author: DUPONT, J.

text:
    STATE OF CONNECTICUT v. COREY WILLIAMS
    (AC 27628)
    Flynn, C. J., and Beach and Dupont, Js.

      Argued June 2
    officially released October 14, 2008

      David B. Rozwaski, special public defender, for the appellant (defendant).

      Timothy J. Sugrue, senior assistant state’s attorney, with whom, on the brief, were David I. Cohen, state’s attorney, and Suzanne M. Vieux, assistant state’s attorney, for the appellee (state).
   Opinion

DUPONT, J.

The defendant, Corey Williams, appeals from the judgment of conviction, rendered after a jury trial, of possession of narcotics with intent to sell in violation of General Statutes § 2 la-277 (a) and interfering with an officer in violation of General Statutes § 53a-167a. The defendant claims that the evidence adduced at trial was insufficient to support his conviction. We disagree. Accordingly, we affirm the judgment of the trial court.

The jury reasonably could have found the following facts. In the early morning hours of October 19, 2004, Russell Fallow, a sergeant with the Norwalk police department, was driving a police car and patrolling the buildings on Westport Avenue, near Lois Street, in Nor-walk. At approximately 2 a.m., he observed a set of taillights of a car on Lois Street in the vicinity of the Alden O. Sherman Company building, which he knew was not open at that hour. Because this particular company had reported problems with property damage, trespassing and the presence of narcotics transactions in its parking area, Fallow drove toward the vehicle to investigate further. Fallow then observed another vehicle in the parking area of the company. Fallow ended his pursuit of the first vehicle and made his way toward the second vehicle. As he approached the second vehicle, it began to exit the parking area. Fallow blocked the car from exiting with his cruiser in order to conduct a motor vehicle stop.

Once the car came to a stop, Fallow put his spotlight on the vehicle and approached the driver to request his driver’s license, motor vehicle registration and an insurance card. He saw a male in the front passenger seat and another male, the defendant, in the backseat, behind the front seat passenger. All three men appeared to be “nervous” and “fidgety.” Fallow asked the driver why he was on the property. The driver stated that he was there to pick up his uncle, indicating the defendant. The defendant, however, stated that he was not the uncle of the driver. The driver was unable to provide Fallow with a license, but he did provide Fallow with his motor vehicle registration. Fallow advised the three men to keep their hands visible.

Fallow returned to his vehicle to check the information given to him. He also called for backup assistance because he thought that things appeared to be amiss. Fallow kept his eyes on the vehicle during this time and did not observe any furtive movements by the occupants. Kenneth Arrington, a Norwalk police officer, arrived on the scene within minutes. Arrington also did not observe any furtive movements by the occupants as he positioned himself outside of the vehicle. Arrington noted that when he approached the vehicle, the defendant was seated on the driver’s side of the backseat. This testimony differed from that of Fallow, as previously stated, who testified that the defendant was seated in the backseat, behind the front seat passenger.

After Arrington arrived, Fallow approached the vehicle again and informed the occupants that they were going to be arrested for trespassing. The occupants were removed from the vehicle one by one. The defendant exited from the backseat on the driver’s side of the vehicle. Once the defendant was removed from the vehicle, Arrington observed a substance, which he suspected to be cocaine, in plain view on the floor of the backseat, behind the front passenger seat. The suspected narcotics were in forty-three knotted bags and envelopes. Arrington also observed a small bag containing a substance suspected to be marijuana and money, in the amount of $15, in the same area. He believed that the narcotics could have been placed there by a front seat or a backseat passenger.

A further search of the vehicle revealed a bag of suspected marijuana in the console between the passenger’s seat and the driver’s seat, and a cellular telephone and approximately $640 in small denominations under the driver’s seat. A crack pipe was found on the front seat passenger’s person. No cocaine or marijuana or incriminating evidence was found on the defendant’s person. No evidence was introduced to show that the defendant was a user of narcotics.

Fallow advised the occupants that there were going to be additional charges. The defendant identified himself to Fallow as Zeke Williams and also gave the same identification at the police station where he provided the holding facility officer with his correct social security number, address, race, eye color, hair color and birthplace. Through the use of the social security number and an electronic database, the holding facility officer in less than ten minutes was able to determine the defendant’s actual identity to be Corey Williams, not Zeke Williams.

Jerry Hart, an analytical chemist with the controlled substances-toxicology laboratory of the department of public safety, tested nine of the forty-three items of evidence submitted to him, pursuant to the laboratory’s policy. One item was found to be marijuana. The other eight items tested positive for various forms of cocaine.

At the close of the state’s evidence, the defendant moved for a judgment of acquittal as to all charged offenses on the ground that the evidence did not permit a finding of guilty beyond a reasonable doubt. The court denied the defendant’s motion. Thereafter, the jury found the defendant guilty of possession of narcotics with intent to sell and interfering with an officer, and not guilty of possession of marijuana. Following the verdict, the defendant renewed his motion for a judgment of acquittal as to the two charges of which he was convicted. The court denied the defendant’s motion and sentenced him to a total effective term of ten years imprisonment and six years special parole.

The defendant claims that the evidence introduced in support of his conviction of the two offenses was insufficient to support either of them.

As a preliminary matter, we set forth the applicable standard of review. “In reviewing the sufficiency of the evidence to support a criminal conviction we 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.” (Internal quotation marks omitted.) State v. Na’im B., 288 Conn. 290, 295-96, 952 A.2d 755 (2008). “In evaluating evidence, the [finder] of fact is not required to accept as dispositive those inferences that are consistent with the defendant’s innocence.” (Internal quotation marks omitted.) Id., 296; see also State v. Silva, 285 Conn. 447, 454, 939 A.2d 581 (2008).

“While . . . every element [must be] proven beyond a reasonable doubt in order to find the defendant guilty of the charged offense, each of the basic and inferred facts underlying those conclusions need not be proved beyond a reasonable doubt. . . . If it is reasonable and logical for the jury to conclude that a basic fact or an inferred fact is true, the jury is permitted to consider the fact proven and may consider it in combination with other proven facts in determining whether the cumulative effect of all the evidence proves the defendant guilty of all the elements of the crime charged beyond a reasonable doubt. . . . Moreover, [i]n evaluating evidence that could yield contrary inferences, the [jury] is not required to accept as dispositive those inferences that are consistent with the defendant’s innocence. ... As we have often noted, proof beyond a reasonable doubt does not mean proof beyond all possible doubt . . . nor does proof beyond a reasonable doubt require acceptance of every hypothesis of innocence posed by the defendant that, had it been found credible by the [jury], would have resulted in an acquittal. ... On appeal, we do not ask whether there is a reasonable view of the evidence that would support a reasonable hypothesis of innocence. We ask, instead, whether there is a reasonable view of the evidence that supports the jury’s verdict of guilty.” (Internal quotation marks omitted.) State v. Myers, 101 Conn. App. 167, 172-73, 921 A.2d 640, cert. granted on other grounds, 283 Conn. 906, 927 A.2d 919 (2007).

I

The defendant first claims that the state presented insufficient evidence to prove beyond a reasonable doubt that he possessed narcotic substances and that he intended to sell narcotics, the two elements of § 2 la-277 (a). We are not persuaded.

A

We turn first to the defendant’s argument that the state presented insufficient evidence to prove beyond a reasonable doubt that he possessed narcotics, one of the two elements of § 21a-277 (a). The second element is the intent to sell, which is discussed in part B.

“[T]o prove illegal possession of anarcotic substance, it is necessary to establish that the defendant knew the character of the substance, knew of its presence and exercised dominion and control over it. . . . Where . . . the [narcotics were] not found on the defendant’s person, the state must proceed on the theory of constructive possession, that is, possession without direct physical contact. . . . One factor that may be considered in determining whether a defendant is in constructive possession of narcotics is whether he is in possession of the premises where the narcotics are found. . . . Where the defendant is not in exclusive possession of the premises where the narcotics are found, it may not be inferred that [the defendant] knew of the presence of the narcotics and had control of them, unless there are other incriminating statements or circumstances tending to buttress such an inference. . . . While mere presence is not enough to support an inference of dominion or control, where there are other pieces of evidence tying the defendant to dominion and control, the [finder of fact is] entitled to consider the fact of [the defendant’s] presence and to draw inferences from that presence and the other circumstances linking [the defendant] to the crime.” (Citation omitted; internal quotation marks omitted.) State v. Martin, 285 Conn. 135, 149-50, 939 A.2d 524 (2008). Numerous cases hold that the test for illegal possession of drugs is that the accused must know that the substance in question is a drug, must know of its presence and exercise dominion and control over it. See State v. Alfonso, 195 Conn. 624, 633, 490 A.2d 75 (1985); State v. Lee, 32 Conn. App. 84, 98, 628 A.2d 1318, cert. denied, 227 Conn. 924, 632 A.2d 702 (1993), cert. denied, 510 U.S. 1202, 114 S. Ct. 1319, 127 L. Ed. 2d 668 (1994); State v. Nesmith, 24 Conn. App. 158, 160, 586 A.2d 628, aff'd, 220 Conn. 628, 600 A.2d 780 (1991); State v. Santiago, 17 Conn. App. 273, 278, 552 A.2d 438 (1989).

There is no dispute in this case that narcotics were found in the car in which the defendant was a passenger. Instead, the question we must resolve is whether the state presented enough evidence for the jury to have found that the defendant was aware of the presence of narcotics and exercised dominion or control over them. See Evans v. United States, 257 F.2d 121, 128 (9th Cir.), cert. denied, 358 U.S. 866, 79 S. Ct. 98, 3 L. Ed. 2d 99 (1958). Knowledge of the presence of narcotics and control may be proved circumstantially. Id. Knowledge that drugs are present and under a defendant’s control when found in a defendant’s home or car is more easily shown, of course, if the defendant has exclusive possession of the area in which the drugs are found. The difficult cases, such as the present one, arise when possession of an area, such as a car or home or an apartment, is shared with another person or persons. In situations in which the putative offender is not in exclusive possession of the premises where the narcotics are found, we may not infer that he or she knew of the presence of the narcotics or that he or she had control over them, without incriminating statements or circumstances to support that inference. State v. Nesmith, supra, 24 Conn. App. 161.

As previously provided, when narcotics are not found on the defendant’s person, “the state must proceed on the theory of constructive possession, that is, possession without direct physical contact.” (Internal quotation marks omitted.) State v. Davis, 84 Conn. App. 505, 510, 854 A.2d 67, cert. denied, 271 Conn. 922, 859 A.2d 581 (2004). “Constructive” is an adjective used to describe something tantamount to or the equivalent of the actual quality or characteristic of the noun it modifies. Actual possession rests on legal title or direct physical contact as opposed to the legal fiction of constructive possession that can be inferred from the circumstances and can be the equivalent of actual possession. The behavior of a defendant or other indicia of possession by a defendant of illegal drugs in a car in which two or more persons are found can be considered in determining whether the defendant constructively possessed illegal substances. State v. Ober, 24 Conn. App. 347, 352, 588 A.2d 1080, cert. denied, 219 Conn. 909, 593 A.2d 134, 135, cert. denied, 502 U.S. 915, 112 S. Ct. 319, 116 L. Ed. 2d 260 (1991). In other words, a person may be in constructive possession of something although he has no physical contact with it or legal title to it.

In the present case, it is clear from the evidence that the defendant was not in exclusive possession of the vehicle in which the narcotics were found but, rather, was one of three males in the car. There were, however, incriminating circumstances that support the inference that the defendant constructively possessed the narcotics. The bags of cocaine were located in plain view, on the floor of the backseat of the vehicle, where the defendant’s feet had been when Fallow first approached the vehicle. The defendant, therefore, was within arm’s reach of the narcotics and had easier access to them than the other two occupants of the vehicle who were seated in the front seat. After the police stopped the car, the defendant changed his seat, which the jury could have concluded had the purpose of allowing the defendant to distance himself from the narcotics he knew were under his former seat. In addition, the defendant appeared “nervous” and “fidgety.” He also gave a false first name to police and initially refused to be fingerprinted. Finally, Fallow testified that when the defendant was informed that he was going to be charged with drug crimes, he did not appear “surprised at all.”

The facts of this case are strikingly similar to those of State v. Delarosa, 16 Conn. App. 18, 547 A.2d 47 (1988). In Delarosa, the defendant was a backseat passenger in a motor vehicle that had been stopped by police. Id., 21. Police officers observed large chunks of white power, later proven to be cocaine, on the floor where the defendant was seated. Id. The defendant appeared to be “ ‘fidgety’ ” and “ ‘nervous’ . . . .” Id. A further search of the interior of the vehicle revealed a bag containing cocaine protruding from a seat belt recoil receptacle in the front seat. Id. More bags of white powder were found in the trunk. Id., 22. A beeper also was recovered from the person of the front seat passenger. Id., 21. This court upheld the defendant’s conviction of possession of cocaine with intent to sell, stating: “[W]hen the drugs are found in a car with more than one passenger, the mere presence of a person in the car is not sufficient to support an inference that he possessed the drugs. . . . There must be other indicia of ownership.” (Citation omitted.) Id., 34. In Delarosa, as in this case, “there was sufficient other indicia of ownership. The drugs were found on the back floor of the car near the defendant’s feet, and the defendant . . . appeared fidgety and nervous.” Id.

Delarosa instructs that the location of a drug when found is significant in disproving or establishing possession, but if the drugs are located in a common area accessible to a person other than the defendant, that fact alone does not prevent the defendant from being found in possession of the drugs. Of course, more evidence than the presence of a defendant in a car containing drugs is necessary to find that a defendant possessed drugs, but when there are facts “illuminating” possession, an inference of possession may be drawn. See State v. Watson, 165 Conn. 577, 596, 345 A.2d 532 (1973), cert. denied, 416 U.S. 960, 94 S. Ct. 1977, 40 L. Ed. 2d 311 (1974). We note the following facts as illuminating possession in the present case: the driver of the car indicated a complicity with the occupants of the car in a criminal enterprise when he expected the defendant’s cooperation in explaining their presence on the property by claiming that the defendant needed to be picked up there and was his uncle; the defendant exhibited a consciousness of guilt by giving a false first name; the defendant, as the sole occupant of the rear compartment of the car, had easy access to the narcotics; the defendant changed his seat to move farther away from the narcotics; the defendant’s close proximity to the packaged substances gave him knowledge of its narcotic character because “[i]t is by now common knowledge that cocaine is often packaged as a white powder in small plastic bags.” (Internal quotation marks omitted.) State v. Delossantos, 211 Conn. 258, 281, 559 A.2d 164, cert. denied, 493 U.S. 866, 110 S. Ct. 188, 107 L. Ed. 2d 142 (1989). It is also possible for drugs to be jointly possessed. See State v. Alfonso, supra, 195 Conn. 636 (Parskey, J., concurring in part and dissenting in part); State v. Williams, 12 Conn. App. 225, 237, 530 A.2d 627 (1987).

If the defendant’s reasoning that the jury could not infer that the defendant had constructive possession of the drugs found were followed, given the evidence of this case, it is unlikely that any occupant of a car in which narcotics are found in a shared area could ever be convicted of possession, without the actual physical presence of drugs on that occupant. Moreover, we emphasize that Na’im B. makes it clear, as do many other cases, that evidence is to be assessed with a view to sustaining a jury verdict. State v. Na’im B., supra, 288 Conn. 301-302.

On the basis of the cumulative effect of the evidence heard by the jury, we conclude that the jury reasonably could have found that the defendant was in constructive possession of the cocaine.

B

The defendant also argues that the state presented insufficient evidence to prove beyond a reasonable doubt that he intended to sell narcotics.

As a preliminary matter, we address the state’s claim that this court should decline to review the defendant’s claim on the ground that it was briefed inadequately. The defendant, in his brief, mentions that there was not “any evidence of [his] intent to engage in any sales activity” but fails to analyze the claim. “We recognize that [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.” (Internal quotation marks omitted.) Ward v. Greene, 267 Conn. 539, 546, 839 A.2d 1259 (2004).

Nevertheless, although the defendant has failed to provide an analysis of this claim, he has directed our attention to his preserved claim that the evidence was insufficient to support the element of intent to sell narcotics as required by § 2la-277 (a). See id.; Florian v. Lenge, 91 Conn. App. 268, 287, 880 A.2d 985 (2005). The record of this case reveals that at the close of the state’s evidence and after the jury verdict, the defendant moved for a judgment of acquittal, claiming, among other things, that the evidence was insufficient to prove the element of intent to sell narcotics. As such, the defendant preserved his claim at trial, and he continues to assert the claim on appeal. The facts taken from the transcript of the testimony of the witnesses at trial and the defendant’s arguments in both this court and the trial court are sufficient for us to review the claim. Furthermore, the issue may recur in possible future claims by the defendant—for example, in a petition for a writ of habeas corpus—and, therefore, in the interest of finality, and judicial economy, we opt not to postpone or avoid deciding it. Therefore, in the exercise of our discretion, we review the defendant’s claim. See Ward v. Greene, supra, 267 Conn. 546. In summary, the lack of diligence to analyze an issue thoroughly in a brief may be less important than resolving an issue likely to recur in other cases. We do caution all parties, however, that it is the policy of this court not to review claims that have been abandoned through inadequate briefing. See State v. Martin, 98 Conn. App. 458, 472 n.13, 909 A.2d 547 (2006), rev’d on other grounds, 285 Conn. 135, 939 A.2d 524, cert. denied, 555 U.S. 859, 129 S. Ct. 133, 172 L. Ed. 2d 101 (2008).

“[T]he question of intent is purely a question of fact. . . . The state of mind of one accused of a crime is often the most significant and, at the same time, the most elusive element of the crime charged. . . . Because it is practically impossible to know what someone is thinking or intending at any given moment, absent an outright declaration of intent, a person’s state of mind is usually proven by circumstantial evidence. . . . Intent may be and usually is inferred from conduct.” (Internal quotation marks omitted.) State v. Myers, supra, 101 Conn. App. 174. “[I]t is not one fact, but the cumulative impact of a multitude of facts which establishes guilt in a case involving circumstantial evidence.” (Internal quotation marks omitted.) State v. Glenn, 30 Conn. App. 783, 793, 622 A.2d 1024 (1993).

“The quantity of narcotics found in the defendant’s possession [is] probative of whether the defendant intended to sell the drugs. . . . Also indicative of the defendant’s intent to sell narcotics is the manner in which the narcotics are packaged. . . . Evidence demonstrating that the defendant was present in a known drug trafficking area further suggests an intent to sell. ... In addition, the absence of drug paraphernalia indicates that the substance is not intended for personal use, but rather for sale to others.” (Internal quotation marks omitted.) State v. Brown, 90 Conn. App. 835, 840, 879 A.2d 466, cert. denied, 276 Conn. 901, 884 A.2d 1026 (2005).

In this case, there was sufficient evidence of the defendant’s intent to sell narcotics. The jury was presented with evidence that the defendant had in his constructive possession forty-three individually packaged bags that contained various forms of cocaine. The state’s expert witness, Mark Edwards, testified that the manner in which the cocaine was packaged and the amount of cocaine the defendant possessed were consistent with packaging for sale, rather than for personal use. Also, the defendant was arrested in an area known for drug activity, and he did not have any drug paraphernalia on his person when he was arrested to indicate personal use of drugs. Furthermore, Edwards testified that when a person is selling drugs, one would expect to find cash in small denominations and a cellular telephone, both of which were present in the vehicle the defendant occupied.

On the basis of this evidence, viewed as a whole, we conclude that the jury reasonably could have concluded beyond a reasonable doubt that the defendant intended to sell the cocaine in his constructive possession.

II

The defendant’s second claim is that there was insufficient evidence to support his conviction of interfering with an officer in violation of § 53a-167a (a). We disagree.

To support a conviction for interfering with an officer, the state must prove beyond a reasonable doubt that the defendant obstructed, resisted, hindered or endangered an officer in the performance of his or her duties. General Statutes § 53a-167a (a). Additionally, the state must prove that the defendant had the specific intent to interfere with an officer. State v. Nita, 27 Conn. App. 103, 111-12, 604 A.2d 1322, cert. denied, 222 Conn. 903, 606 A.2d 1329, cert. denied, 506 U.S. 844, 113 S. Ct. 133, 121 L. Ed. 2d 86 (1992). “[T]he question of intent is purely a question of fact. . . . Intent may be, and usually is, inferred from the defendant’s verbal and physical conduct. . . . Intent may also be inferred from the surrounding circumstances.” (Internal quotation marks omitted.) State v. Duncan, 96 Conn. App. 533, 540, 901 A.2d 687, cert. denied, 280 Conn. 912, 908 A.2d 540 (2006).

“The language of § 53a-167a is intended to be broad.” State v. Ragin, 106 Conn. App. 445, 450, 942 A.2d 489, cert. denied, 287 Conn. 905, 950 A.2d 1282 (2008). “By using those words it is apparent that the legislature intended [§ 53a-167a] to prohibit any act which would amount to meddling in or hampering the activities of the police in the performance of their duties. . . . The [defendant’s] act, however, does not have to be wholly or partially successful . . . [nor must it] be such as to defeat or delay the performance of a duty in which the officer is then engaged. The purpose of the statute, which had its origin in the common law, is to enforce orderly behavior in the important mission of preserving the peace; and any act that is intended to thwart that purpose is violative of the statute. . . . Thus, [t]he broad intent of § 53a-167a is to prohibit conduct that hampers the activities of the police in the performance of their duties . . . .” (Citations omitted; emphasis added; internal quotation marks omitted.) State v. Aloi, 280 Conn. 824, 833, 911 A.2d 1086 (2007); see also State v. Williams, 205 Conn. 456, 471, 534 A.2d 230 (1987), citing State v. Beckenbach, 1 Conn. App. 669, 679, 476 A.2d 591 (1984) (act does not have to be wholly or partially successful), rev’d on other grounds, 198 Conn. 43, 501 A.2d 752 (1985); State v. Brown, 33 Conn. Sup. 515, 518, 356 A.2d 913 (1976) (same); State v. Harris, 4 Conn. Cir. Ct. 534, 540, 236 A.2d 479 (1967) (same).

In Aloi, our Supreme Court determined that a peaceable refusal to provide identification to a police officer who is investigating possible criminal activity pursuant to a Terry stop constituted a violation of § 53a-167a. State v. Aloi, supra, 280 Conn. 833. “[R]efusal to provide identification in connection with a Terry stop may hamper or impede a police investigation into apparent criminal activity [and is not] categorically excluded under the expansive language of § 53a-167a.” Id.; compare State v. Williams, supra, 205 Conn. 472 (“[t]he statute’s requirement of intent limits its application to verbal conduct intended to interfere with a police officer and excludes situations in which a defendant merely questions a police officer’s authority or protests his or her action”).

“To hinder is defined as to make slow or difficult the course or progress of.” (Internal quotation marks omitted.) State v. Aloi, supra, 280 Conn. 834. “Although each case must be decided on its own particular facts, as a general matter, a suspect’s refusal to comply with a lawful police command to provide identification following a Terry stop is likely to impede or delay the progress of the police investigation, even when that refusal is peaceable.” Id. “Obtaining a suspect’s name in the course of a Terry stop serves important government interests. Knowledge of identity may inform an officer that a suspect is wanted for another offense, or has a record of violence or mental disorder. On the other hand, knowing identity may help clear a suspect and allow the police to concentrate their efforts elsewhere.” Hiibel v. Sixth Judicial District Court of Nevada, 542 U.S. 177, 186, 124 S. Ct. 2451, 159 L. Ed. 2d 292 (2004). “Thus, [t]he principles of Terry permit a [s]tate to require a suspect to disclose his name in the course of a Terry stop . . . [because] [t]he request for identity has an immediate relation to the purpose, rationale, and practical demands of a Terry stop.” (Internal quotation marks omitted.) State v. Aloi, supra, 839.

In the present case, the evidence adduced at trial established that at the scene of the crime, the defendant represented to Fallow that his name was Zeke Williams. Later, at police headquarters, the defendant once again identified himself as Zeke Williams. The holding facility officer, however, after using a social security number provided by the defendant, determined approximately ten minutes later that the defendant’s real name was Corey Williams. Although the defendant asserts in his appellate brief that “Zeke” was a nickname, there was no evidence produced at trial to support that assertion or to give any explanation as to why he used a false first name, particularly when it is a twenty-first century truism that an accurate social security number or residence address will provide an accurate name through electronic means. Thus, all that can be concluded is that the defendant gave police a name different from his real one; in other words, the defendant provided the police with a false name.

The defendant’s providing a false name to police is verbal conduct that is equivalent to the defendant’s refusal to give identification to the police in Aloi, in that it hampered, or hindered, the ability of officers to perform their duties properly, quickly and efficiently. Just as the police in Aloi needed the defendant’s name to conduct an investigation, the police in the present case required the defendant’s real name to process his arrest. The fact that the police ultimately were able to ascertain the defendant’s true identity by using a correct social security number is of no consequence because it is unrelated to whether the police were noticeably hindered in processing the arrest.

The defendant gave a false first name twice. The second time was in the police station when he was being “booked” for the drug offenses. The court correctly charged the jury that whether the defendant intended to slow the progress of his arrest or to delay or impede the police in the arrest process was a question for it to resolve, given the statement made and the circumstances at the time. Intent to delay, obstruct or hinder is more likely to be present if the defendant is asked his name in a police station and responds falsely when he is present there in connection with his arrest and the investigation into his criminal behavior as opposed to being asked the same question elsewhere under other circumstances. See State v. Aloi, supra, 280 Conn. 845. For example, failure to provide a legal or correct name to a policeman by a person who is unaware of any possible investigation of a crime or of any suspicion of his possible involvement in a crime may not provide the requisite intent to violate § 53a-167a.

In this case, the jury reasonably could have inferred that the defendant intended to hinder the process or progress of his arrest, or perhaps even avoid his arrest altogether. In fact, it is difficult to conceive of any other explanation for the conduct, and, again, there was no evidence produced at trial that provided such an explanation. We recognize that the evidence for conviction was not overwhelming, but in reviewing a sufficiency of the evidence claim, we must construe the evidence in the light most favorable to sustaining the verdict. We conclude that the verdict reasonably was supported by the evidence. Accordingly, the defendant’s claim of insufficiency of evidence to prove interference with an officer fails.

The judgment is affirmed.

In this opinion the other judges concurred.

       The jury found the defendant not guilty of possession of marijuana in violation of General Statutes § 21a-279 (c). Because the defendant was not found guilty of this offense, we are not concerned with whether it was a lesser offense included within § 2 la-277 (a) or with any issue involving the defendant’s constitutional protection against double jeopardy. Cf. State v. Mullins, 288 Conn. 345, 378-79, 952 A.2d 784 (2008).

       The state concedes that the claims were preserved by the defendant’s motion for a judgment of acquittal made at the close of the state’s case.

       Fallow testified that when he subsequently directed the occupants to exit the car, the defendant had slid across the backseat to the driver’s side of the car and exited from the driver’s side. Thus, the officers’ differing observations as to where the defendant was sitting in the car is explained by the fact that the defendant had moved between the time Fallow first observed him and the time when Arrington observed him.

       The component parts of the sentence were nine years imprisonment and six years special parole for the conviction under § 21a-277 (a), and a consecutive one year term of imprisonment for the conviction under § 53a-167a.

       General Statutes § 21a-277 (a) provides: “Any person who manufactures, distributes, sells, prescribes, dispenses, compounds, transports with the intent to sell or dispense, possesses with the intent to sell or dispense, offers, gives or administers to another person any controlled substance which is a hallucinogenic substance other than marijuana, or a narcotic substance, except as authorized in this chapter, for a first offense, shall be imprisoned not more than fifteen years and may be fined not more than fifty thousand dollars or be both fined and imprisoned; and for a second offense shall be imprisoned not more than thirty years and may be fined not more than one hundred thousand dollars, or be both fined and imprisoned; and for each subsequent offense, shall be imprisoned not more than thirty years and may be fined not more than two hundred fifty thousand dollars, or be both fined and imprisoned.”

       Although the laboratory did not test all forty-three bags, the jury “was free to infer that the untested material contained the same contraband as the analyzed material from which it was drawn.” State v. Jennings, 19 Conn. App. 265, 270-71, 562 A.2d 545, cert. denied, 212 Conn. 815, 565 A,2d 537 (1989). “The direct evidence of the tested packets and the circumstantial evidence of the untested packs are equally probative.” Id., 270. The defendant does not dispute that cocaine and marijuana were found in the car in which he was a passenger.

       General Statutes § 53a-167a (a) provides in relevant part: “A person is guilty of interfering with an officer when such person obstructs, resists, hinders or endangers any peace officer ... in the performance of such peace officer’s . . . duties.”

       Despite the long history of construing the statute to mean that the defendant’s intended act need not be successful, we note the following dicta in State v. Aloi, supra, 280 Conn. 843-44: “[The] delay need not have been substantial to have constituted a hindrance for purposes of § 53a-167a,-rather, the delay need only have impeded the police to some appreciable degree.” No case of which we are aware defines “appreciable” as used by the court. The dictionary definition of “appreciable” is “capable of being noticed, estimated or measured; noticeable.” Webster’s New College Dictionary. A dictionary definition may be relied on in the event decisional law does not provide the answer. See State v. Aloi, supra, 834. Because of our Supreme Court’s view of the wide range of conduct prohibited by § 53a-167a “regardless of the extent to which such [failure to provide identification] actually may hinder or obstruct the police in a particular set of circumstances” to perform their duties; id., 837; and taking into account the necessity of the police to determine an identity of a defendant or perpetrator, we conclude “appreciable” as used by our Supreme Court is equivalent to “noticeable,” that is capable of being measured.

        Terry v. Ohio, 392 U.S. 1, 88 S. Ct. 1868, 20 L. Ed. 2d 889 (1968), involved the question of whether a search of a defendant that produced a weapon during an investigatory stop by a police officer was an unreasonable search and seizure prohibited by the fourth amendment and made applicable to the states by the fourteenth amendment. In the present case, there was no search of the defendant’s person at the police station or at the scene of the initial stop, but rather a request for the name of the defendant. The principles of Aloi, to which we must adhere and which govern our disposition of this case, concern the question of whether the police request for the defendant’s name was reasonably related to the circumstances that justified the investigatory stop in the first place, rather than whether a search or seizure was violative of the fourth amendment.

       We recognize that sometimes the giving of a legal first name might be more likely to obstruct or delay the police in the performance of their duties than the giving of a stage name or a name by which a person is popularly known. For example, identification of a defendant as Harry Crosby might cause more delay than an identification as Bing Crosby.

       The defendant does not claim that the charge to the jury was defective.

       Although § 53a-167a does not expressly require an intent to violate its provisions, the statute encompasses only conduct that is intentional. State v. Williams, supra, 205 Conn. 474.


source: Caselaw Access Project

author: McLACHIAN, J.

license: Public Domain

text:
    KARYN GIL v. JOHN A. GIL
    (AC 28760)
    McLachlan, Lavine and McDonald, Js.

      Argued May 29
    officially released October 14, 2008

      Barbara J. Ruhe, for the appellant (plaintiff).

      Louis Kiefer, for the appellee (defendant).
   Opinion

McLACHIAN, J.

The plaintiff, Karyn Gil, appeals from the judgment of the trial court awarding the defendant, John A. Gil, attorney’s fees in the amount of $30,659.54. The attorney’s fees were awarded to the defendant following an adjudication of contempt of the plaintiff, and for the work performed by the defendant’s attorney, Louis Kiefer, defending the plaintiffs appeal, in which she challenged the finding of contempt. The plaintiff argues that the court improperly (1) ordered attorney’s fees for the contempt finding that were greatly in excess of the defendant’s retainer agreement and (2) awarded excessive attorney’s fees for the work performed for the first appeal in the litigation between the parties. See Gil v. Gil, 94 Conn. App. 306, 310, 892 A.2d 318 (2006) (Gil I). We affirm the judgment of the trial court.

The plaintiff and the defendant were married in Avon on November 28,. 1992. They have one minor child from this marriage, bom on March 25,1995. On May 18,1999, the plaintiff filed a complaint seeking dissolution of her marriage to the defendant. On April 10, 2000, the court, Prestley, J., dissolved the parties’ marriage and incorporated into its judgment the provisions of a marital settlement agreement (settlement). In the settlement, both parties agreed that they would have joint legal custody of their child and that their child would reside with the plaintiff. The parties further stipulated that the defendant would have visitation with the child two days per week, to be arranged between the parties three months in advance.

In Gil I, this court stated: “On September 3, 2003, the defendant filed a motion for contempt, claiming that ‘from 2000 to present,’ the plaintiff had shortened the defendant’s hours of visitation and, on numerous occasions, denied visitation. On that same date, the court appointed attorney Campbell D. Barrett as guardian ad litem for the child. On October 30, 2003, the defendant filed a motion for attorney’s fees incurred in enforcing compliance with the court’s visitation orders. The hearings on the motions began on November 13, 2003. Additional hearing dates occurred on November 14,2003, and March 25 and 26, and April 5,2004. On April 5, 2004, the court, [Gruendel, J.], found the plaintiff in contempt and ordered that she pay the attorney’s fees for the defendant’s counsel. The plaintiff subsequently filed a motion to reargue, which was denied by the court.” Id. This court affirmed the judgment of the trial court. Id., 325.

The amount of the attorney’s fees for the finding of contempt against the plaintiff and the attorney’s fees related to the first appeal were referred to the court, Hon. Herbert Barall, judge trial referee, on December 15, 2005. The court held several hearings on June 8 and November 16, 2006, and February 8, 2007. On March 8, 2007, the court issued its memorandum of decision ordering the plaintiff to pay the attorney’s fees of the defendant and costs for the contempt proceedings in the amount of $19,552.10 and the fees and costs for the appeal in the amount of $11,107.44, totaling $30,659.54 in legal fees. On March 12, 2007, the plaintiff filed a motion to reargue, which the court denied on March 21, 2007. This appeal followed.

At the outset, we note that “ [t]he well settled standard of review in domestic relations cases is that this court will not disturb trial court orders unless the trial court has abused its legal discretion or its findings have no reasonable basis in the facts. ... As has often been explained, the foundation for this standard is that the trial court is in a clearly advantageous position to assess the personal factors significant to a domestic relations case . . . .” (Internal quotation marks omitted.) Simms v. Simms, 283 Conn. 494, 502, 927 A.2d 894 (2007).

Moreover, “[w]e review a trial court’s rulings as to attorney’s fees and the allowance of additional evidence for an abuse of discretion. See Mangiante v. Niemiec, 98 Conn. App. 567, 569-70, 910 A.2d 235 (2006); Wasson v. Wasson, 91 Conn. App. 149, 155, 881 A.2d 356, cert. denied, 276 Conn. 932, 890 A.2d 574 (2005). Under the abuse of discretion standard of review, [w]e will make every reasonable presumption in favor of upholding the trial court’s ruling, and only upset it for a manifest abuse of discretion. . . . [Thus, our] review of such rulings is limited to the questions of whether the trial court correctly applied the law and reasonably could have reached the conclusion that it did.” (Internal quotation marks omitted.) Landry v. Spitz, 102 Conn. App. 34, 59, 925 A.2d 334 (2007).

I

On appeal, the plaintiff asserts that the court improperly ordered attorney’s fees (1) for the contempt finding, which were greatly in excess of the rate agreed on by the defendant and his counsel as set forth in the retainer agreement and (2) for the work performed by Kiefer for Gil I. The plaintiff argues further that the retainer agreement entered into by the defendant and Kiefer violates the Rules of Professional Conduct.

The plaintiff asserts that a significant issue in this case is the retainer agreement entered into by the defendant and Kiefer. Under this fee arrangement, the defendant was obligated to pay his attorney only $1 per hour and could collect attorney’s fees, if any were recovered, on the basis of a finding of contempt or other “general principles . . . .” The plaintiff insists that this type of fee arrangement violates the Rules of Professional Conduct because it acts as a contingency fee agreement, and the Rules of Professional Conduct prohibit contingency agreements in domestic relations matters. In opposition, the defendant contends that the retainer agreement does not violate the Rules of Professional Conduct.

The plaintiff overstates the ethical prohibitions of the Rules of Professional Conduct because although the rules do not permit contingency agreements in dissolution actions, they do permit an agreement such as the one before us, in which the attorney does not have a pecuniary interest in the outcome of the dissolution action. Rule 1.5 (d) provides in relevant part: “A lawyer shall not enter into an arrangement for, charge, or collect: (1) Any fee in a domestic relations matter, the payment or amount of which is contingent upon the securing of a dissolution of marriage or civil union or upon the amount of alimony or support, or property settlement in lieu thereof . . . .” Rules of Professional Conduct 1.5 (d). Rule 1.8 (i) provides: “A lawyer shall not acquire a proprietary interest in the cause of action or subject matter of litigation the lawyer is conducting for a client, except that the lawyer may: (1) Acquire a hen granted by law to secure the lawyer’s fee or expenses; and (2) Contract with a client for a reasonable contingent fee in a civil case.” Rules of Professional Conduct 1.8 (i).

The defendant argues that rule 1.5 (d) is inapplicable on the basis of the commentary to that rule. The commentary provides in relevant part: “Subsection (d) prohibits a lawyer from charging a contingent fee in a domestic relations matter when payment is contingent upon the securing of a divorce or upon the amount of alimony or support or property settlement to be obtained. This provision does not preclude a contract for a contingent fee for legal representation in connection with the recovery of post-judgment balances due under support, alimony or other financial orders because such contracts do not implicate the same policy concerns.” Rules of Professional Conduct 1.5 (d), commentary. The main policy concern behind rule 1.5 (d) is that contingency agreements for a dissolution action would discourage lawyers from advocating for an amicable settlement because the lawyers would have a pecuniary interest in the outcome of the dissolution action. This policy concern is not relevant in the present case because the parties’ marriage already has been dissolved, and the result of the contempt proceeding is based on the court’s discretion. Judge Barall found that the plaintiff did not prove by clear and convincing evidence that the retainer agreement violated the Rules of Professional Conduct because the “fee in this case was contingent only on a judge ordering a reasonable fee in accordance with [General Statutes] §§ 46b-82 or 46b-87 but not for those matters specifically stated in rule 1.5 (d).” We agree with the court.

II

The plaintiff next claims that the court improperly awarded attorney’s fees to the defendant’s counsel for the contempt proceeding and for the work he performed for the plaintiffs first appeal.

The plaintiff asserts that the award of attorney’s fees for the contempt proceeding was improper because Kiefer submitted a bill in the amount of $19,000 to the court, calculated at his normal hourly rate of $250 per hour. On the basis of the fee arrangement between the defendant and his counsel, the plaintiff submits that Kiefer should recover the fees only at a rate of $1 per hour.

In support of her argument, the plaintiff maintains that an order of attorney’s fees under § 46b-87 can be made for a finding of contempt, and although there is no requirement that the fees are to be awarded with reference to the parties’ relative financial positions, the fees must be reasonable. In response, the defendant argues that the court properly awarded him attorney’s fees because the award of attorney’s fees in contempt proceedings is within the discretion of the court. The defendant maintains that § 46b-87 is designed to reimburse the winning side and to be punitive in nature, and, therefore, the court reached the correct result.

In the present case, the court rejected the plaintiffs claims that Kiefer should be limited to attorney’s fees on the basis of his rate of $1 per hour. The court found that the defendant had every right to seek “reasonable fees to recoup his resources through a judge’s decision, which may deter noncompliance with the law.” We agree that because Judge Gruendel awarded attorney’s fees for Kiefer’s services provided at the contempt proceeding and because a court has the discretion to award reasonable attorney’s fees to discourage future noncompliance by the plaintiff, Judge Barall did not abuse his discretion.

Our law for awarding attorney’s fees in contempt proceedings is clear. “General Statutes § 46b-87 provides that the court may award attorney’s fees to the prevailing party in a contempt proceeding. The award of attorney’s fees in contempt proceedings is within the discretion of the court.” Esposito v. Esposito, 71 Conn. App. 744, 748, 804 A.2d 846 (2002). “In making its determination, the court is allowed to rely on its familiarity with the complexity of the legal issues involved. Indeed, it is expected that the court will bring its experience and legal expertise to the determination of the reasonableness of attorney’s fees. . . . Moreover, because the award of attorney’s fees pursuant to § 46b-87 is punitive, rather than compensatory, the court properly may consider the defendant’s behavior as an additional factor in determining both the necessity of awarding attorney’s fees and the proper amount of any award.” (Citations omitted; emphasis added.) Id., 750. Therefore, on the basis of the punitive nature of an award of attorney’s fees in contempt proceedings, we cannot conclude that the court abused its discretion when it awarded the defendant attorney’s fees in the sum of $19,552.10 for the work Kiefer performed for the contempt proceeding.

The plaintiff next claims that the court improperly awarded the defendant attorney’s fees for the work performed defending the appeal in Gil I. The plaintiff acknowledges that the court must look to General Statutes § 46b-62 for guidance when it determines the award for attorney’s fees for an appeal. Section 46b-62 requires a court to examine factors outlined in § 46b-82. Additionally, the plaintiff argues that the court must also consider the parties’ relative financial circumstances. The plaintiff maintains that the defendant incurred little or no obligation to pay his counsel, that the defendant is employed and could afford to pay his counsel, that the plaintiff is permanently disabled and unable to work, and that the plaintiffs assets are not excessive in relation to the defendant’s assets. Therefore, the plaintiff submits that because the defendant is in a far better position to pay his legal fees, he should be required to pay his fees related to the first appeal.

The court awarded attorney’s fees for the first appeal, stating: “The court has examined the affidavits of both parties. . . . Neither party has substantial wherewithal.” The court went on to state: “A most recent case clarifies the issue that another factor can be considered other than the factors of § 46b-62, i.e., litigation misconduct. . . . Judge Gruendel found contempt for violation of court orders against the plaintiff and the egregious behavior continued even after the filing of the motion of contempt. Rather than fulfill her obligations, the plaintiff continued to cause additional expense to another person of limited means. He should receive his attorney’s appellate fees.” (Citation omitted.)

Our Supreme Court has held that litigation misconduct can be considered in determining an award of attorney’s fees under § 46b-62. In Ramin v. Ramin, 281 Conn. 324, 353, 915 A.2d 790 (2007), the court wrote: “[I]n Jewett [v. Jewett, 265 Conn. 669, 830 A.2d 193 (2003)], we implicitly acknowledged that a party’s litigation misconduct can form part of the basis of such an award of attorney’s fees.” Thus, the court did not abuse its discretion when it considered the litigation misconduct of the plaintiff in shaping its attorney’s fee award for Gil I. Moreover, the court did examine the factors enumerated in § 46b-82 and specifically took note of both parties’ financial conditions, acknowledging that both parties have limited means. On this basis, we cannot find that the court abused its discretion.

The judgment is affirmed.

In this opinion the other judges concurred.

      The retainer agreement, entered into by the defendant and attorney Kiefer, contained the following provisions: “Hourly rate: I bill on the basis of time spent devoted to your case. My hourly rate is $1.00. . . .
      “Work not covered: This retainer does not include any work in Appellate Courts or any other actions or proceeding or out-of-pocket disbursements. . . .
      “Recovery of attorney’s fees: In the event you recover attorney’s fees, whether based'on contempt or general principles, those fees shall be payable to Louis Kiefer and shall represent additional compensation.”

       Although Judge Gruendel ordered the plaintiff to pay attorney’s fees of the defendant, he did not determine an amount. The order dated April 5, 2004, stated: “The plaintiff, Ms. Economu [formerly known as] Mrs. Gil, is found in contempt of court and will pay attorney Louis Kiefer’s legal fees for the contempt action.”

       During the pendency of the plaintiffs appeal, the parties agreed to continue the matter concerning the attorney’s fees, for the finding of contempt, until after Gil I. Additionally, during the first appeal, the defendant filed a motion for attorney’s fees for the work performed for the defense of the appeal. In response, the plaintiff filed an objection to the motion for attorney’s fees, claiming that on the basis of the retainer agreement between the defendant and his counsel, the defendant is entitled to only $1 an hour.
      After this court affirmed Judge Gruendel’s finding of contempt, the parties participated in several hearings concerning the matter of attorney’s fees and other matters involved in the case. As the court, Hon. Herbert Barall, judge trial referee, wrote in its memorandum of decision: “On October 6, 2004, Judge Gruendel ordered the plaintiff to pay fees to [the] defendant’s counsel for his bringing an action related to the child’s school attendance for which the attorney for the defendant spent 5.8 hours of time. On January 25, 2005, an order was issued permitting the guardian ad litem to file a brief in the case and ordered all outstanding fees owed by [the plaintiff] to be paid within [thirty] days. On May 12,2005, after Judge Gruendel had become an Appellate Court judge, Judge Solomon ordered the plaintiff to pay the sum of $8783 to the guardian ad litem, attorney Campbell Barrett. On July 8,2005, attorney Barbara J. Ruhe, attorney for the plaintiff, filed a memorandum of law as to the issue of attorney’s fees for the defendant’s attorney, Louis Kiefer. On July 19, 2005, attorney Louis Kiefer filed a memorandum of law related to his fees for the contempt. On December 15, 2005, Judge Solomon granted counsel fees in the amount of $400 to attorney Kiefer with regard to Judge Gruendel’s order of October 6, 2004, despite the plaintiffs argument that Kiefer was only entitled to his $1 per hour rate or $5.80 for 5.8 hours of work.”

       The plaintiff refers to the statements of the court, Solomon, J., who was involved at an earlier stage of the litigation. Judge Solomon questioned the retainer agreement by stating: “[W]hen the only way you acquire a fee is through the contempt process, I think that presents really serious issues. . . . First of all, from the strict professional standpoint, you are cast in the position as an officer of the court, both to represent your client, but also to act as an officer of the court.” Judge Barall, however, found that this retainer agreement did not violate the Rules of Professional Conduct. We agree with Judge Barall.

       The court noted that pursuant to rule 1.6 of the Rules of Professional Conduct, attorneys are encouraged to offer their services for no fees or for reduced fees for persons of limited means. At oral argument and throughout the record, Kiefer acknowledged that the unique fee arrangement in this case was entered into for the benefit of the defendant, who is a person of limited means. Moreover, during the June 8, 2006 hearing before Judge Barall, Kiefer testified that he has not collected his $1 per hour attorney’s fees from the defendant.

       We note that the plaintiff did not object to the fact that court awarded the defendant attorney’s fees but objected to the amount awarded to the defendant.

       Furthermore, in awarding attorney’s fees for the work performed for the five day contempt proceeding, the court rebuffed the plaintiffs attempts to distinguish Benavides v. Benavides, 11 Conn. App. 150, 526 A.2d 536 (1987). In Benavides, this court reversed the trial court’s decision to reduce the plaintiffs attorney’s fees because the plaintiff was represented by a legal services organization and, therefore, did not have legal fees. This court held that although the plaintiff was not required to pay for legal services, there is a public policy to relieve the taxpayers. This court stated: “It would be unreasonable to allow a losing party in a family relations matter to reap the benefits of free representation to the other party. A party should not be encouraged to litigate under the assumption that no counsel fee will be awarded in favor of the indigent party represented by public legal services . . . .” (Internal quotation marks omitted.) Id., 154.


author: FLYNN, C. J.

text:
    STATE OF CONNECTICUT v. TYREE D. PRESTON
    (AC 24295)
    Flynn, C. J., and Harper and Robinson, Js.
    Argued September 9
    officially released October 14, 2008

      David B. Rozwaski, special public defender, for the appellant (defendant).

      Michele C. Lukban, senior assistant state’s attorney, with whom, on the brief, were Michael Dearington, state’s attorney, Michael Pepper, senior assistant state’s attorney, and Michael Criscuolo, special deputy assistant state’s attorney, for the appellee (state).
   Opinion

FLYNN, C. J.

This matter is now before us on remand from our Supreme Court. The defendant, Tyree D. Preston, appealed from the judgments of the trial court revoking his probation and imposing a two year sentence of incarceration. The defendant had been charged in three separate informations with violating the terms of his probation by committing certain criminal offenses. Following a hearing, the court found the defendant to be in violation of probation. The court revoked the defendant’s probation and sentenced him to serve two years in prison. The defendant appealed, claiming that the court (1) improperly found him in violation of probation and (2) abused its discretion in revoking his probation. On appeal, this court dismissed the defendant’s first claim as moot, concluding that any live controversy concerning the defendant’s conduct had been eliminated when he later pleaded guilty to the underlying offenses. See State v. Preston, 93 Conn. App. 527, 530, 889 A.2d 845 (2006). This court also dismissed the defendant’s second claim as moot for lack of a live controversy because the defendant also was serving a six year sentence, concurrent to the two year sentence that he had received for the violations of probation. Id., 534. Accordingly, this court concluded that the defendant would not suffer prejudicial collateral consequences as a result of the probation revocation and sentence. Id. Following the Appellate Court decision, the defendant and the state each requested and were granted certification to appeal to our Supreme Court. See State v. Preston, 286 Conn. 367, 944 A.2d 276 (2008). Concluding that there could be prejudicial collateral consequences, our Supreme Court reversed the judgment of this court only as to the defendant’s second claim, i.e., that the trial court acted in abuse of its discretion when revoking the defendant’s probation, and remanded the case for our consideration of that claim. Id., 384. After considering the merits of the defendant’s claim on remand, we affirm the judgments of the trial court.

The relevant facts and procedural history are set forth both in this court’s previous opinion; State v. Preston, supra, 93 Conn. App. 527; and in our Supreme Court’s opinion. State v. Preston, supra, 286 Conn. 367. When necessary to address the defendant’s claim properly, we will set forth additional facts.

On remand, we are required to assess whether the trial court abused its discretion in revoking the defendant’s probation. The defendant argues that “[o]ther than [his] arrest, [he] did not have any significant violations of probation . . . [and that] the court erred in sentencing [him] to a term of [two] years incarceration without exploring other alternatives to incarceration, such as whether . . . residential drug treatment would have been appropriate or [the appropriateness of] additional conditions of probation.” We are not persuaded.

“A revocation of probation hearing has two distinct components and two purposes. A factual determination by a trial court as to whether a probationer has violated a condition of probation must first be made. If a violation is found, a court must next determine whether probation should be revoked because the beneficial aspects of probation are no longer being served. . . . Since there are two distinct components of the revocation hearing, our standard of review differs depending on which part of the hearing we are reviewing. . . .

“A trial court initially makes a factual determination of whether a condition of probation has been violated. In making its factual determination, the trial court is entitled to draw reasonable and logical inferences from the evidence. . . . Our review is limited to whether such a finding was clearly erroneous. . . .

“[However] [t]he standard of review of the trial court’s decision at the sentencing phase of the revocation of probation hearing is whether the trial court exercised its discretion properly by reinstating the original sentence and ordering incarceration. ... In determining whether there has been an abuse of discretion, every reasonable presumption should be given in favor of the correctness of the court’s ruling. . . . Reversal is required only where an abuse of discretion is manifest or where injustice appears to have been done.” (Internal quotation marks omitted.) State v. Faraday, 268 Conn. 174, 185-86, 842 A.2d 567 (2004). “In determining whether to revoke probation, the trial court [must] consider the beneficial purposes of probation, namely rehabilitation of the offender .... The important interests in the probationer’s liberty and rehabilitation must be balanced, however, against the need to protect the public.” (Internal quotation marks omitted.) State v. Workman, 107 Conn. App. 158, 163, 944 A.2d 432 (2008).

Here, we concern ourselves only with the second component of the revocation of probation hearing, namely, whether the court abused its discretion at the sentencing phase by revoking the defendant’s probation and sentencing him to serve two years in prison.

At the time the defendant was arrested and charged with assault in the first degree in violation of General Statutes § 53a-59, unlawful discharge of a firearm in violation of General Statutes § 53-203, illegal use of a facsimile firearm in violation of General Statutes § 53-206c (c) and carrying a pistol without a permit in violation of General Statutes § 29-35 (a), he was on three separate probations for earlier crimes he had committed. As a result of this new arrest, the defendant was charged with violation of probation in each of the three earlier cases.

At the violation of probation hearing, the court heard testimony from the victim, Tracy Rumley; a police officer, Peter McKoy; chief probation officer Steven Bettencourt of the court support services division; and others. The victim testified that he knew the defendant and that the defendant is his first cousin. He also testified as to the events that led to the shooting and that he had seen a “muzzle flash” from the defendant’s hand before being fired at. McKoy testified that the victim told him that the defendant and two other individuals had fired shots at him. McKoy further testified that he observed five bullet holes in the victim’s car and that, upon returning to the area of the shooting, he found nine shell casings, seven .40 caliber casings and two nine millimeter casings. Bettencourt testified that, in his opinion, the defendant was not a good candidate for continued probation because of prior violations of probation stemming from his failure to comply with counseling, his failure to keep appointments with the probation office and the counseling agencies and his eventual discharge from two different counseling programs.

After hearing the evidence, the court specifically found the testimony of the victim and McKoy to be credible, and it found the defendant to be in violation of probation. The court noted that the defendant previously had been on probation and had violated that probation, and that the defendant’s conduct had escalated to the point that he had shot at someone. On the basis of these findings, the court concluded that the defendant was not a good candidate for further probation. The court revoked the defendant’s probation and ordered him to serve a total effective sentence of two years incarceration.

Our review of the record shows that the court properly considered whether the beneficial aspects of probation were being served before revoking the defendant’s probation. On the basis of the foregoing, and in light of the fact that probation “attempts to balance a defendant’s rehabilitation with the public’s safety”; State v. Faraday, supra, 268 Conn. 207; we conclude that the trial court properly exercised its discretion by revoking the defendant’s probation and reinstating portions of the unexecuted original sentences.

The judgments are affirmed.

In this opinion the other judges concurred.


author: PER CURIAM.

text:
    STATE OF CONNECTICUT v. RICHARD H. BUEHLER
    (AC 28911)
    Bishop, Beach and Mihalakos, Js.
    Argued September 8
    officially released October 14, 2008

      Roy S. Ward, for the appellant (defendant).

      Denise B. Smoker, senior assistant state’s attorney, with whom, on the brief, were David I. Cohen, state’s attorney, and Nancy Dolinsky, senior assistant state’s attorney, for the appellee (state).
   Opinion

PER CURIAM.

The defendant, Richard H. Buehler, appeals from the judgment of the trial court, terminating his participation in the accelerated pretrial rehabilitation program on the basis of his arrest on subsequent charges. We reverse the judgment of the trial court.

On April 14, 2006, the defendant was arrested and charged with risk of injury to a child in violation of General Statutes § 53-21 and disorderly conduct in violation of General Statutes § 53a-182. The defendant applied for admission to the accelerated pretrial rehabilitation program pursuant to General Statutes § 54-56e, and the court granted his application on June 29, 2006. He was placed on pretrial probation for a period of one year with special conditions, including that he refrain from any threats or violence against his wife.

On December 26, 2006, the defendant was arrested and charged with violating a protective order in violation of General Statutes § 53a-223 and breach of the peace in the second degree in violation of General Statutes § 53a-181. The state consequently sought to revoke the defendant’s accelerated rehabilitation because he had violated the condition that he refrain from any threats or violence against his wife. On May 31, 2007, the court terminated the defendant’s participation in the accelerated rehabilitation program and returned the case to the trial docket.

In seeking a termination of the defendant’s accelerated rehabilitation status, the state made a representation to the court that the defendant had been arrested for threatening and assaulting his wife. Both parties agree, as does this court, that the mere arrest of the defendant, without more, was not a sufficient ground to terminate the defendant’s accelerated rehabilitation. See State v. Fanning, 98 Conn. App. 111, 908 A.2d 573 (2006), cert. denied, 281 Conn. 904, 916 A.2d 46 (2007).

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


text:
    VAUGHN WALKER v. COMMISSIONER OF CORRECTION
    (AC 28094)
    Flynn, C. J., and DiPentima and Robinson, Js.
    Submitted on briefs September 12
    officially released October 14, 2008

      Anthony E. Parent, special public defender, filed a brief for the appellant (petitioner).

      Gail P. Hardy, state’s attorney, Timothy J. Sugrue, senior assistant state’s attorney, and Herbert E. Carlson, Jr., supervisory assistant state’s attorney, filed a brief for the appellee (respondent).
   Opinion

PER CURIAM.

The petitioner, Vaughn Walker, appeals following the denial of his petition for certification to appeal from the judgment of the habeas court dismissing his petition for a writ of habeas corpus. On appeal, the petitioner claims that the court abused its discretion when it denied his petition for certification to appeal. We disagree and, therefore, dismiss the appeal.

The petitioner was charged with crimes in three separate cases. In the first case, the petitioner was charged with two counts of felony murder and one count of conspiracy to commit burglary in the first degree. In the second case, the petitioner was charged with one count of burglary in the second degree and one count of conspiracy to commit larceny of a motor vehicle in the first degree. In the third case, the petitioner was charged with one count of burglary in the second degree and one count of conspiracy to commit burglary in the second degree. The first case was referred as a capital matter, and a death-qualified jury was selected. The trial commenced on October 2,2000. Prior to the conclusion of the state’s case-in-chief, the state and the petitioner reached a plea agreement.

Under the terms of the agreement, the petitioner agreed to plead guilty to all of the charges, including those in the noncapital cases. In return, the state recommended that the petitioner be sentenced in the first case to two forty year terms of imprisonment on the felony murder counts, to run consecutively. The state also recommended ten year sentences for each of the remaining cases, to run concurrently with the sentences for the felony murder counts. The petitioner received a total effective sentence, therefore, of eighty years.

The petitioner subsequently filed a petition for a writ of habeas corpus, alleging that his guilty pleas had not been knowing, voluntary and intelligent because he was not informed that upon pleading guilty, he would surrender his right to appeal. The habeas court found that the trial court’s canvass of the petitioner was appropriately thorough, though it did not mention the petitioner’s forfeiture of appellate rights. The habeas court noted, however, that during the trial court’s canvass, the prosecutor stated for the record that as a consequence of the petitioner’s plea, he would give up his rights to appeal. Further, the habeas court found that neither the petitioner nor his attorneys objected upon the prosecutor’s recitation of this consequence. Concluding that the petitioner’s guilty pleas were knowing, voluntary and intelligent, the habeas court dismissed the petition and, subsequently, denied the petitioner certification to appeal.

“A petitioner whose petition for certification to appeal has been denied can seek appellate review of the denial by satisfying the two-pronged test enunciated in Simms v. Warden, 229 Conn. 178, 640 A.2d 601 (1994), and adopted in Simms v. Warden, 230 Conn. 608, 612, 646 A.2d 126 (1994), which requires the petitioner to show that the denial constituted an abuse of discretion and then prove that the decision 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. ... In a habeas appeal, this court cannot disturb the underlying facts found by the habeas court unless they are clearly erroneous . . . .” (Citation omitted; internal quotation marks omitted.) Faraday v. Commissioner of Correction, 107 Conn. App. 769, 772-73, 946 A.2d 891 (2008).

We have reviewed the record and briefs thoroughly and conclude that the petitioner has failed to demonstrate that the issues raised are debatable among jurists of reason, that a court could resolve the issues in a different manner or that the questions raised merit encouragement to proceed further. The petitioner has not demonstrated that the habeas court abused its discretion in denying his petition for certification to appeal.

The appeal is dismissed.


author: HARPER, J.

text:
    LISA M. WILDERMAN ET AL. v. GREGORY POWERS
    (AC 28962)
    Bishop, Harper and Hennessy, Js.

      Argued April 23
    officially released October 21, 2008

      Kenneth J. McDonnell, for the appellant (defendant, third party plaintiff).

      Frank H. Santoro, with whom, were Laura Wattman, and, on the brief, Lawrence Adler, for the appellee (third party defendant).
   Opinion

HARPER, J.

The defendant and third party plaintiff, Gregory Powers, appeals, challenging the summary judgment rendered by the trial court in favor of the third party defendant, Cambridge Mutual Fire Insurance Company. The third party plaintiff claims that the court improperly (1) considered evidence that had not been authenticated and would not have been admissible at trial and (2) concluded that no genuine issue of material fact existed as to whether the injuries alleged by the plaintiffs, Lisa M. Wilderman and Scott K. Wilderman, were caused by criminal acts committed by the third party plaintiff. We affirm the judgment of the trial court.

The following facts and procedural history are relevant to the issues raised in the third party plaintiffs appeal. The plaintiffs brought a three count, second amended complaint, dated April 29, 2005, against the third party plaintiff. Count one, entitled “Negligent Infliction of Emotional Distress,” and count two, entitled “Intentional Infliction of Emotional Stress,” asserted causes of action by Lisa Wilderman. Count three, entitled “Loss of Consortium,” asserted a cause of action by Scott Wilderman.

Count one set forth the following factual allegations. At times relevant, the plaintiffs, who are husband and wife, lived next door to the third party plaintiff and his wife. Prior to August 5, 2004, the plaintiffs and the third party plaintiff, along with his wife, carried on “a friendly and neighborly relationship” that included “eating meals together, spending time together socially [and] assisting each other in the care and maintenance of their properties . . . .” On the evening of August 5, 2004, the third party plaintiff entered the plaintiffs’ property, approached a bathroom window and attempted to photograph Lisa Wilderman while she was partially unclothed. Lisa Wilderman was startled upon detecting the presence of someone outside the bathroom window with a camera. She notified the police. That evening, the police arrested the third party plaintiff, while in possession of a camera, in the wooded area across from the plaintiffs’ residence. The police subsequently executed a search warrant at the residence of the third party plaintiff. This search yielded photographs, videotapes, computer equipment and a telescope that had been focused on the plaintiffs’ residence. Lisa Wilderman is depicted in photographs and videotapes seized by the police.

Count one further alleged: “As a result of the events of the evening of August 5, 2004, as well as a result of learning the extent and nature of the [third party plaintiffs] surveillance activities of her, [Lisa Wilderman] has suffered severe emotional shock, distress, depression and anxiety to her loss and damage. . . . The injuries and losses of [Lisa Wilderman] were caused by the actions and conduct of the [third party plaintiff] in conducting surveillance of [her] both on the evening of August 5,2004 as well as for sometime prior thereto.” Lisa Wilderman further alleged that the third party plaintiff “knew or should have known that his conduct . . . involved an unreasonable risk of causing emotional distress and harm [to her] which might result in illness or bodily injury.” Lisa Wilderman further alleged that as a result of the conduct of the third party plaintiff, she suffered emotional distress, anxiety, fear and depression and that she expended money for medical care and treatment, including counseling and therapy. She further alleged that the plaintiffs “have been forced to sell their home for a reduced price in order to facilitate their ability to move out of the neighborhood, to their further loss and harm.”

In count two, Lisa Wilderman alleged in relevant part: “The [third party plaintiff] either intended to inflict the emotional distress upon [her], or knew or should have known that the emotional distress and suffering incurred by [her] was the likely result of his conduct. . . . The conduct of the [third party plaintiff] in both maintaining a facade of neighborly friendship with [the plaintiffs], while at the same time engaging in voyeuristic surveillance of [Lisa Wilderman] and photographing and video taping her, was extreme and outrageous.” In count three, Scott Wilderman alleged that as a result of the conduct of the third party plaintiff, he has suffered the loss of consortium of his spouse.

The third party plaintiff admitted that he approached the plaintiffs’ bathroom window on August, 5, 2004, attempted to photograph Lisa Wilderman and subsequently was arrested with a camera in his possession. He also admitted that police seized photographs, videotapes, computer equipment and a telescope from his residence. The third party plaintiff denied the allegations that he negligently or intentionally caused Lisa Wilderman to suffer emotional distress or related harm and denied that he caused the plaintiffs to incur any damages.

Thereafter, the third party plaintiff moved to cite in Cambridge Mutual Fire Insurance Company as a third party defendant in the action. The court granted the motion. The third party plaintiff filed a complaint against the third party defendant, alleging that at times relevant, he was an insured under an insurance policy issued by the third party defendant. The third party plaintiff claimed that the third party defendant “agreed to pay on behalf of its insured all sums which an insured shall become legally obligated to pay as damages because of any personal injury caused by an insured, not exceeding the limits specified in the policy, and to defend any suit alleging such personal injury and seeking damages which are payable under the terms of the policy.” The complaint further alleged that the policy “defines personal injuiy to include invasion of privacy.”

Additionally, the third party plaintiff alleged that the plaintiffs had commenced an action against him, alleging that he had violated their “rights to privacy” and had “causfed] emotional distress and other damages.” He alleged that he duly notified the third party defendant of the incident and the action brought by the plaintiffs but that contrary to his rights under the policy, the third party defendant had refused to defend the action, to reimburse him for counsel fees, to satisfy any judgment that may be rendered against him or to assume any responsibility for the action. The third party plaintiff sought damages related to this alleged violation of his rights under the policy.

The third party defendant admitted that it had issued an insurance policy to the third party plaintiff and that an endorsement to the policy defined personal injury to include injury arising from invasion of privacy. The third party defendant also admitted that it had refused to defend the third party plaintiff, to reimburse him for costs necessary to defend the action or to satisfy any judgment that may be rendered against him. The third party defendant raised two exclusions to coverage, set forth in the policy, as special defenses. In the first special defense, the third party defendant alleged that the third party plaintiff is not entitled to coverage because his conduct fell “within the exclusion to coverage for bodily injury or property damage which is expected or intended by the insured.” In the second special defense, the third party defendant claimed that the third party plaintiff was not entitled to coverage because his conduct fell “within the exclusion to coverage for injury caused by a violation of a penal law or ordinance committed by or with the knowledge or consent of an insured.” The third party plaintiff denied the allegations raised by these special defenses.

On December 1, 2006, the third party plaintiff and the third party defendant filed motions for summary judgment. In support of his motion, the third party plaintiff submitted his affidavit concerning the events in question as well as the insurance policy at issue. In support of its motion, the third party defendant submitted the second amended complaint filed by the plaintiffs, the insurance policy at issue, the arrest report concerning the third party plaintiff, a transcript of proceedings in the Superior Court at the time of the third party plaintiffs sentencing for disorderly conduct on July 7, 2005, and excerpts from deposition testimony of the third party plaintiff.

On February 5, 2007, the court held a hearing on the summary judgment motions. By memorandum of decision, the court granted the third party defendant’s motion for summary judgment. The court noted that the third party plaintiff claimed that coverage existed by virtue of an endorsement to the insurance policy issued by the third party defendant. The court concluded that coverage did not exist for three reasons. First, the court concluded that no genuine issue of material fact existed as to the fact that the third party plaintiff engaged in intentional, rather than negligent, conduct and that the injuries claimed were the natural result of his conduct. The court concluded that the policy exclusion for injury that is expected or intended by the insured applied. Second, the court concluded that although the endorsement extends coverage to bodily injury, which the endorsement defines to encompass invasion of privacy, the plaintiffs’ complaint did not allege invasion of privacy but other torts. Accordingly, the court concluded, as a matter of law, that the plaintiffs’ complaint did not give rise to any of the third party defendant’s duties under the policy. Finally, the court concluded that the exception in the policy for injuries caused by violation of penal laws or ordinances was applicable. In this regard, the court concluded that there was no genuine issue of material fact as to whether the third party plaintiff engaged in the conduct alleged in the complaint and whether such conduct was criminal in nature. This appeal followed. Additional facts will be set forth as relevant.

Before turning to the claims raised by the third party plaintiff, we set forth the principles that govern our review. “Practice Book § 17-49 provides that summary 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. In deciding a motion for summary judgment, the trial court must view the evidence in the light most favorable to the nonmoving party. . . . The party moving for summary judgment has the burden of showing the absence of any genuine issue of material fact and that the party is, therefore, entitled to judgment as a matter of law. ... On appeal, we must determine whether the legal conclusions reached by the trial court are legally and logically correct and whether they find support in the facts set out in the memorandum of decision of the trial court. . . . Our review of the trial court’s decision to grant [a] defendant’s motion for summary judgment is plenary.” (Internal quotation marks omitted.) Rivers v. New Britain, 288 Conn. 1, 10, 950 A.2d 1247 (2008).

I

First, the third party plaintiff claims that the court improperly relied on documents submitted by the third party defendant in support of its motion for summary judgment. We decline to review this unpreserved claim.

As set forth previously, among the documents submitted to the court by the third party defendant were excerpts from deposition testimony of the third party plaintiff, a transcript from a sentencing proceeding concerning the third party plaintiff and an arrest report generated by the police following the third party plaintiffs arrest. The third party plaintiff claims that this evidence was not authenticated and would not have been admissible at trial. The third party plaintiff claims that for these reasons, the court improperly relied on the evidence in rendering summary judgment. The third party plaintiff argues: “[The court] considered statements in police reports that contained inadmissible hearsay, statements in transcripts that were not necessarily made under oath and statements in depositions that may not have been admissible without a proper foundation. Some of the statements were ambiguous and subject to more than one reasonable interpretation.” The third party plaintiff deems these documents to be “unverified and ambiguous” and argues that as a result of the court’s reliance on them, the court considered criminal charges for which he was not convicted. The third party plaintiff claims that the court relied on these documents in concluding that he intended to harm Lisa Wilderman, that all of the acts he committed were criminal in nature and that he caused the injuries claimed.

The record reflects that during the hearing on the motions for summary judgment, the attorney representing the third party plaintiff stated: “First, I would point out that I and my client filed an affidavit in support of our motion for summary judgment. There’s a lot of evidence submitted on behalf of [the third party defendant] but no affidavits. There are depositions. I’m not disputing that the transcripts are there, but there is law that says that evidence needs to come forward in the form of an affidavit. A copy of the police report, for instance, is simply just attached, and I would submit, Your Honor, that that’s inappropriate for a motion for summary judgment.” The court did not address this objection, and our review of the transcript from the hearing on the summary judgment motions as well as the third party plaintiffs filings does not reveal any additional objections relevant to the present claim.

The claim raised on appeal, which is whether the documentary evidence submitted by the third party defendant should be considered, is evidentiary in nature. See Barlow v. Palmer, 96 Conn. App. 88, 91, 898 A.2d 835 (2006) (applying abuse of discretion standard of review to claim that court improperly excluded documentary evidence submitted in support of motion for summary judgment). It is well settled that this court will not entertain claims of evidentiary error that were not distinctly raised before the trial court. Practice Book § 60-5 provides in relevant part: “The [reviewing] court shall not be bound to consider a claim unless it was distinctly raised at the trial or arose subsequent to the trial. The court may in the interests of justice notice plain error not brought to the attention of the trial court. . . .” “[T]he standard for the preservation of a claim alleging an improper evidentiary ruling at trial is well settled. This court is not bound to consider claims of law not made at the trial. ... In order to preserve an evidentiary ruling for review, trial counsel must object properly. ... In objecting to evidence, counsel must properly articulate the basis of the objection so as to apprise the trial court of the precise nature of the objection and its real purpose, in order to form an adequate basis for a reviewable ruling. . . . Once counsel states the authority and ground of [the] objection, any appeal will be limited to the ground asserted.” (Internal quotation marks omitted.) State v. Simpson, 286 Conn. 634, 645, 945 A.2d 449 (2008).

Our review of the record reveals that at the summary judgment hearing, the third party plaintiff did not object to the admissibility of the documentary evidence submitted by the third party defendant. The objection of the third party plaintiff, set forth previously, did not encompass a claim that the documentary evidence was inadmissible for the reasons now claimed on appeal. Rather, the third party plaintiffs objection was limited to the ground that the third party defendant did not submit an affidavit in support of its motion. We conclude that the objection raised did not alert the court to the different claim of error raised on appeal. The third party plaintiff has not argued that he is entitled to any extraordinary means of review of this unpreserved claim, and we decline to afford it review.

II

The third party plaintiff also claims that the court improperly concluded that no genuine issue of material fact existed as to whether the injuries alleged by the plaintiffs were caused by criminal acts he committed. We disagree.

As set forth previously, the plaintiffs alleged that the third party plaintiff committed a variety of voyeuristic acts. The plaintiffs alleged that on August 5, 2004, the third party plaintiff approached the bathroom window and “either did photograph or attempted to photograph [Lisa Wilderman] who was [partially undressed] in said bathroom.” The plaintiffs alleged that in executing a search warrant following the arrest of the third party plaintiff, the police seized from the residence of the third party plaintiff “video tapes, photographs, computer equipment and a telescope . . . .” The plaintiffs further alleged that Lisa Wilderman was depicted in these photographs and videotapes and that the telescope had been focused on her residence. The plaintiffs alleged that “[a]s a result of the events of the evening of August 5, 2004, as well as a result of learning the extent and nature of the [third party plaintiffs] surveillance activities of her,” the plaintiffs had suffered the damages claimed.

The police report submitted by the third party defendant reflects that the third party plaintiff was arrested for several crimes, including simple trespass, disorderly conduct, voyeurism and stalking in the third degree. The transcript of the sentencing proceeding submitted by the third party defendant reflects that on July 7, 2005, the third party plaintiff entered a plea of guilty to a charge of disorderly conduct. At the proceeding, Scott Wilderman addressed the court concerning the third party plaintiffs criminal conduct. Scott Wilderman read a statement prepared by Lisa Wilderman, who described the third party plaintiffs “long-term pattern of violating [her] privacy.” Scott Wilderman emphasized that the third party plaintiff had “been stalking and videotaping [his] wife for an indeterminate period of time.” Before imposing sentence, in accordance with a plea agreement, the court stated that it was concerned by the fact that the third party plaintiffs conduct could not be described as an “isolated incident” but as a pattern of surveillance. Exercising his right to allocution, the third party plaintiff stated that he was “ashamed and embarrassed [for his] actions.” The court then sentenced the third party plaintiff to a period of incarceration of ninety days, execution suspended, and a period of eighteen months of probation with special conditions, including the payment of restitution to the plaintiffs.

The third party defendant also submitted excerpts from deposition testimony of the third party plaintiff. During his examination by the plaintiffs’ attorney, the third party plaintiff discussed his guilty plea in the criminal proceeding. The following relevant colloquy occurred:

“Q. You [pleaded] guilty to disorderly conduct?
“A. Yes.
“Q. What was your understanding of disorderly conduct?
“A. My understanding is that I was on their property without their permission.
“Q. Did it include the photographing activities?
“A. I believe that was included in their terms.
“Q. Do you believe that the term disorderly conduct includes the photographing activities?
“A. [T]hat’s what it included ... all those activities that I was arrested for.
“Q. Okay, so everything that you did, the lingerie, the photographs gardening, the photographs with her Mend, the Monday prior to the actual incident—
“A. Yes.
“Q. —all of those events in your mind fall within the definition of disorderly conduct, which is what you [pleaded] guilty to?
“A. Which I [pleaded] guilty to, yes.
“Q. And you believe you were guilty of those acts?
“A. Yes.”

The third party plaintiff also testified that his conduct • was inappropriate and that it was of his free will.

Plainly, these statements by the third party plaintiff were an admission that he was criminally liable for all of the crimes for which he was arrested, not merely the disorderly conduct charge. The third party plaintiffs statements were also an admission that all of his voyeuristic conduct, the factual gravamen of the plaintiffs’ complaint, was criminal in nature. The third party plaintiff testified that this conduct, in which he freely engaged, included surveillance and photographing activities of Lisa Wilderman prior to August 5, 2004. The third party defendant properly relied on the statements of the third party plaintiff, a party opponent, to establish the factual predicate for its special defense that the conduct fell within an exception to coverage. “Although the party seeking summary judgment has the burden of showing the nonexistence of any material fact ... a party opposing summary judgment must substantiate its adverse claim by showing that there is a genuine issue of material fact, together with the evidence disclosing the existence of such an issue.” (Internal quotation marks omitted.) Sunset Mortgage v. Agolio, 109 Conn. App. 198, 202, 952 A.2d 65 (2008). The third party defendant presented evidence that the conduct at issue was criminal in nature. The third party plaintiff did not submit any relevant evidence to refute the existence of this material fact.

On the basis of this evidence, we conclude, as did the trial court, that no genuine issue of material fact existed as to whether the conduct of the third party plaintiff, as alleged in the complaint, was criminal in nature. This conclusion is dispositive of the issue of the liability of the third party defendant regardless of whether the plaintiffs could demonstrate that such conduct caused them any degree of harm for which damages might be awarded. The third party plaintiff asserts that the third party defendant’s contractual duty to defend and indemnify arose from an endorsement to the homeowner’s policy. Specifically, the third party plaintiff claims that the plaintiffs’ injuries constitute “personal injury” as defined by the endorsement. That endorsement, however, provides in relevant part: “Personal injury insurance does not apply to . . . injury caused by a violation of a penal law or ordinance committed by or with the knowledge or consent of an insured . . . .’’On the basis of the admissions of the third party plaintiff, we conclude that the third party defendant proved as a matter of law that this policy exclusion applied. Accordingly, we conclude that the court properly rendered judgment in favor of the third party defendant.

The judgment is affirmed.

In this opinion the other judges concurred.

       The third party plaintiff also claims that the court, in rendering summary judgment, improperly concluded that a material issue of fact as to whether he intended to harm Lisa Wilderman did not exist and that the complaint filed by the plaintiffs did not allege invasion of privacy. Because we conclude that the court properly concluded that the penal exclusion to coverage applied, we need not address these additional claims.

       After the court rendered summary judgment as to the third party complaint, the plaintiffs and the third party plaintiff filed a stipulation for judgment. The court rendered judgment in accordance with the parties’ stipulation. Pursuant to the stipulation, the plaintiffs withdrew count two of their complaint, sounding in intentional infliction of emotional distress, and count three of their complaint, setting forth a loss of consortium claim. With regard to the remaining count, the court awarded Lisa Wilderman $140,000 in damages. The third party plaintiff agreed to make payment to the plaintiffs in the amount of $7500, the parties stipulating that the third party plaintiff already had made an additional payment to the plaintiffs in the amount of $2763.08. The third party plaintiff assigned to the plaintiffs his rights against the third party defendant. The third party plaintiff agreed to pursue his appellate rights against the third party defendant, and the plaintiffs agreed to pursue collection of the unpaid portion of the judgment against the third party defendant.

       After the court rendered summary judgment in favor of the third party defendant, the third party plaintiff timely filed a notice of his intent to appeal from the court’s ruling. See Practice Book § 61-5.