author: ALVORD, J.

text:
    STATE OF CONNECTICUT v. MICHAEL JAMES
    (AC 29536)
    Gruendel, Alvord and West, Js.

      Argued January 12
    officially released April 13, 2010

      Auden Grogins, special public defender, for the appellant (defendant).

      Rocco A. Chiarenza, special deputy assistant state’s attorney, with whom, on the brief, were David I. Cohen, state’s attorney, and Dina Urso, assistant state’s attorney, for the appellee (state).
   Opinion

ALVORD, J.

The defendant, Michael James, appeals from the judgments of conviction, rendered following a jury trial, of two counts of sale of narcotics by a person who is not drag-dependent in violation of General Statutes § 21a-278 (b). He claims that (1) the trial court improperly joined the two cases against him and (2) there was insufficient evidence to convict him under § 21a-278 (b) because he proved by a preponderance of the evidence that he was drag-dependent. We affirm the judgments of the trial court.

The defendant was arrested twice in November, 2006, for selling crack cocaine to the same undercover police officer. The arrests happened as a result of two undercover narcotics operations conducted by the Stamford police department (department). On November 15, 2006, and on November 29, 2006, Detective Michael McKenna was given money from the department’s narcotics fund and sent undercover to the south end of Stamford to conduct “buy and bust” operations. On both dates, McKenna was fitted with an electronic listening device that allowed the lead officer, Brian Cronin, to monitor his conversations. McKenna was also visually surveilled by Cronin and several other officers who were positioned in nearby unmarked cars in the event that it became necessary to effectuate an arrest.

At approximately 2:30 p.m. on November 15, 2006, McKenna drove in an unmarked car to the area of Henry and Atlantic Streets where he saw the defendant standing on the side of the road. McKenna nodded to the defendant, who nodded back. McKenna interpreted the defendant’s acknowledgement as an invitation to purchase crack cocaine and pulled his car over. The defendant approached McKenna’s vehicle and entered it through the passenger door. McKenna told the defendant that he “only had twenty-nine.” The defendant replied that he “had it loose.” McKenna put his hand out. The defendant took some crack cocaine from his winter hat and placed it in McKenna’s hand. McKenna gave the defendant $29, and the defendant exited the vehicle. McKenna drove away from the scene to a prearranged meeting place where he met Cronin and the other officers involved. Later, McKenna picked the defendant out of a photo array. When the defendant was arrested, $29 was found on his person.

A similar operation took place on November 29,2006. At approximately 4:45 p.m. on November 29, 2006, McKenna drove in an unmarked car to the same neighborhood in Stamford. He was waved down by a man wearing a Tommy Hilfiger coat. McKenna acknowledged the man and pulled over. The man, a Richard Joyner, now accompanied by the defendant, approached McKenna’s car. McKenna told Joyner he “wanted thirty.” Joyner replied that he “only had ten.” McKenna agreed to buy what Joyner had, and Joyner turned to discuss something with the defendant. The defendant handed some crack cocaine to Joyner, which Joyner then handed to McKenna. McKenna gave Joyner $10. Joyner then started yelling, “give it to me,” and leaned into the vehicle to get the rest of McKenna’s money. At this point, Joyner and the defendant were taken into custody by the rest of the undercover officers on the scene.

The defendant was initially charged under two separate docket numbers; however, on August 28, 2007, over the defendant’s objection, the court granted the state’s motion for joinder. In an amended information, the state charged the defendant with one count of sale of narcotics by a person who is not drug-dependent in violation of § 21a-278 (b) and one count of sale of narcotics as a drug-dependent person in violation of § 21a-277 (a) in connection with the incident on November 15, 2006; and one count of sale of narcotics by a person who is not drug-dependent in violation of § 2 la-278 (b) and one count of sale of narcotics as a drug-dependent person in violation of § 2 la-277 (a) in connection with the incident on November 29, 2006. Following a jury trial, the defendant was convicted of two counts of sale of narcotics by a person who is not drug-dependent in violation of § 21a-278 (b). This appeal followed.

I

The defendant first claims that the court’s joinder of Docket No. CR-06-0157646, which related to the incident that occurred on November 15, 2006, and Docket No. CR-06-0157782, which related to the incident that occurred on November 29, 2006, was improper and denied him his right to a fair trial.

“The trial court has discretion to determine whether separate cases involving the same defendant should be consolidated . . . and the exercise of that discretion may not be disturbed on appeal unless it has been manifestly abused. ... To demonstrate that the trial court abused its discretion, the defendant bears the heavy burden of convincing this court that the joinder resulted in substantial injustice. . . .

“In Connecticut, joinder of cases is favored. . . . Joinder expedites the administration of justice, reduces the congestion of trial dockets, conserves judicial time, lessens the burden upon citizens who must sacrifice both time and money to serve upon juries, and avoids the necessity of recalling witnesses who would otherwise be called upon to testify only once. ... In determining whether joinder is appropriate, the court must consider several factors. The factors to be considered are (1) whether the charges involve discrete, easily distinguished factual scenarios, (2) how long and complex the trial was, -and (3) whether one or more of the counts alleges brutal or shocking conduct by the accused. ... If any or all of these factors are present, a reviewing court must decide whether the trial court’s jury instructions cured any prejudice that might have occurred from improper joinder.” (Citations omitted; internal quotation marks omitted.) State v. Banks, 59 Conn. App. 112, 122-23, 755 A.2d 951, cert. denied, 254 Conn. 950, 762 A.2d 904 (2000).

The defendant argues that both cases were so factually similar that their joinder necessarily resulted in confusion for the jury and substantial prejudice to him. We are not convinced. “Factual scenarios that are discrete and easily distinguishable involve different locations, times and witnesses. . . . Presentation of the evidence in an orderly sequence contributes to the distinguishability of the factual scenarios in the charges joined for trial. . . . The evidence need not be presented in strictly chronological order, however, as long as the presentation does not confuse the jury and does not prejudice it against the defendant.” (Citations omitted.) State v. Rodriguez, 91 Conn. App. 112, 118-19, 881 A.2d 371, cert. denied, 276 Conn. 909, 886 A.2d 423 (2005).

Although the conduct underlying both cases was similar, the charges against the defendant resulted from two distinct and easily distinguishable incidents that occurred more than one week apart. On November 15, 2006, the defendant acted alone. On November 29,2006, he acted with Joyner. The evidence presented to the jury was straightforward, and the state was careful to specify whether it was questioning witnesses regarding the events of November 15, 2006, or the events of November 29, 2006. The trial was neither lengthy nor complex, and the court instructed the jury that each charge was “completely separate” and must be considered “independently of each other” as if it was tried “separately and alone.” Therefore, we conclude that the defendant has not demonstrated that the court’s ruling caused him substantial prejudice, and the court did not abuse its discretion in joining the cases against him.

II

The defendant next claims that there was insufficient evidence to convict him of sale of narcotics by a person who is not drug-dependent because he proved by a preponderance of the evidence that he was drug-dependent. “To obtain a conviction under § 21a-278 (b), the state must prove that the defendant possessed narcotics with the intent to sell them. ... [A] person charged with sale of narcotics pursuant to § 21a-278 (b) is presumed not to have been drug-dependent, but may avoid liability under § 21a-278 (b) by proving by a preponderance of the evidence that he was drug-dependent [as defined in General Statutes § 21a-240 (18) and (19)] at the time of the offense.” (Internal quotation marks omitted.) State v. Alvarado, 62 Conn. App. 102, 110, 773 A.2d 958, cert. denied, 256 Conn. 907, 772 A.2d 600 (2001). “[T]he absence of drug dependency is not an element of the offense. . . . Rather, [proof of drug dependency provides] an exemption from liability that must be proved by the defendant.” (Internal quotation marks omitted.) Id. “Whether a defendant is a drug-dependent person ... is a question of fact. ... A finding of fact will not be disturbed unless it is clearly erroneous in view of the evidence and pleadings in the whole record.” (Citation omitted; internal quotation marks omitted.) State v. Ray, 290 Conn. 602, 631, 966 A.2d 148 (2009).

The defendant submitted the testimony of clinical psychologist Linda Liefland to prove his drug dependence. Liefland testified that she had been retained by the defendant’s attorney to conduct a drug and alcohol evaluation and concluded that the defendant met the criteria for cocaine dependence. She testified that she based her conclusion primarily on records submitted to her by the defendant’s attorney, telephone interviews with the defendant’s close relatives, including his mother, wife and sister, and a one hour and fifteen minute interview with the defendant. Liefland admitted that although the defendant had a vested interest in being found drug-dependent, she did not ask the defendant how he was supporting his alleged $200 a day habit or seek to corroborate the defendant’s drug use with his doctors. Liefland testified that she interviewed Andrew Williams, a staff member at a halfway house where the defendant was confined in 2004. Williams told Liefland that the defendant’s drug use was “off and on” when he knew him in 2004. Liefland acknowledged that she did not question Williams at all about the defendant’s behavior during the relevant time period, 2006. Evidence was also introduced through Liefland that the defendant had a history of both negative and positive cocaine tests, including a negative test on November 13, 2006, two days before his arrest in connection with the November 15, 2006 incident. Finally, Liefland acknowledged that she had handled only five to ten similar evaluations and was being paid $140 per hour to testify.

“The credibility of expert witnesses and the weight to be given to their testimony ... is determined by the trier of fact.” (Internal quotation marks omitted.) State v. Alvarado, supra, 62 Conn. App. 112. A jury is free to accept or reject expert testimony even if it is uncontradicted. Id., 110. Consequently, the jury was free to credit or discredit Liefland’s testimony as it saw fit. In doing so, it reasonably could have found that the defendant was a drug user or abuser but that he did not meet his burden of proving his drug dependency by a preponderance of the evidence.

The judgments are affirmed.

In this opinion the other judges concurred.

       General Statutes § 21a-278 (b) provides in relevant part: “Any person who . . . sells ... to another person any narcotic substance, hallucinogenic substance other than marijuana, amphetamine-type substance, or one kilogram or more of a cannabis-type substance, except as authorized in this chapter, and who is not, at the time of such action, a drug-dependent person, for a first offense shall be imprisoned not less than five years or more than twenty years; and for each subsequent offense shall be imprisoned not less than ten years or more than twenty-five years. ...”

       Officer Cronin testified that drug dealers often keep crack cocaine “loose” instead of individually packaging it for sale.

       General Statutes § 21a-240 (18) defines “drug dependence” as a “psychoactive substance dependence on drugs as that condition is defined in the most recent edition of the ‘Diagnostic and Statistical Manual of Mental Disorders’ of the American Psychiatric Association,” and § 21a-240 (19) defines “drug-dependent person” as “a person who has a psychoactive substance dependence on drugs as that condition is defined in the most recent edition of the ‘Diagnostic and Statistical Manual of Mental Disorders’ of the American Psychiatric Association . . . .”

       Liefland testified that cocaine typicaiiy stays in the body for three days.

       Liefland testified that the standard for drug abuse is much lower than the standard for drug dependence.


source: Caselaw Access Project

author: GRUENDEL, J.

license: Public Domain

text:
    JOSEPH ABREU v. KARISSA LEONE
    (AC 28880)
    Gruendel, Alvord and West, Js.

      Argued January 12
    officially released April 13, 2010

      John E. Tucker, assistant attorney general, with whom, on the brief, were Richard Blumenthal, attorney general, and Susan T. Pearlman, assistant attorney general, for the appellant (intervening plaintiff).

      Tushar G. Shah, for the appellee (defendant).
   . Opinion

GRUENDEL, J.

The intervening plaintiff, the department of children and families (department), appeals from the judgment of the trial court compelling the plaintiff, Joseph Abreu, to respond to certain deposition questions in a separate proceeding brought by the defendant minor child, Karissa Leone, against the department. On appeal, the department challenges that determination as violative of General Statutes (Rev. 2005) § 17a-28. We reverse the judgment of the trial court.

The facts relevant to our resolution of the present appeal are as follows. In 2004, the defendant filed a claim with the claims commissioner seeking permission to bring an action against the department for personal injuries allegedly inflicted by the plaintiffs alleged foster child, Geovanny M. (child). “The defendant’s claim alleged that, on November 7, 2003, she was injured while playing on the playscape of a local school, when [the child] who was a ward of the state, intentionally pushed her into a pole. She alleged that [the child] had a ‘history of being disruptive and abusive’ and that he resided with his foster parent, the plaintiff. The defendant averred: ‘It is not known at this time what specific acts or omissions of the [department] may have contributed to the [defendant’s] injuries. However, through the process of discovery, it may be determined that [the department] knew, or should have known of the assaultive propensities of the foster child in question, and may indeed be liable to the [defendant] for its failure to act in some fashion.’ Pursuant to General Statutes § 52-572 (a), the defendant alleged that the department was the legal guardian of [the child] and was liable for damages for the defendant’s injury in an amount not to exceed $5000.” Abreu v. Leone, 291 Conn. 332, 334-35 n.1, 968 A.2d 385 (2009). As part of that action, the defendant served a notice of deposition and subpoena duces tecum on the plaintiff.

In response, the plaintiff commenced the present action in the Superior Court seeking to quash the aforementioned subpoena. He further requested a protective order from the deposition, alleging that § 17a-28 (b) prohibited him “from testifying to any matter regarding the status of the alleged foster child or his status relative to that child and from producing any information regarding that child.” The department thereafter intervened as a party plaintiff in the action and submitted a brief in support of the plaintiffs position.

The court, R. Robinson, J., heard argument on the matter on March 27 and April 24, 2006. At that hearing, the department insisted that § 17a-28 (b) prohibits disclosure of “any information pertaining to somebody who has received services by the department.” Counsel for the defendant disagreed with that assertion, emphasizing that “[w]e are not seeking to depose the social worker, we are not seeking [to have the department] hand over volumes of records that they maintain in the regular course of business. We are seeking to depose the foster father and obtain any records that he may keep on his own separate from records maintained and kept by the department.” The court issued its memorandum of decision on September 14, 2006. Interpreting § 17a-28 (b), the court held that “[t]he plain language of the subject statute provides that a record means information created or obtained in connection with the department’s child protection activities or activities related to a child while in the care or custody of the department. The scope of the statute is much broader than suggested by the defendant. The defendant attempts to limit the scope of the statute to records that are actually created by and are in the possession of the department. The language of the statute clearly prohibits the movant from testifyfing] about, or producing copies of, documents in his possession which relate to a foster child because said documents were created or obtained in connection with activities related to a child while in the care or custody of the department.” Accordingly, the court concluded that “[t]o the extent that the subpoena seeks records in violation of the provisions of § 17a-28 . . . the [defendant] may not request and the [plaintiff] may not furnish the prohibited information. However, in light of the fact that the [defendant] may seek other information that is not in violation of [§ 17a-28 (b)], the court will not prohibit the deposition from taking place.”

In accordance with that ruling, a deposition of the plaintiff transpired on October 18, 2006. At that deposition, counsel disagreed about the scope of the court’s decision. Upon the advice of his attorney and in light of the potential criminal and civil penalties for wrongful disclosure of protected information under § 17a-28 (b), the plaintiff declined to answer numerous questions. As to each question, counsel for the department and counsel for the plaintiff objected, stating that a response would violate § 17a-28 (b).

On November 15, 2006, the defendant filed with the Superior Court a motion for sanctions that sought an order compelling the plaintiff to answer the disputed questions and monetary damages. By motion filed January 4, 2007, the plaintiff objected to the defendant’s motion and submitted his own request for sanctions. A hearing followed on February 5, 2007, at which counsel for the department argued that “§ 17a-28 (b) is absolute. . . . [A]ny information contained in those records cannot be disclosed. . . . [A]ny information contained on records from anyone who has ever received services from the [department] cannot be disclosed without that person’s consent.” Counsel for the defendant disagreed, stating that “the way I read § 17a-28 (b) is that it’s a records statute. It’s a records statute only. . . . [T]his is not a prolix statute to any extent. [I]t [indicates that] records maintained are confidential.” Counsel further contended that testimony by the plaintiff regarding his observations of, and experiences with, the child is not barred by § 17a-28 (b), as it pertains to his “own knowledge.” In response, counsel for the plaintiff maintained that “the only way [the plaintiff] could know anything about this child is because of his status [as a] foster parent. [That necessarily puts the plaintiff] in a position of having to answer that ultimate question, at his peril . . . .”

In its May 2,2007 memorandum of decision, the court, Pittman, J., recounted the events of the “contentious discovery dispute” at issue. The court then stated: “The major questions at issue are these:

“1. How do you know [the child]?

“2. How long have you known [the child]?

“3. What is the capacity of your relationship with [the child]?

“4. Does [the child] currently reside with you?

“5. Did [the child] reside with you on November 7, 2003, [and for how long]?

“6. Were you [the child’s] foster parent on November 7, 2003?

“Then there were a series of questions asking the deponent to describe the child’s personality, to describe any trouble into which the child got at school, and to divulge information about the child’s interaction with friends or fellow students. Finally, the deponent was asked his lay opinion of whether the child had assaultive tendencies.

“It is this court’s ruling that these questions about the status of the deponent as a foster parent and the observations and opinions of the deponent about the foster child are not ones that come under the confidentiality provisions of § 17a-28 (b). The court can locate no statute, state regulation or [department] protocol that prevents a foster parent from divulging the fact that he or she is a foster parent. The fact that a child’s legal guardian is the state of Connecticut or that the child resides with a foster parent is not confidential under § 17a-28 (b).

“And patently, the observations of a witness are not given confidential status by this statute. While a foster parent’s observations of a child’s behavior may find their way into a [department] report, such observations may also find their way into a newspaper (hopefully, for good behavior) or into a lawsuit, like the one proposed to be commenced here.

“Section 17a-28 (b) protects the witness from disclosing information learned through [the department] about the child’s background, the circumstances under which the child came to be adjudicated a ward of the state and similar circumstances that relate to the child’s placement, but not the fact of the placement itself. This is in accordance with the [September 14, 2006 ruling] in this case, and it governs future discovery from this deponent.

“Questions 1 through 6 above are ones which the [plaintiff] must answer. Further questions about the deponent’s observations, if any, of the child, or questions about the deponent’s opinions must be answered, provided the answers are based on personal knowledge and observation of the child.

“The court declines to enter sanctions against the deponent or any counsel at this time but retains jurisdiction to do so should further discovery in accordance with this ruling be obstructed.” (Emphasis in original; internal quotation marks omitted.)

The department thereafter filed a motion to reargue, which the court denied, and the department filed this appeal.

The department claims that the judgment of the trial court compelling the plaintiff to answer the aforementioned deposition questions runs afoul of § 17a-28, which, it maintains, proscribes the disclosure of information created or obtained in connection with the department’s child protection activities or activities related to a child while in the care or custody of the department. We agree.

We begin by noting what is not in dispute. The defendant originally sought to “obtain any records that [the plaintiff kept] on his own separate from records maintained and kept by the department.” In its September 14, 2006 memorandum of decision, the court rejected that request, holding that “[t]he plain language of the subject statute provides that a record means information created or obtained in connection with the department’s child protection activities or activities related to a child while in the care or custody of the department. The scope of the statute is much broader than suggested by the defendant. The defendant attempts to limit the scope of the statute to records that are actually created by and are in the possession of the department. The language of the statute clearly prohibits the movant from testifying] about, or producing copies of, documents in his possession which relate to a foster child because said documents were created or obtained in connection with activities related to a child while in the care or custody of the department. To the extent that the subpoena seeks records in violation of the provisions of § 17a-28 . . . the [defendant] may not request and the [plaintiff] may not furnish the prohibited information.” That determination is not at issue in this appeal.

The defendant frames the issue before us as one involving the “personal observations and opinions” of a foster parent and the corresponding permissibility of testimony as to that “personal knowledge.” That depiction is disingenuous, as the question central to the plaintiffs deposition was whether the child was a ward of the state. At that deposition, the defendant inquired as to how the plaintiff knew the child, the “capacity” of his relationship with the child and whether the plaintiff was the child’s “foster parent on November 7, 2003.” Such questions plainly involve more than “personal observations and opinions.”

The defendant’s exhortations aside, we frame the issue as thus: May a foster parent, in a civil proceeding, be compelled to testify as to the nature of his relationship with a particular foster child, as well as his observations thereof, consistent with the mandate of § 17a-28? We answer that query in the negative.

Proper interpretation of § 17a-28 presents an issue of statutory construction, which, as a question of law, is subject to plenary review. Middlebury v. Dept. of Environmental Protection, 283 Conn. 156, 166, 927 A.2d 793 (2007). “The process of statutory interpretation involves the determination of the meaning of the statutory language as applied to the facts of the case, including the question of whether the language does so apply. ” (Internal quotation marks omitted.) Renaissance Management Co. v. Connecticut Housing Finance Authority, 281 Conn. 227, 231, 915 A.2d 290 (2007). “When construing a statute, [o]ur fundamental objective is to ascertain and give effect to the apparent intent of the legislature. ... In other words; we seek to determine, in a reasoned maimer, the meaning of the statutory language as applied to the facts of [the] case, including the question of whether the language actually does apply. ... In seeking to determine that meaning, General Statutes § l-2z directs us first to consider the text of the statute itself and its relationship to other statutes. If, after examining such text and considering such relationship, the meaning of such text is plain and unambiguous and does not yield absurd or unworkable results, extratextual evidence of the meaning of the statute shall not be considered. . . . The test to determine ambiguity is whether the statute, when read in context, is susceptible to more than one reasonable interpretation.” (Internal quotation marks omitted.) Fairchild Heights, Inc. v. Amaro, 293 Conn. 1, 8-9, 976 A.2d 668 (2009).

Accordingly, our interpretation of § 17a-28 begins with an examination of the pertinent language of the statute. General Statutes (Rev. to 2005) § 17a-28 (b) provides: “Notwithstanding the provisions of section 1-210, 1-211 or 1-213, records maintained by the department shall be confidential and shall not be disclosed. Such records of any person may only be disclosed, in whole or in part, to any individual, agency, corporation or organization with the consent of the person or as provided in this section. Any unauthorized disclosure shall be punishable by a fine of not more than one thousand dollars or imprisonment for not more than one year, or both.” General Statutes (Rev. to 2005) § 17a-28 (a) (5) defines the term “ ‘[Records’ ” as “information created or obtained in connection with the department’s child protection activities or activities related to a child while in the care or custody of the department, including information in the registry of reports to be maintained by the commissioner pursuant to section 17a-101k, provided records which are not created by the department are not subject to disclosure, except as provided pursuant to subsection (f), (I) or (n) of this section . . . .” Read in tandem with that statutory definition, § 17a-28 (b) plainly prohibits the disclosure of information created or obtained in connection with the department’s child protection activities or activities related to a child while in the care or custody of the department.

Significantly, the statute provides that such information “shall not be disclosed . . . .” General Statutes (Rev. to 2005) § 17a-28 (b). That broad mandate applies without regard to the particular status of the disclosing party, be it a department worker or foster parent. As our Supreme Court has observed, § 17a-28 “constitutes abroad legislative declaration of confidentiality.” State v. Kulmac, 230 Conn. 43, 57, 644 A.2d 887 (1994). Just as the confidentiality of a psychiatric patient’s identity is mandated by statute to shield the patient from the “stigma [that] may attach to one who seeks psychiatric care,” as well as the accompanying “embarrassment, harassment or discrimination” that may follow; Falco v. Institute of Living, 254 Conn. 321, 329, 757 A.2d 571 (2000); the confidentiality of matters involving a child while in the care or custody of the department is required by § 17a-28 to protect that child from “the embarrassment, stigmatization and emotional harm that can result from the mere disclosure that he or she is under the department’s care.” Abreu v. Leone, supra, 291 Conn. 348. The gravity of those dangers is indicated by our General Assembly’s decision to impose criminal sanctions for violations of § 17a-28 (b).

The defendant nevertheless asks us to interpret the broad legislative declaration of § 17a-28 in a more narrow fashion. She maintains that the trial court properly exempted the “observations and opinions of the plaintiff about the foster child” from the confidentiality requirements contained therein. For multiple reasons, we are troubled by that assertion.

First and foremost, the court ordered the plaintiff to answer certain questions pertaining not to his “observations” or “opinions” but, rather, to the legal status of the child and the plaintiffs relationship to him. The defendant’s inquiries as to how the plaintiff knew the child, the “capacity” of his relationship with the child and whether the plaintiff was the child’s “foster parent on November 7, 2003” all implicate the child’s identity as a ward of the state—a most substantial fact sought to be kept confidential by the legislature in enacting § 17a-28. In its memorandum of decision, the court concluded that “[t]he fact that a child’s legal guardian is the state of Connecticut or that the child resides with a foster parent is not confidential under § 17a-28 (b).” That determination is untenable, as the fact that a child’s legal guardian is the state of Connecticut or that the child resides with a foster parent is the quintessence of “information created or obtained in connection with the department’s child protection activities or activities related to a child while in the care or custody of the department . . . .” General Statutes (Rev. to 2005) § 17a-28 (a) (5).

Second, we note that § 17a-28 contains detailed exceptions to the proscription of disclosure of information created or obtained in connection with the department’s child protection activities or activities related to a child while in the care or custody of the department. See General Statutes (Rev. to 2005) § 17a-28 (c) et seq. Section 17a-28 contains no exception regarding the “personal observations and opinions” of a foster parent, nor one permitting the disclosure by a foster parent of information created or obtained in connection with the department’s child protection activities or activities related to a child while in the care or custody of the department. As our Supreme Court repeatedly has stated, “[w]e have long held that . . . exceptions to statutes are to be strictly construed with doubts resolved in favor of the general rule rather than, the exception .... [W]here express exceptions are made, the legal presumption is that the legislature did not intend to save other cases from the operation of the statute.” (Internal quotation marks omitted.) Falco v. Institute of Living, supra, 254 Conn. 330. That precedent compels the conclusion that § 17a-28 does not except a foster parent’s testimony as to “general observations and opinions” regarding a child in the care or custody of the department from the confidentiality mandate contained therein. To the extent that, in resolving the present controversy, the trial court articulated such an exception, it incorrectly ventured into a province exclusive to the legislature. See, e.g., Genesky v. East Lyme, 275 Conn. 246, 268, 881 A.2d 114 (2005) (Connecticut courts cannot read into legislation provisions that clearly are not contained therein); Glastonbury Co. v. Gillies, 209 Conn. 175, 181, 550 A.2d 8 (1988) (“[I]t is not the province of a court to supply what the legislature chose to omit. The legislature is supreme in the area of legislation, and courts must apply statutory enactments according to their plain terms.” [Internal quotation marks omitted.]); Doncourt v. Danaher, 126 Conn. 678, 681,13 A.2d 868 (1940) (“[i]f exceptions are to be made, it is for the [legislature to determine them and define their limitations”). Had the General Assembly intended to except a foster parent’s testimony concerning a child in the care or custody of the department from the confidentiality mandate of § 17a-28, we must presume that it would have said so expressly. See Southwick at Milford Condominium Assn., Inc. v. 523 Wheelers Farm Road, Milford, LLC, 294 Conn. 311, 320, 984 A.2d 676 (2009).

The defendant’s reliance on People v. Espinoza, 95 Cal. App. 4th 1287, 116 Cal. Rptr. 2d 700, review denied, 2002 Cal. LEXIS 3308 (May 15, 2002), in support of her interpretation of § 17a-28 is unavailing. That California decision considered the admissibility of testimony by a foster mother regarding her observations of a foster child under California Welfare and Institutions Code § 827. As the court explained, § 827 “restricts those who may inspect a juvenile case file. It provides that, [f]or purposes of this section, a juvenile case file means a petition filed in any juvenile court proceeding, reports of the probation officer, and all other documents filed in that case or made available to the probation officer in making his or her report, or to the judge, referee, or other hearing officer, and thereafter retained by the probation officer, judge, referee, or other hearing officer.” (Internal quotation marks omitted.) Id., 1314. The California Court of Appeals in Espinoza held that the foster mother’s proposed testimony “would not have amounted to the disclosure of a ‘juvenile [dependency] case file’ or of ‘information related to the contents of a juvenile dependency case file and therefore did not come within [§] 827, subdivision (a) (3)’s requirement of a court order authorizing disclosure of such a file or information.” Id., 1315.

That interpretation of California law sheds little light on the issue before us. The defendant has not discussed § 827 in any manner, including whether any similarity to § 17a-28 exists. That California statute concerns a restriction on access to juvenile court records, whereas § 17a-28 requires information created or obtained in connection with the department’s child protection activities or activities related to a child while in the care or custody of the department to be kept confidential. Espinosa further is distinguishable in that it involved a criminal proceeding, which implicates constitutional concerns not present in the case before us. See, e.g., State v. George J., 280 Conn. 551, 599, 910 A.2d 931 (2006), cert. denied, 549 U.S. 1326, 127 S. Ct. 1919, 167 L. Ed. 2d 573 (2007); State v. McClelland, 113 Conn. App. 142, 160, 965 A.2d 586, cert. denied, 291 Conn. 912, 969 A.2d 176 (2009).

We likewise find the defendant’s discussion of State v. Morowitz, 200 Conn. 440, 442, 512 A.2d 175 (1986), unpersuasive. That criminal case concerned General Statutes § 54-142a, which requires the erasure of certain paper records—police, court and prosecution records regarding dismissed charges. At issue in Morowitz was the permissibility of testimony by a victim whom the defendant had sexually assaulted prior to the incident giving rise to the case at issue. Because the charges relating thereto were dismissed following the defendant’s completion of accelerated rehabilitation, he maintained that § 54-142a precluded the victim’s testimony. Id., 447-48. Our Supreme Court read that statute narrowly, emphasizing that “the purpose of the erasure statute ... is to protect innocent persons from the harmful consequences of a criminal charge which is subsequently dismissed.” (Emphasis in original; internal quotation marks omitted.) Id., 451. The court continued: “The statute does not and cannot insulate him from the consequences of his prior actions. Although the records of the defendant’s prior prosecution were erased, the prior victim’s memory of the assault remained. Because the disputed testimony was based on personal knowledge independent of the erased records, § 54-142a did not bar its admission.” (Emphasis in original.) Id.

By contrast, our Supreme Court has stated that § 17a-28 embodies “a broad legislative declaration of confidentiality”; State v. Kulmac, supra, 230 Conn. 57; the aim of which is the protection of foster children from embarrassment, stigmatization and emotional harm. Abreu v. Leone, supra, 291 Conn. 348. The plaintiffs testimony regarding the child in the present case is inextricably linked to his participation in the department’s activities related to a child while in the care or custody of the department. In addition, “records,” as that term is used in § 17a-28, has a far more expansive meaning than that at issue in Morowitz.

Also unconvincing is the defendant’s contention that testimony by the plaintiff arising from his “personal knowledge” escapes the confidentiality mandate of § 17a-28. That semantical exercise is undercut by the fact that the personal knowledge that the plaintiff possessed concerning the child resulted from his participation in activities related to a child while in the care or custody of the department. As a foster parent, the plaintiff is “a partner and integral part of the child welfare system” who “play[s] a key role in the system of providing services to children who must live away from their family of origin when that family cannot provide a positive environment or meet the special needs of the children.” (Internal quotation marks omitted.) Abreu v. Leone, supra, 291 Conn. 347-48. The plaintiff is subject to numerous department regulations, which require him, inter alia, to “comply with the treatment plan for the child and work cooperatively with the department ... in all matters pertaining to the child’s welfare”; Regs., Conn. State Agencies § 17a-145-149 (a); and to maintain “all documentation as required by the department . . . .” Regs., Conn. State Agencies § 17a-145-151 (4). Such duties serve to “enable the commissioner to perform his duty regarding children under his care.” In re Barbara J., 215 Conn. 31, 42, 574 A.2d 203 (1990).

In furtherance of that effort, department policy mandates a partnership between the plaintiff and the department. The department policy manual provides that “[t]he foster parents and child’s [s]ocial [w]orker are partners in carrying out the plans of the treatment team so that the child receives the full spectrum of appropriate services. . . . Foster parents are part of the child’s treatment team .... The foster parent’s perspective on the child’s adjustment to daily life is critical to the development and review of the service plan.” Dept, of Children and Families Policy Manual § 36-55-1.5, pp. 1-2. The extent of that partnership is evinced by the fact that foster parents are “employees” of the state with respect to the state’s duty to defend and to indemnify. Hunte v. Blumenthal, 238 Conn. 146, 167, 680 A.2d 1231 (1996).

Under Connecticut law, the commissioner of the department, and not the foster parent, is designated as the guardian of a child placed in foster care. General Statutes § 46b-129 (j). As such, the department possesses the authority to control foster parents in the discharge of their duties. Hunte v. Blumenthal, supra, 238 Conn. 154-55. Consistent with the mandate of § 17a-28 (b), department policy compels a foster parent to “maintain confidentiality in all matters pertaining to the child . . . .” Dept, of Children and Families, supra, § 36-55-1.5, p. 4. In light of the foregoing, we find persuasive the department’s argument that “a foster parent’s obligation to maintain the confidentiality of information related to a child in his or her care is no less than that of a [department] social worker.”

The plain language of General Statutes (Rev. to 2005) § 17a-28 (a) (5) indicates that the term “ ‘[records’ ” includes information “obtained in connection with the department’s child protection activities or activities related to a child while in the care or custody of the department . . . .” (Emphasis added.) Any personal knowledge held by the plaintiff regarding the child, including observations and opinions thereof, necessarily was obtained as a result of his participation in the department’s child protection activities or activities related to a child while in the care or custody of the department. The term “records,” as used in § 17a-28, thus encompasses the plaintiffs personal knowledge of the child in the present case.

We similarly discount the defendant’s contention that the plaintiffs observations and opinions of the child are not records maintained by the department. “Maintain” is not defined in § 17a-28 but is generally defined as “to keep in an existing state: preserve from failure or decline.” Merriam-Webster’s Collegiate Dictionary (9th Ed. 1983). Any observations and opinions of the child to which the plaintiff potentially could testify a fortiori is information that has been kept in an existing state.

The defendant quarrels with that point, insisting that such information is maintained not by the department, but by the plaintiff in his individual capacity. For three reasons, we reject that allegation. First, it is undisputed that the plaintiff is a partner of the department and a participant in its child protection efforts. Various requirements are imposed on his involvement therein, including the responsibility to observe the child and to share those observations with the department. The plaintiff further is obligated to keep confidential all matters pertaining to the child. Indeed, the department exercises control over foster parents in the discharge of their duties. Hunte v. Blumenthal, supra, 238 Conn. 154-55. Whether termed partner, agent or employee, the plaintiff, in participating in the care of the child, acts as an extension of the department.

Second, a practical problem abounds with the defendant’s interpretation that § 17a-28 (b) applies only to records that “are kept in the department’s log books and file cabinets,” as the defendant stated at oral argument, which she contends do not encompass the plaintiffs observations and opinions. It is undisputed that the department exercises control over foster parents in the discharge of their duties, including the responsibility to “comply with the treatment plan for the child”; Regs., Conn. State Agencies § 17a-145-149 (a); to maintain “all documentation as required by the department”; Regs., Conn. State Agencies § 17a-145-151 (4); and to regularly “[share] information” regarding the child with the department. Dept. of Children and Families, supra, §§ 36-55-1.3 and 36-55-1.5. As a result, the defendant’s interpretation of § 17a-28 creates the unworkable situation wherein the determination of whether a particular piece of information related to a child in the care or custody of the department is, in fact, contained in the records possessed by the department must entail an examination of department records, which the defendant concedes are confidential under § 17a-28 (b). That interpretation presents a troubling “ ‘chicken or the egg’ scenario.” C. R. Klewin Northeast, LLC v. Bridgeport, 282 Conn. 54, 77, 919 A.2d 1002 (2007). By way of example, consider the deposition question on the plaintiffs “opinion of whether the child had assaultive tendencies.” Given the plaintiffs obligations to the department, that opinion may well have been both communicated to the department and memorialized in some manner by the department, be it by written document or other form. Only by examining department records pertaining to the child could the defendant determine whether the opinion was contained therein, which all parties agree is not permitted under § 17a-28.

That scenario places the plaintiff in a harrowing predicament. Were he compelled to testify as to his personal observations of the child, as well as to the six questions that the court ordered him to answer, the plaintiff would face potential criminal and civil penalties for wrongful disclosure of protected information under §. 17a-28 (b), despite the possibility that he was unaware that such information was contained in the “log books and file cabinets” maintained by the department. We do not believe that the legislature intended to so bind foster parents. Such a scenario “would discourage participation by otherwise willing foster parents and thus undermine the goals of that system.” Abreu v. Leone, supra, 291 Conn. 348.

Third, to read § 17a-28 (b) in such fashion as that advanced by the defendant serves to undermine the primary purpose of the statute—namely, to preserve the confidentiality of information in connection with the department’s child protection activities or activities related to a child while in the care or custody of the department. See State v. Kulmac, supra, 230 Conn. 57. “In the interpretation of a statute, a radical departure from an established policy cannot be implied. It must be expressed in unequivocal language.” (Internal quotation marks omitted.) Fredette v. Connecticut Air National Guard, 283 Conn. 813, 822, 930 A.2d 666 (2007). Section 17a-28 (b) lacks such unequivocal language.

We also are mindful that “[i]n construing a statute, common sense must be used, and courts will assume that the legislature intended to accomplish a reasonable and rational result.” (Internal quotation marks omitted.) King v. Board of Education, 203 Conn. 324, 332-33, 524 A.2d 1131 (1987). The aim of § 17a-28 is to prevent disclosure of information concerning a child in the care or custody of the department. It is a legislative attempt to shield that child from “the embarrassment, stigmatization and emotional harm that can result from the mere disclosure that he or she is under the department’s care.” Abreu v. Leone, supra, 291 Conn. 348. It would be incongruous to interpret § 17a-28 to permit a foster parent, a vital participant in the department’s child protection efforts, to testify as to the legal status of a foster child and his observations and opinions thereof, while forbidding such testimony by a department social worker. Interpreting § 17a-28 to permit a foster parent to so testify is inconsistent with the confidentiality mandate governing “information ... in connection with the department’s child protection activities or activities related to a child while in the care or custody of the department . . . .” General Statutes (Rev. 2005) § 17a-28 (a) (5). A commonsense reading of the language of § 17a-28 persuades us that the legislature did not intend to permit such testimony by a foster parent.

In sum, we decline the defendant’s request to read § 17a-28 in a narrow manner. The statute embodies “a broad legislative declaration of confidentiality.” State v. Kulmac, supra, 230 Conn. 57. We conclude that the disclosure of information created or obtained in connection with the department’s child protection activities or activities related to a child while in the care or custody of the department is permitted only in certain instances specified by statute, none of which are implicated in the present case.

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

In this opinion the other judges concurred.

       The plaintiff declined to answer the following questions:
      1. “[H]ave you seen any [department] documents pertaining to [the child]?”
      2. “Do you know [the child]?”
      3. “How do you know [the child]?”
      4. “How long have you known [the child]?”
      5. “What is the capacity of your relationship with [the child]?”
      6. “Does [the child] currently reside with you?”
      7. “Did [the child] reside with you on November 7, 2003?”
      8. “Were you [the child’s] foster parent on November 7, 2003?”
      9. “If [the child] did reside with you on November 7, 2003, how long prior to that date did he reside with you?”
      10. “How long after November 7, 2003, did [the child] reside with you?”
      11. “Describe [the child’s] personality.”
      12. “Did you ever see or hear [the child] acting violently towards anybody else?”
      13. “Do you know if [the child] ever got in trouble at school?”
      14. “If [the child] did get in trouble at school, what kind of trouble did he get into?”
      15. “What happened in any of the instances where [the child] may have gotten in trouble at school?”
      16. “Do you know the names of the parents or guardians of any of [the child’s] friends or associates?”
      17. “If so, what were their names?”
      18. “And do you know any of their addresses or [telephone numbers?”
      19. “Do you know if [the child] ever had any physical altercations with either of them, being his friends, or anyone else other than [the defendant], on or before November 7, 2003?”
      20. “If the answer to that preceding [question] is in the affirmative, please discuss. Tell me the details of what happened.”
      21. “Based on your knowledge and relationship with [the child], would you agree that he has assaultive tendencies?”
      22. “If your answer to the preceding question was in the affirmative, why do you believe so? If it was in the negative, why don’t you believe so?”
      23. “If you believe that [the child] has assaultive tendencies], why is that your belief?”
      24. “If you do not believe he has an assaultive tendency, why don’t you believe so?”

       After commencement of the present appeal, this court held a hearing on whether the appeal should be dismissed for lack of a final judgment. We subsequently dismissed the appeal. The department appealed from that determination to our Supreme Court, which held that the trial court’s order compelling the plaintiff to answer the disputed questions terminated a separate and distinct proceeding and thus constituted an appealable interlocutory order. Abreu v. Leone, supra, 291 Conn. 349. Accordingly, the Supreme Court reversed the judgment of this court and remanded the matter for our consideration of the merits of the department’s appeal. Id., 350.

       The parties agree that § 17a-28 (b) is unambiguous, albeit for differing reasons. In their appellate briefs, the department and the defendant analyze the issue before us in terms of the statute’s plain meaning.

       We note that § 17a-28 (b) was amended by No. 09-185, § 1, of the 2009 Public Acts, effective October 1, 2009. That amendment made certain changes to the statute that are not relevant to this appeal. For clarity, we refer to the 2005 revision of the statute, which was in effect at the time the matter at issue arose.

       Neither party has addressed the possibility of pursuing the present action under pseudonym as a means of protecting the child’s identity and maintaining the confidentiality required by § 17a-28, which conceivably could satisfy the interests of both the defendant and the department in the present case. See, e.g., Community Action for Greater Middlesex County, Inc. v. American Alliance Ins. Co., 254 Conn. 387, 389 n.2, 757 A.2d 1074 (2000).

       The court’s determination also confounded other decisions of the Superior Court. As one judge earlier had observed, § 17a-28 “contains no exception . . . providing generally for the disclosure of information in [department] files to the court or the parties in a civil action. . . . When raised in a civil context . . . trial courts have uniformly refused to order disclosure of [department] records, citing the lack of statutory or case law authority to order the disclosure.” (Citation omitted; internal quotation marks omitted.) Losacano v. Plainfield, Superior Court, judicial district of Windham at Putnam, Docket No. CV-01-0067834-S (February 11, 2003) (34 Conn. L. Rptr. 174, 176).


author: FLYNN, C. J.

text:
    TERRANCE WILLIAMS v. COMMISSIONER OF CORRECTION
    (AC 29528)
    Flynn, C. J., and Gruendel and Robinson, Js.

      Argued January 11
    officially released April 13, 2010

      Wayne A. Francis, special public defender, for the appellant (petitioner).

      Bruce R. Lockwood, senior assistant state’s attorney, with whom, on the brief, were John C. Smriga, state’s attorney, Jonathan C. Benedict, former state’s attorney, and Nicholas J. Bove, Jr., senior assistant state’s attorney, for the appellee (respondent).

       The listing of judges reflects their seniority status on this court as of the date of oral argument.

   Opinion

FLYNN, C. J.

The petitioner, Terrance Williams, appeals following the granting of his petition for certification to appeal from the judgment of the habeas court denying his amended petition for a writ of habeas corpus. On appeal, the petitioner contends that he is entitled to a reversal of his convictions and a new trial because his trial counsel provided ineffective legal assistance. Specifically, the petitioner claims that (1) he was denied the effective assistance of counsel because counsel provided erroneous legal advice, including incorrect information on the possible sentence he was facing for certain crimes, causing the petitioner to enter unknowing, unintelligent and involuntary guilty pleas, and (2) he was denied effective legal assistance because counsel (a) failed to attend most of the petitioner’s court hearings and did not engage in ongoing meaningful plea negotiations with the state because of those absences, and (b) improperly advised the petitioner to forgo a suppression hearing regarding the legality of the seizure of contraband from his person. We affirm the judgment of the habeas court.

The following procedural history will help to set the backdrop of the petitioner’s appeal. The petitioner was charged in four separate dockets: in docket number CR05-212701 (docket 701), he was charged with criminal mischief in the third degree in violation of General Statutes § 53a-117; in docket number CR06-213473 (docket 473), he was charged with possession of a narcotic substance with intent to sell by a person who is not drug-dependent in violation of General Statutes § 2 la-278 (b), possession of a narcotic substance with intent to sell within 1500 feet of a public housing project in violation of General Statutes § 21a-278a (b) and criminal trespass in the third degree in violation of General Statutes § 53a-109; in docket number CR06-213903 (docket 903), he was charged with attempt to commit larceny in the third degree in violation of General Statutes §§ 53a-49 and 53a-124, larceny in the third degree in violation of General Statutes § 53a-124, forgery in the second degree in violation of General Statutes § 53a-139 and possession of narcotics in violation of General Statutes § 2 la-279 (a), and, in docket number CR06-216517 (docket 517), he was charged with assault in the third degree in violation of General Statutes § 53a-61.

On July 18, 2006, pursuant to a plea agreement, the state filed a substituted information in docket 473, charging the petitioner with possession of a narcotic substance with intent to sell in violation of General Statutes § 2 la-277 (a). The petitioner then pleaded guilty to the following charges: in docket 473, possession of a narcotic substance with intent to sell; in docket 903, larceny in the third degree; and in docket 517, assault in the third degree. The state then entered a nolle prosequi in docket 701, and it stated that it would agree to a nolle prosequi on the assault in the third degree charge at the time of sentencing if it determined that it could not prove that charge. On August 18, 2006, the court imposed the following sentence: in docket 473, nine years incarceration, execution suspended after four years, followed by five years of probation; and, in docket 903, four years incarceration, to run concurrently with the sentence imposed in docket 473. The state then conceded that it could not prove the assault in the third degree charge in docket 517 because the victim was uncooperative. The court then vacated the petitioner’s guilty plea on that charge, and the state entered a nolle prosequi. The state also entered a nolle prosequi on all remaining charges in docket 903. The petitioner, thereafter, filed a grievance against his counsel, Michael Gannon, who, ultimately, was suspended indefinitely from the practice of law.

On July 2, 2007, the petitioner filed an amended petition for a writ of habeas corpus, claiming ineffectiveness of legal counsel. After a hearing on the merits of the amended petition, the court denied the petition but granted certification to appeal. This appeal followed. Facts will be set forth as necessary throughout the opinion.

Initially, we note that the petitioner did not file a direct appeal or move to vacate his guilty pleas. Nevertheless, “a petitioner who has not moved to withdraw his guilty plea or challenged his plea on direct appeal need not establish cause and prejudice if he can fulfill the two-pronged test for ineffective assistance of counsel. . . . That test, as laid out in Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984), and modified for guilty plea cases in Hill v. Lockhart, 474 U.S. 52, 58-59, 106 S. Ct. 366, 88 L. Ed. 2d 203 (1985), requires petitioners to establish that: (1) counsel’s representation fell below an objective standard of reasonableness; and (2) there is a reasonable probability that, but for counsel’s errors, the defendant would not have pleaded guilty and would have insisted on going to trial.” Crawford v. Commissioner of Correction, 294 Conn. 165, 189-90, 982 A.2d 620 (2009).

“To satisfy the performance prong, the petitioner must show that counsel’s representation fell below an objective standard of reasonableness. ... A petitioner who accepts counsel’s advice to plead guilty has the burden of demonstrating on habeas appeal that the advice was not within the range of competence demanded of attorneys in criminal cases. . . . The range of competence demanded is reasonably competent, or within the range of competence displayed by lawyers with ordinary training and skill in the criminal law. . . . Reasonably competent attorneys may advise their clients to plead guilty even if defenses may exist. ... A reviewing court must view counsel’s conduct with a strong presumption that it falls within the wide range of reasonable professional assistance and that a tactic that appears ineffective in hindsight may have been sound trial strategy at the time. . . .

“To satisfy the prejudice prong, the petitioner must show a reasonable probability that, but for counsel’s errors, he would not have pleaded guilty and would have insisted on going to trial. . . . Reasonable probability does not require the petitioner to show that counsel’s deficient conduct more likely than not altered the outcome in the case, but he must establish a probability sufficient to undermine confidence in the outcome.” (Citations omitted; internal quotation marks omitted.) Baillargeon v. Commissioner of Correction, 67 Conn. App. 716, 721-22, 789 A.2d 1046 (2002). “Because both prongs . . . must be established for a habeas petitioner to prevail, a court may dismiss a petitioner’s claim if he fails to meet either prong.” (Internal quotation marks omitted.) Pierce v. Commissioner of Correction, 100 Conn. App. 1, 11, 916 A.2d 864, cert. denied, 282 Conn. 908, 920 A.2d 1017 (2007).

In a habeas corpus appeal, “[t]he underlying historical facts found by the habeas court may not be disturbed unless the findings were clearly erroneous. . . . Historical facts constitute a recital of external events and the credibility of their narrators. . . . Questions of law and mixed questions of law and fact receive plenary review.” (Internal quotation marks omitted.) Crawford v. Commissioner of Correction, supra, 294 Conn. 174. In the present case, the petitioner does not challenge the factual findings of the habeas court. Rather, his claims raise either questions of law or mixed questions of law and fact. Accordingly, our review is plenary. See id.

I

The petitioner claims that his guilty pleas violated his rights to due process under the fifth and the fourteenth amendments to the United States constitution because they were not knowing, intelligent and voluntary due to the ineffective assistance of counsel. The petitioner claims that counsel provided erroneous legal advice and information, including incorrect information about his sentence on the plea agreement and misinformation about the maximum possible sentence he faced on some of the charges, thus leading him to enter pleas that were in violation of his constitutional rights. The respondent, the commissioner of correction, argues that the habeas court properly concluded that the petitioner’s pleas were not involuntary and unintelligent due to the ineffective assistance of counsel. We agree with the respondent.

“Guilty pleas must be intelligent, voluntary and knowing. ... A defendant must be aware of all direct consequences of his plea. . . . Where the petitioner relied on gross misadvice about an indirect consequence, his plea would have been involuntary, unintelligent and, therefore, invalid.” (Citation omitted; internal quotation marks omitted.) Hernandez v. Commissioner of Correction, 82 Conn. App. 701, 709, 846 A.2d 889 (2004). “Moreover, because a guilty plea is an admission of all the elements of a formal criminal charge, it cannot be truly voluntary unless the defendant possesses an understanding of the law in relation to the facts. . . . An essential part of understanding the law as it applies to the facts is knowing the maximum amount of time that the defendant could spend in confinement.” (Citation omitted; internal quotation marks omitted.) Dup-erry v. Solnit, 261 Conn. 309, 320, 803 A.2d 287 (2002).

A

The petitioner claims that he was coerced into pleading guilty by the promises of counsel, made outside of the plea agreement. Specifically, he argues that counsel told him he would get a term of eight years, with three years to serve and with five years of probation, instead of the nine years, with four to serve and the five years of probation that he ultimately received. We are not persuaded by the petitioner’s argument. Furthermore, even if we were to agree that counsel told the petitioner that he would get less time than he actually received, it is clear that the petitioner suffered no prejudice because the court went over the terms of the plea agreement, and the petitioner acknowledged that he understood the terms of the agreement as recited by the court.

The following facts are necessary to our resolution of the petitioner’s claim. When the petitioner was about to enter a guilty plea on the amended informations, it was agreed that if the state could not prove the assault in the third degree charge because of the alleged victim’s refusal to cooperate, the plea on that charge would be vacated at sentencing and a nolle would enter on that charge. The petitioner wanted the assault charge nolled so that he would not have a conviction of a crime of violence, which could help him secure an earlier parole date. As agreed, at the time of sentencing, the petitioner’s plea on the assault charge was vacated, and the state entered a nolle on that charge because the victim did not want to cooperate.

The petitioner argued before the habeas court that his guilty pleas were unconstitutional because he was told by counsel that the plea agreement, giving him a total effective sentence of nine years incarceration suspended after four years, with five years probation, would be reduced to eight years, suspended after three years, if a nolle entered on the assault in the third degree charge at sentencing. After reviewing the evidence, which included a transcript from the day the petitioner entered his guilty pleas, the habeas court found that there was no support for the petitioner’s position. We agree with the habeas court.

The transcript from the July 18, 2006 proceeding reveals the following. A hearing on the petitioner’s motion to suppress in docket 473 was scheduled to be heard that day, but the petitioner, instead, accepted a plea offer from the state. The petitioner withdrew his not guilty pleas and elected to plead guilty as stated previously. The court then stated:

“The Court: Total effective sentence of nine, suspended after four and five years of probation is the agreed upon disposition. All right . . . I’m going to ask you some questions about your cases and your decision to enter these pleas. If there is anything I say that you don’t understand or for any reason you need more time to talk to Mr. Gannon, let me know and I’ll stop and I’ll give you an opportunity to do that.”

The court then canvassed the petitioner to ensure that he had spoken to counsel, that he was not under the influence of alcohol or drugs, that he understood the charges against him and what needed to be proven to convict him of those charges, that he knew of his right to a trial and to confront witnesses and that he had not been threatened to enter his pleas. The court also asked the petitioner:

“The Court: All right . . . you have entered into this plea agreement with the understanding that on the date of sentencing ... I will impose a total effective sentence of nine years suspended after service of four years, followed by five years of probation; is that your understanding of the plea agreement?
“[The Petitioner]: Yeah. Yes.
“The Court: And regardless of what happens on the assault charge, that is still going to be the sentence, nine suspended after four followed by five years of probation; you understand that?
“[The Petitioner]: Yeah.
“The Court: Do you understand that?
“[The Petitioner]: Yeah.”

We conclude that the court was very clear in going over the terms of the plea agreement with the petitioner, and the petitioner was very clear that he understood those terms and that they would not change regardless of what happened with the assault charge. On the basis of the record before us, we are not persuaded, nor was the habeas court persuaded, that counsel had told the petitioner anything different from what the trial court explained to be the petitioner’s agreed upon sentence. Furthermore, even if we agreed that counsel had told the petitioner something different, because the court fully informed the petitioner of the terms, and the petitioner acknowledged that he understood those terms, the petitioner would be unable to demonstrate prejudice. Accordingly, we find no merit to this claim.

B

The petitioner next claims that counsel, in violation of the petitioner’s constitutional rights, gave him inaccurate information as to the maximum possible sentence on several of the crimes charged in the original information, leading him to enter into an uninformed plea agreement. He argues that “[b]ecause counsel did not review the plea offers with the [petitioner based upon accurate information, his plea of guilty was therefore not made knowingly and intelligently . . . .” Although we agree that counsel gave inaccurate information to the petitioner, we conclude that such misinformation did not affect the constitutionality of the petitioner’s plea.

The following facts, as found by the habeas court, axe relevant to our resolution of the petitioner’s claim. Aside from the narcotics related charges in docket 473, “the petitioner faced charges of forgery in the second degree, larceny and attempted larceny in the third degree, and possession of narcotics, which stemmed from a . . . case involving bank fraud. It is true that Gannon incorrectly advised the petitioner that his exposure was thirty years on these charges. The petitioner could not have been convicted of both larceny and attempted larceny; see Practice Book § 42-29; and the evidence indicated that the petitioner in this case was not guilty of possession of narcotics, but rather only possession of less than four ounces of marijuana [in docket 903]. Thus, the petitioner faced an actual maximum exposure of eleven years on these cases. See General Statutes §§ 21a-279 (c), 53a-139 and 53a-124.”

The petitioner argues that if he had known that he only faced eleven years on these charges, not including the narcotics related charges from docket 473, he would not have accepted the plea agreement, would have proceeded with the motion to suppress the seized drugs in docket 473 and would have gone to trial. We are not persuaded.

First, it is unclear whether the court concluded that counsel was ineffective in giving the petitioner the wrong information on the sentence he was facing for the charges not related to docket 473. The court specifically found that counsel had given the wrong information, but it concluded, nonetheless, that counsel “acted reasonably in advising the petitioner to plead guilty with a plea agreement calling for a sentence of four years to serve.” Our own review of the record leads us to conclude that counsel was ineffective when he provided the petitioner with incorrect information regarding the maximum possible sentence he was facing on several of the dockets but that the petitioner has failed to prove that, absent such incorrect information, he would have insisted on going to trial.

As found by the habeas court, the petitioner was facing a maximum sentence of eleven years after weeding out charges that could not be proved or otherwise were not sustainable by the prosecution. He also was facing, however, a charge of possession with intent to sell, as a subsequent offender, possession within 1500 feet of a public housing project and criminal trespass in the third degree. See General Statutes §§ 21a-278 (b), 21a-278a (b) and 53a-109. These charges carried a possible maximum sentence of just over twenty-eight years imprisonment. The respondent contended, and the habeas court agreed, that the state also could have added conspiracy and a narcotics distribution offense to the information, which would have added another twenty-five years to the petitioner’s maximum exposure on docket 473. Even without the possible additional charges, however, the petitioner was facing more than twenty-eight years on docket 473 and another eleven years on the other dockets, for a total maximum exposure of nearly forty years. The petitioner admitted, and he does not contend otherwise on appeal, that he was guilty of the charges in docket 473 and that he had no real defense to the charges for which he pleaded guilty. He argues, nonetheless, that he would not have pleaded guilty and would have taken his chances on the motion to suppress the narcotics that were seized related to docket 473 if he had known that the other charges carried only a maximum of eleven years.

In rejecting this contention, the habeas court found that the petitioner was aware that if he had rejected the state’s plea agreement and had moved forward with the suppression hearing, the agreement no longer would have been available and that any subsequent offer would have exposed the petitioner to more prison time. Counsel also had informed the petitioner that there were no guarantees on the motion to suppress and that he was facing considerable time if they were not successful. The record also reveals that the petitioner was quite concerned with not having a crime of violence among his convictions because it would affect his parole eligibility date, and, once counsel was successful in getting the state to agree to nolle that charge if the victim refused to cooperate, the petitioner was ready to move forward with the plea agreement. Taking all of these things into consideration, we are not persuaded by the petitioner’s self-serving contention that had counsel provided him with accurate information, he would not have accepted the plea agreement and would have gone to trial.

II

The petitioner also claims that he was denied the effective assistance of counsel and is entitled to a new trial because counsel (1) failed to attend most of the petitioner’s court hearings and did not engage in ongoing meaningful plea negotiations with the state because of his absences and (2) improperly advised the petitioner to forgo a suppression hearing regarding the legality of the search of his person. Employing the same standard of review expressed previously in this opinion, we will consider each of these claims in turn.

A

The petitioner claims that he was deprived of the effective assistance of counsel because counsel failed to attend most of the petitioner’s court hearings and did not engage in ongoing meaningful plea negotiations with the state due to those absences. The petitioner argues that the habeas court correctly determined that counsel was ineffective for failing to attend many of the scheduled court dates but that it was incorrect in holding that the petitioner failed to show prejudice. We disagree with the petitioner.

The following additional facts, as found by the habeas court, are necessary to our resolution of the petitioner’s claim. “Gannon filed an appearance for the petitioner in late May [2006]. Gannon was on trial in another courthouse at the time, having been called to trial on short notice. For the May 24 and 31 scheduled court dates in the petitioner’s cases, Gannon faxed requests for continuances. . . . On June 1, Gannon failed to appear, and the court continued the case again. The case next came to court on June 16. Gannon did not appear but had attorney Robert Photos file an appearance and represent the petitioner on that date. . . . Gannon appeared in court with the petitioner on June 27. . . . On July 18, Gannon appeared with the petitioner for a hearing on a motion to suppress . . . [and just] prior to the beginning of the suppression hearing, the petitioner indicated that he would accept [the] revised offer

The court found that Gannon’s failure to attend court on some of the dates mentioned constituted deficient performance but that the petitioner could not prove that he was prejudiced. The petitioner argues that “[t]he court erred ... in its finding that the petitioner was not prejudiced because it remained unclear as to whether Gannon’s attendance on June 16, 2006, would have yielded a different outcome.” He further argues that “these absences prevented the [petitioner] from getting the benefit of meaningful plea negotiations.” We do not necessarily agree that counsel’s failure to attend court on these dates, especially when he was called to trial on a different case on short notice, was deficient. We, nonetheless, do agree with the habeas court that the petitioner cannot prove that he was prejudiced under the HiU-Strickland test, which requires that the petitioner prove that he would have gone to trial but for counsel’s deficient performance. See Crawford v. Commissioner of Correction, supra, 294 Conn. 189-90. Additionally, even under some modification of this test, the petitioner has not proven that plea negotiations suffered due to counsel’s absences.

As the habeas court found, the petitioner was facing nearly forty years in prison on the charges that reasonably might have moved forward and up to sixty-five years if the prosecutor amended the information in docket 473 to include additional charges that the state asserted could be added to conform to the evidence. The habeas court found that the petitioner had admitted to Gannon that he was guilty of these charges, and Gannon still was able to secure a sentence of nine years, suspended after four years, with five years probation, during negotiations with the prosecutor. The court found, and we agree, that Gannon acted reasonably in advising the petitioner to plead guilty and to accept this plea offer. The petitioner’s speculation that if Gannon had been there on these other dates, he may have been able to get a better offer, is nothing more than mere speculation that does not equate to prejudice. SeeNa/ru-manchi v. DeStefano, 89 Conn. App. 807, 815, 875 A.2d 71 (2005) (“[speculation and conjecture have no place in appellate review”).

B

The petitioner next claims that he was denied effective legal assistance and is entitled to a new trial because counsel improperly handled the motion to suppress and acted deficiently in advising him to forgo the hearing on the motion to suppress. The respondent argues that the “habeas court properly concluded that Gannon’s handling of the motion to suppress did not prejudice the petitioner because the petitioner could not prevail on his claim that ‘the seizure of the narcotics from [his] groin area exceeded the scope of a permissible frisk.’ ” We agree with the respondent.

“In order to show ineffective assistance for the failure to make [or proceed with] a suppression motion, the underlying motion must be shown to be meritorious, and there must be a reasonable probability that the verdict would have been different if the evidence had been suppressed.” (Internal quotation marks omitted.) Ricks v. Commissioner of Correction, 98 Conn. App. 497, 514, 909 A.2d 567 (2006), cert. denied, 281 Conn. 907, 916 A.2d 49 (2007).

From the testimony and exhibits submitted at the habeas trial, the court found the following facts with respect to the circumstances leading to the seizure of the narcotics from the petitioner. “At around midnight on January 11, 2006, Bridgeport police were conducting surveillance at the P.T. Bamum apartments, an area that was notorious for gun and drug crimes. They observed a person whom they later identified as the petitioner, along with four other individuals, engage in what they reasonably suspected was a drug deal outside one of the apartment buildings. The suspects apparently detected the surveillance and took flight onto a nearby highway in two different automobiles. Officers stopped one of the vehicles on a highway exit ramp several miles from the original scene. When the officers requested that the driver get out of the car, the driver at one point reached into his left waistband area with his left hand, a move that an officer reasonably believed was an effort to obtain a weapon. The driver then failed to comply with an order to place his hands behind his back, and a scuffle with the officers ensued.

“In the meantime, the police placed the sole passenger, who was the petitioner, in handcuffs outside the car. The petitioner was not under arrest at this point. An officer began a patdown and felt a hard item in the petitioner’s groin area that was not consistent with normal male anatomy. The petitioner proceeded to lean forward to block the officer’s vision. Because the police had experience with the practice of drug dealers from the P.T. Bamum area concealing drugs in their groin, a second officer thereupon pulled the petitioner’s pants out and reached into them. He pulled out a plastic bag [that had been] tied to the petitioner’s penis. The bag . . . contained 7.6 grams of crack cocaine.”

On the basis of these facts and our Supreme Court’s analysis in State v. Trine, 236 Conn. 216, 224-34, 673 A.2d 1098 (1996), the habeas court concluded that the search of the petitioner was reasonable and that, once the officer felt an atypical bulge in the petitioner’s groin area, the officer “was authorized to seize the item causing [the bulge].” Accordingly, the court concluded that the petitioner could not demonstrate that he was prejudiced by any alleged deficiency in counsel’s performance related to the motion to suppress.

On appeal, the petitioner argues that “[t]he court erred when it found that [he] was not prejudiced on trial counsel’s advice that he forgo the suppression hearing when evidence [presented to] the habeas court supports a finding that the search performed upon [him] was unreasonable under the fourth amendment to the United States constitution.” He further explains that the seizure was unreasonable because the police knew that this was contraband and not a weapon, and, yet, they proceeded to remove the narcotics that were tied to the petitioner’s penis while they were on a public roadway. The petitioner does not contest that the police had justification to conduct a patdown for weapons. His argument relates to the reasonableness of the police officers’ seizure of the narcotics from his genitals while in public view. The petitioner reasons that they should have taken him to the police station or to another private area before physically going into his pants, touching his genitals and retrieving what they knew was contraband. We agree with the habeas court that the seizure was reasonable under the circumstances of this case. Furthermore, we conclude that even if we agreed with the petitioner that the seizure should have occurred elsewhere, once the officer conducted the patdown and recognized that the petitioner was secreting narcotics in his groin area, the contraband would have been the source of inevitable discovery, and the petitioner would not have been successful in suppressing such evidence. Accordingly, he cannot prove that he was prejudiced by counsel’s handling of the motion to suppress.

“Under the inevitable discovery rule, evidence illegally secured in violation of the defendant’s constitutional rights need not be suppressed if the state demonstrates by a preponderance of the evidence that the evidence would have been ultimately discovered by lawful means. ... To qualify for admissibility the state must demonstrate that the lawful means which made discovery inevitable were possessed by the police and were being actively pursued prior to the occurrence of the constitutional violation. . . . State v. Clark, 255 Conn. 268, 280 n.29, 764 A.2d 1251 (2001); see Nix v. Williams, 467 U.S. 431, 444, 104 S. Ct. 2501, 81 L. Ed. 2d 377 (1984). The inevitable discovery rule applies in a situation in which, as here, the police would have legally discovered the evidence eventually.” (Internal quotation marks omitted.) State v. Vallejo, 102 Conn. App. 628, 640, 926 A.2d 681, cert. denied, 284 Conn. 912, 931 A.2d 934 (2007).

In this case, the petitioner concedes that the contraband would have been secured at the police station had the officers not secured it at the scene. In fact, he argues not that the seizure should not have occurred, but only that the seizure should not have occurred on the public roadside. Therefore, there is no dispute that the evidence would have been obtained later if the officers had not secured it at the scene. While the police were conducting a legitimate patdown of the defendant, they felt a hard item, inconsistent with normal male anatomy, which, on the basis of their training and experience, they thought to be contraband that had been secured to the petitioner’s penis. Once they had a reasonable and articulable suspicion that the petitioner was secreting contraband on his person, they were justified in seizing those illegal substances. Whether such seizure took place on the roadside or in the police station, the fact is that the narcotics would have been seized, and the petitioner would not have been successful in suppressing this evidence. Therefore, even if we agreed with the petitioner that the police had acted unreasonably in seizing the drugs while on the public roadway, the evidence inevitably would have been discovered. The police would have found the contraband when they brought the petitioner to the police station. Accordingly, the petitioner would not have been successful on the motion to suppress the contraband as evidence.

The judgment is affirmed.

In this opinion the other judges concurred.

       The precise reasons for Gannon’s suspension are not relevant to this opinion. The habeas court did note, however, that Gannon was suspended, in part, for his failure to have a written fee agreement with the petitioner in the petitioner’s criminal case.

       We note that procedurally the petitioner is raising these claims as ineffective assistance of counsel claims, i.e., sixth amendment violations, and not as direct due process claims under the fifth and fourteenth amendments.

       A violation of § 21a-279 (c) carries a maximum sentence of one year imprisonment, §53a-139 carries a maximum sentence of five years imprisonment and § 53a-124 carries a maximum sentence of five years imprisonment.
      The court also explained: “The petitioner contends that he could not have been found guilty of forgery in the Fairfield judicial district, in which Bridgeport is located. The court disagrees. Although the stipulation of facts [entered into by the petitioner and the respondent] reveals that a check apparently forged by the petitioner in the amount of $4100 was deposited into the petitioner’s account through an automated teller machine in Waterbury, which is outside of the Fairfield judicial district, there was no evidence of where the actual forgery took place. The petitioner, who bears the burden [of proof] in this case, did not prove that the forgery took place outside of the Fairfield judicial district, where the other offenses in this case took place. The petitioner, in fact, told Gannon that he was guilty of all charges. Moreover, even if the forgery took place in Waterbury, dismissal of the Bridgeport forgery charges would only have led to [the petitioner] being charged with the same offense in the Waterbury judicial district." We agree with the habeas court’s analysis and conclude that further discussion of this issue would be futile.

       The habeas court stated that the petitioner faced a possible sentence of twenty-nine years on these charges. A review of the charges and the associated penalties reveals that the petitioner faced a maximum penalty of twenty-eight years, three months imprisonment. The maximum penalty for a violation of § 21a-278 (b), as a subsequent offender, was twenty-five years; for a violation of § 21a-278a (b), the maximum penalty was three years consecutive; and for a violation of § 53a-109, which is a class c misdemeanor, the maximum penalty was three months pursuant to General Statutes § 53a-36.

       This calculation assumes that tihe assault in the third degree and criminal mischief charges would have been nolled and that the narcotics charge in docket 903 would have been reduced to possession of less than four ounces of marijuana.

       The petitioner argues in part that the unreasonableness of this matter results from the officers pulling down the petitioner’s pants and underpants, exposing his penis, while on an off-ramp from a public highway. The habeas court, however, credited the testimony of the police officers that they pulled open the petitioner’s pants and reached in to seize the narcotics. “The determination of a witness’ credibility is the special function of the trial court. [An appellate court] cannot sift and weigh evidence.” (Internal quotation marks omitted.) State v. Trine, supra, 236 Conn. 227.


author: PER CURIAM.

text:
    ROBERT BERLINGER v. MICHAEL KUDEJ
    (AC 30424)
    Gruendel, Beach and West, Js.
    Submitted on briefs February 17
    officially released April 13, 2010

      Jonathan Perkins, filed a brief for the appellant (plaintiff).

      Kenneth J. Mulvey, Jr., and James D. Hiñe II filed a brief for the appellee (defendant).
   Opinion

PER CURIAM.

The plaintiff, Robert Berlinger, appeals from the summary judgment rendered by the trial court in favor of the defendant, Michael Kudej. The plaintiff claims that the court improperly concluded that there was no genuine issue of material fact, thus entitling the defendant to judgment as a matter of law. We reverse the judgment of the trial court.

Viewed in the light most favorable to the plaintiff, the pleadings, affidavits and other proof submitted set forth the following facts. At all relevant times, the defendant possessed and controlled the premises located at 89 Bridgeport Avenue in Shelton (premises). He routinely invited employees of Housatonic Security Services, Inc., including the plaintiff, to enter the premises to obtain weekly paychecks. On the morning of December 9, 2005, the plaintiff entered the premises to pick up his paycheck. While traversing the driveway therein, the plaintiff slipped and fell on an accumulation of ice, causing him to suffer physical injury, pain and anguish. Litigation followed.

In his complaint, the plaintiff averred that the defendant had “failed to clear from the driveway ice and/or snow which was upon said driveway from precipitation which had fallen prior to December 9, 2005,” which allegedly caused the plaintiffs injuries. The defendant thereafter filed a motion for summary judgment on January 16, 2008, alleging that there was no genuine issue of material fact and that he was entitled to judgment as a matter of law. Specifically, the defendant claimed that (1) there was a snowstorm in progress at the time of the plaintiffs fall; (2) no unusual circumstances existed requiring the defendant to remove the snow prior to the plaintiffs fall; and (3) the driveway was clear of any ice when the snowstorm began. The plaintiff filed an opposition to the motion for summary judgment, and the court heard argument on the matter on March 17, 2008. In its April 28, 2008 memorandum of decision, the court rendered summary judgment in favor of the defendant, concluding that no genuine issue of material fact existed. The plaintiff subsequently moved to set aside that judgment and requested reargument, which the court denied. This appeal followed.

The issue in this appeal is whether the court properly determined that no genuine issue of material fact existed. The plaintiffs primary contention is that a genuine issue of material fact exists on whether, as he terms it, he “slipped on old ice.” Our review of the documentary evidence submitted to the court leads us to agree with the plaintiff.

Summary judgment is appropriate when “the pleadings, affidavits and any other proof submitted show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.” Practice Book § 17-49; Miller v. United Technologies Corp., 233 Conn. 732, 744-45, 660 A.2d 810 (1995). “A material fact is a fact that will make a difference in the result of the case. . . . [T]he burden of showing the nonexistence of any material fact is on the party seeking summary judgment .... It is not enough for the moving party merely to assert the absence of any disputed factual issue; the moving party is required to bring forward . . . evidentiary facts, or substantial evidence outside the pleadings to show the absence of any material dispute.” (Citation omitted; internal quotation marks omitted.) Barasso v. Rear Still Hill Road, LLC, 81 Conn. App. 798, 803, 842 A.2d 1134 (2004). Once met, the burden shifts to “the party opposing such a motion [to] provide an evidentiary foundation to demonstrate the existence of a genuine issue of material fact.” (Internal quotation marks omitted.) Bednarz v. Eye Physicians of Central Connecticut, P.C., 287 Conn. 158, 169, 947 A.2d 291 (2008). When deciding a motion for summary judgment, “the trial court must view the evidence in the light most favorable to the nonmoving party.” (Internal quotation marks omitted.) Bellemare v. Wachovia Mortgage Corp., 284 Conn. 193, 198, 931 A.2d 916 (2007). Because the court’s decision on a motion for summary judgment is a legal determination, our review on appeal is plenary. Id., 199.

In the present case, the plaintiffs complaint alleged that the defendant had “failed to clear from the driveway ice and/or snow which was upon said driveway from precipitation which had fallen prior to December 9, 2005.” In moving for summary judgment, the defendant claimed, inter alia, that “[t]he driveway was clear of any ice when the snowstorm began.” In support of that allegation, the defendant offered the deposition testimony of Joseph Frolish, the owner of Housatonic Security Services, Inc. Frolish stated under oath that he could not recall any snow or ice on the driveway the day prior to December 9, 2005. The defendant also presented a portion of the plaintiffs deposition testimony in which he stated that he could not recall the last time a snowstorm occurred prior to December 9, 2005.

In opposing the motion for summary judgment, the plaintiff offered his May 11, 2006 affidavit, in which he attested that “[o]n the morning of December 9, 2005,1 believe that there was ice on the driveway at the premises where I fell, which ice has been on the ground from prior precipitation” and that “[t]o the best of my recollection, there had been precipitation in the Shelton/Ansonia area within the two days before I fell at the premises and I do not believe that the temperature ever got as high as 35 degrees during that two day period.” The plaintiff also submitted portions of his deposition testimony, in which he stated that he had observed isolated patches of ice on the driveway on the Friday prior to his December 9, 2005 fall. The plaintiff further described his December 9, 2005 fall as follows: “[I] started walking down the driveway, got maybe halfway down, my left foot hit a patch of ice and slid maybe a foot and a half, and down on my rear end I went.” In that deposition testimony, the plaintiff also detailed his observations of the patch of ice on which he fell.

The documentation submitted by the defendant and the plaintiff in their pleadings seeking and opposing summary judgment contain conflicting assessments as to whether the driveway contained an icy accumulation prior to the morning of December 9, 2005. As such, a genuine issue of material fact exists. It thus was not for the court to find, as it did in its memorandum of decision, that “[t]he day before the [December 9, 2005] snowstorm there was no snow or ice on the property.” Rather, that factual determination belonged exclusively to the jury. As our Supreme Court has observed, “[litigants have a constitutional right to have factual issues resolved by the jury.” Mather v. Griffin Hospital, 207 Conn. 125, 138, 540 A.2d 666 (1988). Accordingly, “the credibility of the witnesses and the weight to be accorded their testimony is a matter for the jury to decide.” Dacey v. Connecticut Bar Assn., 170 Conn. 520, 540, 368 A.2d 125 (1976); see also Engram v. Kraft, 83 Conn. App. 782, 789, 851 A.2d 363 (2004) (in deciding motion for summary judgment, trial court “improperly drew its own conclusion as to the credibility of the defendant’s testimony rather than submitting the issue to the jury”).

We conclude that a genuine issue of material fact exists as to whether, as the plaintiffs complaint alleges, the defendant “failed to clear from the driveway ice and/or snow which was upon said driveway from precipitation which had fallen prior to December 9, 2005.” As such, the court improperly rendered summary judgment in favor of the defendant.

The judgment is reversed and the case is remanded for further proceedings in accordance with law.

       The pertinent part of Frolish’s deposition testimony is as follows:
      “Q. [D]uring that week that led to December 9, 2005, had you been [at the premises] every day that week?
      “A. Yes.
      “Q. The driveway and parking areas on that property on the Thursday, the day before—this would be December 8, 2005—was there any snow or ice accumulation on them?
      “A. No, not to my knowledge. Not to my recollection, let’s put it that way.
      “Q. So, the driveway and the parking areas were clear of any ice or snow on December 8, 2005?
      “A. As far as I remember, yes.”

       The plaintiffs deposition testimony included the following colloquy from his direct examination:
      “Q. How do you know your foot hit a patch of ice?

        “A. Because I slid. I’m not going to slide unless you hit ice.
      “Q. Did you see a patch of ice?
      “A. After I was down I did, yes.
      “Q. What did it appear to be?
      “A. Looked like just a glaze right on the driveway.”
      The transcript of the plaintiffs deposition also included the following testimony elicited on cross-examination:
      “Q. The ice on which you fell, when did you first see the ice on the driveway?
      “A. When did I first see it? I didn’t see it until I slipped on it.
      “Q. And then when did you see it?
      “A. After I was sitting on my rear end on the ground.
      “Q. Did you look at it and see it there?
      “A. Correct.
      “Q. Why were you able to see it then but not before you fell?
      “A. Because there was a slight precipitation covering that whole driveway. . . .
      “Q. You indicated that after you fell, you noticed . . . approximately a foot and a half of snow had been removed where your left foot slid; is that correct?
      “A. Right.
      “Q. And where that snow had been removed for that foot and a half, approximately, was it at that point that you saw the ice after you were sitting there and saw the cleared area?
      “A. Right, correct.
      “Q. The ice that you saw, I think you indicated that it looked like a glaze along the top of the surface of the driveway; is that correct?
      “A. Correct.
      “Q. And that ice that was on the surface of the driveway, was it under the snow, level with the top of the snow or on top of the snow?
      “A. It was under the snow.
      “Q. Okay. So, it would be true to say then that the snow was on top of the ice that was on the driveway?
      “A. Correct.”