text:
    STATE OF CONNECTICUT v. DARRYL SMITH
    (AC 17166)
    Landau, Spear and Daly, Js.
    Argued October 27, 1998
    officially released January 26, 1999

      Avery S. Chapman, for the appellant (defendant).

      Richard F. Jacobson, supervisory assistant state’s attorney, with whom, on the brief, was Cornelius P. Kelly, assistant state’s attorney, for the appellee (state).
   Opinion

DALY, J.

The defendant, Darryl Smith, appeals from the judgment of conviction, following a jury trial, of assault in the first degree in violation of General Statutes § 53a-59 (a) (l). The defendant claims that the trial court improperly (1) permitted John Bethea to be referred to as the victim, (2) failed to instruct the jury as to the proper burden of proof with respect to his self-defense claim, (3) denied his motion for a mistrial and (4) determined that there was sufficient evidence to sustain his conviction. We disagree and affirm the judgment of the trial court.

The jury reasonably could have found the following facts. On May 11, 1996, Bethea went with a friend, Eric Edwards, to meet the defendant at a local convenience store where the defendant was going to repay a $30 loan that Bethea had made to him earlier in the month. When the defendant failed to appear at the store, Bethea and Edwards went to the defendant’s home in Bridgeport. The defendant’s wife indicated to Bethea that the defendant was not home. As Bethea was walking back to his vehicle, he spotted the defendant in the parking lot. The defendant was upset that Bethea had come to his house and Bethea was upset that the defendant did not have the money that he owed him. A fight ensued, during which Bethea saw a knife in the defendant’s hand. Bethea attempted to flee but slipped and fell. The defendant then jumped on top of Bethea and stabbed him several times with a pocketknife. Edwards came to Bethea’s assistance and subsequently drove him to St. Vincent’s Hospital, where Bethea was admitted and spent three days.

Edwards returned to the scene and retrieved the knife, which the defendant had dropped during the scuffle. Edwards turned the knife over to the police. The next day, the defendant went to the police station, where he provided a written statement indicating that Bethea instigated the fight and that he was merely trying to block Bethea’s punches and was swinging the knife at Bethea in self-defense. The defendant was subsequently arrested and convicted. This appeal followed.

I

The defendant first claims that throughout the trial, the court improperly permitted the state and its witnesses to refer to Bethea as “the victim.” Specifically, the defendant claims that because he had advanced a claim of self-defense, Bethea was merely a complainant, and the state’s repeated references to Bethea as a victim prevented the jury from determining whether the defendant actually acted in self-defense. The defendant’s claim is without merit.

“It is the sole right of the jury as the trier of the facts to draw all reasonable and logical inferences from the facts as it finds them to exist.” State v. Reddick, 33 Conn. App. 311, 332, 635 A.2d 848 (1993), cert. denied, 228 Conn 924, 638 A.2d 38 (1994). “[I]n considering the evidence introduced in a case, [j]uries are not required to leave common sense at the courtroom door . . . nor are they expected to lay aside matters of common knowledge or their own observation and experience of the affairs of life, but, on the contrary, to apply them to the evidence or facts in hand, to the end that their action may be intelligent and their conclusions correct.” (Citations omitted; internal quotation marks omitted.) State v. Roy, 38 Conn. App. 481, 489, 662 A.2d 799 (1995), cert. denied, 237 Conn. 902, 674 A.2d 1333 (1996).

From the facts established and the inferences drawn therefrom, the jury reasonably could have found that Bethea was the victim, regardless of the state’s label for him. The jury heard evidence that the defendant stabbed Bethea several times with apocketknife. Moreover, the jury had the opportunity to judge the credibility of the defendant and of the state’s witnesses and reasonably could have disregarded the defendant’s evidence indicating that he acted in self-defense. Finally, the jury could have determined that the label “victim” was synonymous with “alleged victim.” Indeed, the court, in its final instruction, indicated to the jury that the term victim was “merely a term used to differentiate the alleged victim from the alleged defendant in this case on the court’s behalf. It clearly should not be given any significance by you as being any legal or factual conclusion by . . . this court on testimony in this case. You alone are the triers of fact and you alone shall decide the status of persons involved in the circumstances of this case.” Accordingly, we conclude that the defendant’s claim is without merit.

II

The defendant’s second claim is that the trial court failed to give an immediate curative instruction to the jury when the prosecutor, in his final argument, misstated the state’s burden of proof regarding self-defense. We are not persuaded.

When a defendant claims that a prosecutor’s improper remarks violate his right to a fair trial, “[t]he burden on the defendant is to show that the prosecutor’s remarks were prejudicial in light of the entire proceeding.” State v. Ubaldi, 190 Conn. 559, 562, 462 A.2d 1001, cert. denied, 464 U.S. 916, 104 S. Ct. 280, 78 L. Ed. 2d 259 (1983). Because the court was in a favorable position to evaluate any prejudice, we must give great weight to its determination as to the fairness of the trial. Id., 563.

Assuming arguendo that the prosecutor’s remarks were improper, we will not, after reviewing the record, upset the court’s determination that the remarks were not prejudicial to the defendant. The court properly instructed the jury of the elements of self-defense. Moreover, the defendant does not claim that the court’s instructions concerning his claim of self-defense were improper. Accordingly, we defer to the trial court’s determination that the prosecutor’s remarks did not deprive the defendant of a fair trial.

Ill

The defendant’s third claim is that the trial court improperly denied his motion for a mistrial. Specifically, the defendant claims that the court should have granted his motion 1'or a mistrial on the basis of the prejudicial effects of the court’s designation of Bethea as the victim. The defendant’s claim is without merit.

“[A] mistrial should be granted only as a result of some occurrence upon the trial of such a character that it is apparent to the court that because of it a party cannot have a fair trial . . . and the whole proceedings are vitiated. ... If curative action can obviate the prejudice, the drastic remedy of a mistrial should be avoided.” (Internal quotation marks omitted.) State v. Day, 233 Conn. 813, 836, 661 A.2d 539 (1995). In light of our conclusion that the references to Bethea as the victim did not impair the defense and that the court properly rendered curative instructions regarding the state’s characterization of Bethea, we affirm the court’s denial of the defendant’s motion for a mistrial.

IV

The defendant’s final claim is that the evidence was insufficient to sustain his conviction. Specifically, the defendant claims that the intent element of § 53a-59 was lacking because the defendant “had attempted to avoid the altercation in the first instance by walking away, and that the altercation only took place after . . . Bethea confronted [the] defendant a second time.” We are not persuaded.

“Our courts utilize a two part analysis when reviewing a challenge to the sufficiency of evidence. . . . We first review the evidence in the light most favorable to sustaining the guilty verdict. . . . We then determine, upon the facts thus established and the inferences reasonably drawn therefrom, whether any rational trier of fact could have concluded that the cumulative effect of the evidence established the defendant’s guilt beyond a reasonable doubt.” (Citations omitted; internal quotation marks omitted.) State v. Clark, 48 Conn. App. 812, 824, 713 A.2d 834, cert. denied, 245 Conn. 921, 717 A.2d 238 (1998). “ ‘It is axiomatic that a factfinder may infer an intent to cause serious physical injury from circumstantial evidence such as the type of weapon used, the manner in which it was used, the type of wound inflicted . . . and the events leading up to and immediately following the incident.’ ” State v. Campfield, 44 Conn. App. 6, 23, 687 A.2d 903 (1996), cert. denied, 240 Conn. 916, 692 A.2d 814 (1997).

After viewing the evidence in a light most favorable to sustaining the verdict, we cannot upset the jury’s verdict. The state presented substantial evidence indicating that the defendant intended to cause serious physical injury to Bethea through the use of a deadly weapon. Accordingly, we conclude that the defendant’s claim is meritless.

The judgment is affirmed.

In this opinion the other judges concurred.

       General Statutes § 53a-59 (a) provides in relevant part:. “A person is guilty of assault in the first degree when: (1) With intent to cause serious physical injury to another person, he causes such injury to such person or to a third person by means of a deadly weapon or a dangerous instrument . . . .”

       During the state’s closing argument, the prosecutor remarked that “the defendant Darryl Smith acted unreasonably on May 11, 1996, and what you have to do is you have to sit back and not only look at what he said on the stand as to what was going through his mind on May 11, but whether he acted reasonably; whether his actions were reasonable; whether the amount of force that he used and the item that he used, was that reasonable in light of everything that was going on there and not only that. You have to go back a little bit further to events leading up to that and also to some of the events that took place after the incident, because what you have to do is you have to put his testimony up on a pedestal and you have to decide whether he acted reasonably . . . .”

       The following colloquy took place between 1he defendant and the trial court:
      “[Defense Counsel]: Your Honor, I would object to the attempt to reverse the burden of self-defense. I think it’s for the—the burden is on the state to disprove self-defense, not reasonable doubt.
      “The Court: That may be true, but it’s still fair argument in the court’s mind."


source: Caselaw Access Project

author: SULLIVAN, J.

license: Public Domain

text:
    IN RE TABITHA T. ET AL.

    (AC 17852)
    O’Connell, C. J., and Sullivan and Dupont, .Is.
    Argued October 26, 1998
    officially released January 26, 1999

      David T. Stone, for the appellant (respondent mother).

      Lawrence G. Widem, assistant attorney general, with whom, on the brief, was Richard Blumenthal, attorney general, for the appellee (petitioner).

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

   Opinion

SULLIVAN, J.

The respondent mother (respondent) appeals from the judgments of the trial court terminating her parental rights with respect to her daughters, Tabitha and Christina. The respondent claims that the trial court improperly (1) failed to make a finding that the petitioner had made reasonable efforts to reunify the family pursuant to General Statutes § 17a-112 (c) (l) or, alternatively, that the respondent was unwilling or unable to benefit from such reunification efforts, (2) found that no ongoing parent-child relationship existed between the respondent and the children, (3) found that the children had been harmed as a result of the respondent’s acts of omission or commission, (4) found that the respondent had failed to achieve personal rehabilitation, and (5) denied the respondent’s motion to stay the petitioner’s decision to end visits without allowing testimony or argument. We affirm the judgments of the trial court.

The following facts are relevant to this appeal. The respondent is the mother of six children, including Tabitha and Christina. She first married before she was sixteen. She had two children prior to her divorce in 1977. She then had two sons by another man. In 1987, she married the father of Tabitha and Christina, who were born in 1986 and 1988, respectively. She and the father are now divorced.

The respondent has a history of personal and mental health problems. As a child, she was sexually abused by her father. She has been diagnosed with bipolar disorder. She has also been hospitalized for suicide attempts, including a 1994 incident in which she attempted to drown herself. She has been evicted four times and suffered three house fires. She has voluntarily requested placement by the department for each of her six children on numerous occasions.

In August, 1996, Bruce Freedman, a psychologist who had been appointed by the court to evaluate the respondent and the two girls, reported that the respondent had not been adequately rehabilitated, had received poor marks from her parenting skills instructor, and was incapable of handling Tabitha or Christina. Freedman also reported the lack of a normal parent-child relationship and that both girls wanted not to return to their mother’s care.

Both Tabitha and Christina were sexually abused by their brothers. When their father lived with them, he physically abused both girls and sexually abused Christina. Both girls now suffer from mental disorders. Prior to her placement, Tabitha wet and soiled her clothes. She was diagnosed as learning disabled. Also, the respondent’s needs and inabilities have resulted in an unhealthy “parentification” of Tabitha. Christina was diagnosed as suffering from reactive attachment disorder and exhibits sexualized behavior that has concerned her counselor.

On January 31,1995, Tabitha and Christina were adjudicated neglected and committed to the care of the department of children and families. On June 26, 1996, the department petitioned the court for the termination of parental rights with respect to the girls. The court ordered the termination of parental rights on October 23, 1997, and this appeal followed.

“The hearing on a petition to terminate parental rights consists of two phases, adjudication and disposition. See Practice Book § 1042.1 et seq. [now § 33-1 et seq.]. In the adjudicatory phase, the trial court determines whether the statutory ground for termination of parental rights exists by clear and convincing evidence. If the trial court determines that a statutory ground for termination exists, it proceeds to the dispositional phase. In the dispositional phase, the trial court determines whether the termination of parental rights is in the best interests of the child. In re Maximina V., 44 Conn. App. 80, 82-83, 686 A.2d 1005 (1997).

“On appeal, our function is to determine whether the trial court’s conclusion was legally correct and factually supported. We do not examine the record to determine whether the trier of fact could have reached a conclusion other than the one reached . . . nor do we retry the case or pass upon the credibility of the witnesses. . . . Rather, on review by this court every reasonable presumption is made in favor of the trial court’s ruling. . . . [W]e will disturb the findings of the trial court in both the adjudication and disposition phases only if they are clearly erroneous.” (Internal quotation marks omitted.)” In re Drew R., 47 Conn. App. 124, 127-28, 702 A.2d 647 (1997).

I

The respondent first claims that the trial court failed in the adjudicatory phase to find that the department had made reasonable efforts to reunify the family. Alternatively, the respondent claims that the court improperly found that she was unable to benefit from reunification. We disagree.

As part of the adjudication process, § 17a-112 (c) (1) requires that the court find by clear and convincing evidence that “the Department of Children and Families has made reasonable efforts to locate the parent and to reunify the child with the parent, unless the court finds in this proceeding that the parent is unable or unwilling to benefit from reunification efforts . . . .”

“Before a termination of parental rights can be granted, the trial court must be convinced that the department has made reasonable efforts to reunite the child with his or her family. The term ‘reasonable efforts’ was recently addressed by this court: ‘Turning to the statutory scheme encompassing the termination of the parental rights of a child committed to the department, the statute imposes on the department the duty, inter alia, to make reasonable efforts to reunite the child or children with the parents. The word reasonable is the linchpin on which the department’s efforts in a particular set of circumstances are to be adjudged, using the clear and convincing standard of proof. Neither the word “reasonable” nor the word “efforts” is, however, defined by our legislature or by the federal act from which the requirement was drawn. . . . [Reasonable efforts means doing everything reasonable, not everything possible.’ In re Eden F., 48 Conn. App. 290, 311-12, 710 A.2d 771, cert. granted on other grounds, 245 Conn. 917, 717 A.2d 234 (1998). The trial court’s ruling on this issue should not be disturbed on appeal unless, in light of the evidence in the entire record, it is clearly erroneous. In re Tabitha P., 39 Conn. App. 353, 361, 664 A.2d 1168 (1995).” In re Jessica B., 50 Conn. App. 554, 565-66, 718 A.2d 997 (1998).

In light of the court’s memorandum of decision and subsequent articulation, we are not persuaded either that the trial court failed to consider whether reasonable efforts had been made or that its conclusion that the department had made reasonable efforts to reunite the family was clearly erroneous. The trial court’s articulation of June 17, 1998, provides a list of the services provided to the respondent, including psychiatric hospitalization, individual counseling, parenting classes, visitation and transportation. Foster care, visitation and counseling were also provided to the children.

II

The respondent next claims that the court improperly found that there was no ongoing parent-child relationship. We disagree.

“Section 17a-112 (b) (4) [now § 17a-112 (c) (3) (D)] provides for the termination of parental rights if, upon clear and convincing evidence, it is proved that no ongoing parent-child relationship has existed in excess of one year. This part of the statute requires the trial court to undertake a two-pronged analysis. First, there must be a determination that no parent-child relationship exists, and second, the court must look into the future and determine whether it would be detrimental to the child’s best interest to allow time for such a relationship to develop. In re Juvenile Appeal (Anonymous), [177 Conn. 648, 670, 420 A.2d 875 (1979)]; In re Michael M., [29 Conn. App. 112, 128, 614 A.2d 832 (1992)]; In re Megan M., [24 Conn. App. 338, 340, 588 A.2d 239 (1991)]; In re Juvenile Appeal (84-6), 2 Conn. App. 705, 708, 483 A.2d 1101 (1984), cert. denied, 195 Conn. 801, 487 A.2d 564 (1985); In re Juvenile Appeal (84-3), 1 Conn. App. 463, 477, 473 A.2d 795, cert. denied, 193 Conn. 802, 474 A.2d 1259 (1984).

“It is reasonable to read the language of no ongoing parent-child relationship to contemplate a situation in which, regardless of fault, a child either has never known his or her parents, so that no relationship has ever developed between them, or has definitively lost that relationship, so that despite its former existence it has now been completely displaced. In re Juvenile Appeal (Anonymous), [supra, 177 Conn. 670]; In re Jessica M., 217 Conn. 459, 470, 586 A.2d 597 (1991); In re Juvenile Appeal (84-6), supra, [2 Conn. App.] 708-709. In considering whether an ongoing parent-child relationship exists, the feelings of the child are of paramount importance. See In re Michael M., [supra, 29 Conn. App. 129]; In re Megan M., [supra, 24 Conn. App. 341]. The ultimate question is whether the child has no present memories or feelings for the natural parent. In re Jessica M., supra, 468; In re Juvenile Appeal (84-6), supra, 709. Feelings for the natural parent connotes feelings of a positive nature only. In re Jessica M., supra, 469; In re Juvenile Appeal (84-6), supra.”In re Kezia M., 33 Conn. App. 12, 20-21, 632 A.2d 1122, cert. denied, 228 Conn. 915, 636 A.2d 847 (1993).

The court-appointed evaluator, Freedman, reported that “[t]he girls showed concern for their mother . . . but they did not show normal parent-child relationships.” Moreover, “[b]oth girls made it clear that they did not wish to return to mother’s care, now or in the future.” We cannot conclude that the trial court’s finding was clearly erroneous.

Ill

The respondent claims that the trial court improperly found, by clear and convincing evidence, that she had failed to achieve sufficient rehabilitation. We disagree.

Section 17a-112 “requires the trial court to analyze the respondent’s rehabilitative status as it relates to the needs of the particular child, and further, that such rehabilitation must be foreseeable within a reasonable time. ... A determination by the trial court . . . that the evidence is clear and convincing that the parent has not rehabilitated herself will be disturbed only if that finding is not supported by the evidence and [is], in light of the evidence in the whole record, clearly erroneous.” (Citations omitted; internal quotation marks omitted.) In re Christina V., 38 Conn. App. 214, 221, 660 A.2d 863 (1995).

The record clearly supports the trial court’s finding. Contrary to the respondent’s assertions, she did not meet the expectations set by the court in its January, 1995 neglect hearing with respect to the girls. Betty Gorman, an employee of the department of children and families, testified that the respondent attended individual therapy only sporadically, lapsed in her medication regime “many times,” sometimes acted inappropriately during visits with the children, and failed to secure and maintain housing “for quite a period of time.” Although another department worker, Paulette Marquis, testified that the respondent had largely complied with the court’s expectations over the past nine months, Freedman noted that her efforts were “far from effective, adequate rehabilitation.”

On the basis of our review of the record, we are not persuaded that the trial court’s determination was clearly erroneous.

IV

The respondent claims that the trial court improperly found, by clear and convincing evidence, that Tabitha and Christina had been harmed as a result of the respondent’s acts of omission or commission. We disagree.

On the basis of our review of the record, we cannot conclude that the trial court’s finding was clearly erroneous. While the children were in the respondent’s care, the respondent failed to protect them from sexual abuse by their older brothers. At one point, the respondent specifically told Tabitha not to disclose to therapist Martha Roberts anything about the sexual abuse or any other goings on of the family.

V

Finally, the respondent claims that the court improperly denied her motion “to stay the [department’s] decision to end visits without allowing argument or testimony.” She offers no analysis or authority to support this claim. “We are not required to review issues that have been improperly presented to this court through an inadequate brief. Connecticut National Bank v. Giacomi, 242 Conn. 17, 44-45, 699 A.2d 101 (1997). Analysis, rather than mere abstract assertion, is required in order to avoid abandoning an issue by failure to brief the issue properly. . . . Cummings v. Twin Tool Mfg. Co., 40 Conn. App. 36, 45, 668 A.2d 1346 (1996).” (Internal quotation marks omitted.) State v. Henderson, 47 Conn. App. 542, 558, 706 A.2d 480, cert. denied, 244 Conn. 908, 713 A.2d 829 (1998). We, therefore, decline to review her claim as inadequately briefed.

The judgments are affirmed.

In this opinion the other judges concurred.

       General Statutes (Rev. to 1995) § 17a-112 was amended both in 1995; Public Acts 1995, No. 95-238, § 3; and in 1996. Public Acts 1996, No. 96-246 § 18. General Statutes (Rev. to 1995) § 17a-112, as amended by Public Acts 1995, No. 95-238, § 3, provides in relevant part: “(b) The superior court upon hearing and notice . . . may grant such petition [for termination of parental rights] if it finds that the Department of Children and Families has made reasonable efforts to reunify the child with the parent and, upon clear and convincing evidence, that the termination is in the best interest of the child . . . .” That statute was further amended by Public Acts 1996, No. 96-246, § 18. Effective October 1, 1996, that statutes provides: “(c) The Superior Court, upon hearing and notice . . . may grant a petition filed pursuant to this section if it finds by clear and convincing evidence (1) that the Department of Children and Families has made reasonable efforts to locate the parent and to reunify the child with the parent . . . [and] (2) that termination is in the best interest of the child . . . .” The petitions in this case were filed on June 26, 1996, and the trial court stated in its memorandum of decision that that date was the adjudicatory date with respect to the petitions. The trial on the petitions in this case took place during 1997, and the trial court’s references to § 17a-112 are to the revision of 1997. In this opinion, we also refer to § 17a-112 as codified in the revision to 1997.

       With regard to petitions filed prior to October 1, 1996, the court was required to find that the department “made reasonable efforts to reunify the child with the parent” unless “such reasonable efforts at reunification were not possible. . . General Statutes (Rev. to 1995) § 17a-112, as amended by Public Acts 1995, No. 95-238, § 3. As to petitions filed after October 1,1996, the court is required to find that “the Department of Children and Families has made reasonable efforts to locate the parent and to reunify the child with the parent, unless the court finds in this proceeding that the pa,rent is unable or unwilling to benefit from reunification, efforts . . . (Emphasis added.) General Statutes (Rev. to 1997) § 17a-112 (c) (1); see Public Acts 1996, No. 96-246, § 18. Because the petitions in this case were filed prior to October 1, 1996, the court’s finding that the respondent was unwilling or unable to benefit from reunification efforts would not have excused the department’s failure to make such efforts. Because we hold, however, that the trial court correctly found that the department did malee reasonable efforts to reunite the family, we need not consider whether the court correctly made the alternative finding—that the parent is unable to benefit from reunification. We note, however, that the record indicates that the trial court’s finding that the respondent was unable to benefit from reunification was not clearly erroneous.


author: SPEAR, J.

text:
    STATE OF CONNECTICUT v. KERRI LYNN PATAVINO
    (AC 16602)
    Spear, Hennessy and Sullivan, Js.

      Argued November 12, 1998
    officially released January 26, 1999

      II. Jeffrey Beck, for the appellant (defendant).

      Richard F. Jacobson, supervisory assistant state’s attorney, with whom, on the brief, was Stephen J. Sedensky III, assistant state’s attorney, for the appellee (state).
   Opinion

SPEAR, J.

The defendant appeals from the judgments of conviction, rendered after a jury trial, of six counts of risk of injury to a child in violation of General Statutes § 53-21, five counts of sexual assault in the second degree in violation of General Statutes § 53a-71, burglary in the third degree in violation of General Statutes § 53a-103 and larceny in the sixth degree in violation of General Statutes § 53a-125b. She claims that the trial court (1) improperly failed to address defense counsel’s motion to withdraw, or, alternatively, abused its discretion by, sub silentio, denying the motion and (2) deprived the defendant of a fair trial by (a) threatening defense counsel with contempt in the presence of the jury, (b) chastising and disparaging defense counsel to such a degree that he could not effectively represent the defendant and (c) improperly instructing the jury during the trial in a way that bolstered the testimony of the victim. We affirm the judgments of the trial court.

The jury reasonably could have found the following facts. The defendant, a school bus driver, was twenty-six years old at the time of these offenses. The victim was fifteen years old and regularly rode the bus that the defendant operated. Between February and June of 1995, the defendant engaged in sexual activity with the victim and gave the victim beer and crack cocaine. In addition, the defendant entered the victim’s home without permission and took certain items from the victim’s room. This appeal follows the defendant’s conviction on all of the charges.

I

A

The defendant first claims that the trial court failed to address her counsel’s motion to withdraw. During a lengthy colloquy between the defense counsel and the trial court, defense counsel complained that he did not feel that he could effectively represent the defendant because the trial court had threatened to hold him in contempt. After the state’s attorney mentioned that the trial court should address defense counsel's statement that he could not be an effective attorney, defense counsel orally moved to withdraw. The trial court’s response was, “Move on. Bring the jury out.”

Our Supreme Court has stated that when a trial court decides not to consider motions filed with it, it is “the functional equivalent of a denial of those motions.” Ahneman v. Ahneman, 243 Conn. 471, 480, 706 A.2d 960 (1998). Pursuant to the rationale of Ahneman, we conclude that the trial court’s failure to act was in fact a denial of the oral motion to withdraw.

B

The defendant next asserts that the denial of the motion to withdraw was an abuse of the trial court’s discretion. We disagree.

“ ‘The standard when reviewing a denial of a request for alternate counsel [and of a motion to withdraw] is whether the trial court abused its discretion in determining that a factual basis did not exist for granting the request.’ ” State v. Morico, 14 Conn. App. 140, 144, 539 A.2d 1033, cert. denied, 208 Conn. 812, 546 A.2d 281 (1988). Practice Book § 3-10 requires that a trial court must find good cause in order to grant a motion to withdraw. The cause claimed here is that the trial court intimidated defense counsel into ineffectiveness by threatening him with contempt. Counsel also stated that he felt that he was not being allowed to state his reasons for asserting objections and was afraid to object because he might be held in contempt and placed in custody. In support of this claim, the defendant provides a lengthy excerpt of a colloquy between defense counsel and the court in which the defense counsel expresses his fear of being held in contempt and his belief that the trial court had improperly rendered him ineffective.

The defendant offers not a single example of a failure to object or a failure to do anything because of the claimed intimidation. We have said, in the context of a claim of ineffective assistance, that simply mouthing the words “ineffective assistance” of counsel is not sufficient to establish the claim. Blakeney v. Commissioner of Correction, 47 Conn. App. 568, 584, 706 A.2d 989, cert. denied, 244 Conn. 913, 713 A.2d 830 (1998). We know of no authority that supports the defendant’s assertion that a mere claim by counsel that he felt intimidated by the trial court is sufficient to warrant a new trial.

We have reviewed the transcript and conclude that the trial court properly admonished defense counsel about his improper and gratuitous comments during jury selection and during evidence. Defense counsel repeatedly disregarded those admonitions and the trial court acted within its discretion in warning him that, if he continued to conduct himself improperly, the trial court would hold him in contempt. Despite that warning, the trial court repeatedly told defense counsel that he had a right to object to questions and that the court was concerned only with his improper comments on the evidence.

Moreover, motions to withdraw as counsel that are made on the eve of or during trial are not favored. Although our cases typically address situations in which the motion to withdraw was precipitated by a party’s expressed dissatisfaction with counsel, we believe that the rationale of those cases also applies where counsel, without any client dissatisfaction, moves to withdraw during trial because of claimed ineffectiveness. “There can be no dispute that a criminal defendant has a constitutional right to the effective assistance of counsel; McMann v. Richardson, 397 U.S. 759, 771 n.14, 90 S. Ct. 1441, 25 L. Ed. 2d 763 (1970); Levine v. Manson, 195 Conn. 636, 639, 490 A.2d 82 (1985); that right, however, is not without limitation. For example, the right to counsel does not include the unbridled right to discharge counsel on the eve of trial .... State v. Drakeford, [202 Conn. 75, 83, 519 A.2d 1194 (1987)], quoting United States v. Grow, 394 F.2d 182, 209 (4th Cir.), cert. denied, 393 U.S. 840, 89 S. Ct. 118, 21 L. Ed. 2d 111 (1968). This limitation applies to both private counsel retained by an individual defendant as well as court-appointed counsel. See State v. Gethers, 193 Conn. 526, 543, 480 A.2d 435 (1984), and cases cited therein. Furthermore, it is clear that the right to effective assistance of counsel does not include an unlimited opportunity to obtain alternate counsel. State v. Watson, 198 Conn. 598, 610, 504 A.2d 497 (1986). Inherent in these limitations is a concern for unwarranted interruptions in the administration of justice. While courts must be assiduous in their defense of an accused’s right to counsel, that right may not be manipulated so as to obstruct the orderly procedure in the courts or to interfere with the fair administration of justice. United States v. Calabro, 467 F.2d 973, 986 (2d Cir. 1972), quoting United States v. Bentvena, 319 F.2d 916, 936 (2d Cir.), cert. denied sub nom. Ormento v. United States, 375 U.S. 940, 84 S. Ct. 345, 11 L. Ed. 2d 271 (1963) . . . .” (Citation omitted; internal quotation marks omitted.) State v. Morico, supra, 14 Conn. App. 143-44.

Our Supreme Court has held that “to work a delay by a last minute discharge of counsel there must exist exceptional circumstances.” (Internal quotation marks omitted.) State v. Robinson, 227 Conn. 711, 726, 631 A.2d 288 (1993). “We must distinguish between a substantial and timely request for new counsel pursued in good faith, and one made for insufficient cause on the eve or in the middle of trial.” State v. Drakeford, supra, 202 Conn. 82.

We find no exceptional circumstances or good cause here, where counsel simply declared himself intimidated and ineffective with no basis therefor. We are satisfied that the trial court did not abuse its discretion in denying the defendant’s motion to withdraw.

II

The defendant next claims that the actions of the trial court deprived her of a fair trial. We will discuss each action in turn.

A

The defendant first claims that the trial court improperly threatened defense counsel with contempt before the jury and she is therefore entitled to a reversal of her convictions and a new trial. In State v. Conroy, 194 Conn. 623, 632-33, 484 A.2d 448 (1984), our Supreme Court addressed a situation in which defense counsel was threatened with contempt of court in the presence of the jury during closing argument. The Supreme Court noted that although the defendant did not object to the trial court’s warning or request a curative instruction, it would nevertheless consider the claim “[b]ecause of the understandable reluctance of an attorney to object to a threat of contempt . . . .” Id., 633. For the same reason, we will consider the unpreserved claim here.

The trial court did, in fact, threaten to hold defense counsel in contempt in the presence of the jury. In Conroy, our Supreme Court stated: “While the better practice would have been for the trial court to have issued its warning in the absence of the jury or to have given a curative instruction . . . the trial court’s action in the circumstances here was not erroneous.” (Citation omitted.) Id. Here, the trial court did give a curative instruction as suggested in Conroy, telling the jurors that they must decide the case on the evidence and that his threat of sanctions against defense counsel should in no way affect their consideration of the evidence or of whether the state has established its burden of proof.

We conclude that the curative instruction sufficiently eliminated any possible prejudice to the defendant that might have arisen because of the trial court’s threat of contempt in the presence of the juiy.

B

As part of her claim that she was deprived of a fair trial by the trial court’s conduct, the defendant claims that the court’s threats, made outside the presence of the jury, to hold defense counsel in contempt and the court’s chastising and disparaging of defense counsel rendered counsel ineffective in representing her.

Again, in support of this claim, the defendant offers excerpts from the colloquies with the trial court in her brief. The defendant, however, fails to quote defense counsel’s improper remarks that caused the court to threaten to hold counsel in contempt and to warn counsel to cease his improper comments on the evidence.

We have reviewed the transcripts and we conclude that the trial court acted properly. The trial court was confronted by a trial attorney who, despite warnings, persisted in improperly commenting on the evidence and proceedings starting at jury selection and continuing through the trial. As previously discussed, the defendant points to nothing that counsel was prevented from asking or introducing into evidence because of the alleged intimidation by the court. Again, the court repeatedly made it clear that counsel had the right to object and to represent his client zealously as long as he did it within the parameters of the rules.

C

The defendant’s last claim is that the trial court improperly gave an instruction, sua sponte, during the direct examination of a defense witness. That instruction was to the effect that claimed drug use by the victim was a matter of impeachment of the victim’s credibility.* *****

The defendant did not object to the instruction with respect to either its timing or its correctness. The defendant offers no analysis as to why this is an issue of constitutional magnitude and we do not conclude that it is. Therefore, this claim is not entitled to review pursuant to State v. Golding, 213 Conn. 233, 567 A.2d 823 (1989). Nor is the defendant entitled to plain error review. Plain error review “ ‘is reserved for those truly extraordinary situations where the existence of the error is so obvious that it affects the fairness and integrity of and public confidence in the judicial proceedings.’ ” State v. Austin, 244 Conn. 226, 241, 710 A.2d 732 (1998). The circumstances here do not rise to the level of plain error.

The judgments are affirmed.

In this opinion the other judges concurred.

       The defendant was convicted on two separate informations that were tried together. In docket number CR 95-109820, the defendant was convicted of lour counts of sexual assault in the second degree and five counts of risk of iryury to a child. In docket number CR 95-110659, the defendant was convicted of sexual assault in the second degree, risk of injury to a child, burglary in the third degree and larceny in the sixth degree.

       The slate claims that we need not consider any issues regarding the motion to withdraw because the motion was not in writing as required by Practice Book § 11-1 and was not served on other attorneys of record as required by Practice Book § 3-10 (a). Section 11-1 excepts from its operation motions made during trial and therefore no “service” on appearing counsel was necessary as the prosecuting attorney heard the motion when it was made in open court.

       Practice Book § 3-10 (a) provides: “No motion for withdrawal of appearance shall be granted unless good cause is shown and until the judicial authority is satisfied that reasonable notice has been given to the party or parties represented by the attorney and to other attorneys of record.”

       The court and counsel engaged in the following colloquy:
      “The Court: That comment [by defense counsel] again you are to ignore. He will not refrain from doing what he does. I can hold him in contempt and I am going to do it very soon . . . . You are warned again. You will try the case in the basement. You cannot comment and testify. You know better.
      “[Defense Counsel]: All I tried to do—
      “The Court: I am not looking for a response. Don’t comment again, or I am warning you before these people I will hold you in contempt the next time you comment from that chair or anywhere near it about the evidence in this case.”

       The trial court’s curative instruction was as follows: “Just one other comment I would make. There were times yesterday when the court threatened various sanctions against the defense counsel. My role in the case is to assure that, the case moves along in an orderly fashion according to the rules. If that happens again, I want you to understand it has nothing to do with the evidence in this case. You still have to decide this case on the basis of testimony and exhibits. I just want you to understand there may be occasions when I have to do things in the course of the trial. I just want you to be sure that in no way should it affect your feeling about the evidence in the case or whether or not the state has established its burden of proof. That's an aside that is my responsibility to make sure that the case proceeds along in an orderly fashion. It should not in any way affect your viewing of the evidence. It is the evidence that you have to view and recall and factor into your decision in the case.”

       While there are numerous other instances of improper conduct of defense counsel, the following transcript excerpts are illustrative of such impropriety:
      Examination by defense counsel during voir dire:
      “[Defense Counsel]: Do you think you could be fair in this case? If not, I appreciate your candidness, and we will eliminate a lot of things.
      “Panel member: To be honest, I am not sure because I don’t particularly care for child abusers or child molesters.
      “[Defense Counsel]: Thank you. I have nothing more, Your Honor. No wonder the government employer. Put that for the record.
      “Panel member: Pardon me?
      “[Defense Counsel]: Nothing.
      “The Court: [Defense Counsel], I would prefer you not make any gratuitous comments.”
      Examination by the assistant state’s attorney during voir dire:
      “[Assistant State’s Attorney]: I am not asking you if you believe in all of them. I am wondering if a police officer taires the stand, before you heard him say anything, is he at a disadvantage because of the experience you had?
      “Panel member: Most would be, yes.
      “The Court: All right. I am going to excuse you, sir, from the case.
      “[Defense Counsel]: Finally we got someone to say something.
      “The Court: [Defense Counsel], if you do that one more time, make gratuitous comments, I am going to hold you in contempt. I never threatened anyone, but I am tired of you commenting every time somebody speaks.
      Examination of panel member by defense counsel during voir dire:
      “[Defense Counsel]: You can excuse her, Your Honor.”
      “The Court: You are excused, ma’am.”
      “[Defense Counsel]: Thank God. I have no questions. I have no comments, Your Honor.
      “The Court: You made all the comments already.

        “[Defense Counsel]: I know, Your Honor. What can I say?
      “The Court: Well, I have to learn to control myself. [Defense counsel], you better, because you won’t be here at the end of this case, I will guarantee it. That’s on the record.
      “[Defense Counsel]: I understand.
      “The Court: As I put it on the record, there is only one person going to run this court. I keep saying it to you. You don’t believe it. It is me. Just challenge me one time too often. No comments of a gratuitous nature. I don’t need to hear it.
      Cross-examination of Gail Avery-Closs by defense counsel:
      “[Defense Counsel]: But as a result of this, what you are testifying, your bus company, right, was satisfied with her explanation?
      “[Witness]: Yes.
      “[Defense Counsel]: You say it reluctantly. You didn’t see anything—
      “[Assistant State’s Attorney]: Objection, Your Honor. No reason to be argumentative with this witness.
      “The Court: Sustained. Not a proper comment. Ask questions, [Defense Counsel], Your comments are not necessary. I am going to tell the jury now and at the end of this case to ignore your comments.”
      Recross-examination of Gail Avery-Closs by defense counsel:
      “[Defense Counsel]: Ma’am, who filed the complaint? Who filed the complaint?
      “[Witness]: [The victim’s] mother called us.
      “[Defense Counsel]: Was the boy living with the mother or father?
      “[Assistant State’s Attorney]: Objection. Outside the scope of my redirect.
      “The Court: Sustained, and she has also indicated she doesn’t know several times.
      “[Defense Counsel]: I think she said it before.
      “The Court: That’s why it is objectionable because it has been asked and answered.
      “[Defense Counsel]: It is recross. So, I must say this.
      “[Defense Counsel]: [The victim’s] father, [the victim’s] father, the boy lived with [the victim’s] father, never called the Trumbull transportation system, never filed a complaint. Yes or no.
      “[Witness]: Not that I am aware of.
      “[Defense Counsel]: That's right. He never filed a complaint, and [the victim]—
      “[Assistant State’s Attorney]: Objection. Ask the comments be stricken.
      “The Court: All comments are stricken. I will say it again because it is apparently not getting through to [Defense Counsel]. Other than for a question he asks, anything he says you are to ignore. I have to do it blanket-wise because I cannot control him to comport himself in accordance with the rules, and I am tired of chastising him.”
      Direct examination of the witness by the assistant state’s attorney:
      “[Assistant State’s Attorney]: Showing you what has been marked as state’s exhibit 27 for identification, I would ask you to taire a moment and read that short statement.
      “[Defense Counsel]: Is he admitting it or what, Your Honor?
      “The Court: He has not offered it, [Defense Counsel],
      “[Defense Counsel]: I understand.
      “The Court: He is asking him to look at it.
      “[Defense Counsel]: I understand that he can look at it, but he has given the jury, unless he is going to accept it, the wrong impression.
      “The Court: [Defense Counsel], please don’t keep commenting over and over again.”

       Defense counsel asked the witness: “[H]e told you he was on drugs and that [the defendant] didn’t give them to him?” The court sustained the state’s objection to this question and made the following statements to the jury: “That’s not what he said. Let me explain one thing. The only purpose this is allowed at all is it is a question of credibility of [the victim]. You are not here deciding whether he is or is not a drug user. He testified that the only time he had drugs is drugs that he got [from the defendant]. The purpose of this is veiy limited purpose. Statements that someone made that are inconsistent with something that they have said on the stand are admissible, but only on the question of that witness,’ meaning [the victim’s], credibility. That’s the sole purpose of allowing this, and I have allowed it only to a point, and this young man said he admitted to him that he used certain drugs at prior occasions. If you find that to be inconsistent with his prior testimony, it is a question for you to decide as to whether that is or is not inconsistent. Even if you find it inconsistent, that is just a factor that you can utilize in overall assessing the credibility of [the victim], and as I will explain to you in my final instructions, the fact that you find something to be inconsistent doesn’t mean that you feel that it had anything to do with the evidence he has presented here. It is strictly one of the many factors that you can utilize in determining a person’s overall credibility, whether they have or have not made any prior inconsistent statements. That’s why we don’t go into any detail. We are not trying that issue.”

       “ [A] defendant can prevail on a claim of constitutional error not preserved at trial only if all of the following conditions are met: (1) the record is adequate to review the alleged claim of error; (2) the claim is of constitutional magnitude alleging the violation of a fundamental right; (3) the alleged constitutional violation clearly exists and clearly deprived the defendant of a fair trial; and (4) if subject to harmless error analysis, the state has failed to demonstrate harmlessness of the alleged constitutional violation beyond a reasonable doubt.” (Emphasis in original.) State v. Golding, supra, 213 Conn. 239-40.


author: SCHALLER, J.

text:
    SIXTO NIEVES v. COMMISSIONER OF CORRECTION
    (AC 17256)
    Lavery, Schaller and Daly, Js.

      Argued September 29, 1998
    officially released January 26, 1999

      Noelle Gately, special public defender, for the appellant (petitioner).

      Richard F. Jacobson, supervisory assistant state’s attorney, for the appellee (respondent).
   Opinion

SCHALLER, J.

In this appeal from the judgment of dismissal of an amended petition for habeas corpus, the petitioner claims that the habeas court improperly determined that his trial and appellate counsel provided effective assistance during his trial and his direct appeal from his conviction for attempted murder in violation of General Statutes §§ 53a-49 and 53a-54a, assault in the first degree in violation of General Statutes § 53a-59 and carrying a pistol without a permit in violation of General Statutes § 29-35. The petitioner claims that his trial counsel failed to investigate and prepare the case adequately, namely, he failed to interview seven potential witnesses, including five revealed by the state in a supplemental disclosure shortly before trial. The claimed ineffective assistance of the petitioner’s appellate counsel, the same attorney, stems from counsel’s failure to raise the issue of an improper jury instruction on accessorial liability. We affirm the judgment of the habeas court.

The following facts and procedural history are necessary to the disposition of this appeal. On October 14, 1992, Robert Lang, William Lang and Linwood Bailey were working as part of a crew hired to repair and replace the boilers at the Evergreen Manor apartment complex in Bridgeport. They went to the apartment office where a dispute arose between the Langs and employees at the apartment complex, including the petitioner. Sometime thereafter, the boiler crew was approached by a group of armed males, including the petitioner. After an oral dispute, Robert Lang was shot several times and William Lang was shot once. At trial, both of the Langs and Bailey testified that the petitioner was the person responsible for the shootings. Several witnesses for the defense testified, however, that the petitioner was not the shooter. Following the petitioner’s conviction, he took a direct appeal to this court, and we affirmed the judgment. State v. Nieves, 36 Conn. App. 930, 651 A.2d 292 (1994).

Following the disposition of his direct appeal, the petitioner filed an amended petition with the habeas court raising multiple allegations of ineffectiveness of trial and appellate counsel. A hearing was held over the course of three days on the petitioner’s amended petition for a writ of habeas corpus. Mark Gross, the petitioner’s trial and appellate counsel, testified that he represented the petitioner throughout his trial and appeal. He stated that, as a private attorney, he had limited funds available for photographs and investigation. Gross testified concerning his investigation and preparation of the case for trial, which included interviewing several witnesses, taking them to the scene of the shootings and securing photographs of the scene.

Gross stated that he did not interview the Langs, the shooting victims, precisely because they were the victims of the crime, and he did not desire to “raise a hornet’s nest.” It did not make sense to him to interview the two victims in a situation where one of them had almost been killed in the shooting. He did not interview Bailey because he worked for the Langs and was with them when they were shot. Gross did not seek out two other witnesses, Oscar Sanchez and Fernando Alvarez, because he did not want to “kick a sleeping dog. ” Gross testified that even if he had sufficient funds to pay an investigator to find them, he would not have interviewed them. He was aware that Robert Lang could not identify his client. He recalled from the hearing on the motion to suppress the photographic identification that Sanchez and Alvarez could not identify the petitioner. In fact, the state filed supplementary discovery stating that Robert Lang, Sanchez and Alvarez could not positively identify the petitioner from the photographic array. It was Gross’ judgment that having the police officer testify at trial that these witnesses could not make an identification would be more significant than calling them as witnesses.

Gross testified that he did not interview Michael Rosenstock, an employee of the insurance company investigating the incident, because the petitioner and his witnesses had referred to him disparagingly, and the petitioner said he did not want him called. Gross testified that he was ordered not to bring Rosenstock in as a witness even after Gross told the petitioner that they had to use him. With regard to Michelle Ramera, the final witness whom the petitioner claims Gross failed to question, Gross testified that this witness was mentioned by one of the petitioner’s witnesses as having been present at the time of the shootings. Gross stated that Ramera could not be located by him, by the petitioner or by the petitioner’s friend, Myra Reyes.

William Koch, Jr., an attorney, testified as an expert witness on behalf of the petitioner. He offered the opinion that the failure to interview the seven witnesses was improper and could not be justified as trial strategy. The habeas court dismissed the petition, determining that the petitioner had failed to prove that the representation by trial and appellate counsel was deficient or prejudicial. The habeas court certified the appeal to this court.

The habeas court found that under the two-pronged test established by Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984), the petitioner failed to show, as to the first prong, that his counsel’s performance was ineffective or, as to the second prong, that he was prejudiced by the representation of his counsel. “The Strickland test requires that the defendant ‘must establish not only that his counsel’s performance was deficient, but that as a result thereof he suffered actual prejudice, namely, that there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.’ Bunkley v. Commissioner of Correction, [222 Conn. 444, 445, 610 A.2d 598 (1992)].” (Internal quotation marks omitted.) State v. Patrick, 42 Conn. App. 640, 650, 681 A.2d 380 (1996).

A court need not determine the deficiency of counsel’s performance if consideration of the prejudice prong will be dispositive of the ineffectiveness claim. Aillon v. Meachum, 211 Conn. 352, 362, 559 A.2d 206 (1989). “In this context, a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different, does not require the petitioner to show that counsel's deficient conduct more likely than not altered the outcome in the case. . . . Rather, it merely requires the petitioner to establish a probability sufficient to undermine confidence in the outcome.” (Citation omitted; internal quotation marks omitted.) Bunkley v. Commissioner of Correction, supra, 222 Conn. 445-46.

“[A] court hearing an ineffectiveness claim must consider the totality of the evidence before the judge or jury. Some of the factual findings will have been unaffected by the errors, and factual findings that were affected will have been affected in different ways. Some errors will have had a pervasive effect on the inferences to be drawn from the evidence, altering the entire evidentiary picture, and some will have had an isolated, trivial effect. ... [A] court making the prejudice inquiry must ask if the defendant has met the burden of showing that the decision reached would reasonably likely have been different absent the errors.” Strickland v. Washington, supra, 466 U.S. 695-96. To establish prejudice, the petitioner must show that “as a result of that [deficient] performance, there remains a probability sufficient to undermine confidence in the verdict that resulted in [the] appeal. ’’ Bunkley v. Commissioner of Correction, supra, 222 Conn. 454; see Harris v. Commissioner of Correction, 40 Conn. App. 250, 261, 671 A.2d 359 (1996); Johnson v. Commissioner of Correction, 34 Conn. App. 153, 164, 640 A.2d 1007, cert. denied, 229 Conn. 919, 644 A.2d 914 (1994). The simple test of prejudice is whether it is reasonably probable that the petitioner remains burdened by an unreliable determination of guilt. See Bunkley v. Commissioner of Correction, supra, 454 ; Sekou v. Warden, 216 Conn. 678, 690, 583 A.2d 1277 (1990).

“[T]he burden that the petitioner must sustain for a favorable outcome on his ineffective assistance of counsel claim is a higher one than he would have had to sustain had the actual merits of the same issue been raised on direct appeal.” Valeriano v. Bronson, 209 Conn. 75, 87, 546 A.2d 1380 (1988). “A reviewing court must be ‘highly deferential’ to counsel’s decision and judge the action ‘from counsel’s perspective at the time.’ Strickland v. Washington, supra, [466 U.S. 689].” Valeriano v. Bronson, supra, 87. On appeal, “[t]he facts found by the habeas court may not be disturbed unless such findings are clearly erroneous.” Rodriquez v. Commissioner of Correction, 35 Conn. App. 527, 535, 646 A.2d 919, cert. denied, 231 Conn. 935, 650 A.2d 172 (1994). When those facts are essential to a determination of whether the petitioner’s sixth amendment rights have been violated, it is a mixed question of law and fact requiring application of legal principles to historical facts and plenary review. Phillips v. Warden, 220 Conn. 112, 131, 595 A.2d 1356 (1991); McIver v. Warden, 28 Conn. App. 195, 203, 612 A.2d 103, cert. denied, 224 Conn. 906, 615 A.2d 1048 (1992).

In this case, the habeas court dismissed the petition on the basis of the petitioner’s failure to establish both Strickland prongs. Again, a court need not determine the deficiency of counsel’s performance if consideration of the prejudice prong will be dispositive of the ineffectiveness claim. “ ‘[A] court making the prejudice inquiry must ask if the defendant has met the burden of showing that the decision reached would reasonably likely have been different absent the [claimed] errors.’ ” Strickland v. Washington, supra, 466 U.S. 696. We conclude that an examination of the prejudice prong alone is sufficient to determine that the habeas court’s decision was correct. The habeas court properly determined that, even if trial and appellate counsel’s performance was deficient, the petitioner failed to establish prejudice.

I

The petitioner claims first that his trial counsel provided ineffective assistance in failing to conduct a proper investigation. Specifically, the petitioner claims that his trial counsel failed to interview seven potential witnesses, five of whom were identified by the state in a supplemental disclosure. We are not persuaded.

Three of the five witnesses, William Lang, Robert Lang and Bailey, testified consistently with the representations in the supplemental disclosure that they could not positively identify the petitioner from the photographic array. Sanchez and Alvarez were not called as witnesses at trial. The petitioner failed to produce testimony at the habeas hearing as to what the witnesses would have said if called. If Sanchez and Alvarez had testified that they could not identify the petitioner as the shooter, that testimony would have been cumulative, at best. Several of the witnesses called by the defense at trial testified that the petitioner was not the shooter and Robert Lang conceded that he had failed to identify the petitioner from the photographic array, even though he identified the petitioner at trial.

The petitioner offered no evidence regarding the nature of the testimony that Ramera would have produced if she had been called. Rosenstock, who Gross stated was not called at the petitioner’s request, was not produced as a witness before the habeas court and the nature of his testimony is unknown. The failure of the petitioner to offer evidence as to what Sanchez, Alvarez, Ramera and Rosenstock would have testified is fatal to his claim. Ostolaza v. Warden, 26 Conn. App. 758, 766-67, 603 A.2d 768, cert. denied, 222 Conn. 906, 608 A.2d 692 (1992). In Ostolaza, our Supreme Court determined that the petitioner’s failure to show that the claimed missing witnesses would have been available or that their testimony would have been relevant and admissible was fatal to the petitioner’s claims. See also State v. Marra, 215 Conn. 716, 735, 579 A.2d 9 (1990) (failure to produce records prevents assessment of whether defendant’s constitutional right to confrontation impaired by his inability to gain access to records).

The petitioner seeks to have us use hindsight with regards to his counsel’s decision not to call the witnesses to testify. We will not do so. We have stated that “the presentation of testimonial evidence is a matter of trial strategy. . . . ‘The failure of defense counsel to call a potential defense witness does not constitute ineffective assistance unless there is some showing that the testimony would have been helpful in establishing the asserted defense.’ State v. Talton, [197 Conn. 280, 297, 497 A.2d 35 (1985)].” (Citation omitted.) Chace v. Bronson, 19 Conn. App. 674, 680-81, 564 A.2d 303, cert. denied, 213 Conn. 801, 567 A.2d 832 (1989). In the absence of that showing by the petitioner, we are unable to conclude that he was prejudiced by counsel’s failure to interview the witnesses.

The petitioner relies on Siano v. Warden, 31 Conn. App. 94, 99, 623 A.2d 1035, cert. denied, 226 Conn. 910, 628 A.2d 984 (1993), and Siemon v. Stoughton, 184 Conn. 547, 555, 440 A.2d 210 (1981). The petitioner’s reliance is misplaced. Those cases are distinguishable because the petitioners produced evidence as to the exculpatory nature of the testimony that could have been offered by the missing witnesses. In the present case, it is a matter of conjecture and speculation as to whether there was a prejudicial effect of counsel’s decisions not to interview the missing witnesses. With regard to the Langs and Bailey, no prejudice has been demonstrated since the witnesses testified consistently with the supplemental disclosure. With regard to the other four witnesses, the petitioner has also failed to demonstrate prejudice. Because the petitioner has failed to establish that he was prejudiced by the failure of trial counsel to interview the witnesses in question, we cannot conclude that there is any probability that the petitioner is burdened by an unreliable conviction.

II

The petitioner also claims that his appellate counsel provided ineffective assistance in failing to pursue on appeal his claim that the trial court should not have instructed the jury on accessorial liability. We conclude that the habeas court properly found that neither prong of Strickland, was satisfied as to this claim.

The state charged the petitioner, in a long form information, as the principal in the crimes charged. The petitioner did not file a motion for a bill of particulars. In the course of cross-examination of the state’s witnesses during the state’s case-in-chief, defense counsel elicited testimony concerning a second shooter. On the basis of that testimony, the trial court decided, suo moto, to instruct the jury on accessorial liability. Although defense counsel took an exception to this instruction, he did not raise the issue on appeal.

The petitioner claims, in essence, that he was put on notice by the long form information that he was charged as a principal only. Because the state had put him on notice adequately as to the theory of liability, no motion for a bill of particulars was necessary. To prevail on this claim, the petitioner must establish that his appellate counsel’s performance fell below the required standard of reasonable competence or competence displayed by lawyers with ordinary training and skill in criminal law, and that this lack of competency contributed so significantly to the affirmance of his conviction as to have deprived him of a fair appeal, thus causing an unreliable conviction to stand. Strickland v. Washington, supra, 466 U.S. 687; Valeriano v. Bronson, supra, 209 Conn. 84-86. To establish that prejudice resulted from appellate counsel’s deficient performance, a petitioner must show that “as a result of that performance, there remains a probability sufficient to undermine confidence in that verdict that resulted in his appeal.” Bunkley v. Commissioner of Correction, supra, 222 Conn. 454.

The petitioner relies on State v. Steve, 208 Conn. 38, 544 A.2d 1179 (1988), to support his claim. In Steve, the defendant orally requested that the state clarify its bill of particulars as to the allegation of assault in the first degree. The trial court denied the request, ruling that the bill of particulars made it clear that the defendant was charged as a principal. The trial court later instructed the jury, on the basis of evidence pertaining to a second shooter, that it could consider accessory liability as an alternative. Our Supreme Court reversed, holding that the state was bound by the theory alleged in the bill of particulars. Our Supreme Court stated that “[t]he basic principle that the state must prove the crime in the manner alleged in the bill of particulars precludes a conviction based upon evidence that it was committed in a substantially different manner regardless of the source of that evidence.” Id., 44 n.4. The present case is distinguishable because, unlike in Steve, there was no bill of particulars that limited the state’s theory.

In State v. Faulkner, 48 Conn. App. 275, 277-78, 709 A.2d 36 (1998), we reiterated the controlling law concerning principal and accessory liability: “ ‘The fact that a defendant is not formally charged as an accessory pursuant to General Statutes § 53a-8 does not preclude a conviction as such.’ State v. Correa, 241 Conn. 322, 340, 696 A.2d 944 (1997). In Connecticut, there is no practical significance to being labeled as a principal or as an accessory. Id., 340. ‘The accessory statute merely provides alternate means by which a substantive crime may be committed.’ . . . Id., 341.” State v. Faulkner, supra, 278.

We note that, at the habeas hearing, Koch conceded that the instruction on accessorial liability was appropriate. Moreover, the evidence that led to the trial court’s instruction on accessorial liability was brought out by the defendant’s cross-examination of several of the state’s witnesses. The trial court’s instruction on accessorial liability was properly given to the jury on the basis of the evidence adduced by the petitioner during the course of trial. Because the petitioner has failed to establish that the instruction was improperly given or that he was prejudiced by the presence of the accessorial liability instruction, we cannot conclude that there is any probability that the petitioner is burdened by an unreliable conviction.

The judgment is affirmed.

In this opinion the other judges concurred.

       General Statutes § 53a-49 (a) provides: “A person is guilty of an attempt to commit a crime if, acting with the kind of mental state required for commission of the crime, he: (1) Intentionally engages in conduct which would constitute the crime if attendant circumstances were as he believes them to be; or (2) intentionally does or omits to do anything which, under the circumstances as he believes them to be, is an act or omission constituting a substantial step in a course of conduct planned to culminate in his commission of the crime.”

        General Statutes § 53a-54a provides in relevant part: “(a) A person is guilty of murder when, with intent to cause the death of another person, he causes the death of such person or of a third person or causes a suicide by force, duress or deception . . . .”

       General Statutes § 53a-59 provides in relevant part: “(a) A person is guilty of assault in the first degree when: (1) With intent to cause serious physical injury to another person, he causes such injury to such person or to a third person by means of a deadly weapon or a dangerous instrument

       General Statutes § 29-35 provides in relevant part: “(a) No person shall carry any pistol or revolver upon his person, except when such person is within his dwelling house or place of business, without a permit to carry the same issued as provided in section 29-28. . . .”

       Gross testified as follows: “I felt there was more of an Impact with my asking the officers conducting, you know, the photo array, that as a matter of fact, other people couldn’t identify, then, to put someone on who might say they were confused or no, that is the guy, the pictures weren’t good. So, it was a value judgment that Robert Lang’s testimony would be very strong on that point, and that the officers conducting the photo array would, both—would testify that two people who were there did not identify him, and that that would have a better probative [effect] with the jury, than to put people on who I don’t know. Because the fear is, what—what would have happened if one of them came in and said, ‘Dam it, now I recall.’ And that’s a fear, when you try a case. There’s an old adage, that you don’t ask questions of a person if you don’t know the answer. And the fear was to bring people in or get them in, and, then have them put a client away by saying, darn it, now I recognize him. So, that was the thought process that I used, in staying with the officer, the police officer, as I say, testifying, at length, that two people couldn’t identity him and that Mr. Lang didn’t. . . .”

       At the habeas hearing, there was some discrepancy whether the witness’ name is Michelle Ramos or Michelle Ramera. After reviewing the transcripts we are convinced that the two names refer to the same person. We will refer to the witness as Michelle Ramera.

       Bailey testified that it seemed to him that there were two people shooting at the victims. He identified the defendant as the shooter, and also identified another person as the one who shot his boss. Robert Lang testified that he select ed a photograph of one of two people who were the shooters. William Lang testified that he recalled observing both a black male and a Hispanic male shooting.

       The trial court instructed the jury on the basis that the defendant, if anything, was a principal. Upon requests by the jury, the court then charged that the defendant would also be guilty of both offenses if he had intentionally aided another for the purpose of committing those crimes. The defendant preserved this as an appellate issue.


text:
    WILLIAM H. WILSON v. PAUL HRYNIEWICZ ET AL.
    (AC 16643)
    Schaller, Spear and Dupont, Js.

      Argued September 23, 1998
    officially released February 2, 1999

      John M. Wyzik, with whom was Anthony M. MacLeod, for the appellants (defendants).

      Neil F. Murphy, Jr., with whom was P. Jo Anne Burgh, for the appellee (plaintiff).
   Opinion

SPEAR, J.

The defendants, Paul Hryniewicz and West Service Corporation, are indebted to the plaintiff as a result of a judgment in the original amount of $525,000. The plaintiff obtained a postjudgment order for a public sale of Hryniewicz’ shares of stock in Mountain Laurel Realty, Inc. (Mountain Laurel). The trial court thereafter approved the sale for $200,000 and ordered Hryniewicz to transfer the shares of stock to the plaintiff, who was the successful bidder.

The defendants appeal from the trial court’s order and claim that the trial court improperly approved the sale because (1) the plaintiff offered no evidence to demonstrate that the sale was commercially reasonable and the court failed to find such commercial reasonableness, (2) a proceeding was pending before the department of public utilities (department) in which one of the parties claimed that Mountain Laurel was a publicly regulated water company with attendant restrictions on the transfer of its stock and (3) a petition for a new trial was pending in the trial court and should have been considered. We find the claims to be without merit and affirm the judgment of the trial court.

I

The defendants’ first claim, relating to commercial reasonableness, involves the trial court’s fact-finding function and, therefore, our standard of review is whether the findings are clearly erroneous. “Appellate review of a trial court’s findings of fact is governed by the clearly erroneous standard of review. The trial court’s findings are binding upon this court unless they are clearly erroneous in light of the evidence and the pleadings in the record as a whole. . . . We cannot retry the facts or pass on the credibility of the witnesses. ... A finding of fact is clearly erroneous when there is no evidence in the record to support it ... or when although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed.” (Internal quotation marks omitted.) In re Helen B., 50 Conn. App. 818, 829, 719 A.2d 907 (1998).

The defendants present three arguments in support of this claim. First, the defendants assert that the trial court’s failure to make a finding as to commercial reasonableness mandates a new hearing. Second, they contend that although the plaintiff attached exhibits to the motion to approve the sale, no evidence was offered and, therefore, the trial court had nothing on which it could have premised a finding of commercial reasonableness. Third, the defendants argue that Hryniewicz offered the only evidence as to the value of the stock and his testimony that the stock was worth over $2,000,000 demonstrated that the sale price of $200,000 was commercially unreasonable. We address and reject these arguments in turn.

A

We note that the trial court made no express finding as to whether the sale was commercially reasonable. The motion for the order of sale requested that Hryniewicz’ shares of stock in Mountain Laurel “be sold at a public sale in a commercially reasonable manner pursuant to § 52-356a of the Connecticut General Statutes.” (Emphasis added.) In granting the motion, the trial court set the date, time and place of the sale, required that the sale be advertised in the Hartford Courant fourteen and seven days prior to the sale, provided that the sheriff follow the notice requirements of General Statutes § 52-356a (2) and (3), set the deposit at $50,000 and ordered the sheriff to make a return of his actions with respect to the sale and to bring the proceeds of the sale into court.

Implicit in the trial court’s granting of the motion is an order that the sale be conducted in a commercially reasonable manner as the requirement of commercial reasonableness was an integral part of the order sought by the motion. See Fiaschetti v. Nash Engineering Co., 47 Conn. App. 443, 448, 706 A.2d 476, cert. denied, 244 Conn. 906, 714 A.2d 1 (1998) (where motion unopposed, it can be assumed that in granting motion, court granted each request of moving party). The trial court’s subsequent approval of the sale implies that the trial court found both that the sale was conducted as ordered and that the sale was in fact commercially reasonable. Therefore, the defendants are not entitled to relief based on their claim that the trial court failed to find that the sale was conducted in a commercially reasonable manner.

B

The defendants claim that even if a finding of commercial reasonableness is implicit in the trial court’s order, the plaintiff presented no evidence on which such a finding could be based. He asserts that, pursuant to this court’s holding in Streicher v. Resch, 20 Conn. App. 714, 717, 570 A.2d 230 (1990), the attachments to the plaintiffs motion for approval of the sale could not be considered because they were not introduced into evidence. The attachments consisted of (1) a copy of the order of sale, (2) an affidavit of publication of notice as ordered by the court, (3) copies of the subject stock certificates and (4) the sheriffs return that describes all of the details of the sale.

We disagree with the defendants’ view that Streicher holds that such attachments can never be considered unless introduced into evidence. We said in Streicher: “Exhibits attached to a complaint can be considered by the factfinder if the defendant, through his answer or other responsive pleading, admits to the factual allegations contained therein so that the pleading constitutes a judicial admission. . . . Any allegation that is denied by the defendant, however, must be proven by the plaintiff.’’(Citations omitted.) Id., 716.

Although the motion here is not a complaint, we discern no reason why the rationale of Streicher should not apply. The defendants withdrew their objection to the motion for the order of sale and agreed to the terms as ordered by the trial court. By withdrawing the objection and agreeing to the terms of the sale, the defendants conceded that the sale as ordered was commercially reasonable. The defendants did not object to the motion for approval of the sale except as to the reasonableness of the sale price. Hryniewicz testified briefly as to his opinion of the value of the stock at the hearing. The defendants’ primary claim at that hearing was that the trial court should not rule pending the outcome of a proceeding before the department. They never contested the validity of the attachments or challenged the conduct of the sale in any way. Their claim as to commercial reasonableness was first raised during oral argument to the trial court, admittedly as an afterthought. We conclude that absent any objection to the motion for approval of the sale except as to the sale price, the trial court properly took the allegations as admitted and properly considered the attached exhibits.

C

The defendants’ last claim with respect to this issue is that the lack of any evidence from the plaintiff as to the value, coupled with Hryniewicz’ testimony that the stock was worth $2 million makes the $200,000 sale price commercially unreasonable. As we have previously discussed, the trial court properly considered the exhibits that were attached to the motion on all aspects of the sale, including the reasonableness of the price. Even though Hryniewicz owned the stock, the court was not required to accept his opinion of its value. It is well established that “[t]he trier of fact may accept or reject the testimony of any witness. State v. Cooley, 24 Conn. App. 489, [490-91], 589 A.2d 377, cert. denied, 219 Conn. 905, 593 A.2d 131 (1991). The trier can, as well, decide what—all, none, or some—of a witness’ testimony to accept or reject. 5 Connecticut Practice, D. Borden & L. Orland, Criminal Jury Instructions (1986) § 3.2. State v. Martin, 38 Conn. App. 731, 744, 663 A.2d 1078 (1995), cert. denied, 237 Conn. 921, 676 A.2d 1376 [cert. denied, 519 U.S. 1044, 117 S. Ct. 617, 136 L. Ed. 2d 541] (1996).” (Internal quotation marks omitted.) State v. Knight, 50 Conn. App. 109, 113, 717 A.2d 274 (1998). Upon review of all of the evidence, we conclude that the trial court’s approval of all aspects of the sale, including the sale price, was supported by the evidence and was not clearly erroneous.

II

The defendants next claim that the trial court improperly refused to stay the order to transfer the stock even though an unrelated proceeding was pending before the department in which one of the parties claimed that Mountain Laurel was a publicly regulated water company with attendant restrictions on the transfer of its stock. Specifically, the defendants argue that if it is determined in that unrelated proceeding that Mountain Laurel is a “public service company” under General Statutes § 16-1 (a) (4) or a “water company” under General Statutes § 16-1 (a) (10), the department would have jurisdiction over it and any sale of Mountain Laurel’s assets or stock would then require department approval pursuant to General Statutes §§ 16-19e (a) and 16-262o. We conclude that this claim is without merit.

The defendants invoke the doctrine of primary jurisdiction to support their claim. “Primary jurisdiction is a doctrine used by courts to allocate initial decisionmaking responsibility between agencies and courts where such overlaps and potential for conflicts exist.” (Internal quotation marks omitted.) Second Injury Fund v. Lupachino, 45 Conn. App. 324, 349, 695 A.2d 1072 (1997), citing 2 K. Davis & R. Pierce, Administrative Law Treatise (3d Ed. 1994) § 14.1, p. 271.

“It has been said that [the primary jurisdiction] doctrine ‘applies where a claim is originally cognizable in the courts, and comes into play whenever enforcement of the claim requires the resolution of issues which, under a regulatory scheme, have been placed within the special competence of an administrative body; in such a case the judicial process is suspended pending referral of such issues to the administrative body for its views.’ United States v. Western Pacific R. Co., 352 U.S. 59, 63-64, 77 S. Ct. 161, 1 L. Ed. 2d 126 (1956), citing General American Tank Car Corp. v. El Dorado Terminal Co., 308 U.S. 422, 433, 60 S. Ct. 325, 84 L. Ed. 361 (1940). . . . Stated another way, ‘[t]he threshold issue in determining whether [the] doctrine [of primary jurisdiction] applies is whether both the court and an agency have jurisdiction over the same issue.’ Golden Hill Paugussett Tribe of Indians v. Weicker, 39 F.3d 51, 59 (2d Cir. 1994).” (Citations omitted; emphasis in original.) Second Injury Fund v. Lupachino, supra, 45 Conn. App. 348-49.

Here, the defendants argue that the trial court should have suspended its decision in this case until the distinct proceeding before the department was resolved. The defendants further assert that if, in that proceeding, it is eventually determined that Mountain Laurel is a publicly regulated water company, the Superior Court would be bound by that determination. While this assertion is true, to the present time Mountain Laurel has never been determined to be a water company. Because Mountain Laurel is not considered a water company as defined by § 16-1 (a) (10), jurisdiction over Mountain Laurel’s transactions lies with the Superior Court. Even if the department eventually determines that Mountain Laurel is a water company, Hryniewicz offers no analysis as to how his stock could be considered an asset of Mountain Laurel or why it would make a difference whether he or the plaintiff owns the stock. The resolution of the plaintiffs claim to Hryniewicz’ stock in the Superior Court does not require any prior determination by the department. The trial court, therefore, had no valid reason to delay its decision making pending the outcome of the proceeding before the department and did not improperly refuse to stay the order to transfer the stock.

III

The defendants’ final claim is that the trial court improperly rendered an order for the relief requested in view of the fact that the defendants had a petition for new trial pending, and the court knew that that petition was pending and had not been tried. This issue is moot in view of our affirmance of the denial of the defendants’ petition for a new trial in Hryniewicz v. Wilson, 51 Conn. App. 440, 722 A.2d 288 (1999).

The judgment is affirmed.

In this opinion the other judges concurred.

       At the hearing on the motion to approve the sale of the subject stock, the plaintiffs attorney advised the trial court that the judgment plus interest and attorney’s fees totaled approximately $1.02 million.

       General Statutes § 52-356a (a) (1) provides: “On application of ajudgment creditor or his attorney, stating that ajudgment remains unsatisfied and the amount due thereon, and subject to the expiration of any stay of enforcement and expiration of any right of appeal, the clerk of the court in which the money judgment was rendered shall issue an execution pursuant to this section against the nonexempt personal property of the judgment debtor other than debts due from a banking institution or earnings. The application shall be accompanied by a fee of ten dollars payable to the clerk of the court for the administrative costs of complying with the provisions of this section which fee may be recoverable by the judgment creditor as a taxable cost of the action. In the case of a consumer judgment, the application shall indicate whether, pursuant to an instalment payment order under subsection (b) of section 52-356d, the court, has entered a stay of execution and, if such a stay was entered, shall contain a statement of the judgment creditor or his attorney as to the debtor’s default, on payments. The execution shall be directed to any levying officer.”
      General Statutes § 52-356a (b) (1) provides: “The judgment debtor’s interest in personal property levied on pursuant to an execution, other than any money so obtained, shall be sold by the levying officer, or by an indifferent person deputed to act on his behalf, or by such other levying officer as the court in which the money judgment was rendered directs, in accordance with subdivisions (2) and (3) of this subsection. The sale shall be held at such time and place and in such manner as is commercially reasonable. The sale shall be subject to, and shall not affect, any secured interests, including any such liens, that are senior in right to the execution. No sale may be made to any levying officer, or to his agent or associate. The property shall be present, and within view of those attending the sale unless otherwise ordered by the court.”

       The defendant’s opinion of value was based on the number of homes to which water could be supplied in the event there was continuous development of subdivisions in the area.

       General Statutes § 16-1 (a) (4) provides: “ ‘Public service company’ includes electric, gas, telephone, telegraph, pipeline, sewage, water and community antenna television companies, owning, leasing, maintaining, operating, managing or controlling plants or parts of plants or equipment, and^all express companies having special privileges on railroads within this state, but shall not include telegraph company functions concerning intrastate money order service, towns, cities, boroughs, any municipal corporation or department thereof, whether separately incorporated or not, or a private power producer, as defined in section 16-243b . . . ."

       General Statutes § 16-1 (a) (10) provides: “ ‘Water company’ includes every corporation, company, association, joint stock association, partnership or person, or lessee thereof, owning, leasing, maintaining, operating, managing or controlling any pond, lake, reservoir, stream, well or distributing plant or system employed for the purpose of supplying water to fifty or more consumers. A water company does not include homeowners, condominium associations providing water only to their members, homeowners associations providing water to customers at least eighty per cent of whom are members of such associations, a municipal waterworks system established under chapter 102, a district, metropolitan district, municipal district or special services district established under chapter 105, chapter 105a or any other general statute or any public or special act which is authorized to supply water, or any other waterworks system owned, leased, maintained, operated, managed, or controlled by any unit of local government under any general statute or any public or special act . . . .”

       General Statutes § 16-19e (a) provides: “In the exercise of its powers under the provisions of this title, the Department of Public Utility Control shall examine and regulate the transfer of existing assets and franchises, the expansion of the plant and equipment of existing public service companies, the operations and internal workings of public seivice companies and the establishment of the level and structure of rates in accordance with the following principles: (1) That there is a clear public need for 1he service being proposed or provided; (2) that the public service company shall be fully competent to provide efficient and adequate seivice to the public in that such company is technically, financially and managerially expert and efficient; (3) that the department and all public service companies shall perform all of their respective public responsibilities with economy, efficiency and care for the public safety, and so as to promote economic development within the state with consideration for energy and water conservation, energy efficiency and the development and utilization of renewable sources of energy and for the prudent management of the natural environment; (4) that the level and structure of rates be sufficient, but no more than sufficient, to allow public service companies to cover their operating and capital costs, to attract needed capital and to maintain their financial integrity, and yet provide appropriate protection to the relevant public interests, both existing and foreseeable; (5) that the level and structure of rates charged customers shall reflect prudent and efficient management of the franchise operation and (6) that the rates, charges, conditions of seivice and categories of seivice of the companies not discriminate against customers which utilize renewable energy sources or cogeneration technology to meet a portion of their energy requirements.”

       General Statutes § 16-262o provides in relevant part: “(a) The Department of Public Utility Control, in consultation with the Department of Public Health, upon a determination that the costs of improvements to and the acquisition of the water company are necessary and reasonable, shall order the acquisition of the water company by the most suitable public or private entity. In making such determination, the department shall consider: (1) The geographical proximity of the plant of the acquiring entity to the water company, (2) whether the acquiring entity has the financial, managerial and technical resources to operate the water company in a reliable and efficient manner and to provide continuous, adequate service to the persons served by the company, (3) the current rates that the acquiring entity charges its customers, and (4) any other factors the department deems relevant. . . .
      “(b) Notwithstanding the provisions of any special act, the Department of Public Utility Control shall extend the franchise areas of the acquiring water company to the service area of the water company acquired pursuant to this section. . . .”

       In any event, the claim is inadequately briefed. See State v. Rodriguez, 44 Conn. App. 818, 823, 692 A.2d 846, cert. denied, 242 Conn. 902, 697 A.2d 363 (1997). “ ‘Analysis, rather than mere abstract assertion, is required in order to avoid abandoning an issue by failure to brief the issue properly.’ . . . State v. Henderson, 47 Conn. App. 542, 558, 706 A.2d 480, cert. denied, 244 Conn. 908, 713 A.2d 829 (1998). Our Supreme Court has stated that ‘[w]e are not required to review issues 1hat have been improperly presented to this court, through an inadequate brief.’ Connecticut National Bank v. Giacomi, 242 Conn. 17, 44-45,699 A.2d 101 (1997).” State Library v. Freedom of Information Commission, 50 Conn. App. 491, 500, 717 A.2d 842 (1998). The defendant states the general propositions that relevant evidence “has a logical tendency to aid the trier of fact in the determination of an issue” and “the granting of a new trial vacates the former judgment.” He offers no analysis as to how these principles apply here.