author: LAVINE, J.

text:
    STATE OF CONNECTICUT v. LEMUEL A. DELVALLE
    (AC 27719)
    Lavine, Robinson and Stoughton, Js.

      Argued February 20
    officially released July 15, 2008

      Kevin M. Smith, special public defender, with whom were Elizabeth M. Inkster and Mary Miller Haselkamp, senior assistant public defenders, for the appellant (defendant).

      Michele C. Lukban, senior assistant state’s attorney, with whom were Michael Dearington, state’s attorney, and Maxine V. Wilensky, senior assistant state’s attorney, for the appellee (state).
   Opinion

LAVINE, J.

The issue in this appeal is whether the trial court properly denied the defendant’s motion to suppress narcotics seized following a police officer’s warrantless patdown search for weapons. The defendant, Lemuel A. DelValle, appeals from the court’s judgment of conviction, rendered following a conditional plea of nolo contendere, of possession of narcotics with intent to sell in violation of General Statutes § 2 la-277 (a) and improper parking in violation of General Statutes § 14-251. On appeal, the defendant claims that the court improperly denied his motion to suppress because, pursuant to article first, §§ 7 and 9, of the constitution of Connecticut and the fourth amendment to the United States constitution, the officer (1) lacked reasonable suspicion to execute a patdown search, (2) exceeded the permissible scope of a patdown search and (3) lacked probable cause to search and seize the defendant’s coat. We affirm the judgment of the trial court.

Prior to trial, the defendant filed a motion to suppress the seized narcotics, which were obtained during a warrantless patdown search. On August 31, 2005, the court held a hearing on the motion to suppress. In denying the defendant’s motion to suppress, the court set forth the following findings in a written decision. “On April 28, 2005, at approximately 9:56 p.m., Trooper Marc Wiener of the Connecticut state police was responsible for patrolling the Interstate 95 corridor between Guilford and East Lyme, including the Interstate 95 rest areas. When Wiener entered the Madison rest area, he noted the presence of a Ford Expedition sport-utility vehicle parked horizontally along a painted yellow curb in a lighted area adjacent to the McDonald’s restaurant drive-through. The car was not parked between the white lines [on the pavement]. The vehicle had tinted windows that were rolled up, the lights were off and it appeared to be unoccupied. Wiener pulled past the vehicle and began to ran a check on its license plates. Wiener observed, prior to completing the license plate check, a Hispanic male exit the McDonald’s restaurant, stop and look at him, freeze for a moment and then quickly proceed to the vehicle, enter it and begin to pull away. Wiener pulled the vehicle over to complete the license plate check and to issue a ticket for illegal parking. Wiener then activated his cruiser’s mobile video recorder and his body microphone, allowing him to record all visual and audio events transpiring in front of his cruiser. . . .

“As Wiener approached the vehicle, he observed the defendant in the driver’s seat and a female in the passenger seat. Prior to Wiener’s asking the defendant for identification, the defendant handed Wiener one valid and one expired driver’s license. Wiener testified that he observed the defendant’s hands shaking, his forehead beading with sweat and his chest pounding. Wiener then asked the defendant to exit the vehicle. The defendant was in an elevated position, and Wiener could not see his hands and was concerned [about whether] the defendant had a weapon. The defendant complied, leaving the driver’s side door open. The defendant followed Wiener to the rear of the defendant’s vehicle, and Wiener proceeded to ask the defendant what he had been doing in the area and where he had come from. Wiener testified that the defendant replied nervously, indicating that he was driving home from a visit with relatives in the Bronx, New York. Wiener indicated that the defendant was evasive and failed to answer more specific questions regarding his day’s activities.

“The defendant was wearing jean shorts and a thick down coat even though it was April 28. Wiener testified that he observed feathers falling out of a hole in the defendant’s coat and that he became concerned that the defendant could conceal a weapon there. At this point, Wiener, out of concern for his safety, conducted a patdown search of the defendant and discovered a knife in the defendant’s pants pocket. As the patdown continued, Wiener grabbed the coat in the area near the hole in the defendant’s coat, and he immediately felt what he believed to be packets of street level narcotics. Wiener, from specialized narcotics training and field experience, knew the feel of packaged narcotics. Upon [the] discovery, Wiener instructed the defendant to remove his jacket. Wiener testified that the defendant dropped his coat halfway down his shoulders and started to walk by him. Wiener then took hold of and completely removed the coat on his own.

“While Wiener proceeded to remove the drugs from the hole in the coat, the defendant started walking toward the open door of the vehicle. Wiener ordered the defendant back to the rear of the vehicle. Subsequently, the defendant again began walking in the direction of the open door. Wiener ordered the defendant to the ground and began to detain him. The defendant, however, broke free, grabbed his coat and ran, pulling plastic bags from the hole in the coat and throwing them to the ground. Wiener apprehended the defendant and ascertained that the plastic bags contained heroin. Wiener then searched the hole in the jacket and discovered 200 additional bags of heroin. The total amount of heroin seized was 597 bags.” (Citation omitted.)

The state initially charged the defendant with sale of narcotics in violation of General Statutes § 2 la-278 (b) and interfering with an officer in violation of General Statutes § 53a-167a (a). The defendant moved to suppress the seized narcotics on the ground that Wiener lacked the reasonable and articulable suspicion of criminal activity that is required to conduct a valid patdown search. Following an evidentiary hearing, the court denied the defendant’s motion to suppress. On the basis of the facts set forth previously, the court concluded that Wiener had a reasonable and articulable suspicion for frisking the defendant and that Wiener, in light of his training and experience, had probable cause to search the defendant’s coat and to seize the narcotics contained therein. The defendant subsequently entered a conditional plea of nolo contendere to possession of narcotics with intent to sell in violation of § 21a-277 (a) and improper parking in violation of § 14-251. The court imposed a fine of $35 for improper parking and sentenced the defendant to six years incarceration for possession of narcotics with intent to sell. This appeal followed.

We first set forth the applicable standard of review. “Our standard of review of a trial court’s findings and conclusions in connection with a motion to suppress is well defined. A finding of fact will not be disturbed unless it is clearly erroneous in view of the evidence and pleadings in the whole record . . . .” (Internal quotation marks omitted.) State v. Santos, 267 Conn. 495, 503, 838 A.2d 981 (2004). “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.) Doody v. Doody, 99 Conn. App. 512, 517, 914 A.2d 1058 (2007). “[W]here the legal conclusions of the court are challenged, we must determine whether they are legally and logically correct and whether they find support in the facts set out in the memorandum of decision . . . .” (Internal quotation marks omitted.) State v. Santos, supra, 503.

“Article first, §§ 7 and 9, of our state constitution permit a police officer in appropriate circumstances and in an appropriate manner to detain an individual for investigative purposes even though there is no probable cause to make an arrest .... In determining whether the detention was justified in a given case, a court must consider if [b]ased upon the whole picture the detaining officers [had] a particularized and objective basis for suspecting the particular person stopped of criminal activity. ... A court reviewing the legality of a stop must therefore examine the specific information available to the police officer at the time of the initial intrusion and any rational inferences to be derived therefrom. . . . These standards, which mirror those set forth by the United States Supreme Court in Terry v. Ohio, [392 U.S. 1, 88 S. Ct. 1868, 20 L. Ed. 2d 889 (1968)] with regard to fourth amendment analysis, govern the legality of investigatory detentions under article first, §§ 7 and 9, of our state constitution.” (Internal quotation marks omitted.) State v. Dalzell, 96 Conn. App. 515, 523-24, 901 A.2d 706 (2006), rev’d in part on other grounds, 282 Conn. 709, 924 A.2d 809 (2007).

“When considering the validity of a Terry stop, our threshold inquiry is twofold. . . . First, we must determine at what point, if any . . . the encounter between [the police officer] and the defendant constitute [d] an investigatory stop or seizure. Next, [i]f we conclude that there was such a seizure, we must then determine whether [the police officer] possessed a reasonable and articulable suspicion at the time the seizure occurred.” (Citations omitted; internal quotation marks omitted.) State v. Santos, supra, 267 Conn. 503. “An appeal challenging the factual basis of a court’s decision that a reasonable and articulable suspicion exists requires that we determine, in light of the record taken as a whole, (1) whether the underlying factual findings of the trial court are clearly erroneous; and (2) whether the [court’s] conclusion that those facts give rise to such a suspicion is legally correct.” (Internal quotation marks omitted.) State v. Hernandez, 87 Conn. App. 464, 470-71, 867 A. 2d 30, cert. denied, 273 Conn. 920, 871 A.2d 1030 (2005). “In ascertaining whether reasonable suspicion existed for [a] patdown search, the totality of the circumstances . . . must be taken into account.” (Internal quotation marks omitted.) State v. Farr, 98 Conn. App. 93, 100, 908 A.2d 556 (2006).

I

The defendant first claims that the court improperly denied his motion to suppress because Wiener did not have a reasonable suspicion to search him. Specifically, the defendant asserts that certain of the court’s factual findings are clearly erroneous or, in the alternative, that the court’s findings do not suffice as a basis for reasonable suspicion. We do not agree.

A

We first address whether the court’s factual findings are clearly erroneous. The court found: “(1) Wiener observed the defendant’s vehicle parked illegally; (2) Wiener observed the defendant look at him, hurry to his vehicle and then attempt to pull away; (3) once stopped, the defendant gave Wiener both a valid driver’s license and an expired one; (4) Wiener observed that the defendant was sweating and nervous; (5) he also observed that the defendant was evasive when asked simple questions; (6) Wiener observed that the defendant wore a thick down coat on April 28; and (7) the coat had a hole in its [seam] that could be used to conceal a weapon.”

The defendant claims that the court’s finding that he was evasive with Wiener is clearly erroneous. He maintains that he was not evasive but, rather, that his failure to respond to some of Wiener’s questions was entirely attributable to a language barrier, given that he is primarily a Spanish speaker. A court must proceed with care when faced with a claim that a defendant’s conduct is based on a lack of understanding, not a refusal to cooperate. We are satisfied, however, that the record contains sufficient evidence on which the court reasonably could have relied in determining that the defendant behaved evasively during the encounter with Wiener. The court accepted Wiener’s testimony that the defendant responded to his requests and conversed with him in English but became more evasive as their encounter progressed. “The determination of a witness’ credibility is the special function of the trial court. This court cannot sift and weigh evidence.” (Internal quotation marks omitted.) State v. Trine, 236 Conn. 216, 227, 673 A.2d 1098 (1996). Additionally, the videotape confirms that the defendant was capable of conversing in English. On the tape, he can be seen and heard engaging in a brief conversation with Wiener and responding to Wiener’s requests.

The defendant also regards as clearly erroneous the court’s finding that the hole in his coat might have contained a weapon. According to the defendant, it was not objectively reasonable for Wiener, without some additional inciiminating indicator such as a visible bulge or gun snout, to suspect that the coat might conceal a weapon. Our review of the record leads us to conclude that contrary to the defendant’s assertions, the record amply supports the court’s finding that the hole in the defendant’s coat might have been used to conceal a weapon. First, the court heard Wiener’s testimony that the hole was large enough to accommodate a hand and a weapon. Further, the court examined the coat, which the state introduced into evidence. The court thus properly concluded that Wiener acted on his objective belief that the hole at issue might be used to conceal a weapon. Accordingly, the defendant’s claim that certain of the court’s factual findings are clearly erroneous must fail.

B

We next examine the court’s conclusion that Wiener possessed a reasonable and articulable suspicion to conduct a patdown search of the defendant. The court stated: “On the basis of the totality of the circumstances presented to Wiener, and applying an objective standard, Wiener had a reasonable and articulable suspicion for the investigatory detention. Wiener did not act upon a hunch, speculation or pretext when he conducted the investigatory detention of the defendant. Wiener acted upon his reasonable suspicion, sufficiently articulated in his testimony and objectively supported by the circumstances surrounding his encounter with the defendant.”

Taking into account the totality of the circumstances, we conclude that the court properly determined that the facts of this case gave rise to Wiener’s reasonable suspicion. First, it was proper for the court to consider the totality of the defendant’s reaction to Wiener, particularly that “the defendant looked at [Wiener], hurried to his vehicle and then attempted] to pull away” and that “the defendant gave Wiener ... an expired . . . license.” “Both Connecticut and federal courts have recognized that a suspect’s reaction to the police may be one factor considered in the totality analysis.” State v. Nash, 278 Conn. 620, 636, 899 A.2d 1 (2006). Additionally, the court took into account the fact that Wiener observed the defendant to be evasive when asked simple questions, for “[n]ervous, evasive behavior is apertinent factor in determining reasonable suspicion.” (Internal quotation marks omitted.) State v. Tuck, 90 Conn. App. 872, 879-80, 879 A.2d 553 (2005).

It was appropriate for the court to consider that the hole in the defendant’s coat, as well as the fact that down feathers were flowing from it, heightened Wiener’s suspicion that the defendant might be armed. As the court stated, “Wiener indicated that he observed the defendant wearing a thick down coat in late spring and that feathers were falling out of a hole in the coat’s lining, which Wiener was concerned could be used to conceal a weapon. . . . Viewed by this objective standard, a reasonably prudent officer would have been warranted in the belief that either his safety, or the safety of others, was in jeopardy. Trooper Wiener’s patdown of the defendant was justified.” (Citations omitted.)

In light of the foregoing, we agree with the court that Wiener’s patdown search of the defendant was justified. “If, during the course of a lawful investigatory detention, the officer reasonably believes that the detained individual might be armed and dangerous, the officer may undertake apatdown search to discover weapons.” (Internal quotation marks omitted.) State v. Clark, 255 Conn. 268, 281, 764 A.2d 1251 (2001). Although the defendant insists that Wiener’s search cannot be justified under Terry because the facts of Terry are distinguishable from the facts of this case, we find these distinctions inapposite. First, the defendant asserts that because Wiener had less experience than the officer in Terry, Wiener lacked the adequate experience to form a reasonable suspicion as to the defendant’s conduct. We do not agree. On the night he encountered the defendant, Wiener had served as a state trooper for seven and one-half years and had received specialized training in narcotics interdiction. He testified at the suppression hearing that he had made “probably . . . hundreds” of arrests involving patdowns.

The defendant also alleges that there was no indication either that he was connected to violent criminal activity or that violent activity was afoot in the rest stop. This allegation fails to serve the defendant. Although an officer’s impressions about a suspect’s connection to violent crime or about a suspect’s location in a high crime area, both of which are lacking here, may be considered in the totality of circumstances that support a finding of reasonable suspicion, neither factor is required. See State v. Donahue, 251 Conn. 636, 646, 742 A.2d 775 (1999), cert. denied, 531 U.S. 924, 121 S. Ct. 299, 148 L. Ed. 2d 240 (2000). In this case, the court properly determined that Wiener had formed an objectively reasonable and articulable suspicion before conducting his patdown search of the defendant.

II

The defendant’s second claim is that the court improperly denied his motion to suppress because Wiener’s search of him exceeded the permissible scope of a Terry patdown search. Specifically, the defendant insists that Wiener’s grabbing, rather than patting, his coat, constituted an arbitrary search for criminal evidence. We are not persuaded.

“A patdown or frisk occurs when the officer limits the search to an open, flat-handed patdown of the exterior of a suspect’s clothing for weapons and does not manipulate the object that he discovers or otherwise extend the scope of the search.” State v. Nash, supra, 278 Conn. 625 n.6. “When conducting a patdown search of a suspect, the officer is limited to an investigatory search for weapons in order to ensure his or her own safety and the safety of others nearby.” State v. Clark, supra, 255 Conn. 282. “The officer cannot conduct a general exploratory search for whatever evidence of criminal activity [he or she] might find. . . . Logically, therefore, a patdown search for weapons that is justified at its inception becomes constitutionally infirm if the search . . . becomes more intrusive than necessary to protect the safety of the investigating officer.” (Citations omitted; internal quotation marks omitted.) Id. “The results of the initial stop may arouse further suspicion or may dispel the questions in the officer’s mind. If the latter is the case, the stop may go no further and the detained individual must be free to go. If, on the contrary, the officer’s suspicions are confirmed or are further aroused, the stop may be prolonged and the scope enlarged as required by the circumstances.” (Internal quotation marks omitted.) State v. Januszewski, 182 Conn. 142, 149, 438 A.2d 679 (1980), cert. denied, 453 U.S. 922, 101 S. Ct. 3159, 69 L. Ed. 2d 1005 (1981).

The defendant maintains that Wiener exceeded the permissible scope of a Terry search by grabbing his coat. Wiener testified that he properly initiated his pat-down search with an open handed motion and that he grabbed the defendant’s coat only to the extent that it was necessary to search it for weapons. In patting down the bulky material of the coat, Wiener grabbed the material to the extent necessary to detect weapons, but he did not manipulate the objects he felt. The court found this reasonable under the circumstances. We agree with the court’s conclusion that Wiener conformed to the legal requirement of doing only what was needed to neutralize the threat of physical harm.

“[T]he law recognizes the important need to allow authorities to graduate their responses to the demands of any particular situation.” (Internal quotation marks omitted.) State v. Nash, supra, 278 Conn. 642. “[W]e do not require police officers who are properly attempting to neutralize the threat of physical harm to do so at increased peril.” (Internal quotation marks omitted.) Id., 644. “[W]hile we respect the constitutional rights against unreasonable search and seizure of the citizenry ... it would be unreasonable to require that police officers take unnecessary risks in the performance of their duties.” (Internal quotation marks omitted.) State v. Aviles, 277 Conn. 281, 298, 891 A.2d 935, cert. denied, 549 U.S. 840, 127 S. Ct. 108, 166 L. Ed. 2d 69 (2006). The facts of this case, as expressly found by the court, lead to the conclusion that Wiener was faced with a situation he reasonably feared might pose imminent danger to him. His responses throughout the encounter were incremental in nature, one concern leading to the next, and calibrated to what was occurring. With reasonable suspicion that the defendant might be armed, Wiener properly searched him for weapons. The defendant’s claim that Wiener’s search of him exceeded the permissible scope of a patdown search thus fails.

III

The defendant next argues that the court improperly denied his motion to suppress because Wiener lacked probable cause to search and seize his coat. More particularly, the defendant claims that Wiener lacked authority to pull the coat off him, reach into its lining and confiscate the heroin. We do not agree.

“While probable cause requires more than mere suspicion . . . the line between mere suspicion and probable cause necessarily must be drawn by an act of judgment formed in light of the particular situation and with account taken of all the circumstances.” (Citations omitted; internal quotation marks omitted.) State v. Trine, supra, 236 Conn. 237. “The existence of probable cause does not turn on whether the defendant could have been convicted on the same available evidence. ... In dealing with probable cause ... as the very name implies, we deal with probabilities. These are not technical; they are factual and practical considerations of everyday life on which reasonable and prudent men, not legal technicians, act. . . .

“On appeal, we analyze a trial court’s determination of the existence of probable cause, in the context of a warrantless search or seizure, in the same manner that we analyze a trial court’s determination of the existence of the reasonable belief necessary to conduct a patdown search. [W]here the legal conclusions of the court are challenged, we must determine whether they are legally and logically correct and whether they find support in the facts set out in the [court’s] decision; where the factual basis of the court’s decision is challenged we must determine whether the facts set out in the . . . decision are supported by the evidence or whether, in light of the evidence and the pleadings in the whole record, those facts are clearly erroneous. . . . Because a trial court’s determination of the existence of probable cause implicates a constitutional claim, we must review the record carefully to ensure that its determination was supported by substantial evidence.” (Citations omitted; internal quotation marks omitted.) Id., 237-38.

In Minnesota v. Dickerson, 508 U.S. 366, 113 S. Ct. 2130, 124 L. Ed. 2d 334 (1993), the United States Supreme Court established the plain feel exception to the warrant requirement. Under Dickerson, an officer acting without a warrant may seize contraband that the officer has detected through the sense of touch during a lawful patdown search. Id., 375. In State v. Trine, supra, 236 Conn. 234, our Supreme Court recognized the applicability of the plain feel exception to the warrant requirement of article first, § 7, of our state constitution, thereby establishing that an officer may seize narcotics that he feels during a lawful patdown search. “Just as a trained and experienced police officer may use the sense of touch during a lawful patdown search to detect one of the myriad of weapons that an individual might conceal on his or her person ... so the officer may use that same sense of touch to discern the presence of nonthreatening contraband that possesses distinctive tactile characteristics.” (Internal quotation marks omitted.) Id., 232-33. An officer may seize contraband during a patdown search for weapons if the illegal nature of the substance is readily apparent. See State v. Davis, 85 Conn. App. 755, 762, 859 A.2d 50 (2004).

The court in this case concluded that “once Wiener lawfully discovered what he immediately recognized to be contraband under the ‘plain feel’ doctrine, he had probable cause to expand the scope of his search and fully remove the defendant’s jacket.” The court based this determination on Wiener’s testimony that upon patting down the defendant, he immediately recognized the plain feel of packaged narcotics. The perceptions of an experienced officer “might have more significance to him in determining whether the law is being violated at a given time and place than they would have to a layman . . . .” (Internal quotation marks omitted.) State v. Trine, supra, 236 Conn. 232.

Our Supreme Court has stated that “a police officer’s tactile perceptions, formed during a lawful patdown search, in appropriate circumstances may provide the officer with probable cause to believe that an object felt during the search is nonthreatening contraband.” (Internal quotation marks omitted.) State v. Clark, supra, 255 Conn. 289. In this case, once Wiener determined that the defendant was carrying narcotics, he was authorized under the plain feel doctrine to seize those narcotics. Taking account of all of the circumstances particular to this case, we agree with the court that Wiener, acting pursuant to probable cause, validly searched the defendant’s coat and seized the heroin inside it. Accordingly, we will not disturb the court’s conclusion that Wiener acted pursuant to probable cause when he searched and seized the defendant’s coat.

The judgment is affirmed.

In this opinion the other judges concurred.

       The constitution of Connecticut, article first, § 7, provides: “The people shall be secure in their persons, houses, papers and possessions from unreasonable searches or seizures; and no warrant to search any place, or to seize any person or things, shall issue without describing them as nearly as may be, nor without probable cause supported by oath or affirmation.”
      The constitution of Connecticut, article first, § 9, provides: “No person shall be arrested, detained or punished, except in cases clearly warranted by law.”

       The fourth amendment to the United States constitution provides: “The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.”

       The videotape, which was entered into evidence at the defendant’s suppression hearing before the trial court, has been reviewed by this court.

       Under Terry v. Ohio, supra, 392 U.S. 22, an officer may forcibly stop a suspect and engage in a “stop and frisk” investigation if the officer has a reasonable and articulable suspicion that the suspect has committed or is about to commit a crime. See State v. Santos, supra, 267 Conn. 501 n.17.

       In this case, the state does not dispute the court’s conclusion that the defendant was seized.

       The defendant concedes that Wiener had the authority to ask the defendant to get out of his vehicle. “A police officer has the right to stop a motor vehicle operating on a Connecticut highway even if the reason for the stop is only an infraction under our traffic laws. Upon doing so, he prudently may prefer to ask that an occupant exit the vehicle . . . (Internal quotation marks omitted.) State v. Dukes, 209 Conn. 98, 122, 547 A.2d 10 (1988).

       The defendant also claims that it was clearly erroneous for the court to find that he attempted to drive away from Wiener before Wiener stopped him. Contrary to the defendant’s assertion, the court did not find that the defendant drove away from Wiener but found, rather, that “Wiener observed the defendant look at him, hurry to his vehicle and then attempt to pull away . . .


source: Caselaw Access Project

author: FOTI, J.

license: Public Domain

text:
    SHAWN NEWSOME v. COMMISSIONER OF CORRECTION
    (AC 28943)
    Lavine, Robinson and Foti, Js.

      Argued April 15
    officially released July 15, 2008

      Raymond J. Rigat, for the appellant (petitioner).

      Frederick W. Fawcett, supervisoiy assistant state’s attorney, with whom, on the brief, was Jonathan C. Benedict, state’s attorney, for the appellee (respondent).
   Opinion

FOTI, J.

The petitioner, Shawn Newsome, appeals following the denial of his petition for certification to appeal from the judgment of the habeas court denying his second petition for a writ of habeas corpus. On appeal, the petitioner claims that the court abused its discretion in denying certification to appeal and that it improperly rejected his claims that the trial court denied him due process of law by improperly admitting into evidence (1) the prior inconsistent statements of a witness as substantive evidence and (2) the prior inconsistent statements as substantive evidence when they constituted the sole evidence of the petitioner’s guilt. We dismiss the appeal.

On May 26, 1993, the petitioner was convicted, after a jury trial, of murder in violation of General Statutes § 53a-54a and sentenced to forty-five years in prison. Our Supreme Court affirmed his conviction on direct appeal. See State v. Newsome, 238 Conn. 588, 682 A. 2d 972 (1996). On April 30, 1997, the petitioner filed a petition for a writ of habeas corpus, and a trial was held on February 23, 2000. On May 16, 2000, the habeas court, Alander, J., denied the petition. On May 24, 2000, the court denied the petition for certification to appeal from the denial of the petition for a writ of habeas corpus. The petitioner then appealed, and the appeal was dismissed. See Newsome v. Commissioner of Correction, 64 Conn. App. 904, 777 A.2d 757, cert. denied, 258 Conn. 921, 782 A.2d 1245 (2001).

On October 18, 2001, the petitioner sought a writ of habeas corpus in the United States District Court for the District of Connecticut, challenging his conviction of murder. The petitioner brought five claims in this petition for a writ of habeas corpus. On November 17, 2004, the District Court held in a memorandum of decision that the first and fourth claims had been adjudicated in the petitioner’s direct appeal and that the fifth claim had been heard and rejected by the habeas court. The court found, however, that the second and third claims had not been presented to any state court for review. Therefore, the District Court stayed the case for thirty days and dismissed without prejudice the unexhausted claims. As a result, on December 7, 2004, the petitioner filed in state court a second petition for a writ of habeas corpus and alleged two claims: (1) that the admission of a witness’ prior inconsistent statements for substantive purposes violated his right to due process and (2) that the admission of the prior inconsistent statements by the witness for substantive purposes violated the petitioner’s due process rights because the statements were the sole evidence of the petitioner’s guilt. On December 11, 2006, the petitioner filed a motion for summary judgment. On June 4, 2007, the habeas court, Fuger, J., denied the motion for summary judgment and denied the petition for a writ of habeas corpus. Subsequently, on June 8, 2007, the petitioner filed a petition for certification to appeal, which was denied by the court on the same day. This appeal followed. Additional facts will be set forth as necessary.

We begin by setting forth the standard of review and legal principles that guide our resolution of the petitioner’s appeal. “Faced with the habeas court’s denial of certification to appeal, a petitioner’s first burden is to demonstrate that the habeas court’s ruling constituted an abuse of discretion. ... If the petitioner succeeds in surmounting that hurdle, the petitioner must then demonstrate that the judgment of the habeas court should be reversed on its merits. . . . To prove an abuse of discretion, the petitioner must demonstrate that the [resolution of the underlying claim involves issues that] are debatable among jurists of reason; that a court could resolve the issues [in a different manner]; or that the questions are adequate to deserve encouragement to proceed further. . . .

“Additionally, we note that [o]ur review of a rendering of summary judgment is subject to a well established standard of review. [Sjummary judgment shall be rendered forthwith if the pleadings, affidavits and any other proof submitted show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. Such questions of law are subject to plenary appellate review.” (Citations omitted; internal quotation marks omitted.) Edwards v. Commissioner of Correction, 105 Conn. App. 124, 126-27, 936 A.2d 716 (2008).

I

First, the petitioner claims that the habeas court improperly rejected his claim that he was denied due process of law when the trial court admitted the prior inconsistent statements of a witness as substantive evidence. We disagree with the petitioner.

The following additional facts are relevant to the disposition of the petitioner’s claim. On March 4, 1992, a police officer, David Daniels, heard two gunshots fired in the area of 455 Trumbull Avenue in Bridgeport. When Daniels responded, he discovered the victim, who had been shot fatally in the face. The following day, the police questioned Rodney Womble, who, in a signed, sworn statement, identified the petitioner as the person who had shot the victim.

The petitioner was arrested and charged with the victim’s murder. At both the probable cause hearing and the trial, Womble testified that although he had witnessed the shooting, he had not been able to identify the person who had shot the victim. Fie admitted that he had told the police that the petitioner had shot the victim, but he testified that he only had heard rumors that the petitioner had been the one who shot the victim. At the probable cause hearing, the state introduced the portion of Womble’s prior statement to the police in which he described the shooting. This portion of the statement was offered for substantive purposes pursuant to State v. Whelan, 200 Conn. 743, 513 A.2d 86, cert. denied, 479 U.S. 994, 107 S. Ct. 597, 93 L. Ed. 2d 598 (1986). At trial, the state introduced Womble’s entire statement for substantive purposes pursuant to Whelan. Womble’s statement provided the only identification evidence against the petitioner. The petitioner was afforded the opportunity to cross-examine Womble at both the probable cause hearing and at trial.

In essence, the petitioner argues that because Womble disavowed his initial statement at both the trial and the probable cause hearing, the petitioner was prevented from having a “meaningful opportunity to cross-examine Womble . . . .” Furthermore, he states that “confronting a witness who has made a prior inconsistent statement calls for the cross-examination of a witness who is not truly available as a witness.” Finally, the petitioner asserts that the confrontation clause and the due process clause mandate that a prior inconsistent statement is sufficient to convict only if the accused has had an opportunity to cross-examine the declarant “at the time the prior statement was made or when the declarant was still affirming its truth.”

In its memorandum of decision, the habeas court noted that the petitioner cited Crawford v. Washington, 541 U.S. 36, 124 S. Ct. 1354, 158 L. Ed. 2d 177 (2004), for his claim that the admission of Womble’s prior inconsistent statement as substantive evidence violated his right to due process. The court then cited Whorton v. Bockting, 549 U.S. 406, 127 S. Ct. 1173, 167 L. Ed. 2d 1 (2007), in which the United States Supreme Court decided that Crawford would not be given retroactive effect. The court then stated that the petitioner was convicted in 1993, our Supreme Court affirmed his judgment of conviction in 1996, Crawford was released in 2004 and Whorton was released in 2007. The court concluded, therefore, that the petitioner’s reliance on Crawford was misplaced and that “[t]he legal authority that [the] petitioner’s first claim is premised on has vaporized as a result of Whorton, and, therefore, he cannot be entitled to judgment as a matter of law.

The habeas court is correct that pursuant to Whorton, the petitioner’s reliance on Crawford is misplaced, and he, therefore, is not entitled to judgment as a matter of law pursuant to Crawford. See Whorton v. Bockting, supra, 549 U.S. 421. Accordingly, we conclude that the petitioner has not shown that the resolution of the underlying claim involved issues that are debatable among jurists of reason, that a court could resolve the issues in a different manner or that the questions are adequate to deserve encouragement to proceed further. Because the petitioner did not demonstrate any of these criteria, he failed to prove that the court abused its discretion in denying the petition for certification to appeal with respect to the claim that the habeas court rejected his claim that the trial court denied him due process of law by admitting improperly the prior inconsistent statements as substantive evidence.

II

Next, the petitioner claims that the habeas court improperly rejected his claim that the trial court improperly admitted Womble’s prior inconsistent statements as substantive evidence when they constituted the only evidence of the petitioner’s guilt. We disagree with the petitioner.

The petitioner relies on a footnote in California v. Green, 399 U.S. 149, 90 S. Ct. 1930, 26 L. Ed. 2d 489 (1970), in which the United States Supreme Court suggested that “considerations of due process, wholly apart from the Confrontation Clause, might prevent convictions where a reliable evidentiary basis is totally lacking.” Id., 164 n.15. The petitioner argues that “while Green stands for the proposition that prior inconsistent statements can be used as substantive evidence, it does not stand for the proposition that such evidence by itself is enough to satisfy the threshold burden of proof beyond reasonable doubt.”

In its memorandum of decision, the habeas court concluded that the Green footnote “is not the Supreme Court’s holding in California v. Green, supra, 399 U.S. 149.” It therefore concluded that “[statements by higher courts that are not germane to deciding a controversy are classic obiter dictum and do not have precedential value, even for lower courts.” Because the footnote in Green was not binding on it, the court concluded that the petitioner was not entitled to judgment as a matter of law with respect to his claim that the admission of Womble’s prior inconsistent statements as substantive evidence violated the petitioner’s due process rights when the statements were the only evidence of guilt. We agree with the habeas court that the footnote in Green did not constitute the Supreme Court’s holding. Because the footnote was not the court’s holding, it is purely dictum and not binding on any lower court, and the court properly refused to entertain the petitioner’s claim that was premised on the footnote. See Middletown Commercial Associates, Ltd. Partnership v. Middletown, 53 Conn. App. 432, 435, 730 A.2d 1201, cert. denied, 250 Conn. 919, 738 A.2d 657 (1999).

Accordingly, we conclude that the petitioner has not shown that the resolution of the underlying claim involved issues that are debatable among jurists of reason, that a court could resolve the issues in a different manner or that the questions are adequate to deserve encouragement to proceed further. Because the petitioner did not demonstrate any of these criteria, he failed to prove that the court abused its discretion in denying the petition for certification to appeal with respect to the claim that the habeas court improperly rejected his claim that the trial court denied him due process of law by admitting improperly the prior inconsistent statements as substantive evidence when they constituted the sole evidence of the petitioner’s guilt.

The appeal is dismissed.

In this opinion the other judges concurred.

       Although the petitioner failed to raise these claims on direct appeal, the respondent, the commissioner of correction, failed to raise the affirmative defense of procedural default in the return to the petition for a writ of habeas corpus. See Practice Book § 23-30 (b).

       The District Court cited § 2254 (b) (1) (A) of title 28 of the United States Code for the proposition that “[a] petitioner seeking habeas corpus relief from a state court judgment must first exhaust all available state remedies.” Additionally, the court cited Rose v. Lundy, 455 U.S. 509, 510, 102 S. Ct. 1198, 71 L. Ed. 2d 379 (1982), for the holding that “a district court must dismiss all ‘mixed petitions’ that contain both exhausted and unexhausted claims.”

       In its memorandum of decision, the court noted that “[t]he parties agreed that there are no material facts in dispute and that no evidence is necessary or required to adjudicate this matter.” The court, therefore, applied the law to the undisputed facts and concluded that the petitioner was not entitled to judgment as a matter of law with respect to either of his two claims.

       In addition to the Crawford argument, the petitioner made other arguments in his memorandum of law in support of his motion for summary judgment before the habeas court and in his appeal before this court. Nevertheless, the habeas court did not address those arguments in its memorandum of decision, and the petitioner did not file a motion for articulation as to why the habeas court did not address those additional arguments. Therefore, because the habeas court did not rule on those arguments, we cannot review them because to do so would result in an ambuscade of the habeas court. See Brown v. Commissioner of Correction, 104 Conn. App. 144, 149, 931 A.2d 963, cert. denied, 284 Conn. 937, 937 A.2d 693 (2007).

       In addition to his argument that relied on the footnote in Green, the petitioner made other arguments in his memorandum of law in support of his motion for summary judgment before the habeas court and in his appeal before this court. Nevertheless, the habeas court did not address those arguments in its memorandum of decision, and the petitioner did not file a motion for articulation as to why the habeas court did not address those additional arguments. Therefore, because the habeas court did not rule on those arguments, we cannot review them because to do so would result in an ambuscade of the habeas court. See footnote 4 of this opinion.


author: PER CURIAM.

text:
    MARIE MINICHINO v. LINDA MINUIT
    (AC 28412)
    McLachlan, Gruendel and Beach, Js.
    Argued April 17
    officially released July 15, 2008

      Joyce Michaels Elwell, for the appellant (defendant).

      William R. Bowles, for the appellee (plaintiff).
   Opinion

PER CURIAM.

This is an appeal from an action quieting title to three single-family residential properties. The defendant, Linda Minuit, appeals from the judgment rendered in favor of the plaintiff, her sister, Marie Mini-chino, finding that the plaintiff, in her capacity as trustee, is the owner of and holds title to the real property at issue in the present case. On appeal, the defendant contends that the court improperly (1) rendered judgment in favor of the plaintiff because it improperly found that the trust was valid and (2) found that the claimed defects in the chains of title were cured by the validating act, Special Acts 1997, No. 97-6 (S.A. 97-6). We affirm the judgment of the trial court.

The following facts, as found by the court in its memorandum of decision, are relevant to the resolution of the defendant’s appeal. Before the start of trial, the parties stipulated that the only issue before the court was the quiet title claim. On July 12, 2006, the court conducted a trial on the quiet title action, subsequently issuing its ruling on December 12, 2006. As a result of the plaintiffs involvement in litigation with the California tax authorities, she consulted an attorney about preserving her assets for the benefit of her son, Michael Anthony Minichino. On the basis of her attorney’s advice, on June 15, 1994, she created a family trust in her name and later changed its name to the Michael Anthony Family Trust (trust) on August 8, 1995.

In 1994, the plaintiff, who was familiar with the Connecticut area, was visiting the state and attended a department of housing and urban development (department) real property auction in Trumbull with a list of properties she hoped to acquire as assets for the trust. At the meeting, in which the defendant and the parties’ sister-in-law, Lucy Minichino, attended with the plaintiff, the plaintiff successfully bid on four properties, three of which are involved in the present action.

Before the plaintiff closed on the purchase of the properties, her California attorney advised her that she “should not take title in her name and that it would be difficult to get financing if title was in a trust or trustee. ” Thereafter, the plaintiff and the defendant arranged to have the department transfer title in the name of the defendant as an accommodation maker, with the idea that the properties would be transferred to the trust, with the defendant serving as the trustee. The department transferred the properties by warranty deed to the defendant. The court found that on September 10, 1995, the plaintiff, acting as settlor of the trust, appointed the defendant as trustee, a position that the court concluded the defendant had accepted. The court further found that in the period in which the defendant served as trustee, she acted in the capacity as trustee, taking steps to transfer the property to the trust.

At trial, the defendant claimed that some of the deeds were defective and confusing and that the intent of the grantors was unclear. She alleged that she signed the documentation, with respect to the trust, under duress and as a result of undue influence and control extended over her by the plaintiff. The court rejected the defendant’s claims, finding that the defendant had failed to prove any of her allegations. The court found that the “three properties with which this case is concerned were acquired by the plaintiff from [the department], in the name of the defendant, with the intention of eventually conveying these properties to the trust. Both parties were aware of the purpose for which the properties were acquired, and the various deeds were executed by the parties in an effort to have the properties become assets of the trust.” Thereby, the court rendered judgment in favor of the plaintiff, finding that the plaintiff, as trustee, holds title to the three properties at issue. This appeal followed.

On appeal, the defendant claims that the court improperly (1) rendered judgment in favor of the plaintiff because it improperly found that the trust was valid and (2) found that the alleged defects in the chains of title were cured by S.A. 97-6. Although the defendant asserts these claims on appeal, the only issue before the trial court was a quiet title action, and this appeal is from the judgment in the quiet title action. The trial court carefully examined all the evidence and correctly applied the law. See generally Stiepel v. Cone, 14 Conn. App. 815, 541 A.2d 547, cert. denied, 208 Conn. 810, 545 A.2d 1107 (1988).

“Our review of the factual findings of the trial court is limited to a determination of whether they are clearly erroneous. ... A finding of fact is clearly erroneous when there is no evidence in the record to support it ... or when although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed. . . . Because it is the trial court’s function to weigh the evidence and determine credibility, we give great deference to its findings.” (Internal quotation marks omitted.) Ridgefield v. Eppoliti Realty Co., 71 Conn. App. 321, 328, 801 A.2d 902, cert. denied, 261 Conn. 933, 806 A.2d 1070 (2002).

A complete reading of the record reveals that the factual findings of the court are not clearly erroneous. The court reviewed the evidence and testimony before it and accordingly found that the plaintiff, as trustee, held the title to the three properties at issue.

The judgment is affirmed.

       In her original complaint, the plaintiff brought her civil action as a partition of sale action. The defendant counterclaimed asserting a quiet title action. At the start of the trial, the plaintiff elected not to proceed on her complaint and the parties stipulated to proceed on the quiet title claim.
      The three properties are 51 Treadwell Street, Hamden; 79 Dawson Street, West Haven; and 16 Bayview Place, West Haven.

       In her statement of the issues, the defendant claims that the court improperly (1) rendered judgment in favor of the plaintiff and (2) denied the defendant’s application for an order prohibiting the plaintiff from further using the trust and her name and identity. Yet, these claims do not correspond with the issues she addressed in her principal brief and reply brief. Therefore, we examine only the issues addressed in her briefs. “[W]e are not required to review issues that have been improperly presented to this court through an inadequate brief. . . . Analysis, rather than mere abstract assertion, is required in order to avoid abandoning an issue by failure to brief the issue properly. . . . Where a claim is asserted in the statement of issues but thereafter receives only cursory attention in the brief without substantive discussion or citation of authorities, it is deemed to be abandoned.” (Citation omitted; internal quotation marks omitted.) Shore v. Haverson Architecture & Design, P.C., 92 Conn. App. 469, 479, 886 A.2d 837 (2005), cert. denied, 277 Conn. 907, 894 A.2d 988 (2006).

       The plaintiff was the settlor and the trustee of the trust. According to the memorandum of decision, “[o]n September 10, 1995, the plaintiff, as settlor of the trust, appointed the defendant as the trustee of the trust, and the defendant accepted the appointment. ... In July, 2001, the defendant resigned as said trustee.” The record reflects that at the time of the trial, the plaintiff was the trustee of the trust. The court stated: “The plaintiff has been, and is now the [sole] trustee of said trust . . . .”

       The fourth property the plaintiff acquired was sold in 1997 and is not involved in the present case.

       For the Bayview Place property, after the defendant acquired title from the department she quitclaimed the property to herself and the plaintiff as tenants in common. Then she quitclaimed her interest to the plaintiff, and two years later, the plaintiff quitclaimed her interest to the defendant as trustee of the trust. For the Treadwell Street property, the defendant acquired title from the department and then quitclaimed her interest to the plaintiff, who then quitclaimed her interest to the defendant as trustee of the trust. For the Dawson Street property, the defendant acquired the property from the department and quitclaimed her interest to the plaintiff, and the plaintiff quitclaimed her interest to herself and to the defendant as trustee of the trust.
      The court found that except for the mortgage loan proceeds, the plaintiff supplied “all necessary funds” for the properties at issue. There was a mortgage loan in the amount of $47,600 given by the defendant when she purchased the Bayview Place property from the department, but the court found that the plaintiff subsequently had paid off the mortgage loan.

       The court rejected the defendant’s claims and found that she did not prove her allegations. Specifically, the court found that pursuant to S.A. 97-6, there was no claim and that the deeds were valid because the defendant did not challenge the deeds under S.A. 97-6.


text:
    STATE OF CONNECTICUT v. DAVID M.

    (AC 28051)
    Flynn, C. J., and Lavine and West, Js.
    Argued April 22
    officially released July 15, 2008

      Katherine C. Essington, special public defender, for the appellant (defendant).

      James A. Killen, senior assistant state’s attorney, with whom, on the brief, were John A. Connelly, state’s attorney, and Catherine Brannelly Austin, senior assistant state’s attorney, for the appellee (state).

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

   Opinion

PER CURIAM.

The defendant, David M., appeals from the judgments of conviction rendered by the trial court after he pleaded guilty under the Alford doctrine to one count of sexual assault in the first degree in violation of General Statutes § 53a-70 (a) (2), two counts of sexual assault in the third degree in violation of General Statutes § 53a-72a (a) (1) (B), one count of risk of injury to a child in violation of General Statutes § 53-21 (a) (2) and three counts of risk of injury to a child in violation of General Statutes § 53-21 (a) (1). On appeal, the defendant claims that the court abused its discretion in failing (1) to conduct an evidentiary hearing, sua sponte, on his motion to withdraw his guilty pleas, (2) to appoint new counsel for him and (3) to grant his motion for a continuance at sentencing. We affirm the judgments of the trial court.

The following factual and procedural history is pertinent to our resolution of the defendant’s appeal. After jury selection was in progress, the defendant elected to withdraw his not guilty pleas. On May 10, 2006, the defendant appeared with his counsel and entered pleas of guilty under the Alford doctrine to one count of sexual assault in the first degree, two counts of sexual assault in the third degree and four counts of risk of injury to a child. The court, Iannotti, J., conducted a plea canvass and accepted the pleas. As a part of the canvass, the defendant acknowledged that he pleaded guilty freely and voluntarily and that no one had threatened him in any way. The court then granted the defendant’s motion to continue sentencing until June 14, 2006.

On June 14, 2006, the defendant appeared before the court for sentencing. At the commencement of the sentencing hearing, the defendant, through his attorney, requested a continuance so that the defendant would have an additional opportunity to resolve a pending case in a different jurisdiction. The court stated that, rather than sentencing the defendant on May 10, 2006, it had continued the sentencing until June 14, 2006, to provide the defendant with an opportunity to resolve his other pending case and also to allow one of the victims to be present at the sentencing proceeding. The court, in denying the defendant’s motion for another continuance, stated that the victim in question was present at this sentencing proceeding and further that the defendant’s case in the other jurisdiction still was pending because the defendant had chosen not to enter a plea in that case. The court also noted that it had reviewed the transcript from the May 10, 2006 plea canvass and concluded that the canvass was complete and that “there [was] nothing ... on that canvass that would allow [the defendant] to successfully move to withdraw his guilty plea in this matter.” In addition, the court indicated that the defendant’s counsel had stated earlier that day in chambers that she also had reviewed the canvass and found it to be complete. Thus, the court denied the motion and stated that it was going to sentence the defendant as scheduled that day.

Following the court’s denial of the defendant’s motion for a continuance, the defendant then asked the court to appoint new counsel. The court inquired as to the reasons why the defendant wanted a new lawyer. In response, the defendant asserted that his attorney had threatened him and had told him that she was “going to mess [his] case up . . . .” Counsel for the defendant informed the court that she had never made such statements to the defendant. The court denied the defendant’s motion for the appointment of new counsel and stated that a basis did not exist for appointing new counsel, noting also that it respected the abilities of the defendant’s counsel.

The defendant then requested a continuance so that he could consult with another attorney. The court again denied the defendant’s motion, noting that the defendant had known for several weeks that he was going to be sentenced on June 14, 2006. Thereafter, the court sentenced the defendant to a total effective term of twenty years incarceration, execution suspended after twelve years, with one year as a mandatory minimum, and ten years of probation.

The defendant first claims that the court’s failure to conduct an evidentiary hearing, sua sponte, on his motion to withdraw his guilty pleas was an abuse of discretion. This claim merits little discussion. The defendant never filed a motion to withdraw his guilty pleas, nor did he indicate on the record that he wanted to withdraw his pleas. The defendant contends that, through his counsel, he made a motion to withdraw his pleas in chambers prior to the commencement of the sentencing hearing. To support his assertion that such a motion had been made, the defendant refers to the court’s statement at the sentencing proceeding, in which it had indicated that it had reviewed the defendant’s plea canvass. Although the court, in the context of explaining its denial of the defendant’s first motion for a continuance, indicated that it, as well as defense counsel, had reviewed the plea canvass and concluded that it was a complete canvass, there is nothing in the record that would indicate that this statement was in response to a motion made by the defendant, and the court did not state that the defendant had requested the withdrawal of his guilty pleas at any point in time.

We further note that the defendant, apparently realizing that the record was devoid of any reference to a motion to withdraw his guilty pleas, subsequently filed a motion for rectification pursuant to Practice Book § 66-5, requesting that the court include in the record a statement that defense counsel had indicated to the court in chambers that the defendant wanted to withdraw his guilty pleas. The court, however, denied the defendant’s motion and noted that “the [June 14, 2006] transcript is the accurate reflection of the proceeding.” Because the record does not indicate that the defendant requested that his guilty pleas be withdrawn, the court was not required to conduct an evidentiary hearing. Accordingly, the defendant’s claim fails.

The defendant next claims that the court abused its discretion in failing to appoint new counsel. We do not agree.

“There is no unlimited opportunity to obtain alternate counsel. ... It is within the trial court’s discretion to determine whether a factual basis exists for appointing new counsel. . . . Moreover, absent a factual record revealing an abuse of that discretion, the court’s failure to allow new counsel is not reversible error.” (Citations omitted; internal quotation marks omitted.) State v. Drakeford, 202 Conn. 75, 83, 519 A.2d 1194 (1987). “Such a request must be supported by a substantial reason and, [i]n order to work a delay by a last minute discharge of counsel there must exist exceptional circumstances. ” (Internal quotation marks omitted.) State v. Fisher, 57 Conn. App. 371, 382, 748 A.2d 377, cert. denied, 253 Conn. 914, 754 A.2d 163 (2000).

Immediately prior to being sentenced, the defendant first made a motion for the continuance of his sentencing. Only after that motion was denied did he then request the appointment of new counsel. Although the defendant contends that the court prevented him from establishing a factual basis, the record reveals otherwise. After the defendant requested new counsel, the court adequately inquired into the matter and permitted the defendant to provide an explanation as to why he wanted alternate counsel. In response, the defendant represented that his counsel had threatened him. Upon further inquiry by the court concerning the nature of the alleged threats, the defendant stated that his counsel had informed him that she was going to “mess [his] case up,” which counsel denied. Aside from these general complaints, which the court did not credit, the defendant failed to offer any further reasons to support his motion for the appointment of new counsel. The defendant’s bare assertions, however, did not create a factual record to support a finding of good cause or exceptional circumstances to warrant a last minute change in counsel. Accordingly, we conclude that the court’s denial of the defendant’s motion for new counsel did not reflect an abuse of discretion.

The defendant last claims that the court abused its discretion when it denied his motion for a continuance to consult with another attorney. We disagree.

“[T]he determination of whether to grant a request for a continuance is within the discretion of the trial court, and will not be disturbed on appeal absent an abuse of discretion. ... To prove an abuse of discretion, an appellant must show that the trial court’s denial of a request for a continuance was arbitrary.” (Internal quotation marks omitted.) State v. Green, 105 Conn. App. 115, 119, 936 A.2d 712 (2007), cert. denied, 286 Conn. 904, 943 A.2d 1102 (2008).

With due regard for the broad leeway possessed by trial courts to grant or to deny continuances, it cannot be said that the court, under the circumstances of the present case, abused its discretion in denying the defendant’s motion for a continuance at sentencing. Here, the court had delayed the defendant’s sentencing from May 10, 2006, to permit him an opportunity to resolve a case pending elsewhere. At the June 14,2006 sentencing proceeding, the defendant again requested a continuance to give him an additional opportunity to resolve his other pending case. The court denied that motion, provided an explanation for its denial and then indicated that the defendant would be sentenced that day. Thereafter, the defendant raised general complaints about his counsel and requested the appointment of new counsel, which the court denied. Immediately following the court’s denial of his motion for alternate counsel, the defendant again requested a continuance, this time to consult with another attorney. In denying the defendant’s second eleventh hour motion for a continuance, the court stated that the defendant had known for several weeks that he was going to be sentenced on June 14,2006, implicitly indicating that the defendant had sufficient time to have his concerns addressed prior to the sentencing hearing. The court, having concluded that the defendant failed to demonstrate the existence of exceptional circumstances that would warrant a last minute delay in the proceedings to consult with new counsel, properly denied the defendant’s motion for a continuance at sentencing. On the basis of the sound reasons for denying the defendant’s motion for a continuance, we cannot conclude that the court abused its discretion.

The judgments are affirmed.

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

       We note that the conduct that gave rise to the charges of sexual assault in the first degree and risk of injury to a child occurred between 1993 and 1999. Although both statutes were amended during that time, there is no dispute that the conduct in which the defendant engaged was prohibited under all of the revisions of the statute applicable during that time period. In the interest of simplicity, we refer to the current revisions of General Statutes §§ 53a-70 and 53-21 as the revision of the statute under which the defendant was charged.

       We note that the record does not reveal that the defendant had filed a motion to withdraw his guilty pleas, nor does it indicate that he had made an oral motion for the withdrawal of his guilty pleas.

       Thereafter, the defendant filed an oral motion for review of the trial court’s denial of his motion for rectification. This court subsequently granted the motion for review but denied the requested relief.


author: BISHOP, J.

text:
    AMERICAN FEDERATION OF STATE, COUNTY AND MUNICIPAL EMPLOYEES, COUNCIL 4, LOCAL 1303-119 v. TOWN OF EAST HAVEN ET AL.
    (AC 28343)
    Bishop, Lavine and Borden, Js.

      Argued April 25
    officially released July 15, 2008

      J. William Gagne, Jr., with whom was Kimberly A. Cuneo, for the appellant (plaintiff).

      Susan M. Wright, with whom, on the brief, were David A. Ryan, Jr., sad Holly Quackenbush Darin, for the appellee (named defendant).
   Opinion

BISHOP, J.

The plaintiff, the American Federation of State, County and Municipal Employees, Council 4, Local 1303-119, appeals from the judgment of the trial court denying its application to vacate an arbitration award rendered by the defendant state board of mediation and arbitration (board) in favor of the defendant town of East Haven (town). On appeal, the plaintiff claims that the court improperly concluded that the arbitration award conformed to the submission and was not a result of a manifest disregard for the law. We affirm the judgment of the trial court.

The record discloses the following facts and procedural history relevant to our discussion of the issues on appeal. On January 29, 2003, the town decided to call in employees to plow and sand town roads because of icy conditions. The town called in four employees for the overtime work: a dispatcher, a supervisor, a heavy equipment operator and a truck driver. After the heavy equipment operator loaded one truck with sand, the supervisor directed him to load a second truck and then, rather than calling in a second truck driver, directed the heavy equipment operator to drive the second truck and sand the roads. Under the terms of the town’s collective bargaining agreement with the plaintiff, a heavy equipment operator, classified as a grade seven position, earns slightly more per hour than a truck driver, whose position is classified as a grade six. The job description of a heavy equipment operator includes operating a snow plow as well as performing activities “largely determined by seasonal considerations” of which “snow removal [is] a major operation during the winter months.” The job description of a truck driver includes operating “a variety of trucks with or without plow attachments” and plowing snow. The town fully compensated all employees in accordance with their grades for the overtime work.

The plaintiff filed a grievance, claiming that the town violated the collective bargaining agreement by directing the heavy equipment operator to drive the sanding truck instead of calling in a second truck driver. The grievance resulted in arbitration before the board. The parties submitted the following issue to the arbitration panel: “Did the Town of East Haven violate Article V of the 1998-2002 [collective bargaining agreement] by not filling overtime within classification first? If so, what shall the remedy be?” After a hearing, the board issued its award denying the grievance and concluding that the town did not violate article V of the 1998-2002 collective bargaining agreement.

The plaintiff filed an application to vacate the arbitration award, claiming that the board exceeded its powers and prejudiced the plaintiffs rights through misconduct, and that the award is against public policy. The court denied the application, noting: “The decision of the arbitration panel conforms to the submission. See State v. AFSCME, AFL-CIO, Council 4, Local 2663, 257 Conn. 80, 85, 777 A.2d 169 (2001).” On May 14, 2007, the plaintiff timely filed. a motion for articulation, requesting, inter alia, that the court explain whether the court found that the board had exceeded its authority. In its articulation, the court stated that the board did not exceed its authority because the award conformed to the submission. The plaintiff subsequently sought review of the court’s articulation with this court. The review was granted but the relief requested was denied. This appeal followed.

Our analysis is guided by the well established principles concerning review of arbitration awards. The standard of review relative to arbitration awards depends on the nature of the submission and the challenge. In this case, although the court did not explicitly find that the submission was unrestricted, it cited the standard of review for unrestricted submissions in its ruling on the motion for articulation. As the parties do not dispute this issue on appeal, and “[a] submission is unrestricted unless otherwise agreed by the parties”; (internal quotation marks omitted) Industrial Risk Insurers v. Hartford Steam Boiler Inspection & Ins. Co., 258 Conn. 101, 112, 779 A.2d 737 (2001); we conclude that the submission is unrestricted.

“With a voluntary, unrestricted submission to an arbitrator . . . the court may examine the submission and the award to determine only whether the award conforms to the submission. ... In making such a comparison when the submission is unrestricted, the court will not review the evidence or legal questions involved, but is bound by the arbitrator’s legal and factual determinations. . . . When the scope of the submission is unrestricted, the resulting award is not subject to de novo review even for errors of law so long as the award conforms to the submission. . . .

“Certain conditions do exist, however, under which we conduct a more searching review of arbitral awards. In Garrity v. McCaskey, 223 Conn. 1, 6, 612 A.2d 742 (1992), our Supreme Court reiterated that there are three grounds for vacating an award when the submission is unrestricted. These grounds arise when the award (1) rules on the constitutionality of a statute, (2) violates clear public policy or (3) contravenes one or more of the statutory proscriptions of General Statutes § 52-418.” (Citations omitted; internal quotation marks omitted.) AFSCME, Council 4, Local 1565 v. Dept. of Correction, 107 Conn. App. 321, 325-26, 945 A.2d 494 (2008). Section 52-418 (a) (4) provides that an arbitration award shall be vacated if the arbitrators have exceeded their powers or so imperfectly executed them that a mutual, final and definite award on the subject matter submitted was not made. “[A] claim that the arbitrators have ‘exceeded their powers’ may be established under § 52-418 in either one of two ways: (1) the award fails to conform to the submission, or, in other words, falls outside the scope of the submission; or (2) the arbitrators manifestly disregarded the law.” Harty v. Cantor Fitzgerald & Co., 275 Conn. 72, 85, 881 A.2d 139 (2005).

The plaintiff claims that the board exceeded its powers both because the award does not conform to the submission and exhibits a manifest disregard for the law. We address the former claim first. “Generally, any challenge to an award pursuant to General Statutes [§ 52-418 (a) (4)] on the ground that the arbitrators exceeded or imperfectly performed their powers is properly limited to a comparison of the award with the submission. ... If the award conforms to the submission, the arbitrators have not exceeded their powers.” (Internal quotation marks omitted.) Exley v. Connecticut Yankee Greyhound Racing, Inc., 59 Conn. App. 224, 228, 755 A.2d 990, cert. denied, 254 Conn. 939, 761 A.2d 760 (2000). In this case, we conclude that the board appropriately responded to the submission and did not exceed its authority.

The plaintiff also claims that the board exceeded its authority by manifestly disregarding the law. In support of its claim, the plaintiff cites the following excerpt from the award: “The town should, in the future, make every effort to comply with the specific requirements of the contract by calling in enough individuals to perform their specific duties, i.e., truck drivers should operate trucks and heavy equipment operators should operate heavy equipment. Since the town inadvertently failed to call in sufficient truck drivers during the evening in question, it was not a contract violation to utilize the heavy equipment operator to drive the truck. ” The plaintiff argues that this excerpt is a tacit acknowledgement that the town violated the collective bargaining agreement and that the board chose to ignore the violation in a manifest disregard for the law. We disagree.

“ [T]he manifest disregard of the law ground for vacating an arbitration award is narrow and should be reserved for circumstances of an arbitrator’s extraordinary lack of fidelity to established legal principles. . . . In Garrity [v. McCaskey, supra, 223 Conn. 8-9, our Supreme Court] adopted the test enunciated by the United States Court of Appeals for the Second Circuit in interpreting the federal equivalent of § 52-418 (a) (4). . . . The test consists of the following three elements, all of which must be satisfied in order for a court to vacate an arbitration award on the ground that the arbitration panel manifestly disregarded the law: (1) the error was obvious and capable of being readily and instantly perceived by the average person qualified to serve as an arbitrator; (2) the arbitration panel appreciated the existence of a clearly governing legal principle but decided to ignore it; and (3) the governing law alleged to have been ignored by the arbitration panel is well defined, explicit, and clearly applicable.” (Internal quotation marks omitted.) Nikituk v. Field Co. Builders, LLC, 106 Conn. App. 558, 561, 942 A.2d 554 (2008).

Upon application of these principles to the current case, we conclude that the court properly denied the application to vacate the arbitration award. The plaintiff has failed to satisfy the first Garrity element, which is that the arbitrator’s alleged error was obvious and capable of being readily and instantly perceived by the average person qualified to serve as an arbitrator. In this case, the board concluded that the town acted properly by filling the subject overtime position according to classification as set forth in the collective bargaining agreement. In so doing, the board determined that directing the heavy equipment operator to drive the truck was consistent with his job description, which included operating snow plow equipment and snow removal during the winter months. The duties cited by the board are indeed contained within the heavy equipment operator’s job description. Therefore, the board’s conclusion that driving a sanding truck to deice slippery roads is a function included in the heavy equipment operator’s job description was reasonable. When viewed in the context of the award as a whole, the excerpt of the award that the plaintiff relies on can more soundly be interpreted as an admonishment of the town for its lack of foresight in failing to anticipate the number and classification of employees required for the overtime work and not as an acknowledgment by the board that its award was contrary to the terms of the collective bargaining agreement. Consequently, we do not conclude that the board exhibited a manifest disregard for the law in fashioning its award.

The judgment is affirmed.

In this opinion the other judges concurred.

       The sections of article V of the collective bargaining agreement, which describe the relationship between classification and overtime, are: “IN CLASS OVERTIME. In class overtime is overtime offered in an employee’s specific classification (for example, a laborer working as a laborer or an operator working as an operator). In class overtime will be offered to the employee with the lowest amount of overtime hours within his or her specific classification. When in class overtime exists, the employee with lowest hours will be offered the next available overtime (for example, if an overtime assignment is scheduled to begin at 7:00 a.m. and another is to begin at 8:00 a.m., the employee with the lowest hours will be offered the 7:00 a.m. assignment. In the event that more than one (1) assignment is scheduled for the same time, the employee with the lowest hours will be offered the assignment, which is expected to offer the most hours). When employees have an equal number of hours, the most senior employee will be offered the next available overtime.
      “OUT-OF-CLASS OVERTIME. Out-of-class overtime is overtime which requires an employee to work in a classification different than the employee’s regular classification (for example, a laborer who is required to work as a mechanic or a méchame who is required to drive). This overtime will be offered to the employee with the lowest amount of total overtime (in class plus out-of-class equals total). In order to be offered out-of-class overtime, the employee not only must have low hours but also must be qualified to perform the duties, which are required during the overtime.”

       In addition to asking the court to clarify whether it found that the arbitration board exceeded its authority, the plaintiffs motion for articulation also requested that the court articulate whether it (1) found that the arbitration board had the authority to excuse a violation of the collective bargaining agreement, (2) found that there was a violation of article V of the 1998-2002 collective bargaining agreement, (3) found that the arbitration board excused a violation of the collective bargaining agreement by stating in its memorandum: “The town should, in the future, make every effort to comply with the specific requirements of the contract by calling in enough individuals to perform their specific duties,- i.e., truck drivers should operate trucks and heavy equipment operators should operate heavy equipment,” (4) found that the arbitration award violates public policy and (5) examined the arbitrators’ memorandum in considering whether the award demonstrated infidelity to the arbitrators’ obligations. The court explained, in its ruling on the motion for articulation, that these claims were insufficiently analyzed for review and, further, that they were legally irrelevant.

       The plaintiff separately claims that the award was internally inconsistent and failed to draw its essence from the contract. These claims are simply variations of the claim that the arbitrators exceeded their authority and do not warrant separate analysis.