text:
    STATE OF CONNECTICUT v. ANDRE CAMPBELL
    (AC 29794)
    Gruendel, Lavine and Peters, Js.

      Argued March 11
    officially released August 11, 2009

      Lisa J. Steele, special public defender, for the appellant (defendant).

      Adam E. Mattei, special deputy assistant state’s attorney, with whom, on the brief, were Jonathan C. Benedict, state’s attorney, and Joseph T. Corradino, senior assistant state’s attorney, for the appellee (state).
   Opinion

LAVINE, J.

The defendant, Andre Campbell, appeals from the judgment of conviction, rendered after a jury trial, of carrying a dangerous weapon in violation of General Statutes § 53-206 (a). On appeal, the defendant claims that the trial court abused its discretion by improperly rejecting his request to instruct the jury that it might find that his college dormitory was his residence or place of abode. The defendant also claims that the court wrongfully usurped the jury’s fact-finding function by deciding that the common hallway in the college dormitory was not part of the defendant’s residence or place of abode. We affirm the judgment of the trial court.

The jury reasonably could have found the following relevant facts. On the evening of January 31, 2006, the defendant was a freshman at the University of Bridgeport. He lived on the sixth floor of Bodine Hall. In response to several violent incidents on campus, the defendant regularly carried a switchblade knife.

The defendant went to Kyle Boucher’s room, where several friends were “hanging out.” The defendant made a joke at Boucher’s expense, and Boucher, angered by the comment, asked the defendant not to be disrespectful of him and to leave his room. The defendant did not think Boucher was serious and did not leave, but when Boucher asked him again, the defendant gathered his possessions and began to exit.

As the defendant was leaving the room, Boucher pushed him into the hallway. Boucher then threw a pretend punch at the defendant, and the defendant, concerned with Boucher’s sudden change in demeanor, responded by drawing his switchblade knife. The two individuals argued, and a physical altercation ensued in the hallway. During the fight, the defendant stabbed Boucher four times. Eventually, other students entered the hallway and broke up the fight. The defendant was visibly upset after the fight and attempted to get help for Boucher. When the police arrived, the defendant cooperated with them, gave them his knife and later gave a statement of the events that took place.

The defendant subsequently was charged with assault in the first degree in violation of General Statutes § 53a-59 (a) (1) and carrying a dangerous weapon in violation of § 53-206 (a). Following a,jury trial, the defendant was found not guilty of assault in the first degree and the lesser included offenses. The defendant was found guilty of carrying a dangerous weapon and was sentenced to three years imprisonment, execution suspended, and five years of probation with special conditions. This appeal followed. Additional facts will be set forth as necessary.

The defendant claims that the court abused its discretion in refusing to give a requested jury instruction regarding the residence or place of abode exception to § 53-206. Specifically, he claims that the jury should have had the opportunity to decide the parameters of the defendant’s “residence or place of abode.” By defining the terms “residence or place of abode” in its instructions to the jury, the defendant claims, the court usurped the jury’s fact-finding function. We disagree.

Following the state’s presentation of evidence, the defendant moved for a judgment of acquittal, arguing that the state had proven only that he carried his knife within Bodine Hall, which he claims was his residence or place of abode. The state opposed the motion, reasoning that dormitory hallways are common areas, not within the purview of the residence or place of abode exception. The court denied the defendant’s motion, relying on our Supreme Court’s decision in State v. Sealy, 208 Conn. 689, 546 A.2d 271 (1988).

After the defendant presented his case, he filed a supplemental request to charge. He requested that with regard to the residence or place of abode exception, the court charge the jury as follows: “The second element is that the defendant was outside his residence or place of abode. It is not a violation of the law for one to have a switchblade knife within his abode or residence. You have heard testimony and will review exhibits relating to what has been referred to as Bodine Hall at the University of Bridgeport. It is therefore necessary for you to determine if the defendant possessed the knife outside of his residence or place of abode.”

The court did not employ the defendant’s requested charge but, instead, instructed the jury, in relevant part, as follows: “And the state further accuses [the defendant of] the crime of carrying a dangerous weapon and charges [that] in the county of Fairfield, at the city of Bridgeport, on or about [January 31], 2006, at 80 University Avenue within said city the [defendant] did carry upon his person a dangerous weapon; to wit, a switchblade in violation of § 53-206 (a) of the Connecticut General Statutes.

“So, the statute that defines the offense of carrying a dangerous weapon reads as follows: A person is guilty of carrying a dangerous weapon when such person carries upon his person any knife having an automatic spring release device by which the blade is released from the handle.

“For you to find the defendant guilty of this charge, the state must prove beyond a reasonable doubt the following elements: number one, that the defendant carried a weapon. The first element is that the defendant carried a knife having an automatic spring release device by which the blade is released from the handle upon his person. The second element is that the defendant was outside his dwelling. It is not a violation of the law for one to have a switchblade knife within his abode or residence. The law would be violated if you find that the defendant possessed the knife outside of his residence in a common hallway where the defendant did not have a legal right to control access and to exclude others.

“To summarize, for you to find the defendant guilty of the charge in the second count, the state must prove beyond a reasonable doubt, one, the defendant carried a switchblade, that is, a knife with an automatic spring release device by which the blade is released from the handle upon his person and, two, that he was outside his dwelling.

“If you unanimously find that the state has proven beyond a reasonable doubt each of the elements of carrying a dangerous weapon, then you shall find the defendant guilty. On the other hand, if you unanimously find that the state has failed to prove beyond a reasonable doubt any one of those elements, you shall find the defendant not guilty.” (Emphasis added.)

The defendant excepted to the manner in which the court charged the jury, and the court noted the exception but did not reinstruct the jury. The jury returned a guilty verdict with respect to the charge of carrying a dangerous weapon. At sentencing, the defendant filed a postjudgment motion for a new trial and a motion for a judgment of acquittal, again arguing that the court’s instruction with regard to the residence or place of abode exception to § 53-206 (a) was improper. The court denied the motions.

“[I]n appeals involving a constitutional question, [the standard is] whether it is reasonably possible that the jury [was] misled. ... In determining whether it was . . . reasonably possible that the jury was misled by the trial court’s instructions, the charge to the jury is not to be critically dissected for the purpose of discovering possible inaccuracies of statement, but it is to be considered rather as to its probable effect upon the jury in guiding [it] to a correct verdict in the case. . . . The charge is to be read as a whole and individual instructions are not to be judged in artificial isolation from the overall charge. . . . The test to be applied ... is whether the charge, considered as a whole, presents the case to the jury so that no injustice will result.” (Internal quotation marks omitted.) State v. Heinemann, 282 Conn. 281, 300, 920 A.2d 278 (2007).

In State v. Sealy, supra, 208 Conn. 693 n.2, our Supreme Court stated that “§ 53-206 (a) does not expressly except from its terms the carrying of a dangerous weapon in one’s dwelling or abode. This, however, is an implied exception.” The court explained that for the residence or place of abode exception to apply, one must have an expectation of privacy in the area. Id., 693-94. According to the court, for an expectation of privacy to exist, an individual must show that he has “exclusive use of the area” and “the legal right to control access and to exclude others.” Id., 694. The court concluded that a defendant living in an apartment building with a common street entrance and stairwell did not have the exclusive use or right to control the landing outside his neighbor’s apartment or the common stairway. Id.

The defendant attempts to distinguish Sealy by arguing that the common hallways in Bodine Hall were needed to access shared areas necessary to daily life, including toilets, showers, laundxy facilities and kitchenettes, and are thus covered by the residence or place of abode exception. The test used by our Supreme Court, however, considers only whether a person has the exclusive use of an area and the right to control access and to exclude others.

The defendant admits that he carried the weapon in the hallway of his college dormitory, and no evidence in the record supports a finding that he had the exclusive use of the hallway or the right to control access to, or to exclude others from, the hallway. Although students needed a key card to enter Bodine Hall, once students were inside the dormitory, they were free to access all common areas. Students had keys to access their individual room, but the hallway outside their dormitory rooms was not only accessible to all individuals in the building, but also was monitored by security cameras. Furthermore, students were not allowed to leave their possessions in the hallway, even in the area immediately outside of their rooms. Students had no reasonable expectation of privacy in the dormitory hallways. Pursuant to State v. Sealy, supra, 208 Conn. 694, the defendant’s carrying the knife in the common hallway fell outside the residence or place of abode exception.

The court’s defining the terms residence or place of abode in accordance with Sealy was well within its role of “providing the jury with guidance by giving statements of the relevant legal criteria and relating the various possible factual determinations which the legal criteria permitted the jury to make.” United States v. Glaziou, 402 F.2d 8, 18 (2d Cir. 1968), cert. denied, 393 U.S. 1121, 89 S. Ct. 999, 22 L. Ed. 2d 126 (1969). “It is the responsibility of the trial judge to provide the jury with sufficient instruction to enable it to assess the evidence within the proper legal framework and to reach a rational verdict.” United States v. Parker, 903 F.2d 91, 101 (2d Cir.), cert. denied, 498 U.S. 872, 111 S. Ct. 196, 112 L. Ed. 2d 158 (1990).

The language in the court’s jury charge—that the law would be violated if the jury found that the defendant carried the knife “in a common hallway”—is the same as that used in State v. Sealy, supra, 208 Conn. 692 n.1. The court also properly applied the definition of common hallway as it was defined by our Supreme Court. The court did not, as the defendant claims, improperly remove a factual issue from the jury’s consideration; it merely provided a legal definition to the jury as to what was meant by the statutory terms residence or place of abode. The jury had to find, as a matter of fact, that the altercation did not take place in the common hallway for the defendant to be within the purview of the exception, as a matter of law.

On the basis of our review of the court’s instruction to the jury, we conclude that the court did not abuse its discretion in refusing to give a requested jury instruction and did not usurp the jury’s fact-finding function. The court properly guided the jury by defining the terms “residence or place of abode” in accordance with precedent. For the foregoing reasons, we conclude that it is not reasonably possible that the jury was misled by the court’s instruction.

The judgment is affirmed.

In this opinion the other judges concurred.

       Specifically, with regard to the second claim, the defendant contends that the court violated his constitutional right to have a jury determine his guilt or innocence by instructing the jury that the hallway in which the jury concluded that he lawfully defended himself was not part of his residence or place of abode. This claim is subsumed by the primary claim and, thus, is not analyzed independently.

       General Statutes § 53-206 provides in relevant part: “(a) Any person who carries upon his or her person . . . any knife having an automatic spring release device by which a blade is released from the handle . . . shall be fined not more than five hundred dollars or imprisoned not more than three years or both. . . .
      “(b) The provisions of this section shall not apply to . . . (3) the carrying of a knife, the edged portion of the blade of which is four inches or over in length, by . . . (D) any person who is found with any such knife concealed upon one’s person while lawfully removing such person’s household goods or effects from one place to another, or from one residence to another, (E) any person while actually and peaceably engaged in carrying any such knife from such person’s place of abode or business to a place or person where or by whom such knife is to be repaired, or while actually and peaceably returning to such person’s place of abode or business with such knife after the same has been repaired . . . .”
      Our Supreme Court has interpreted tiróse exceptions to include an implicit exception for “carrying a weapon in an individual’s residence or abode, and a recognition of the protected zone of privacy in his or her dwelling.” State v. Sealy, 208 Conn. 689, 693, 546 A.2d 271 (1988).

       We note that the court characterized the residence or place of abode exception as the second element of the crime. The claim that a defendant is within his residence or place of abode while possessing the weapon is a defense to the crime of carrying a dangerous weapon, not an element. See General Statutes § 53-206 (b). For a defendant to be guilty of carrying a dangerous weapon, the state need only prove that “the defendant carried on his person a dangerous or deadly weapon or instrument.” See General Statutes § 53-206 (a); State v. Ramirez, 107 Conn. App. 51, 57, 943 A.2d 1138 (2008), aff'd, 292 Conn. 586, 973 A.2d 1251 (2009). In any event, the court’s error benefited the defendant because it shifted the burden to the state to prove beyond a reasonable doubt that he was outside his residence or place of abode.


source: Caselaw Access Project

author: ALVORD, J.

license: Public Domain

text:
    LORI FITZSIMONS v. STEPHEN FITZSIMONS
    (AC 29919)
    Flynn, C. J., and Alvord and Hennessy, Js.
    Argued June 2
    officially released August 11, 2009

      Pamela A. Olejarczyk, for the appellant (defendant).

      David N. Rubin, for the appellee (plaintiff).
   Opinion

ALVORD, J.

In this marital dissolution action, the defendant, Stephen Fitzsimons, appeals from the judgment of the trial court with respect to the court’s financial orders. Specifically, the defendant claims that the court abused its discretion by (1) modifying the marital property division postjudgment and (2) awarding the plaintiff, Lori Fitzsimons, relief not claimed by her at trial. We affirm the judgment of the trial court.

The following facts and procedural history are relevant to our resolution of the defendant’s appeal. The parties were married on March 23, 1991, and had three minor children as of the date of dissolution. In November, 2006, the plaintiff filed a complaint seeking a dissolution of her marriage to the defendant, alleging that their marriage had broken down irretrievably. The parties entered into a custody agreement on February 28, 2008, which the court found to be fair and equitable. The parties were unable, however, to resolve the issues of alimony, child support and the division of property and debts. The court held a limited contested hearing on those issues on February 28, 2008.

The plaintiff suggested in her proposed orders that the defendant vacate the marital residence on or before June 1, 2008, and that she retain exclusive possession of the marital residence until the parties’ youngest child reached the age of eighteen. The plaintiff further proposed that she pay the mortgage, insurance, taxes and utilities for the property during that period as well as repairs costing less than $500. She also proposed that the defendant be permitted to retain personal property with a combined value of $80,864 to provide him with funds to relocate. Finally, the plaintiff proposed that upon the youngest child’s attainment of the age of eighteen, the house be sold and the net proceeds shared equally by the parties.

The defendant’s proposed orders provided in relevant part that the plaintiff would quitclaim her interest in the marital residence to the defendant. In exchange, the defendant offered to refinance the property within sixty days, pay the existing mortgages in full and pay the plaintiff half of the net equity in the property.

The court issued its memorandum of decision on March 14, 2008. The court found that “[t]he journey to an irretrievable breakdown began in about 1997, when the [defendant] began to drink too much and too often. He consumed alcohol almost daily. His consumption increased in frequency and quantity. He drank to an excess. He easily consumed a thirty pack of beer in two days. When he drank, he became controlling. His mood changed in direct relation to the amount of alcohol he consumed. He became increasingly argumentative and angry. His anger seemed to ‘come from out of nowhere.’ He was unabashedly insulting, demeaning and verbally abusive toward the [plaintiff] in private and in public. In the presence of company, guests, friends, their children and other children, he called her vulgar and vile names, humiliated her and degraded and debased her. She never argued back. She never called him derogatory names. She never reacted, retorted or responded to him in kind. Many times he reduced her to tears in front of their friends and children. His unfettered alcohol consumption and behavior toward her while consuming alcohol is the principal cause of the breakdown of the marriage.

“They jointly own the marital residence at 165 Meadowside Road in Milford. Its fair market value is $320,000. There is a balance of $126,500 due on a first mortgage. There is [a] balance of $11,203 due on a home equity line of credit secured by a second mortgage. The equity value of the home is $182,298.

“Both parties contributed significantly and substantially to the acquisition, preservation, expenses and appreciation of the home. The [plaintiff] wants to remain in the home until their youngest child’s eighteenth birthday, and the right to sell (at her discretion) the property on or before the youngest child’s eighteenth birthday and then equally divide the net proceeds. The [defendant] also wants to retain and remain in the home. He has qualified for a refinance mortgage loan in the amount of $220,000. He is able to refinance the property within sixty days and is willing to pay the [plaintiff] half of the ‘net equity.’ ”

In its decision, the court ordered that “[t]he [defendant] shall immediately refinance the marital home . . . and terminate the [plaintiffs] liability on the existing first mortgage and the . . . home equity line of credit by May 30, 2007. . . . The [plaintiff] shall cooperate with the [defendant] to effectuate a refinance of the property. She shall quitclaim all of her interest in the real property to the [defendant] for that purpose. He shall pay to the [plaintiff] by May 30, 2008, the sum of . . . $91,149.00 ... as her share of the equity in the property upon refinancing it.”

The plaintiff filed a postjudgment motion to reargue on March 20, 2008. The plaintiff argued, inter alia, that, in light of the defendant’s fault in causing the breakdown of the marriage and because the court declined to allow her to remain in the house until her youngest child reached the age of eighteen, she should be awarded a greater share of the equity in the marital residence. The plaintiff requested that she be awarded 60 percent and the defendant 40 percent. The court granted the plaintiffs motion to reargue, conducted a hearing on April 14, 2008, and opened the judgment.

On April 16, 2008, the court issued a decision on the plaintiffs motion. The court found that “[u]pon reconsideration, the court agrees with the plaintiff that the defendant’s conduct should not be weighed equally with the other relevant statutory criteria and should be accorded greater consideration in the division of the equity in the marital home by awarding the plaintiff a greater share (60 percent) and a lesser share (40 percent) to the defendant.” The court modified its order to provide that “the payment to the plaintiff by the defendant pursuant to . . . the memorandum of decision rendering judgment, dated March 14, 2008, shall be $109,379.”

On May 6, 2008, the defendant filed a postjudgment motion to reargue. The defendant argued that the March 14, 2008 decision “granted the equal split sought by both parties in their respective statements of claim.” (Emphasis in original.) In addition, the defendant argued that “[nowhere] did the plaintiff seek for a disparate split of the marital equity; moreover, virtually all of the relief sought by the plaintiff was granted by the first memorandum of decision, and no further consideration should have been given.” The court denied the motion, stating that “[c]ounsel [and the] parties had the opportunity to present all of their claims and arguments at the time of the hearing on the reargument on [April 14, 2008].”

I

First, the defendant claims that the court abused its discretion by modifying the marital property division postjudgment. Specifically, the defendant argues that a division of marital property is not subject to postjudgment modification absent fraud or mutual mistake. We disagree.

It is well settled that a civil judgment of the Superior Court may be opened if a motion to open or set aside is filed within four months of the issuance of a judgment. Passamano v. Passamano, 228 Conn. 85, 88 n.4, 634 A.2d 891 (1993); Bunche v. Bunche, 180 Conn. 285, 287-88, 429 A.2d 874 (1980); Martin v. Martin, 99 Conn. App. 145, 155-56, 913 A.2d 451 (2007); Richards v. Richards, 78 Conn. App. 734, 739-40, 829 A.2d 60, cert. denied, 266 Conn. 922, 835 A.2d 473 (2003). “A motion to open a judgment is governed by General Statutes § 52-212a and Practice Book § 17-4. Section 52-212a provides in relevant part: ‘Unless otherwise provided by law and except in such cases in which the court has continuing jurisdiction, a civil judgment or decree rendered in the Superior Court may not be opened or set aside unless a motion to open or set aside is filed within four months following the date on which it was rendered or passed. . . .’ Practice Book § 17-4 states essentially the same rule.” Richards v. Richards, supra, 739-40.

In the present case, the motion to reargue was filed on March 20, 2008, six days after the memorandum of decision was filed. Accordingly, it was filed within the four month requirement of § 52-212a. Under those circumstances, the court was vested with the discretion to modify its property division.

“Within four months of the date of the original judgment, Practice Book [§ 17-4] vests discretion in the trial court to determine whether there is a good and compelling reason for its modification or vacation. . . . The exercise of equitable authority is vested in the discretion of the trial court and is subject only to limited review on appeal. . . . We do not undertake a plenary review of the merits of a decision of the trial court to grant or to deny a motion to open a judgment. The only issue on appeal is whether the trial court has acted unreasonably and in clear abuse of its discretion. . . . In determining whether the trial court abused its discretion, this court must make every reasonable presumption in favor of its action.” (Internal quotation marks omitted.) Chapman Lumber, Inc. v. Tager, 288 Conn. 69, 94-95, 952 A.2d 1 (2008). In light of the court’s finding, upon reconsideration, that the defendant’s conduct in causing the irretrievable breakdown of the parties’ marriage should be taken into consideration in the division of the equity in the marital home, we cannot say that awarding the plaintiff an additional 10 percent of that equity was an abuse of the court’s discretion.

II

The defendant also claims that the court abused its discretion by awarding the plaintiff relief not claimed by her at trial. Specifically, the defendant argues that a court properly may not award relief postjudgment that is not sought at trial, and “[t]o the extent that the plaintiff failed to enumerate a claim for [60 percent] of the marital equity in her proposed orders, she failed to comply with the requirements of [Practice Book] § 25-30 (c)” and should not be permitted to assert that claim postjudgment. We disagree.

The defendant suggests that a failure to include an express claim for a particular percentage of an asset is a failure to comply with Practice Book § 25-30 (c). The defendant likens such a failure to a waiver of alimony at trial or a failure to submit a child support guidelines worksheet as required by Practice Book § 25-30 (e). A review of the relevant case law, however, does not support the defendant’s claim.

Our Supreme Court has held that “if alimony is not awarded in a final dissolution decree, it cannot be awarded in the future based on changed circumstances.” (Emphasis added.) Passamano v. Passamano, supra, 228 Conn. 90 n.7, citing Ridolfi v. Ridolfi, 178 Conn. 377, 379-80, 423 A.2d 85 (1979). Alimony is solely a creature of statute, and a court has no authority to award it other than at the time of entering a dissolution decree. See General Statutes § 46b-82. It is also true, however, that a trial court may award alimony as part of a marital dissolution even when a party does not seek it and affirmatively waives all claims for alimony. Porter v. Porter, 61 Conn. App. 791, 797-98, 769 A.2d 725 (2001) (“We have often stated that the power to act equitably is the keystone to the court’s ability to fashion relief in the infinite variety of circumstances that arise out of the dissolution of a marriage. . . . The trial court may award alimony to a party even if that party does not seek it and has waived all claims for alimony.” [Citations omitted; internal quotation marks omitted.]); Lord v. Lord, 44 Conn. App. 370, 373-75, 689 A.2d 509 (same), cert. denied, 241 Conn. 913, 696 A.2d 985 (1997), cert. denied, 522 U.S. 1122, 118 S. Ct. 1065, 140 L. Ed. 2d 125 (1998).

When considering claims of improper awards of child support, we have often held that a failure to provide a child support guidelines worksheet as required by Practice Book § 25-30 (e) precludes an appeal by the noncompliant party. See, e.g., Auerbach v. Auerbach, 113 Conn. App. 318, 337, 966 A.2d 292, cert. denied, 292 Conn. 901, 971 A.2d 40 (2009); Gentile v. Carneiro, 107 Conn. App. 630, 654, 946 A.2d 871 (2008); Bee v. Bee, 79 Conn. App. 783, 786-87, 831 A.2d 833, cert. denied, 266 Conn. 932, 837 A.2d 805 (2003). The basis for this holding is that “the equitable nature of [dissolution] proceedings precludes [noncompliant parties] from later seeking to have the financial orders overturned on the basis that the court had before it too little information as to the value of the assets distributed.” Bornemann v. Bornemann, 245 Conn. 508, 536, 752 A.2d 978 (1998).

In the present case, however, there is no jurisdictional or policy bar to the plaintiffs motion to reargue. The plaintiff did not seek to modify a final judgment outside of the time frame allowed by law but to open a judgment within the four month period permitted by § 52-212a. Accordingly, the court had the discretion to open and to modify the judgment. Moreover, the defendant’s assertion that the court’s initial order was “consistent with the proposed orders submitted by both parties” is incorrect. The plaintiff requested the opportunity to remain in the marital home for approximately six years prior to an equal distribution of the equity. We do not agree with the defendant that the court's initial orders were consistent with that request.

Furthermore, we see no reason to require that a party to a divorce propose every possible order that he or she would prefer. As our Supreme Court has repeatedly stated, “judicial review of a trial court’s exercise of its broad discretion in domestic relations cases is limited to the questions of whether the [trial] court correctly applied the law and could reasonably have concluded as it did. . . . With respect to the financial awards in a dissolution action, great weight is given to the judgment of the trial court because of its opportunity to observe the parties and the evidence. . . . Moreover, the power to act equitably is the keystone to the court’s ability to fashion relief in the infinite variety of circumstances which arise out of the dissolution of a marriage.” (Citations omitted; internal quotation marks omitted.) Holley v. Holley, 194 Conn. 25, 29, 478 A.2d 1000 (1984). There was no need for the plaintiff, having timely proposed an order giving her more than a simple 50 percent interest in the house, to set forth in her proposed orders every possible disparate division of the equity in the marital residence for the court to have discretion to grant a postjudgment motion to reargue that was filed in accordance with § 52-212a. Indeed, we do not hold that the plaintiff was required to request more than 50 percent of the marital equity in her proposed orders to permit the court to (1) award such at the time of its initial order or (2) grant her motion to reargue. We never have held that proposed orders serve to limit parties’ postjudgment requests for relief or the discretion of the trial court. It is important to note, however, that we do not hold that the court was obligated to grant her motion for reargument and the relief requested therein but simply that it was not an abuse of discretion for the court to do so.

The judgment is affirmed.

In this opinion the other judges concurred.

       The parties’ youngest child will reach the age oí eighteen in June, 2014. The plaintiff also requested the discretion to sell the residence before June, 2014.

       The plaintiff suggested that the $80,864 then be repaid her at the time of the sale of the property.

       The court entered orders disposing of all of the marital assets, but only the court’s distribution of the equity in the marital residence is at issue in this appeal.

       No evidence was admitted at the hearing. The parties submitted a stipulation as to some matters raised in the motion to reargue, and the court allowed argument regarding the division of the equity in the marital residence.

       Although the motion was not titled “motion to open,” the defendant did not contest the motion on that ground but simply argued to the court that there was no reason to modify the judgment. It is clear from the substance of the motion and the transcript of the April 14, 2008 hearing that the defendant had notice of the plaintiffs requested relief. Under these circumstances and lacking any claim, much less analysis, of prejudice by the defendant, we will not exalt form over substance. See Rome v. Album, 73 Conn. App. 103, 111-12, 807 A.2d 1017 (2002) (We must “lookto the substance of the claim rather than the form .... We do not look to the precise relief requested, but to whether the request apprised the nonmovant of the purpose of the motion. . . . The court did have the authority to treat the defendant’s motion to clarify as a motion to open and to grant the defendant’s requested relief where the defendant’s motion [1] came within the four month period established by § 52-212a; [2] put the plaintiff on notice as to the effect of the relief requested despite the label affixed to the motion ... [3] sought to correct an error of omission, and [4] the findings contained in [the initial decision] clearly expressed the court’s intent as to that property.” [Citations omitted; internal quotation marks omitted.]).

       Practice Book § 25-30 provides in relevant part: “(b) At least ten days before the scheduled family special masters session, alternative dispute resolution session, or judicial pretrial, the parties shall serve on each appearing party, but not file with the court, written proposed orders, and, at least ten days prior to the date of the final limited contested or contested hearing, the parties shall file with the court and serve on each appearing party written proposed orders.
      “(c) The written proposed orders shall be comprehensive and shall set forth the party’s requested relief including, where applicable, the following:
      “(1) a parenting plan;
      “(2) alimony;
      “(3) child support;
      “(4) property division;
      “(5) counsel fees;
      “(6) life insurance;
      “(7) medical insurance; and
      “(8) division of liabilities.
      “(d) The proposed orders shall be neither factual nor argumentative but shall, instead, only set forth the party’s claims. . . .”

       Practice Book § 25-30 (e) provides: “Where there is a minor child who requires support, the parties shall file a completed child support and arrearage guidelines worksheet at the time of any court hearing concerning child support; or at the time of a final hearing in an action for dissolution of marriage or civil union, legal separation, annulment, custody or visitation.”


text:
    CHARLES D. GIANETTI v. HEALTH NET OF CONNECTICUT, INC., ET AL.
    (AC 30206)
    DiPentima, Alvord and Dupont, Js.

      Argued June 1
    officially released August 11, 2009

      Charles D. Gianetti, pro se, the appellant (plaintiff).

      Linda L. Morkan, with whom, on the brief, was Theodore J. Tucci, for the appellee (named defendant).
   Opinion

ALVORD, J.

The plaintiff, Charles D. Gianetti, appeals pro se following the trial court’s rendering of summary judgment in favor of the defendant Health Net of Connecticut, Inc. The plaintiff claims that the court improperly failed to conclude that there was a genuine issue of material fact with respect to the authenticity of documents submitted by the defendant in support of its motion for summary judgment. We affirm the judgment of the trial court.

The relevant facts and procedural history follow. The plaintiff, a physician, provided medical services to the minor daughter of David Quiles and Francine Quiles on December 28, 1999, and January 4, 2000. At that time, Physicians Health Services of Connecticut, Inc., the defendant’s corporate predecessor, had a contract with David Quiles’ employer to provide group health benefits to employees and their eligible dependents. The plaintiff had been a participating provider with the defendant from 1977 to 1998. Under his participating physician’s agreement, he would bill the defendant directly for services provided to the defendant’s subscribers and, upon submission of necessary documentation, would be reimbursed directly for those services. Effective October 8, 1998, the plaintiff resigned from his membership as a participating provider and became a nonparticipating provider. Payments for services rendered by nonparticipating providers generally were made by the defendant to the subscribers under the policy, and it was then the responsibility of the subscribers to pay the nonparticipating providers.

The defendant’s records indicated that the first contact regarding the Quileses’ claim was made by the plaintiffs office manager on December 1, 2000. The defendant received a second telephone call from the plaintiff himself on January 17,2001. On March 12,2001, the defendant received a health insurance claim form from the plaintiff, along with a purported assignment of benefits from Francine Quiles to the plaintiff. The claim ultimately was denied on the ground that it had not been timely filed. On July 28, 2005, the plaintiff filed the present action against the defendant, alleging breach of contract and unjust enrichment, and against David Quiles and Francine Quiles, alleging breach of contract and quantum meruit. The defendant filed an answer, several special defenses and a four count counterclaim.

The defendant filed a motion for summary judgment on February 21, 2006, claiming that (1) the assignment of benefits was invalid, (2) the action was barred because the plaintiff failed to comply with the conditions precedent to payment of an insurance claim under the policy and (3) the claims were preempted by the Employee Retirement Income Security Act of 1974, 29 U.S.C. § 1001 et seq. The plaintiff filed an objection. The court heard argument and issued its decision on August 3, 2006, granting the defendant’s motion on the ground that the plaintiff failed to comply with conditions precedent of the policy.1 ** This appeal followed.

On appeal, the plaintiff claims that the court improperly rendered summary judgment in favor of the defendant because a genuine issue of material fact existed with respect to the authenticity of the health care policy submitted by the defendant in support of its motion for summary judgment. Specifically, the plaintiff challenges exhibits B and C, which were attached to the affidavit of Victoria E. Choma, an employee of the defendant’s parent company. Choma identified exhibit B as the complete certificate of coverage for the group health plan covering David Quiles and his dependents, and exhibit C as the relevant “out of network” provisions of that certificate of coverage, pertaining to services rendered by nonparticipating providers, extracted from the complete certificate to facilitate review by the court. They were represented to be the terms and conditions in place at the time the plaintiff provided medical services to the minor daughter of David Quiles and Francine Quiles. In his brief on appeal, the plaintiff argues that the defendant’s submission is “a mishmash of parts of different contracts” as evidenced by the revision dates noted at the bottom of each page, some of which were after the date of the plaintiffs services.

“The law governing summary judgment and the accompanying standard of review are well settled. Practice Book § [17-49] requires that 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. A material fact is a fact that will make a difference in the result of the case. . . . The facts at issue are those alleged in the pleadings. . . .

“In seeking summary judgment, it is the movant who has the burden of showing the nonexistence of any issue of fact. The courts are in entire agreement that the moving party for summary judgment has the burden of showing the absence of any genuine issue as to all the material facts, which, under applicable principles of substantive law, entitle him to a judgment as a matter of law. The courts hold the movant to a strict standard. To satisfy his burden the movant must make a showing that it is quite clear what the truth is, and that excludes any real doubt as to the existence of any genuine issue of material fact. ... As the burden of proof is on the movant, the evidence must be viewed in the light most favorable to the opponent.” (Citations omitted; internal quotation marks omitted.) Rockwell v. Quintner, 96 Conn. App. 221, 227-28, 899 A.2d 738, cert. denied, 280 Conn. 917, 908 A.2d 538 (2006).

“The party opposing a motion for summary judgment must present evidence that demonstrates the existence of some disputed factual issue .... The movant has the burden of showing the nonexistence of such issues but the evidence thus presented, if otherwise sufficient, is not rebutted by the bald statement that an issue of fact does exist. ... To oppose a motion for summary judgment successfully, the nonmovant must recite specific facts . . . which contradict those stated in the movant’s affidavits and documents. . . . The opposing party to a motion for 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. . . . The existence of the genuine issue of material fact must be demonstrated by counteraffidavits a,nd concrete evidence.” (Citation omitted; emphasis added; internal quotation marks omitted.) Pion v. Southern New England Telephone Co., 44 Conn. App. 657, 663, 691 A.2d 1107 (1997). Our review of the trial court’s decision to grant a motion for summary judgment is plenary. Mazurek v. Great American Ins. Co., 284 Conn. 16, 27, 930 A.2d 682 (2007).

In the present case, the court determined that no genuine issue of material fact existed as to whether the plaintiff complied with the policy’s conditions precedent to payment of a claim. In reaching the conclusion that the plaintiff failed to comply, the court expressly stated that it was relying on certain documents provided by the defendant, which included the governing policy, the certificate of coverage and the affidavits of three of the defendant’s employees. The court noted that the contract and extracted clauses had been authenticated through Choma’s affidavit.

The referenced documents established that any right for payment of a claim was conditioned on the claimant’s sending written notice to the defendant of the injury or sickness for which the claim was being made within twenty days of the date of that injury or sickness. Further, written proof of the loss, i.e., documentation of the treatment, was required to be provided to the defendant within ninety days of the date of service. Invoices for services rendered were required to be provided by the claimant and received by the defendant within six months of the date of service. All of those conditions needed to be fulfilled for the defendant to be liable for payment of a claim.

The plaintiff, as a nonparticipating provider, claimed entitlement to payment by virtue of an assignment of benefits to him by Francine Quiles. Even if we assume arguendo that the assignment of benefits was valid, the plaintiff cannot prevail. “[A]n assignee stands in the shoes of the assignor. ... An assignee has no greater rights or immunities than the assignor would have had if there had been no assignment.” (Citations omitted; internal quotation marks omitted.) Shoreline Communications, Inc. v. Norwich Taxi, LLC, 70 Conn. App. 60, 72, 797 A.2d 1165 (2002). One of the defendant’s affiants, Mary E. Vitka, attested that no calls or inquiries were received from David Quiles or Francine Quiles about their daughter’s treatment by the plaintiff and that the plaintiffs office manager first contacted the defendant on the status of the Quileses’ claim on December 1, 2000. Vitka further attested that the insurance claim form submitted by the plaintiff was received by the defendant on March 12, 2001.

The plaintiff does not dispute those dates or claim that the defendant had been notified by the Quileses prior to the plaintiffs inquiries or the filing of the claim form. Instead, he argues that the court cannot consider those provisions because the contract and its provisions were not properly authenticated. “[B]efore a document may be considered by the court [in connection with] a motion for summary judgment, there must be a preliminary showing of [the document’s] genuineness, i.e., that the proffered item of evidence is what its proponent claims it to be. The requirement of authentication applies to all types of evidence, including writings .... Conn. Code Evid. § 9-1 (a), commentary. Documents in support of or in opposition to a motion for summary judgment may be authenticated in a variety of ways, including, but not limited to, a certified copy of a document or the addition of an affidavit by a person with personal knowledge that the offered evidence is a true and accurate representation of what its proponent claims it to be.” (Internal quotation marks omitted.) Gianetti v. Anthem Blue Cross & Blue Shield of Connecticut, 111 Conn. App. 68, 73, 957 A.2d 541 (2008), cert. denied, 290 Conn. 915, 965 A.2d 553 (2009).

The court concluded that the contract and extracted provisions had been authenticated through Choma’s affidavit. The court acknowledged that exhibit B, the complete certificate of coverage, appeared to contain the 1999 version of the policy as well as an updated 2000 version of the policy. The court also found that the affidavit of Julie E. Lyons, also an employee of the defendant’s parent company, confirmed the notice requirements contained in the policy. Lyons’ affidavit restated the time requirements for providing notice of a loss, providing documentation of treatment and submitting invoices to the defendant under the group health plan for David Quiles. The time requirements were established independently through that affidavit.

“[A]bsent waiver, an unexcused, unreasonable delay in notification constitutes a failure of condition that entirely discharges an insurance carrier from any further liability on its insurance contract.” Aetna Casualty & Surety Co. v. Murphy, 206 Conn. 409, 412, 538 A.2d 219 (1988). “A condition precedent is a fact or event which the parties intend must exist or take place before there is a right to performance. ... A condition is distinguished from a promise in that it creates no right or duty in and of itself but is merely a limiting or modifying factor. ... If the condition is not fulfilled, the right to enforce the contract does not come into existence.” (Internal quotation marks omitted.) Blitz v. Subklew, 74 Conn. App. 183, 189, 810 A.2d 841 (2002). In the present case, the policy expressly provided that the defendant’s liability to pay invoices for covered services was limited to invoices received within six months of the date of service. It further provided that the right to make a claim was governed by the requirement of providing notice of injury or sickness within twenty days of the date the injury occurred or the sickness started and that written proof of loss had to be furnished to the defendant within ninety days after the date of service. The court properly determined that compliance with the notice requirements was a condition precedent to payment of the claim.

The plaintiffs bald statement that the contract submitted by the defendant was not the operative contract is insufficient to establish the existence of a genuine issue of material fact. He failed to produce any countervailing evidence demonstrating that the notice requirements were different at the time he provided his medical services or that another contract with different provisions was in place at that time. The plaintiff does not offer any authenticated evidence showing a dispute of fact with respect to the applicable conditions precedent. Accordingly, the court did not abuse its discretion in considering the complete certificate of coverage and the extracted “out of network” provisions from that certificate pertaining to services rendered by nonparticipating providers. See Barlow v. Palmer, 96 Conn. App. 88, 91, 898 A.2d 835 (2006) (whether court properly considered evidence in ruling on motion for summary judgment reviewed under abuse of discretion standard).

Because the plaintiff failed to present any concrete evidence demonstrating the existence of some disputed issue of material fact, the court was not precluded from rendering summary judgment in favor of the defendant. The absence of responsive evidentiary facts or substantial evidence outside of the pleadings to rebut the defendant’s allegations in its motion for summary judgment is fatal to the plaintiffs appeal. See Gianetti v. Anthem Blue Cross & Blue Shield of Connecticut, supra, 111 Conn. App. 75.

The judgment is affirmed.

In this opinion the other judges concurred.

       David Quiles and Francine Quiles were also named as defendants but are not parties to this appeal. Therefore, we refer in this opinion to Health Net of Connecticut, Inc., as the defendant.

       The amount claimed for the services rendered was $3110.

       In this opinion we refer to both Physicians Health Services of Connecticut, Inc., and Health Net of Connecticut, Inc., as the defendant.

       The defendant sought summary judgment on all four counts of the plaintiffs complaint. Counts one and three were directed against the defendant, and counts two and four were directed against David Quiles and Francine Quiles. The court granted summary judgment on counts one and three only. The plaintiff has not challenged the court’s judgment with respect to count three, which alleged unjust enrichment.

       After the court granted the defendant’s motion for summary judgment, the plaintiff timely filed a notice of his intent to appeal. See Practice Book § 61-5. The defendant withdrew its counterclaim against the plaintiff on September 19, 2006. The plaintiff subsequently filed a motion for judgment as against the nonappearing defendants, David Quiles and Francine Quiles, which was granted by the court on July 21, 2008. They did not appeal from that judgment. The plaintiff then filed the present appeal on August 11,2008.

       The defendant challenged the validity of that assignment on the grounds that it lacked specificity and was made by Francine Guiles, who was neither the subscriber to the policy nor the person treated by the plaintiff. The court did not decide that issue and stated that even if the document was a valid assignment, the plaintiff failed to comply with the notice requirements of the policy.

       The extracted provisions from the certificate, submitted as exhibit C, all bore dates of 1999, which would have been applicable at the time of treatment in December, 1999, and January, 2000. Those provisions contained the notice and timing requirements at issue.

       The court correctly noted that the failure of an insured to provide timely notice of a claim does not preclude coverage if it can be shown that the insurer suffered no material prejudice from the delay. See Aetna Casualty & Surety Co. v. Murphy, supra, 206 Conn. 418. The burden of establishing lack of prejudice must be borne by the insured. Id., 419. Here, the plaintiff provided no factual basis for a claim that the defendant had not been materially prejudiced by the delay in providing notice and filing the insurance claim.


author: FLYNN, C. J.

text:
    STATE OF CONNECTICUT v. DONALD FLEMMING
    (AC 29858)
    Flynn, C. J., and Bishop and Hennessy, Js.

      Argued March 12
    officially released August 18, 2009

      Cameron R. Dorman, special public defender, for the appellant (defendant).

      Laurie N. Feldman, special deputy assistant state’s attorney, with whom, on the brief, were John A. Connelly, state’s attorney, and Jason Germain, assistant state’s attorney, for the appellee (state).
   Opinion

FLYNN, C. J.

The defendant, Donald Flemming, appeals from the judgments of the trial court revoking his probation pursuant to General Statutes (Rev. to 2005) § 53a-32. On appeal, the defendant claims that the court improperly (1) determined that he had effectively waived his right to the assistance of counsel for the purposes of the violation of probation hearing and (2) failed to make an adequate investigation into whether he was indigent and therefore qualified for representation by the public defender’s office. We conclude the court did not abuse its discretion in determining that the defendant, who was free on bond, had waived his right to counsel after having received nine continuances over eight months to obtain private counsel and having been determined ineligible for appointment of the public defender. We further conclude that the court made adequate inquiry of the public defender concerning the defendant’s eligibility and that the record discloses that the defendant took no appeal under General Statutes § 51-297 (g) to the court from that determination. Consequently, we affirm the judgments of the trial court.

The record reveals the following facts. On April 10, 2006, following a court trial, the defendant was convicted, under two separate criminal docket numbers, of one count of possession of narcotics in violation of General Statutes § 2 la-279 (a), one count of risk of injury to a child in violation of General Statutes § 53-21 and one count of failure to appear in the first degree in violation of General Statutes § 53a-172. The defendant was sentenced to two concurrent terms of four years incarceration, execution suspended, and three years probation. The standard conditions of probation, to which the defendant agreed, included that he not violate any federal or state criminal law. The defendant subsequently was arrested and charged with assault in the second degree in violation of General Statutes § 53a-60 for stabbing Matthew Roscoe on September 23, 2006. A warrant for the defendant’s arrest was obtained by the defendant’s probation officer in January, 2007.

On December 4, 2007, the court, Alander, J., conducted a violation of probation hearing pursuant to § 53a-32 at which the defendant appeared without counsel. Upon the court’s inquiry as to whether the defendant desired the assistance of counsel and whether he had applied for representation by the public defender’s office, the defendant stated that he was attempting to secure private counsel but had been unable to obtain funds to do so. He also stated that he had not applied for the services of the public defender and did not intend to apply, apparently due to a negative experience with a specific public defender in the past. The court asked the defendant how he intended to pay for an attorney, and the defendant related his intention to ask his family for a loan. The prosecutor informed the court that the defendant had been given nine continuances to that point to allow the defendant an opportunity to obtain counsel.

The court noted the fact that the matter already had been continued for eight months, and it expressed concern that the defendant’s attempts to retain counsel might not be as ardent as they could be due to the fact that he currently was released on bond. The court called a recess to allow the public defender’s office to review an application from the defendant to determine whether he was eligible for its services. Upon learning of the defendant’s refusal to apply to the public defender during the recess, the court reviewed with the defendant his right to counsel, including his right to appointed counsel should he be found indigent, the dangers of proceeding without counsel, the nature of the proceedings, the charge against him and the potential punishment he faced. The defendant maintained that he would hire an attorney. The court provided the defendant an additional continuance, admonishing him that it would be the last: “If you don’t have a lawyer here to represent you on that date, you’re going to represent yourself. I’m going to find at that point that you waived your right to have a lawyer represent you unless I hear something different, you know, maybe change my mind, and you’re going to go forward representing yourself, and I’m not going to be giving you another continuance. There’s going to be an end date to all this, and I’m going to give you the end date . . . .” The hearing was scheduled to resume on January 4, 2008.

On January 4, 2008, the defendant appeared at the violation of probation hearing again without counsel. He indicated that he was unable to raise funds to hire a private attorney. The court inquired whether the defendant intended to represent himself, to which the defendant replied, “I plan to.” The court took a recess to allow the defendant to apply for a public defender. When the court resumed, attorney Matthew J. Ramia of the public defender’s office stated for the record that, on the basis of the information provided by the defendant, specifically, the fact that he previously had posted $200,000 in bonds, the defendant was ineligible for the services of the public defender. Ramia also stated, “[t]o be honest, Judge, the application is not filled out fully, I think, because it doesn’t make any sense.” The court then confirmed the defendant’s ineligibility with Ramia. The defendant did not disagree with or object in any way to the public defender’s determination.

Thereafter, the court addressed the defendant: “So . . . since you’re not eligible for a public defender and you haven’t obtained private counsel, at this point you will need to represent yourself. I find that your failure to obtain private counsel means that you effectively waived your right to the assistance of counsel. You have been given months and months and months to obtain private counsel, and unfortunately you have not done so. And I’m not in a position at this point to continue this matter any further.” The court then explained to the defendant the procedure to be followed at the hearing, the charge against him and his rights regarding presentation of his case. The prosecutor indicated that on December 4, 2007, the date of the previous hearing, he had supplied the defendant with a complete case file.

Following testimony from the defendant’s probation officer and Roscoe, the court found in the evidentiary phase of the hearing that the state had proven by a preponderance of the evidence that the defendant stabbed Roscoe on September 23, 2006, and, thus, had violated § 53a-60. The court therefore found that the defendant had violated his probation. Following statements from the prosecutor and the defendant in the dispositional phase of the hearing, the court determined that the rehabilitative purposes of the defendant’s probation were no longer being served. The court revoked the defendant’s probation, imposing a sentence of forty-two months for each criminal docket number, to be served concurrently. This appeal followed.

As a preliminary matter, we address the reviewability of the defendant’s two claims on appeal. The defendant made no objection to the court’s finding that by his conduct he had effectively waived his right to counsel or to the court’s failure to investigate further into his eligibility for the services of the public defender. He therefore seeks review of both claims pursuant to State v. Golding, 213 Conn. 233, 239-40, 567 A.2d 823 (1989). We afford review of the claims because the record is adequate and the right to counsel in violation of probation hearings is of constitutional magnitude. See Gentry v. Warden, 167 Conn. 639, 645, 356 A.2d 902 (1975), citing Gagnon v. Scarpelli, 411 U.S. 778, 93 S. Ct. 1756, 36 L. Ed. 2d 656 (1973). Because we conclude that no constitutional violation clearly exists, the defendant cannot prevail.

I

The defendant first claims that the court improperly determined that he had effectively waived his right to counsel. Specifically, the defendant argues that he did not clearly and unequivocally assert a desire to proceed pro se, and further, did not voluntarily, knowingly and intelligently waive his right to counsel. We cannot agree.

We begin with our standard of review. “[T]he determination of whether there has been an intelligent waiver of the right to counsel must depend, in each case, upon the particular facts and circumstances surrounding that case, including the background, experience, and conduct of the accused. . . . This important decision rests within the discretion of the trial judge.” (Internal quotation marks omitted.) State v. Caracoglia, 95 Conn. App. 95, 103-104, 895 A.2d 810, cert. denied, 278 Conn. 922, 901 A.2d 1222 (2006). We must here determine, therefore, whether the court abused its discretion in determining that the defendant’s actions constituted a valid waiver of his right to counsel.

“The due process clause of the fourteenth amendment to the United States constitution requires that certain minimum procedural safeguards be observed in the process of revoking the conditional liberty created by probation.” State v. Durkin, 219 Conn. 629, 635, 595 A.2d 826 (1991), citing Black v. Romano, 471 U.S. 606, 610, 105 S. Ct. 2254, 85 L. Ed. 2d 636 (1985). The United States Supreme Court first held in Gagnon v. Scarpelli, supra, 411 U.S. 790, that due process required the appointment of counsel in some probation revocation hearings. The right to counsel in such hearings was extended to all defendants in violation of probation hearings by § 53a-32 and has been treated by our Supreme Court as a right of constitutional dimension. Gentry v. Warden, supra, 167 Conn. 645; see also Practice Book § 44-1 (“[a] person . . . who is charged with violation of probation . . . and who is unable to obtain counsel by reason of indigency shall be entitled to have counsel represent him or her”).

For a court to determine that a defendant has validly waived his right to counsel, it must be satisfied that such a waiver was made knowingly, voluntarily and intelligently. In making such a determination, the court is guided by Practice Book § 44-3, which provides in relevant part: “A waiver will be accepted only after the judicial authority makes a thorough inquiry and is satisfied that the defendant: (1) [h]as been clearly advised of the right to the assistance of counsel, including the right to the assignment of counsel when so entitled; (2) [possesses the intelligence and capacity to appreciate the consequences of the decision to represent oneself; (3) [c]omprehends the nature of the charges and proceedings, the range of permissible punishments, and any additional facts essential to a broad understanding of the case; and (4) [h]as been made aware of the dangers and disadvantages of self-representation.” Our Supreme Court has held, however, that a defendant “does not possess a constitutional right to a specifically formulated canvass [with respect to this inquiry]. His constitutional right is not violated as long as the court’s canvass, whatever its form, is sufficient to establish that the defendant’s waiver was voluntary and knowing. ... In other words, the court may accept a waiver of the right to counsel without specifically questioning a defendant on each of the factors listed in Practice Book § [44-3] if the record is sufficient to establish that the waiver is voluntary and knowing.” (Internal quotation marks omitted.) State v. T.R.D., 286 Conn. 191, 204, 942 A.2d 1000 (2008).

In the present case, the defendant, in response to a question from the court at the outset of the January 4, 2007 hearing, stated initially his intention to represent himself. Following the defendant’s subsequent unsuccessful application for a public defender, the court determined that the defendant had effectively, by means of his conduct, waived his right to the assistance of counsel. Such a determination must be viewed in light of the full record of the case. The violation of probation hearing, which began in April, 2007, already had been continued nine times to allow the defendant the opportunity to engage counsel for his defense by the time Judge Alander received the case. Although not determinative of the matter, this substantial delay in the proceedings, and the reason therefor, is pertinent to our review of the court’s actions. As we have stated previously in a different context where a lawyer sought to withdraw, “[w]hile courts must be assiduous in their defense of an accused’s right to counsel, that right may not be manipulated so as to obstruct the orderly procedure in the courts or to interfere with the fair administration of justice.” (Internal quotation marks omitted.) State v. Patavino, 51 Conn. App. 604, 609, 724 A.2d 514, cert. denied, 249 Conn. 919, 733 A.2d 236 (1999). The record clearly reflects the court’s awareness of the defendant’s right to be represented by counsel, and it demonstrates the court’s attempts to ensure the defendant’s knowledge of such right. The court halted the proceedings on two occasions to provide the defendant an opportunity to apply for representation by the public defender. The defendant refused to apply on December 4, 2007, and then, on January 4, 2008, failed to fill out the application adequately.

The record further demonstrates that the court adequately and thoroughly canvassed the defendant with regard to his right to representation and the repercussions attached to his failing either to hire an attorney or to apply to the public defender. At the December 4, 2007 hearing, the court reviewed not only the defendant’s right to counsel but also the charge against him and the potential penalties he faced upon a finding that he had violated his probation. The court also pointedly questioned the defendant with regard to the dangers of proceeding without representation. Although the court did not explicitly inquire of the defendant as to his level of education, it was entitled to conclude, on the basis of its extensive interaction with the defendant, that he possessed the capacity to understand the consequences of representing himself. In short, the court’s canvass of the defendant prior to the commencement of the evidentiary phase of the hearing was sufficient to establish that the defendant, by means of his actions, voluntarily and knowingly waived his right to counsel.

II

The defendant also claims that the court improperly failed to conduct an adequate investigation into whether he was indigent and qualified for the services of the public defender.

A defendant facing a violation of probation hearing possesses “the right to retain counsel and, if indigent, shall be entitled to the services of the public defender . . . .” General Statutes § 53a-32 (a). This right also is reflected in our rules of practice: “A person . . . who is charged with violation of probation . . . and who is unable to obtain counsel by reason of indigency shall be entitled to have counsel represent him or her . . . .” Practice Book § 44-1.

The public defender’s office is required to investigate the financial status of individuals requesting representation on the basis of indigency. See General Statutes § 51-297 (a). We previously have noted that “the office of the public defender is the only entity upon which a statutory duty is imposed to investigate a claim of indigency”; (emphasis added) State v. Guitard, 61 Conn. App. 531, 538, 765 A.2d 30, cert. denied, 255 Conn. 952, 770 A.2d 32 (2001); and, further, that “[t]he applicant for public defender services bears the burden of proving indigency.” (Internal quotation marks omitted.) Id., 537. Upon a determination by the public defender that an individual is ineligible for its services, “the individual may appeal the decision to the court before which his case is pending.” General Statutes § 51-297 (g).

General Statutes § 51-296 (a) requires that “[i]n any criminal action, in any habeas corpus proceeding arising from a criminal matter, in any extradition proceeding, or in any delinquency matter, the court before which the matter is pending shall, if it determines after investigation by the public defender or his office that a defendant is indigent as defined under this chapter, designate a public defender ... to represent such indigent defendant . . . .” The defendant cites § 51-296 as the sole authority for his claim that the court should have conducted further investigation into whether he was indigent. Characterizing the discussion between Ramia and the court as an “indigency hearing” and “an appeal of the public defender’s determination that the defendant was not eligible,” the defendant maintains that the court had a responsibility to “make an independent determination [of the defendant’s eligibility] based on the public defender’s investigation.”

We conclude that the defendant cannot prevail in his claim that the court had a further duty to investigate his financial status. The defendant, in the first instance, bore the burden of demonstrating his indigency in applying for the services of the public defender. State v. Guitard, supra, 61 Conn. App. 537. The record reflects that, for reasons that are not entirely clear, the defendant failed to complete the public defender’s application form adequately. Furthermore, our statutory scheme assigns the duty of investigating claims of indigency solely to the public defender. Id., 538. Ramia reported to the court on behalf of the public defender’s office that, on the basis of the information provided by the defendant, including the fact that he had posted a significant amount of bonds in the past, the defendant was ineligible for appointed representation. Section 51-296 requires the court to appoint counsel to an indigent defendant following the public defender’s investigation of such defendant’s financial status. The section is silent as to what a court must do following the public defender’s determination that a defendant is ineligible for services.

We need not determine whether the proceedings between the court and Ramia constituted an “indigency hearing,” as the court was under no obligation to conduct such a hearing. We cannot agree with the defendant’s claim that, in effect, the proceedings were “an appeal” of the public defender’s determination that he was ineligible for its services. Following the court’s recess to allow the defendant an opportunity to apply to the public defender, the record contains no indication that the defendant ever challenged the public defender’s determination as to his indigency or the court’s acceptance of such determination. The defendant made no attempt whatsoever to avail himself of his right to appeal as provided for in § 51-297 (g). Although the defendant, representing himself, could not be expected to be aware of this specific statutory opportunity to appeal, neither did he at any point provide the court with notice that he disagreed with and did not accept the determination of the public defender. Absent any statutory or other duty to conduct further investigation into the public defender’s indigency determination or any cognizable appeal of the determination by the defendant, the court was entitled to accept the report of the public defender and proceed with the violation of probation hearing as it did.

The judgments are affirmed.

In this opinion the other judges concurred.

       General Statutes (Rev. to 2005) § 53a-32 provides in relevant part: “(a) At any time during the period of probation or conditional discharge, the court or any judge thereof may issue a warrant for the arrest of a defendant for violation of any of the conditions of probation or conditional discharge, or may issue a notice to appear to answer to a charge of such violation, which notice shall be personally served upon the defendant. Any such warrant shall authorize all officers named therein to return the defendant to the custody of the court or to any suitable detention facility designated by the court. . . . Upon such arrest and detention, the probation officer shall immediately so notify the court or any judge thereof. Thereupon, or upon an arrest by warrant as herein provided, the court shall cause the defendant to be brought before it without unnecessary delay for a hearing on the violation charges. At such hearing the defendant shall be informed of the manner in which such defendant is alleged to have violated the conditions of such defendant’s probation or conditional discharge, shall be advised by the court that such defendant has the right to retain counsel and, if indigent, shall be entitled to the services of the public defender, and shall have the right to cross-examine witnesses and to present evidence in such defendant’s own behalf.
      “(b) If such violation is established, the court may: (1) Continue the sentence of probation or conditional discharge; (2) modify or enlarge the conditions of probation or conditional discharge; (3) extend the period of probation or conditional discharge, provided the original period with any extensions shall not exceed the periods authorized by section 53a-29; or (4) revoke the sentence of probation or conditional discharge. If such sentence is revoked, the court shall require the defendant to serve the sentence imposed or impose any lesser sentence. Any such lesser sentence may include a term of imprisonment, all or a portion of which may be suspended entirely or after a period set by the court, followed by a period of probation with such conditions as the court may establish. No such revocation shall be ordered, except upon consideration of the whole record and unless such violation is established by the introduction of reliable and probative evidence and by a preponderance of the evidence.”
      We note that § 53a-32 was revised in 2008. See Public Acts 2008, No. 08-102, § 7. Those amendments, however, are not relevant to this appeal. Therefore, all references to § 53a-32 hereafter are to the 2005 revision.

       The following colloquy took place between the court and the defendant:
      “The Court: Have you been trying [to secure counsel] since April . . . ?
      “[The Defendant]: Yes.
      “The Court: See, here’s the problem. I can’t give you forever. And, you know, the concern that one might have is that axe you really trying to get a lawyer or since you’re out on—
      “[The Defendant]: Yes.
      “The Court: Just hear me out for a minute. Since you’re out on bond and a delay doesn’t really hurt you because you’re out on bond, you know, maybe you’re not trying as hard as you really need to try to get a lawyer, because, you know, you don’t mind continuing things because your life goes on as before.
      “So, at some point there needs to be an end to this. And so if you are eligible for a public defender, do you want to be represented by a public defender?
      “[The Defendant]: Uh-uh, because—
      “The Court: You’re shaking your head no?
      “[The Defendant]: Cause at first [attorney] Gannon—Gannon told me, like, a whole different story. I’m getting like a whole—
      “The Court: Well, I don’t really—here’s the problem. The problem is, if you’ve been given since April to get an attorney, it’s now December, that’s eight months. That’s a long time. And at some point we need to move forward, and you’ve been given every opportunity to get a lawyer, and for whatever reason haven’t gotten one. So, that’s the problem I’m facing.”
      Attorney Gannon’s first name is not apparent from the record.

       The colloquy between the court and the defendant was as follows:
      “The Court: Now, it’s my understanding . . . from the public defender’s office, that you refused to apply for their services; is that correct?
      “[The Defendant]: Yes.
      “The Court: Now, I just want to go over a couple of things with you. Do you understand that if you’re not—if you cannot afford to hire an attorney and you’re found to be indigent, you could have an attorney appointed for you from the public defender’s office; do you understand that?
      “[The Defendant]: Yes.
      “The Court: And it’s my understanding that you don’t want to pursue that option; is that right?
      “[The Defendant]: Yes.
      “The Court: And you understand that if you end up going forward without an attorney, you could be at a severe disadvantage; do you understand that?
      “[The Defendant]: Yes.
      “The Court: You don’t know the rules of criminal evidence, correct?
      “[The Defendant]: No.
      “The Court: You don’t know the rules of criminal procedure, correct?
      “[The Defendant]: No.
      “The Court: And you understand that [the prosecutor] does.
      “[The Defendant]: Yes.
      “The Court: And that the rules of evidence are going to apply to this proceeding. The rules of criminal procedure are going to apply to this proceeding, and the fact that you’re not a lawyer, if you end up representing yourself, I’m not going to cut you any slack for that. Those rules are still going to apply. They’re going to apply to the state; they’re going to apply to you; do you understand that?
      “[The Defendant]: Yes.
      “The Court: And you understand that this is a violation of probation hearing?
      “[The Defendant]: Yes.
      “The Court: And that you’re facing four years of incarceration.
      “[The Defendant]: Uh-huh.
      “The Court: That if I find that you violated probation and if I find that the purposes of probation are no longer being served, that I could ultimately sentence you to four years in jail, if you’re found to have violated your probation; do you understand that?
      “[The Defendant]: Yes.
      “The Court: And you understand the claim is that you committed—that you violated the criminal law while you were out on probation, that you assaulted someone with a knife on September 23, 2006; do you understand that?

        “[The Defendant]: Yes.
      “The Court: That’s what the claim is. And you still don’t want to apply— knowing all this, knowing everything I told you, what you’re facing, the disadvantages you’re under, you still don’t want to apply l'or a public defender; is that correct?
      “[The Defendant,]: Yes.”

       The defendant subsequently was convicted of the underlying offense, assault in the second degree in violation of § 53a-60, on January 31, 2008. His appeal is not moot, however, because his claims pertain to both the evidentiary phase and the dispositional phase of his violation of probation hearing. See State v. Preston, 286 Conn. 367, 381-82, 944 A.2d 276 (2008) (holding that “when the defendant has raised a claim that the trial court abused its discretion in rendering its judgment during the dispositional phase, practical relief is available even when there is no live controversy as to whether the defendant committed the underlying offense and, therefore, the claim is not moot”).

       The defendant also requests review of his claims pursuant to the plain error doctrine. See Practice Book § 60-5. Outside of a citation to the applicable rule of practice and a brief case law citation defining the doctrine, the defendant has provided this court no separate analysis under the doctrine. We therefore decline to review the claims for plain error, concluding that they are briefed inadequately. See Pestey v. Cushman, 259 Conn. 345, 373, 788 A.2d 496 (2002).