author: DiPENTIMA, J.

text:
    PETER ANDERSON ET AL. v. ANDRE POIRIER ET AL.
    (AC 30842)
    Flynn, C. J., and DiPentima and Sullivan, Js.

    Argued February 16
    officially released June 15, 2010

      Gerald L. Garlick, with whom, on the brief, was Katherine E. Abel, for the appellants (defendants).

      Mark T. Kelly, for the appellees (plaintiffs).

       The listing of judges reflects their seniority status on this court as of the date of oral argument.

   Opinion

DiPENTIMA, J.

The defendants, Andre Poirier and Debra Poirier, appeal from the judgment of the trial court rendered in favor of the plaintiffs, Peter Anderson and Linda Anderson, on their claim to title by adverse possession of certain real property. On appeal, the defendants claim that the court improperly (1) admitted into evidence a survey that was prepared by a surveyor who did not testify and who was not disclosed as an expert witness, (2) determined that the plaintiffs had sustained their burden of proving all of the elements of adverse possession by clear and convincing evidence and (3) determined that the plaintiffs had sustained their burden of proving the dimensions and extent of the disputed property. For the reasons we will set forth, we affirm the judgment of the trial court.

The following facts and procedural history are relevant to the disposition of the defendants’ appeal. The plaintiffs purchased 263 Linden Avenue in Branford on August 16, 1984, from the mother of Peter Anderson. The defendants purchased 259 Linden Avenue, the property adjacent to that of the plaintiffs, on March 30,2004. The subject of this dispute is a strip of land approximately two and one-half feet wide extending the length of the approximately 110 foot boundary line between the plaintiffs’ and defendants’ properties.

After purchasing their property, the defendants obtained a survey in 2005, which indicated the boundary line was approximately two and one-half feet into the plaintiffs’ property, rather than where the parties had believed it to be. The defendants commissioned a second survey in October, 2007, which indicated the same boundary line as the 2005 survey, but also depicted the plaintiffs’ boundary features. The boundary line, as indicated on the defendants’ surveys, runs through a portion of the plaintiffs’ parking area, side yard and patio, and onto a portion of their boat dock. Following the discovery of the new boundary line, the defendants planted shrubs on the disputed strip of land.

On November 14,2007, the plaintiffs filed a two count complaint, alleging adverse possession and trespass in the first count, and nuisance in the second. Following a one day trial, the court issued a memorandum of decision in which it found that the plaintiffs had established each element of adverse possession of the disputed strip of land by clear and convincing evidence. The court therefore rendered judgment in favor of the plaintiffs. This appeal followed.

The defendants first claim that the court improperly admitted into evidence a survey that was prepared for the plaintiffs by a surveyor who did not testify at trial and who had not been disclosed as an expert witness. In October, 2007, the plaintiffs had obtained a survey of their property, which indicated the same boundary line as the defendants’ surveys, but also showed the “line of occupation of land of Anderson at the boundary of the land of [Poirier].” This survey was admitted into evidence over the defendants’ objection. We conclude that even if the court improperly had admitted the survey into evidence, the defendants have not shown that substantial prejudice or injustice resulted from such admission.

“The trial court’s ruling on the admissibility of evidence is entitled to great deference. . . . [T]he trial court has broad discretion in ruling on the admissibility ... of evidence . . . [and its] ruling on evidentiary matters will be overturned only upon a showing of a clear abuse of the court’s discretion. . . . We will make every reasonable presumption in favor of upholding the trial court’s ruling, and only upset it for a manifest abuse of discretion. . . . Moreover, evidentiary rulings will be overturned on appeal only where there was an abuse of discretion and a showing by the defendant of substantial prejudice or injustice.” (Internal quotation marks omitted.) Jacobs v. General Electric Co., 275 Conn. 395, 406, 880 A.2d 151 (2005). Additionally, even when an evidentiary ruling is improper, “the defendant bears the burden of demonstrating that the error was harmful. . . . One factor to be considered in determining whether an improper ruling on evidence is a harmless error is whether the [evidence] was cumulative . . . .” (Internal quotation marks omitted.) In re Galen F., 54 Conn. App. 590, 601, 737 A.2d 499 (1999).

The defendants claim that the only evidence as to the location and extent of the property being claimed by the plaintiffs was the plaintiffs’ 2007 survey. On the contrary, the information contained in the plaintiffs’ survey, namely, the “line of occupation,” was cumulative of the overall evidence presented at the trial. The record contains testimony by Peter Anderson regarding his use of the disputed strip of land, numerous photographs and both of the defendants’ surveys. Even if the plaintiffs’ survey was admitted improperly, it was merely cumulative of other evidence, and, therefore, its admission was harmless.

The defendants further claim that the court improperly concluded that the plaintiffs met their burden of proof with regard to all of the elements of the adverse possession claim. Particularly, the defendants contend that the plaintiffs did not sustain their burden of proof regarding the “open” or “notorious” elements of adverse possession and that the plaintiffs failed to prove the extent of the property allegedly possessed. We disagree.

The “essential elements of adverse possession are that the owner shall be ousted from possession and kept out uninterruptedly for fifteen years under a claim of right by an open, visible and exclusive possession of the claimant without license or consent of the owner. . . . Adverse possession must be proven by the claimant ... by clear and convincing evidence.” (Internal quotation marks omitted.) Roberson v. Aubin, 120 Conn. App. 72, 74, 990 A.2d 1239 (2010); see also General Statutes § 52-575.

“Despite [this] exacting standard, our scope of review is limited. . . . Because adverse possession is a question of fact for the trier . . . the court’s findings as to this claim are binding upon this court unless they are clearly erroneous in light of the evidence and the pleadings in the record as a whole. . . . We cannot retry the facts or pass on the credibility of the witnesses. . . . 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 . . . .” (Citation omitted; internal quotation marks omitted.) Mulle v. McCauley, 102 Conn. App. 803, 809, 927 A.2d 921, cert. denied, 284 Conn. 907, 931 A.2d 265 (2007).

The defendants claim that the plaintiffs did not sustain their burden with regard to the requirement of an open and notorious use of the disputed strip of land. In support of this claim, the defendants contend not only that the only evidence of the plaintiffs’ use of the grassy area in the backyard was that they mowed their grass to a lower height than the grass in the defendants’ adjoining yard, but also that mowing alone was not an activity sufficient to establish open or notorious use of the property. We are not persuaded.

“The legal significance of the open and visible element [of adverse possession] is not ... an inquiry as to whether a record owner subjectively possessed an understanding that a claimant was attempting to claim the owner’s property as his own. Rather, the open and visible element requires a fact finder to examine the extent and visibility of the claimant’s use of the record owner’s property so as to determine whether a reasonable owner would believe that the claimant was using that property as his or her own.” Schlichting v. Cotter, 109 Conn. App. 361, 368, 952 A.2d 73, cert. denied, 289 Conn. 944, 959 A.2d 1009 (2008). “In general, exclusive possession can be established by acts, which at the time, considering the state of the land, comport with ownership; viz., such acts as would ordinarily be exercised by an owner in appropriating the land to his own use and the exclusion of others. . . . Thus, the claimant’s possession . . . need only be a type of possession which would characterize an owner’s use. ... It is sufficient if the acts of ownership are of such a character as to openly and publicly indicate an assumed control or use such as is consistent with the character of the premises in question.” (Citations omitted; internal quotation marks omitted.) Roche v. Fairfield, 186 Conn. 490, 502-503, 442 A.2d 911 (1982).

At trial, the plaintiffs clearly demonstrated their open and notorious use of the claimed property. They did not present evidence solely as to their mowing of the property. Rather, the plaintiffs presented both pictorial and testimonial evidence that they conducted various activities on the disputed strip of land throughout the statutory period consistent with the residential nature of the area, namely, construction, maintenance and use of a driveway, sidewalk, gardens, front and back lawns, and a dock. The record supports the court’s conclusion that the evidence as to the plaintiffs’ activities demonstrated sufficient open and notorious possession to establish the plaintiffs’ adverse possession claim.

Finally, the defendants contend that the plaintiffs offered no evidence other than the disputed survey depicting the “line of occupation” by which the court could have determined the extent of the claimed properly. We disagree.

“When not claimed under color of title, adverse possession is limited to the area of land actually possessed. ... It can only extend as far as [the] claimant has actually occupied and possessed the land in dispute . . . .” (Citation omitted; internal quotation marks omitted.) Durkin Village Plainville, LLC v. Cunningham, 97 Conn. App. 640, 654, 905 A.2d 1256 (2006). Contrary to the defendants’ contention, however, the record shows that the plaintiffs sufficiently demonstrated the extent of the property they possessed. Peter Anderson repeatedly testified that the boundary and the use of the claimed property ran in a straight line from the right side of his driveway, starting at the street, through the midsection of the trees between the plaintiffs’ and the defendants’ houses, and continuing in a straight line through the lawn to the right side of the dock at the rear of the property. Furthermore, the plaintiffs presented numerous photographs depicting the use of the area described by Peter Anderson during his testimony. Accordingly, even without the “line of occupation” indicated on the plaintiffs’ survey, the record contains sufficient evidence from which the court could have determined that the extent of the plaintiffs’ use of the property consisted of a straight line from the outside edge of the driveway to the outside edge of the dock.

The judgment is affirmed.

In this opinion the other judges concurred.

       The court determined that the plaintiffs did not sustain their burden as to their claims of trespass and nuisance and, therefore, denied the plaintiffs’ request for a permanent injunction. Those determinations have not been challenged on appeal.

       “[A]ny plaintiff expecting to call an expert witness at trial shall disclose the name of that expert, the subject matter on which the expert is expected to testify, the substance of the facts and opinions to which the expert is expected to testify, and a summary of the grounds for each opinion, to all other parties within a reasonable time prior to trial. . . .” Practice Book (2007) § 134 (4).

       Peter Anderson testified that the boundary line and the line of use ran in a straight line from the front of the plaintiffs’ property beginning at the edge of the parking area nearest the defendants’ property, to the trees located between the two homes and along the yard, to the edge of the dock nearest the defendants’ property in the rear of the plaintiffs’ property. Peter Anderson also testified that since 1984 he had mowed the lawn of the disputed area and had maintained the parking area, a patio located near the trees and the dock.

       The defendants further contend that the “admittedly cordial relationship that permeated the neighborhood” undermines a claim that the plaintiffs’ use was open or notorious. At trial, Andre Poirier’s testimony as to the general atmosphere of the neighborhood was limited to the period after he acquired his property in 2004. The court expressly found that the fifteen year statutory period for the plaintiffs’ adverse possession claim concluded in 1999. Accordingly, the extent of the friendliness of the neighborhood in 2004 and beyond has no bearing on whether the plaintiffs’ use of the disputed strip of land from 1984 to 1999 was sufficiently open or notorious.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    STATE OF CONNECTICUT v. ROBERT JUTRAS
    (AC 30813)
    Gruendel, Alvord and Pellegrino, Js.
    Argued April 7
    officially released June 15, 2010

      Louis S. Avitabile, for the appellant (defendant).

      Lisa A. Riggione, senior assistant state’s attorney, with whom, on the brief, were Scott J. Murphy, state’s attorney, and Kevin J. Murphy, senior assistant state’s attorney, for the appellee (state).
   Opinion

PER CURIAM.

The defendant, Robert Jutras, appeals from the trial court’s denial of his motion to dismiss the charge of criminal possession of a pistol in violation of General Statutes § 53a-217c (a) (1). We conclude that the court’s denial of the defendant’s motion is not a final judgment and dismiss his interlocutory appeal.

“It is axiomatic that appellate jurisdiction is limited to final judgments of the trial court.” State v. Crawford, 257 Conn. 769, 774, 778 A.2d 947 (2001), cert. denied, 534 U.S. 1138, 122 S. Ct. 1086, 151 L. Ed. 2d 985 (2002); see also General Statutes § 52-263. “The appealable final judgment in a criminal case is ordinarily the imposition of sentence.” (Internal quotation marks omitted.) State v. Curcio, 191 Conn. 27, 31, 463 A.2d 566 (1983). However, an exception exists for a small class of cases that are effectively unreviewable on appeal from a final judgment. State v. Crawford, supra, 775; see also State v. Curcio, supra, 31 (“[a]n otherwise interlocutory order is appealable in two circumstances: [1] where the order or action terminates a separate and distinct proceeding, or [2] where the order or action so concludes the rights of the parties that further proceedings cannot affect them”). “The paradigmatic case in this group involves the right against double jeopardy.” (Internal quotation marks omitted.) State v. Crawford, supra, 775 (“[t]he right not to be tried necessarily falls into the category of rights that can be enjoyed only if vindicated prior to trial” [internal quotation marks omitted]). The rationale for the rule permitting a criminal defendant to file an interlocutory appeal from the denial of a motion to dismiss on double jeopardy grounds emanates from double jeopardy’s protection against successive prosecution. Id., 777. “[I]n order to give meaning to the successive prosecution part of the protection against double jeopardy, we permit a defendant to file an interlocutory appeal from the denial of a motion to dismiss so long as that motion presents a colorable double jeopardy claim.” Id.; see also State v. Curcio, supra, 33-34 (“[a] presentence order will be deemed final for purposes of appeal only if it involves a claimed right the legal and practical value of which would be destroyed if it were not vindicated before trial” [internal quotation marks omitted]). The rationale for the exception is not applicable here.

The defendant was charged with robbery in the first degree in violation of General Statutes § 53a-134 (a) (4) (count one) and criminal possession of a pistol in violation of § 53a-217c (a) (1) (count two). The defendant elected a jury trial on count one and a court trial on count two. The record indicates that the defendant’s election of a court trial with respect to count two was motivated by a desire to keep evidence of his prior felony convictions from the jury. Evidence was presented simultaneously to the court and jury on January 23 and 26, 2009. On January 27, 2009, outside the presence of the jury, the state submitted evidence of the defendant’s prior felony convictions. On January 29, 2009, the jury began deliberations on count one and returned a verdict of not guilty. On January 30, 2009, the court heard closing arguments on count two, indicated that it would reserve decision until it reviewed the exhibits and proceeded without objection to the defendant’s violation of probation hearing.

On February 2, 2009, the defendant filed a motion to dismiss count two pursuant to General Statutes § 54-56. He claimed that the court was collaterally estopped from finding him guilty of criminal possession of a pistol because the jury had already returned a general not guilty verdict of robbery in the first degree. On February 4, 2009, the court denied the defendant’s motion, relying on State v. Knight, 266 Conn. 658, 835 A.2d 47 (2003) (holding collateral estoppel does not apply to the proceduraily unique situation in which several criminal charges against the same defendant have been allocated between two triers for concurrent adjudication in a single proceeding), and found the defendant guilty of criminal possession of a pistol. This interlocutory appeal followed.

The defendant claims that the court’s failure to render its decision simultaneously with the jury verdict transformed the trial into two separate proceedings, and, as a result, his interlocutory appeal presents a colorable double jeopardy claim. We disagree. Although the defendant’s claim involves the collateral estoppel branch of double jeopardy, it does not implicate the circumstances that give rise to the exception. “The exception to the rule that sentencing is the final judgment in a criminal case is applicable only where we find that a cognizable legal right to which the appellant was plausibly entitled would be lost if appellate review were delayed”; State v. Curcio, supra, 191 Conn. 34; and the defendant makes a “colorable successive prosecution double jeopardy claim.” (Emphasis in original.) State v. Crawford, supra, 257 Conn. 777. In this case, the defendant’s trial has concluded, and there is no risk that he will be subjected to a second prosecution. Consequently, he will not suffer irreparable harm if appellate review is postponed until after his sentence is imposed. We therefore conclude that the court’s denial of the defendant’s motion to dismiss is not an appealable final judgment, and this court does not have jurisdiction to entertain the defendant’s appeal.

The appeal is dismissed.

      Both charges arose from a robbery that occurred on September 22, 2005, at a Citgo gasoline station in Berlin. The robbery was recorded by a surveillance camera.

       The court also granted the state’s motion to join a hearing on violation of probation charges brought against the defendant that arose from the same incident. The court indicated that it would proceed with the violation of probation hearing after the jury began to deliberate on count one.

       The defendant argued that when the jury found him not guilty of robbery, it necessarily must have found that he was not the person in the surveillance video holding a pistol.

       On April 2, 2009, the state moved to dismiss the defendant’s appeal, arguing that the denial of the defendant’s motion was not an appealable final judgment. On June 10,2009, this court denied the state’s motion without prejudice and ordered the parties to brief the issue along with the merits of their respective claims.

       “In a criminal case, collateral estoppel is a protection included in the fifth amendment guarantee against double jeopardy. . . . Collateral estoppel means simply that when an issue of ultimate fact has once been determined by a valid and final judgment, that issue cannot again be litigated between the same parties in any future lawsuit.” (Citations omitted; internal quotation marks omitted.) State v. Knight, supra, 266 Conn. 663-64.


author: BEACH, J.

text:
    CHRISTOPHER BEDARD v. WESTON MOTORS, LLC, ET AL.
    (AC 31345)
    DiPentima, Beach and Alvord, Js.

    Argued March 9
    officially released June 15, 2010

      Jack M. Bassett, for the appellants (defendants).

      Houston Putnam Lowry, with whom was Julie A. Morgan, for the appellee (plaintiff).

       The listing of judges reflects their seniority status on this court as of the date of oral argument.

   Opinion

BEACH, J.

In this entry and detainer action, the defendants, Weston Motors, LLC, Scott Bird and Sean Her-mann, brought this appeal, challenging the trial court’s judgment in favor of the plaintiff, Christopher Bedard. The defendants argue that the court improperly found that they had violated General Statutes § 47a-43. We agree and, accordingly, reverse the judgment of the trial court.

The following facts, as found by the court, and procedural history are relevant. On February 2, 2009, the plaintiff, as sublessee, and Weston Motors, LLC, as sub-lessor through its member-manager, Bird, entered into a sublease for premises located at 110 Pent Highway in Wallingford. The premises consisted of several automobile bays and some office space. The plaintiff and Bird expected that they would both operate their separate individual businesses on the premises. Hermann, a mechanic, sometimes worked for the plaintiff and sometimes worked for Weston Motors, LLC.

On April 28, 2009, the plaintiff, Bird and Hermann engaged in a heated exchange that resulted in the plaintiff becoming extremely angry. As a result of the plaintiffs ongoing outburst and allegedly due, at least in part, to the fact that the plaintiff had at least one firearm on the premises, Bird telephoned the Wallingford police department. Bird informed the police of the situation and of his fear that the plaintiff might use a gun. When the police arrived on the scene, they arrested the plaintiff. The plaintiff subsequently was charged with breach of the peace in the second degree and threatening in the second degree.

After the plaintiff was booked and released, he returned, apparently on the same day, to the premises with a friend to retrieve some of his belongings and his dog. The plaintiff eventually was permitted to enter the premises to remove a few of his belongings and his dog. On May 7, 2009, the plaintiff appeared in court in Meriden in response to the criminal charges. The court, Gould, J., ordered the plaintiff to have no contact with Bird or Hermann, except as was necessary to litigate the action.

On May 1, 2009, the plaintiff filed a verified complaint alleging that the defendants had violated § 47a-43. In its memorandum of decision, the court, Abrams, J., found that the plaintiff possessed the premises at issue and was forcibly deprived of his right to possess the premises. Specifically, the court determined that “[t]he critical question is whether [the plaintiffs] arrest and the resulting ‘no contact’ order constitute the forcible deprivation of his right to occupy the premises. . . . Based on the totality of the circumstances, the court concludes that to find otherwise would place [the plaintiff] in a wholly untenable position. While it may technically be the order of the court rather than the acts of the defendants that serves to bar [the plaintiff] from [the] premises he rightfully occupied, it was . . . Bird’s act of contacting the police that set this chain of events in motion. As a result, the court finds that [the plaintiff] has been forcibly deprived of his right to occupy the premises.” (Citation omitted.) The court expressly stated that it made no finding as to whether Bird was justified initially in contacting the police. The court did not find that the plaintiff had proved that an entry and detainer had occurred on April 28. Rather, the court found that the plaintiffs arrest and the court’s subsequent no contact order formed the basis for an entry and detainer. As a result, the court ordered the defendants to restore the plaintiff to possession of the premises “immediately upon the lifting or modification of Judge Gould’s ‘no contact’ order.”

The defendants claim that the court improperly held them liable pursuant to § 47a-43. They argue that the removal of the plaintiff from the premises by the police and the court’s subsequent no contact order, which effectively kept him off the premises, do not constitute a proper basis for finding that the defendants had forcibly deprived the plaintiff of his right to occupy the premises.

To the extent that the defendants’ claim of error pertains to the court’s factual findings, we review those findings under the clearly erroneous standard. “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.” (Internal quotation marks omitted.) Fleming v. Bridgeport, 284 Conn. 502, 511, 935 A.2d 126 (2007). “When, however, the trial court draws conclusions of law, our review is plenary and we must decide whether its conclusions are legally and logically correct and find support in the facts that appear in the record.” (Internal quotation marks omitted.) Bristol v. Tilcon Minerals, Inc., 284 Conn. 55, 87, 931 A.2d 237 (2007).

“The process of forcible entry and detainer, provided by our statutes, is in its nature an action by which one in the possession and enjoyment of any land, tenement or dwelling unit, and who has been forcibly deprived of it, may be restored to the possession and enjoyment of that property. This process is for the purpose of restoring one to a possession which has been kept from him by force. . . . For a plaintiff to prevail, it must be shown that he was in actual possession at the time of the defendant’s entry. . . . Section 47a-43 was made to protect a person in such possession . . . from disturbance by any but lawful and orderly means.” (Citation omitted; internal quotation marks omitted.) Berlingo v. Sterling Ocean House, Inc., 203 Conn. 103, 108, 523 A.2d 888 (1987).

In Fleming v. Bridgeport, supra, 284 Conn. 502, the plaintiff daughter of the tenant brought an action, pursuant to § 47a-43, against, inter alios, the Dixons, who leased a second floor apartment of their multifamily house to her father. The daughter, who was living in the apartment with her father, had caused disturbances during the time she stayed at the apartment. On one such occasion, the Dixons telephoned the police and complained of scuffling, yelling, screaming and swearing by the daughter in the second floor apartment. She was removed from the premises by the police. The trial court concluded that she had not established a violation of § 47a-43 by the Dixons. The Supreme Court concluded that despite her actual possession and subsequent removal, the record supported the conclusion that the Dixons did not violate the statute. Id., 514. The court noted that “Susie Dixon testified, and the trial court found the testimony credible, that she had telephoned the police because there were sounds of scuffling, screaming and swearing coming from the apartment and that she had wanted the [daughter] removed because of that disturbance. . . . There is no evidence in the record to demonstrate that Susie Dixon’s claim of disturbance was a pretext to use the police to circumvent the summary process otherwise required under § 47a-43. . . . The [daughter] does not contend, nor could she under our case law, that the entry and detainer statute protects a possessor from being removed from the premises by the police in accordance with the criminal law for breach of the peace. See Daddona v. Liberty Mobile Home Sales, Inc., 209 Conn. 243, 257, 550 A.2d 1061 (1988) (noting that provisions like § 47a-43 were designed to protect . . . peaceable possession . . . from disturbance . . . and to protect the peace of the neighborhood . . . .” (Emphasis in original; internal quotation marks omitted.) Fleming v. Bridgeport, supra, 514-15. The Supreme Court concluded that the Dixons did not violate § 47a-43 (a) (2) by using the police as a “strong hand” to dispossess the daughter. Id., 516.

In the present case, the court erroneously concluded that the plaintiffs arrest and Judge Gould’s subsequent no contact order properly formed the basis for a finding of an entry and detainer. The court found that although Judge Gould’s order rather than the acts of the defendants barred the plaintiff from the premises, it was Bird’s act of contacting the police that set this chain of events in motion. The record reveals that Bird testified that the plaintiff, who had at least one gun on the premises, was screaming and threatening to kill certain individuals and that Bird became apprehensive about his physical well-being and telephoned the police. There is no evidence in the record, and the court did not find, that Bird’s complaint to the police was a pretext to circumvent the summary process required under § 47a-43. Absent such a pretext, the plaintiffs actions in causing a disturbance, not Bird’s act of telephoning the police, set in motion the chain of events leading to the plaintiffs arrest and the subsequent no contact order. It cannot be said under our case law that the entry and detainer statute protects a possessor from being removed from the premises by the police in accordance with the criminal law for breach of the peace and from subsequently having a no contact order issued against him. See id., 514-15. Section 47a-43 protects peaceable possession from disturbance. Daddona v. Liberty Mobile Home Sales, Inc., supra, 209 Conn. 257. The defendants did not violate § 47a-43 by effectively using the police, and subsequently the court’s no contact order, as a “strong hand” to dispossess the plaintiff. See Fleming v. Bridgeport, supra, 284 Conn. 516.

The judgment is reversed and the case is remanded for further proceedings according to law.

In this opinion the other judges concurred.

       General Statutes § 47a-43 (a) provides: “When any person (1) makes forcible entry into any land, tenement or dwelling unit and with a strong hand detains the same, or (2) having made a peaceable entry, without the consent of the actual possessor, holds and detains the same with force and strong hand, or (3) enters into any land, tenement or dwelling unit and causes damage to the premises or damage to or removal of or detention of the personal property of the possessor, or (4) when the party put out of possession would be required to cause damage to the premises or commit a breach of the peace in order to regain possession, the party thus ejected, held out of possession, or suffering damage may exhibit his complaint to any judge of the Superior Court.”

       A significant number of the plaintiffs items remained on the premises after the date of the plaintiffs arrest. On June 10, 2009, per an interim order of the court, the parties, accompanied by an attorney, met at the premises and transferred to the plaintiff those items that they agreed belonged to him.

       Although the court did not specify which subdivision of § 47a-43 (a) the defendants violated by taking the aforementioned acts, it appears that the court relied on subdivision (2), as it is the only part of the statute that explicitly requires dispossession “with force . . . General Statutes § 47a-43 (a).

       Prom the court’s finding of fact, it is apparent that the court credited this portion of Bird’s testimony.

       The court made no decision, the parties make no claim and we accordingly make no determination as to whether any other acts of the defendants possibly may have constituted a violation of § 47a-43.


text:
    STATE OF CONNECTICUT v. RONALD MORALES
    (AC 30360)
    Bishop, Beach and Peters, Js.
    Argued February 11
    officially released June 15, 2010

      Heather M. Wood, assistant public defender, for the appellant (defendant).

      James M. Ralls, senior assistant state’s attorney, with whom, on the brief, were John A. Connelly, state’s attorney, and Terence D. Mariani and Amy Sedensky, senior assistant state’s attorneys, for the appellee (state).
   Opinion

BEACH, J.

The defendant, Ronald Morales, appeals from the judgment of conviction rendered after he pleaded guilty under the Alford doctrine to attempt to possess narcotics with intent to sell by a person who is not drug-dependent in violation of General Statutes §§ 21a-278 (b) and 53a-49 (a) (2), conspiracy to commit robbery in the first degree in violation of General Statutes §§ 53a-48 (a) and 53a-134 (a) (2), and accessory to robbery in the first degree with a deadly weapon in violation of General Statutes §§ 53a-8 (a) and 53a-134 (a) (2). The defendant claims that the court (1) violated his rights to due process and the assistance of counsel when it told him to file a pro se motion to withdraw his guilty plea after his initial counsel’s appearance was withdrawn but before substitute counsel was appointed, and (2) improperly denied his motion to withdraw his guilty plea. We affirm the judgment of the trial court.

The record reveals the following facts and procedural history. The defendant was arrested in connection with a robbery and assault that had occurred in June, 2005, in Waterbury. The defendant subsequently filed a motion to suppress a statement that he had made to the police while in custody, and on March 16, 2006, the court, O’Keefe, J., granted the defendant’s motion on the ground that the statement had been obtained in violation of his Miranda rights. Also on that date, the state nolled the charges against the defendant because two witnesses essential to its case were missing.

In June, 2006, the defendant was rearrested and recharged. On January 3, 2008, the defendant pleaded guilty under the Alford doctrine to attempt to possess narcotics with intent to sell by a person who is not drug-dependent, conspiracy to commit robbery in the first degree and accessory to robbery in the first degree with a deadly weapon. On May 14, 2008, the defendant moved to withdraw his plea. After a hearing on the motion on June 17, 2008, the court, Fasano, J., denied the motion. The court subsequently imposed a total effective sentence of twenty years, execution suspended after ten years, with five years probation. This appeal followed. Additional facts will be set forth as necessary.

I

The defendant first claims that he was denied his rights to due process and the assistance of counsel under the federal constitution when the court told him to file a pro se motion to withdraw his guilty plea after his initial counsel’s appearance was withdrawn but before substitute counsel was appointed. The defendant concedes on appeal that his claims were not preserved at trial but, nevertheless, seeks to prevail under State v. Golding, 213 Conn. 233, 239-40, 567 A.2d 823 (1989). We review the defendant’s claim because the record is adequate for review and the defendant’s right to counsel is of constitutional magnitude. See State v. Gaston, 86 Conn. App. 218, 229, 860 A.2d 1253 (2004), cert. denied, 273 Conn. 901, 867 A.2d 840 (2005).

The following additional facts are relevant. After a new prosecution was initiated against the defendant in June, 2006, Auden Grogins was appointed as the defendant’s counsel in July, 2006. After the defendant pleaded guilty under the Alford doctrine, he wrote a letter to the court in February, 2008, seeking to withdraw his plea. At a hearing held on April 30, 2008, the court stated, with respect to the defendant’s letter: “So, your claims are that you wish to withdraw your plea. . . . There’s no formal motion. You need ... to file a formal motion.” The court asked if the basis of the defendant’s request to withdraw his plea was ineffective assistance. The defendant answered the court’s question affirmatively. The court stated that in this situation the defendant should be represented by a different attorney and asked if the defendant had one in mind, but the defendant stated that he did not. The court noted that defense counsel had spoken with Alan McWhirter, a special public defender, for that purpose. The court then stated: “ [I]n the meantime, you should file a motion entitled motion to withdraw your plea; state your grounds as clearly and concisely as you can. I anticipate there will be an attorney to represent you at that time.” The court then continued the matter until May 14, 2008, and informed the defendant to “[m]ake sure to get this formal motion in and state exactly what you’re claiming now.”

On May 14,2008, the court appointed substitute counsel, Richard Marquette, a special public defender. Marquette requested a thirty day continuance, which the court granted. The defendant then filed his pro se motion to withdraw his plea. The defendant filed a second pro se motion to withdraw his plea dated June 5, 2008. On June 17, 2008, the court held a hearing on the motion to withdraw the plea, the basis of which was ineffective assistance by Grogins. During the hearing, the defendant was represented by Marquette. After hearing testimony from the defendant and from Grog-ins, the court denied the motion.

Because the parties focus their arguments on the fourth prong of Golding, harmless error, and in light of our disposition of this case, we need not decide whether the third prong of Golding, clear constitutional error, is satisfied. As to the harmless error prong, the defendant argues that the court, by requiring him to file a pro se motion to withdraw his plea, committed structural error, which is not subject to harmless error analysis. We disagree.

“In considering the nature of a claimed constitutional violation, although typically such violations are reviewed for harmless error, there is a limited class of violations that we review for structural error. Structural [error] cases defy analysis by harmless error standards because the entire conduct of the trial, from beginning to end, is obviously affected .... These cases contain a defect affecting the framework within which the trial proceeds, rather than simply an error in the trial process itself. . . . Such errors infect the entire trial process . . . and necessarily render a trial fundamentally unfair .... Put another way, these errors deprive defendants of basic protections without which a criminal trial cannot reliably serve its function as a vehicle for determination of guilt or innocence . . . and no criminal punishment may be regarded as fundamentally fair.” (Internal quotation marks omitted.) State v. Dalton, 100 Conn. App. 227, 230 n.3, 917 A.2d 613, cert. denied, 282 Conn. 913, 924 A.2d 139 (2007).

The court’s order requiring the defendant to file a pro se motion based on ineffective assistance of counsel prior to the appointment of substitute counsel is not structural error. An error is structural “only when the error renders a trial fundamentally unfair and is not susceptible to a harmless error analysis . . . .” (Internal quotation marks omitted.) State v. Brown, 279 Conn. 493, 509-10, 903 A.2d 169 (2006). The claimed error involved here does not require automatic reversal because it is not an error that fundamentally infects the entire trial process and defies analysis of its specific impact.

The defendant cannot prevail under the fourth prong of Golding because the error, if any, was harmless. The defendant argues that his pro se motion to withdraw included claims on which he was not likely to prevail and presented meritorious claims that were inartfully expressed. The contents of the pro se motion to withdraw, however, were not binding on the defendant. On the same day that the defendant filed his pro se motion, the court appointed Marquette as the defendant’s substitute counsel. Marquette represented the defendant during the hearing on the motion to withdraw. The defendant, with the assistance of counsel, could have filed an amended motion to withdraw or withdrawn the motion. The motion was considered on its merits, and no portions of the motion were used against the defendant. Accordingly, there was no prejudice, and any possible error was harmless.

II

The defendant next claims that the court improperly denied his motion to withdraw his guilty plea because his plea was not knowingly and voluntarily made due to Grogins’ deficient performance. He claims that Grogins’ performance was deficient in that she erroneously advised him that he was unlikely to prevail on a motion to suppress information gained from a search of his cellular telephones and statements made by his co-defendants and that she subsequently failed to make such a motion. The defendant further contends that as a result of Grogins’ incorrect understanding of the viability of the suppression claims, she mistakenly advised him that he had no chance of prevailing if he went to trial. We decline to review the defendant’s claim for lack of an adequate record.

“Practice Book § [39-27] specifies circumstances under which a defendant may withdraw a guilty plea after it has been entered. [0]nce entered, a guilty plea cannot be withdrawn except by leave of the court, within its sound discretion, and a denial thereof is reversible only if it appears that there has been an abuse of discretion. . . . The burden is always on the defendant to show a plausible reason for the withdrawal of a plea of guilty. . . .

“[A] claim of ineffective assistance of counsel is generally made pursuant to a petition for a writ of habeas corpus rather than in a direct appeal. . . . Section 39-27 of the Practice Book, however, provides an exception to that general rule when ineffective assistance of counsel results in a guilty plea. A defendant must satisfy two requirements ... to prevail on a claim that his guilty plea resulted from ineffective assistance of counsel. . . . First, he must prove that the assistance was not within the range of competence displayed by lawyers with ordinary training and skill in criminal law. . . . Second, there must exist such an interrelationship between the ineffective assistance of counsel and the guilty plea that it can be said that the plea was not voluntary and intelligent because of the ineffective assistance.” (Citation omitted; internal quotation marks omitted.) State v. Sutton, 95 Conn. App. 139, 145-46, 895 A.2d 805, cert. denied, 278 Conn. 920, 901 A.2d 45 (2006).

At the defendant’s hearing on the motion to withdraw his plea, the court concluded that there was no evidence of ineffective assistance of counsel. The court, however, made no specific factual findings regarding the claim that the defendant is making on appeal. Although the court found that Grogins had advised the defendant regarding the suppression of evidence as a result of the illegal confession, it made no findings regarding whether Grogins’ advice was deficient. Specifically, the court did not make findings regarding whether constitutional violations had occurred so as to render the evidence at issue inadmissible. We cannot render a decision without first having specific findings of fact to determine the basis of the court’s ruling. The court did not address the specific factual findings underlying its conclusion in the memorandum of decision, and the defendant failed to file a motion for articulation. See Practice Book § 66-5. Accordingly, the record is inadequate. “[I]t is the appellant’s burden to provide an adequate record for review. ... It is, therefore, the responsibility of the appellant to move for an articulation or rectification of the record where the trial court has failed to state the basis of a decision ... to clarify the legal basis of a ruling ... or to ask the trial judge to rule on an overlooked matter.” (Internal quotation marks omitted.) Wright v. Commissioner of Correction, 106 Conn. App. 342, 345, 942 A.2d 438, cert. denied, 289 Conn. 901, 957 A.2d 875 (2008). Accordingly, we cannot review the defendant’s claim.

The judgment is affirmed.

In this opinion the other judges concurred.

       See North Carolina v. Alford, 400 U.S. 25, 37, 91 S. Ct. 160, 27 L. Ed. 2d 162 (1970).

       See Miranda v. Arizona, 384 U.S. 436, 478-79, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).

       The defendant also claims that his rights under article first, § 8, of the Connecticut constitution were violated. Because the defendant has not set forth .a separate state constitutional analysis pursuant to State v. Geisler, 222 Conn. 672, 684-86, 610 A.2d 1225 (1992), we deem that claim abandoned and analyze the defendant’s claim under the requirements of the United States constitution. See State v. Simpson, 286 Conn. 634, 651 n.17, 945 A.2d 449 (2008).

        State v. Golding, supra, 213 Conn. 239-40, provides 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.” (Emphasis in original.)

       “In the absence of any of the [four prongs of Golding], the defendant’s claim will fail.” State v. Golding, supra, 213 Conn. 240.


text:
    STATE OF CONNECTICUT v. GREGORY LAMONT MILLER
    (AC 30096)
    DiPentima, Robinson and Hennessy, Js.

      Argued March 16
    officially released June 15, 2010

      Joseph Visone, special public defender, for the appellant (defendant).

      Nancy L. Walker, special deputy assistant state’s attorney, with whom, on the brief, were Gail P. Hardy, state’s attorney, and Herbert E. Carlson, Jr., former supervisory assistant state’s attorney, for the appellee (state).

       The listing of judges reflects their seniority status on this court as of the date of oral argument.

   Opinion

DiPENTIMA, J.

The defendant, Gregory Lamont Miller, appeals from the judgment of conviction, rendered after a jury trial, of one count of attempt to commit sexual assault in the first degree in violation of General Statutes §§ 53a-49 (a) (2) and 53a-70 (a) (2), one count of risk of injury of a child in violation of General Statutes (Rev. to 2001) § 53-21 (a) (1), two counts of sexual assault in the first degree in violation of General Statutes § 53a-70 (a) (2) and four counts of risk of injury to a child in violation of General Statutes (Rev. to 2003) § 53-21 (a) (2). On appeal, the defendant claims that the trial court improperly (1) admitted into evidence certain out-of-court statements by the victim and (2) denied the defendant’s motion to dismiss for lack of a speedy trial pursuant to General Statutes § 54-82m. We disagree and, accordingly, affirm the judgment of the trial court.

The jury reasonably could have found the following facts. In the spring of 2001, the victim was eight years old and resided in an apartment with her mother, siblings and the defendant. On one occasion, the defendant removed the victim’s shorts and underwear and attempted to penetrate her anally. The victim did not report this incident to anyone at the time because she was “scared and embarrassed.” The defendant subsequently left the residence, and this caused the victim to feel safe and confident that it would not happen again.

In January, 2003, the defendant returned to the residence. The defendant again sexually assaulted the victim. Specifically, there were instances of oral sex and penile-vaginal intercourse. In March, 2003, the victim told family members and a friend what the defendant had done. The next day, the victim was taken to Connecticut Children’s Medical Center. After spending nearly four hours there, the victim was referred to Saint Francis Hospital and Medical Center (Saint Francis Hospital) for subsequent medical treatment.

The operative information set forth ten counts charging the defendant with offenses from 2001 and 2003. Following a trial, the jury returned a guilty verdict with respect to eight of the counts contained in the information. The court sentenced the defendant to ninety years incarceration. This appeal followed. Additional facts will be set forth as necessary.

I

The defendant first claims that the court improperly admitted into evidence certain out-of-court statements by the victim. Specifically, he contends that testimony of Lisa Murphy-Cipolla, a licensed family therapist, regarding statements made to her by the victim, were admitted into evidence improperly under the medical treatment exception to the rule against hearsay. See Conn. Code Evid. § 8-3 (5). The defendant argues that the primary purpose of Murphy-Cipolla’s interview with the victim was to obtain information for police officers that supported their application for a search warrant. We conclude that the court properly admitted the testimony pursuant to the medical treatment exception.

The following additional facts are necessary for our resolution of this issue. After initially receiving medical treatment at Connecticut Children’s Medical Center, the victim was referred to Saint Francis Hospital. On April 3, 2003, Murphy-Cipolla, an employee of the Aetna Foundation Children’s Center, which is located at Saint Francis Hospital, interviewed the victim for approximately fifty minutes. Outside of the presence of the jury, Murphy-Cipolla stated that the victim told her of multiple instances of abuse by the defendant. The victim detailed one incident that occurred in the kitchen of the residence. As a result of this incident, semen was deposited on a chair cushion, and subsequent DNA testing revealed that the defendant was a contributor. Police officers observed Murphy-Cipolla’s interview with the defendant behind a one-way mirror. At one point, Murphy-Cipolla consulted with an officer and asked the victim about the kitchen chair cushion.

The defendant objected on the ground that Murphy-Cipolla’s testimony regarding the victim’s statements to her during the interview constituted inadmissible hearsay. After hearing argument from counsel, the court ruled that the victim’s statements to Murphy-Cipolla, while hearsay, fell within the medical treatment exception. Following the court’s ruling, the jury returned to the courtroom, and Murphy-Cipolla testified that the victim told her that the defendant had sexually assaulted her. In addition to details about the various assaults, Murphy-Cipolla further testified that the victim stated that the defendant had ejaculated during some of the assaults and that afterward, the victim’s vagina was sore and red. Murphy-Cipolla concluded her testimony by indicating that the victim was aware that these incidents would affect her for the rest of her life and that she had to tell someone about them.

As a general rule, hearsay is inadmissible unless an exception from the Code of Evidence, the General Statutes or the rules of practice applies. See Conn. Code Evid. § 8-2; State v. Anderson, 86 Conn. App. 854, 876, 864 A.2d 35, cert. denied, 273 Conn. 924, 871 A.2d 1031 (2005). Section 8-3 of the Connecticut Code of Evidence, which describes the medical treatment exception to the hearsay rule, provides in relevant part: “The following are not excluded by the hearsay rale, even though the declarant is available as a witness ... (5) ... A statement made for purposes of obtaining a medical diagnosis or treatment and describing medical history, or past or present symptoms, pain, or sensations, or the inception or general character of the cause or external source thereof, insofar as reasonably pertinent to the medical diagnosis or treatment.” “In other words, the admissibility of out-of-court statements made by a patient to a medical care provider depends on whether the statements were made for the purposes of obtaining medical diagnosis or treatment. . . . The rationale for excluding from the hearsay rule statements made in furtherance of obtaining treatment is that we presume that such statements are inherently reliable because the patient has an incentive to tell the truth in order to obtain a proper medical diagnosis and treatment. . . . The term medical encompasses psychological as well as somatic illnesses and conditions.” (Citations omitted; internal quotation marks omitted.) State v. Donald M., 113 Conn. App. 63, 70, 966 A.2d 266, cert. denied, 291 Conn. 910, 969 A.2d 174 (2009); see also State v. Cruz, 260 Conn. 1, 7-8, 792 A.2d 823 (2002).

“Our Supreme Court recently enunciated a two part standard of review for claims of evidentiary error. In State v. Saucier, 283 Conn. 207, 926 A.2d 633 (2007) (en banc), the court stated: To the extent a trial court’s admission of evidence is based on an interpretation of the [Connecticut] Code of Evidence, our standard of review is plenary. For example, whether a challenged statement properly may be classified as hearsay and whether a hearsay exception properly is identified are legal questions demanding plenary review. They require determinations about which reasonable minds may not differ; there is no judgment call by the trial court .... We review the trial court’s decision to admit evidence, if premised on a correct view of the law, however, for an abuse of discretion.” (Internal quotation marks omitted.) State v. Telford, 108 Conn. App. 435, 439, 948 A.2d 350, cert. denied, 289 Conn. 905, 957 A.2d 875 (2008). In order to determine the appropriate standard of review, we must look to the precise nature of the claim raised on appeal. See State v. Saucier, supra, 217-18. We first determine the appropriate standard of review by examining the nature of the defendant’s claim.

The defendant argues that the primary purpose of the victim’s interview with Murphy-Cipolla was to provide information to the observing police officer with the ultimate goal of obtaining a search warrant for the kitchen cushions. A similar claim was raised in State v. Anderson, supra, 86 Conn. App. 874-75. In Anderson, we stated: “The key on which the issue of admissibility of the victim’s statements turns is the purpose of the examination. The defendant claims the purpose of the examination was investigatory, but the court concluded that it was for treatment.” Id., 878. In rejecting the defendant’s claim, we observed: “To the extent that the court made its decision on credibility grounds, we yield, as we must, to the court’s assessment. See State v. Rollins, 51 Conn. App. 478, 485, 723 A.2d 817 (1999).” State v. Anderson, supra, 879. Additionally, we note that in Saucier, our Supreme Court stated that “appellate courts will defer to the trial court’s determinations on issues dictated by the exercise of discretion, fact finding, or credibility assessments.” State v. Saucier, supra, 283 Conn. 219. Because the purpose of the victim’s interview with Murphy-Cipolla is determined on the basis of the credibility of the witnesses, we employ the abuse of discretion standard.

Jean Carlson, the triage nurse at Connecticut Children’s Medical Center, testified that the victim was referred to Saint Francis Hospital for subsequent medical treatment. At that time, Connecticut Children’s Medical Center was “limited” as to what it could do for the victim. Therefore, patients were referred to Saint Francis Hospital because that was “where abuse cases were followed up.” The victim’s father testified that he took the victim to Saint Francis Hospital for the purpose of obtaining further medical treatment.

Murphy-Cipolla testified that she had earned a master’s degree in counselor education with a specialization in marriage and family therapy and was licensed as a family therapist. She also detailed her training and experience with interviewing victims of abuse. As part of her employment, she conducted diagnostic interviews for the evaluation, treatment and prevention of child abuse. She stated specifically: “The purpose of the interview is to elicit clear and accurate information, minimize any additional trauma and then, based on what is disclosed during the course of an interview, to go on and make the necessary recommendations for mental health and, or, the need for a medical exam.” (Emphasis added.) She also noted that the interviewer’s report is part of the medical record and is shared with the medical provider. While the victim was at Saint Francis Hospital, a pediatric nurse practioner, Audrey Courtney, performed a medical examination of the victim. Courtney testified that she used the information obtained by Murphy-Cipolla during the interview in the course of the medical examination of the victim.

On the basis of this evidence, we cannot conclude that the court abused its discretion in finding that the purpose of the victim’s interview was for medical treatment. The court heard testimony from several witnesses and found them to be credible. We yield to the court’s assessment on such matters. See State v. Anderson, supra, 86 Conn. App. 879. Further, we are not persuaded by the defendant’s argument that because the victim knew that police officers were present during the interview, the purpose of her interview with Murphy-Cipolla was not for medical treatment. This fact does not undermine the medical treatment purpose of the interview. Cf. State v. Slater, 285 Conn. 162, 184, 939 A.2d 1105, cert. denied, 553 U.S. 1085, 128 S. Ct. 2885, 171 L. Ed. 2d 822 (2008). Last, we reject the defendant’s contention that the court relied on pure speculation that the victim would be more truthful in response to Murphy-Cipolla’s questions because she knew of the police presence. Although the court mentioned that it was likely that such knowledge would “strengthen her resolve ... to be forthcoming and to be more accurate,” we are satisfied that the court merely was opining that the hearsay, already found to be reliable due to the operation of the medical treatment exception, was even more so due to the presence of the police officer. We fail to see, however, how this statement affected the court’s determination of the admissibility of the testimony from MurphyCippolla. We conclude, therefore, that the court did not abuse its discretion in permitting Muiphy-Cipolla’s testimony to be admitted into evidence.

II

The defendant next claims that the court improperly denied his motion to dismiss the case for lack of a speedy trial pursuant to § 54-82m. Specifically, he argues that his statutory right to a speedy trial was violated and that the court improperly failed to dismiss the criminal charges against him. We disagree.

The following additional facts are necessary for the resolution of the defendant’s claim. The defendant was arrested on March 28, 2004. On June 1, 2005, the defendant rejected a plea bargain offer made by the state. On June 1,2007, the defendant filed a motion to dismiss, pursuant to Practice Book § 41-8 (5), (7) and (9). He alleged in this motion that since June 1, 2005, there had been no “prosecution or other disposition of these [matters].” He further argued that the charges against him should have been nolled by operation of law and dismissed. As authority, he cited Practice Book § 43-39 (d), General Statutes § 54-142a (c) and State v. Winer, 99 Conn. App. 579, 915 A.2d 883 (2007), rev’d, 286 Conn. 666, 945 A.2d 430 (2008). In the alternative, the defendant also alleged: “[Practice Book §] 43-39 et seq., as provided for in [General Statutes] § 54-82m, establishes certain specific time limits during which criminal defendants shall be brought to trial, effectuating the right to a speedy trial guaranteed by [a]rticle [first, § 8, of] the [constitution of the [s]tate of Connecticut and the [sixth] [a]mendment to the [c]onstitution of the United States. . . . [The] [d]efendant’s case has been pending in excess of the eight month period specified by [Practice Book §] 43-39 et seq. and ... § 54-82m.”

On August 8, 2007, the court denied the defendant’s motion. Specifically, it determined that the defendant’s case factually was distinguishable from the Winer case. It did not, however, expressly address the defendant’s § 54-82m claim.

“The speedy trial statute [§ 54-82m] requires the judges of the Superior Court to adopt rules that are necessary to assure a speedy trial for any person charged with a criminal offense .... With respect to a defendant who is incarcerated in a correction institution of this state pending trial, § 54-82m requires the rules to provide: (1) in any case in which a plea of not guilty is entered, the trial of a defendant charged in an information or indictment with the commission of a criminal offense shall commence . . . within eight months from the filing date of the information or indictment or from the date of arrest, whichever is later; and (2) if a defendant is not brought to trial within the time limit set forth in subdivision (1) and a trial is not commenced within thirty days of a motion for a speedy trial made by the defendant at any time after such time limit has passed, the information or indictment shall be dismissed. Such rules shall include provisions to identify periods of delay caused by the action of the defendant, or the defendant’s inability to stand trial, to be excluded in computing the time limits set forth in subdivision (1). . . . Practice Book § 43-40 then sets forth ten circumstances constituting those periods of time [that] shall be excluded in computing the [eight months] within which the trial of a defendant . . . must commence pursuant to Section 43-39 . . . .” (Citations omitted; internal quotation marks omitted.) State v. Cote, 101 Conn. App. 527, 532-33, 922 A.2d 322, cert. denied, 284 Conn. 901, 931 A.2d 266 (2007); see also State v. Rosario, 118 Conn. App. 389, 394-95, 984 A.2d 98 (2009), cert. denied, 295 Conn. 903, 988 A.2d 879 (2010).

“The determination of whether a defendant has been denied his right to a speedy trial is a finding of fact, which will be reversed on appeal only if it is clearly erroneous. . . . The trial court’s conclusions must stand unless they are legally and logically inconsistent with the facts. . . . Although the right to a speedy trial is fundamental, it is necessarily relative, since a requirement of unreasonable speed would have an adverse impact both on the accused and on society.” (Internal quotation marks omitted.) State v. Jeffreys, 78 Conn. App. 659, 669-70, 828 A.2d 659, cert. denied, 266 Conn. 913, 833 A.2d 465 (2003); see also State v. Mish, 110 Conn. App. 245, 251, 954 A.2d 854, cert. denied, 289 Conn. 941, 959 A.2d 1008 (2008); see generally State v. Bonner, 290 Conn. 468, 479-81, 964 A.2d 73 (2009).

In the present case, the court did not address the defendant’s § 54-82m claim. The defendant never filed a motion for articulation pursuant to Practice Book § 66-5. Additionally, the record is devoid of any information that would apply to whether any of the relevant time period was subject to exclusion; see Practice Book § 43-40; from the speedy trial calculus. In short, the record is inadequate to review the defendant’s claim.

Practice Book § 61-10 provides in relevant part that “[i]t is the responsibility of the appellant to provide an adequate record for review. ...” Moreover, we have stated that “[i]t is incumbent upon the appellant to take the necessary steps to sustain its burden of providing an adequate record for appellate review. . . . Our role is ... to review claims based on a complete factual record developed by a trial court.” (Citation omitted; internal quotation marks omitted.) State v. Cotto, 111 Conn. App. 818, 821, 960 A.2d 1113 (2008). Put another way, “[wjithout the necessary factual and legal conclusions furnished by the trial court, any decision made by us respecting the defendant’s claims would be entirely speculative.” (Internal quotation marks omitted.) State v. Thompson, 120 Conn. App. 288, 290, 991 A.2d 661, cert. denied, 296 Conn. 909, 993 A.2d 468 (2010). Accordingly, we decline to review this claim.

The judgment is affirmed.

In this opinion the other judges concurred.

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

       The jury returned a verdict of not guilty with respect to counts three and nine of the information. These counts had alleged that the defendant committed sexual assault in the first degree in violation of § 53a-70 (a) (2).

       The medical treatment exception is not limited to physicians and has been extended to include other professionals, including social workers, so long as the professional has been found to be acting within the chain of the medical case. See State v. Juan V., 109 Conn. App. 431, 446, 951 A.2d 651, cert. denied, 289 Conn. 931, 958 A.2d 161 (2008). On appeal, the defendant does not challenge the application of this exception to Murphy-Cipolla.

       We are mindful that the victim herself testified that she did not know why she was taken to Saint Francis Hospital. Our case law, however, consistently has stated that in cases involving juveniles, the requirement that statements must be both pertinent to treatment and motivated by a desire for treatment may be satisfied inferentially. State v. Telford, supra, 108 Conn. App. 441-42; see also State v. Donald M., supra, 113 Conn. App. 71; State v. Juan V., 109 Conn. App. 431, 446-47, 951 A.2d 651, cert. denied, 289 Conn. 931, 958 A.2d 161 (2008); State v. William B., 76 Conn. App. 730, 741-42, 822 A.2d 265, cert. denied, 264 Conn. 918, 828 A.2d 618 (2003); State v. Dollinger, 20 Conn. App. 530, 535-36, 568 A.2d 1058, cert. denied, 215 Conn. 805, 574 A.2d 220 (1990).

       Practice Book § 43-39 (d) provides: “The trial of such defendant shall commence within eight months from the filing of the information or from the date of the arrest, whichever is later, if the following conditions are met:
      “(1) the defendant has been continuously incarcerated in a correctional institution of this state pending trial for such offense; and
      “(2) the defendant is not subject to the provisions of General Statutes § 54-82c.”

       In 2008, § 54-142a (c) was divided into subdivisions and was the subject of technical amendments. See Public Acts 2008, No. 08-151, § 1. Because those amendments have no bearing on this appeal, in the interest of simplicity, we refer to the current revision of § 54-142a. General Statutes § 54-142a (c) (2) provides: “Whenever any charge in a criminal case has been continued at the request of the prosecuting attorney, and a period of thirteen months has elapsed since the granting of such continuance during which period there has been no prosecution or other disposition of the matter, the charge shall be construed to have been nolled as of the date of termination of such thirteen-month period and such erasure may thereafter be effected or a petition filed therefor, as the case may be, as provided in this subsection for nolled cases.”

       At all relevant times, Winer had not yet been overruled by our Supreme Court.

       General Statutes § 54-82m provides: “In accordance with the provisions of section 51-14, the judges of the Superior Court shall make such rules as they deem necessary to provide a procedure to assure a speedy trial for any person charged with a criminal offense on or after July 1, 1985. Such rules shall provide that (1) in any case in which a plea of not guilty is entered, the trial of a defendant charged in an information or indictment with the commission of a criminal offense shall commence within twelve months from the filing date of the information or indictment or from the date of the arrest, whichever is later, except that when such defendant is incarcerated in a correctional institution of this state pending such trial and is not subject to the provisions of section 54-82c, the trial of such defendant shall commence within eight months from the filing date of the information or indictment or from the date of arrest, whichever is later, and (2) if a defendant is not brought to trial within the time limit set forth in subdivision (1) of this section and a trial is not commenced within thirty days of a motion for a speedy trial made by the defendant at any time after such time limit has passed, the information or indictment shall be dismissed. Such rules shall include provisions to identify periods of delay caused by the action of the defendant, or the defendant’s inability to stand trial, to be excluded in computing the time limits set forth in subdivision (1) of this section.” (Emphasis added.)


text:
    FRANCIS KNIZE v. WAVERLY KNIZE
    (AC 31130)
    DiPentima, C. J., and Gruendel and Dupont, Js.
    Argued April 19
    officially released June 15, 2010

      Francis Knize, pro se, the appellant (plaintiff).

      ChristineB. O'Sullivan, for the appellee (defendant).
   Opinion

PER CURIAM.

The pro se plaintiff, Francis Knize, brought an action against the defendant, Waverly Knize, his former wife, for “[l]ibel, [s]lander and [cjharacter [d]efamation,” as more particularly alleged in his amended complaint, claiming monetary damages as a result. The case was tried to the jury, which returned a verdict in favor of the defendant, from which the plaintiff has appealed. On appeal, the plaintiff claims that the court improperly denied his motion to set aside the verdict and for a new trial. We affirm the judgment of the trial court.

After many motions, including the defendant’s motion to dismiss, which was denied, and the plaintiffs motions to amend his complaint, the case culminated in a jury verdict on April 17, 2009, in favor of the defendant. The plaintiff filed a motion to set aside the verdict and for a new trial on April 23, 2009, claiming that the verdict was contrary to law and that the evidence furnished no reasonable basis for the jury’s conclusion. After oral arguments on May 7, 2009, the court filed a memorandum of decision on May 8, 2009, denying the motion. The court found that the verdict was “not against the evidence,” was “not contrary to the law” and that the jury “could reasonably have reached the verdict it did.”

Our standard of review of a trial court’s denial of a motion to set aside a jury verdict is well settled. See Greci v. Parks, 117 Conn. App. 658, 667, 980 A.2d 948 (2009). A trial court possesses inherent power to set aside a jury verdict if the verdict is against the law or the evidence. Id. It “should not set aside a verdict where it is apparent that there was some evidence upon which the jury might reasonably reach [its] conclusion . . . .” (Internal quotation marks omitted.) Id. The decision to set aside a verdict “entails the exercise of a broad legal discretion . . . that, in the absence of clear abuse, we shall not disturb.” (Internal quotation marks omitted.) Id.

The plaintiff, in his brief, argues that the court applied an improper standard of proof. Specifically, he contends that the standard of proof to be used by the jury should have been clear and convincing evidence for it to find criminal drug abuse by the plaintiff. The issue before the jury, however, was not whether the plaintiff was guilty of crimes related to the use of drugs, but whether the defendant had made libelous statements about the plaintiff concerning his drug abuse, as alleged in his complaint. The plaintiff does not argue in his brief that the standard of proof required for the jury verdict in his libel case was erroneous, inadequate or violative of law. The arguments in his brief, citing law from other state jurisdictions, relate to civil cases involving proof of criminal acts, unlike this case. The standard of proof used in those cases is irrelevant in deciding this case.

The plaintiffs argument that the jury had insufficient evidence “reasonably to find criminal drug use” and the standard of proof to find that fact, as previously noted, is irrelevant. The issue in this case was not whether the plaintiff had violated criminal statutes related to drug use but whether the jury by a preponderance of the evidence could find as a preliminary matter, that the defendant had made defamatory statements as alleged in the plaintiff’s complaint. The plaintiffs brief does not address any issue related to the latter claim. We will set aside a trial court’s ruling on a motion to set aside a verdict only when an abuse of discretion is manifest or an injustice appears to have been done, neither of which is present in this case. We, therefore, affirm the judgment of the court that denied the plaintiffs motion to set aside the verdict and for a new trial.

The judgment is affirmed.

       The plaintiff, as a private individual, needed to prove by a preponderance of the evidence that the defendant negligently made defamatory statements about him. See Miles v. Perry, 11 Conn. App. 584, 588-89, 529 A.2d 199 (1987). He did not need to prove his allegations by the higher burden of proof, namely, clear and convincing evidence, which would be true if he were a public official. Id. The plaintiff’s argument as to the use of a higher standard of proof for establishing that the plaintiff violated criminal statutes as to drug use might be understood as his belief that the defendant had to prove, as her defense, that the statements about him that he attributed to her were not libelous or defamatory if she could prove by clear and convincing evidence that he had violated criminal statutes related to drug use. It is not for this court, however, to speculate as to why the plaintiff chooses to argue for a higher standard of proof in his case.


author: STOUGHTON, J.

text:
    PEDRO ZAPATA v. JOSE MORA
    (AC 30981)
    DiPentima, Beach and Stoughton, Js.

      Argued March 11
    officially released June 15, 2010

      Abram J. Heisler, for the appellant (defendant).

      Joseph F. Mulvey, for the appellee (plaintiff).

       The listing of judges reflects their seniority status on this court as of the date of oral argument.

   Opinion

STOUGHTON, J.

The issue in this summary process action is whether a new tenancy is created necessitating a new notice to quit when a tenant, having been locked out of the subject premises, obtains an order restoring him to possession. We agree with the trial court that no new tenancy is created and affirm the judgment in favor of the plaintiff landlord granting him possession of the premises.

The following facts and procedural history are not in dispute. Prior to 2008, the plaintiff, Pedro Zapata, and the defendant, Jose Mora, entered into an oral month-to-month lease for use and occupancy of the first floor of the commercial premises located at 72 Myrtle Avenue in Stamford. On April 25, 2008, the plaintiff served on the defendant a notice to quit possession by April 30, 2008. The defendant failed to vacate and, on May 13, 2008, the plaintiff commenced a summary process action seeking possession of the premises. On March 31, 2009, the court rendered judgment of possession in favor of the plaintiff on the ground that the defendant’s right or privilege to use the premises had terminated.

On September 25, 2008, while the summary process action was pending, the defendant instituted an action for forcible entry and detainer against the plaintiff pursuant to General Statutes § 47a-43, alleging that he had been locked out of the premises. On November 4,2008, the court in that action issued a permanent order restoring the defendant to possession of the premises. At the trial on the summary process action, the defendant argued, as he does on appeal, that the order restoring him to possession created a new right or privilege for him to occupy the premises and that the plaintiff therefore was required to serve a new notice to quit possession. The court concluded that the order restoring possession did not create a new tenancy but, rather, only restored the defendant to his original position. The defendant thereafter appealed.

“Before the [trial] court can entertain a summary process action and evict a tenant, the owner of the land must previously have served the tenant with notice to quit. ... As a condition precedent to a summary process action, proper notice to quit [pursuant to General Statutes § 47a-23] is a jurisdictional necessity. . . . This court’s review of the trial court’s determination as to whether the notice to quit served by the plaintiff effectively conferred subject matter jurisdiction is plenary.” (Citations omitted; internal quotation marks omitted.) Bayer v. Showmotion, Inc., 292 Conn. 381, 388, 973 A.2d 1229 (2009).

By its own terms, General Statutes § 47a-45a (c) provides specifically that the judgment in a forcible entry proceeding “shall not affect or be evidence of the title to such . . . tenement . . . .” The legality of the tenant’s presence is not even an issue under § 47a-43, our forcible entry and detainer statute. Fleming v. Bridgeport, 284 Conn. 502, 514, 935 A.2d 126 (2007). The purpose of the entry and detainer statute is to prohibit a property owner from entering his property in the act of taking possession thereof from one not legally entitled to such possession but who, nonetheless, maintains actual possession of such property. Karantonis v. East Hartford, 71 Conn. App. 859, 861, 804 A.2d 861, cert. denied, 261 Conn. 944, 808 A.2d 1137 (2002). An entry and detainer action is commenced by a possessor who has been dispossessed by the owner of the property without the benefit of proper legal proceedings. Id. Section 47a-43 seeks to discourage the owner’s resorting to self-help tactics so that peace and good order may be maintained. See Fleming v. Bridgeport, supra, 513; Daddona v. Liberty Mobile Home Sales, Inc., 209 Conn. 243, 257-58, 550 A.2d 1061 (1988).

The conduct of the plaintiff in locking out the defendant, while improper and ineffective, certainly did nothing to render the notice to quit ambiguous. More importantly, the court’s issuance of an order restoring the defendant to possession created no new right or privilege for him to occupy the premises but, rather, restored the status quo ante. See Karantonis v. East Hartford, supra, 71 Conn. App. 862 (“process of forcible entry and detainer ... is in its nature an action by which one . . . may be restored to the possession and enjoyment of that property” [emphasis added; internal quotation marks omitted]); see also General Statutes § 47a-45a (violation of forcible entry and detainer statute permits judicial authority to “render judgment that the complainant be restored to . . . the premises” [emphasis added]). Accordingly, we agree with the court that the restoration order did not constitute a new tenancy, and, therefore, no new notice to quit was required.

The judgment is affirmed.

In this opinion the other judges concurred.

       The plaintiffs three count complaint sought possession on the grounds that (1) the defendant failed to pay rent, (2) his right or privilege to occupy the premises had terminated and (3) the lease agreement had terminated by lapse of time. The plaintiff subsequently withdrew the first and third counts.

       General Statutes § 47a-43 (a) provides in relevant part that “when the party put out of possession would be required to cause damage to the premises or commit a breach of the peace in order to regain possession, the party thus ejected, held out of possession, or suffering damage may exhibit his complaint to any judge of the Superior Court.”

       The defendant’s reliance on Waterbury Twin, LLC v. Renal Treatment Centers-Northeast, Inc., 292 Conn. 459, 974 A.2d 626 (2009), for the proposition that a new notice to quit was required, is misplaced. In Waterbury Twin, LLC, the plaintiff landlords served a notice to quit for nonpayment of rent on the defendant tenants and filed a summary process complaint. Id., 462. The plaintiff subsequently withdrew the summary process action in its entirety and, thereafter, filed a new summary process complaint but did not serve a new notice to quit. Id., 463. The defendants moved to dismiss the new summary process action for lack of subject matter jurisdiction, claiming that the plaintiffs were required to serve a new notice to quit prior to commencing the new summary process action. Id. Our Supreme Court agreed and concluded that if a landlord has withdrawn a summary process action filed against a tenant, the landlord is required to serve a new notice to quit prior to commencing a new summary process action. Id., 465.
      The situation in the present case can be readily and easily distinguished. Contrary to the landlords’ action in Waterbury Twin, LLC, the plaintiff in this case did not withdraw his summary process action in its entirety. See footnote 1 of this opinion. Furthermore, the court’s order restoring the defendant to possession did not revive the parties’ lease but, rather, restored the status quo ante prior to the plaintiffs locking the defendant out of the premises. Unlike the withdrawal of a summary process action, an order restoring a tenant to possession pursuant to § 47a-45a does not “effectively [erase] the court slate clean as though the eviction . . . had never been commenced.” (Internal quotation marks omitted.) Waterbury Twin, LLC v. Renal Treatment Centers-Northeast, Inc., supra, 292 Conn. 468.