author: GRUENDEL, J.

text:
    STATE OF CONNECTICUT v. HUBERT J. THOMPSON
    (AC 30423)
    Gruendel, Alvord and Borden, Js.

      Argued September 10
    officially released December 1, 2009

      David J. Reich, special public defender, for the appellant (defendant).

      Leon F. Dalbec, Jr., senior assistant state’s attorney, with whom, on the brief, were Gail P. Hardy, state’s attorney, and Warren Maxwell, former senior assistant state’s attorney, for the appellee (state).
   Opinion

GRUENDEL, J.

The defendant, Hubert J. Thompson, appeals from the judgment of conviction, rendered after a court trial, of kidnapping in the first degree in violation of General Statutes § 53a-92 (a) (2) (A), sexual assault in the first degree in violation of General Statutes § 53a-70 (a) and attempt to commit sexual assault in the first degree in violation of General Statutes §§ 53a-49 (a) (2) and 53a-70 (a). On appeal, the defendant claims that (1) he was denied effective assistance of counsel as a result of the trial court’s failure to inquire into an alleged conflict of interest of his defense counsel, (2) he was denied his due process rights as a result of the court’s alleged failure to canvass him adequately regarding his waiver of the right to a jury trial and (3) his conviction of kidnapping in the first degree should be reversed in light of our Supreme Court’s change in its interpretation of § 53a-92. We affirm the defendant’s conviction of sexual assault in the first degree and attempt to commit sexual assault in the first degree. We reverse the defendant’s conviction of kidnapping in the first degree and remand the case for a new trial on that charge.

The court reasonably could have found the following facts. In September, 1994, the victim lived with her then boyfriend in an apartment in Hartford and was addicted to drugs. At approximately 11 p.m. on September 23, 1994, the victim left her apartment and drove her boyfriend’s leased car to South Marshall Street, where she had purchased drugs in the past and hoped to do so again on that particular occasion. In her experience, there was a certain etiquette in purchasing drugs. Specifically, the victim would stop her car, wait for the dealer to approach the driver’s side, tell the dealer what she wanted and quickly complete the exchange. Generally, such transactions lasted only a matter of seconds.

As the victim came to a complete stop at a stop sign on South Marshall Street on the evening of September 23,1994, the defendant approached and entered the car from the passenger side without invitation. The victim recognized the defendant as the drug dealer from whom she had purchased drugs approximately one week earlier. In that transaction, the victim purchased drugs from the defendant on credit and had yet to repay him when he entered the car. When the defendant entered the car, the victim told him that she had his money for the drugs, but he was angry, refused to accept the money and, instead, said something to the effect of: “I told you not to play with me.” The defendant next slapped the victim and instructed: “Bitch, pull over.” After the victim complied, the defendant removed the keys from the ignition and told the victim to get out of the car. Upon exiting the car, the victim attempted to escape, but the defendant grabbed her and dragged her to the side of a nearby building, at which point someone yelled, “man, you shouldn’t do that.” The defendant ordered the victim to remove her clothes and she complied after being punched several times in the face because “[she] was terrified [and] didn’t know what [the defendant] was going to do. [She] thought [she] was going to get really hurt . . . .” There, behind the building, the defendant sexually assaulted the victim. The entire episode lasted fifteen to twenty minutes.

Following that episode, the defendant led the victim back to the car, forced her into the passenger seat and drove along several streets. There was no conversation during that ride. The victim “was terrified [and] didn’t know where [the defendant] was taking [her] and what he was going to do next.” As the car came to a stop at a traffic signal, approximately one block from the victim’s apartment, the victim recognized that this was her chance to escape. While the car was still stopped, she got out, ran to her apartment complex and screamed for help until her boyfriend let her in at the front gate. Upon the victim’s return, her boyfriend notified the police, who responded soon thereafter. The victim also went to a local hospital, where she underwent examination. The defendant was later apprehended, and a court trial followed, at the conclusion of which the court found the defendant guilty of kidnapping in the first degree, sexual assault in the first degree and attempt to commit sexual assault in the first degree. From that judgment, the defendant appeals.

I

The defendant claims that the court violated his right to the effective assistance of counsel as guaranteed by the sixth amendment to the United States constitution by failing sua sponte to inquire into an alleged conflict of interest between him and his trial counsel, M. Donald Cardwell, when the court knew or should have known about the conflict. We disagree.

The following additional facts are relevant to the defendant’s claim. Car dwell had been convicted of a federal criminal charge for which he awaited sentencing. On October 1, 1998, with Cardwell’s advice, the defendant informed the court that he wanted to forgo his right to a jury trial and be tried by the court. When canvassed by the court, the defendant indicated that he was aware of Cardwell’s conviction and pending sentence and that Cardwell had explained to him such matters fully. The defendant further responded that he wanted Cardwell to continue to represent him and that he did not have any questions for the court or Cardwell. Subsequently, Cardwell affirmatively represented to the court that there was no conflict of interest between himself and the defendant and that his conviction would not impair his ability to represent the defendant adequately.

Before reviewing the defendant’s claim, we note that our review is limited to the actions of the court, not the actions of defense counsel. Our Supreme Court has observed that “[a]lmost without exception, we have required that a claim of ineffective assistance of counsel ... be raised by way of habeas corpus, rather than by direct appeal, because of the need for a full evidentiary record for such [a] claim. ... On the rare occasions that we have addressed an ineffective assistance of counsel claim on direct appeal, we have limited out-review to allegations that the defendant’s sixth amendment rights had been jeopardized by the actions of the trial court, rather than by those of his counsel.” (Internal quotation marks omitted.) State v. Drakeford, 261 Conn. 420, 428, 802 A.2d 844 (2002). Moreover, we have addressed such claims “only where the record of the trial court’s allegedly improper action was adequate for review or the issue presented was a question of law, not one of fact requiring further evidentiary development.” State v. Crespo, 246 Conn. 665, 688, 718 A.2d 925 (1998), cert. denied, 525 U.S. 1125, 119 S. Ct. 911, 142 L. Ed. 2d 909 (1999). Accordingly, we review the defendant’s claim as a question of law, and, therefore, our review is plenary.

“The sixth amendment to the United States constitution as applied to the states through the fourteenth amendment, and article first, § 8, of the Connecticut constitution, guarantee to a criminal defendant the right to [the] effective assistance of counsel. . . . Where a constitutional right to counsel exists . . . there is a correlative right to representation that is free from conflicts of interest. . . . There are two circumstances under which a trial court has a duty to inquire with respect to a conflict of interest: (1) when there has been a timely conflict objection at trial ... or (2) when the trial court knows or reasonably should know that a particular conflict exists . . . .” (Citation omitted; internal quotation marks omitted.) State v. Cator, 256 Conn. 785, 793-94, 781 A.2d 285 (2001). Before being charged with a duty to inquire, the court must have before it evidence that a defendant’s sixth amendment right to effective assistance of counsel is in jeopardy. State v. Crespo, supra, 246 Conn. 697. A court’s failure to inquire when it has an affirmative duty to do so constitutes the basis for reversal of a defendant’s conviction. Id., 686.

No timely conflict objection was made in this case. Therefore, when determining whether the court had a duty to inquire, we must determine whether the court knew or reasonably should have known that a conflict existed. Because the defendant did not raise any objection to Cardwell’s representation at trial, he seeks to prevail on his unpreserved claim under State v. Golding, 213 Conn. 233, 239-40, 567 A.2d 823 (1989). Golding holds that “a defendant can prevail on a claim of constitutional error not preserved at trial only if all of the following conditions are met: (1) the record is adequate to review the alleged claim of error; (2) the claim is of constitutional magnitude alleging the violation of a fundamental right; (3) the alleged constitutional violation clearly exists and clearly deprived the defendant of a fair trial; and (4) if subject to harmless error analysis, the state has failed to demonstrate harmlessness of the alleged constitutional violation beyond a reasonable doubt. In the absence of any one of these conditions, the defendant’s claim will fail.” (Emphasis in original.) Id. For the reasons we will set forth, we conclude that the defendant’s claim fails under the third prong of Golding.

Our Supreme Court has explained that a conflict of interest is “that which impedes [counsel’s] paramount duty of loyalty to his client [such that] an attorney may be considered to be laboring under an impaired duty of loyalty, and thereby be subject to conflicting interests, because of interests or factors personal to him that are inconsistent, diverse or otherwise discordant with [the interests] of his client . . . .” (Citation omitted; internal quotation marks omitted.) State v. Crespo, supra, 246 Conn. 689-90. Moreover, counsel's loyalty is “impaired when . . . [he] cannot consider, recommend or carry out an appropriate course of action for the client because of . . . [his] other responsibilities or interests . . . .” Phillips v. Warden, 220 Conn. 112, 138, 595 A.2d 1356 (1991). “While the right to conflict-free representation typically is implicated in cases involving representation of criminal codefendants by a single attorney ... it is equally applicable in other cases where a conflict of interest may impair an attorney’s ability to represent his client effectively.” (Citations omitted; internal quotation marks omitted.) Adorno v. Commissioner of Correction, 66 Com. App. 179, 195, 783 A.2d 1202, cert. denied, 258 Conn. 943, 786 A.2d 428 (2001). Thus, “[t]he key here should be the presence of a specific concern that would divide counsel's loyalties. ” (Internal quotation marks omitted.) State v. Barnes, 99 Conn. App. 203, 217, 913 A.2d 460, cert. denied, 281 Com. 921, 918 A.2d 272 (2007).

The defendant first contends that there existed an actual conflict of interest on the part of Cardwell of which the court should have been aware and that it should have addressed. To support his claim, the defendant relies on Phillips. There, our Supreme Court found that defense counsel, a convicted murderer, had an actual conflict of interest “dictated solely by [counsel’s] own personal situation,” which adversely affected his performance. Phillips v. Warden, supra, 220 Conn. 147. Specifically, as a result of counsel’s murder conviction, counsel’s loyalty was impaired by virtue of his having to choose between inquiring of the venirepersons whether they knew about his conviction or forgoing such inquiry. Here, the defendant argues that Cardwell’s duty of loyalty was similarly impaired when Cardwell allegedly was forced to decide “whether to allow his client to face the jury while hampered by an attorney with a federal conviction orto waive his right to ajury.” Essentially, the defendant contends that Cardwell’s duty of loyalty was impaired because his federal criminal conviction prevented him from pursuing a jury trial.

The defendant alleges that the actual conflict arose when Cardwell decided to try the case knowing that he had a federal criminal conviction. Contrary to the defendant’s assertion, Phillips emphasized that it did “not hold that whenever a lawyer who has been convicted of a felony represents a criminal defendant there is a conflict of interest in the constitutional sense.” Id., 142-43. Rather, Phillips held that there existed an actual conflict because of the “unique facts” of that case. Id., 139. Of those “unique facts,” the court in Phillips noted: “Surely no other criminal defendant in the history of Connecticut jurisprudence — indeed, in the histoiy of American jurisprudence — has ever had to face a jury in a trial for serious and violent criminal offenses, while represented by a convicted murderer, whose conviction was likely to have been known by the jurors, in the judicial district where both the murder and conviction took place, where both the murder and its ensuing legal aftermath had been widely reported in the press, and when the murderer was literally on his own way to prison.” Id., 140-41.

In the present case, the record reveals only that Card-well was convicted of a federal crime and that he advised his client to waive his right to a jury trial. Significantly, the record does not reveal the specific federal crime with which Cardwell was convicted, the federal trial court in which he was convicted, the publicity his conviction may have received or anything else about it. In addition, nothing in the record indicates that the advice Cardwell provided to his client was dictated in any way by interests or factors personal to him or that he would not have advised the defendant in the same way had he not been convicted of a federal crime. Simply put, the conflict that allegedly existed is theoretical, and the circumstances of such are insufficient to alert a reasonable trial court that the defendant’s sixth amendment right to effective assistance of counsel was in jeopardy. Accordingly, we conclude that there was no actual conflict obligating the court to inquire, and, therefore, the defendant’s claim fails.

Alternatively, the defendant claims that the court was at least alerted to a potential conflict once it had learned of Cardwell’s federal criminal conviction and that Card-well had advised the defendant to waive the right to a jury trial. Although a federal criminal conviction of counsel conceivably can create a potential conflict of interest, it did not do so under the circumstance of this case. As previously stated, “a conflict of interest impedes a counsel’s duty of loyalty to his client, subjecting counsel to divided loyalties.” State v. Barnes, supra, 99 Conn. App. 219. Here, Cardwell awaited sentencing for an unidentified federal crime in an unidentified federal trial court. Cardwell did not indicate that any of his interests were different or otherwise discordant with the interests of the defendant, that his duty of loyalty to the defendant was divided or that he would be unable to represent the defendant effectively. See id. Rather, Cardwell affirmatively represented to the court that there was no potential conflict. Our Supreme Court has observed that when discharging the duty to inquire, the trial court “must be able, and be freely permitted, to rely upon [defense] counsel’s representation that the possibility of such a conflict does or does not exist. . . . The reliance in such an instance is upon the solemn representation of a fact made by [the] attorney as an officer of the court. . . . The course thereafter followed by the court in its inquiry depends upon the circumstances of the particular case.” (Citations omitted; internal quotation marks omitted.) State v. Drakeford, supra, 261 Conn. 427. Absent any reason to the contrary, the court was entitled to rely on Cardwell’s representation that there existed no conflict, and it had no obligation to conduct any further inquiry into the subject. Accordingly, we conclude that there was no potential conflict of interest obligating the court to inquire, and, therefore, the defendant’s claim fails.

II

The defendant next claims that the court failed to canvass him adequately concerning the waiver of his right to a jury trial. Specifically, the defendant alleges that his waiver of the right to a jury trial cannot have been adequate if the record does not reflect his knowledge of the conflict. The defendant concedes that this claim was not raised at trial and, thus, was not preserved for our review. He seeks to prevail under State v. Golding, supra, 213 Conn. 239-40. We review the defendant’s claim because the record is adequate and the alleged violation is of constitutional magnitude, as it involves his constitutional right to a jury trial.

We begin our analysis by setting forth the applicable standard of review. Our Supreme Court has stated that “[t]he right to a jury trial in a criminal case is among those constitutional rights which are related to the procedure for the determination of guilt or innocence. The standard for an effective waiver of such right is that it must be knowing and intelligent, as well as voluntary. . . . Relying on the standard articulated in Johnson v. Zerbst, 304 U.S. 458, 464, 58 S. Ct. 1019, 82 L. Ed. 1461 (1938), we have adopted the definition of a valid waiver of a constitutional right as the intentional relinquishment or abandonment of a known right. . . . This strict standard precludes a court from presuming a waiver of the right to a trial by jury from a silent record. ... In determining whether this strict standard has been met, a court must inquire into the totality of the circumstances of each case. . . . When such a claim is first raised on appeal, our focus is on compliance with these constitutional requirements rather than on observance of analogous procedural rules prescribed by statute or by the Practice Book. . . . Our task, therefore, is to determine whether the totality of the record furnishes sufficient assurance of a constitutionally valid waiver of the right to a jury trial. . . . Our inquiry is dependent upon the particular facts and circumstances surrounding [each] case, including the background, experience, and conduct of the accused. ... In examining the record, moreover, we will indulge every reasonable presumption against waiver of fundamental constitutional rights and . . . [will] not presume acquiescence in the loss of fundamental rights. ... In addition, a waiver of a fundamental constitutional right is not to be presumed from a silent record.” (Citations omitted; internal quotation marks omitted.) State v. Gore, 288 Conn. 770, 775-77, 955 A.2d 1 (2008).

When a defendant indicates that he wants to waive his right to a jury trial without signing a waiver, “the trial court should engage in a brief canvass of the defendant in order to ascertain that his or her personal waiver of the fundamental right to a jury trial is made knowingly, intelligently and voluntarily. This canvass need not be overly detailed or extensive, but it should be sufficient to allow the trial court to obtain assurance that the defendant: (1) understands that he or she personally has the right to a jury trial; (2) understands that he or she possesses the authority to give up or waive the right to a jury trial; and (3) voluntarily has chosen to waive the right to a jury trial and to elect a court trial.” Id., 788-89.

The defendant concedes that the court’s canvass demonstrates that he understood that he had the right to a jury trial, that he possessed the authority to waive that right and that his decision to waive that right was voluntary. The defendant, nevertheless, contends that the court’s canvass was inadequate because the court did not canvass him with regard to his understanding that Cardwell allegedly had a conflict of interest. According to the defendant, it follows that in the absence of such canvass, he could not have knowingly, intelligently and voluntarily waived his right to a jury trial. The defendant’s line of reasoning, however, presumes that such conflict existed. For the reasons set forth in part I of this opinion, we conclude that there was no conflict of interest. Accordingly, we conclude that the court’s canvass of the defendant was adequate, and, as such, he was not clearly deprived of a constitutional right.

Ill

Finally, the defendant claims that his conviction of kidnapping in the first degree should be reversed in light of our Supreme Court’s recent change in its interpretation of § 53a-92. See State v. DeJesus, 288 Conn. 418, 953 A.2d 45 (2008) (en banc); State v. Sanseverino, 287 Conn. 608, 949 A.2d 1156 (2008), overruled in part by State v. DeJesus, 288 Conn. 418, 437, 953 A.2d 45 (2008) (en banc), and superseded in part by State v. Sanseverino, 291 Conn. 574, 969 A.2d 710 (2009) (en banc); State v. Salamon, 287 Conn. 509, 949 A.2d 1092 (2008). We agree.

We begin by noting the following appellate procedural history, which is pertinent to our consideration. After the defendant was tried, convicted and sentenced, in November, 1998, he commenced his appeal before our Supreme Court in March, 2008, which, pursuant to Practice Book § 65-1, transferred the appeal to this court. Thereafter, the decision in Salamon was released on July 1, 2008. Although the defendant conceded that he did not preserve the issue at trial, Sala-mon may be applied to the present case because of the general rule that “judgments that are not by their terms limited to prospective application are presumed to apply retroactively ... to cases that are pending . . . .” (Citation omitted.) Marone v. Waterbury, 244 Conn. 1, 10-11, 707 A.2d 725 (1998). The defendant argues that his conviction of kidnapping in the first degree should be reversed because of the substantive change in law. The state contends that application of this new interpretation of law is inapplicable to the facts and circumstances of the present case, and, even if this court finds otherwise, any error was harmless. As such, the matter before us presents a question of law, and, therefore, our review is plenary. See, e.g., Hayes Family Ltd. Partnership v. Planning & Zoning Commission, 98 Conn. App. 213, 223, 907 A.2d 1235 (2006) (applicability of statute to given set of facts and circumstances involves question of law requiring plenary review), cert. denied, 281 Conn. 904, 916 A.2d 44 (2007).

Our Supreme Court recently reviewed the development of its decisional law concerning § 53a-92. It stated: “[Resolution of the defendant’s final claim is governed by our recent decisions in State v. Salamon, supra, 287 Conn. 509, State v. Sanseverino, supra, 287 Conn. 608, and State v. DeJesus, supra, 288 Conn. 418. Accordingly, before addressing the defendant’s claim, we review briefly our decisions in these cases. In Salamon, ‘we reconsidered our long-standing interpretation of our kidnapping statutes, General Statutes §§ 53a-91 through 53a-94a.’ State v. Sanseverino, supra, 620. The defendant had assaulted the victim at a train station late at night, and ultimately was charged with kidnapping in the second degree in violation of [General Statutes] § 53a-94, unlawful restraint in the first degree, and risk of injury to a child. State v. Salamon, supra, 515. ‘At trial, the defendant requested a juiy instruction that, if the jury found that the restraint had been incidental to the assault, then the jury must acquit the defendant of the charge of kidnapping. [Id., 516]. The trial court declined to give that instruction. Id.’ State v. Sanseverino, supra, 621.

“ ‘We [thus] reexamined our long-standing interpretation of the kidnapping statutes to encompass even restraints that merely were incidental to and necessary for the commission of another substantive offense, such as robbery or sexual assault. [State v. Salamon, supra, 287 Conn. 522-28] . . . .’ State v. Sanseverino, supra, 287 Conn. 621. We ultimately concluded that '[o]ur legislature . . . intended to exclude from the scope of the more serious crime of kidnapping and its accompanying severe penalties those confinements or movements of a victim that are merely incidental to and necessary for the commission of another crime against that victim. Stated otherwise, to commit a kidnapping in conjunction with another crime, a defendant must intend to prevent the victim’s liberation for a longer period of time or to a greater degree than that which is necessary to commit the other crime.’ State v. Salamon, supra, 542.

“We explained in Salamon that ‘a defendant may be convicted of both kidnapping and another substantive crime if, at any time prior to, during or after the commission of that other crime, the victim is moved or confined in a way that had independent criminal significance, that is, the victim was restrained to an extent exceeding that which was necessary to accomplish or complete the other crime. Whether the movement or confinement of the victim is merely incidental to and necessary for another crime will depend on the particular facts and circumstances of each case. Consequently, when the evidence reasonably supports a finding that the restraint was not merely incidental to the commission of some other, separate crime, the ultimate factual determination must be made by the jury. For purposes of making that determination, the jury should be instructed to consider the various relevant factors, including the nature and duration of the victim’s movement or confinement by the defendant, whether that movement or confinement occurred during the commission of the separate offense, whether the restraint was inherent in the nature of the separate offense, whether the restraint prevented the victim from summoning assistance, whether the restraint reduced the defendant’s risk of detection and whether the restraint created a significant danger or increased the victim’s risk of harm independent of that posed by the separate offense.’ Id., 547-48. ‘Applying this standard to the facts in Salamon, we concluded that, although the defendant had not been charged with assault, the judgment of conviction of kidnapping in the second degree had to be reversed and the case remanded for a new trial because the defendant was entitled to a jury instruction explaining that a kidnapping conviction could not lie if the restraint was merely incidental to the assault. Id., 550.’ State v. Sanseverino, supra, 287 Conn. 624.

“In Sanseverino, we relied on our opinion in Salamon to reverse the defendant’s conviction of kidnapping in the first degree, reasoning that ‘although the question of whether kidnapping may stand as a separate offense is one for the jury . . . under the facts of the present case, no reasonable jury could have found the defendant guilty of kidnapping in the first degree on the basis of the evidence that the state proffered at trial.’ ... Id. We explained that ‘[i]n the present case, the evidence clearly establishes that the defendant restrained [the victim] solely for the purpose of sexually assaulting her. Although we carefully scrutinized the record, transcript, exhibits and briefs, we have found no evidence that the defendant restrained [the victim] to any greater degree than necessary to commit the sexual assault.’ ... Id., 625.” (Emphasis in original.) State v. Hampton, 293 Conn. 435, 459-61, 978 A.2d 1089 (2009). Our Supreme Court further reasoned in Sanseverino-. “[The victim] walked into the back room of the bakery to get an apron. The restraint occurred thereafter when the defendant grabbed [the victim] from behind and pushed her against the wall, pinning her arms over her head with his arm and pressing his body against hers to keep her from moving. These actions were clearly undertaken solely for the purpose of allowing the defendant to initiate, and to keep [the victim] from moving away from, his sexual advances. None of the restraint that the defendant applied to [the victim] was for the purpose of preventing her from summoning assistance nor did it significantly increase the risk of harm outside of that created by the assault itself.” State v. Sanseverino, supra, 287 Conn. 625. To that end, the court in Sansever-ino reversed the defendant’s conviction of kidnapping in the first degree and remanded the case to the trial court with direction to render judgment of acquittal. Id., 641.

Relying on Salamon, in DeJesus, the court also reversed the defendant’s kidnapping conviction. State v. DeJesus, supra, 288 Conn. 438-39. There, the court found that because the jury was not instructed in accordance with Salamon concerning the crime of kidnapping, “[t]he defendant therefore could have been convicted on the basis of conduct which, under Salomon, does not violate the kidnapping statute.” Id., 438. After reversing the defendant’s kidnapping conviction, DeJesus next “considered the appropriate remedy for the instructional impropriety identified in Salamon and Sanseverino, and concluded that in such situations, ‘the appropriate remedy ... is to reverse the defendant’s kidnapping conviction and to remand the case to the trial court for a new trial.’Accordingly, [DeJesus] recognized the impropriety in our procedural conclusion in Sanseverino, and insofar as ‘the proper remedy in that case should have been a new trial,’ we overruled Sanseverino. Id., 437.” State v. Hampton, supra, 293 Conn. 461.

Most recently, in Hampton, our Supreme Court determined that the trial court’s improper jury instruction concerning the defendant’s kidnapping charge “was harmless because it [was] clear beyond a reasonable doubt that the impropriety did not contribute to the verdict.” Id., 463. Specifically, in Hampton, the court noted that the record was without evidence “that could rationally lead to a contrary finding by the jury as to whether the defendant’s restraint of the victim had been inherent in, or merely incidental to, the additionally alleged crimes. The state presented overwhelming evidence that the defendant and [a male friend] had kidnapped the victim and had driven around Hartford and East Hartford with her for well over three hours before the defendant’s alleged commission of any other crimes commenced.” Id. In reaching its conclusion, the court found significant that “between the time when [the friend] and the defendant picked the victim up in East Hartford [promising to drive her home], and when [the friend] parked the car behind [a] gas station in Hartford and the sexual assault and the shooting of the victim occurred, the victim had been: (1) driven to a restaurant in downtown Hartford; (2) angrily questioned in the car about the whereabouts of her brother; (3) driven to her grandmother’s house in Hartford; (4) driven to the home of [the friend’s] mother in Hartford; and (5) driven to a nearby apartment complex.” Id., 463-64. The court in jHampton, therefore, concluded that the record clearly showed that the defendant intended to “prevent the victim’s liberation for a longer period of time or to a greater degree than that necessary to commit the subsequent crimes.” Id., 464.

In the present case, it is first important to note that because the defendant was charged with kidnapping pursuant to § 53a-92 (a) (2), we cannot consider his conduct following the sexual assault. Section 53a-92 (a) (2) provides in relevant part: “A person is guilty of kidnapping in the first degree when he abducts another person and ... (2) he restrains the person abducted with intent to (A) inflict physical injury upon him or violate or abuse him sexually . . . .’’At oral argument, the state conceded that it introduced no evidence at trial to suggest that the defendant intended to “inflict physical injury upon [the victim] or violate or abuse [her] sexually” subsequent to the sexual assault. As a result, even though the defendant forced the victim back into the car after the sexual assault occurred and drove her around until she finally escaped, our analysis is limited to the defendant’s conduct up to the completion of the sexual assault. This includes when the defendant entered the victim’s car, instructed her to get out, grabbed her as she attempted to get away and brought her to a nearby building to sexually assault her.

The state contends that a finding in accordance with Salamon is unnecessary because unlike Salamon, Sanseverino and DeJesus, the restraint of the victim in the present case was not contemporaneous with the sexual assault. Moreover, in contrast to those three cases, the state asserts that the defendant here forcibly moved the victim prior to the sexual assault. According to the state, for a Salamon finding to have been applicable, the sexual assault must have occurred in the car and not at a nearby building. Alternatively, the state contends that even if a Salamon finding is applicable, any error was harmless beyond a reasonable doubt. We disagree.

We emphasize that “[w]hether the movement or confinement of the victim is merely incidental to and necessary for another crime will depend on the particular facts and circumstances of each case.” (Internal quotation marks omitted.) State v. Hampton, supra, 293 Conn. 460. Accordingly, we conclude that when assessing the defendant’s kidnapping charge, the court was required to have made a specific factual finding, if it determined that such a finding was justified by the evidence, that the defendant in this matter must have “intended] to prevent the victim’s liberation for a longer period of time or to a greater degree than that which [was] necessary to commit the other crime.” State v. Salamon, supra, 287 Conn. 542. Although the state seeks to distinguish the present case from Sala-mon, Sanseverino and DeJesus, those cases were careful to “[reaffirm] our long-standing rule that no minimum period of restraint or degree of movement is necessary” for the crime of kidnapping. State v. Sanseverino, supra, 287 Conn. 623. Instead, “[t]he guiding principle is whether the [confinement or movement] was so much the part of another substantive crime that the substantive crime could not have been committed without such acts . . . .” (Internal quotation marks omitted.) State v. Salamon, supra, 546.

Limited by the temporal scope of our review, we cannot conclude that, as a matter of law, the defendant’s restraint of the victim prior to the sexual assault was not merely incidental to the sexual assault itself. As the court in Salamon stated, “we cannot say that the defendant’s restraint of the victim necessarily was incidental to his [sexual] assault of the victim.” Id., 549-50. Put simply, we are unable to conclude that the evidence before us does not reasonably support a finding that the defendant’s restraint of the victim was or was not so inextricably linked to the underlying crime itself. “It is axiomatic that [i]t is the function of the trial court, not [a reviewing] court, to find facts . . . .” (Citation omitted; internal quotation marks omitted.) Bluefin Mortgage Fund, LLC v. Speer, 291 Conn. 298, 305, 968 A.2d 362 (2009). Therefore, when justified by the evidence, as it is here, the factual determination mandated by Salamon must be made by the fact finder.

The state finally argues that even if a Salamon finding is warranted in the present case, failure to have made such a finding was harmless beyond a reasonable doubt. Contrary to the state’s contention, it is not clear beyond a reasonable doubt that the verdict would have been the same in the absence of the alleged impropriety. The state’s evidence was not so overwhelming that it would prevent a converse finding by the fact finder as to whether the defendant’s restraint of the victim was inherent in, or merely incidental to, the sexual assault. Again, limited by the record, we conclude that the defendant could have been convicted on the basis of conduct, which, under Salamon, does not violate the kidnapping statute. Accordingly, we reverse the defendant’s conviction of kidnapping and remand this matter to the trial court for a new trial on the kidnapping charge.

The judgment is reversed only as to the conviction of kidnapping in the first degree and the case is remanded for a new trial. The judgment is affirmed in all other respects.

In this opinion the other judges concurred.

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

       The victim testified that the building was located on Case Street. A police officer testified that the building was located somewhere on South Marshall Street.

       The victim testified that this episode lasted for “about fifteen, twenty minutes . . . .” Prom the record, it is unclear as to whether only the sexual assault lasted for that time or whether the restraint, beginning when the defendant entered the victim’s car, through the sexual assault lasted for that time.

       In the absence of an affirmative duty by the court, to inquire, “a defendant who raised no objection at trial must demonstrate that an actual conflict of interest adversely affected his lawyer’s performance” to obtain reversal of his conviction. (Internal quotation marks omitted.) State v. Cator, supra, 256 Conn. 794, citing Cuyler v. Sullivan, 446 U.S. 335, 348, 100 S. Ct. 1708, 64 L. Ed. 2d 333 (1980). “In a case of a claimed [actual] conflict of interest ... in order to establish a violation of the sixth amendment the defendant has a two-pronged task. He must establish (1) that counsel actively represented conflicting interests and (2) that an actual conflict of interest adversely affected his lawyer’s performance.” (Internal quotation marks omitted.) Phillips v. Warden, 220 Conn. 112, 133, 595 A.2d 1356 (1991).

       Cardwell addressed the court as follows: “If I, in examining my own conscience and the workings of my own mind, believed that there was any reason why I could not effectively represent [the defendant], I would have told him so and would not have chosen to go forward. I think the record should be clear, also, that I am continuing to practice in all of the United States federal courts, as well as in the state courts, and while, of course, my own situation is such that I have to give that time, frankly, it has not in any [way] affected my ability to adequately represent clients to the best of my ability, and I think the record should also be clear that not only did I inform [the defendant] of the facts of my situation, but I went over the case in real detail with him so that he would have a basis to form an assessment as to whether he wished me to continue to represent him. So, I believe that he has been fully informed, and based on our relationship, which goes back to 1994,1 am satisfied that his decision to keep me as his lawyer is one that he is making with knowledge and voluntary.”

       In his reply brief, the defendant acknowledges that “[h]ad there been no actual or potential conflict of interest, the court’s canvass would have been adequate.”

       The defendant failed to file a timely appeal from the judgment of conviction. In 2007, the defendant filed a habeas petition, which he withdrew as a result of an agreement pursuant to which his right to appeal from the judgment of conviction was restored.

       In Salamon, the court explained that on the basis of the facts before it, “a juror reasonably could find that the defendant’s restraint of the victim was not merely incidental to his assault of the victim. The victim testified that the defendant, after accosting her, forcibly held her down for five minutes or more. Although the defendant punched the victim once and shoved his fingers into her mouth, that conduct was very brief in contrast to the extended duration of the defendant’s restraint of the victim. In light of the evidence, moreover, a juror reasonably could find that the defendant pulled the victim to the ground primarily for the purpose of restraining her, and that he struck her and put his fingers in her mouth in an effort to subdue her and to prevent her from screaming for help so that she could not escape. In such circumstances, we cannot say that the defendant’s restraint of the victim necessarily was incidental to his assault of the victim. Whether the defendant’s conduct constituted a kidnapping, therefore, is a factual question for determination by a properly instructed jury.” State v. Salamon, supra, 287 Conn. 549-50.

       In DeJesus, the defendant sexually assaulted the victim on multiple occasions. State v. DeJesus, supra, 288 Conn. 422. In each instance, the defendant, a customer service manager at a supermarket, instructed the victim, an employee at the supermarket, to wait for him in a room. Id., 422-23. When the defendant later entered the room, he sexually assaulted the victim. Id. In one instance, the defendant forced the victim to perform oral sex on him. Id., 422-24. In another instance, the defendant removed the victim’s clothes and forcibly engaged in penile-vaginal intercourse. Id., 423-24.

       A Salamon finding is one that, when reasonably supported by the evidence, the restraint was or was not merely incidental to some other, separate crime. See State v. Salamon, supra, 287 Conn. 549-50.

       The state raised this claim for the first time at oral argument.


source: Caselaw Access Project

author: BORDEN, J.

license: Public Domain

text:
    FAIRCHILD HEIGHTS, INC. v. NANCY DICKAL ET AL.
    (AC 29854)
    Gruendel, Alvord and Borden, Js.

      Argued September 10
    officially released December 1, 2009

      Abram Heisler, for the appellants (defendants).

      Thomas T. Lonardo, for the appellee (plaintiff).
   Opinion

BORDEN, J.

In this summary process action involving a mobile manufactured home site, the defendants, Nancy Dickal, Alan Dickal and Lisa Dickal, appeal from the trial court’s judgment of possession in favor of the plaintiff, Fairchild Heights, Inc. The defendants claim that the court improperly: (1) found that certain rules and regulations concerning motor vehicle parking were applied in a manner fair to all of the mobile home park residents; (2) concluded that the defendants failed to establish a presumption of retaliatory eviction pursuant to General Statutes § 21-80a and that they were therefore sheltered against a summary process action; and (3) declined to apply the defendants’ equitable defense of relief from forfeiture. We affirm the judgment of the trial court.

The following facts and procedural history are relevant to the defendants’ appeal. The plaintiff is the owner of a mobile manufactured home park consisting of roughly 103 mobile home sites. The defendants are the longtime owners and occupants of a mobile manufactured home located in the plaintiffs park. On or about December 3, 2003, the plaintiff and the defendants executed a one year lease agreement set to commence on January 1, 2004, in connection with this mobile home site. This was the last formally executed lease between the parties. The terms of this lease, however, remained effective throughout the duration of the defendants’ residency at the mobile home park.

The lease agreement expressly stated that the monthly charge for parking excess motor vehicles on the defendants’ mobile home site was $30 per vehicle. Additionally, the mobile home park rules and regulations, which were appended to and expressly incorporated into the lease by reference, set a limit of two motor vehicles per site without subjecting the resident to the additional vehicle parking fees.

The record reveals that from the outset of when the lease went into effect, the defendants parked more than two motor vehicles on their mobile home site in violation of the terms and conditions as expressed in the lease. At trial, Nancy Dickal conceded that at the beginning of 2004, three vehicles were parked on her mobile home site. She further testified that in October, 2004, her family began regularly parking four vehicles on the site.

The plaintiff sent the defendants several bills seeking payment for their parking more than two motor vehicles on the mobile home site. These additional parking fees, however, were never paid by the defendants. Nevertheless, Nancy Dickal testified that for the duration of their residency at the mobile home park, her family parked four motor vehicles on their site.

Consequently, in early 2005, the plaintiff commenced its first summary process proceeding against the defendants on the basis of their aforementioned parking violations. This action eventually was withdrawn by the plaintiff in an attempt to resolve the ongoing parking issues through informal means.

The quarrel between the plaintiff and the defendants was not entirely centered on motor vehicle parking rules and regulations. In February, 2005, about the same time as the plaintiffs first summary process action, Nancy Dickal assisted in organizing a residents association on behalf of the individuals residing in the plaintiffs mobile home park. Shortly thereafter, Nancy Dickal was elected as president of the association. A little more than one year later, in or about July, 2006, the residents association brought an action against the plaintiff concerning a number of alleged housing and maintenance violations in the mobile home park. Additionally, on or about March 13, 2007, the association, through its legal representatives, filed a complaint with the department of consumer protection regarding allegedly illegal lease provisions contained within rental agreements entered into by residents of the mobile home park.

In the midst of this dispute, on August 3, 2007, the plaintiff served the defendants with a formal written notice indicating that the defendants were in breach of their rental agreement. Specifically, the notification stated that the defendants were in violation of the mobile home park rules and regulations appended to their 2004 lease regarding motor vehicle parking. The warning gave the defendants thirty days to remedy their alleged violation. The defendants took no remedial action, and on September 8, 2007, the plaintiff served them with a notice to quit possession of the premises by November 19, 2007.

On December 7, 2007, the plaintiff commenced this summary process action against the defendants. The complaint, mirroring the initial formal notification and subsequent notice to quit, alleged that the defendants had failed to comply with the park rules and regulations by parking more than two motor vehicles at their site. The defendants answered the complaint by raising numerous special defenses. The defendants claimed, inter alia, that (1) the mobile home park rules and regulations regarding motor vehicle parking were not applied fairly to all residents as required by General Statutes § 21-70 (d), (2) the summary process action was brought by the plaintiff in retaliation for the lawsuit and department of consumer protection complaints lodged by the residents association and was, therefore, barred by § 21-80a and (3) the eviction of the defendants, under the circumstances, amounted to an inequitable forfeiture of the premises.

The court concluded that all three of those special defenses lacked merit. In its memorandum of decision, the court found that the rules and regulations concerning motor vehicle parking were uniformly applied to the park residents. The court, in support of this finding, referred to evidence of similar eviction proceedings the plaintiff had brought against other park residents who also neglected to make payments in connection with excess motor vehicle parking. The court also concluded that the plaintiffs summary process proceeding was not within the purview of § 21-80a because the underlying action was not tainted by a retaliatory motive. The plaintiffs action, rather, was “essentially a continuing effort by the plaintiff to enforce the rules and regulations and resolve a problem that arose long before any of [Nancy] Dickai’s involvement in lawsuits against the plaintiff or her other activities.” Finally, the court concluded that the defendants’ “ ‘extraordinary’ ” inequitable forfeiture defense did not apply in these circumstances. Accordingly, the court rendered judgment for possession in favor of the plaintiff. This appeal followed.

I

The defendants first claim that the court improperly found that the residents of the mobile home park were subjected to the park rules and regulations concerning motor vehicle parking in a fair manner as required by § 21-70 (d) (3). These rules, they claim, were therefore unenforceable and could not form the basis of a summary process action pursuant to § 21-80 (b) (1) (C). We disagree.

The court’s finding that the plaintiff evenhandedly applied the park rules and regulations concerning resident parking is a finding of fact subject to the clearly erroneous standard of review. “The law governing [our] limited appellate review is clear. 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. . . . Because it is the trial court’s function to weigh the evidence and determine credibility, we give great deference to its findings. ... In reviewing factual findings, [w]e do not examine the record to determine whether the [court] could have reached a conclusion other than the one reached. . . . Instead, we make every reasonable presumption ... in favor of the trial court’s ruling.” (Internal quotation marks omitted.) Stevenson Lumber Co.-Suffield, Inc. v. Chase Associates, Inc., 284 Conn. 205, 216-17, 932 A.2d 401 (2007).

The defendants challenge the court’s finding as to the fair application of the motor vehicle parking rules and regulations on the basis of certain testimony presented at trial. In particular, the defendants direct our attention to the testimony of other park residents who stated that they each had more than two vehicles parked on their mobile home site but were never the subject of any summary process actions initiated by the plaintiff.

A thorough review of the record, however, also reveals ample evidence supporting the plaintiffs fair and even application of the motor vehicle parking rules as to other park residents. Specifically, the record reflects that, in addition to the original summary process action commenced against the defendants in 2005, the plaintiff also brought summary process actions against two other park residents on the basis of similar motor vehicle parking violations. The court’s finding as to the fair application of the parking rules and regulations to the mobile park residents was amply supported by the evidence and, therefore, was not clearly erroneous. Accordingly, this claim fails.

II

We next address the defendants’ claim that the plaintiffs summary process action was retaliatory and consequently in violation of § 21-80a. Specifically, the defendants claim that the court improperly concluded that they failed to establish a presumption of retaliation pursuant to § 21-80a (a). The defendants claim, therefore, that the court’s judgment of possession in favor of the plaintiff was in contravention of the rule enunciated in Correa v. Ward, 91 Conn. App. 142, 147, 881 A.2d 393 (2005) (only means available to rebut presumption of retaliation are those eviction grounds expressly excepted by retaliatoiy action statute), as the plaintiffs ground for eviction was not enumerated in § 21-80a (b). We disagree.

Section 21-80a (a) prohibits owners of manufactured mobile home parks from maintaining an action for possession of a mobile home lot against a park resident within six months of that resident’s undertaking certain protected actions listed in the statute. If a possession action is so initiated by an owner within this protected time frame, a rebuttable presumption of retaliatory eviction arises. Wilson v. Jefferson, 98 Conn. App. 147, 154, 908 A.2d 13 (2006). Furthermore, under Correa, the exclusive manner in which an owner may rebut this presumption is by demonstrating that the summary process proceeding was commenced pursuant to one of the protected grounds for bringing a possession action listed in § 21-80a (b). Correa v. Ward, supra, 91 Conn. App. 147.

The defendants claim that several of the complaints initiated by the residents association, of which Nancy Dickal was president and which she helped to organize, placed the defendants within the protection of § 21-80a (a). Specifically, they claim that the pending lawsuit filed against the plaintiff by the association in July, 2006, and the complaints filed by the association’s legal representatives with the department of consumer protection on March 13, 2007, were protected actions that came within six months of the plaintiffs maintaining a possession proceeding against the defendants. Thus, the defendants claim that the present summary process action was subject to a rebuttable presumption of retaliation that the plaintiff could not successfully rebut under § 21-80a (b).

Even if we assume arguendo that the defendants can establish a presumption of retaliatory action under § 21-80a (a) because the action was brought within the statutorily protected six month time period, § 21-80a (b) (1) expressly recognizes that an owner may maintain an action for possession, notwithstanding § 21-80a (a), if “[t]he resident is using the dwelling unit or the premises for an illegal purpose or for a purpose which is in violation of the rental agreement or for nonpayment of rent . . . .” (Emphasis added.) General Statutes § 21-80a (b) (1). The defendants claim that the language “for a purpose which is in violation of the rental agreement” only operates to rebut a presumption of retaliation in the situation in which the dwelling unit or premises itself, as a whole, is being used in a manner that violates the rental agreement, e.g., for a commercial rather than a residential purpose. We conclude, to the contrary, that this statutory language — “for a purpose which is in violation of the rental agreement” — encompasses the situation, as in the present case, in which the resident’s conduct is in violation of a material provision of the rental agreement, namely, parking more than the permitted number of vehicles on the premises without paying for the right to do so.

The defendants’ claim raises a question of statutory construction, which is a question of law, “over which we exercise plenary review. . . . The process of statutory interpretation involves the determination of the meaning of the statutory language as applied to the facts of the case, including the question of whether the language does so apply. . . .

“When construing a statute, [o]ur fundamental objective is to ascertain and give effect to the apparent intent of the legislature. ... In other words, we seek to determine, in a reasoned manner, the meaning of the statutory language as applied to the facts of [the] case, including the question of whether the language actually does apply. ... In seeking to determine that meaning, General Statutes § l-2z directs us first to consider the text of the statute itself and its relationship to other statutes. If, after examining such text and considering such relationship, the meaning of such text is plain and unambiguous and does not yield absurd or unworkable results, extratextual evidence of the meaning of the statute shall not be considered. . . . The test to determine ambiguity is whether the statute, when read in context, is susceptible to more than one reasonable interpretation.” (Internal quotation marks omitted.) Fairchild Heights, Inc. v. Amaro, 293 Conn. 1, 8-9, 976 A.2d 668 (2009).

We begin our statutory analysis by examining the relevant language of § 21-80a (b) (1) to determine whether it is plain and unambiguous. The question in this case is whether § 21-80a (b) (1) is only applicable when the entire rental site is being used “for a purpose which is in violation of the rental agreement,” or whether the section applies in a broader sense to situations in which the resident’s conduct violates a material term or condition of the agreement. Because both readings of the statute are plausible, we conclude that the statutory language is ambiguous in this case. See Commission on Human Rights & Opportunities v. Litchfield Housing Authority, 117 Conn. App. 30, 45, 978 A.2d 136 (2009) (statute sufficiently ambiguous if text susceptible to more than one plausible meaning). We are not barred, therefore, by § l-2z from consulting extratextual sources to determine the meaning of the statutory language at issue.

We turn, first, nonetheless, to the language of the statute. The preceding phrase in § 21-80 (b) (1), which refers to a situation in which the resident is using the premises “for an illegal purpose,” encompasses the situation in which the use of the property, although not specifically barred by the rental agreement, is nonetheless illegal. An example of this would be when the resident uses the property to distribute illegal drugs. This is in contrast to the following phrase, “for a purpose which is in violation of the rental agreement,” which linguistically focuses on situations in which the use is legal but nonetheless violates the rental agreement in some way. It does not, however, give any linguistic clue as to the scope of the requisite violation of the rental agreement.

We next turn, therefore, to an analysis of the relevant extratextual sources to determine the scope of § 21-80a (b) (1). Although the legislative history of § 21-80a (b) (1) is barren of any indication as to the intended meaning of this specific phrase, the history of the Landlord Tenant Act (act), General Statutes § 47a-l et seq., illuminates the meaning of the mobile manufactured home site provisions at issue in the present case. As we have indicated; see footnote 7 of this opinion; the two statutes are essentially in pari materia.

The legislative history of the act demonstrates that the purpose of the act, as a whole, was intended to provide just and adequate protection to both tenants and landlords. Senator Lawrence J. DeNardis, for example, remarked that the legislation “embodies ... a number of good trade-offs between landlords and tenants with respect to their mutual rights and obligations . . . .” 19 S. Proc., Pt. 2, 1976 Sess., p. 818. Senator David H. Neiditz echoed Senator DeNardis’ comments, stating that the act is “a well balanced piece of Legislation between landlord and tenants . . . [that] gives us the opportunity to have . . . fairer and better landlord tenant relations.” Id., p. 817. In Alteri v. Layton, 35 Conn. Sup. 261, 267, 408 A.2d 18 (1979), the trial court examined the statutory defense of retaliatory eviction in a summary process action similar to the one before us and concluded that “[t]o enforce properly the statute in a meaningful manner requires a balancing of the interests of both landlord and tenant ... by fairly protect[ing] the landlord from harassment and . . . protecting] the tenant who seeks repairs of a substantial nature.” We conclude that this broad purpose of balancing the interests of landlords and tenants applies equally to the statutory scheme governing mobile manufactured home site owners and mobile home residents who rent such home sites. This purpose, applied to the facts of this case, strongly supports the conclusion that the statutory language at issue encompasses more than the use of the property for an overall purpose that is in violation of the rental agreement, as the defendants urge, but also encompasses the situation here, in which the resident’s conduct is in violation of a material provision of the rental agreement. This is because the interpretation that we have chosen is consistent with such a balance, whereas the interpretation urged by the defendants would be inconsistent with such a balance and would tilt it unfairly in favor of the resident.

Mindful of balancing the respective rights between owners and renters, we cannot agree with the exceedingly narrow construction of § 21-80a (b) (1) propounded by the defendants. Were we to conclude otherwise, we could encourage a situation in which a resident could lodge a complaint against an owner, albeit in good faith, continue to pay rent as required by § 21-80a (b) (1), and neglect virtually any and all other provisions in the lease agreement for the statutorily protected six month time period, as long as the resident does not use the mobile home unit itself or the unit premises for an overall purpose that violates the rental agreement, such as using residential property for a commercial purpose. In the present case, the defendants’ lease agreement contained many terms and conditions that not only furthered the interests of the plaintiff and the defendants, but also the neighboring residents in the mobile home park. In addition to the terms relating to excess motor vehicle parking expenses, the defendants’ lease agreement assessed reasonable fees for improperly disposed of waste, additional occupants, pets and dishwashers or washing machines, all of which could potentially be avoided under a narrow reading of § 21-80a (b) (1).

Moreover, many of the rules incorporated into the lease agreement addressed the defendants’ responsibilities as to their upkeep of property aesthetics, along with limitations on guest frequency and general noise levels emitting from their premises. It is certainly conceivable that everyday violations of these rules could disrupt the peaceable enjoyment of neighboring park residents. The defendants’ proposed interpretation of § 21-80a (b) (1), however, would leave an owner with no power to evict the troublesome residents for upward of six months. Meanwhile, the disruptive tenants would be essentially free to violate any covenants contained within the lease agreement and avoid eviction as long as their rent payment was current. Such a scenario would transform a statute that was “intended as a shield for the benefit of tenants . . . into a sword to deprive landlords of their property.” Visco v. Cody, 16 Conn. App. 444, 453, 547 A.2d 935 (1988); see also Wilson v. Jefferson, supra, 98 Conn. App. 155 (language of retaliatory eviction statutes serves as shield for tenants, rather than sword).

Although we recognize that “[c]ourts must interpret statutes as they are written ... we are also bound by our duty to avoid a consequence which fails to attain a rational and sensible result which bears most directly on the object which the legislature sought to obtain.” (Citations omitted; internal quotation marks omitted.) Visco v. Cody, supra, 16 Conn. App. 447-48. We conclude that an overly literal and excessively narrow reading of § 21-80a (b) (1) would yield just such an irrational result, as it could seriously limit an owner’s ability to care for his property, as well as emasculate the duty to protect the quiet enjoyment of other tenants. We cannot assume that this was the intent of the legislature, as such a construction tends to disturb “the delicate balance of the rights of tenants and landlords.” Id., 453. Accordingly, the court’s conclusion that the plaintiffs summary process action was not barred by § 21-80a (a) was proper because the action was permissible under § 21-80a (b) (1).

Ill

Finally, the defendants claim that the court improperly concluded that the doctrine of equitable forfeiture was not an applicable special defense in this case. We disagree.

It is well settled that equitable defenses such as relief from forfeiture are available to residents in summary process proceedings. Fellows v. Martin, 217 Conn. 57, 61-62, 584 A.2d 458 (1991). The defendants argue that the court should have applied the defense of equitable relief from forfeiture in this case on the premise that, having lived in their mobile home at the plaintiffs park for more than thirty years, the defendants would lose a substantial investment if forced to remove the mobile home and to relocate to a new park. This process would be particularly inequitable, according to the defendants, on the basis of their limited income and difficulty finding a suitable vacancy in a nearby mobile home park.

The defendants, however, fail to recognize that “[a] court of equity will apply the doctrine of clean hands to a tenant seeking such equitable relief . . . .’’Id., 67. The clean hands doctrine “expresses the principle that where a plaintiff seeks equitable relief, he must show that his conduct has been fair, equitable and honest as to the particular controversy in issue.” Emigrant Mortgage Corp. v. D’Agostino, 94 Conn. App. 793, 804, 896 A.2d 814, cert. denied, 278 Conn. 919, 901 A.2d 43 (2006). Therefore, “a tenant whose breach was ‘willful’ or ‘grossly negligent’ will not be entitled to [equitable] relief.” Fellows v. Martin, supra, 217 Conn. 67; see also Cumberland Farms, Inc. v. Dairy Mart, Inc., 225 Conn. 771, 778, 627 A.2d 386 (1993) (“[w]illful or gross negligence in failing to fulfill a condition precedent of a lease bars the application of the doctrine of equitable nonforfeiture”).

In the present case, the court characterized the defendants’ violation of their lease agreement as “wilful,” finding that “despite many attempts over several years by the plaintiff to obtain the defendants’ compliance with established rules, the defendants persisted in their refusal to comply but nonetheless continued to remain as tenants of the plaintiff.” We are reluctant to interfere with a court’s exercise of equitable discretion and will ordinarily only reverse “where we find that atrial court acting as a court of equity could not reasonably have concluded as it did . . . .” (Citations omitted.) Fellows v. Martin, supra, 217 Conn. 68. We conclude, therefore, that the court reasonably could have found that the defendants’ breach was wilful and consequently that equitable relief of nonforfeiture was not appropriate. The defendants were cognizant of the fact that they were in breach of their lease agreement, as evidenced by their receipt and nonpayment of billing charges in connection with parking more than two vehicles on their site, along with their involvement in a prior summary process action grounded on the same behavior. The defendants nevertheless refused to comply with the mobile home park rules and regulations with regard to motor vehicle parking for almost four years.

The judgment is affirmed.

In this opinion the other judges concurred.

       Paragraph twelve of the lease agreement addressed the issue of a holdover tenancy and sets forth in relevant part: “In the event that the Resident shall at any time hold over the premises beyond the original term of the lease, such holding over shall be on all the same terms and conditions contained in this lease . . . .”

       At the time of the present summary process action, the residents association’s lawsuit was pending in the trial court.

       General Statutes § 21-70 (d) provides in relevant part: “An owner [of a mobile manufactured home park], from time to time, may adopt a rule or regulation, however described, concerning the resident’s use and occupancy of the premises. Such rule or regulation shall be enforceable against the resident only if ... (3) such rule or regulation applies to all residents on the premises in a fair manner, provided reasonable exemptions may be made for good cause . . . .”

       General Statutes § 21-80 (b) (1) provides in relevant part: “[A]n owner may terminate a rental agreement or maintain a summary process action against a resident who owns a mobile manufactured home only for one or more of the following reasons . . . (C) Material noncompliance by the resident with the rental agreement or with rules or regulations adopted under section 21-70 . . . .”

       Jeffrey Doolan, the plaintiffs president, testified that many of the residents who were parking more than two vehicles on their sites at the time of this action were properly doing so pursuant to a “grandfathering rule” that the plaintiff adopted in 2007. This rule permitted residents, who were current in their payments for parking more than two motor vehicles as of the end of 2006, to continue parking a third vehicle throughout 2007 at no additional charge. The defendants claim that this “grandfathering ride” was invalid because it was not in writing as required by § 21-70 (d) (5) and was not filed with the department of consumer protection as required by § 21-70 (e).
      Although the record is vague as to whether this “grandfathering rule” did or did not comply with the requirements set forth in § 21-70, the rule’s validity is of no consequence. The defendants do not claim to have even a remote connection to this “grandfathering rule,” having not been current with their motor vehicle parking payments as of the end of 2006. As such, we cannot decipher how the alleged invalidity of this rule as to residents of the mobile home park, other than the defendants, has any relevance to this appeal.

       General Statutes § 21-80a (a) provides in relevant part: “An owner shall not maintain an action or proceeding against a resident to recover possession of a dwelling unit or a mobile manufactured home space or lot . . . within six months after: (1) The resident has in good faith attempted to remedy by any lawful means, including contacting officials of the state or of any town, city or borough or public agency or filing a complaint with a fair rent commission, any condition constituting a violation of any provision of this chapter or chapter 368o or of any other state statute or regulation, or of the housing and health ordinances of the municipality wherein the premises which are the subject of the complaint lie; (2) any municipal agency or official has filed a notice, complaint or order regarding such a violation; (3) the resident has in good faith requested the owner to malee repairs; (4) the resident has in good faith instituted an action under subsections (a) to (i), inclusive, of section 47a-14h; or (5) the resident has organized or become a member of a residents’ association.”

       The overwhelming majority of Connecticut cases concerning retaliatory eviction have been brought pursuant to General Statutes § 47a-20, which addresses the landlord-tenant relationship, as opposed to the mobile home owner-mobile home occupant situation presented before us. See, e.g., Correa v. Ward, supra, 91 Conn. App. 145; Visco v. Cody, 16 Conn. App. 444, 446, 547 A.2d 935 (1988); Groton Townhouse Apartments v. Covington, 38 Conn. Sup. 370, 372, 448 A.2d 221 (App. Sess. 1982).
      Section 47a-20, however, is essentially analogous in wording and purpose to § 21-80a. Therefore, the analysis used to interpret § 47a-20 as creating a rebuttable presumption of retaliation may be used to construe § 21-80a as having the same effect. See also 34 H.R. Proc., Pt. 22, 1991 Sess., p. 8512, remarks of Representative Douglas C. Mintz (to resolve certain ambiguities between the relationship of the landlord-tenant act and the mobile home park act, “we take the applicable part of the [landlord-tenant] act and write them directly into the mobile home park act”).

       General Statutes § 21-80a (b) provides: “Notwithstanding the provisions of subsection (a) of this section, if permitted by subdivision (1) of subsection (b) of section 21-80, the owner may maintain an action to recover possession of the premises if: (1) The resident is using the dwelling unit or the premises for an illegal purpose or for a purpose which is in violation of the rental agreement or for nonpayment of rent; (2) the condition complained of was caused by the wilful actions of the resident or another person in his household or a person on the premises with his consent; or (3) the owner seeks to recover possession pursuant to section 21-80 on the basis of a notice which was given to the resident before the resident’s complaint.”

       See footnote 2 of this opinion.

       The two car per residence limitation on motor vehicle parking, for example, was adopted by the plaintiff for the purpose of benefiting the entire mobile home park community. According to Jeffrey Doolan, the plaintiffs president, the rule was enacted to ensure that the plaintiff could properly maintain the roads in the park, particularly during times when snow removal was necessary. The defendants’ continued violation of this rule, therefore, was to some extent detrimental to all of their neighboring residents.

       General Statutes § 21-82 (b) provides in relevant part: “At all times during the tenancy the [mobile home] resident shall ... (8) [c]onduct himself and require other persons on the premises with his consent to conduct themselves in a manner that will not disturb his neighbors' peaceful epjoyment of the premises . . . .”

       “[U]nder landlord-tenant law, [it is] the right of a tenant to enforce a covenant of quiet enjoyment .... The covenant assures that the lessee shall have legal quiet and peaceable possession and enjoyment of the leased premises .... [It] is the obligation of the landlord to protect his tenant relative to the tenant’s right to quiet and peaceful possession . . . .” (Citations omitted; internal quotation marks omitted.) Sullivan v. Nameaug Walk-

        in Medical Center, P.C., 35 Conn. App. 185, 190, 644 A.2d 398 (1994), appeal dismissed, 233 Conn. 213, 657 A.2d 639 (1995).