author: ROBINSON, J.

text:
    STATE OF CONNECTICUT v. EDWIN M.

    (AC 30481)
    Harper, Robinson and Schaller, Js.

      Argued September 7
    officially released November 2, 2010

      Arnold V. Amore, special public defender, for the appellant (defendant).

      Harry Weller, senior assistant state’s attorney, with whom, on the brief, were John A. Connelly, state’s attorney, and John J. Davenport, supervisory assistant state’s attorney, for the appellee (state).

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

   Opinion

ROBINSON, J.

The defendant, Edwin M., appeals from the trial court’s judgment of conviction, following a jury trial, of two counts of sexual assault in the first degree in violation of General Statutes § 53a-70 (a) (2), 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 to a child in violation of General Statutes § 53-21 (a) (1) and one count of risk of injury to a child in violation of General Statutes § 53-21 (a) (2). On appeal, the defendant claims that (1) the trial court improperly permitted a state’s witness to testify as an expert, (2) the trial court improperly permitted expert testimony on an ultimate issue of fact and (3) the evidence adduced at trial was insufficient to support his conviction of two counts of sexual assault in the first degree and one count of attempt to commit sexual assault in the first degree. We affirm the judgment of the trial court.

The jury reasonably could have found the following facts. K and D are the parents of two minor children, one of whom is the victim, A. Prior to May, 2006, K watched the children during the day before going to work in the evening, and D watched the children in the evening after working in the morning. This working arrangement ensured that at least one parent was available to watch the children throughout the day. In May, 2006, however, K’s work schedule changed and her job required her to work the day shift three days each week. As a result, K arranged for H, the couple’s niece, to watch the two children on the days K had to work a day shift. The arrangement provided that K would bring the children to H’s house in the mornings on days when she worked a day shift, and D would pick them up later in the afternoon.

On the morning of May 17, 2006, when the victim was seventeen months old, K dressed the children and changed the victim’s diaper. In doing so, K did not notice any bruising or marks on the victim’s body, aside from two small bite marks, one on her back and one on her right arm, that had been inflicted by the couple’s other child. Later that morning, some time after 7 a.m., K brought the two children to H’s house and then went to work.

At around 10 or 10:30 a.m., H laid the victim down for a nap on the bed in her bedroom. When H brought the victim into the bedroom, the defendant, who was H’s boyfriend at the time, was lying on the bed watching television. The defendant also was the only male present at the house. He remained in the bedroom with the victim, either sleeping or watching television, until approximately 3:30 or 4 p.m.

Throughout the day, H returned to the bedroom periodically to check on the victim and to change her diaper and clothing. During this time, H did not notice any marks or bruises on the victim’s face or any other area of her body. At approximately 2:20 p.m., however, the defendant told H to stay out of the bedroom. Sometime thereafter, H heard the victim crying but did not enter the bedroom or check on the victim again until D arrived at the house.

D arrived to pick up his children around 3:30 or 4 p.m. and noticed that the victim had suffered multiple injuries, including a swollen lip, blood in her mouth, a bruised eye, red ears and a rash on her feet. When H was unable to explain how the injuries had been sustained, D took the victim to St. Mary’s Hospital in Waterbury, where the victim was admitted as a patient.

At approximately 6:30 p.m., Francis Brevetti, an officer with the Waterbury police department, was dispatched to St. Mary’s Hospital in response to a call from Pamela Love, a physician in the pediatric unit of the emergency department, regarding a complaint alleging assault to a child. After arriving at the hospital, Brevetti investigated the complaint and subsequently notified the detective bureau at the Waterbury police department of the incident. Gary Agnon, a sergeant, along with a detective, responded to Brevetti’s call.

After speaking with hospital personnel, Brevetti, and D, Agnon and the detective proceeded to H’s house. Upon learning that the police were at the house to investigate the injuries to the victim, the defendant instructed H to lie to the police and say that he was not in the house. Although H complied, the police discovered the defendant in the bedroom when they conducted a consensual search of the house. The police then asked the defendant and H to accompany them to the police station for questioning. Before going to the police station, the defendant told H not to reveal his real name and to tell the police that he had arrived at the house twenty minutes after the victim had left.

At the police station, the defendant initially provided the police with a false name but later admitted that he had lied when Agnon informed him that the information that he had provided was not consistent with a computer check. Afterward, during questioning, the defendant again lied to the police, stating that he had not had any contact with the victim and had arrived at the house twenty minutes after the victim had left. Again, the defendant admitted that he lied when Agnon informed him that H had provided the police with other information. He thereafter admitted that he had arrived at the house at about 3 or 4 a.m., had been at the house all day and had been in the bedroom with the victim for several hours.

On May 18, 2006, three medical professionals examined the injuries sustained by the victim. These examinations revealed that the victim had suffered a multitude of injuries to the entirety of her body and that the severity of these injuries was typically not seen in children of the victim’s age. In her mouth, she had a tom frenum and two well-defined, oval abrasions on her soft palate, injuries consistent with a large blunt-ended object being forcefully pushed into her mouth. On her face and ears, the victim had an abrasion and multiple bruises consistent with forceful trauma, such as a blow to her head or someone pulling on her ears. The victim’s ankles and feet had bruising that was consistent with forceful holding beyond that necessary to change a diaper. In her genital and rectal area, the victim had generalized bruising, indicative of forceful compression that is usually inflicted by repetitive trauma, and an anal tear. The victim also had vaginal, labial and hymeneal bruising that was consistent with direct forceful injury.

On May 18,2006, the police executed a search warrant at H’s house and seized several items of clothing, including the victim’s shorts, the defendant’s shirt and boxer shorts, and several washcloths. Subsequent testing of these items revealed the presence of human blood and saliva on the victim’s shorts, the defendant’s shirt and three of the washcloths. Thereafter, DNA testing revealed that the victim and the defendant were both contributors to DNA found on the victim’s shorts and that the defendant was a contributor to the DNA found on his shirt but that the victim could not be ruled out as a contributor.

The defendant was arrested on May 22,2006. On June 4, 2008, the state filed a second substitute information, charging the defendant with two counts of sexual assault in the first degree in violation of § 53a-70 (a) (2), one count of attempt to commit sexual assault in the first degree in violation of §§ 53a-49 (a) (2) and 53a-70 (a) (2), one count of risk of injury to a child in violation of § 53-21 (a) (1) and one count of risk of injury to a child in violation of § 53-21 (a) (2). A jury trial was held from June 4 to 10, 2008. The defendant made an oral motion for a judgment of acquittal on June 9, 2008, which was denied by the court. On June 11, 2008, the jury returned a verdict of guilty on all counts, and the defendant was sentenced on September 12, 2008. This appeal followed. Additional facts will be set forth as necessary.

I

The defendant first claims that the trial court improperly permitted a state’s witness to testify as an expert. Specifically, he claims that Martin Geertsma, the director of the pediatric unit at St. Mary’s Hospital, was not qualified as an expert witness in the area of sexual abuse and, thus, should not have been permitted to render an opinion concerning the sexual abuse of the victim. Because the defendant did not challenge Geertsma’s qualifications at trial, his claim is unpreserved and he seeks review under the plain error doctrine. See Practice Book § 60-5. We reject the defendant’s claim.

The following additional facts are relevant to our analysis of the defendant’s claim. During the state’s case-in-chief, the state called Geertsma to describe the injuries that he observed during his examination of the victim on May 18, 2006. Before describing the injuries, Geertsma testified that he had been the head of the pediatric unit at St. Mary’s for twelve years, was board certified in developmental and behavioral pediatrics, had worked as a general pediatrician for many years and had taught general pediatrics as well as developmental and behavioral pediatrics to medical students. Thereafter, Geertsma provided a detailed summary of the victim’s injuries that he had observed. He also testified that, to a reasonable degree of medical certainty, the two oval abrasions on the victim’s soft palate were “consistent with being caused by an adult male erect penis.” The defendant did not object on the record to Geertsma’s qualifications, and we have no record that the trial court was ever alerted to the defendant’s claim.

On appeal, the defendant argues that Geertsma should not have been permitted to opine as to the cause of the two oval abrasions in the victim’s mouth because he was not qualified in the area of sexual abuse. The defendant, however, did not preserve his claim through a proper objection. Therefore, in order to prevail, he relies on the plain error doctrine. See State v. Carneiro, 76 Conn. App. 425, 429, 820 A.2d 1053, cert. denied, 264 Conn. 909, 826 A.2d 180, cert. denied, 540 U.S. 915, 124 S. Ct. 304, 157 L. Ed. 2d 208 (2003).

Practice Book § 60-5 provides in relevant part: “The [reviewing] court may reverse or modify the decision of the trial court if it determines that the factual findings are clearly erroneous in view of the evidence and pleadings in the whole record, or that the decision is otherwise erroneous in law. The court shall not be bound to consider a claim unless it was distinctly raised at the trial or arose subsequent to the trial. The court may in the interests of justice notice plain error not brought to the attention of the trial court. . . .”

The plain error doctrine “is an extraordinary remedy used by appellate courts to rectify errors committed at trial that, although unpreserved, are of such monumental proportion that they threaten to erode our system of justice and work a serious and manifest injustice on the aggrieved party. [T]he plain error doctrine ... is not ... a rule of reviewability. It is a rule of reversibility. That is, it is a doctrine that [an appellate court] invokes in order to rectify a trial court ruling that, although either not properly preserved or never raised at all in the trial court, nonetheless requires reversal of the trial court’s judgment, for reasons of policy. . . . In addition, the plain error doctrine is reserved for truly extraordinary situations [in which] the existence of the error is so obvious that it affects the fairness and integrity of and public confidence in the judicial proceedings. . . . Plain error is a doctrine that should be invoked sparingly. . . . Implicit in this very demanding standard is the notion . . . that invocation of the plain error doctrine is reserved for occasions requiring the reversal of the judgment under review.” (Internal quotation marks omitted.) State v. Myers, 290 Conn. 278, 289, 963 A.2d 11 (2009).

Our Supreme Court has “clarified the two step framework under which [an appellate court] reviewfs] claims of plain error. First, [the court] must determine whether the trial corut in fact committed an error and, if it did, whether that error was indeed plain in the sense that it is patent [or] readily discemable on the face of a factually adequate record, [and] also . . . obvious in the sense of not debatable. . . . We made clear . . . that this inquiry entails a relatively high standard, under which it is not enough for the defendant simply to demonstrate that his position is correct. Rather, the party seeking plain error review must demonstrate that the claimed impropriety was so clear, obvious and indisputable as to warrant the extraordinary remedy of reversal. . . .

“In addition, although a clear and obvious mistake on the part of the trial court is a prerequisite for reversal under the plain error doctrine, such a finding is not, without more, sufficient to warrant the application of the doctrine. Because [a] party cannot prevail under plain error unless it has demonstrated that the failure to grant relief will result in manifest injustice . . . under the second prong of the analysis we must determine whether the consequences of the error are so grievous as to be fundamentally unfair or manifestly unjust. . . . Only if both prongs of the analysis are satisfied can the appealing party obtain relief.” (Citations omitted; emphasis in original; internal quotation marks omitted.) State v. Coward, 292 Conn. 296, 306-307, 972 A.2d 691 (2009).

Applying these standards, we conclude that the defendant cannot prevail under the plain error doctrine because the action of the trial court did not amount to plain error. Even if we assume, without deciding, that it was improper for the trial court to allow Geertsma to offer an expert opinion in the area of sexual abuse, we do not believe that his testimony “undermined the fairness or integrity of the trial afforded to the defendant”; (internal quotation marks omitted) State v. Carneiro, supra, 76 Conn. App. 431; or “threaten[s] to erode our system of justice and work a serious and manifest injustice on the [defendant].” State v. Myers, supra, 290 Conn. 289. Upon careful review of the record, we cannot conclude that “the verdict constituted manifest injustice to the defendant or will lead to diminished confidence in our judicial system.” State v. Carneiro, supra, 431. Accordingly, we reject the defendant’s claim.

II

The defendant next claims that the trial court improperly permitted expert testimony on an ultimate issue of fact. Specifically, the defendant claims that the trial court abused its discretion by allowing Geertsma to opine on whether the injuries to the victim’s mouth were consistent with penetration by an adult’s erect penis. We disagree.

The portion of Geertsma’s testimony that is challenged on appeal is set forth in the following colloquy:

“[The Prosecutor]: To a reasonable degree of medical certainty, is this type of injury [the two oval abrasions on the victim’s soft palate] consistent with penile penetration of the mouth?

“[Defense Counsel]: Objection, Judge. That’s calling for a conclusion.

“The Court: I understand that, but I’ll allow it. You may answer that question, doctor.

“[The Witness]: I believe it is consistent with a forceful penetration and forcing against the skin of a blunt object, probably not hard like a metal object or a piece of wood, because that would have caused more extensive bleeding, and probably more deep linear cuts, and because of the shape and nature, which I can’t portray because you can’t portray three dimensions here, but this is—this is sort of like [a] steeple in this area.

“As a result, because this sort of—these two walls here come down a bit from where you—from the flap, something would have come in at this area, and forced itself on either side here. That would be the most likely explanation as to injury here. . . .

“Because this part is fairly—this part of the mouth is fairly small in a younger child here, and to get a small object like a toothbrush in there, yes, you could have had an injury if the toothbrush just went right back in there, because it’s small, but this had to be wider, much wider and broader.

“[The Prosecutor]: Would an adult male penis be consistent with that type of object that could have caused such injury?

“[Defense Counsel]: Objection, Judge. That’s been asked and answered.

“The Court: Well, I don’t—I’m going to sustain the objection. I think I’m going to sustain the objection. I think it’s been asked and answered, but I’m going to sustain the objection for another reason. You need to rephrase the question.

“[The Prosecutor]: Yes, Your Honor. To a reasonable degree of medical certainty ... is that type of injury consistent with being caused by an erect adult penis?

“[Defense Counsel]: Objection, Judge. Again, that’s calling for a conclusion and Dr. Geertsma has already given his answer into what he thinks could have caused this; a large, blunt object.

“The Court: Is your question it’s been asked and answered? Is that your objection, that it’s been asked and answered? Because I don’t think it has been.

“[Defense Counsel]: It’s just—it was twofold.

“The Court: Okay.

“[Defense Counsel]: It’s calling for a conclusion and the fact that he’s already—he has answered the question because he’s already stated some sort of large, blunt object.

“The Court: Objection’s overruled. I’m going to allow the question. I don’t think it’s been asked, I don’t think it’s been answered yet, so I’m going to allow it. Do you understand the question, doctor? Do you need it to be repeated?

“[The Witness]: Would you repeat the question?

“[The Prosecutor]: Sure. To a reasonable degree of medical certainty, is the type of injuiy that you saw in [the victim’s mouth] consistent with being caused by an adult male erect penis?

“[The Witness]: Yes.”

The issue before us is whether the trial court improperly permitted expert testimony on the ultimate issue of fact as to whether the defendant engaged in sexual intercourse with the victim.

We begin by setting forth the applicable standard of review. “[T]he trial court’s ruling on the admissibility of evidence is entitled to great deference. ... In this regard, the trial court is vested with wide discretion in determining the admissibility of evidence .... Accordingly, [t]he trial court’s ruling on evidentiary matters will be overturned only upon a showing of a clear abuse of the court’s discretion. . . . Furthermore, [i]n determining whether there has been an abuse of discretion, every reasonable presumption should be made in favor of the correctness of the trial court’s ruling, and we will upset that ruling only for a manifest abuse of discretion.” (Internal quotation marks omitted.) State v. Popeleski, 291 Conn. 769, 774, 970 A.2d 108 (2009); see also State v. Perkins, 271 Conn. 218, 264, 856 A.2d 917 (2004) (“[c]onceming expert testimony specifically . . . the trial court has wide discretion in ruling on the admissibility of expert testimony and, unless that discretion has been abused or the ruling involves a clear misconception of the law, the trial court’s decision will not be disturbed” [internal quotation marks omitted]); State v. Kemp, 199 Conn. 473, 476, 507 A.2d 1387 (1986) (“[t]he trial court has wide discretion in ruling on . . . the admissibility of [expert witnesses’] opinions”).

With regard to opinion testimony, Connecticut Code of Evidence § 7-3 (a) provides in relevant part: “Testimony in the form of an opinion is inadmissible if it embraces an ultimate issue to be decided by the trier of fact, except that ... an expert witness may give an opinion that embraces an ultimate issue where the trier of fact needs expert assistance in deciding the issue.” This court has held that “[a]n expert witness ordinarily may not express an opinion on an ultimate issue of fact, which must be decided by the trier of fact. ... An expert may, however, give an opinion on an ultimate issue where the trier, in order to make intelligent findings, needs expert assistance on the precise question on which it must pass . . . .” (Citations omitted; internal quotation marks omitted.) State v. Whitley, 53 Conn. App. 414, 421, 730 A.2d 1212 (1999). “[A]n ultimate issue [is] one that cannot reasonably be separated from the essence of the matter to be decided [by the trier of fact].” (Internal quotation marks omitted.) State v. Beavers, 290 Conn. 386, 415, 963 A.2d 956 (2009). Therefore, an expert may offer an opinion on an ultimate issue “if the witness has a special skill or knowledge, beyond the ken of the average juror, that . . . would be helpful to the determination of an ultimate issue.” Siladi v. McNamara, 164 Conn. 510, 513, 325 A.2d 277 (1973). On the other hand, “[i]t is well recognized that testimony on matters which are not beyond the ken of the average juror does not qualify as admissible expert testimony. . . . When inferences or conclusions are so obvious that they could be as easily drawn by the jury as the expert from the evidence, expert testimony regarding such inferences is inadmissible.” (Citation omitted.) State v. Iban C., 275 Conn. 624, 639, 881 A.2d 1005 (2005).

In sexual assault cases, our Supreme Court and this court have generally allowed expert witnesses to opine as to the cause of a victim’s injuries or to provide opinion testimony that a victim’s injuries are consistent with sexual abuse, reasoning that such matters are beyond the ken of the average juror. See id. (“[w]e have never stated that . . . expert testimony [that a victim’s injury was consistent with sexual abuse] is inadmissible”); State v. Whitley, supra, 53 Conn. App. 421 (“[e]vidence of the . . . medical effect upon the human system of the infliction of injuries, is generally not within the sphere of the common knowledge of a lay witness”). For example, in State v. Rodgers, 207 Conn. 646, 647, 542 A.2d 1136 (1988), the defendant was charged with sexual assault in the first degree in violation of § 53a-70 (a). During the trial, an obstetrician-gynecologist who examined the victim’s injuries testified over the defendant’s objection that “the fissure suffered by the victim was probably caused by a sharp or quick blow to the rectum and was consistent with rape by rectal penetration.” Id., 651. On appeal, the defendant claimed that the trial court had improperly permitted “expert testimony on an essential element of the crime that was properly an issue for the jury’s determination.” Id., 650-51. Although recognizing that penetration was an element of the crime of sexual assault in the first degree, the court nevertheless rejected the defendant’s claim, stating that “[t]his is precisely the evidentiary circumstance in which we have . . . reaffirmed that experts can give an opinion on an ultimate issue where the trier, in order to make intelligent findings, needs expert assistance on the precise question on which it must pass.” (Internal quotation marks omitted.) Id., 652. Similarly, this court has permitted expert testimony in sexual assault cases, reasoning that “the existence or absence of physical injury to a victim’s genital or anal area and its relation to a sexual assault is not necessarily an obvious matter within the common knowledge of the average person.” State v. Whitley, supra, 53 Conn. App. 422; see also State v. Luis F., 85 Conn. App. 264, 274, 856 A.2d 522 (2004).

In the present case, we do not believe that the trial court abused its discretion by permitting Geertsma to testify that the two oval injuries to the victim’s soft palate were consistent with penetration by an adult’s erect penis. The state charged the defendant with sexual assault in the first degree in violation of § 53a-70 (a) (2), claiming that he had engaged in fellatio with the victim. This meant that the state had to prove, and the jury had to find, beyond a reasonable doubt that the defendant penetrated the victim’s mouth with his penis rather than some other object. See General Statutes § 53a-70 (a) (2).

In order to prove its case, the prosecution offered, among other evidence, testimony that described the extent of the injuries that the victim had sustained in her mouth, including the two oval abrasions on her soft palate. As we stated previously, however, the average juror was unlikely to understand fully the relationship between the injuries to the victim’s mouth and the claim that the defendant had penetrated the victim’s mouth with his penis. Therefore, this is not a case in which the “inferences or conclusions [to be drawn from the evidence] are so obvious that they could be as easily drawn by the jury as the expert . . . .” State v. Iban C., supra, 275 Conn. 639. Instead, as in Rodgers, this is an evidentiary circumstance “where the trier [of facts], in order to make intelligent findings, needs expert assistance on the precise question on which it must pass.” (Internal quotation marks omitted.) State v. Rodgers, supra, 207 Conn. 652; see Conn. Code Evid. § 7-3 (a). As such, we conclude that Geertsma’s opinion as to whether the injuries were consistent with being caused by an adult’s erect penis “assisted the jury in intelligently assessing the ultimate issue as to whether a sexual assault had occurred.” State v. Rodgers, supra, 652.

We conclude, therefore, that the court did not abuse its discretion by admitting the challenged testimony.

Ill

Finally, the defendant claims that the evidence adduced at trial was insufficient to support his conviction of two counts of sexual assault in the first degree and one count of attempt to commit sexual assault in the first degree. Specifically, the defendant claims that the state did not prove beyond a reasonable doubt that he (1) engaged in sexual intercourse with the victim, as required for conviction of the two counts of sexual assault in the first degree, and (2) took a substantial step in a course of conduct planned to culminate in vaginal intercourse with the victim, as required for conviction of the one count of attempt to commit sexual assault in the first degree. We disagree.

We begin by setting forth the applicable standard of review. “Appellate analysis of [a sufficiency of the evidence claim] requires us to undertake a well defined, twofold task. We first review the evidence presented at the trial, construing it in the light most favorable to sustaining the jury’s verdict. We then determine whether, upon the facts thus established and the inferences reasonably drawn therefrom, the jury could reasonably have concluded that the cumulative effect of the evidence established guilt beyond a reasonable doubt. ... In this process of review, it does not diminish the probative force of the evidence that it consists, in whole or in part, of evidence that is circumstantial rather than direct. ... It is not one fact, but the cumulative impact of a multitude of facts which establishes guilt in a case involving substantial circumstantial evidence.” (Citations omitted; internal quotation marks omitted.) State v. Sinclair, 197 Conn. 574, 576-77, 500 A.2d 539 (1985).

“While the jury must find every element proven beyond a reasonable doubt in order to find the defendant guilty of the charged offense, each of the basic and inferred facts underlying those conclusions need not be proved beyond a reasonable doubt. . . . If it is reasonable and logical for the jury to conclude that a basic fact or an inferred fact is true, the jury is permitted to consider the fact proven and may consider it in combination with other proven facts in determining whether the cumulative effect of all the evidence proves the defendant guilty of all the elements of the crime charged beyond a reasonable doubt. . . . Moreover, [i]n evaluating evidence that could yield contrary inferences, the [jury] is not required to accept as dispositive those inferences that are consistent with the defendant’s innocence. ... As we have often noted, proof beyond a reasonable doubt does not mean proof beyond all possible doubt . . . nor does proof beyond a reasonable doubt require acceptance of every hypothesis of innocence posed by the defendant that, had it been found credible by the [jury], would have resulted in an acquittal. .. . On appeal, we do not ask whether there is a reasonable view of the evidence that would support a reasonable hypothesis of innocence. We ask, instead, whether there is a reasonable view of the evidence that supports the jury’s verdict of guilty.” (Citations omitted; internal quotation marks omitted.) State v. Torres, 242 Conn. 485, 489-90, 698 A.2d 898 (1997).

A

We first consider the defendant’s claim that the state produced insufficient evidence to prove beyond a reasonable doubt that he engaged in sexual intercourse with the victim.

Section 53a-70 (a) provides in relevant part: “A person is guilty of sexual assault in the first degree when such person ... (2) engages in sexual intercourse with another person and such other person is under thirteen years of age and the actor is more than two years older than such person . . . .” For purposes of this section, sexual intercourse with another person is defined in relevant part as “vaginal intercourse, anal intercourse, fellatio or cunnilingus between persons regardless of sex. . . . Penetration, however slight, is sufficient to complete vaginal intercourse, anal intercourse or fellatio and does not require emission of semen.” General Statutes § 53a-65 (2). Therefore, in order to convict a defendant of sexual assault in the first degree, the state must prove beyond a reasonable doubt that the defendant penetrated the victim sexually. State v. Rodgers, supra, 207 Conn. 651; State v. Artis, 198 Conn. 617, 621, 503 A.2d 1181 (1986).

In his brief on appeal, the defendant contends that the state did not prove the essential element of penetration. More specifically, the defendant claims that the evidence did not show beyond a reasonable doubt that he engaged in fellatio or anal intercourse with the victim, as charged in the second substitute information. In support of his argument, the defendant relies on the fact that the state did not produce any direct evidence of penetration and claims that the circumstantial testimony was wholly insufficient. We disagree.

As we stated, the state may choose to establish the elements of a crime by direct or circumstantial evidence, or both. “[I]t does not diminish the probative force of the evidence that it consists, in whole or in part, of evidence that is circumstantial rather than direct.” State v. Sinclair, supra, 197 Conn. 576. Moreover, with regard to sexual assault charges, our Supreme Court has specifically recognized that “[w]hether there was actual penetration [is] a question of fact for the jury. . . . Proof of penetration need not take any particular form and may be proved by circumstantial evidence.” (Citation omitted.) State v. Artis, supra, 198 Conn. 621. Thus, the mere fact that the state in this case relied wholly on circumstantial evidence is not, in and of itself, sufficient to support the defendant’s argument.

Construing the evidence in the light most favorable to sustaining the jury’s verdict, we find that the circumstantial evidence was sufficient to show beyond a reasonable doubt that the defendant engaged in fellatio and anal intercourse with the victim. At trial, the state introduced evidence that showed that the victim had no serious injuries prior to being left alone with the defendant. After the approximate one and one-half hour period that the defendant was alone with the victim, however, the victim sustained serious injuries to her face, mouth, ears, feet, ankles and anal area. Evaluation of these injuries by three medical professionals revealed that the injuries were not consistent with the types of injuries that a child of the victim’s age typically would sustain but instead were more consistent with sexual abuse. As the defendant was the only male in the house during the time that the victim sustained the injuries, the juiy reasonably could have inferred that the defendant was the source of the injuries.

Additionally, as our Supreme Court has noted: “The state of mind which is characterized as guilty consciousness or consciousness of guilt is strong evidence that the person is indeed guilty . . . .” (Internal quotation marks omitted.) State v. Reid, 193 Conn. 646, 655, 480 A.2d 463 (1984). In the present case, the record shows that the defendant lied to the police about numerous facts, including the time he had arrived at H’s house and whether he had any contact with the victim. It was only after the police confronted the defendant with the information provided by H that he admitted the truth. In addition to lying to the police, the defendant told H to he to the police about his name and the time he had arrived at her house on the date of the incident. Therefore, in reaching its decision, the jury could have inferred that the defendant had a guilty state of mind from his false statements to the police and his requests for H to he to the pohce.

Accordingly, we conclude that the jury reasonably could have concluded that the defendant engaged in fellatio and anal intercourse with the victim on the basis of the evidence adduced at trial and the inferences reasonably drawn therefrom.

B

We next consider the defendant’s claim that the state produced insufficient evidence to prove beyond a reasonable doubt that he took a substantial step in a course of conduct planned to culminate in vaginal intercourse with the victim.

“In order to convict the defendant of [attempt to commit] sexual assault in the first degree in violation of §§ 53a-70 and 53a-49 (a) (2), the state must have proven beyond a reasonable doubt that the defendant acted with the specific intent to commit sexual assault in the first degree which in turn included the intent to have sexual intercourse . . . and that the defendant took a substantial step in a course of conduct planned to culminate in his commission of the crime. . . .

“Intent may be inferred from the conduct of the accused. . . . The intent of the actor is an issue to be determined by the trier of fact. . . . Likewise, what constitutes a substantial step in any given case is a matter of degree and a question of fact for the jury. . . . The substantial step must be at least the start of a line of conduct which will lead naturally to the commission of a crime which appears to the actor at least to be possible of commission by the means adopted.” (Citations omitted; emphasis in original; internal quotation marks omitted.) State v. Milardo, 224 Conn. 397, 403-404, 618 A.2d 1347 (1993).

After our review of the record, we conclude that there was sufficient evidence for the jury to find the defendant guilty, beyond a reasonable doubt, of attempt to commit sexual assault in the first degree. The state presented evidence that the defendant requested to be left alone with the victim and then spent approximately one and one-half hours alone with the victim. Furthermore, the evidence showed that the victim had generalized bruising in her genital area, indicative of a forceful compression, and had vaginal, labial and hymeneal bruising that was consistent with a direct forceful injury from an erect adult penis. On the basis of this evidence and the fact that the defendant was the only male present when the injuries occurred, the jury reasonably could have found that the defendant had the specific intent to engage in vaginal intercourse with the victim and had taken a substantial step in a course of conduct planned to culminate in vaginal intercourse with her.

Accordingly, we conclude that the jury reasonably could have concluded that the defendant took a substantial step in a course of conduct planned to culminate in sexual intercourse with the victim on the basis of the evidence adduced at trial and the inferences reasonably drawn therefrom.

The judgment is affirmed.

In this opinion the other judges concurred.

       Although the record reveals that the victim, on the morning of May 17, 2006, may have sustained an injury to her face as a result of a dog bite, witness testimony indicates that this injury was trivial.

       Although D did not see the victim on the morning of May 17, 2006, he had seen her on the evening of May 16, 2006. D testified that the injuries he observed on May 17, 2006, were not present on the victim the previous evening.

       The frenum is the small strip of tissue that connects the tongue to the floor of the mouth.

       The defendant was sentenced to a total effective term of seventy years imprisonment, execution suspended after fifty-five years, and ten years probation.

       The defendant also bases his insufficiency of the evidence claim partially on the argument that he advanced in his previous claim, namely, that the court improperly admitted a portion of Geertsma’s testimony. Because the court properly admitted Geertsma’s testimony, we do not consider that argument.

       For example, Judith Moskal-Kanz, a pediatric nurse practitioner and forensic examiner specializing in child sexual abuse, was one of the medical professionals who examined the victim on May 18, 2006. At trial, when asked whether the injuries to the victim’s mouth and anal area were “naturally occurring injur[ies],” Moskal-Kanz testified that, to a reasonable degree of medical certainty, the injury to the victim’s anal area was caused by “jpjenile penetration” and that the injuries to the victim’s mouth were caused by “[ojral penetration.”


source: Caselaw Access Project

author: SCHALLER, J.

license: Public Domain

text:
    ST. PAUL’S FLAX HILL CO-OPERATIVE v. ZENA MAE JOHNSON ET AL.
    (AC 31288)
    Harper, Robinson and SchaUer, Js.

      Argued September 7
    officially released November 2, 2010

      Sean C. Donohue, for the appellant (defendant Larry K. Johnson).

      Frederic S. Brody, for the appellant (named defendant).

      Steven G. Berg, for the appellee (plaintiff).
   Opinion

SCHALLER, J.

The defendant Larry K. Johnson appeals from the judgment of the trial court in favor of the plaintiff, St. Paul’s Flax Hill Co-operative, in its summary process action alleging, among other things, that the defendant had no legal right or privilege to occupy the premises at issue. The defendant claims that the trial court should have dismissed the summary process action (1) on the ground that the court lacked subject matter jurisdiction in that the plaintiff simultaneously served a pretermination notice and notice to quit, and (2) on the ground that the plaintiff failed to return the complaint within three days of the return day pursuant to General Statutes § 47a-23a. We affirm the judgment of the trial court.

The following facts and procedural history are relevant to the defendant’s appeal. The premises owned by the plaintiff is a housing cooperative sponsored and subsidized by the United States Department of Housing and Urban Development (HUD) and is subject to regulation by that agency. The plaintiff served the defendant with a pretermination notice dated November 18, 2008, asserting that his “unauthorized occupation of [the premises would] be terminated effective December 12, 2008.” He was advised therein that he may correct the claimed violation within twenty-one days by moving out of the unit. On that same date, he was also served with a notice to quit possession on or before December 12, 2008, on the ground that he had no right to occupy the premises. The defendant did not quit the premises, and the plaintiff commenced a summary process action by service of process on February 7, 2009. In count three of its complaint, the plaintiff alleged that the written lease and occupancy agreement prohibited occupancy by persons who were not approved by the board and that the defendant had no legal right to occupy the premises in that he was not a party to the lease or occupancy agreement.

The defendant filed a pro se appearance on February 23,2009. In his answer, he admitted that he had received the pretermination notice and notice to quit. On April 22, 2009, the defendant filed a motion to dismiss on the ground that the simultaneous service of the pretermination notice and notice to quit deprived him of the fifteen day cure period required by General Statutes § 47a-15 and deprived the court of subject matter jurisdiction. The court denied the motion in an oral decision on April 23, 2009. On April 28, 2009, counsel for the defendant entered an appearance and, on May 7, 2009, moved to dismiss for want of subject matter jurisdiction raising the same ground, which the court again denied.

Zena Mae Johnson, the defendant’s mother, had entered into an occupancy agreement with the plaintiff in 1977. On the basis of the testimony and evidence presented at trial, the court found that the defendant was not a party to that agreement. He was never approved as an occupant by the plaintiff or by HUD. He occupied the premises for an undetermined period of time and, at some point, his occupancy was interrupted by his incarceration. The court concluded that the defendant was not a lawful tenant and was not entitled to a pretermination notice. The court found in favor of the plaintiff and ordered the defendant evicted from the premises. See footnote 1 of this opinion. This appeal followed.

I

The defendant claims that the trial court improperly refused to dismiss the summary process action for lack of subject matter jurisdiction because the plaintiff, alleging a violation of § 47a-15, simultaneously served a pretermination notice and notice to quit on him, thus rendering the notice to quit defective. The plaintiff argues that although it served gratuitously a pretermination notice on the defendant, it was not required to do so because he was not a tenant. We agree with the plaintiff that the defendant was not entitled to a pretermination notice pursuant to § 47a-15 and accordingly affirm the judgment of the trial court.

Before addressing the specifics of the defendant’s claim, it is helpful to identify the legal principles regarding summary process actions. “Summary process is a special statutory procedure designed to provide an expeditious remedy. ... It enable[s] landlords to obtain possession of leased premises without suffering the delay, loss and expense to which, under the common-law actions, they might be subjected by tenants wrongfully holding over their terms. . . . Summary process statutes secure a prompt hearing and final determination. . . . Therefore, the statutes relating to summary process must be narrowly construed and strictly followed.” (Citations omitted; internal quotation marks omitted.) Young v. Young, 249 Conn. 482, 487-88, 733 A.2d 835 (1999). It must be noted, however, that based on the language of General Statutes § 47a-23, “[n]o leasehold interest is required for dispossession under § 47a-23. [Otherwise] . . . trespassers and squatters would enjoy far more rights than legitimate tenants. Section 47a-23 provides for dispossession against any person who has no right or privilege to occupy such premises . . . .” (Internal quotation marks omitted.) Urban v. Prims, 35 Conn. Sup. 233, 234, 406 A.2d 11 (1979). Our Supreme Court has stated that “[a]s a condition precedent to a summary process action, proper notice to quit [pursuant to § 47a-23] is a jurisdictional necessity.” (Internal quotation marks omitted.) Bayer v. Showmotion, Inc., 292 Conn. 381, 388, 973 A.2d 1229 (2009).

We now identify the applicable standard of review. The defendant’s “motion to dismiss . . . properly attacks the jurisdiction of the court, essentially asserting that the plaintiff cannot as a matter of law and fact state a cause of action that should be heard by the court. ... A motion to dismiss tests, inter alia, whether, on the face of the record, the court is without jurisdiction. . . . [0]ur review of the court’s ultimate legal conclusion and resulting [determination] of the motion to dismiss [is] de novo.” (Internal quotation marks omitted.) Waterbury Twin, LLC v. Renal Treatment Centers-Northeast, Inc., 292 Conn. 459, 466-67, 974 A.2d 626 (2009).

Pursuant to § 47a-15, before a landlord may proceed with a summary process action, except in those situations specifically excluded, the landlord must first deliver a notice to the tenant specifying the alleged violations and offer the tenant a fifteen day period to remedy. See Housing Authority v. DeRoche, 112 Conn. App. 355, 361-62, 962 A.2d 904 (2009); Housing Authority v. Martin, 95 Conn. App. 802, 813, 898 A.2d 245, cert. denied, 280 Conn. 904, 907 A.2d 90 (2006); see also Kapa Associates v. Flores, 35 Conn. Sup. 274, 408 A.2d 22 (1979) (decided under General Statutes [Rev. to 1979] § 47a-15, requiring thirty day notice period). “The legislative purpose [of a pretermination or Kapa notice] is to discourage summary evictions against first offenders . . . .” Marrinan v. Hamer, 5 Conn. App. 101, 104, 497 A.2d 67 (1985). The salutary purpose of this notice is to apprise the tenant of the information he needs to protect himself against premature, discriminatory or arbitrary eviction. See Jefferson Garden Associates v. Greene, 202 Conn. 128, 143, 520 A.2d 173 (1987). “This notice provision has been interpreted to be separate from and preliminary to the maintenance of a summary process action pursuant to ... § 47a-23.” Housing Authority v. Harris, 225 Conn. 600, 605, 625 A.2d 816 (1993); Ossen v. Kreutzer, 19 Conn. App. 564, 569, 563 A.2d 741 (1989); see also Bridgeport v. Barbour-Daniel Electronics, Inc., 16 Conn. App. 574, 593, 548 A.2d 744 (Borden, J., dissenting) (“a § 47a-15 notice is a necessary precondition to the landlord’s right to serve a notice to quit arising out of the tenant’s material noncompliance”), cert. denied, 209 Conn. 826, 552 A.2d 432 (1988).

A pretermination notice pursuant to § 47a-15 does not have the effect of terminating a tenancy or of altering the relationship of the landlord and tenant. See Kapa Associates v. Flores, supra, 35 Conn. Sup. 278. In contrast, it is well established that service of a notice to quit possession pursuant to § 47a-23 is typically an unequivocal act terminating a lease agreement with a tenant. See Thompson v. Coe, 96 Conn. 644, 651, 115 A. 219 (1921) (“[w]e think the service of the notice to quit was a definite, unequivocal act of the lessor showing the exercise of her option to terminate, and that it took effect on . . . the date the notice was served”); Sproviero v. J.M. Scott Associates, Inc., 108 Conn. App. 454, 458 n.2, 948 A.2d 379 (“[s]ervice of a notice to quit possession is typically a landlord’s unequivocal act notifying the tenant of the termination of the lease” [internal quotation marks omitted]), cert. denied, 289 Conn. 906, 957 A.2d 873 (2008). It would be inconsistent with the salutary purpose of § 47a-15 to condone simultaneous delivery of a pretermination notice and a notice to quit on a tenant.

The issue in the present appeal is whether the defendant, an adult person whose occupancy was not approved by the plaintiff when such approval was required and who was not a party to the written lease and occupancy agreement, is entitled to a pretermination notice pursuant to § 47a-15. This issue “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 seeking to determine [the] meaning [of a statute], 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.” (Citations omitted; internal quotation marks omitted.) Saunders v. Firtel, 293 Conn. 515, 525, 978 A.2d 487 (2009).

Section 47a-15 is set forth in chapter 830 of the General Statutes. Section 47a-15 requires that “the landlord shall deliver a written notice to the tenant specifying the acts or omissions constituting the breach and that the rental agreement shall terminate upon a date not less than fifteen days after receipt of the notice. . . .” (Emphasis added.) General Statutes § 47a-l contains definitions “[a]s used in this chapter and sections 47a-21, 47a-23 to 47a-23c, inclusive . . . .” Therein, “tenant” is defined as “the lessee, sublessee or person entitled under a rental agreement to occupy a dwelling unit or premises to the exclusion of others or as is otherwise defined by law.” General Statutes § 47a-l (£).

On the basis of the plain language of the statute, we conclude that the protections of § 47a-15 do not inure to the defendant in this case. The defendant was not a tenant. The summary process complaint states unequivocally that the defendant had “no legal right to occupy the [premises,” as did the notice to quit. The defendant, having no right or privilege to occupy the premises, was not entitled to a separate pretermination notice pursuant to § 47a-15 because he could not remedy the violation except by his quitting the premises. Accordingly, the defendant’s claim that the notice to quit was rendered defective because the plaintiff served simultaneously a pretermination notice fails because § 47a-15 does not apply to him. We find no merit in the defendant’s claim that even if the plaintiff served a pretermination notice on him gratuitously, he is entitled to the additional protection of § 47a-15. Additionally, we note that the defendant was afforded twenty-one days from the date of his notice to quit, and he makes no claim that the notice to quit was otherwise defective in the manner of its delivery or in its content.

We conclude that the trial court properly refused to dismiss because the notice to quit was not defective.

II

The defendant also claims that the trial court should have dismissed the action on the ground that the plaintiff failed to return the complaint within three days of the return day pursuant to § 47a-23a. He argues that this failure goes to the subject matter jurisdiction of the trial court. In response, the plaintiff argues that no motion to dismiss was filed on that ground. We conclude that a late return pursuant to § 47a-23a does not implicate the subject matter jurisdiction of the trial court.

The following additional facts and procedural history are relevant to the defendant’s claim. The summons and complaint bear a return date of February 20, 2009. The plaintiff returned the process to court on February 19, 2009. On April 22, 2010, the defendant filed a motion to dismiss, raising only the defective notice to quit ground discussed in part I of this decision. At oral argument on April 23, 2009, the defendant, who was arguing pro se, attempted to raise the claim, for the first time, that the plaintiff had failed to return the complaint within three days of the return day. The court noted that this ground was not raised in the written motion that he had submitted to the court and denied the motion to dismiss on the ground raised therein. On May 7, 2009, counsel for the defendant moved to dismiss, asserting only the defective notice to quit as his ground for dismissal. Only in his memorandum of law did the defendant, in passing, raise the issue of the late return, arguing that such defect implicated the court’s subject matter jurisdiction. In its ruling on June 23, 2009, the court noted that, regarding the question of the late return, the defendant’s motion was untimely and that the defect was voidable.

The plaintiffs argument that the issue of the late return was not squarely before the trial court is of no moment because “it is well established that a reviewing court properly may address jurisdictional claims that neither were raised nor ruled on in the trial court. . . . Indeed, [o]nce the question of lack of jurisdiction of a court is raised, [it] must be disposed of no matter in what form it is presented.” (Internal quotation marks omitted.) In re DeLeon J., 290 Conn. 371, 376, 963 A.2d 53 (2009).

This court has held that late return of process pursuant to § 47a-23a renders a summary process action voidable and subject to dismissal upon the defendant’s timely motion. Arpaia v. Corrone, 18 Conn. App. 539, 540-41, 559 A.2d 719 (1989). Otherwise, the defendant waives the jurisdictional defect. Id., 541. “Unlike the situation with subject matter jurisdiction, a party waives the right to dispute personal jurisdiction unless that party files a motion to dismiss within thirty days of the filing of an appearance. . . . Personal jurisdiction is not like subject matter jurisdiction, which can be raised at any time and by the court on its own motion. . . . Unless the issue of personal jurisdiction is raised by a timely motion to dismiss, any challenge to the court’s personal jurisdiction over the defendant is lost.” (Internal quotation marks omitted.) Rock Rimmon Grange # 142, Inc. v. The Bible Speaks Ministries, Inc., 92 Conn. App. 410, 416, 885 A.2d 768 (2005); see also Practice Book §§ 10-30 and 10-32.

Because the defendant can waive the jurisdictional defect of a late return in a summary process action, it does not implicate the court’s subject matter jurisdiction. The earliest possible objection to the late return occurred on April 23, 2009, which was more than thirty days after the date that the defendant entered his pro se appearance on February 23, 2009. Accordingly, we conclude that the trial court’s refusal to dismiss on that ground was not improper.

The judgment is affirmed.

In this opinion the other judges concurred.

       Johnson is the adult son of the defendant Zena Mae Johnson. In its summary process action, the plaintiff alleged, and the court found, that Zena Mae Johnson had violated her lease by permitting an unauthorized person, Larry K. Johnson, to reside in the premises. The court rendered judgment of immediate possession in favor of the plaintiff on that count but ruled that “equity prevents the issuance of an execution as to Zena [Mae] Johnson.” Zena Mae Johnson does not appeal from that ruling. Accordingly, we refer in this opinion to Larry K. Johnson as the defendant.

       The defendant also claims that the trial court improperly (1) concluded that his prior criminal conviction for sexual assault rose to the level of being a serious nuisance within the meaning of General Statutes § 47a-15, and (2) concluded that his occupation of the premises was in violation of United States Department of Housing and Urban Development (HUD) notice requirements that owners deny admission to federally assisted housing to any member of the household subject to a lifetime registration requirement under a state sex offender registration program.
      Because we affirm the judgment in favor of the plaintiff on the ground that the defendant never had the right or privilege to occupy the premises, we do not reach the claims relating to the separate count asserting a violation of the HUD regulations.

       This would have had the effect of curing Zena Mae Johnson’s lease violation. See footnote 1 of this opinion.

       Counts one and two pertained to Zena Mae Johnson, who is not a party to this appeal. See footnote 1 of this opinion. In count four, the plaintiff alleged that the defendant’s occupancy violated a HUD requirement pertaining to the defendant’s prior criminal conviction. See footnote 2 of this opinion.

       Pursuant to the federal regulations that govern the premises, the plaintiffs approval was required to add any family members as occupants. “A lease shall be entered into between the [Public Housing Authority (PHA)] and each tenant of a dwelling unit which shall contain the provisions described hereinafter. . . . The composition of the household as approved by the PHA (family members and any PHA-approved live-in-aide). The family must promptly inform the PHA of the birth, adoption or court-awarded custody of a child. The family must request PHA approval to add any other family member as an occupant of the unit.” 24 C.F.R. § 966.4 (a) (1) (v).

       General Statutes § 47a-15 provides in relevant part: “Prior to the commencement of a summary process action, except in the case in which the landlord elects to proceed under sections 47a-23 to 47a-23b, inclusive, to evict based on nonpayment of rent, on conduct by the tenant which constitutes a serious nuisance or on a violation of subsection (h) of section 47a-11, if there is amaterial noncompliance with section 47a-ll which materially affects the health and safety of the other tenants or materially affects the physical condition of the premises, or if there is a material noncompliance by the tenant with the rental agreement or a material noncompliance with the rules and regulations adopted in accordance with section 47a-9, and the landlord chooses to evict based on such noncompliance, the landlord shall deliver a written notice to the tenant specifying the acts or omissions constituting the breach and that the rental agreement shall terminate upon a date not less than fifteen days after receipt of the notice. ...”

       General Statutes § 47a-23 (a) provides in relevant part: “When the owner or lessor . . . desires to obtain possession or occupancy of . . . any apartment in any building . . . and (2) when such premises, or any part thereof, is occupied by one who never had a right or privilege to occupy such premises . . . such owner or lessor . . . shall give notice to each lessee or occupant to quit possession or occupancy of such . . . apartment . . . at least three days before the termination of the rental agreement or lease, if any, or before the time specified in the notice for the lessee or occupant to quit possession or occupancy.”

       Insofar as the defendant argues that the simultaneous delivery of the pretermination notice and notice to quit rendered defective the notice to quit served on Zena Mae Johnson, he does not have standing to assert such a claim. “The issue of standing implicates the court’s subject matter jurisdiction. . . . Standing focuses on the party seeking to be heard and not on the issues that party wants to have heard. . . . The question of standing does not involve an inquiry into the merits of the case. ... It merely requires allegations of a colorable claim of injury to an interest that is arguably protected by [a] statute or common law.” (Internal quotation marks omitted.) McGinty v. McGinty, 66 Conn. App. 35, 38, 783 A.2d 1170 (2001) (holding that plaintiff mother did not have standing to assert right that belonged to her minor child).
      The defendant attempts to stand in the shoes of Zena Mae Johnson, the lessee, who has been a continuous tenant for over thirty years and who is entitled to the additional protection afforded by § 47a-15. Zena Mae Johnson is not a party to this appeal; see footnote 1 of this opinion; and the defendant cannot assert a claim that pertains to her but not to him.

       General Statutes § 47a-23a (a) provides in relevant part: “If, at the expiration of the three days prescribed in section 47a-23, the lessee or occupant neglects or refuses to quit possession or occupancy of the premises, any commissioner of the Superior Court may issue a writ, summons and complaint which shall be in the form and nature of an ordinary writ, summons and complaint in a civil process, but which shall set forth facts justifying a judgment for immediate possession or occupancy of the premises and make a claim for possession or occupancy of the premises. . . . Such complaint may be made returnable six days, inclusive, after service upon the defendant and shall be returned to court at least three days before the return day. ...” (Emphasis added.)

       Appellate courts may take judicial notice of files of the trial court in the same or other cases. State v. Adams, 117 Conn. App. 747, 749 n.3, 982 A.2d 187 (2009).


author: PER CURIAM.

text:
    ALEXIS GONZALEZ v. COMMISSIONER OF CORRECTION
    (AC 31096)
    DiPentima, C. J., and Lavine and Bear, Js.

      Submitted on briefs September 10
    officially released November 2, 2010

      Dante R. Gallucci, special public defender, filed a brief for the appellant (petitioner).

      Scott J. Murphy, state’s attorney, Tamara A. Grosso, special deputy assistant state’s attorney, and Michael J. Proto, assistant state’s attorney, filed a brief for the appellee (respondent).
   Opinion

PER CURIAM.

The petitioner, Alexis Gonzalez, appeals from the judgment of the habeas court denying his petition for a writ of habeas corpus. On appeal, the petitioner claims that the court improperly concluded that his trial counsel did not render ineffective assistance in connection with his guilty plea to the charges of assault in the first degree in violation of General Statutes § 53a-59 (a) (1), and conspiracy to commit murder in violation of General Statutes §§ 53a-48 and 53a-54a. We disagree and affirm the judgment of the habeas court.

The following facts and procedural history are relevant to the issue on appeal. On January 31, 2000, the petitioner, Victor Diaz and Carlos Diaz were driving through New Britain with the intent to find and to kill Jesus Torres. The three individuals eventually came upon Torres walking with a friend, Javier Mejias. Leaning out the window of his vehicle, the petitioner fired several gunshots at Torres, one of which struck Torres in the head and blinded him in the left eye.

Through their investigation, the police quickly were able to link the petitioner to the shooting. Torres, Mejias, Victor Diaz and Carlos Diaz all identified the petitioner as the shooter, either by name or through a lineup. Torres also provided the police with a description of the petitioner’s vehicle, which matched a vehicle owned by the boyfriend of the petitioner’s sister. The police learned shortly after the incident that the petitioner had borrowed the boyfriend’s vehicle on the night of the shooting.

On January 24, 2001, the petitioner pleaded guilty to the charges of assault in the first degree and conspiracy to commit murder in exchange for a recommended sentence of thirty years imprisonment, execution suspended after fifteen years on the assault charge, and fifteen years imprisonment plus five years probation on the charge of conspiracy to commit murder, to run concurrently. The petitioner was represented by attorney Claud Chong during plea negotiations with the state and during the proceedings in which the petitioner pleaded guilty and was sentenced.

On December 26, 2008, the petitioner filed a revised amended petition for a writ of habeas corpus, claiming that his trial attorney had rendered ineffective assistance. In his petition, the petitioner argued, inter alia, that Chong had failed to communicate with and advise him effectively concerning the charges brought by the state and his available courses of action. After a one day hearing on the petition, the court denied the petition for a writ of habeas corpus, holding that, even if deficient performance were to be presumed, the petitioner failed to demonstrate any prejudice resulting from that performance. Specifically, the court found that the petitioner had faded to present any evidence that likely would have led to a different result had he chosen to go to trial, or any mitigating evidence that, if presented at sentencing, could have led to a reduced term of incarceration. The court noted that the petitioner’s sentence was extremely favorable under the circumstances and that had he chosen to go to trial, it was highly likely that he would have been convicted on at least two, if not all three, of the original charges. The petitioner’s petition for certification to appeal was granted by the court on May 6, 2009.

We first begin by setting forth the proper standard of review. “The habeas court is afforded broad discretion in making its factual findings, and those findings will not be disturbed unless they are clearly erroneous. . . . The application of the habeas court’s factual findings to the pertinent legal standard, however, presents a mixed question of law and fact, which is subject to plenary review.” (Internal quotation marks omitted.) Vazquez v. Commissioner of Correction, 123 Conn. App. 424, 435, 1 A.3d 1242 (2010).

“In Strickland v. Washington, [466 U.S. 668, 687, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984)], the United States Supreme Court established that for a petitioner to prevail on a claim of ineffective assistance of counsel, he must show that counsel’s assistance was so defective as to require reversal of [the] conviction . . . .” (Internal quotation marks omitted.) Smith v. Commissioner of Correction, 116 Conn. App. 383, 386, 975 A.2d 751, cert. denied, 293 Conn. 925, 980 A.2d 912 (2009). “For ineffectiveness claims resulting from guilty pleas, we apply the standard set forth in Hill v. Lockhart, 474 U.S. 52, 59, 106 S. Ct. 366, 88 L. Ed. 2d 203 (1985), which modified Strickland’s prejudice prong.” (Internal quotation marks omitted.) Greene v. Commissioner of Correction, 123 Conn. App. 121, 127, 2 A.3d 29 (2010).

Under the Strickland test, as modified by Hill, “[a] claim of ineffective assistance of counsel consists of two components: a performance prong and a prejudice prong. To satisfy the performance prong . . . the petitioner must demonstrate that his attorney’s representation was not reasonably competent or within the range of competence displayed by lawyers with ordinary training and skill in the criminal law. ... To satisfy the prejudice prong, a claimant must demonstrate that there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.” (Internal quotation marks omitted.) Corona v. Commissioner of Correction, 123 Conn. App. 347, 352, 1 A.3d 1226 (2010). “Because the petitioner must satisfy both prongs of the Strickland test to prevail on a habeas corpus petition, this court may dispose of the petitioner’s claim if he fails to meet either prong.” (Emphasis in original; internal quotation marks omitted.) Richardson v. Commissioner of Correction, 123 Conn. App. 301, 306, 1 A.3d 1142 (2010).

We begin our analysis of the petitioner’s claim with the second prong of the Strickland test. In its memorandum of decision denying the petition for a writ of habeas corpus, the court found that the petitioner had failed to establish any prejudice resulting from Chong’s representation. On appeal, the petitioner does not argue that the outcome of his case would have been different if he had gone to trial or negotiated for another deal. Instead, his only argument is that “a Spanish speaking defendant who is facing serious felony charges, and a long jail sentence, is entitled to more than one interpreter assisted meeting with his attorney . . . and that the evidence that only one such meeting took place . . . is . . . prejudicial on its face.” This does not meet the standard that is necessary to prove prejudice under Strickland.

We conclude that the petitioner has failed to demonstrate that, but for Chong’s representation, he would not have been convicted had he gone to trial or would have received a more favorable sentence. Therefore, we agree with the habeas court that the petitioner has not satisfied the prejudice prong of the Strickland test.

The judgment is affirmed.

       The petitioner originally was charged with attempt to commit murder in violation of General Statutes §§ 53a-49 and 53a-54a along with assault in the first degree and conspiracy to commit murder. These charges carried a potential sentence of up to sixty years incarceration, five of which could have been a mandatory minimum.


author: BISHOP, J.

text:
    STATE OF CONNECTICUT v. LUIS ROJAS
    (AC 30590)
    Bishop, Graendel and West, Js.

      Argued September 7
    officially released November 2, 2010

      Glenn W. Falk, special public defender, for the appellant (defendant).

      Melissa L. Streeto, assistant state’s attorney, with whom, on the brief, were Gail P. Hardy, state’s attorney, and Anthony Bochicchio, senior assistant state’s attorney, for the appellee (state).
   Opinion

BISHOP, J.

The defendant, Luis Rojas, appeals from the judgment of conviction, rendered after a jury trial, of robbery in the first degree in violation of General Statutes § 53a-134 (a) (4) and burglary in the third degree in violation of General Statutes § 53a-103. On appeal, the defendant claims that the trial court failed to make an adequate inquiry into allegations that there was no meaningful communication between the defendant and his trial counsel and that the attorney-client relationship had broken down irretrievably. We affirm the judgment of the trial court.

The procedural facts underlying the defendant’s claim predate the trial. On July 31, 2007, the trial court appointed the public defender to represent the defendant. Subsequently, on August 2, 2007, special public defender Richard E. Cohen entered his appearance with the court as counsel for the defendant. On November 16,2007, Cohen filed a motion to withdraw appearance, citing mistrust by the defendant caused by disagreements over trial strategy, alack of meaningful communication between the defendant and himself and his belief that the attorney-client relationship was broken irretrievably. The motion included the following assertion by Cohen: “I believe that the absence of an ongoing attorney-client relationship poses a direct and material threat to the defendant.”

The record reflects that at a hearing on Cohen’s motion on January 24, 2008, the court, Gold, J., was aware that the defendant desired the appointment of a new public defender, and the court gave the defendant an opportunity to verbalize his complaints regarding Cohen’s handling of his case. The defendant’s complaints can be summarized as follows: Cohen was too young; Cohen refused to give him his paperwork; and Cohen would not file pretrial motions proposed by the defendant. In response to the defendant’s concerns, the court verified with Cohen that the defendant had received copies of all materials to which he was entitled. During the discussion, the defendant became belligerent and was removed from the courtroom.

The matter was continued on February 4, 2008, at which time Cohen confirmed that he and the defendant disagreed about which motions were appropriate to file. Cohen stated, for example, that the defendant insisted that discovery motions be filed even though Cohen deemed them unnecessary because the prosecutor’s file was open to the defense. In response to Cohen’s assertion, the defendant expressed doubt that he had seen all of the documents held by the prosecutor because, in his estimation, the documents he had seen did not provide sufficient grounds for an arrest warrant to have issued. After hearing from both the defendant and Cohen, the court denied Cohen’s motion to withdraw his appearance, expressing faith that they would cooperate, and the court set a date for a final pretrial hearing.

The defendant and Cohen next appeared on April 4, 2008, when the defendant alleged that there was no attorney-client communication and that Cohen was not acting in the defendant’s best interest, citing Cohen’s previous motion to withdraw as evidence of this belief. He also repeated his complaints that Cohen had refused to file motions proposed by the defendant and failed to provide him with the entire file. The court addressed the defendant’s complaints, noting that “we’ve been stuck in this holding pattern,” and concluded that Cohen had “done everything that he’s supposed to do and more.” The defendant then repeated his request for new counsel, which the court denied.

After a jury trial, during which he was represented by Cohen, the defendant was found guilty and sentenced to twenty-five years in prison, execution suspended after twenty years, with five years of probation. This appeal followed.

The defendant claims on appeal that the court failed to make an adequate inquiry into allegations that there was no meaningful communication between the defendant and Cohen and that the attorney-client relationship had broken down irretrievably. We are not persuaded.

The sixth amendment to the United States constitution guarantees effective assistance of counsel to a criminal defendant. Consequently, “[a] trial court has a responsibility to inquire into and to evaluate carefully all substantial complaints concerning court-appointed counsel .... The extent of that inquiry, however, lies within the discretion of the trial court. ... A trial court does not abuse its discretion by failing to make further inquiry where the [defendant] has already had an adequate opportunity to inform the trial court of his complaints.” (Internal quotation marks omitted.) In re Jeremy M., 100 Conn. App. 436, 456, 918 A.2d 944, cert. denied, 282 Conn. 927, 926 A.2d 666 (2007).

In the present case, the defendant does not argue that the court made no inquiry into his complaints about Cohen. Instead, he argues that the inquiry was inadequate because the court did not inquire directly into the allegations listed in Cohen’s motion to withdraw, namely, that a lack of communication and an irretrievably broken down attorney-client relationship posed a threat to the defendant. The court, however, gave the defendant ample opportunity to put his complaints on the record. See, e.g., State v. Arroyo, 284 Conn. 597, 644-45, 935 A.2d 975 (2007). On several occasions, the court allowed the defendant to voice his displeasure with Cohen’s services and to articulate his basis for that displeasure, which was that the defendant mistrusted Cohen and his trial strategies. Furthermore, the court addressed the defendant’s complaints, revealing the court’s thorough understanding of them. In response to the defendant’s stated grievances, the court attempted to explain motions practice to the defendant and attempted to assure the defendant of Cohen’s trustworthiness. The court also confirmed with Cohen that he would prioritize the defendant’s trial in terms of his own upcoming schedule of obligations. In short, the court was aware of the nature and scope of the defendant’s complaints not only from motions filed with the court but also by reason of the opportunity given by the court to the defendant and Cohen to articulate and to explore the defendant’s concerns fully. Accordingly, the court did not abuse its discretion by not enlarging its inquiry any further.

The judgment is affirmed.

In this opinion the other judges concurred.

       The transcript states in relevant part:
      “The Court: . . . [Y]ou have a special public defender; Mr. Cohen, is representing you. You’re asking me to appoint a different special public defender to represent you, and I’m not inclined to do that. Mr. Cohen has handled your case competently, professionally, has been responsible in his representation of you.
      “You are not entitled to handpick who your special public defender is going to be. If you wish to hire your own attorney, privately, then you can hire whomever you wish, but Mr. Cohen has done a good job in representing you. You may not like the information he’s giving you, but he’s done a good job, and you can’t decide who your special public defender is going to be.
      “The Defendant: He’s too young. I’m not trying to handpick no one.
      “The Court: Well, you don’t want—well, Mr. Cohen is the lawyer that’s been appointed to represent you.

        “The Defendant: May I address the court, please?
      “The Court: Yes.
      “The Defendant: I’m not trying to handpick a lawyer, but the reason I filed a motion to remove him from my case—
      “The Court: Yes.
      “[The Defendant]:—is for one, he—I know, and I’m sure you know as well as my attorney knows, Mr. Cohen, that to have my papers is my right to have my papers. For one, he—he refused me—he refused to give me my paperwork so I could look over my case, for one.
      “The Court: Okay.
      “The Defendant:—For two, I feel as though he violated every rule in the lawyer relationship client rules under chapter 37, Your Honor, which is [communication, diligence], good scope of representation. By denying me my paperwork and denying me the fact—I asked him, could he, please, file—I asked him when would be my first pretrial motion, my first pretrial conference. He told me December 5.1 said, could you, please, have pretrial motions filed and ready for me. And it’s because I will—I’m not—I mean, if I have to sit until trial to do—to go to—to get this done now and fight this case, well, I’ll do so, but—
      “The Court: All right.
      “The Defendant:—pretrial motions is to be filed-—excuse me. Could I finish?
      “The Court: Yes, but—
      “The Defendant: Pretrial motions is to be filed within the first ten days after the first pretrial conference. He tried to tell me he’s not going to do that. He don’t do that for me. He don’t want to send me my paperwork. I can’t—I don’t trust this guy. This guy—I don’t—I don’t—I don’t trust him. If I have—I’ll take my life into my own hands and try this case myself. He’s not doing nothing for me. Come on. He’s not doing nothing for me, and I would like to put this on record.
      “The Court: You’ve done it.
      “The Defendant: That this guy—Mr. Cohen is not doing nothing for me. He’s denying my—
      “The Court: Okay. All right. . . . [C]alm down.
      “The Defendant:—paperwork. He violated my rights.
      “The Court: I understand what you say. Now, it’s all of record. I assume, Mr. Cohen, that you will provide [the defendant] any materials to which he’s entitled.
      “[Defense Counsel]: I already have done that, Your Honor. I did send him the—all the relevant police reports. Everything I had, in other words, I sent to him.
      “The Court: And as far as pretrial motions are concerned . . .
      “The Defendant: I don’t want this guy on my case.
      “The Court: Okay.
      “The Defendant: I don’t want this guy on my case. I don’t want this guy on my case, man.
      “The Court: All right. . . .
      “The Defendant: I want my lawyer to represent me. He not doing nothing for me, man.

        “The Court: All right. Thank you ....
      “The Defendant: You’re not representing me, man.
      “(The defendant leaves the courtroom.)”

       The next matter of procedural import was three handwritten pro se motions filed by the defendant and captioned as follows: “motion and request for discovery” and “motion to suppress evidence,” both filed on February 13, 2008, and “motion to remove insufficient counsel,” filed on March 11, 2008. The record does not reveal the disposition of these three motions. However, at a proceeding on April 4, 2008, the court explained that the discovery motion was unnecessary because the state’s file was open to the defense. The court also noted, “You want Mr. Cohen to file ... a motion to suppress the witnesses’ statements. Okay. There’s no such thing.” Additionally, the court stated onApril4,2008, that it had discussed the defendant’s “motion to remove insufficient counsel” with him on March 11, 2008. If, indeed, there was a court appearance on that day involving this matter, the transcript has not been provided to us.

       The transcript of April 4, 2008, reveals that the court addressed these allegations as follows:
      “The Court: All right. Well . . . the reason Mr. Cohen filed a motion [to withdraw] was because you told him to do it. He’s not—the situation you’re in is this. You are entitled to court-appointed counsel, and the court has appointed Mr. Cohen to represent you. As I told you, if you want to hire your own lawyer, you can hire anyone that you like, and Mr. Cohen will withdraw from the case, but you are not entitled to handpick your court-appointed counsel.
      “And you keep telling me that Mr. Cohen isn’t doing anything for you, and Mr. Cohen comes and sees me in chambers every few weeks fighting for you, getting the discovery, trying to persuade the prosecutor to conduct a fuller investigation.
      “You tell—we talked about it again this morning. You want Mr. Cohen to file, among other things, a motion to suppress the witnesses’ statements. Okay. There’s no such thing. You come up with ideas. You don’t have legal training. Mr. Cohen is a lawyer who specializes in criminal law, who knows all the rules, knows how to try a case and prepare a case for trial. You give him unreasonable requests. He says, I can’t do that .... And then you say he’s not doing his job. It doesn’t work like that. If you want to hire another lawyer, well, that’s fine.”

       At the end of this proceeding on April 4, 2008, the court allowed the defendant to file several handwritten pro se motions, captioned as follows: “motion and request for discovery” (two copies), “motion to suppress evidence,” and “motion for dismissal” of the charges against him. The record does not reveal the disposition of these three motions.

       Although the question of whether the court should have appointed alternate counsel is not before us, we note that “[d]ifferences of opinion over trial strategy are not unknown, and do not necessarily compel the appointment of new counsel.” (Internal quotation marks omitted.) In re Jeremy M., supra, 100 Conn. App. 458 n.11. Additionally, “[a] defendant is not entitled to demand a reassignment of counsel simply on the basis of a breakdown in communication which he himself induced.” (Internal quotation marks omitted.) State v. Robinson, 227 Conn. 711, 727, 631 A.2d 288 (1993). “Although the constitution guarantees a defendant counsel that is effective, it does not guarantee counsel whom a defendant will like.” State v. Arroyo, supra, 284 Conn. 645.


text:
    MARIA PENA v. JOAN C. PETANO
    (AC 31924)
    Gruendel, Robinson and Alvord, Js.

      Submitted on briefs September 10
    officially released November 2, 2010

      Timothy Sheehan filed a brief for the appellant (substitute defendant).
   Opinion

PER CURIAM.

This case involves a dispute over a real estate commission. Following a bench trial, the trial court rendered judgment in favor of the plaintiff, Maria Pena. Although multiple claims are advanced in this appeal, only one merits discussion. The defendant Richard T. Petano, executor of the estate of Joan C. Petano (decedent), contends that the court’s determination that the plaintiff was entitled to a commission is irreconcilable with its finding that the decedent did not sign the exclusive right to sell listing contract (listing agreement) at issue. We affirm the judgment of the trial court.

In its memorandum of decision, the court found the following facts, which are not disputed in the defendant’s appeal. The plaintiff is a licensed real estate broker. In early December, 2007, the decedent’s husband, Bruce O’Callaghan, contacted the plaintiff to discuss the possible sale of 100 Deming Street in Newington (property), which was owned by the decedent. Days later, O’Callaghan again contacted the plaintiff to formally retain her services to sell the property. Because the decedent was recovering from surgery and unable to come to the plaintiffs office, the plaintiff discussed the matter with her by telephone. The plaintiff then drafted the listing agreement, which she presented to O’Callaghan on December 10, 2007. That agreement provided that the plaintiff would receive a commission of 5 percent of the sale price, unless the property was sold “in-house,” in which case the commission would be “reduced to 3 [percent].” O’Callaghan left with the listing agreement, which he returned to the plaintiff later that day with the decedent’s purported signature thereon. The plaintiff thereafter listed the property for sale for $239,900.

On December 21, 2007, the plaintiff received a real estate purchase contract (first contract) signed by Ryan W. Perkoski, offering to buy the property for $240,000. That contract listed the plaintiff’s real estate business, New Britain Realty, LLC, and Chozick Realty, Inc., as brokers. The plaintiff presented the offer to O’Callaghan, who that same day returned the contract to the plaintiff with the decedent’s signature, confirming acceptance thereof.

Three days later, the plaintiff received an offer to purchase the property for $245,000 from John Gazerwitz and Dennis Damato (backup contract). The plaintiff presented this offer to the decedent and explained, both orally and in writing, that it was to be considered a backup offer only. She informed the decedent that, in order to ethically and to legally act on this backup offer, the decedent first would have to obtain a release from Perkoski, whose offer the decedent already had accepted. The decedent signed the backup contract at that time.

Unbeknownst to the plaintiff, the decedent subsequently entered into an additional contract with Gazerwitz and Damato for the sale of the property on January 12, 2008 (third contract). As the court stated in its memorandum of decision: “That agreement provided that [the decedent] would sell the subject property to [Gazerwitz and Damato] at the same price and under the same terms and conditions that were identical to those provided in the [backup contract], with one notable exception: in paragraph twenty-two, entitled ‘Brokers’, ‘N/A’ is inserted, meaning that the parties to that agreement averred, despite the brokerage language contained in the [backup contract], that there was no commission due to anyone as a result of the sale of the subject property to [Gazerwitz and Damato]. The effect of that agreement was to negate any commission to which the plaintiff might be entitled pursuant to her exclusive listing agreement.”

On February 20, 2008, the real estate transaction between the decedent and Gazerwitz and Damato closed pursuant to the terms of the third contract at the offices of attorney Nicholas DeNigris, who represented the decedent. At that time, the parties to the transaction informed DeNigris that there was no real estate broker or agent involved therein. The parties did not apprise DeNigris that they earlier had entered into the backup contract, which provided for the payment of a commission to the plaintiff.

When the plaintiff learned of this development days later, she contacted the decedent and informed her that she would accept $6100 as a commission for her services. The decedent agreed to deliver a check in that amount to DeNigris to compensate her. Accordingly, the plaintiff sent DeNigris a copy of the listing agreement and a letter requesting payment of her commission. DeNigris did not respond to the plaintiffs request. Instead, the plaintiff was contacted by attorney Timothy Sheehan on behalf of the decedent. Sheehan requested that the plaintiff refrain from harassing the decedent regarding the commission.

Three months later, the plaintiff filed this action to recover her commission pursuant to General Statutes § 20-325a. A court trial followed, at which testimonial and documentary evidence was presented. In its memorandum of decision, the court found that the “Joan Petano” signature on the listing agreement was not that of the decedent. The court nevertheless found that “the decedent was well aware of all of the transactions [concerning the sale of the property] and was well aware of and authorized the plaintiffs involvement in the sale of the subject property with the anticipation of paying an agreed commission to the plaintiff upon the successful closing of the sale.” In particular, the court emphasized the decedent’s grave health at the time that the various agreements were executed and found that O’Callaghan had “acted as the go-between relative to the sale of the subject property.” The court continued: “[I]t is clear to this court that although the decedent did not sign the exclusive listing agreement, she did authorize the execution of that document along with the [first contract] with Perkoski and the [backup contract with] Gazerwitz and Damato. Each of those three documents clearly reflects the obligation assumed by the decedent to pay a commission to the plaintiff. The decedent did affix her signature to the [third contract] . . . agreeing to sell the subject property under the same terms and conditions as contained in the [backup contract] but without any commission to the plaintiff. Both parties then proceeded to closing without notice to the plaintiff and without disclosing to the closing attorney, DeNigris, the plaintiffs involvement.” On that basis, the court concluded that the decedent breached her contract with the plaintiff. Accordingly, it awarded the plaintiff a commission of $6100, as well as $4000 in attorney’s fees pursuant to the listing agreement. From that judgment, the defendant appeals.

The defendant claims that the court improperly concluded that the plaintiff was entitled to a commission in light of its finding that the decedent did not sign the listing agreement. His claim centers on a mistaken belief that the failure to comply strictly with the seven specific requirements set forth in § 20-325a (b) governing an agreement for a real estate commission precludes recovery in any and all instances. That contention presents a question of law over which our review is plenary. See Location Realty, Inc. v. Colaccino, 287 Conn. 706, 717, 949 A.2d 1189 (2008).

It is true that the court found that the decedent had not signed the listing agreement as required by § 20-325a (b) (7). At the same time, “[s]ubsections (c) and (d) of § 20-325a . . . create some exceptions to the foregoing requirements.” Id., 718. Subsection (d) provides in relevant part that “[n]othing in subsection (a) of this section, subdivisions (2) to (7), inclusive, of subsection (b) of this section or subsection (c) of this section shall prevent any licensee from recovering any commission, compensation or other payment with respect to any acts done or services rendered, if it would be inequitable to deny such recovery and the licensee (1) has substantially complied with subdivisions (2) to (7), inclusive, of subsection (b) of this section . . . .” General Statutes § 20-325a (d). Our Supreme Court has concluded that subsection (d) thus provides that “when . . . there is no strict compliance with the requirements of subsections (a), (b) and (c), an action for a real estate commission under § 20-325a nonetheless may proceed if two preconditions are met: (1) there has been substantial compliance with the requirements relevant to the transaction; and (2) the facts and circumstances of a case would make it inequitable to deny recovery.” Location Realty, Inc. v. Colaccino, supra, 287 Conn. 719.

The trial court in the present case expressly relied on that precedent in concluding that the exception set forth in § 20-325a (d) applied. In so doing, the court found that although the decedent had not signed the listing agreement as required by § 20-325a (b) (7), the other requirements of § 20-325a (b) were satisfied. The court also emphasized the unique factual nature of this case with respect to the decedent’s illness and her husband’s role in acting as “the go-between relative to the sale of the subject property.” The court credited the plaintiffs testimony that she “spoke to the decedent on the telephone prior to drafting the written listing agreement and on several occasions thereafter once the two offers to purchase the property were provided to the plaintiff.” The court further noted that both the first contract and the backup contract provided for a commission to the plaintiff. In addition, it found that following the sale of the property pursuant to the third contract, the decedent agreed to pay the plaintiff a $6100 commission when the plaintiff contacted her regarding the February 20, 2008 closing. Finally, the court found that “by entering into a separate agreement with Gazerwitz and Damato, which eliminated the plaintiff from the transaction, and by not disclosing to her closing attorney the existence of the [prior] agreement with those gentlemen, the decedent was able to consummate the sweeter deal, made all the more sweeter by the fact that she would not be paying a commission to the plaintiff.” Those determinations find support in the record and, hence, are not clearly erroneous. They support the court’s conclusion that there was substantial compliance with the requirements relevant to the transaction and that the facts and circumstances of the case made it inequitable to deny recovery. We therefore conclude that the court properly rendered judgment in favor of the plaintiff on her breach of contract claim.

The judgment is affirmed.

       The plaintiffs original complaint named Joan Petano as the defendant. The record indicates that Joan Petano died approximately five months after the action was commenced. By motion filed March 17, 2009, the plaintiff moved to substitute as the defendant Richard T. Petano, the executor of the estate of Joan Petano, which the court granted on April 2, 2009. We refer in this opinion to Richard T. Petano, executor of the estate of Joan Petano, as the defendant and to Joan Petano as the decedent.

       The court found that the decedent in December, 2007, had a lung removed and received chemotherapy and radiation treatment. As noted in its memorandum of decision, the decedent “was in seriously ill health when the various agreements were negotiated and executed.”

       General Statutes § 20-325a (b) (7) requires the listing agreement to “be signed by the person or persons for whom the acts were done or services rendered or by an agent authorized to act on behalf of such person or persons . . . .”

       The defendant does not contest this finding on appeal.