author: PELLEGRINO, J.

text:
    STATE OF CONNECTICUT v. LASCELLES ANTHONY CLUE
    (AC 33365)
    DiPentima, C. J., and Robinson and Pellegrino, Js.

      Argued September 10
    officially released November 20, 2012

      Kevin Murray Smith, with whom, on the brief, was Daniel M. Erwin, for the appellant (defendant).

      Leon F. Dalbec, Jr., senior assistant state’s attorney, with whom, on the brief, were Stephen J. Sedensky III, state’s attorney, and Sharmese L. Hodge, assistant state’s attorney, for the appellee (state).
   Opinion

PELLEGRINO, J.

The defendant, Lascelles Anthony Clue, appeals from the judgments of conviction, rendered following a court trial on four informations consolidated for trial, of home invasion in violation of General Statutes § 53a-100aa, robbery in the first degree in violation of General Statutes § 53a-134 (a) (3), assault of an elderly person in the third degree in violation of General Statutes § 53a-61a (a) (1), threatening in the second degree in violation of General Statutes § 53a-62, larceny in the fifth degree in violation of General Statutes § 53a-125a and possession of marijuana in violation of General Statutes § 21a-279 (c). On appeal, the defendant claims that (1) there was insufficient evidence to sustain his convictions because the eyewitness identification evidence was improperly admitted into evidence at trial and/or was not sufficient to establish his guilt beyond a reasonable doubt, and (2) the court improperly admitted testimonial hearsay in violation of his rights under the confrontation clause of the sixth amendment to the United States constitution. We affirm the judgments of the trial court.

At the conclusion of trial, the court orally made the following findings on the record: On November 10,2009, a man wielding a knife and wearing a black mask and black hooded sweatshirt entered the home of seventy-eight year old Dorothy Bogues. The man held the knife to Bogues’ throat and demanded money. He told Bogues that he intended to harm her and specifically stated: “I’m going to kill you.” After taking an envelope of money and a laptop computer, the man left Bogues’ house.

“[A]lmost immediately upon the man’s departure,” Bogues called 911 and stated, inter alia, that she had been assaulted by a man wearing a black mask. Danbury police officers responded to Bogues’ house shortly thereafter. During the course of their investigation into the incident, the police obtained search warrants for the defendant’s home and vehicle.

When they searched the defendant’s home, Danbury police found a bag containing the laptop taken from Dorothy Bogues’ house. The bag — which police found hidden in an area of the defendant’s basement only accessible to the defendant and his girlfriend — also contained items identifying the defendant as the bag’s owner. The police also searched the defendant’s vehicle and found “items . . . corroborative of that which were indicated by Ms. Bogues” on the 911 call, including a black mask in the trunk of the car. Additionally, Dan-bury police found a bag of marijuana in the defendant’s pocket when they conducted a patdown search.

At the conclusion of the trial, the court found the defendant guilty of home invasion, robbery, assault, threatening, larceny and possession of marijuana. This appeal followed. Additional facts and procedural history will be set forth as necessary.

I

The defendant claims that there was insufficient evidence at trial to sustain his conviction on the home invasion, assault and robbery charges. We are not persuaded.

The following facts, which the court reasonably could have found, and procedural history are also relevant to our resolution of the defendant’s appeal. Dorothy Bogues was unavailable to testify at the defendant’s trial in February, 2011, because she died on April 29, 2010. At trial, the state presented testimony from the Danbury police officer who received the 911 call from Dorothy Bogues, as well as two of the other Danbury police officers who first responded to her house to investigate the incident and collect evidence. The state also presented the testimony of Dorothy Bogues’ son, Randall Bogues, who went to his mother’s house after the incident at her request. Randall Bogues initially identified a man named Kevin Smith as a potential suspect to police, based on his mother’s description of her attacker and his knowledge of “Kevin Smith” as an individual who lived close to Dorothy Bogues and had previously spent time at her house as a friend of Randall Bogues’ nephew.

The state also presented testimony from a Danbury police detective, Daniel Trompetta, who reported to Dorothy Bogues’ house on the afternoon of the incident and then went to the defendant’s address the next day to follow up on the information received from Randall Bogues. When Trompetta spoke with the defendant at his address, the defendant initially denied knowing Randall Bogues’ nephew and anyone named Kevin Smith, and he denied that he used the name Kevin Smith. The defendant also told Trompetta that he was employed by the person who owned the building in which he lived. When Trompetta spoke with the building owner, however, he learned that the defendant, whom the building owner knew as Kevin, was not employed by the owner in any steady fashion.

After his conversation with the building owner, Trom-petta obtained search warrants for the defendant’s home and vehicle. Later that day, Trompetta and other Danbury police officers executed the search warrant at the defendant’s home and found, among other things, a bag hidden in a basement cubbyhole. The bag contained a laptop with a serial number matching the serial number of Dorothy Bogues’ laptop, as well as papers belonging to the defendant.

Also that day, the defendant was stopped while driving near his home so that officers could execute the search warrant on his vehicle. When officers searched the vehicle they found, among other things, a black hooded jacket and black mask in the trunk of the car. Officers then arrested the defendant and took him into custody.

Trompetta interviewed the defendant after he was taken into custody. During the interview, the defendant gave differing stories regarding his whereabouts on the day of the incident at Dorothy Bogues’ house, and he admitted to previously lying to the detective about his knowledge of “Kevin Smith” and Randall Bogues’ nephew. The defendant also denied having Dorothy Bogues’ laptop in his home, but then changed his story to say that he purchased the laptop the day before the police found it, i.e., the day it was stolen, from a “crackhead named Milky.” The defendant further indicated to Trompetta that all the items found during the search of the vehicle were his. When Trompetta confronted the defendant regarding the invasion of Dorothy Bogues’ home, the defendant “was very calm” and said, “do you have physical evidence; prove it.”

At trial, the court admitted into evidence, among other things, the recording of Dorothy Bogues’ 911 call, as well as a knife found outside her home, the bag in which the police found her laptop, the items seized from the defendant’s car and the baggie of marijuana found in the defendant’s pocket.

“The standard of review employed in a sufficiency of the evidence claim is well settled. [W]e apply a two part test. First, we construe the evidence in the light most favorable to sustaining the verdict. Second, we determine whether upon the facts so construed and the inferences reasonably drawn therefrom the [finder of fact] reasonably could have concluded that the cumulative force of the evidence established guilt beyond a reasonable doubt. ... In evaluating evidence, the [finder] of fact is not required to accept as dispositive those inferences that are consistent with the defendant’s innocence. . . . The [finder of fact] may draw whatever inferences from the evidence or facts established by the evidence it deems to be reasonable and logical. ... On appeal, we do not ask whether there is a reasonable view of the evidence that would support a reasonable hypothesis of innocence. We ask, instead, whether there is a reasonable view of the evidence that supports the [finder of fact’s] verdict of guilty.” (Internal quotation marks omitted.) State v. Eubanks, 133 Conn. App. 105, 110, 33 A.3d 876, cert. denied, 304 Conn. 902, 37 A.3d 746 (2012).

As a preliminary matter, the defendant contends generally that the evidence was insufficient to convict him because the trial court improperly admitted the tape and transcript of the 911 call into evidence. According to the defendant, the 911 call is the “only piece of evidence” that establishes that the charged crimes occurred, and without it, he should be acquitted. As we discuss in part II of this opinion, however, the trial court did not err in admitting the tape and transcript of the 911 call into evidence, and the contents of the call were before the court appropriately. We therefore reject the defendant’s evidentiary sufficiency claims to the extent that they are based on the impropriety of the admission of the 911 call.

The defendant also challenges his conviction because the statutes at issue require the perpetrator to be in the presence of the victim at the time he physically threatens or harms the victim. He contends that the evidence presented at trial was insufficient to link him to Dorothy Bogues’ house, and, therefore, to identify him as the perpetrator of the crimes. We disagree.

Although the defendant claims that Randall Bogues’ “post facto speculation” regarding the identity of his mother’s assailant “was the only thing linking the defendant” to Dorothy Bogues’ house on November 10, 2009, this assertion ignores the other evidence presented at trial, including: (1) the November 10, 2009 recording of the 911 call indicating that Dorothy Bogues had just been robbed at knifepoint by a man in a black hooded sweatshirt wearing a black mask, who took money and a laptop computer and left her house on foot; (2) testimony establishing that the defendant lived a short distance away from Dorothy Bogues, was familiar with her and her home, and occasionally walked to her house; (3) testimony regarding the police investigation into the defendant and the defendant’s lies regarding his identity and whereabouts on the day of the incident; (4) testimony that police found Dorothy Bogues’ laptop computer hidden in the defendant’s basement in a bag containing other items belonging to the defendant and (5) the black hooded jacket and black mask found in the trunk of the defendant’s car.

On the basis of the evidence presented, the court reasonably could have found beyond a reasonable doubt that the defendant entered Dorothy Bogues’ home on November 10, 2009, that he held a knife to her throat and demanded money, and that he took money and a laptop from her home. Accordingly, we reject the defendant’s argument that the evidence was insufficient to convict him of home invasion, assault and robbery.

II

The defendant also claims that the court improperly admitted into evidence testimonial hearsay statements in violation of his rights under the confrontation clause of the sixth amendment. Specifically, he asserts that the court erred in admitting: (1) the tape and transcript of the 911 call Dorothy Bogues made to the Danbury police and (2) Randall Bogues’ identification of the defendant as his mother’s assailant and his testimony at trial regarding his mother’s description of her attacker. We disagree.

We begin by setting forth the relevant legal principles and our standard of review. “Under Crawford v. Washington, [541 U.S. 36, 68, 124 S. Ct. 1354, 158 L. Ed. 2d 177 (2004)], the hearsay statements of an unavailable witness that are testimonial in nature may be admitted under the sixth amendment’s confrontation clause only if the defendant has had a prior opportunity to cross-examine the declarant. Hearsay statements that are nontestimonial in nature are not governed by the confrontation clause, and their admissibility is governed solely by the rules of evidence. . . . Thus, the threshold inquiry for purposes of the admissibility of such statements under the confrontation clause is whether they are testimonial in nature. Because this determination is a question of law, our review is plenary.” (Internal quotation marks omitted.) State v. Serrano, 123 Conn. App. 530, 534, 1 A.3d 1277 (2010), cert. denied, 300 Conn. 909, 12 A.3d 1005 (2011).

The inquiry into whether a particular hearsay statement is testimonial in nature focuses “on the reasonable expectation of the declarant that, under the circumstances, his or her words later could be used for prose-cutorial purposes.” (Internal quotation marks omitted.) Id.; see also State v. Rivera, 268 Conn. 351, 363-64, 844 A.2d 191 (2004) (noting “statements that were made under circumstances which would lead an objective witness reasonably to believe that the statement would be available for use at a later trial” are traditionally considered testimonial hearsay [internal quotation marks omitted]).

A

The defendant first claims that the court committed reversible error by allowing into evidence the tape and transcript of Dorothy Bogues’ 911 call to the Danbury police. According to the defendant, because Dorothy Bogues made the call after the assailant fled her home, there was no ongoing emergency, and her statements on the call therefore were inadmissible testimonial hearsay. We are not persuaded.

The following additional facts, which the court reasonably could have found, and procedural history are relevant to this issue. At approximately 3:25 p.m. on November 10, 2009, Dorothy Bogues called 911 and reported to Danbury police officer Augusto Lowe that she was “just assaulted by a person that came in [her] door with a mask on; [who] took all [her] money.” Dorothy Bogues stated, inter alia, that a man wearing a black mask and black hooded sweatshirt came into her house holding a knife; he held the knife to her throat; he threatened her life and demanded money; and he left her house after taking an envelope of cash and her laptop computer. When Lowe indicated that officers were on their way to Dorothy Bogues’ house and asked her for a “very good description so we can give these officers a description as they’re going there,” she indicated that the intruder “couldn’t be very far” from her house because he was traveling on foot. She also told Lowe that she “wishfed] [officers] would come,” and she “[didn’t] know what’s gonna happen.” She further told Lowe that she was scratched from the knife, and that she was “crippled” and “in a wheelchair” because she “can’t walk very well.” Lowe stayed on the call with Dorothy Bogues until officers came to her home; the call ended only when the officers arrived and began “checking the area.”

The defendant moved to suppress the recording of the 911 call arguing that it was inadmissible testimonial hearsay, or, alternatively, was hearsay that did not fall under the excited utterance exception. The trial court denied the defendant’s motion to suppress. The court concluded that Dorothy Bogues’ statements on the 911 call were not testimonial in nature because the questions on the 911 call were intended to “elicit statements necessary in order to resolve the present emergency,” rather than “to establish or prove past events.” The court further found that Dorothy Bogues’ recounting of the attack on the 911 call satisfied the requirements for admission as an excited utterance.

The defendant asserts that the 911 call contained testimonial hearsay, and that the court improperly admitted the tape and transcript of the 911 call into evidence in violation of his rights under the confrontation clause. We disagree. In Davis v. Washington, 547 U.S. 813, 822, 126 S. Ct. 2266, 165 L. Ed. 2d 224 (2006), the United States Supreme Court articulated a test for determining whether statements to police are testimonial, stating that “[statements are nontestimoniai when made in the course of police interrogation under circumstances objectively indicating that the primary purpose of the interrogation is to enable police assistance to meet an ongoing emergency. They are testimonial when the circumstances objectively indicate that there is no such ongoing emergency, and that the primary purpose of the interrogation is to establish or prove past events potentially relevant to later criminal prosecution.”

The United States Supreme Court recently provided further guidance into the “ongoing emergency” component of the primary purpose inquiry, in Michigan v. Bryant, 562 U.S. 344, 131 S. Ct. 1143, 179 L. Ed. 2d 93 (2011). The court noted that “whether an emergency exists and is ongoing is a highly context-dependent inquiry” that should include, inter alia, objective consideration of (1) the scope of the emergency, or, in other words, whether the emergency threatens the police and public as opposed to merely the initial victim; (2) the type of weapon employed and (3) the medical condition of the declarant. Id., 363-65. This inquiry must focus objectively on the perspective of the parties at the time of the interrogation. Id., 361 n.8. “If the information the parties knew at the time of the encounter would lead a reasonable person to believe that there was an emergency, even if that belief was later proved incorrect, that is sufficient for purposes of the [confrontation [cjlause.” Id. As the court in Bryant further noted, the formality or informality of the interaction between the declarant and the police can also be useful in determining the primary purpose of the encounter. Id., 366.

When Dorothy Bogues called 911, all that she and Lowe knew was that (1) she had just been robbed at knifepoint in her home by a masked man and (2) the knife-wielding assailant had just fled her home on foot and “couldn’t be very far” away. The unknown whereabouts of a disguised individual armed with a dangerous weapon presented a threat that extended beyond Dorothy Bogues and her home — it threatened the safety of others in the vicinity, including police who were responding to the scene of the crime. See Michigan v. Bryant, supra, 562 U.S. 363-64.

Additionally, Lowe’s questions during the 911 call were directed explicitly toward resolving the emergency situation and ascertaining whether Dorothy Bogues was injured and/or needed assistance, and Bogues’ answers likewise centered on providing Lowe with his requested information and ensuring that police would arrive to further assist her. See id., 367-68 (noting that “[i]n many instances, the primary purpose of the interrogation will be most accurately ascertained by looking to the contents of both the questions and the answers”). Neither Lowe nor Dorothy Bogues had any indication at any point during the call that the emergency situation had subsided — she stated that she “[didn’t] know what’s gonna happen,” and Lowe only ended the call when he knew that officers had arrived on the scene and were checking the area for the assailant. See Michigan v. Bryant, supra, 562 U.S. 365 (noting that conversations can evolve from nontestimoniai to testimonial “if, for example, a declarant provides police with information that makes clear that what appeared to be an emergency is not or is no longer an emergency”).

Viewing the circumstances of the 911 call objectively, as we must, we conclude that nothing in the context or content of the call reasonably would have suggested to Dorothy Bogues that her statements made during the call would be used to establish or prove events in a later prosecution of the man who had just broken into her house and robbed her at knifepoint. See Davis v. Washington, supra, 547 U.S. 822; State v. Serrano, supra, 123 Conn. App. 534. Rather, the primary purpose of the 911 call was to enable Lowe to obtain from Dorothy Bogues the information necessary to meet an ongoing emergency, and her statements on the 911 call thus were not testimonial hearsay. Accordingly, the admission of the tape and transcript of the 911 call into evidence did not violate the defendant’s rights under the confrontation clause, and we reject the defendant’s first claim.

B

The defendant next claims that the court improperly admitted into evidence testimony regarding (1) Randall Bogues’ identification of the defendant as a potential suspect and (2) Dorothy Bogues’ description of her attacker to Randall Bogues. The defendant asserts that Dorothy Bogues’ description of her assailant was testimonial hearsay, and he contends that, because Randall Bogues identified the defendant to police based on his mother’s description and testified about her description in court, the admission of these statements into evidence violated the defendant’s right to confrontation. We are not persuaded.

The following additional facts, which the court reasonably could have found, and procedural history are relevant to our analysis. Randall Bogues went to his mother’s house on November 10, 2009, following a telephone call from his mother. He testified at trial that when he arrived at his mother’s house, there were officers inside the house speaking with his mother, and he went to check on her because she was “in need of attention.” He indicated that he calmed his mother down and ensured that she “was being taken care of,” and then went to speak to police officers outside her home. He testified that he provided the officers with information regarding his mother’s stolen laptop computer, and that the officers asked him for his help identifying anyone “that could have possibly had a motive to do that to [his] mom.” He further testified that he gave the police a description of the person he believed “fit the description that [his] mother had given [him],” and that he gave the police the name “Kevin Smith” as a potential perpetrator. According to Randall Bogues, Kevin Smith was a friend of his nephew, and he “had been known to come over to [Dorothy Bogues’] house stating that he wanted to go see [Randall Bogues’ daughter]. When my daughter wasn’t there, my mother would ask him to leave. At which point she would contact me, and I would insist that this individual leave the house because with my daughter not being there, there was absolutely no reason for that individual to be in that house or be near that house.” Randall Bogues gave the police Kevin Smith’s address and cell phone numbers.

During the state’s examination, defense counsel did not object to Randall Bogues’ testimony regarding either his conversation with his mother after he arrived at her house, or his identification of the defendant to the police. On cross-examination, Randall Bogues testified that when he arrived at his mother’s house, he attended to his mother and comforted her “as a son” because she had just been through a harrowing experience and had never been robbed or threatened before. Defense counsel then questioned Randall Bogues regarding his identification of the defendant to police and asked him to confirm that his mother had provided him with a physical description of her assailant, including the attacker’s height and weight. Defense counsel also questioned his knowledge of the defendant’s relationship with his nephew and asked about time the defendant spent at Dorothy Bogues’ house. On redirect examination, the state elicited further details regarding Dorothy Bogues’ physical description of the attacker to her son, including his height and presumed race, as well as the clothes he was wearing. Defense counsel did not object to any of this testimony.

Because the defendant did not object to Randall Bogues’ testimony at trial, he seeks review under State v. Golding, 213 Conn. 233, 239-40, 567 A.2d 823 (1989). “Under Golding, a defendant can prevail on a claim of constitutional error not preserved at trial only if all of the following conditions are met: (1) the record is adequate to review the alleged claim of error; (2) the claim is of constitutional magnitude alleging the violation of a fundamental right; (3) the alleged constitutional violation clearly exists and clearly deprived the defendant of a fair trial; and (4) if subject to harmless error analysis, the state has failed to demonstrate harmlessness of the alleged constitutional violation beyond a reasonable doubt. . . . The first two Golding requirements involve whether the claim is reviewable, and the second two involve whether there was constitutional error requiring a new trial.” (Internal quotation marks omitted.) State v. Mish, 110 Conn. App. 245, 256-57, 954 A.2d 854, cert. denied, 289 Conn. 941, 959 A.2d 1008 (2008). “In the absence of any one of these conditions, the defendant’s claim will fail. The appellate tribunal is free, therefore, to respond to the defendant’s claim by focusing on whichever condition is most relevant in the particular circumstances.” State v. Golding, supra, 240.

The defendant’s claim fails under the first Golding prong because the record is inadequate for review. “The defendant bears the responsibility for providing a record that is adequate for review of his claim of constitutional error. If the facts revealed by the record are insufficient, unclear or ambiguous as to whether a constitutional violation has occurred, we will not attempt to supplement or reconstruct the record, or to make factual determinations, in order to decide the defendant’s claim.” (Internal quotation marks omitted). State v. Riggsbee, 112 Conn. App. 787, 791-92, 963 A.2d 1122 (2009).

Here, we cannot discern from the record the context in which Dorothy Bogues described her assailant to her son, and thus we have no way to assess adequately whether her statements were testimonial hearsay that implicated the defendant’s rights under the confrontation clause. Specifically, although Randall Bogues indicated in his trial testimony that police officers were present at his mother’s house and speaking to her when he arrived, the record does not indicate clearly whether officers remained with Dorothy Bogues while she spoke to Randall Bogues regarding her attacker, whether officers asked Randall Bogues to obtain information from his mother and serve as an intermediary between his mother and the police, whether Dorothy Bogues described her assailant to her son in response to specific questioning or whether she volunteered the information to him, or, alternatively, whether Dorothy Bogues simply described her attacker to her son while he was comforting her after a harrowing experience, wholly outside the context of a law enforcement investigation. We, therefore, cannot determine from the existing record whether Dorothy Bogues reasonably could have believed that her statements could be used in the eventual trial of her attacker; see State v. Rivera, supra, 268 Conn. 363-64; and we cannot try to supplement or reconstruct the record to decide the defendant’s claim. See State v. Riggsbee, supra, 112 Conn. App. 792.

Because the record is inadequate for review, the defendant has failed to satisfy the first prong of the test set forth in Golding, and his claim fails.

The judgments are affirmed.

In this opinion the other judges concurred.

       The court imposed a total effective sentence of fourteen years imprisonment followed by ten years of special parole.

       Randall Bogues identified “Kevin Smith” in court as the defendant.

       Randall Bogues’ daughter, Stephaxüa Bogues, also testified at trial regarding the defendant’s prior visits to Dorothy Bogues’ house, including the fact that the defendant would sometimes walk to Dorothy Bogues’ house on foot.

       The defendant was arrested for possession of marijuana, which police found in his pocket during a patdown search conducted after they stopped the defendant’s vehicle.

       Even assuming arguendo that the trial court had improperly admitted the tape and transcript of the 911 call into evidence, this would not affect our evidentiary sufficiency analysis. A claim of insufficiency of the evidence “must be evaluated by considering all the evidence adduced at trial, even evidence subsequently determined to have been improperly admitted.” State v. Carey, 228 Conn. 487, 494, 636 A.2d 840 (1994).

       Specifically, under General Statutes § 53a-100aa (a), “[a] person is guilty of home invasion when such person enters or remains unlawfully in a dwelling, while a person other than a participant in the crime is actually present in such dwelling, with intent to commit a crime therein, and, in the course of committing the offense . . . commits or attempts to commit a felony against the person of another person other than a participant in the crime who is actually present in such dwelling, or ... is armed with explosives or a deadly weapon or dangerous instrument.”
      Pursuant to General Statutes § 53a-61a (a) (1), a person is guilty of assault of an elderly person in the third degree when the person commits assault in the third degree and “the victim of such assault has attained at least sixty years of age . . . .”
      Finally, a person is guilty of robbery in the first degree under General Statutes § 53a-134 (a) (3) “when, in the coruse of the commission of the crime of robbery ... he or another participant in the crime . . . uses or threatens the use of a dangerous instrument . . . .”

       The defendant has not challenged the court’s ruling that Dorothy Bogues’ statements on the 911 call were admissible under the excited utterance exception to the hearsay rule, and, therefore, we will not review this eviden-tiary determination.

       The defendant argues that Bryant is inapposite because the defendant in that case murdered the declarant with a gun, whereas the present case is not a murder case and involves a knife instead of a firearm. In lieu of using Bryant’s guidance on what constitutes an “ongoing emergency,” the defendant instead urges us to draw a line at Dorothy Bogues’ door and conclude that once the intruder stepped outside her house, any emergency ceased. We reject this assertion. Bryant made clear that emergency situations can extend beyond the initial victim and pose a threat to police and the public, and that the determination of whether an emergency situation exists is highly context-driven. Michigan v. Bryant, supra, 562 U.S. 363. We therefore decline to adopt the rigid test the defendant proposes. We also reject the defendant’s argument that Davis should guide our analysis instead of Bryant because Davis provides a more closely analogous fact pattern to the present case. Davis involved a domestic disturbance during which the victim called police while a known assailant beat her with his fists and then fled the scene. Davis v. Washington, supra, 547 U.S. 817-18. In contrast to the declarant in Davis, Dorothy Bogues called 911 to inform police that an unknown, disguised, knife-wielding man had just left her home on foot after threatening her life and robbing her. The masked intruder in the present case was an unknown quantity whose presence outside Dorothy Bogues’ home continued to pose a potential threat to the public and responding police officers. See Michigan v. Bryant, supra, 364-65 (contrasting Bryant and Davis and noting differences between scope and duration of emergency in domestic violence cases and nondomestic disturbances).

       Lowe stated: “[W]e have officers coming right now, but what — I need a — a very good description so we can give these officers a description as they’re going there.” Dorothy Bogues described the intruder in response to Lowe’s questions and stated, inter alia, “I wish [officers] would come.”

       The informality of the 911 call, which occurred in the immediate aftermath of the incident and prior to the arrival of any police officers or medical personnel on the scene, further supports our conclusion that Dorothy Bogues’ statements on the call were not testimonial hearsay. See Michigan
        v. Bryant, supra, 562 U.S. 366, 377 (contrasting the “formal station-house interrogation” deemed testimonial in Crawford and noting that “the questioning in [Bryant] occurred in an exposed, public area, prior to the arrival of emergency medical services, and in a disorganized fashion,” and further stating that “the circumstances lacked any formality that would have alerted [the declarant] to or focused him on the possible future prosecutorial use of his statements”).


source: Caselaw Access Project

author: SHELDON, J.

license: Public Domain

text:
    JOHN T. O’REILLY ET AL. v. NICOLINO VALLETTA ET AL.
    (AC 34054)
    Bear, Sheldon and West, Js.
    Argued September 11
    officially released November 20, 2012

      John T. O’Reilly, pro se, the appellant (named plaintiff).

      Daniel J. Krisch, with whom were Agron Etemi and, on the brief, Thomas P. Lambert, for the appellee (defendant Robert A. Pformer).
   Opinion

SHELDON, J.

The dispositive issue in this case is whether the plaintiff, John T. O’Reilly, the owner of HUB Associates, LLC (HUB), a limited liability company that leased commercial premises for the operation of a restaurant in Branford, has standing to sue the defendant, Robert A. Pformer, a board member of the condominium association that managed the leased premises, for an alleged violation of the Connecticut Unfair Trade Practices Act, General Statutes § 42-110a et seq. (CUTPA), based on Pformer’s alleged interference with HUB’s efforts to advertise its business on the leased premises. The case is now before this court on O’Reilly’s appeal from the trial court’s judgment in favor of Pformer on that claim, which was rendered after the court granted Pformer’s motion to strike that claim on the ground that it failed to state a claim on which relief could be granted under CUTPA. The court ruled, more particularly, that the alleged conduct on which the claim was based involved the management of a condominium association and did not constitute “acts or practices in the conduct of any trade or commerce,” within the meaning of General Statutes § 42-110b (a), as a matter of law. Although Pformer contends that the trial court’s analysis of the sufficiency of the challenged claim was legally correct, he now urges this court, for the first time on appeal, to rule that O’Reilly lacked standing to bring that claim against him and, thus, that the claim should be dismissed for lack of subject matter jurisdiction. Because we agree with Pformer that O’Reilly lacked standing to bring the challenged CUTPA claim against him, we vacate the trial court’s judgment on the merits of that claim and remand the case to the trial court with direction to dismiss the second count against Pformer for lack of subject matter jurisdiction.

The following facts, alleged in the complaint filed by O’Reilly and HUB, are pertinent to the resolution of this appeal. On December 24, 2007, O’Reilly, “through his LLC, [HUB],” entered into a lease agreement with Nicolino Valletta, under which HUB rented a commercial condominium owned by Valletta at 420 East Main Street in Branford, for the purpose of operating a restaurant. Although the lease term began on January 1, 2008, and terminated on December 31, 2010, HUB was not required to make rental payments until May 1, 2008, in recognition of the fact that it would need time to prepare the premises for the operation of a restaurant.

As the owner of HUB, O’Reilly completely renovated the leased premises to prepare it for the opening of the new restaurant. That involved, inter alia, the installation of two new roofs on the rented building, for which Valletta refused to pay, despite his contractual obligation to do so under article 14 of the lease agreement. Valletta also refused to pay for a new heating system for the rented building, as requested by O’Reilly, on behalf of HUB, under article 14 of the lease agreement, although over 50 percent of the building was unheated and, thus, unsuitable for use as a restaurant. Notwithstanding these and other difficulties he had in dealing with Valletta during the lease period, O’Reilly cooperated with Valletta throughout that period in an effort to persuade him to sell the leased premises to HUB.

After spending over $140,000 for renovations and new equipment for the leased premises in order to open HUB’S new restaurant therein, O’Reilly posted advertising signs for the new restaurant on the premises. After the signs were posted, Pformer began to complain about them. Pformer then personally attempted to remove the signs despite their approval by the town of Branford. Thereafter, without giving notice to O’Reilly of his intention to do so, Pformer conducted a hearing of the condominium association board (board) with respect to the signs, at which the board imposed a fine on the unit owner, which ultimately was levied against HUB, for displaying them. Following the hearing, Pformer and Valletta jointly removed the signs from the leased premises, thereby allegedly harming the restaurant’s business and causing it to incur costs to build new advertising signs.

On the basis of the foregoing allegations, O’Reilly and HUB filed a two count complaint against Pformer and Valletta on or about June 24, 2011. In the first count of the complaint, they alleged that Valletta had violated the lease agreement and breached the implied covenant of good faith and fair dealing arising under it by requiring them to expend over $140,000 to renovate the leased premises, later denying that they had made such payments, and ultimately attempting to evict them from the premises to promote his own failing financial interests. In count two of the complaint, O’Reilly and HUB complained: that, by removing the advertising signs from the leased premises, Pformer and Valletta had attempted to deprive them of their “fair business rights”; that, by denying them notice of the hearing before the condominium board, Pformer had interfered with their contractual rights under the lease agreement; and that, by their collective and individual conduct, Pformer and Valletta had engaged in unfair and deceptive trade practices that caused them serious financial damage, in alleged violation of CUTPA.

On August 16, 2011, Pformer filed a motion to strike the second count for failure to allege “acts or practices in the conduct of any trade or commerce”; General Statutes § 42-110b (a); as required to prove a violation of CUTPA. The trial court granted the motion to strike on October 3,2011. Pformer subsequently filed a motion for judgment on the stricken count. O’Reilly and HUB filed an objection to Pformer’s motion for judgment. On October 31, 2011, the trial court granted Pformer’s motion for judgment. This appeal followed.

Pformer now claims that O’Reilly’s CUTPA claim against him, as pleaded in the second count of the complaint, should be dismissed for lack of subject matter jurisdiction because O’Reilly lacked standing to bring that claim. “Subject matter jurisdiction involves the authority of the court to adjudicate the type of controversy presented by the action before it. . . . [A] court lacks discretion to consider the merits of a case over which it is without jurisdiction .... The subject matter jurisdiction requirement may not be waived by any party, and also may be raised by a party, or by the court sua sponte, at any stage of the proceedings, including on appeal.” (Internal quotation marks omitted.) Richardson v. Commissioner of Correction, 298 Conn. 690, 696, 6 A.3d 52 (2010).

“[I]t is the burden of the party who seeks the exercise of jurisdiction in his favor . . . clearly to allege facts demonstrating that he is a proper party to invoke judicial resolution of the dispute.” (Internal quotation marks omitted.) McWeeny v. Hartford, 287 Conn. 56, 64, 946 A.2d 862 (2008). “One cannot rightfully invoke the jurisdiction of the court unless he [or she] has, in an individual or representative capacity, some real interest in the cause of action, or a legal or equitable right, title or interest in the subject matter of the controversy.” (Internal quotation marks omitted.) Retirement Program for Employees of the Town of Fairfield v. Madoff 130 Conn. App. 710, 716, 26 A.3d 93 (2011). “[A]s a general rule, a plaintiff lacks standing unless the harm alleged is direct rather than derivative or indirect.” Connecticut State Medical Society v. Oxford Health Plans (CT), Inc., 272 Conn. 469, 481, 863 A.2d 645 (2005).

“It is axiomatic that a party must have standing to assert a claim in order for the court to have subject matter jurisdiction over the claim.” Ganim v. Smith & Wesson Corp., 258 Conn. 313, 346, 780 A.2d 98 (2001). “Standing is the legal right to set judicial machinery in motion. ... Standing requires no more than a color-able claim of injury; a [party] ordinarily establishes . . . standing by allegations of injury.” (Citations omitted; internal quotation marks omitted.) AvalonBay Communities, Inc. v. Orange, 256 Conn. 557, 567-68, 775 A.2d 284 (2001).

“The requirement of directness between the injuries claimed by the plaintiff and the conduct of the defendant also is expressed, in our standing jurisprudence, by the focus on whether the plaintiff is the proper party to assert the claim at issue. . . .

“Thus, to state these basic propositions another way, if the injuries claimed by the plaintiff are remote, indirect or derivative with respect to the defendant’s conduct, the plaintiff is not the proper party to assert them and lacks standing to do so. [When], for example, the harms asserted to have been suffered directly by a plaintiff are in reality derivative of injuries to a third party, the injuries are not direct but are indirect, and the plaintiff has no standing to assert them.” (Citations omitted; internal quotation marks omitted.) Ganim v. Smith & Wesson Corp., supra, 258 Conn. 347-48.

A limited liability company is a distinct legal entity whose existence is separate from its members. See Litchfield Asset Management Corp. v. Howell, 70 Conn. App. 133, 147, 799 A.2d 298, cert. denied, 261 Conn. 911, 806 A.2d 49 (2002). A limited liability company has the power to sue or to be sued in its own name; see General Statutes §§ 34-124 (b) and 34-186; or may be a party to an action brought in its name by a member or manager. See General Statutes § 34-187. A member or manager, however, may not sue in an individual capacity to recover for an injury based on a wrong to the limited liability company. See General Statutes § 34-134 (“[a] member or manager of a limited liability company is not a proper party to a proceeding by or against a limited liability company solely by reason of being a member or manager of the limited liability company, except where the object of the proceeding is to enforce a member’s or manager’s right against or liability to the limited liability company or as otherwise provided in an operating agreement”).

In the case at bar, the CUTPA count as to Pformer is based entirely on his alleged violations of the business rights and expectations of O’Reilly’s company, HUB, arising from HUB’s status as the lessee of the leased premises and the owner and operator of the restaurant thereon. Pformer’s alleged removal of signs from the premises was directed at HUB, not at O’Reilly personally, both because HUB was the sole lessee of the subject premises and because O’Reilly had posted the signs in question thereon while acting as HUB’s owner and agent, for the purpose of advertising HUB’s restaurant business. The losses allegedly caused by Pformer’s actions thus were losses to HUB, not to O’Reilly personally, for they consisted of lost revenue for HUB’s restaurant business and costs incurred to build new signs to advertise the business.

Similarly, with respect to Pformer’s alleged manipulation of condominium association procedures to conduct an unnoticed hearing as to the posting of signs on HUB’s leased premises, in alleged violation of HUB’s rights arising under the lease, any violation of those rights occasioned by such conduct affected only HUB; for it alone, and not O’Reilly, was a party to the lease agreement, and the complaint contained no allegation that Valletta owed any obligation to O’Reilly personally under that agreement. Hence, although it can be surmised that O’Reilly, as owner of HUB, may have been harmed indirectly by Pformer’s alleged violations of its contractual rights and interests under the lease agreement, the only direct harm caused by such conduct was suffered by the company itself. Pformer claims, on that basis, that the proper party to bring an action complaining of such conduct was HUB, not O’Reilly. We agree.

O’Reilly lacked the requisite direct personal interest in the lease, the leased premises or the restaurant business conducted by his company on those premises to confer standing on him to complain of any breach of the lease or of any harm to the business resulting therefrom. Accordingly, we conclude that the trial court lacked subject matter jurisdiction over the claim based on those issues, as alleged by O’Reilly in the second count of the complaint. The court improperly rendered judgment for Pformer on the merits of O’Reilly’s CUTPA claim. The claim should have been dismissed for lack of subject matter jurisdiction rather than decided on its substantive merits.

The form of the judgment is improper as to the count of the complaint alleging a CUTPA claim against Pformer, the judgment is reversed as to that count and the case is remanded with direction to dismiss that count for lack of subject matter jurisdiction.

In this opinion the other judges concurred.

       O’Reilly and HUB Associates, LLC, O’Reilly’s company, filed a two count complaint alleging breach of contract against Nicolino Valletta and violation of the Connecticut Unfair Trade Practices Act, General Statutes § 42-110a et seq. (CUTPA), against Valletta and Robert A. Pformer. The trial court rendered judgment on the CUTPA count in favor of Pformer, which was an appealable final judgment pursuant to Practice Book § 61-3. Although the trial court rendered judgment against both O’Reilly and HUB, the record on appeal indicates that only O’Reilly filed this appeal, and, accordingly, this opinion solely relates to O’Reilly’s standing to sue Pformer for a violation of CUTPA; it does not address HUB’S standing.

       The trial court rendered judgment in favor of Pformer on count two of O’Reilly’s and HUB’S complaint after it granted Pformer’s motion to strike the claim, resulting in a final judgment in favor of Pformer. The claims against Valletta are still pending.

       The issue of subject matter jurisdiction “may be raised by a party . . . at any stage of the proceedings, including on appeal.” (Internal quotation marks omitted.) Richardson v. Commissioner of Correction, 298 Conn. 690, 696, 6 A.3d 52 (2010).

       O’Reilly and HUB concede in the first paragraph of their complaint that O’Reilly rented a condominium from Valletta “through his ULC, HUB Associates.”

       Pformer argues that “[t]he lease itself did not, for example, give O’Reilly any option rights at its termination.” We note that the complaint alleged that throughout the course of O’Reilly’s business relationship with Valletta, “the parties repeatedly discussed the possibility of . . . O’Reilly purchasing the premises from . . . Valletta and entered into several agreements to that effect.” Despite the implication that Pformer’s conduct in some way harmed O’Reilly’s future interest in purchasing the restaurant, a copy of the real estate purchase and sale agreement, which was attached to the complaint, lists HUB as the buyer rather than O’Reilly.


author: FLYNN, J.

text:
    EUGENE P. MERCER v. WALTER CHAMPION ET AL.
    (AC 33656)
    Alvord, Bear and Flynn, Js.

      Argued September 24
    officially released November 20, 2012

      Eugene P. Mercer, pro se, the appellant (plaintiff).

      Daniel Shapiro, assistant attorney general, with whom, on the brief, was George Jepsen, attorney general, for the appellee (defendants).
   Opinion

FLYNN, J.

The pro se plaintiff, Eugene P. Mercer, incarcerated for felony murder, appeals from the judgment of the trial court granting the defendants’, employees of the department of correction (department), motion to strike the entirety of the plaintiffs complaint seeking monetary damages, attorney’s fees and declaratory and injunctive relief for the allegedly discriminatory actions of the defendants. On appeal, the plaintiff claims that the court improperly struck his complaint for failing to plead sufficient facts to support any of these claims. We affirm the judgment of the court.

The following factual and procedural history is relevant to our resolution of the plaintiffs appeal. The plaintiff commenced this action by way of a four count complaint, entitled by the plaintiff as “causes of action,” dated July 3, 2007, in which he alleged that the defendants violated Title II of the Americans with Disabilities Act (ADA), 42 U.S.C. § 12101 et seq., § 504 of the Rehabilitation Act of 1973 (Rehabilitation Act), 29 U.S.C. § 701 et seq., the equal protection clause of the fourteenth amendment to the United States constitution and article first, § 20, of the constitution of Connecticut, as amended by articles five and twenty-one of the amendments. The plaintiff indicated in his complaint that each defendant was sued in his or her official capacity.

The plaintiff alleged that he is afflicted with two neurological disorders that affect his balance, coordination and ability to walk. The plaintiff further alleged that he requested a “modification of . . . rules, policies, practices and procedures” of Osborn Correctional Institution (Osborn) to allow him “access to practice a musical instrument on a daily basis, either by allowing access or allowing plaintiff to possess a portable keyboard with headphones for personal use as a specialized recreational activity,” but his request was denied by the defendants. The plaintiff stated that his request was denied because the defendants were engaged in intentional discrimination against him because of his physical disability. The plaintiff further stated that he is entitled to this “specialized recreational activity” because his disability prevents him from participating in “contact sports or activities” that nondisabled inmates have access to, such that he “is restricted to board games, weightlifting, library and the band program twice a week.” The plaintiff alleged that he filed a grievance and exhausted his administrative remedies with the department before filing his complaint.

On February 8, 2008, the defendants filed a motion to strike alleging that the plaintiff failed in each count to state a claim upon which relief can be granted. The court granted the motion to strike on December 5,2008, because the plaintiff never “alleged that he was treated differently from others as a result of his disability. In fact, he is requesting specific relief unavailable to others . ...” In accordance with Practice Book § 10-44, the plaintiff filed a substitute pleading on January 9, 2009. The plaintiffs substitute complaint differed from his original complaint only by the addition of one paragraph: “The plaintiff alleges that he is being treated differently from other inmates as a result of his disability. Reasonable accommodations in the area of recreational activities have been granted to other inmates. The plaintiff is being treated differently than others similarly situated.”

The defendants filed their second motion to strike on June 19, 2009. In this motion, the defendants argued that the plaintiffs additional paragraph “does not add any substantive claims” and, like the plaintiffs original complaint, “fails to state a claim upon which relief can be granted . . . .” The defendants also argued that “monetary damages are not available when [the] plaintiff has failed to establish that the alleged ADA and [Rehabilitation Act] violations were motivated by discriminatory animus or ill will due to the disability.” Finally, the defendants incorporated all of their legal arguments previously made in their first motion to strike into their second motion to strike. The court granted the second motion to strike on July 12, 2010.

In the court’s memorandum of decision, dated July 12, 2010, it addressed the motion to strike in three parts — first addressing the counts related to money damages, then declaratory and injunctive relief and, finally, the constitutional claims. The court read the plaintiffs action against the defendants, state department employees, as an action against the state, subject to sovereign immunity unless the plaintiff pleaded that the ADA violation was motivated by discriminatory animus or ill will stemming from his disability. The court first concluded that the plaintiff “[did] not allege facts rising to the level of discriminatory animus or ill will,” such that “his ADA claim is barred and must be stricken.” (Emphasis in original.) Next, the court concluded that although “[t]he complaint contains allegations sufficient to demonstrate that the plaintiff is a qualified individual under both [the ADA and the Rehabilitation Act] and that the defendants are subject to the provisions . . . the complaint fails to properly allege that the plaintiff was denied an opportunity to participate in or benefit from the defendants’ services, programs or activities as a result of his disability. . . . Nor does the plaintiff allege facts related to any other perceived discrimination.” The court concluded that, “[a]side from his conclusory allegation that he is treated differently from others who are similarly situated, the plaintiff has failed to plead any facts . . . sufficient to establish a cognizable equal protection claim under either the federal or state constitution.” (Emphasis in original.) The court also stated: “[T]he plaintiff has failed to allege that other inmates . . . were provided with the type of accommodation he requested, such as individual possession of a musical instrument or alternative in-cell recreational resources, and that any such failure to provide such an accommodation to the plaintiff was because of the plaintiffs particular disability or disabled status.” (Emphasis in original.) Thereafter, on August 23, 2010, the court rendered judgment for the defendants, striking the entirety of the plaintiffs complaint, and this appeal followed.

On appeal, the plaintiff claims that the court erred in striking his (1) claims for monetary damage under Title II of the ADA for failing to plead facts that demonstrate discriminatory animus or ill will, (2) claims for declaratory and injunctive relief for failing to plead sufficient facts under the ADA and the Rehabilitation Act and (3) constitutional equal protection claims for failing to plead sufficient facts. We begin by setting forth our standard of review and the principles that guide our analysis.

“The standard of review in an appeal challenging a trial court’s granting of a motion to strike is well established. Amotion to strike challenges the legal sufficiency of a pleading, and, consequently, requires no factual findings by the trial court. As a result, our review of the court’s ruling is plenary. . . . We take the facts to be those alleged in the complaint that has been stricken and we construe the complaint in the manner most favorable to sustaining its legal sufficiency. . . . Thus, [i]f facts provable in the complaint would support a cause of action, the motion to strike must be denied.” (Internal quotation marks omitted.) Sullivan v. Lake Compounce Theme Park, Inc., 277 Conn. 113, 117-18, 889 A.2d 810 (2006). “[W]e assume the truth of both the specific factual allegations and any facts fairly provable thereunder.” (Internal quotation marks omitted.) Himmelstein v. Windsor, 304 Conn. 298, 307, 39 A.3d 1065 (2012). A “[motion to strike] admits all facts well pleaded; it does not admit legal conclusions or the truth or accuracy of opinions stated in the pleadings.” (Emphasis in original.) Mingachos v. CBS, Inc., 196 Conn. 91, 108, 491 A.2d 368 (1985).

I

The first issue before us is whether the court erred in striking the plaintiffs claim for monetary damages under Title II of the ADA for failing to plead facts that demonstrate discriminatory animus or ill will. The trial court classified the plaintiffs complaint as an action against the state “ [b] ecause the complaint claims money damages against the defendants in their official capacity . . . .” Due to this classification, the question then became whether sovereign immunity applied to shield the state from the claim. Relying on Garcia v. S.U.N.Y. Health Sciences Center, 280 F.3d 98 (2d Cir. 2001), the trial court held that “any such claim . . . [required] that the plaintiff plead and prove that any violation of Title II of the ADA was motivated by discriminatory animus or ill will due to his disability.” We disagree with the court’s treatment of Garcia.

We briefly address the threshold assessment of the capacity in which the named defendants were sued. Although it is true that during the course of the litigation, it has been understood that the plaintiff sued the defendants in their official capacities, which is echoed in the plaintiffs complaint, “a statement by the plaintiff that he has sued the defendants in their official capacities is not dispositive of the issue and is a question of law over which our review is plenary . . . .” Mercer v. Strange, 96 Conn. App. 123, 127, 899 A.2d 683 (2006). “[A] suit against a state officer concerning a matter in which the officer represents the state is, in effect, against the state.” (Internal quotation marks omitted.) Miller v. Egan, 266 Conn. 301, 313, 828 A.2d 549 (2003). The plaintiffs complaint and the monetary relief sought by the plaintiff in the present action clearly indicates that the defendants are being sued over a matter in which each defendant represents the state, such that this is an action against the state.

“In Connecticut, we have long recognized the validity of the common-law principle that the state cannot be sued without its consent,” otherwise known as sovereign immunity. Horton v. Meskill, 172 Conn. 615, 623, 376 A.2d 359 (1977). “To overcome the presumption of sovereign immunity ... a plaintiff seeking to bring a claim against the state must establish that an exception to the doctrine applies.” (Citation omitted; internal quotation marks omitted.) Housatonic Railroad Co. v. Commissioner of Revenue Services, 301 Conn. 268, 275, 21 A.3d 759 (2011). Specifically, under the ADA, Congress “invoke[d] the sweep of congressional authority, including the power to enforce the fourteenth amendment . . . .” 42 U.S.C. § 12101 (b) (4). Congress further stated that “[a] State shall not be immune under the eleventh amendment to the [Constitution of the United States from an action in [a] Federal or State court of competent jurisdiction for a violation of this chapter.” 42 U.S.C. § 12202.

In Garcia, the court addressed the interplay of sovereign immunity and private actions for money damages under the ADA. “Section 5 of the [fourteenth [amendment . . . does grant Congress the authority to abrogate the States’ sovereign immunity. . . . Thus, if Title II is a valid exercise of Congress’s § 5 power, then nonconsenting states may be hailed into federal court by private individuals seeking money damages.” (Citation omitted; internal quotation marks omitted.) Garcia v. S.U.N.Y. Health Sciences Center, supra, 280 F.3d 108. Although the court found that “Title II in its entirety exceeds Congress’s authority under § 5 . . . Title II need only comport with Congress’s § 5 authority to the extent that the title allows private damage suits against states for violations.” Id., 110. In examining the issue, the court set out to “restrict the availability of Title II monetary suits against the states in a manner that is consistent with Congress’s § 5 authority, and that thereby validly abrogates state sovereign immunity from private monetary suits under Title II.” Id., 111. The court’s solution was to hold “that a showing of discriminatory animus or ill will based on disability is necessary to recover damages under Title II in a private action against a state . . . .” Id., 112.

The issue of whether Title II of the ADA validly abrogated state sovereign immunity was addressed by the Supreme Court in United States v. Georgia, 546 U.S. 151, 156, 126 S. Ct. 877, 163 L. Ed. 2d 650 (2006). “While the Members of this Court have disagreed regarding the scope of Congress’s ‘prophylactic’ enforcement powers under § 5 of the [f]ourteenth [a]mendment ... no one doubts that § 5 grants Congress the power to ‘enforce . . . the provisions’ of the [a]mendment by creating private remedies against the [sjtates for actual violations of those provisions.” (Citations omitted; emphasis in original.) Id., 158. On the basis of that rationale, the Supreme Court held that “insofar as Title II creates a private cause of action for damages against the [s]tates for conduct that actually violates the [fourteenth [ajmendment, Title II validly abrogates state sovereign immunity.” (Emphasis in original.) Id., 159.

The Second Circuit has not yet addressed the effect Georgia has on its previous holding in Garcia-, however, district courts have attempted to reconcile the two holdings. See Andino v. Fischer, 698 F. Sup. 2d 362, 377 n.2 (S.D.N.Y. 2010); Fox v. Poole, United States District Court, Docket No. 06-CV-148 (HS)(W.D.N.Y. August 12, 2008); Castells v. Fisher, United States District Court, Docket No. 05-CV-4866 (SJ) 2007 WL1100850 (E.D.N.Y. March 24, 2007). “The result is that it remains unclear whether the discriminatory animus requirement articulated in Garcia remains in place following Georgia. Nevertheless, because Garcia applied the discriminatory animus test in order to address the question of abrogation, Georgia’s comprehensive test logically would supersede Garcia’s animus requirement . . . .” Andino v. Fischer, supra, 377 n.2.

Shortly after the decision in Georgia was issued, this court, in Mercer v. Strange, supra, 96 Conn. App. 133, addressed how private actions against the state of Connecticut for money damages under Title II of the ADA must be analyzed: “[T]he court must consider whether any of the actions of which the plaintiff complains constitutes a constitutional violation. If the court concludes that the complaint alleges constitutional violations, the court then must consider whether these violations also are covered under the ambit of Title II of the ADA. To the extent that the alleged conduct both constitutes a constitutional violation and is forbidden under the ADA, the defense of sovereign immunity does not apply to bar the plaintiff’s claim.” Therefore, in accordance with Georgia, as followed in Mercer, as long as the private cause of action against the state for money damages stems from conduct that violates the fourteenth amendment, Title II validly abrogates state sovereignty without necessitating a showing of discriminatory animus or ill will. See United States v. Georgia, supra, 546 U.S. 159.

“The [e]qual [protection [c]lause of the [f]ourteenth [ajmendment to the United States [constitution is essentially a direction that all persons similarly situated should be treated alike.” (Interna! quotation marks omitted.) Brooks v. Sweeney, 299 Conn. 196, 218, 9 A.3d 347 (2010). The ADA states in relevant part: “[N]o qualified individual with a disability shall, by reason of such disability, be excluded from participation in or be denied the benefits of the services, programs, or activities of a public entity, or be subjected to discrimination by any such entity.” 42 U.S.C. § 12132. In the plaintiffs substitute pleading, “[t]he plaintiff alleges that he is being treated differently from other inmates as a result of his disability. Reasonable accommodations in the area of recreational activities have been granted to other inmates. The plaintiff is being treated differently than others similarly situated.” If properly pleaded, the conduct alleged by the plaintiff would be conduct that would violate the fourteenth amendment. Furthermore, if properly pleaded, the conduct alleged by the plaintiff also would be covered under the ADA because the plaintiff is alleging disparate treatment by reason of his disability. Because the alleged conduct could constitute both a constitutional violation and a violation of the ADA, the plaintiffs private cause of action against the state for money damages under Title II validly abrogates state sovereign immunity. See United States v. Georgia, supra, 546 U.S. 159; Mercer v. Strange, supra, 96 Conn. App. 133.

We therefore do not agree with the trial court’s holding that Georgia “did not disturb prior law in the Second Circuit that held that an element of any such claim was the requirement that the plaintiff plead and prove that any violation of Title II of the ADA was motivated by discriminatory animus or ill will due to his disability.” Although the court improperly granted the motion to strike with respect to the plaintiffs ADA claim for monetary damage on the ground that it did not allege discriminatory animus or ill will, we conclude that the error was harmless because the plaintiffs entire underlying claim, was subject to a properly granted motion to strike on other grounds as will be discussed subsequently in this opinion. See Carrubba v. Moskowitz, 81 Conn. App. 382, 400, 840 A.2d 557 (2004), aff'd, 274 Conn. 533, 877 A.2d 773 (2005).

II

On appeal, the plaintiff claims that the trial court erred in striking his claims seeking declaratory and injunctive relief for failing to plead sufficient facts under the ADA and the Rehabilitation Act. The state of Connecticut retains fact pleading for civil complaints. Practice Book § 10-1 provides in relevant part: “Each pleading shall contain a plain and concise statement of the material facts on which the pleader relies . . . .” “A motion to strike is properly granted if the complaint alleges mere conclusions of law that axe unsupported by the facts alleged.” Novametrix Medical Systems, Inc. v. BOC Group, Inc., 224 Conn. 210, 215, 618 A.2d 25 (1992).

It is well established that “[s]ection 504 of the Rehabilitation Act and Title II of the ADA are applicable to inmates in state prisons.” Divine Allah v. Goord, 405 F. Sup. 2d 265, 274 (S.D.N.Y. 2005). A prisoner’s claim under Title II of the ADA consists of three elements, which the prisoner must establish: “(1) he or she is a ‘qualified individual with a disability’; (2) he or she is being excluded from participation in, or being denied the benefits of some service, program, or activity by reason of his or her disability; and (3) the entity [that] provides the service, program, or activity is a public entity.” (Internal quotation marks omitted.) Id.

For a plaintiff to prevail on a claim under § 604 of the similar, but distinct, Rehabilitation Act, “the plaintiff must establish that (1) he is a ‘qualified individual’ with a disability, as that term is defined in the Rehabilitation Act, (2) he is ‘otherwise qualified’ to participate in the offered program or activity or to enjoy the services or benefits offered, (3) he is being denied the opportunity to participate in or benefit from the defendants’ services, programs or activities, or was otherwise discriminated against by the defendants by reason of his disability and (4) the defendants, or the entity they represent, receive federal financial assistance so as to be subject to the Rehabilitation Act.” Mercer v. Strange, supra, 96 Conn. App. 131 n.9.

Both the ADA and the Rehabilitation Act require the plaintiff to establish that he is a qualified individual with a disability. A “qualified individual with a disability” under the ADA is defined as “an individual with a disability who, with or without reasonable modifications to rules, policies, or practices, the removal of architectural, communication, or transportation barriers, or the provision of auxiliary aids and services, meets the essential eligibility requirements for the receipt of services or the participation in programs or activities provided by a public entity.” 42 U.S.C. § 12131 (2). A “disability” under the ADA is defined as “a physical or mental impairment that substantially limits one or more major life activities of such individual . . . .” 42 U.S.C. § 12102 (1) (A). “Major life activities” under the ADAinclude walking and standing. 42 U.S.C. § 12102 (2) (A). The Rehabilitation Act has incorporated the definition of an “individual with a disability” found in the ADA. 29 U.S.C. § 705 (20) (B); see 29 U.S.C. § 794. In the plaintiffs complaint, he alleges that he is a qualified individual with a disability because his medical disorders impair his major life activity of walking. The plaintiffs complaint therefore contains sufficient allegations to demonstrate that the plaintiff is a qualified individual with a disability under both the ADA and the Rehabilitation Act.

Under the ADA, the entity that provides the activity must be a public entity, while under the Rehabilitation Act the entity must receive federal financial assistance. Divine Allah v. Goord, supra, 406 F. Sup. 2d 274-75. A public entity is defined to include any state government, as well as any department of a state. 42 U.S.C. § 12131 (1) (A) and (B). Here, the entity in question is Osborn, a state prison, which is considered a public entity under the ADA. Divine Allah v. Goord, supra, 274. Furthermore, the plaintiff alleges in his complaint that “[t]he [department] is the recipient of federal financial funds. On information and belief, the [department] received [$450,000] in federal funds for the 2006 Prisoner Reentry Initiative.” The plaintiffs complaint therefore sufficiently alleges that the entity receives federal financial assistance in satisfaction of the Rehabilitation Act.

One element under the Rehabilitation Act that is not required under the ADA is that the plaintiff would be otherwise qualified to participate in the program, activity, services or benefits offered. Compare Mercer v. Strange, supra, 96 Conn. App. 131 n.9, with Divine Allah v. Goord, supra, 405 F. Sup. 2d 274-75. The United States Supreme Court has held that under the Rehabilitation Act “[a]n otherwise qualified person is one who is able to meet all of a program’s requirements in spite of his handicap.” Southeastern Community College v. Davis, 442 U.S. 397, 406, 99 S. Ct. 2361, 60 L. Ed. 2d 980 (1979). Although the plaintiff does not say explicitly that he is otherwise qualified for the activities at Osborn, “[w]hat is necessarily implied [in an allegation] need not be expressly alleged. ... It is fundamental that in determining the sufficiency of a complaint challenged by a defendant’s motion to strike, all well-pleaded facts and those facts necessarily implied from the allegations are taken as admitted. . . . Indeed, pleadings must be construed broadly and realistically, rather than narrowly and technically.” (Internal quotation marks omitted.) Bloom v. Miklovich, 111 Conn. App. 323, 328, 958 A.2d 1283 (2008).

In his complaint, the plaintiff alleges that his “disabilities prohibit his equal access to the multitude of recreational activities provided to non-disabled general population inmates on an almost daily basis. . . . [T]he plaintiff is restricted to board games, weightlifting, library and the band program twice a week.” The plaintiff also quoted the defendants’ denial of his request that stated in relevant part: “Due to your ability to participate in [the weight room, library and band program] it is clear that you have access to several recreational activities afforded to the inmate population at Osborn . . . .”

The plaintiff, therefore, alleges that but for his disability he would be able to participate in the other recreational activities. Furthermore, the plaintiff alleges to already have access to other recreational activities, such as weightlifting and band practice. When taken together, the facts necessarily implied from the plaintiffs allegations are sufficient to satisfy the Rehabilitation Act requirement that the plaintiff be otherwise qualified.

The final element that the plaintiff must sufficiently allege under both the ADA and the Rehabilitation Act is that the plaintiff is being excluded from participation in or denied the benefits of an activity by the defendants because of his disability. 29 U.S.C. § 794 (a); 42 U.S.C. § 12132. The plaintiff alleges that his “disabilities prohibit his equal access to the multitude of recreational activities provided to [the] non-disabled general population inmates on an almost daily basis” and that he “does not have access to ‘like’ activities, nor is his access to recreational activities equivalent to non-disabled inmates.” The accommodation that the plaintiff is requesting under both the ADA and the Rehabilitation Act is “access to practice a musical instrument on a daily basis, either by allowing access or allowing [the] plaintiff to possess a portable keyboard with headphones for personal use as a specialized recreational activity.”

“[T]he central puipose of the ADA and § 504 of the Rehabilitation Act is to assure that disabled individuals receive ‘evenhanded treatment’ in relation to the able-bodied.” Doe v. Pfrommer, 148 F.3d 73, 83 (2d Cir. 1998). In order to deliver such even treatment, “[a] public entity shall make reasonable modifications in policies, practices, or procedures when the modifications are necessary to avoid discrimination on the basis of disability, unless the public entity can demonstrate that making the modifications would fundamentally alter the nature of the service, program, or activity.” 28 C.F.R. § 35.130 (b) (7). With respect to these accommodations, a distinction is made “between (i) making reasonable accommodations to assure access to an existing program and (ii) providing additional or different substantive benefits. . . . [T]he ADA requires only that a particular service provided to some not be denied to disabled people . . . .” (Citation omitted; internal quotation marks omitted.) Wright v. Giuliani, 230 F.3d 543, 548 (2d Cir. 2000). “The thrust of . . . cases [addressing this issue] is that the disabilities statutes do not require that substantively different services be provided to the disabled, no matter how great their need for the services may be. They require only that covered entities make ‘reasonable accommodations’ to enable ‘meaningful access’ to such services as may be provided, whether such services are adequate or not.” Id.

The trial court in the present case ruled that “[a]side from an allegation that he has no access to contact sports, an activity in which he does not seek to participate, the plaintiff does not allege that he is prevented from participating in any other available activity offered by the defendants.” Furthermore, the court found that “the [plaintiffs] complaint fails to properly allege that the plaintiff was denied an opportunity to participate in or benefit from the defendants’ services, programs or activities as a result of his disability.” We agree.

The plaintiffs ADA and Rehabilitation Act claims contain two stumbling blocks. Firstly, the plaintiffs alleged request is not a reasonable accommodation for access to the programs he cannot participate in because of his disability. The plaintiff is not requesting, for example, a special apparatus so as to participate in a contact sport activity. Instead, the plaintiff is requesting a completely different benefit, namely, the possession of a musical instrument in his cell. The plaintiffs requested accommodation is not to help him achieve access to an activity in which disabled inmates cannot participate; rather, it is a substantively different service. The plaintiffs access to the activities available to the nondisabled general population would not be facilitated by his possession of the keyboard. The defendants’ denial of the plaintiffs request is not a denial of a reasonable accommodation to enable meaningful access to the activities in which the plaintiff cannot engage.

The plaintiffs second stumbling block is his failure to allege that he is denied access to these activities by the defendants. “[N]o qualified individual with a disability shall, by reason of such disability, be excluded from participation in or be denied the benefits of the services, programs, or activities of a public entity, orbe subjected to discrimination by any such entity.” (Emphasis added.) 42 U.S.C. § 12132. The plaintiff alleges in his complaint, however, that the “[plaintiffs disabilities prohibit his equal access to the multitude of recreational activities provided to [the] non-disabled general population inmates . . . .” The plaintiff is not alleging that his access to these activities was blocked by the defendants, but, rather, that his access was prevented by his disabilities. The plaintiffs complaint, therefore, lacks sufficient factual allegations to satisfy all of the elements both under the ADA and the Rehabilitation Act. Therefore, the court did not err in striking the plaintiffs claims for declaratory and injunctive relief for failing to plead sufficient facts under those statutes.

m

On appeal, the plaintiff claims that the court erred in striking his constitutional equal protection claims for failing to plead sufficient facts. The plaintiffs complaint alleges violations of the equal protection clause of the fourteenth amendment to the United States constitution and article first, § 20, of the Connecticut constitution, as amended by articles five and twenty-one of the amendments. The equal protection clause of the Connecticut constitution, article first, § 20, as amended by articles five and twenty-one of the amendments, provides: “No person shall be denied the equal protection of the law nor be subjected to segregation or discrimination in the exercise or enjoyment of his or her civil or political rights because of religion, race, color, ancestry, national origin, sex or physical or mental disability.” “[F]ederal law, whether based upon statute or constitution, establishes a minimum national standard for the exercise of individual rights and does not inhibit state governments from affording higher levels of protection for such rights.” (Internal quotation marks omitted.) Bozrah v. Chmurynski, 303 Conn. 676, 683 n.4, 36 A.3d 210 (2012). Although the plaintiff in the present case is representing himself, he is not a neophyte in litigating against the state. See Mercer v. Blanchette, 133 Conn. App. 84, 33 A.3d 889 (2012); Mercer v. Cosley, 110 Conn. App. 283, 955 A.2d 550 (2008); Mercer v. Strange, supra, 96 Conn. App. 123; Mercer v. Rodriquez, 83 Conn. App. 251, 849 A.2d 886 (2004); Mercer v. Commissioner of Correction, 49 Conn. App. 819, 717 A.2d 763, cert. denied, 247 Conn. 920, 722 A.2d 810 (1998). Despite his extensive litigation experience, nowhere in his appellate brief does he claim that the Connecticut constitution affords greater rights under its equal protection clause than does our United States constitution, nor does he separately analyze his state constitutional claim under the six factors our Supreme Court has mandated as necessary for appellate review of state constitutional claims under State v. Geisler, 222 Conn. 672, 684-85, 610 A.2d 1225 (1992). As in Bozrah, we, therefore, do not decide nor review the plaintiffs separate state constitutional claim and limit our review to the federal constitutional claim that he has asserted and briefed.

“The [e]qual [protection [c]lause of the [f]ourteenth [a]mendment to the United States [constitution is essentially a direction that all persons similarly situated should be treated alike. ... A violation of equal protection by selective [treatment] arises if: (1) the person, compared with others similarly situated, was selectively treated; and (2) . . . such selective treatment was based on impermissible considerations such as race, religion, intent to inhibit or punish the exercise of constitutional rights, or malicious or bad faith intent to injure a person. . . .

“Although the prototypical equal protection claim involves discrimination against people based on their membership in a vulnerable class . . . the equal protection guarantee also extends to individuals who allege no specific class membership but are nonetheless subjected to invidious discrimination at the hands of government officials. . . . The [United States] Supreme Court [has] affirmed the validity of such class of one claims [when] the plaintiff alleges that she has been intentionally treated differently from others similarly situated and that there is no rational basis for the difference in treatment.” (Citation omitted; internal quotation marks omitted.) Brooks v. Sweeney, supra, 299 Conn. 218-19; see Willowbrook v. Olech, 528 U.S. 562, 564, 120 S. Ct. 1073, 145 L. Ed. 2d 1060 (2000) (affirming validity of such class of one claims). In addition to showing such disparate treatment, the plaintiff “also must show that the disparity in treatment cannot survive the appropriate level of scrutiny which, in the prison setting, means that he must demonstrate that his treatment was not ‘reasonably related to [any] legitimate penological interests.’ ” Phillips v. Girdich, 408 F.3d 124, 129 (2d Cir. 2005).

“[T]he analytical predicate [of an equal protection claim] is a determination of who are the persons . . . similarly situated. . . . [T]he requirement imposed [on] [plaintiffs claiming an equal protection violation [is that they] identify and relate specific instances [in which] persons situated similarly in all relevant aspects were treated differently . . . .” (Citation omitted; emphasis in original; internal quotation marks omitted.) Brooks v. Sweeney, supra, 299 Conn. 219.

In the plaintiffs substitute complaint, he alleges “that he is being treated differently from other inmates as a result of his disability. Reasonable accommodations in the area of recreational activities have been granted to other inmates. The plaintiff is being treated differently than others similarly situated.” The trial court concluded that the plaintiffs equal protection claim was legally insufficient because the plaintiff failed to allege any facts to support his claim. Specifically, there is no allegation that any other inmate was provided the type of accommodation that the plaintiff requested and that the failure subsequently to provide the plaintiff with such requested accommodation was because of his disability status. We agree.

“A motion to strike is properly granted if the complaint alleges mere conclusions of law that are unsupported by the facts alleged.” Novametrix Medical Systems, Inc. v. BOC Group, Inc., supra, 224 Conn. 216. Under either the prototypical equal protection or class of one analysis, the plaintiffs substitute complaint must identify and relate specific factual instances in which persons similarly situated were treated differently. In his complaint, the plaintiff presents only the conclusory allegation that he is being treated differently because of his disability. The plaintiff claims that other inmates have been granted reasonable accommodations, but again fails to identify any specific individual or instance. Such conclusory statements without factual support are not enough to allow the plaintiffs equal protection claim to survive the defendants’ motion to strike. The trial court did not err in striking the plaintiffs equal protection claim on the basis of his failure to plead sufficient facts, or in rendering judgment for the defendants on the stricken complaint.

The judgment is affirmed.

In this opinion the other judges concurred.

       See State v. Mercer, 208 Conn. 52, 544 A.2d 611 (1988).

       The following individuals were named as defendants: (1) Walter Champion, Americans with Disabilities Act (ADA) coordinator of Osborn Correctional Institution (Osborn); (2) Wanda White-Lewis, ADA director and director of field services for the department; (3) David Strange, warden of Osborn; (4) Patricia Wollenhaupt, nursing supervisor and medical ADA grievance coordinator at Osborn; and (5) Brian Hicock, health service administrator and ADA grievance coordinator at Osborn.

       Title II of the ADA, codified at 42 U.S.C. § 12132, provides in relevant part: “[N]o qualified individual with a disability shall, by reason of such disability, be excluded from participation in or be denied the benefits of the services, programs, or activities of a public entity, or be subjected to discrimination by any such entity.”

       Section 504 of the Rehabilitation Act, codified at 29 U.S.C. § 794, provides in relevant part: “(a) No otherwise qualified individual with a disability in the United States . . . shall, solely by reason of her or his disability, be excluded from the participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance . . . .”

       The equal protection clause of the fourteenth amendment to the United States constitution provides in relevant part: “No State shall . . . deny to any person within its jurisdiction the equal protection of the laws.”

       Article first, § 20, of the constitution of Connecticut, as amended by articles five and twenty-one of the amendments, provides in relevant part: “No person shall be denied the equal protection of the law . . . .”

       Practice Book § 10-44 states in relevant part: “Within fifteen days after the granting of any motion to strike, the party whose pleading has been stricken may file a new pleading . . . .”

       In the plaintiffs “Statement of Issues” he set forth the following two issues: “(1) Whether the trial court erred in striking [the] plaintiffs claims for failing to allege facts that demonstrate discriminatory animus” and “(2) Whether the trial court erred in striking [the] plaintiffs claims for failing to sufficiently plead facts to establish a cognizable equal protection claim.” The plaintiffs argument section of his brief set forth: ‘Whether the trial court erred in striking [the] plaintiffs claims for monetary damages because the plaintiff failed to plead facts that demonstrate discriminatory animus or ill will,” “Whether [the] plaintiffs allegations need to allege discriminatory animus,” “Whether [the] trial court erred in striking [the] plaintiffs claims for declaratory and injunctive relief,” “Whether discriminatory animus is required under the ADA and [Rehabilitation Act] for injunctive and declaratory relief,” “Whether the allegations have sufficiently plead[ed] facts to establish a cognizable equal protection claim” and “Whether [the] plaintiff need identify a ‘comparison class’ of similarly situated individuals in discrimination claims under reasonable accommodation theory.” We have reframed these issues so that they better represent the plaintiffs claims on appeal.

       Title 42 of the United States Code, § 12202, has been accepted by the United States Supreme Court “as an unequivocal expression of Congress’s intent to abrogate state sovereign immunity. See Board of Trustees of [University of Alabama] v. Garrett, 531 U.S. 356, 363-64 [121 S. Ct. 955, 148 L. Ed. 2d 866] (2001).” United States v. Georgia, 546 U.S. 151, 154, 126 S. Ct. 877, 163 L. Ed. 2d 650 (2006).

       Section 5 of the fourteenth amendment to the United States constitution states: “The Congress shallhavepowerto enforce, by appropriate legislation, the provisions of this article.”

       We should note that the plaintiff in Mercer v. Strange is the same plaintiff in this instant action. In Mercer, the plaintiff similarly sought relief under the ADA, the Rehabilitation Act, the equal protection clause of the fourteenth amendment to the United States constitution and article first, § 20, of the constitution of Connecticut, as amended by articles five and twenty-one of the amendments, for the defendants’ denial of his request to be placed in a single cell in the back of one correctional institution housing facility. Mercer v. Strange, supra, 96 Conn. App. 125-26.

       We will address the sufficiency of the plaintiffs pleading regarding the alleged fourteenth amendment violation in part in of this opinion.

       Because of the significant overlap between the ADA and the Rehabilitation Act, we will address simultaneously the plaintiffs complaint requesting iivjunctive and declaratory relief under both the ADA and the Rehabilitation Act and make distinctions as necessary.

       Sovereign immunity with respect to the plaintiffs claims for declaratory and injunctive relief under the Rehabilitation Act is not implicated because the state of Connecticut knowingly and intentionally waived its sovereign immunity when it accepted these federal funds. See Mercer v. Strange, supra, 96 Conn. App. 131 n.8.

       The Rehabilitation Act has the requirement that the exclusion be “solely” by reason of the disability. 29 U.S.C. § 794 (a).