author: BEACH, J.

text:
    ANNA T. POLLANSKY v. STEVEN POLLANSKY ET AL.
    (AC 34630)
    Lavme, Beach and Keller, Js.

      Argued March 21
    officially released July 16, 2013

      Robert F. Cohen, with whom, on the brief, was Sarah Ann Cohen, for the appellants (defendants).

      Wayne Christopher Gerlt, for the appellee (plaintiff).
   Opinion

BEACH, J.

The defendants, Steven Poliansky, Darby Poliansky, Kyle Poliansky, Anna P. Poliansky, Skyland Properties, LLC, and Poliansky Construction, LLC, appeal from the trial court’s judgment of possession rendered in favor of the plaintiff, Anna T. Poliansky. The defendants claim that (1) the court erred in finding that the notice to quit pursuant to General Statutes § 47a-23 (a) (3) was valid, (2) the notice to quit was invalid specifically as to Kyle Poliansky and Anna P. Poliansky, the plaintiffs grandchildren, and (3) the defendants were prejudiced by several of the court’s evidentiary rulings. We affirm the judgment of the trial court.

The following facts, as found by the trial court, Cobb, J., and procedural history are relevant to our resolution of this appeal. In the 1960s, the plaintiff and her late husband, Andrew Poliansky, jointly purchased three adjoining parcels of land in Coventry, totaling 84.5 acres (property). Over the years, the property had been used for commercial and recreational purposes; there were no residences on the property. Andrew Poliansky operated a sand and gravel business on the property until he retired in approximately 1992. Steven Poliansky, the son of Andrew Poliansky and the plaintiff, worked in his father’s gravel business on the property from his teenage years until his father retired. After Andrew Pol-iansky retired, he and the plaintiff permitted the defendants—Steven Poliansky; his wife, Darby Poliansky; and their children Kyle Poliansky and Anna P. Polian-sky—to access the property for recreational proposes and, as to Steven Poliansky and Darby Poliansky, for operation of their businesses, Poliansky Construction, LLC, and Skyland Properties, LLC. The plaintiff and Andrew Poliansky gave Steven Poliansky and Darby Poliansky permission to operate their businesses on the property, but there were no written agreements or leases to that effect.

When Andrew Poliansky died in July, 2010, the plaintiff became the sole owner of the property. The plaintiff, who was in her eighties at the time of trial, wished to sell or to rent the property to subsidize her income. The plaintiff asked the defendants to pay rent for the use of the property for their businesses, but the parties had not been able to come to any agreement on rent. As a result, the plaintiff asked the defendants to vacate the property so that she could sell or rent it to obtain additional income, but the defendants refused to do so.

The plaintiff brought a summary process action against the defendants seeking immediate possession of the property. The plaintiff claimed that, although the defendants once had the right and privilege to occupy the property, that right or privilege had terminated. The defendants alleged two special defenses: that Andrew Poliansky had granted one or more of the defendants an ownership interest in the property; and Kyle Polian-sky and Anna P. Poliansky’s period of occupancy legally began only when they turned eighteen.

The court found that the plaintiff proved her summary process action: that she was the owner of the property, that she continued to permit the defendants to operate a business on the property after her husband’s death, that she terminated her permission when she asked the defendants to vacate the premises and served them with a valid notice to quit, and that the defendants remained in possession. The court found that the defendants had not proven their special defenses. The court entered a judgment of immediate possession in favor of the plaintiff. This appeal followed.

“Summary process is a special statutory procedure designed to provide an expeditious remedy. ... It enable [s] landlords to obtain possession of leased premises without suffering the delay, loss and expense to which, under the common-law actions, they might be subjected by tenants wrongfully holding over then-terms. . . . Summary process statutes secure a prompt hearing and final determination. . . . Therefore, the statutes relating to summary process must be narrowly construed and strictly followed.” (Internal quotation marks omitted.) Sullivan v. Lazzari, 135 Conn. App. 831, 835, 43 A.3d 750, cert. denied, 305 Conn. 925, 47 A.3d 884 (2012).

I

The defendants first claim that the court erred in finding that the notice to quit pursuant to § 47a-23 (a) (3) was valid. We disagree.

We begin by setting forth the “standard of reviewing challenges to the trial court’s subject matter jurisdiction in a summary process action on the basis of a defect in the notice to quit. Before the [trial] court can entertain a summary process action and evict [an occupant], the owner of the land must previously have served the [occupant] with notice to quit. ... As a condition precedent to a summary process action, proper notice to quit [pursuant to § 47a-23] is a jurisdictional necessity. . . . This court’s review of the trial court’s determination as to whether the notice to quit served by the plaintiff effectively conferred subject matter jurisdiction is plenary.” (Citations omitted; internal quotation marks omitted.) Bayer v. Showmotion, Inc., 292 Conn. 381, 388, 973 A.2d 1229 (2009). Furthermore, our review of the defendants’ argument based on the statutory construction of § 47a-23 (a) (3) is plenary. See Spears v. Garcia, 263 Conn. 22, 27, 818 A.2d 37 (2003).

On April 28, 2011, the plaintiff served on the defendants a notice to quit possession of the property for the reason that: “The premises described above [are] being occupied by one who originally had the right or privilege to occupy such premises but such right or privilege has terminated (Conn. Gen. Stat. § 47a-23 [a] [3]).” The court found that the plaintiffs notice to quit was valid.

Section 47a-23 provides in relevant part: “(a) When . . . the owner’s . . . legal representative . . . desires to obtain possession or occupancy of any land or building . . . and ... (3) when one originally had the right or privilege to occupy such premises but such right or privilege has terminated . . . such owner’s . . . legal representative . . . shall give notice to each . . . occupant to quit possession or occupancy of such land [or] building . . . before the time specified in the notice for the . . . occupant to quit possession or occupancy.”

The defendants argue that the use of the present perfect tense in the phrase “has terminated” in § 47a-23 (a) (3) means that, in order for the notice to quit to be valid, the right or privilege to occupy must terminate at some point prior to the delivery of the notice to quit and that the notice to quit cannot itself constitute the termination of the right or privilege to occupy. The defendants seem to argue that because the complaint claims that the notice to quit itself terminated the right or privilege, it alleges a legal impossibility and thus does not state a cause of action.

The defendants’ argument is based on the legislature’s usage of the present perfect tense in the phrase “has terminated” in § 47a-23 (a) (3). “Words and phrases are to be construed according to the commonly approved usage of the language . . . .” General Statutes § 1-1 (a); see also Caldor, Inc. v. Heffernan, 183 Conn. 566, 570, 440 A.2d 767 (1981). “The use of the present perfect tense of a verb indicates an action or condition that was begun in the past and is still going on or was just completed in the present.'” (Emphasis added.) Schieffelin & Co. v. Dept. of Liquor Control, 194 Conn. 165, 175, 479 A.2d 1191 (1984). Accordingly, under a technical, though perhaps somewhat metaphysical, examination of the usage of the present perfect tense, a termination that occurs simultaneously with the delivery of a notice to quit was “just completed in the present.”

Moreover, § 47a-23 (a) (3) unambiguously provides that upon termination of the right or privilege to occupy, the owner must provide each occupant with a notice to quit. This section does not expressly provide that an owner’s decision to terminate an occupant’s right or privilege to occupy must be made known to each occupant at a time prior to the delivery of the notice to quit. If the legislature wanted to provide for such additional notice, it could have done so. See McCoy v. Commissioner of Public Safety, 300 Conn. 144, 150, 12 A.3d 948 (2011) (“[o]ur fundamental objective is to ascertain and give effect to the apparent intent of the legislature” [internal quotation marks omitted]).

Although § 47a-23 (a) (3) is unambiguous in the present context, an examination of the statute as a whole further buttresses the conclusion that the notice to quit can occur simultaneously with the termination of the right or privilege to occupy. Section 47a-23 (a) (1) provides that when a lessor desires to obtain possession of a property and “when a rental agreement or lease of such property • • • terminates” for any of several enumerated reasons, the lessor “shall give notice to each lessee ... to quit possession or occupancy. . . .” Under this subsection, “[sjervice of a notice to quit possession is typically a landlord’s unequivocal act notifying the tenant of the termination of the lease.” (Internal quotation marks omitted.) Centrix Management Co., LLC v. Valencia, 132 Conn. App. 582, 587, 33 A.3d 802 (2011). If a notice to quit can be sufficient to terminate a lease, it follows, a fortiori, that a notice to quit can be sufficient under (a) (3) where an occupant has no continuing right to occupy and an owner can decide to terminate a tenancy at any time. Section 47a-23 (a) (2), which was added at the same time as (a) (3), also by its plain terms does not include any additional notice procedures beyond a notice to quit. Cf. General Statutes § 47a-15 (pretermination notice). The legislature did not expressly provide for any different procedure to apply to § 47a-23 (a) (3). For the foregoing reasons, we conclude that the court properly determined that the notice to quit was valid.

II

The defendants Anna P. Poliansky and Kyle Polian-sky, grandchildren of the plaintiff, claim that the court erred in finding that the notice to quit given to them and the grounds on which it was based were valid. We disagree.

Our review of the court’s ruling on the validity of the notice to quit is plenary. See Bayer v. Showmotion, Inc., supra, 292 Conn. 388.

The court rejected the defendants’ second special defense that the notice to quit was invalid as to Anna P. Poliansky and Kyle Poliansky. The court determined that the notice to quit, which was served on April 28, 2011, and which cited the grounds in § 47a-23 (a) (3) as to all defendants, was valid. More importantly, the court found that both Anna P. Poliansky and Kyle Pol-iansky, like their parents, had permission to occupy the premises and that that permission had terminated. Anna P. Poliansky and Kyle Poliansky argue that the court erred in determining that the notice to quit was valid as to them because notice properly should have been issued under § 47a-23 (a) (2). Prior to the service of the notice to quit, the argument goes, they never had the privilege to occupy the premises.

The relevant provisions of § 47a-23 are as follows: “(a) When . . . the owner’s . . . legal representative . . . desires to obtain possession or occupancy of any land or building . . . and ... (2) when such premises, or any part thereof, is occupied by one who never had a right or privilege to occupy such premises; or (3) when one originally had the right or privilege to occupy such premises but such right or privilege has terminated . . . such owner’s ... legal representative . . . shall give notice to each . . . occupant to quit possession or occupancy of such land [or] building . . . before the time specified in the notice for the . . . occupant to quit possession or occupancy.”

Anna P. Poliansky argues that prior to her turning eighteen she would not have been separately named on the notice to quit and, because she was served with a notice to quit on the day of her eighteenth birthday, she never had a chance to obtain a right or privilege to occupy the premises; her occupancy is simply that of a person who turned eighteen, not a tenant. She argues that because she never had a privilege to occupy the premises, the proper ground for the notice to quit would be § 47a-23 (a) (2).

Anna P. Poliansky is correct in that it is not necessary to include the names of minor children in a notice to quit. Sullivan v. Lazzari, supra, 135 Conn. App. 841; see also General Statutes § 47a-26h (a) (1) (summary process judgment shall bind any minors holding under named defendants). Her argument concerning April 27, 2011, the date of her eighteenth birthday, however, is misplaced. The notice to quit was dated April 27, 2011, but was served on April 28, 2011. A notice to quit is effective on the date it is served. See Vidiaki, LLC v. Just Breakfast & Things!!! LLC, 133 Conn. App. 1, 24, 33 A.3d 848 (2012) (rental agreement terminated when valid notice to quit was “served”). While service on her eighteenth birthday may have been sufficient, service the following day was clearly sufficient to serve her as an adult. The court found that the plaintiff gave the defendants, necessarily including Anna P. Poliansky, permission to access the property for recreational and business purposes. As explained in part I of this opinion, the permission terminated on the day the notice to quit was served—April 28, 2011. Because Anna P. Poliansky had permission to be on the property and because that permission had terminated, the notice to quit properly cited § 47a-23 (a) (3) as to her.

Kyle Poliansky argues that, although he was not a minor when served with the notice to quit dated April 27, 2011, “he was not a party to the dismissed prior action, he never received any written or verbal communication by the plaintiff that she wanted him gone, and he too received his first notice with the April 27, 2011 notice to quit.” Apparently, he argues that had he been a party to a prior action, he would have known that permission had been terminated.

Whether Kyle Poliansky was a party to a prior dismissed summary process action does not affect the validity of the present notice to quit. It does not matter whether he received notice, prior to the service of a notice to quit on April 28, 2011, that his permission to use the property had terminated, because such notice is not required. See part I of this opinion. The court found that, like the other defendants, he had been given prior permission to use the property, and that permission was later revoked. Accordingly, § 47a-23 (a) (3) was properly cited as grounds for the notice to quit.

We conclude that the court properly determined that the notice to quit dated April 27, 2011, and served April 28,2011, was valid as to Anna P. Poliansky and Kyle Pol-iansky.

Ill

The defendants last claim that “they were treated far differently at trial than the plaintiff was treated at trial. Evidence that the plaintiff was allowed to present was not allowed to be rebutted by the defendant. This created a substantially uneven playing field for the defendants.” We disagree.

“The trial court’s ruling on the admissibility of evidence is entitled to great deference. . . . [T]he trial court has broad discretion in ruling on the admissibility ... of evidence . . . [and its] ruling on evidentiary matters will be overturned only upon a showing of a clear abuse of the court’s discretion. . . . We will make every reasonable presumption in favor of upholding the trial court’s ruling, and only upset it for a manifest abuse of discretion. . . . Moreover, evidentiary rulings will be overturned on appeal only where there was an abuse of discretion and a showing by the [appellant] of substantial prejudice or injustice.” (Internal quotation marks omitted.) Viera v. Cohen, 283 Conn. 412, 452, 927 A.2d 843 (2007).

A

The defendants argue that the court erred in permitting the plaintiff to present evidence, over the defendants’ objection, about personal property located on the premises and not allowing the defendants to introduce rebuttal evidence.

The plaintiff testified that she did not want equipment, such as bulldozers and trucks, owned by her late husband, to be removed from the property. The plaintiffs attorney stated that evidence of personal property was relevant because the plaintiff was requesting an order to restrain the defendants’ removal of these items. The court overruled the objection and stated “you can argue in your brief why it shouldn’t be relevant to these proceedings.” Without objection, the plaintiffs counsel submitted into evidence a list of equipment the plaintiff did not want removed from the property. When Steven Poliansky testified on direct examination regarding his maintenance and financial contributions of specific items on the list, the plaintiffs counsel objected. The court stated that the plaintiff brought a summary process action and “I don’t know why we’re spending all our time on this because I’m not going to decide in this case who gets that property. I’m only going to decide who gets to stay and who’s going. ... I didn’t know what it was when I heard it the first time. Does anyone disagree that I’m not going to decide who gets the property in the lawsuit?” Counsel for both parties stated that they did not disagree.

In permitting the plaintiff to admit evidence of personal property and instructing defendants’ counsel to include arguments regarding the relevancy of this evidence in the defendants’ brief, the court, in essence, was deferring its ruling on the relevancy of such evidence. The court later indicated that it deemed such evidence irrelevant and stated that it would not decide the issue of ownership of such personal property and both parties agreed. The court, then, did not expressly rule on the plaintiffs request. The court did not abuse its discretion in its actions. The defendants were not treated “differently” or “unfairly” as they claim—the court ruled that it would not consider ownership of personal property as to either party.

B

The defendants next seem to argue that the following finding made by the court was clearly erroneous: after the death of the plaintiffs husband “and without the plaintiffs permission, the defendants changed the locks on the property and the plaintiff had difficulty entering her property.” The defendants highlight Steven Polian-sky’s testimony that the locks on the gate to the property were changed while Andrew Poliansky was alive. The defendants state in their brief that the lock issue “may very well be irrelevant to a summary process action.”

This finding was not clearly erroneous. See Zatakia v. Ecoair Corp., 128 Conn. App. 362, 370, 18 A.3d 604 (findings of fact reviewed under clearly erroneous standard), cert. denied, 301 Conn. 936, 23 A.3d 729 (2011). The court was free to discredit Steven Poliansky’s testimony and credit the plaintiffs testimony that a new lock had been put on the gate after her husband passed away. United Technologies Corp. v. East Windsor, 262 Conn. 11, 26, 807 A.2d 955 (2002) (trier of fact sole arbiter of credibility). That notwithstanding, as the defendants aptly point out, the court’s finding regarding the lock was not relevant to its judgment. Accordingly, the propriety of the court’s finding in that regard is immaterial.

C

On cross-examination of Steven Poliansky, the court permitted plaintiffs counsel, over an objection by defendants’ counsel, to introduce into evidence a partial transcript of Andrew Poliansky’s 1995 deposition in a separate case. The court stated, “I see it as a question on cross-examination, not necessarily offered for the truth but to impact the credibility of [Steven Poliansky] who’s testified that [Andrew Poliansky] always said he was giving him the property . . . Steven Poliansky testified that the deposition stated that Andrew Polian-sky did not know to whom he was planning to leave the property.

The defendants argue that they were prejudiced by the court’s admission of a partial deposition transcript “without the benefit of being able to cross-examine on other points in the transcript. . . . Steven could not answer questions without the full transcript. In the court’s decision the testimony of Steven is discredited on this basis.” (Citation omitted.)

The court found that the defendants failed to prove their special defense that they had an ownership interest in the property granted to Steven Poliansky by Andrew Poliansky. The court noted that the defendants did not produce at trial any written documents, including testamentary documents, deeds or contracts granting Steven Poliansky or any of the defendants an interest in the property. The court stated that the written documents introduced at trial reflected that as co-owner of the property, upon the death of Andrew Pol-iansky, the property would be the plaintiffs, absent any countervailing agreement or gift. The court stated that regardless of whether oral statements could be sufficient to create an ownership interest in the property, it did not find credible Steven Poliansky’s testimony that his father orally promised to leave the property to him. The court credited the plaintiffs testimony that she was not aware her husband made any such promises; the court further noted that as co-owner of the property, the plaintiffs interest in the property could not be given away without her consent.

The court did not abuse its discretion in admitting the partial deposition transcript for impeachment purposes. See Conn. Code Evid. § 8-8 (“[w]hen hearsay has been admitted in evidence, the credibility of the declarant may be impeached, and if impeached may be supported, by any evidence that would be admissible for those purposes if the declarant had testified as a witness”). If the defendants wished to have the full deposition transcript admitted into evidence, they could have done so.

D

Over the defendants’ objection, the court permitted the plaintiff to introduce testimony of an expert appraiser. The court, Cobb, J., permitted the plaintiffs expert to testify based on the plaintiffs representation that the court, Mullarkey, J., verbally ordered the plaintiff to present an expert appraisal in connection with a motion for use and occupancy payments. The court, Cobb, J., at trial, reasoned that the defendants had notice of the witness because of Judge Mullarkey’s order and further stated that it would give the defendants time to bring in their own appraiser, if they wished to do so. The plaintiff introduced at trial the expert’s report on the value of the property and elicited testimony from the expert regarding the fair market rental value of the property. The defendants argue that the court erred in admitting the expert testimony because the plaintiff did not provide notice of her expert under Practice Book § 13-4 and because the testimony was prejudicial. The defendants argue that regardless of Judge Mullarkey’s prior order and regardless of the fact that the hearing on use and occupancy did not occur, the testimony nonetheless was prejudicial.

Because the court did not decide the issue of use and occupancy payments, any testimony regarding the value of the land was immaterial and, accordingly, did not harm the defendants.

The judgment is affirmed.

In this opinion the other judges concurred.

       The notice to quit was signed by the plaintiffs attorney.

       The defendants also cite Bershtein Enterprises, LLC v. Jim Powers, Superior Court, judicial district of New Haven, Housing Session, Docket No. 0212-73629 (November 1, 2004), in support of their argument that § 47 a-23 (a) (3) requires that the right or privilege to occupy must have been terminated prior to the delivery of the notice to quit. First, Bershtein Enterprises, LLC, is not binding authority and second, it is factually distinguishable on the basis that the court found that the defendant in that case had a continuing right or privilege to use the premises on the basis of having been granted a life use of the premises. That right could not be arbitrarily terminated by any notice, including a notice to quit, in contradistinction to a privilege granted by the benevolence of the owner.

       Somewhat fancifully, perhaps, the owner necessarily has made the determination to terminate the privilege prior to serving a notice to quit.

       Originally, the remedy of summary process applied only in cases involving a lease that had been terminated. Sullivan v. Lazzari, supra, 135 Conn. App. 838. The Public Acts of 1957, No. 291, § 1, amended the statute now codified as § 47a-23, to include (a) (2) and (a) (3), in other words, to include situations in which premises are claimed to be “occupied by one who has no right or privilege to occupy said premises, or where one originally has the right or privilege to occupy said premises but such right or privilege has terminated and the owner . . . shall desire to obtain possession or occupancy of the same . . . Public Acts 1957, No. 291, § 1; see Sullivan v. Lazzari, supra, 838.

       General Statutes § 47a-23 (a) (2) provides that when an owner desires to obtain possession of a premises and “when such premises, or any part thereof, is occupied by one who never had a right or privilege to occupy such premises . . . such owner’s . . . legal representative . . . shall give notice to each . . . occupant to quit possession or occupancy” of such premises.

       Under the defendants’ grammatical construction, a notice to quit presumably would be valid if some sort of additional notice had been handed to a defendant a moment before service of the notice to quit. We do not presume such bizarre results.

       According to the undisputed evidence submitted at trial, Anna P. Polian-sky turned eighteen on April 27, 2011. Both parties agree to this date on appeal.

       To the extent that this permission was given to Anna P. Poliansky as a minor, that permission is not negated simply by virtue of her having turned eighteen.

       During redirect examination of Steven Poliansky, the defendants’ counsel did not attempt to enter into evidence the full deposition transcript.


source: Caselaw Access Project

author: KELLER, J.

license: Public Domain

text:
    TRENDEL TUTSON v. COMMISSIONER OF CORRECTION
    (AC 32988)
    Robinson, Bear and Keller, Js.

      Argued April 15
    officially released July 16, 2013

      Temmy Ann Pieszak, chief of habeas corpus services, with whom, on the brief, was Rebecca I. Bodner, assistant public defender, for the appellant (petitioner).

      Michele C. Lukban, senior assistant state’s attorney, with whom, on the brief, were Gail P. Hardy, state’s attorney, and Jo Anne Sulik, supervisory assistant state’s attorney, for the appellee (respondent).
   Opinion

KELLER, J.

The petitioner, Trendel Tutson, appeals following the denial of his petition for certification to appeal from the judgment of the habeas court denying his amended petition for a writ of habeas corpus. The petitioner claims that the habeas court abused its discretion when it denied the petition for certification to appeal and that the court improperly (1) failed to read all of the exhibits introduced at the habeas proceeding and that this failure is reflected in gross factual errors in the court’s decision; (2) concluded that he was not prejudiced by his trial counsel’s mishandling of his alibi defense; and (3) concluded that he received effective assistance from his trial counsel. Because the petitioner has failed to demonstrate that the court improperly denied the petition for certification to appeal, we dismiss the appeal.

In 2002, the petitioner was convicted of attempt to commit murder in violation of General Statutes §§ 53a-54a and 53a-49, and assault in the first degree in violation of General Statutes § 53a-59 (a) (5). He was sentenced to twenty years incarceration. After considering the claims raised by the petitioner in his direct appeal, this court, concluding that the trial court violated the petitioner’s right to present a defense, reversed the judgment of conviction and remanded the case for a new trial. State v. Tutson, 84 Conn. App. 610, 627-28, 854 A.2d 794 (2004). Following a grant of certification to appeal; State v. Tutson, 271 Conn. 935, 861 A.2d 511 (2004); our Supreme Court reversed this court’s judgment, and remanded the case to this court to consider a claim that this court, in its earlier decision, did not resolve. State v. Tutson, 278 Conn. 715, 718, 899 A.2d 598 (2006). Following that remand, this court affirmed the judgment of conviction. State v. Tutson, 99 Conn. App. 655, 915 A.2d 344 (2007).

The facts underlying the petitioner’s conviction were set forth previously by this court, as follows: “[0]n March 26, 2001, between 1 and 1:30 p.m. . . . Ernesto Molina was driving a 1992 red Volkswagen Jetta on Bond Street in Hartford, looking to buy marijuana. Molina was joined by two passengers, Jorge Pagan, Molina’s best friend, who sat in the front passenger seat, and Michael Alvarado, who sat in a backseat. As the vehicle traveled on Bond Street, Molina and Pagan noticed a small white car traveling toward them in the opposing lane. They also noticed that there was a passenger in the front seat. As the cars passed, Molina and Pagan saw the face of the driver of the white car.

“After the vehicles passed, the white car turned around and, with increasing speed, began following the red Jetta on Bond Street. Molina and Pagan noticed this and became concerned. In an attempt to elude the car, Molina increased his speed to eighty-five to ninety-five miles per hour and drove through stop signs and traffic lights. Molina ultimately turned onto Brownell Avenue and the white car did the same. As the cars were traveling at fifty-five miles per hour, Molina looked in his rearview mirror and saw a long black pole, which he thought was a rifle, come out of the driver’s side window of the white car and turn in the direction of the Jetta. Molina then heard a noise and felt something strike the back of his head. A large caliber bullet had pierced the back of the Jetta and traveled through the vehicle’s trunk and passenger compartment. A fragment of that bullet lodged in the back of Molina’s head. Although injured, Molina kept driving, turning right onto Broad Street and continuing to Hartford Hospital. The white car did not follow the Jetta, turning left onto Broad Street instead.

“At the hospital, the police immediately were notified of the incident. They arrived at the hospital shortly thereafter and briefly spoke with Molina, Pagan and Alvarado regarding the shooting. The police also conducted a formal interview of Pagan at the police station during which Pagan described the driver and passenger of the white car.

“Approximately one hour after arriving at the hospital, the police were contacted by the security department from the Learning Corridor (Corridor). The police were told that a member of the Corridor’s security personnel was walking to lunch between 1 and 1:30 p.m., when he heard what sounded like a gunshot resonating from Brownell Avenue. The police also were notified that this security officer searched Brownell Avenue after he learned about the shooting and recovered a twelve gauge shotgun shell from the north side of the street. The police ultimately took the shell into their possession. At that time, it was neither dirty nor rusty and did not appear to have been on the street for a long time. The shell, however, was never tested for fingerprints. The police also took a videotape from the Corridor’s exterior surveillance camera. That tape revealed that two vehicles, one red, one white, were on Brownell Avenue and that the red vehicle turned right onto Broad Street while the white vehicle turned left. Neither gunfire nor the make of the vehicles could be discerned from the video. In addition, the video was time-stamped in a manner that made it unclear that the events depicted actually occurred on March 26, 2001.

“Approximately twelve hours after the shooting, at roughly 2 a.m. on March 27, 2001, Pagan, while driving to a gas station to buy a beverage, observed that he was being followed by the [petitioner] in a white Dodge Neon (Neon). Pagan immediately notified police officers that the vehicle that had been involved in the earlier shooting was following him. The police located the Neon and pursued it, but it fled, turning its headlights off in the process. Shortly thereafter, the police located the vehicle in the rear yard of 61 Whitmore Street. The vehicle appeared abandoned; the engine was not running, although it was still warm, and the doors were wide open. A short distance away, the police found the [petitioner] and Philip Washington hiding beneath some cars. Thereafter, the police brought Pagan to the scene where he positively identified the [petitioner] as the driver of the Neon in the earlier shooting and Washington as its passenger.

“The police subsequently discovered that Rooty Thomas, who lived in Meriden, was the lessee of the Neon. Once contacted, Rooty Thomas gave the police permission to search the vehicle.

“The police performed gunshot residue tests on the hands of the [petitioner] and Washington as well as on the exterior and interior surfaces of the driver’s and passenger’s doors of the Neon. These tests disclosed lead particles on the palm of the [petitioner]’s left hand as well as on the back of his right hand. They further revealed the presence of lead, barium and antimony on the palm of Washington’s left hand and lead particles on the exterior of the vehicle’s passenger door.

“On April 5, 2001, Molina identified the [petitioner] from a photographic array shown to him by the Hartford police, and on March 8, 2002, Pagan did the same. No weapon was ever recovered.

“Trial of this matter began on March 11, 2002. The state alleged that the [petitioner] was guilty of criminal attempt to commit murder and assault in the first degree as either a principal or an accessory. The [petitioner] ⅛ theory of the case was that the eyewitnesses misidentified him as the perpetrator of the crime because, at the relevant time, he was at a location other than the scene of the crime and, therefore, he could not have committed it.

“In support of its case, the state offered the testimony of two eyewitnesses. The first was Molina who testified, inter alia, that he was positive that the [petitioner] was the driver of the Neon during the shooting. He also identified Rooty Thomas’ leased Neon as the vehicle involved in the incident, and he identified the [petitioner] as its driver.

“The second eyewitness offered by the state was Pagan. Pagan testified that the car involved in the shooting was a white Dodge Neon and that he recognized it and the [petitioner] as its driver from his previous observations of the [petitioner] and the Neon in his neighborhood. He also said he recognized the passenger in the Neon, although he did not know his name. Pagan further stated that he initiated a conversation with the [petitioner] on March 4, 2002, in which the [petitioner] told Mm that he ‘had no beef with’ him, that he wanted Pagan to help him, and that he wanted Pagan to apologize to Molina for him. Finally, he testified that he had never had any problems with the [petitioner] prior to the incident. Pagan also provided an in-court identification of the [petitioner] as the driver of the Neon.

“During cross-examination, defense counsel brought out an inconsistency in Pagan’s testimony. Although Pagan’s statement to the police indicated that he saw the passenger side window of the Neon down during the chase, at trial he testified that he saw the driver’s side window down. In an effort to explain himself, Pagan stated that he never said that to the police. Upon reading Ms statement, he testified that he was mistaken and that the driver’s side window was down. Pagan then testified that ‘[a]t the time ... I wasn’t really thinking about—I didn’t even want to do the statement’ and, later, that Ms statement was right the whole time but that sometimes he can get confused.

“Defense counsel also elicited testimony from Pagan that he had discussed the identification of the driver of the Neon with Molma after March 26, 2001. Defense counsel elicited that testimony in an attempt to show that Pagan influenced Molina’s memory of the events. Finally, Pagan testified that he had a criminal case pending in Hartford.

“Detective Andrew Weaver, the officer in charge of the investigation, also testified for the state. According to Weaver, the bullet hole in the Jetta was consistent with a ‘shotgun round’ also classified as ‘a hunting slug or a one ounce deer-type slug.’ Weaver also testified that the suspect veMcle was described as a ‘Dodge Neon wMte in color’ and that a lead fragment was recovered from the Jetta wMch was consistent with twelve gauge ‘shotgun slug ammumtion.’

“On cross-examination, Weaver testified that Molina’s statement to the police only described the occupants of the Neon as ‘two black males’ and that he could not remember if Molina identified the vehicle as a white Dodge Neon. The state also offered as evidence the expert testimony of Fung Kwok, a criminalist at the state forensic laboratory. Kwok’s testimony concerned the results of the gunshot residue tests performed on the Neon, the [petitioner] and Washington. Kwok stated that given the absence of barium and antimony in the results of the testing done on the [petitioner] and the Neon, it was 50 percent conclusive that the residue found was gunshot residue, but testing was 100 percent conclusive that the residue found on Washington was from a gunshot. Kwok further stated that, in his opinion, that was not a positive finding that the [petitioner] fired a gun, but it was a positive finding that Washington fired a gun.

“Dining cross-examination, Kwok acknowledged that the [petitioner] could have gotten lead on his hands from a number of activities because lead is ‘very, very common in the environment’ and is found in everyday substances like automobile paint, crystal and batteries. He further stated that there was no lead, barium or antimony found on the samples taken from the interior of the Neon’s doors.

“After the state rested, the [petitioner] mounted a defense based on the theories of misidentification and alibi. In support of those theories, he presented evidence in an effort to give the jury another perspective on the identity of the pexpetrator of the crime.

“First, Julia Thomas testified that on March 26, 2001, between 12:30 p.m. and 1 p.m., she arrived at her home in Hartford and found the [petitioner] visiting her son Tyrell. She further stated that the [petitioner] stayed for another ten to fifteen minutes and, as he was leaving, told her that ‘his girl was waiting outside for him’ and that he had to ‘take his girl, go with his girl wherever they had to go.’ She testified that when she arrived at home, she did in fact see a woman sitting outside in a ‘little white car’ and that she thought there was a ‘little kid’ in the backseat of the car.

“On cross-examination, the state challenged her ability to accurately recall the date of the [petitioner] ’s visit. At the state’s prodding, Julia Thomas conceded that she may have informed an officer that she did not recall the exact date the [petitioner] was at her house; however, she further stated that she knew the date when she was first interviewed about the incident and presently recalled that date.

“The defense also offered the testimony of Rooty Thomas, who stated that she was with the [petitioner] at her home in Meriden on the morning of March 26, 2001, and took him in her Neon to see his friend ‘Rel’ in the south end of Hartford at around 12:30 p.m. or 1 p.m. She also testified that at the time she dropped the [petitioner] off, he was wearing ‘a do-rag’ and a black baseball cap, a description that was somewhat inconsistent with those given by Pagan and Molina.

“The defense then called Molina to testify as a witness to show, inter alia, that Molina’s memory had been influenced by Pagan’s version of the events and that Molina’s ability to recall the events was flawed. Molina testified that he did not speak with Pagan prior to giving his statement to the police a few days after the incident. Upon further probing by the defense, however, Molina contradicted that testimony by stating that he had spoken to Pagan in the hospital before giving his statement to the police and that Pagan had told him what had happened.

“Molina also stated that, since leaving the hospital, he sometimes gets bad migraines and ‘can’t even think straight.’ In addition, he testified that he knew of no reason why someone would have committed this crime against him. Finally, he testified that he smoked marijuana two weeks prior to the shooting.

“As its final witnesses, the defense called Rocco Orlando III, Molina’s attending physician, and Alan Wu, the director of Hartford Hospital’s chemistry and toxicology laboratories. The testimony of both of those men challenged the credibility of Molina as well as his ability to recall accurately the identity of the driver of the Neon. Wu testified that Molina’s medical report indicated that his urine tested positive for the presence of marijuana on March 26, 2001. Similarly, Orlando testified that Molina received a prescription for pain medication even though Molina had testified that he only received a prescription for antibiotics. Orlando also called into question Molina’s ability to accurately recall the incident by testifying that Molina’s recall ability was mildly deficient. When asked if Molina’s memory is rehable, Orlando stated that ‘[a]t the time . . . the psychologist noted a mind deficiency there.’

“On cross-examination, Orlando added that Molina was alert, oriented and speaking at the hospital. He also noted that the medical report dated March 27, 2001, indicated that Molina had ‘detailed recall of the events’ and that the deficits suffered by Molina ‘were not so severe as to impair his ability to recognize people.’ On redirect examination, Orlando then indicated that recall and recognition were different functions, and that although the [petitioner] had no problem with recognition, his recall ability was mildly deficient.

“Once the defense concluded the presentation of its case, the state recalled Weaver and Inspector James Flaherty as rebuttal witnesses. Weaver testified that Rooty Thomas stated to him that the [petitioner] had asked to use her Neon on the morning of March 26, 2001, that she had assented to this request, and that she had not been aware of the location of the vehicle until Weaver contacted her after the shooting. Flaherty testified that he spoke to Julia Thomas regarding the case in September, 2001, and that she was unable to specify the date the [petitioner] was at her home.” State v. Tutson, supra, 84 Conn. App. 612-20.

On February 23,2010, the petitioner filed an amended petition for a writ of habeas corpus. In count one, he alleged that his trial counsel, Sylvia Reid, provided ineffective assistance in a variety of ways. He alleged that Reid failed to file motions to suppress certain out-of-court identifications of him made by Pagan and Molina and to pursue an adequate alibi defense. In count two, the petitioner sought the restoration of his right to sentence review. In an oral decision, the habeas court rejected the petitioner’s claim of ineffective assistance, but restored the petitioner’s right to sentence review.

Thereafter, the petitioner filed a petition for certification to appeal pursuant to General Statutes § 52-470 as well as an application for waiver of fees, costs and expenses and appointment of counsel on appeal. After the court denied the petition for certification to appeal, this appeal followed. Additional facts will be set forth as necessary in the context of the petitioner’s claims.

“We begin by setting forth the applicable standard of review and procedural hurdles that the petitioner must surmount to obtain appellate review of the merits of a habeas court’s denial of the habeas petition following denial of certification to appeal. In Simms v. Warden, 229 Conn. 178, 187, 640 A.2d 601 (1994), we concluded that ... § 52-470 (b) prevents a reviewing court from hearing the merits of a habeas appeal following the denial of certification to appeal unless the petitioner establishes that the denial of certification constituted an abuse of discretion by the habeas court. In Simms v. Warden, 230 Conn. 608, 615-16, 646 A.2d 126 (1994), we incorporated the factors adopted by the United States Supreme Court in Lozada v. Deeds, 498 U.S. 430, 431-32, 111 S. Ct. 860, 112 L. Ed. 2d 956 (1991), as the appropriate standard for determining whether the habeas court abused its discretion in denying certification to appeal. This standard requires the petitioner to demonstrate that the issues are debatable among jurists of reason; that a court could resolve the issues [in a different maimer]; or that the questions are adequate to deserve encouragement to proceed further. . . . A petitioner who establishes an abuse of discretion through one of the factors listed above must then demonstrate that the judgment of the habeas court should be reversed on its merits. ... In determining whether the habeas court abused its discretion in denying the petitioner’s request for certification, we necessarily must consider the merits of the petitioner’s underlying claims to determine whether the habeas court reasonably determined that the petitioner’s appeal was frivolous.” (Citations omitted; emphasis in original; internal quotation marks omitted.) Castonguay v. Commissioner of Correction, 300 Conn. 649, 657-58, 16 A.3d 676 (2011). Having set forth the standard of review, we will consider the merits of the claims raised by the petitioner.

I

First, the petitioner claims that the court improperly failed to read all of the exhibits introduced at the habeas proceeding and that this failure is reflected in gross factual errors in the court’s decision. It is undisputed that the petitioner introduced as exhibits in the present habeas proceeding ten volumes of transcript from his underlying criminal trial. The petitioner urges us to conclude that the timing of the hearing and the issuance of the court’s oral decision denying his petition for a writ of habeas corpus reflects that the court did not read the transcript in its entirety prior to rendering its decision, although there is no statement made to or by the court on this point. The petitioner asserts that this failure is reflected in certain erroneous findings made by the court, specifically, its finding that it was unclear whether Reid had filed any pretrial motions to suppress evidence and its finding that, at a suppression hearing held during the trial, the trial court had considered the admissibility of Pagan’s out-of-court identification of him as well as certain statements made by him to Pagan on March 4, 2002.

As our standard of review set forth previously makes clear, an appeal following the denial of a petition for certification to appeal from the judgment denying a petition for a writ of habeas corpus is not the appellate equivalent of a direct appeal from a criminal conviction. Our limited task as a reviewing court is to determine whether the habeas court abused its discretion in concluding that the petitioner’s appeal is frivolous. Thus, we review whether the issues for which certification to appeal was sought are debatable among jurists of reason, a court could resolve the issues differently or the issues are adequate to deserve encouragement to proceed further. See, e.g., id. Because it is impossible to review an exercise of discretion that did not occur, we are confined to reviewing only those issues which were brought to the habeas court’s attention in the petition for certification to appeal.

The record does not reflect that before the habeas court the petitioner raised the present claim of the habeas court’s failure to read all of the exhibits prior to rendering its decision. More importantly, the petitioner did not raise the present claim in his petition for certification to appeal. See footnote 3 of this opinion. Because the petitioner did not raise the claim when asking the court to rule on his petition for certification to appeal, we cannot conclude that the court abused its discretion on that ground. See Mercado v. Commissioner of Correction, 85 Conn. App. 869, 872, 860 A.2d 270 (2004) (habeas court could not have abused discretion in denying petition for certification to appeal because claim at issue was not raised in petition for certification to appeal), cert. denied, 273 Conn. 908, 870 A.2d 1079 (2005). “This court has determined that a petitioner cannot demonstrate that the habeas court abused its discretion in denying a petition for certification to appeal if the issue that the petitioner later raises on appeal was never presented to, or decided by, the habeas court. . . . Under such circumstances, a review of the petitioner’s claims would amount to an ambuscade of the [habeas] judge. . . . Because the petitioner failed to raise this claim in his petition for certification to appeal or in his application for waiver of fees, costs and expenses and appointment of counsel on appeal, we decline to afford it review.” (Citations omitted; emphasis added; internal quotation marks omitted.) Perry v. Commissioner of Correction, 131 Conn. App. 792, 796-97, 28 A.3d 1015 (petitioner’s claim that trial court issued oral decision from bench in absence of counsel not reviewable when claim not raised in petition for certification to appeal), cert. denied, 303 Conn. 913, 32 A.3d 966 (2011); see also Melendez v. Commissioner of Correction, 141 Conn. App. 836, 841, 62 A.3d 629 (2013) (improperio consider issues not raised distinctly before habeas court in petition for certification to appeal); Campbell v. Commissioner of Correction, 132 Conn. App. 263, 267, 31 A.3d 1182 (2011) (consideration of issues not distinctly raised in petition for certification to appeal would amount to ambuscade of habeas judge). For the foregoing reasons, we decline to review this claim.

n

Next, the petitioner claims that the court improperly concluded that he was not prejudiced by his trial counsel’s mishandling of his alibi defense. We conclude that the court properly denied the petition for certification to appeal with regard to this claim.

At the habeas trial, the petitioner presented evidence that, at his criminal trial, Reid did not disclose Rooty Thomas as an alibi witness and that the trial court, having heard Reid’s representations concerning Rooty Thomas’ testimony, later precluded Reid from presenting testimony from Rooty Thomas about the location of her automobile at the time of the shooting. See footnote 1 of this opinion.

Also, at the habeas trial, the petitioner presented testimony from Rooty Thomas that, at approximately 12:30 p.m. on March 26,2001, she was with the petitioner in Hartford, waiting for him in her automobile at the residence of the petitioner’s friend, identified as “Rel.” At that time, she received a telephone call from her sister, who asked her to pick up her nephew from school in New Haven. She stated that, at approximately 1 p.m., she and the petitioner left Hartford and drove to New Haven, which took approximately thirty minutes. After picking up her nephew in New Haven, she and the petitioner went to her sister’s residence in New Haven for a brief time before traveling from New Haven to her residence in Meriden, which took approximately fifteen minutes. She testified that the petitioner was with her the entire time during these events and that he remained with her after they returned to Meriden. Additionally, Rooty Thomas testified that she was contacted by Reid two or three days before trial and that she conveyed these facts to her and indicated that she was willing to testify at the petitioner’s trial.

The petitioner argued before the habeas court that, because the state’s theory of the case was that the crime occurred between 1 and 1:30 p.m. on March 26, 2001, Rooty Thomas’ version of events constituted an alibi because it established that the petitioner was at a place different from the Hartford crime scene at the time of the alleged offense. The petitioner argued that Reid was deficient for failing to present this as alibi testimony at trial, noting that this testimony “[fit] in squarely with his alibi defense” at trial from Julia Thomas, who testified at trial that the petitioner was visiting her son, Tyrell, at her residence in Hartford at 1 p.m. on March 26, 2001, and that, at that time, she observed a woman and her child in an automobile parked near her residence.

In rejecting the petitioner’s claim of ineffective assistance of counsel, the habeas court stated in relevant part: “[T]he only alibi evidence that was not presented is the testimony of [Rooty] Thomas, and based upon the testimony presented to the habeas court, the court will make a finding that [Rooty Thomas’] testimony does not [rise] to the level of establishing an alibi. At best, it would corroborate the evidence presented by Julia Thomas, which the jury heard, and nevertheless, returned a finding of guilty beyond a reasonable doubt.

“So, while it appears that Ms. Reid may have been guilty of . . . deficient performance in not filing an appropriate notice of alibi defense, it’s crystal clear that such failure did not operate to the prejudice of the petitioner. Consequently, the court cannot find that there was ineffective assistance of trial defense counsel.”

The petitioner argues that the court’s finding that he did not suffer prejudice was based on an erroneous determination that Rooty Thomas’ testimony did not rise to the level of an alibi. Additionally, he argues that the court improperly concluded that the testimony at issue merely corroborated that of Julia Thomas. We will address both of these contentions in turn.

“The interpretation of a trial court’s judgment presents a question of law over which our review is plenary. ... As a general rule, judgments are to be construed in the same fashion as other written instruments. . . . The determinative factor is the intention of the court as gathered from all parts of the judgment. . . . The interpretation of a judgment may involve the circumstances surrounding the making of the judgment. . . . Effect must be given to that which is clearly implied as well as to that which is expressed. . . . The judgment should admit of a consistent construction as a whole.” (Citation omitted; internal quotation marks omitted.) Sosin v. Sosin, 300 Conn. 205, 217-18, 14 A.2d 307 (2011).

As a preliminary matter, we are not persuaded that the court determined that Rooty Thomas’ testimony at the habeas trial did not rise to the level of an alibi. We recognize that the court, in its oral decision, at one point stated that the testimony at issue did not rise to the level of establishing an alibi. This statement, however, is surrounded by several statements that clearly evinced a determination by the court that Rooty Thomas’ habeas testimony was, in fact, alibi testimony. The court referred to Rooty Thomas as “the alibi witness,” described her testimony as “alibi evidence” and stated that Reid was deficient insofar as she did not file “an appropriate notice of alibi defense” with regard to this witness. An examination of the totality of the court’s analysis reflects that it considered the testimony at issue to be alibi testimony. Accordingly, we conclude that the court properly denied the petition for certification to appeal with regard to this aspect of the petitioner’s claim.

The second aspect of the petitioner’s claim focuses on the propriety of the court’s conclusion that Reid’s failure to present Rooty Thomas’ alibi testimony was not prejudicial because it corroborated the testimony of Julia Thomas at the petitioner’s criminal trial. As a preliminary matter, the petitioner argued before the habeas court that Rooty Thomas’ testimony “fits in squarely” with the alibi defense presented at trial, namely, that Julia Thomas observed him at her residence at approximately 1 p.m. on the day of the shooting. The petitioner acknowledges in his appellate brief that, at the habeas trial, “Rooty Thomas testified . . . in a manner that was absolutely consistent with and corroborated by the testimony of Julia Thomas at the criminal trial.” The petitioner, however, urges us to conclude that Reid’s conduct was prejudicial because the testimony was more significant than that of Julia Thomas in that it provided an explanation of the petitioner’s whereabouts after he left Julia Thomas’ residence at or about the time of the shooting.

As set forth previously, in his petition for certification to appeal, the petitioner did not raise a claim related to the habeas court’s determination that Reid’s failure to present Rooty Thomas’ alibi testimony was not prejudicial. See footnote 3 of this opinion. On the basis of the authority set forth in part I of this opinion, we decline to review this aspect of the claim.

Ill

Next, the petitioner claims that the court improperly concluded that he received effective assistance from his trial counsel. An examination of his analysis of this claim reflects that it is directed at Reid’s alleged failure (1) to file motions to suppress identification procedures employed in this case, (2) to investigate fully the petitioner’s alibi defense and (3) to file a timely notice of alibi defense related to Rooty Thomas.

First, we address the aspect of the claim related to identification procedures employed in this case. The petitioner’s appellate arguments are broad and appear to encompass all of the identification procedures used by police in this case. In his petition for a writ of habeas corpus, the petitioner raised claims related to Reid’s failure to challenge several allegedly suggestive identification procedures, namely, Pagan’s March 27, 2001 showup identification of the petitioner, Pagan’s March 8, 2002 identification of the petitioner by means of a photographic array and Molina’s April 5,2002 identification of the petitioner by means of a photographic array. As indicated in part I of this opinion, in this appeal from the court’s denial of certification to appeal, we are limited to those claims raised by the petitioner in his petition for certification to appeal. In that filing, the petitioner identified a claim related to the habeas court’s failure “to consider or decide Petitioner’s claim that Attorney Sylvia Reid never filed a motion to suppress the one-man show-up identification of Petitioner made by Jorge Pagan on March 27, 2001.”

The court’s memorandum of decision does not appear specifically to address the petitioner’s claim related to the March 27, 2001 showup identification of the petitioner by Pagan. The court discussed statements attributed to Pagan as well as “the photo array identification,” presumably made by Pagan, concluding that the petitioner failed to demonstrate that a motion to suppress related to this evidence would have been granted. Thereafter, the petitioner filed a motion for articulation in which he asked the habeas court, inter alia, to address his claim that Reid was ineffective for failing to file a motion to suppress the out-of-court showup identification made by Pagan on March 27, 2001. The habeas court denied the motion for articulation, stating: “The petitioner did not introduce appropriate evidence at the habeas trial. Court’s ruling applies to all grounds stated.”

Contrary to the claim raised in the petition for certification to appeal, the record reflects that the court, by way of its articulation stating that the petitioner failed to present appropriate evidence in support of his claim at the habeas trial, addressed the claim set forth in the petition for a writ of habeas corpus related to Reid’s failure to file a motion to suppress Pagan’s March 27, 2001 showup identification of the petitioner. For this reason, we conclude that the court did not abuse its discretion by denying the petition for certification to appeal with regard to this aspect of the present claim.

The remaining aspects of the present claim relate to Reid’s investigation of and failure to present the alibi defense set forth by Rooty Thomas at the habeas trial. The petitioner did not identify these claims in his petition for certification to appeal. See footnote 3 of this opinion. On the basis of the authority set forth in part I of this opinion, we do not reach the merits of these claims.

The appeal is dismissed.

In this opinion the other judges concurred.

       By way of background, we note that, at the petitioner’s criminal trial, Beid represented to the court that she intended to present testimony from Rooty Thomas that, at the time of the shooting, she and her son were in her white Neon in the north end of Hartford. State v. Tutson, supra, 84 Conn. App. 621. The state objected on the ground that any testimony about the location of the automobile at the time of the shooting “necessarily intimated that the [petitioner] was not at the scene of the crime,” and, as such, was alibi testimony. Id. The state argued that the court should exclude such testimony because the defense failed to disclose Rooty Thomas as an alibi witness in accordance with the applicable rules of practice. Id. The court agreed with the state and precluded Rooty Thomas’ testimony concerning the location of the automobile on March 26, 2001, after 1 p.m. Id., 622. Subsequently, our Supreme Court upheld the trial court’s determination in this regard; the court rejected the petitioner’s claim that the testimony did not constitute an alibi and determined that the trial court did not abuse its discretion in precluding the testimony as a sanction for the petitioner’s failure to disclose it in accordance with the applicable rules of practice. State v. Tutson, supra, 278 Conn. 737-41.

       Subsequently, the court created a memorandum of decision in compliance with Practice Book § 64-1 (a).

       The petitioner utilized judicial branch forms in filing his petition for certification to appeal and his related application. In both, he incorporated by reference an additional filing entitled “PETITION FOR CERTIFICATION TO APPEAL,” in which he petitioned “for certification to appeal the following issues:
      “1. Whether the habeas court erred in failing to consider or decide Petitioner’s claim that Attorney Sylvia Reid never filed a motion to suppress the one-man show-up identification of Petitioner made by Jorge Pagan on March 27, 2001.
      “2. Whether in light of the evidence, the habeas court erred in finding that any presumption of reasonableness on the part of Attorney Sheila Iverson negated any deficient performance on the part of Attorney Sylvia Reid.
      “3. Whether on the basis of the record, the court erred in implicitly finding that Attorney Sheila Iverson was involved in any of the tactical decisions raised by Petitioner.
      “4. Whether the habeas court erred in finding that the testimony of Rooty Thomas did not ‘rise to the level of alibi’ testimony, though she testified that she was with Petitioner at the time of the shooting he was charged and convicted of.”
      We note that, in this appeal, the petitioner does not raise any claims of error that are related to issues two and three of his petition for certification to appeal.

       The court granted the petitioner’s application for waiver of fees, costs and expenses and appointment of counsel on appeal, waiving all fees and costs incident to an appeal as well as appointing counsel from the Office of Chief Public Defender.

       As set forth previously in this opinion, Thomas testified at trial that, between 12:30 p.m. and 1 p.m. on the date of the shooting, she arrived at her home in Hartford and found the petitioner visiting with her son. She saw a female and a child sitting in an automobile outside of her residence and, when the petitioner left approximately ten to fifteen minutes later, he stated that he had to take his girlfriend somewhere.

       There is no authority by which a petitioner may challenge a judgment denying a petition for a writ of habeas corpus solely by demonstrating that the habeas court failed to consider a claim raised in his petition for a writ of habeas corpus. Stated otherwise, a petitioner cannot demonstrate that the court made an error that affected the result of the proceeding unless he demonstrates that, in its resolution of one or more of the claims properly before it, the court made an error of such magnitude that warrants reversal of its judgment. For this reason, we “will not consider claims not raised in the habeas petition or [not] decided by the habeas court." (Emphasis added.) Henderson v. Commissioner of Correction, 129 Conn. App. 188, 198, 19 A.3d 705, cert. denied, 303 Conn. 901, 31 A.3d 1177 (2011).
      “It is the responsibility of the appellant to provide an adequate record for review . . . .” Practice Book § 60-5. “It is, therefore, the responsibility of the appellant to move for an articulation or rectification of the record ... to ask the trial judge to rule on an overlooked matter.” (Emphasis in original; internal quotation marks omitted.) Bowden v. Commissioner of Correction, 93 Conn. App. 333, 343, 888 A.2d 1131, cert. denied, 277 Conn. 924, 895 A.2d 796 (2006). The rules of practice governing articulation and appellate review of orders related thereto; see Practice Book §§ 66-5 and 66-6; provide an adequate procedure by which an appellant may obtain review of claims that were not addressed adequately or were overlooked by the a trial court. Bowden v. Commissioner of Correction, supra, 342.

       This court granted the petitioner’s motion for review of the court’s ruling on the motion for articulation, but denied the petitioner’s request for relief.


text:
    MAUREEN C. LOWNEY v. ZONING BOARD OF APPEALS OF THE BLACK POINT BEACH CLUB ASSOCIATION
    (AC 34594)
    Beach, Sheldon and Pellegrino, Js.

      Argued April 16
    officially released July 16, 2013

      Mathew H. Greene, for the appellant (plaintiff).

      Edward B. O’Connell, with whom, on the brief, was Mark S. Zamarka, for the appellee (defendant).
   Opinion

BEACH, J.

The plaintiff, Maureen C. Lowney, appeals from the judgment of the trial court dismissing her appeal from the decision of the defendant, the zoning board of appeals of the Black Point Beach Club Association (board), upholding the denial of her zoning permit application to operate a dog grooming business in her attached garage. We affirm the judgment of the trial court.

The following facts and procedural history are relevant to our resolution of this appeal. The plaintiff owns real property in a residential district located within the boundaries of the Black Point Beach Club Association (association). The association is in the town of East Lyme, but has its own zoning regulations (regulations) pursuant to General Statutes § 8-1 and a special act. The plaintiff submitted to the zoning enforcement officer of the association an application for a zoning permit to conduct a home occupation under the regulations, specifically a dog grooming business to be operated in her attached garage. The proposed use as described in the application was “home dog grooming by appt. only. No weekends. Dogs will not be brought all day long. Dogs won’t bark when kept busy, being groomed—approx, three dogs per day.”

Section III.4 of the regulations sets forth the parameters of home occupations and provides in relevant part: “a. Such home occupation, service or profession includes, but is not limited to, the office or studio of an architect, artist, economist, engineer, insurance agent, lawyer, photographer, or real estate broker. Such uses as physicians’ offices, restaurants, tearooms, funeral homes, barbershops, beauty parlors, tourist homes, animal hospitals, any activities which constitute the manufacture of goods or products for sale, and any uses which require more than incidental traffic of clients to the dwelling, shall not be deemed to be a home occupation, service or profession, b. The total area devoted to the home occupation shall be located within the dwelling and shall not exceed twenty-five (26) per cent of the floor area of the single family dwelling, c. No one who is not a resident of the single family dwelling shall be employed or otherwise engaged in the home occupation at that address. . . .” (Emphasis omitted.)

Section I of the regulations defines “garage” and “attached garage” as follows: “Garage. A structure designed principally for shelter, enclosure or protection of vehicles. Attached Garage. A garage that is part of a dwelling by being physically connected to it by means of any permanent structural connection other than pavement or fences.” (Emphasis omitted.)

The zoning enforcement officer denied the plaintiffs application, reasoning: “Not permitted under Section ID, item 4, items a & b. Must be in the dwelling and dog grooming may be noisy for the neighbors.” The plaintiff appealed to the board from the denial of her application by thé zoning enforcement officer.

The board held a public hearing regarding the plaintiffs appeal. At the hearing, the plaintiffs counsel posited that the zoning enforcement officer erred in concluding that an attached garage was not within or part of the dwelling. The plaintiffs counsel further stated that the proposed activity would occupy a 288 square foot section of the garage, that the plaintiff would be the only person working there, that the plaintiff would groom no more than three dogs per day and thus no more than six automobile trips would be required, and that a dog would be at the plaintiffs residence for perhaps one half of the day. The plaintiff stated that when she would finish grooming a dog, she would telephone the owner and crate the dog until the owner arrived. The board voted to deny the plaintiffs appeal, thereby upholding the denial of the plaintiffs application. The plaintiff appealed from the board’s decision to the trial court, and the court rendered judgment affirming the decision of the board and dismissing the appeal.

The court concluded that the proposed dog grooming business properly could be considered a home occupation under the regulations, but that because an attached garage was not part of a dwelling under the regulations, and home occupations must be conducted in a dwelling, the board properly upheld the zoning enforcement officer’s denial of the plaintiffs application. The plaintiff filed a petition for certification to appeal to this court, which was granted. This appeal followed.

The plaintiff claims that the court erred in finding that an attached garage, which was the location of the plaintiffs proposed home occupation, was not part of the dwelling. We need not reach this issue because we decide this appeal on an alternative ground.

The board claims that the court’s affirmance of the board’s decision to uphold the zoning officer’s denial of the plaintiffs application should be upheld on an alternative ground. The board argues that the court erred in reversing the board’s determination that the proposed use was not a proper home occupation under the regulations. The plaintiff argues that the court properly concluded that the board’s determination regarding the permitted home occupations was erroneous. We agree with the board.

“Generally, it is the function of a zoning board or commission to decide within prescribed limits and consistent with the exercise of [its] legal discretion, whether a particular section of the zoning regulations applies to a given situation and the maimer in which it does apply. The trial court had to decide whether the board correctly interpreted the section [of the regulations] and applied it with reasonable discretion to the facts. ... In applying the law to the facts of a particular case, the board is endowed with a liberal discretion, and its decision will not be disturbed unless it is found to be unreasonable, arbitrary or illegal. . . . [U]pon appeal, the trial court reviews the record before the board to determine whether it has acted fairly or with proper motives or upon valid reasons .... We, in turn, review the action of the trial court. . . . The burden of proof to demonstrate that the board acted improperly is upon the party seeking to overturn the board’s decision. . . .

“A local board or commission is in the most advantageous position to interpret its own regulations and apply them to the situations before it. . . . Although the position of the municipal land use agency is entitled to some deference . . . the interpretation of provisions [of a municipal zoning regulation] is nevertheless a question of law for the court. . . . The court is not bound by the legal interpretation of the [regulation] by the [board].” (Citations omitted; internal quotation marks omitted.) Doyen v. Zoning Board of Appeals, 67 Conn. App. 597, 603, 789 A.2d 478, cert. denied, 260 Conn. 901, 793 A.2d 1088 (2002); see also Grissler v. Zoning Board of Appeals, 141 Conn. App. 402, 405-406, 62 A.3d 539 (2013) (deference to agency’s interpretation of zoning regulation unwarranted where interpretation not previously subjected to judicial scrutiny or time tested).

Dog grooming is neither expressly permitted nor expressly prohibited as a home occupation under the regulation at issue. Section III.4.a. of the regulations provides in relevant part: “Such [permitted] home occupation, service or profession includes, but is not limited to, the office or studio of an architect, artist, economist, engineer, insurance agent, lawyer, photographer, or real estate broker. Such uses as physicians’ offices, restaurants, tearooms, funeral homes, barbershops, beauty parlors, tourist homes, animal hospitals, any activities which constitute the manufacture of goods or products for sale, and any uses which require more than incidental traffic of clients to the dwelling . . . .”

During the public hearing, board members compared dog grooming to a barbershop, which is specifically excluded as a home occupation under § III.4.a. of the regulations. The court concluded that, although the services performed in dog grooming are similar to those performed at a barbershop or beauty parlor, the similarity pales when the difference in clientele is considered. The court determined that the phrase in § III.4.a. that “any uses which require more than incidental traffic of clients to the dwelling, shall not be deemed to be a home occupation” evinced a legislative intent to exclude from home occupations uses that would materially increase traffic and difficulty in parking. The court concluded that because the proposed use would generate minimal traffic and parking congestion, it was more in line with the uses permitted as home occupations.

The court erroneously concluded that the primary intent of § III.4.a. of the regulations was to exclude as home occupations only uses that generate more than incidental traffic. The uses expressly excluded as home occupations in § III.4.a. are: “Such uses as physicians’ offices, restaurants, tearooms, funeral homes, barbershops, beauty parlors, tourist homes, animal hospitals, any activities which constitute the manufacture of goods or products for sale, and any uses which require more than incidental traffic of clients to the dwelling . . . .” (Emphasis added.) This provision sets forth examples of specific excluded uses, such as barbershops and animal hospitals, and then sets forth two additional categories of excluded uses: (1) activities that constitute the manufacture of goods or products for sale; and (2) uses that require more than incidental traffic of clients to the dwelling. The provision regarding traffic was preceded by the word “and,” indicating that it did not serve to modify or to limit the previous categories, but rather was an additional category of excluded uses. If the drafters had wanted to exclude as home occupations only uses that would increase traffic, they could have phrased the provision so as to evince such an intent, but they did not. Furthermore, barbershops, beauty parlors and animal hospitals were expressly excluded without regard to whether these businesses limit the number of clients seen per day. Thus the amount of traffic generated by this proposed use, while perhaps incidental, is not necessarily a basis on which to decide whether the proposed use is an excluded home occupation.

hi support of her argument that the intent of the regulations in excluding certain uses was to lessen traffic, the plaintiff points to the “purposes” section of the regulations, which lists lessening congestion on streets. This section provides: “These regulations are adopted for the purposes set forth in the General Statutes of the State of Connecticut, namely; to promote the health, safety and general welfare of Black Point Beach Club Association with a view of conserving the value of buildings and encouraging the most appropriate use of land throughout such municipality; to protect the existing and potential public surface and ground drinking water supplies; to lessen congestion in the streets; to secure safety from fire, panic, flood and other dangers; to provide adequate light and air; to prevent the overcrowding of land; to avoid undue concentration of population; and to facilitate the adequate provision for transportation, water, sewerage, parks and other public requirements.”

This section lists many purposes, any of which could inform the drafters’ reasoning for prohibiting some uses and permitting others. It is clear that the line between permitted and prohibited uses was not intended to be drawn only with respect to potential traffic congestion, as opposed to any other purpose. As stated previously in this opinion, § III.4.a. of the regulations prohibits, among other uses, those uses that generate more than incidental traffic, indicating that traffic was one concern of many. It was within the board’s prerogative to determine that a dog grooming business was more similar to the prohibited uses under the regulations than to the permitted uses.

We conclude that the court properly affirmed the decision of the board, albeit on an alternative ground, to uphold the zoning enforcement officer’s denial of the plaintiffs application to conduct a dog grooming business as a home occupation.

The judgment is affirmed.

In this opinion the other judges concurred.

       In 1931, a special act enabled the creation of the association. See 21 Spec. Acts 537, No. 462 (1931).

       Due to a technical problem, neither a transcript of the public hearing nor a transcript of the board’s deliberation was submitted in the trial court. The parties stipulated before the trial court that the minutes of the public hearing with one notation constituted an accurate summary of the proceedings and that there was no necessity for testimony to attempt to reconstruct the transcript of the proceedings. The trial court approved the stipulation and found that the detailed minutes were adequate in this case.

       “If a board’s time-tested interpretation of a regulation is reasonable, however, that interpretation should be accorded great weight by the courts.” Doyen v. Zoning Board of Appeals, supra, 67 Conn. App. 604. The zoning regulation at issue has not been subjected to judicial scrutiny and the board did not indicate that it had applied a time-tested interpretation of the regulation.


author: DiPENTIMA, C. J.

text:
    STATE OF CONNECTICUT v. CHRISTOPHER TIERINNI
    (AC 34555)
    DiPentima, C. J., and Beach and Robinson, Js.

      Argued March 11
    officially released July 16, 2013

      Mark Diamond, assigned counsel, for the appellant (defendant).

      Matthew A. Weiner, deputy assistant state’s attorney, with whom, on the brief, were Gail P. Hardy, state’s attorney, and Robin D. Krawczyk, senior assistant state’s attorney, for the appellee (state).
   Opinion

DiPENTIMA, C. J.

The defendant, Christopher Tieri-nni, appeals from the judgment of the trial court revoking his probation. The defendant claims that (1) his plea and waiver of his right to a hearing are unenforceable because they were made involuntarily, unknowingly and unintelligently, (2) the condition of his probation that prohibited him from having any contact with minors was unconstitutionally restrictive, vague and overbroad, and (3) the prosecutor improperly “made [her] self a witness” at the dispositional hearing. We do not agree that the defendant’s plea was unenforceable and that the prosecutor’s comments were improper. Further, we conclude that the defendant’s second claim is not reviewable on appeal. We therefore affirm the court’s judgment.

The following facts and procedural history are supported by the record. The defendant was found guilty of sexual assault in the first degree in violation of General Statutes § 53a-70 (a) (1) in 1999 and sentenced to twelve years imprisonment, suspended after twenty-seven months, and ten years probation. One of the conditions of his probation was: “You will not be in the presence of minors, nor have contact in any form, direct or indirect, including, but not limited to, with children under the age of sixteen without Probation Officer approval.” After his release from prison, the defendant was arrested for and admitted to violations of probation on three separate occasions. The defendant was arrested a fourth time in June, 2011, for violation of probation after his probation officer reported that the defendant had been seen with a minor.

At the July 28, 2011 probation revocation hearing following his fourth arrest, the defendant admitted to having violated his probation. Following his admission, the court canvassed the defendant. The following colloquy took place:

“The Court: Mr. Tierinni, are you under the influence of anything right now?
“The Defendant: No, Your Honor.
“The Court: Have you had enough time to discuss all of this with your lawyer?
“The Defendant: Yes, Your Honor.
“The Court: Has he explained to you the nature and elements of the charge?
“The Defendant: Yes.
“The Court: Are you admitting your violation voluntarily and of your own free will?
“The Defendant: Yes, Your Honor.
“The Court: Is anyone forcing you to enter this plea or threatening you in any way?
“The Defendant: No, Your Honor. . . .
“The Court: Do you understand, Mr. Tierinni, that by admitting your probation violation you’re giving up the right to have a hearing before a judge. You’re giving up the right at that hearing to confront witnesses and cross-examine the witnesses against you, to have the effective assistance of counsel, and you’re giving up the protection of the right not to be compelled to incriminate yourself. Do you understand that?
“The Defendant: Yes, Your Honor. . . .
“The Court: Once I accept your plea today you can’t change your mind about this. This is final. Understood?
“The Defendant: Yes, Your Honor.”

The court then accepted the defendant’s plea. In August, 2011, the court held a dispositional hearing, and, after hearing from counsel and members of the defendant’s family, sentenced the defendant to sixty-six months incarceration, suspended after twenty months, and five years probation. This appeal followed.

I

The defendant first claims that his plea and the waiver of his right to a hearing are unenforceable because they were made involuntarily, unknowingly and unintelli-gently. Specifically, the defendant argues that his counsel was not asked whether he had informed the defendant of his right to a hearing and that the court did not advise the defendant according to Practice Book § 37-3. The defendant seeks review pursuant to State v. Golding, 213 Conn. 233, 567 A.2d 823 (1989). While we agree that this claim is reviewable under Golding, we conclude that it fails the test set forth in that decision because the defendant has failed to prove that a violation of a constitutional right clearly existed.

“[A] defendant can prevail on a claim of constitutional error not preserved at trial only if all of the following conditions are met: (1) the record is adequate to review the alleged claim of error; (2) the claim is of constitutional magnitude alleging the violation of a fundamental right; (3) the alleged constitutional violation clearly exists and clearly deprived the defendant of a fair trial; and (4) if subject to harmless error analysis, the state has failed to demonstrate harmlessness of the alleged constitutional violation beyond a reasonable doubt.” (Emphasis in original.) Id., 239-40. Here, the record is adequate to review the defendant’s claim that his plea was not knowingly, voluntarily and intelligently given, and the claim of an inadequate plea is of constitutional magnitude. See State v. Williams, 60 Conn. App. 575, 581, 760 A.2d 948, cert. denied, 255 Conn. 922, 763 A.2d 1043 (2000).

Thus, we turn to the third prong of analysis under Golding. The defendant’s arguments that his counsel was not asked whether he had informed his client of his right to a hearing and that the defendant never was informed of the rights he waived are without merit. The court pointedly asked the defendant at the adjudicative hearing in July, 2011, whether his counsel had explained to the defendant the “nature and elements” of the charge, and the defendant answered in the affirmative. Further, the defendant answered that he had had sufficient time to consult with counsel, that counsel had explained the nature and elements of the charge and that he was satisfied with his lawyer’s advice. The court explicitly informed the defendant of the fact that his admission constituted a waiver of his rights to a hearing, to confront and to cross-examine witnesses, to have the effective assistance of counsel and not to be compelled to incriminate himself. The defendant acknowledged that he understood that he was waiving all of those rights.

“[A] defendant who desires to admit a probation violation must first be informed, on the record, of his right to have a hearing . . . . [H]e is entitled to a hearing to determine his culpability for the alleged violation. If the defendant advises the court that he does not want a hearing and admits the violation of probation on the record, the due process requirements are met.” (Internal quotation marks omitted.) State v. Johnston, 17 Conn. App. 226, 234, 551 A.2d 1264 (1988), cert. denied, 210 Conn. 810, 556 A.2d 609 (1989). A review of the record reveals that the defendant here was represented by counsel throughout the proceedings and that the court informed the defendant of his rights to a hearing before a judge, to confront and cross-examine witnesses, to have effective assistance of counsel and to not be compelled to incriminate himself. We conclude that the defendant has not proven that a constitutional violation existed and, therefore, that his claim under Golding fails.

n

The defendant next claims that the condition of his probation that prohibited him from having any contact with minors was unconstitutionally restrictive, vague and overbroad and that his failure to raise this claim at the time of his sentence was due to ineffective assistance of trial counsel. Neither of these claims is reviewable, and we therefore decline to analyze them on their merits.

The defendant’s claim that the condition of his probation that he not be in the presence of minors without the permission of his probation officer is vague and overbroad is not adequately briefed for review by this court. The defendant did not object to the condition at either the adjudicative or dispositional portions of his probation revocation hearing, and he asks now for review pursuant to Golding. “It is well established that generally this court will not review claims that were not properly preserved in the trial court. ... [A] defendant’s failure to address the four prongs of Golding amounts to an inadequate briefing of the issue and results in the unpreserved claim being abandoned. . . . We will not engage in Golding . . . review on the basis of ... an inadequate brief.” (Internal quotation marks omitted.) State v. Bourguignon, 82 Conn. App. 798, 801, 847 A.2d 1031 (2004). The defendant does not provide either facts or law to support his request for Golding review, and the one case he does cite is clearly distinguishable from this case. The defendant’s request for Golding review is not saved by his argument that the condition of his probation is “unenforceable . . . .” The claim is clearly without merit, as his June, 2011 arrest was a direct result of the enforcement of this condition.

The defendant also claims that his failure to object to the condition, and the subsequent lack of preservation of the issue for review, resulted from the ineffective assistance of counsel. “Our Supreme Court has consistently concluded that the preferred vehicle for an ineffective assistance of counsel claim is either a petition for writ of habeas corpus or a petition for a new trial, not a direct appeal. . . . Absent the evidentiary hearing available in the collateral action, review in this court of the ineffective assistance claim is at best difficult and sometimes impossible. The evidentiary hearing provides the trial court with the evidence that is often necessary to evaluate the competency of the defense and the harmfulness of any incompetency.” (Internal quotation marks omitted.) State v. Bourguignon, supra, 82 Conn. App. 800; see also State v. Charles, 56 Conn. App. 722, 729-30, 745 A.2d 842, cert. denied, 252 Conn. 954, 749 A.2d 1203 (2000). We therefore decline to review the defendant’s claim.

Ill

Finally, the defendant claims that the prosecutor improperly “made [her]self a witness” at the disposi-tional hearing. We disagree.

“It is a fundamental sentencing principle that a sentencing judge may appropriately conduct an inquiry broad in scope, largely unlimited either as to the kind of information he may consider or the source from which it may come. ... In keeping with this principle, we have recognized that [a] sentencing judge has very broad discretion in imposing any sentence within the statutory limits and in exercising that discretion he may and should consider matters that would not be admissible at trial. . . . Generally, due process does not require that information considered by the trial judge prior to sentencing meet the same high procedural standard as evidence introduced at trial. Rather, judges may consider a wide variety of information.” (Citation omitted; internal quotation marks omitted.) State v. Altajir, 303 Conn. 304, 316-17, 33 A.3d 193 (2012). Thus, we look not to the traditional test for prosecutorial impropriety pursuant to State v. Williams, 204 Conn. 523, 539, 529 A.2d 653 (1987), which requires a court to consider “whether the prosecutor’s conduct so infected the trial with unfairness as to make the resulting conviction a denial of due process.” (Internal quotation marks omitted.) Instead, we conduct “a two-pronged inquiry: first, did the information at issue contain some minimal indicium of reliability; second, if it did not, did the trial court substantially rely on this improper information in fashioning its ultimate sentence?” State v. Altajir, supra, 317.

The prosecutor made statements during the disposi-tional hearing in the context of her argument that the defendant should serve the five and one-half years remaining on his original sentence. The prosecutor noted her opinion of the defendant and that her disbelief that he would not violate his probation again stemmed from her “long experience” with him. Additionally, the prosecutor stated that she had been “prosecuting [the defendant] for a long time, and [the defendant] has manipulated the system over and over . . . .” The defendant has not shown that the information provided by the prosecutor lacked at least a “minimal indicium of reliability . . . .” State v. Altajir, supra, 303 Conn. 317. Further, the defendant has not shown that the court substantially relied on the prosecutor’s statements. In fact, the court imposed a sentence less severe than that for which the state had argued. It is within the court’s purview to hear and analyze evidence from a variety of sources at sentencing, and we therefore conclude that the prosecutor’s statements were not improper in the context of a dispositional hearing.

The judgment is affirmed.

In this opinion the other judges concurred.

       Practice Book § 37-3 states in relevant part: “The judicial authority shall personally, at the opening of the court session, in open court, advise the defendant, or the defendants, unless previously so advised by a clerk . . . either individually or collectively of the following:
      “(1) That the defendant is not obligated to say anything and that anything the defendant says may be used against him or her;
      “(2) That the defendant is entitled to the services of an attorney;
      “(3) If the defendant is unable to pay for one, what the procedures are through which the services of an attorney will be provided for him or her; and
      “(4) That the defendant will not be questioned unless he or she consents, that the defendant may consult with an attorney before being questioned and that the defendant may have an attorney present during any questioning. ”

       The defendant also seeks plain error review of this claim. “The plain error doctrine is reserved for truly extraordinary situations [in which] the existence of the error is so obvious that it affects the fairness and integrity of and public confidence in the judicial proceedings. ... A party cannot prevail under [the] plain error [doctrine] unless [he] has demonstrated that the failure to grant relief will result in manifest injustice.” (Internal quotation marks omitted.) State v. Britton, 283 Conn. 598, 617, 929 A.2d 312 (2007). As stated in this opinion, the defendant fails to show that the court did not apprise him of his rights, and he does not offer any other reason why the claim merits the extraordinary remedy of plain error review. We therefore decline his invitation to afford it consideration.

       The defendant cites State v. Ortiz, 83 Conn. App. 142, 848 A.2d 1246, cert. denied, 270 Conn. 915, 853 A.2d 530 (2004), for the proposition that a condition of probation that denied a convicted defendant access to a group of people is unconstitutionally vague. While a probation condition that prevented a defendant from contact with his children because of a charge unrelated to those children was found to be constitutionally invalid, the court in Ortiz made its conclusion on the ground that “the claim . . . alleges a violation of a fundamental right, namely, the right to family integrity, which includes the most essential and basic aspect of familial privacy—the right of the family to remain together without the coercive interference of the awesome power of the state.” (Internal quotation marks omitted.) Id., 162-63. There is no such fundamental right alleged here.