Thus, in light of the fact that the court did not rule on the motion for contempt, the defendant’s claim that the court improperly ruled on the motion for contempt without providing an adequate opportunity for a hearing must fail. To the extent that the defendant claims that the court did not provide her with an adequate hearing before ordering that she pay Bartram’s fee, we conclude that the defendant was provided an adequate hearing on this issue during the February 24, 2009 hearing on the motion for modification.

“A fundamental premise of due process is that a court cannot adjudicate any matter unless the parties have been given a reasonable opportunity to be heard on the issues involved .... Generally, when the exercise of the court’s discretion depends on issues of fact which are disputed, due process requires that a trial-like hearing be held, in which an opportunity is provided to present evidence and to cross-examine adverse witnesses. ... It is a fundamental tenet of due process of law as guaranteed by the fourteenth amendment to the United States constitution and article first, § 10, of the Connecticut constitution that persons whose . . . rights will be affected by a court’s decision are entitled to be heard at a meaningful time and in a meaningful manner. . . . Where a party is not afforded an opportunity to subject the factual determinations underlying the trial court’s decision to the crucible of meaningful adversarial testing, an order cannot be sustained.” (Internal quotation marks omitted.) Gil v. Gil, 94 Conn. App. 306, 316, 892 A.2d 318 (2006).

In the present case, we conclude that the defendant was given a reasonable opportunity to be heard on the issue of Bartram’s deposition fee. The plaintiff offered evidence at the hearing regarding Bartram’s fee for the deposition, including testimony and an exhibit outlining his fees. Although the defendant did not offer any evidence regarding Bartram’s fee for the deposition, she had the opportunity to do so. Moreover, the defendant was given ample opportunity to, and did, in fact, cross-examine Bartram regarding his fee for the deposition. In light of these facts, we conclude that the defendant was provided with an adequate opportunity to subject the factual determinations underlying the court’s order regarding Bartram’s fees to meaningful adversarial testing in compliance with the requirements of due process. As such, the defendant has not established that the alleged constitutional violation clearly exists, and her claim fails under the third prong of Golding.

II

AC 32079

In the second of these appeals, AC 32079, the defendant claims that the court (1) improperly ordered that assets in the Schwab account be divided based on the value of the account on the date the stay associated with the defendant’s appeal from the dissolution judgment was terminated, rather than the value of the account on the date of dissolution, and (2) improperly concluded that pendente lite orders regarding the shelter costs of the parties’ properties remained in effect during the stay. We agree with the defendant and reverse the judgment of the trial court on both grounds. Before addressing each of these claims in turn, we note that we review the defendant’s claims under the abuse of discretion standard outlined in part IA of this opinion. See Demartino v. Demartino, supra, 79 Conn. App. 492-93.

A

The defendant’s first claim in AC 32079 is that the court improperly failed to value assets in the Schwab account as of the date of the judgment of dissolution. The following additional facts and procedural history are relevant to this claim. Pursuant to the terms of the judgment of dissolution, the defendant was awarded $300,000 out of the Schwab account, which the court identified as containing $2,451,343.62 as of August 31, 2007. In addition, the court ordered that a debt in the amount of $22,826 was to be paid out of the Schwab account. The remainder of the Schwab account was to be divided equally between the parties. As previously noted, the defendant filed several appeals that stayed the property distribution provided for in the judgment of dissolution. See Practice Book § 61-11. On September 2, 2008, the defendant filed a motion to terminate the stay, which the court, Hon. Sidney Axelrod, judge trial referee, denied on October 14, 2008. On August 31, 2009, the defendant withdrew her appeals. The plaintiff, however, did not transfer the assets in the Schwab account, prompting the defendant to file a motion for contempt on September 18, 2009. The court, Winslow, J., heard argument on the motion for contempt on December 22, 2009. The court did not hold the plaintiff in contempt, but ordered that the plaintiff comply with the dissolution orders forthwith. In addition, the court held that, for purposes of dividing the account, the parties were to determine the value of the account as of the date of dissolution. On January 4, 2010, the plaintiff appealed from Judge Winslow’s order on the motion for contempt. The defendant filed a motion to terminate the stay associated with that appeal on January 14,2010.

On March 8, 2010, the court heard argument on the defendant’s motion to terminate the stay. At the hearing, the plaintiff testified that a certain asset in the Schwab account had decreased in value since the date of dissolution due to market conditions. The plaintiff also testified that he had withdrawn funds from the Schwab account to meet his living expenses. At the conclusion of the hearing, the court issued an order on the defendant’s motion to terminate the stay, concluding that no stay was in place, but, to the extent that there was a stay, it was terminated. In addition, the court ordered that the “division of assets will be as of the date the defendant withdrew her appeal.” The defendant filed a motion to reargue on March 15, 2010, which the court denied by memorandum of decision filed March 30, 2010. In its memorandum of decision, the court held that the account was to be divided as of August 30, 2009, the date the defendant withdrew her appeals. The court concluded that any funds withdrawn by the plaintiff needed to “be added back in to determine the amounts due to each party as of August 30, 2009.” The court also held that “[a]ny interest or dividends added to the account from the [date of dissolution] to August 30, 2009, and any diminution [in value] of the account due to the market conditions should not be attributed as a benefit to or assessed as a burden against one party or the other.”

On July 2, 2010, the court conducted a hearing to determine the amounts owed to each party out of the Schwab account. After calculating the value of the account as of August 31, 2009, the court awarded the defendant $1,404,337.26 and $88,941.36 in interest. This appeal followed.

The defendant claims that the court erred by calculating the amount owed to each party based on the value of the Schwab account on the date she withdrew her appeals, rather than the date of dissolution. We agree with the defendant.

Our Supreme Court has held that “[i]n the absence of any exceptional intervening circumstances occurring in the meantime, [the] date of the granting of the divorce is the proper time by which to determine the value of the estate of the parties upon which to base the division of property. . . . An increase in the value of the property following dissolution does not constitute such an exceptional circumstance.” (Citation omitted; internal quotation marks omitted.) Sunbury v. Sunbury, 216 Conn. 673, 676, 583 A.2d 636 (1990); see also Bornemann v. Bornemann, 245 Conn. 508, 521, 752 A.2d 978 (1998) (“the date of dissolution is the appropriate date on which to value the parties’ assets”). In Kremenitzer v. Kremenitzer, 81 Conn. App. 135, 139-40, 838 A.2d 1026 (2004), this court held: “In the absence of any exceptional intervening circumstances, the date a dissolution of marriage is granted is the proper time to determine the value of the parties’ estate upon which to base division. An increase in the value of property following the date of dissolution does not constitute an exceptional circumstance. . . . Logically, there is no reason why the same date should not be used when there has been a decrease in the value of property.” (Citation omitted.)

In light of the precedent from our Supreme Court as well as from this court, we conclude that the trial court improperly ordered that the Schwab account be divided based on its value as of August 31, 2009, rather than on its value as of the date of dissolution. The date of the judgment of dissolution, March 17, 2008, was the proper date upon which to value the assets held in the Schwab account. The parties were each entitled to a portion of this asset in accordance with the property orders in the judgment of dissolution, based on the value of the asset on the date of dissolution. Therefore, we conclude that the court abused its discretion by valuing the Schwab account on the date the defendant withdrew her appeals, rather than the date of dissolution.

B

The defendant’s second claim in AC 32079 is that the court improperly concluded that pendente lite orders, providing for the payment of shelter costs for properties owned by the parties, remained in effect during the pendency of the stay associated with the defendant’s appeal from the dissolution order. We agree.

The following additional facts and procedural history are relevant to the defendant’s claim. The parties owned two properties that are relevant to this claim, one located at 111 Spring Valley Road in Ridgefield and the other located at 38 Pumping Station Road in Ridgefield. Pursuant to a stipulated pendente lite order, shelter costs for these properties were paid out of the Schwab account. In the judgment of dissolution, the court, Hon. Sidney Axelrod, judge trial referee, ordered that all of the shelter expenses associated with the Spring Valley property were to be paid by the plaintiff until the property was sold. The court also ordered that all of the shelter costs associated with the Pumping Station Road property were to be paid by the defendant until such time that that property was sold.

At the July 2, 2010 hearing to determine the amounts owed to each party out of the Schwab account, the court, Winslow, J., held that the pendente lite orders relating to the shelter costs of these properties remained in effect during the stay associated with defendant’s appeals from the judgment of dissolution. Thus, the court allowed for deductions from the Schwab account from the date of dissolution until the date the defendant withdrew her appeals for payment of the shelter costs of the Spring Valley property. Additionally, the court credited the defendant for shelter costs she paid out of her own funds during this period for the Pumping Station Road property.

The defendant claims that the court erred by concluding that the pendente lite orders remained in effect for the period of time after the dissolution judgment until the stay associated with the defendant’s appeals was terminated. We agree.

“[P]endente lite orders are interlocutory in nature and terminate with the rendition of the final judgment . . . .” Sweet v. Sweet, 190 Conn. 657, 662, 462 A.2d 1031 (1983). “An appeal does not vacate a judgment; it serves only to stay the enforcement of the rights acquired by the successful litigant. ... In other words, [the judgment of dissolution is] final unless set aside by [an appellate court], and it dispos [es] with finality of all interlocutory orders.” (Citation omitted.) Saunders v. Saunders, 140 Conn. 140, 146, 98 A.2d 815 (1953). This court’s decision in Caracansi v. Caracansi, 4 Conn. App. 645, 496 A.2d 225, cert. denied, 197 Conn. 805, 499 A.2d 56 (1985), is instructive in our resolution of this appeal. In Caracansi, this court, in the context of reviewing a ruling on a motion for contempt, held that pendente lite orders relating to the shelter costs of the parties’ home were terminated as of the date of the dissolution despite the fact that the judgment of dissolution had been stayed due to the husband’s appeal. Id., 652.

In light of this precedent, we conclude that the court abused its discretion by holding that the pendente lite orders regarding the shelter expenses of the Spring Valley and Pumping Station Road properties remained in effect during the stay of the dissolution judgment. As in Caracansi, these pendente lite orders terminated on the date of the final judgment of dissolution, despite the fact that enforcement of the judgment had been stayed due to the defendant’s appeal.

In AC 30879, the judgment is reversed only as to the granting of the plaintiffs motion to modify alimony and the case is remanded with direction to deny the motion; the judgment is affirmed in all other respects. In AC 32079, the judgment is reversed and the case is remanded for further proceedings in accordance with this opinion.

In this opinion the other judges concurred.

       The defendant filed a motion to dismiss the plaintiffs appeal on July 29, 2010, on the basis of the plaintiffs continuous contemptuous conduct. This court granted the motion to dismiss on October 13, 2010.

       Specifically, Bartram testified that Ms company is on retainer with several clients including investment banks, brokerage firms, commercial banks, and asset management companies. When one of these clients has a position to fill, Bartram’s company identifies candidates that would be suitable to fill the open positions.

       Insofar as the court found a change in circumstances because of a substantial decline in the availability of portfolio manager positions, we are not persuaded. At the time of the dissolution, the court evaluated the plaintiffs earning capacity not in terms of his actual earned income, but by considering his skills, employability, age and health. The court discussed the facts that he held a master of business administration degree, was a chartered financial analyst and had expertise as a “value investor specializing in technology and communications.” As stated previously, at the time of the dissolution, the court found that the plaintiff was seeking one of the very limited number of senior portfolio manager positions in the country but that he did not have such employment. At the time that it considered the motion to modify, the court heard testimony from Bartram, based only on the perspective of his executive search firm, that there were no portfolio manager positions available. The court also heard evidence from the plaintiff that he was not seeking such employment, but had become self-employed in another venture prior to the date of dissolution.
      We conclude that the evidence concerning the decline in the availability of senior portfolio manager positions did not affect the plaintiffs earning capacity. The plaintiff has not demonstrated that any change in his skills or employability has occurred. To the contrary, the plaintiff testified that, in short time, he expected to replicate the level of compensation he had earned as a senior portfolio manager, while self-employed at his hedge fund.

         The defendant also claims that the court erred in relying on Bartram’s testimony as an expert witness. The plaintiff disclosed Bartram as an expert “concerning the amount the plaintiff can realistically be expected to earn considering his vocational skills, employability, age and health.” Ultimately, the court did not allow Bartram to testify regarding the plaintiffs earning capacity, and instead deemed Bartram qualified as an expert as to the “current status of the job market and employment opportunities and compensation levels in the portfolio management field.” The defendant claims the court erred by allowing Bartram to testily as an expert. The defendant did not raise this claim before the trial court. Rather, counsel for the defendant, after conducting voir dire of Bartram, expressly stated that the defendant had no objection to Bartram’s expert testimony. “Our rules of procedure do not allow a [party] to pursue one course of action at trial and later, on appeal, argue that a path he rejected should now be open to him. ... To rule otherwise would permit trial by ambuscade.” (Internal quotation marks omitted.) Larobina v. McDonald, 274 Conn. 394, 402, 876 A.2d 522 (2005). Because the defendant did not object to Bartram’s testimony as an expert before the trial court, we will not review her claim on appeal.

       Practice Book § 13-4 (c) (2) provides: “Unless otherwise ordered by the judicial authority for good cause shown, or agreed upon by the parties, the fees and expenses of the expert witness for any such deposition, excluding preparation time, shall be paid by the party or parties taking the deposition. Unless otherwise ordered, the fees and expenses hereunder shall include only (A) a reasonable fee for the time of the witness to attend the deposition itself and the witness’ travel time to and from the place of deposition; and (B) the reasonable expenses actually incurred for travel to and from the place of deposition and lodging, if necessary. If the parties are unable to agree on the fees and expenses due under this subsection, the amount shall be set by the judicial authority, upon motion.”

       We note that the court held that the account was to be divided as of the date the defendant withdrew her appeals. Although the court referred to this date as August 30, 2009, in its order and subsequent memorandum of decision, the defendant’s appeals were actually withdrawn on August 31, 2009. When calculating the amount owed to the defendant, the court used the date of August 31, 2009.


author: DUPONT, J.

text:
    STATE OF CONNECTICUT v. RICHARD S. TAYLOR
    (AC 31740)
    Gruendel, Bear and Dupont, Js.

      Argued September 19
    officially released December 6, 2011

      Daniel J. Krisch, special public defender, with whom wasBrendonP. Levesque, for the appellant (defendant).

      Jennifer W. Cooper, certified legal intern, with whom were Harry Weller, senior assistant state’s attorney, and, on the brief, Michael L. Regan, state’s attorney, and Stephen M. Carney, senior assistant state’s attorney, for the appellee (state).
   Opinion

DUPONT, J.

The defendant, Richard S. Taylor, appeals from the judgment of conviction, rendered after a jury trial, of one count of cheating during gambling in violation of General Statutes § 53a-127d (a) (3), one count of conspiracy to cheat during gambling in violation of General Statutes §§ 53a-48 (a) and 53a-127d (a) (3), one count of larceny in the first degree in violation of General Statutes (Rev. to 2007) § 53a-122 (a) (2), and one count of conspiracy to commit larceny in the first degree in violation of General Statutes §§ 53a-48 (a) and 53a-122 (a) (2). On appeal, the defendant claims that the trial court’s instruction to the jury on the conspiracy offenses was improper, necessitating a reversal by this court of his conviction and a remand to the trial court for a new trial. We affirm the judgment of the trial court.

The charges against the defendant relate to his purported role in conspiracies to cheat Foxwoods Casino (Foxwoods) and to commit larceny in the first degree by placing late bets at craps. At trial, the defendant admitted that he was aware of the conspirators’ actions but claimed that he did not participate or agree to participate in the alleged conspiracies.

The jury reasonably could have found the following facts. The defendant is a professional craps player who made his living gambling for high stakes at various casinos around the country. The defendant frequented Foxwoods beginning in 2002. He was banned from Fox-woods’ premises for alleged gambling improprieties in 2003. In 2007, after a four year absence, the defendant returned to Connecticut. Upon his return, the defendant recruited former Foxwoods employees, Foxwoods craps dealers and other individuals to participate in a conspiracy to cheat at craps by placing late bets. The defendant trained individuals to play craps and to place late bets, and paid Foxwoods’ dealers in exchange for information and for their participation in accepting players’ late bets. The resulting sums paid to the defendant and other players cost Foxwoods tens of thousands of dollars. The defendant was prosecuted for his role in the conspiracies.

The defendant was found guilty by a jury on four counts of the charges alleged in the substitute information; see footnote 1 of this opinion; and sentenced to a total effective term of thirteen years imprisonment, execution suspended after ten years, with three years probation. This appeal followed. Additional facts will be set forth as necessary.

The defendant claims that the court’s charge to the jury on the elements of conspiracy was improper. The defendant failed to object to the jury instructions at trial and now seeks review under State v. Golding, 213 Conn. 233, 239-40, 567 A.2d 823 (1989).

“Under Golding, a defendant can prevail on a claim of constitutional error not preserved at trial only if all of the following conditions are met: (1) the record is adequate to review the alleged claim of error; (2) the claim is of constitutional magnitude alleging the violation of a fundamental right; (3) the alleged constitutional violation clearly exists and clearly deprived the defendant of a fair trial; and (4) if subject to harmless error analysis, the state has failed to demonstrate harmlessness of the alleged constitutional violation beyond a reasonable doubt. . . . The first two prongs of Golding involve a determination of whether the claim is reviewable, and the second two involve a determination of whether the defendant may prevail.” (Citation omitted; internal quotation marks omitted.) State v. Reeves, 118 Conn. App. 698, 707, 985 A.2d 1068 (2010).

In the present case, the first two prongs of Golding are satisfied. First, the record is replete with hundreds of pages of transcripts containing the arguments and objections of counsel on various motions during trial and the court’s instructions to the jury. The record is sufficient for this court to review the defendant’s claim that a constitutional error deprived him of a fair trial and, if a constitutional error was committed, to determine whether that error was harmless beyond a reasonable doubt. Second, the defendant’s claim that the court improperly instructed the jury on an element of the offense of conspiracy is a claim “of constitutional dimension . . . .” (Internal quotation marks omitted.) State v. Brown, 259 Conn. 799, 806, 792 A.2d 86 (2002). We conclude, however, that the defendant’s claim fails under the third prong of Golding because the court’s instruction did not amount to a constitutional violation that deprived the defendant of a fair trial.

I

The defendant argues that the trial court improperly charged the jury on the elements of conspiracy. The defendant claims that the court’s instruction on the element of agreement erroneously implied that the state needed to prove only that the parties “knowingly engaged” in a mutual plan to do a criminal act, thereby confusing the jury on the proof necessary to establish that element of the offense. We disagree.

The following additional facts are relevant to our disposition of the defendant’s claim. The court charged the jury on the crimes of conspiracy to commit cheating and conspiracy to commit larceny in the first degree immediately after delivering its charges on the respective underlying crimes. The court began by reading the statutory definition of conspiracy set forth in General Statutes § 53a-48 (a): “A person is guilty of conspiracy when, with intent that conduct constituting a crime be performed, he agrees with one or more persons to engage in or cause the performance of such conduct, and any one of them commits an overt act in pursuance of such conspiracy.”

The court explained that, to find the defendant guilty of conspiracy, the state needed to prove the three separate elements of the offense beyond a reasonable doubt. It stated: “To constitute the crime of conspiracy, here, the state must prove the following essential elements beyond a reasonable doubt: (1) there was an agreement between the defendant and one or more persons to engage in conduct constituting the crime ... (2) there was an overt act in furtherance of the subject of the agreement by any one of those persons; and (3) the defendant specifically intended to commit the crime

“The first essential element here is that the defendant, acting with the necessary intent, agreed with one or more persons to engage in or cause the performance of that conduct which constituted this crime. . . . Here, the state claims the object of the conspiracy was the crime of cheating.” The court then read the statutory definition of the underlying crime.

The court undertook a lengthy explanation of the first element required to find the defendant guilty of conspiracy, namely, that there was an agreement between the defendant and one or more persons to engage in conduct constituting the underlying crimes of cheating and larceny in the first degree. The court instructed the jury on the meaning of “agreement” in this context, stating: “With respect to this first essential element that there was an agreement, it is not necessary for the state to prove there was a formal or express agreement.

“It is sufficient to show that the parties knowingly engaged in a mutual plan to do a criminal act. Circumstantial evidence is sufficient to prove that there was an agreement because conspiracies, by their very nature, are formed in secret and only rarely can be proven other than, by circumstantial evidence. It is not necessary to establish that the defendant and the defendant’s alleged co-conspirators signed papers, shook hands, or uttered the words ‘we have an agreement,’ but rather, a conspiracy may be inferred from the conduct of the accused.

“The mere knowledge, acquiescence or approval of the object of the agreement without cooperation or agreement to cooperate, however, is not sufficient to make one a party to a conspiracy to commit the criminal act.

“In order to convict a person of conspiracy, the state need not show that such person had direct communication with all other conspirators. It is not necessary that each conspirator be acquainted with all others or even know their names.

“It is sufficient that if the defendant has come to an understanding with at least one of the others and has come to such understanding with that person to further a criminal purpose. It is not essential that he know the complete plan of the conspiracy in all of its details. It is enough if he knows that a conspiracy exists or that he is creating one and that he is joining with at least one person in an agreement to commit a crime.

“Therefore, in order to convict the defendant of this charge here [conspiracy], the first essential element that the state must prove beyond a reasonable doubt is that the defendant entered into an agreement with at least one other person to engage in conduct constituting cheating.

“The defendant must have had a guilty intent and knew that what he was doing was part of a scheme to commit cheating as alleged.

“Such an agreement may be proven by direct evidence, that is, by testimony of one of the conspirators about the agreement. Or it may also be shown by circumstantial evidence.

“Thus, a conspiracy may be proven by showing a sequence or combination of acts of such nature that they tend to show a mutual purpose. In a conspiracy, it may be that one act, taken by itself, may not tend to show an unlawful agreement. But when it is looked at in connection with other acts, the totality of the acts may be sufficient to show the unlawful agreement.

“Thus, an unlawful agreement may be proven by proof of separate acts by members of the conspiracy, and by proof of their surrounding circumstances, from which you may infer the existence of an illegal agreement.” (Emphasis added.)

Following its instruction on the element of agreement, the court instructed the jury on the second and third elements of conspiracy. In its discussion of the third element, that of specific intent, the court explained the difference between intent to enter into an agreement with one or more other persons to commit the underlying crime, and intent to commit the underlying crime. The court stated: “The third essential element here is that the defendant had the intent to commit cheating. The defendant cannot be found guilty here unless the state has proven beyond a reasonable doubt that he intended to commit cheating when he allegedly entered into the agreement.” “The defendant must have been actuated by criminal intent, that is, that he intended that certain conduct which, if performed, would constitute that crime [of conspiracy] to be performed or to take place. Again, intent relates to the condition of the mind of the person who commits the act, his purpose in doing it. As defined by our statute, a person acts intentionally with respect to a result when his conscious objective is to cause such result. Intentional conduct is purposeful conduct rather than conduct that is accidental or inadvertent.”

The court emphasized further: “Conspiracy is a specific intent crime with the intent divided into two elements: (a) the intent to agree to conspire-, and (b) the intent to commit the offense which is the object of the conspiracy, here, cheating . . . .” (Emphasis added.) Thereafter, the jury found the defendant guilty of cheating during gambling, conspiracy to cheat during gambling, larceny in the first degree and conspiracy to commit larceny in the first degree.

“The standard of review for claims of instructional impropriety is well established, [individual jury instructions should not be judged in artificial isolation . . . but must be viewed in the context of the overall charge. . . . The pertinent test is whether the charge, read in its entirety, fairly presents the case to the jury in such a way that injustice is not done to either party under the established rules of law. . . . Thus, [t]he whole charge must be considered from the standpoint of its effect on the [jurors] in guiding them to the proper verdict . . . and not critically dissected in a microscopic search for possible error. . . . Accordingly, [i]n reviewing a constitutional challenge to the trial court’s instruction, we must consider the jury charge as a whole to determine whether it is reasonably possible that the instruction misled the jury. ... In other words, we must consider whether the instructions [in totality] are sufficiently correct in law, adapted to the issues and ample for the guidance of the jury.” (Internal quotation marks omitted.) State v. Flores, 301 Conn. 77, 93, 17 A.3d 1025 (2011).

“To establish the crime of conspiracy under § 53a-48 of the General Statutes, the state must show that there was an agreement between two or more persons to engage in conduct constituting a crime and that the agreement was followed by an overt act in furtherance of the conspiracy by any one of the conspirators. The state must also show intent on the part of the accused that conduct constituting a crime be performed. The existence of a formal agreement between the parties need not be proved; it is sufficient to show that they are knowingly engaged in a mutual plan to do a forbidden act.” (Internal quotation marks omitted.) State v. Padua, 273 Conn. 138, 181-82, 869 A.2d 192 (2005); see also State v. Millan, 290 Conn. 816, 825-26, 966 A.2d 699 (2009); State v. Martin, 285 Conn. 135, 149, 939 A.2d 524, cert. denied, 555 U.S. 859, 129 S. Ct. 133, 172 L. Ed. 2d 101 (2008).

On the basis of our review of the court’s entire charge, we conclude that it is not reasonably possible that the jury was misled. The court properly stated the law on conspiracy, including the element of agreement, in accordance with controlling Supreme Court precedent. With respect to the element of agreement, the jury was instructed properly that, to find the defendant guilty of conspiracy, they needed to find that he intentionally agreed with one or more persons to engage in conduct constituting the underlying crimes of cheating and larceny in the first degree. Viewing the court’s instructions as a whole, it is not reasonably possible that the jury could have been led to believe that the defendant’s mere knowledge of the conspiracies was sufficient to satisfy the element of agreement. Accordingly, the defendant was not deprived of his due process right to have the state prove each element of the offenses charged beyond a reasonable doubt. The court’s instruction to the jury did not amount to a constitutional violation that deprived the defendant of a fair trial, and the defendant’s claim therefore fails under the third prong of Golding. See State v. Reeves, supra, 118 Conn. App. 707.

II

Entwined in the defendant’s claim that the court’s instruction to the jury was improper is an additional, underlying argument. The defendant acknowledges that the jury instruction at issue is “in keeping with decades of Supreme Court precedent,” but argues that the instruction was erroneous because Supreme Court precedent “misstates the law” as originally established by that court.

The defendant claims that the court’s charge to the jury was the result of “decades of mis-citation,” beginning with State v. Holmes, 160 Conn. 140, 149, 274 A.2d 153 (1970). The defendant argues that, in Holmes, the Supreme Court erroneously omitted the phrase “mutual purpose” — used in the earlier cases of State v. Kemp, 126 Conn. 60, 79, 9 A.2d 63 (1939), and State v. Rich, 129 Conn. 537, 540, 29 A.2d 771 (1942) — from its discussion of the first element of conspiracy, that of agreement. The crux of the defendant’s argument is that the words “mutual purpose to do the forbidden act”; (internal quotation marks omitted) State v. Kemp, supra, 79; were representative of the requirement that the alleged conspirator intentionally enter into an agreement to commit the underlying crime, and that, of late, this requirement has been converted into a concept of “knowing engagement.” See, e.g., State v. Padua, supra, 273 Conn. 181-82 (“[t]he existence of a formal agreement between the parties need not be proved; it is sufficient to show that they are knowingly engaged in a mutual plan to do a forbidden act” [internal quotation marks omitted]). The defendant argues that Holmes and the entire line of Supreme Court cases after Holmes therefore represent a “serious error” that is in need of correction.

The defendant’s argument seeks our involvement into the realm of the rectitude of Supreme Court precedent. As an intermediate appellate court, it is axiomatic that we are bound by the latest precedent of our Supreme Court and cannot reconsider its decisions. See Hartford Steam Boiler Inspection & Ins. Co. v. Underwriters at Lloyd’s & Cos. Collective, 121 Conn. App. 31, 48-49, 994 A.2d 262, cert. denied, 297 Conn. 918, 996 A.2d 277 (2010); State v. Brown, 73 Conn. App. 751, 756, 809 A.2d 546 (2002). We decline the defendant’s invitation because we are not at liberty to discard, modify or reevaluate the decisions he challenges. Hartford Steam Boiler Inspection & Ins. Co. v. Underwriters at Lloyd’s & Cos. Collective, supra, 48-49. We are bound by the Supreme Court’s latest pronouncements, and we conclude that the trial court instructed the jury on the charges of conspiracy to commit cheating and conspiracy to commit larceny in the first degree in accordance with contemporary, controlling Supreme Court precedent. See, e.g., State v. Padua, supra, 273 Conn. 181-82.

The defendant did not prove that the alleged constitutional violation clearly exists and clearly deprived him of a fair trial. He, therefore, cannot prevail under the precepts of Golding.

The judgment is affirmed.

In this opinion the other judges concurred.

       The original and substitute informations charged the defendant, in six counts, with cheating and larceny as both principal and accessory. The principal and accessory counts subsequently were merged, and the verdict form given to the jury contained the four counts that are the subject of this appeal. We need not consider, therefore, any claimed impropriety in the instructions pertaining to the difference in the defendant’s purported role as principal or accessory in the crimes charged.

       The defendant does not dispute that the value of the property included in the larceny charge exceeds $10,000.

       The game of craps is played by a group gathered around a felt craps table. One of the players, the “shooter,” rolls two dice onto the craps table. The other players bet, either by placing casino chips on portions of the felt representing possible value outcomes of the dice being rolled by the shooter, or by making a verbal bet that is confirmed by the dealer, before the shooter rolls the dice. Dealers present at the craps table supervise the players’ bets and dice rolls and pay out winnings.
      “Late bets” are bets placed after the shooter has rolled the dice or after the dice have landed. A player permitted to place a late bet is afforded an unfair advantage because the element of chance is removed from the craps game. Accordingly, late bets generally are not permitted, and no payouts are made for winnings resulting from the placement of a late bet.

       The court’s instruction to the jury on the crime of conspiracy was substantively identical in its charges on conspiracy to commit cheating and conspiracy to commit larceny in the first degree. For purposes of our analysis, we refer to the transcript of the jury charge on conspiracy to commit cheating.

       In its charge on conspiracy to commit cheating, the court summarized the statutory definition of cheating set forth in General Statutes § 53a-127d (a) as follows: “A person is guilty of cheating when, in the course of playing any lawful gambling game, he intentionally places a winning wager after that period of time during which the rules of a lawfully operated game of chance permit a wager to be placed or after the results of the game in which the wager has been placed become known.”
      In its charge on conspiracy to commit larceny in the first degree, the court summarized the statutory definition of larceny in the first degree set forth in § 53a-122 (a) (2) as follows: “A person is guilty of larceny in the first degree when he commits larceny and the value of the property exceeds ten thousand dollars.”

       The corresponding instruction for the charge of conspiracy to commit larceny provided: “The third essential element here is that the defendant had the intent to commit larceny in the first degree. The defendant cannot be found guilty here unless the state has proven beyond a reasonable doubt that he intended to commit larceny in the first degree when he allegedly entered into the agreement”

       General Statutes § 53a-48 (a) provides: “A person is guilty of conspiracy when, with intent that conduct constituting a crime be performed, he agrees with one or more persons to engage in or cause the performance of such conduct, and any one of them commits an overt act in pursuance of such conspiracy.”

       We note further that the court’s instruction to the jury on the crime of conspiracy was in accord with Connecticut’s model jury instructions. See Connecticut Criminal Jury Instructions (4th Ed. 2007) § 3.3, available on the Connecticut Judicial Branch website, http://www.jud.ct.gov/ji/criminai/ part3/3.3-l.htm. The model instructions contain, verbatim, the words contested by the defendant, namely: “It is sufficient to show that the parties
        knowingly engaged in a mutual plan to do a criminal act.” (Emphasis added.) Id., § 3.3-1.

       In his reply brief, the defendant encourages this court to “ameliorate the serious error — conflating knowing engagement with mutual purpose — • that has wormed its way into the standard Connecticut conspiracy charge that was given by the trial court” and invites us to “take the opportunity presented by this appeal to correct that error.” We note that this argument belies the defendant’s claim to this court, made during oral argument, that he is not attempting to have us overrule the Supreme Court.

       In the event that the Connecticut Supreme Court agrees with the defendant and concludes that it has strayed from State v. Kemp, supra, 126 Conn. 60, it is not this court, given our role in the appeal hierarchy, but the defendant, who should attempt to convince the Supreme Court of its alleged error. We note that, while this appeal was pending, the defendant sought transfer to the Supreme Court and that the Supreme Court denied his motion.