author: BISHOP, J.

text:
    CHRISTINA M. MANGIANTE v. THERESA MANGIANTE NIEMIEC
    (AC 23789)
    Foti, Bishop and West, Js.

      Argued January 9 —
    officially released March 30, 2004

      SandiBeth Girolamo, with whom, on the brief, were James T. Flaherty and Julia B. Morris, for the appellant (defendant).

      Clifford S. Thier, for the appellee (plaintiff).
   Opinion

BISHOP, J.

The principal issues in this appeal are whether (1) the Uniform Transfers to Minors Act (act), General Statutes §§ 45a-557 through 45a-560b, establishes a fiduciary relationship between a custodian and a minor and whether (2) the trial court improperly concluded that the defendant breached her fiduciary duty by using custodial funds to satisfy her child support obligations. We affirm the judgment of the trial court.

The relevant facts are as follows. In 1996, pursuant to the act, the defendant, Theresa Mangiante Niemiec, established a savings account in the amount of $3920 for the benefit of her daughter, the plaintiff, Christina M. Mangiante. The defendant was designated as the custodian of the account. Almost one year later, in January, 1997, the defendant and her husband were divorced. The dissolution decree was silent as to the funds placed in the account. It did, however, provide that the defendant was to pay her former husband, Robert Mangiante, $75 a week for the plaintiffs support in accordance with the child support guidelines.

On February 14, 1997, the defendant converted the funds in the custodial savings account into a custodial checking account. Again, the funds were placed into that account for the benefit of the plaintiff, and the defendant was designated as the custodian under the act. Every two weeks thereafter, the defendant wrote a $150 check to her husband out of that account until the funds were exhausted completely. The defendant described those transactions in her check register as “support for Cristina.” In June, 1998, the defendant closed the account. In her check register, she described her last two transactions as “Last [illegible] per CGS & Divorce Decree” and “per CGS — Graduation, Close Account.”

In May, 2000, the plaintiff commenced this action against the defendant. She alleged that that the defendant breached her fiduciaiy duty when she used the funds in the custodial checking account to satisfy her child support obligation under her dissolution decree. After a trial to the court, judgment was rendered for the plaintiff on the ground that the defendant, as custodian of the plaintiffs bank account, had breached a fiduciary duty to the plaintiff by engaging in self-dealing.

The defendant has appealed, claiming that the court improperly concluded that (1) a fiduciary relationship existed between a custodian and a minor under the act, and (2) the defendant breached her fiduciary duty by engaging in self-dealing. We reject both claims, which we address in turn.

I

The defendant’s first claim is that the court improperly construed General Statutes § 45a-558j of the act as establishing a fiduciary relationship between the custodian and minor. We disagree.

As a threshold matter, we set forth the applicable standard of review. The plaintiff is challenging the conclusion of the court with regard to the interpretation of § 45a-558j. Because issues of statutory interpretation raise questions of law, our review is plenary. Fleet National Bank’s Appeal From Probate, 267 Conn. 229, 237, 837 A.2d 785 (2004).

“According to our long-standing principles of statutory construction, our fundamental objective is to ascertain and give effect to the intent of the legislature. . . . In determining the intent of a statute, we look to the words of the statute itself, to the legislative history and circumstances surrounding its enactment, to the legislative policy it was designed to implement, and to its relationship to existing legislation and common law principles governing the same general subject matter.” (Internal quotation marks omitted.) Johnson v. Mazza, 80 Conn. App. 155, 159, 834 A.2d 725 (2003).

Because the language of the statute is the most important consideration in determining the meaning of the statute, our interpretive task begins with the relevant statutory language. State v. Courchesne, 262 Conn. 537, 563, 816 A.2d 562 (2003) (en banc); see also Public Acts 2003, No. 03-154 (courts should first look to plain meaning of words of statute when interpreting statute’s meaning). Section 45a-558j, entitled “Powers of custodian,” provides in relevant part: “(a) A custodian, acting in a custodial capacity, has all the rights, powers and authority over custodial property that unmarried adult owners have over their own property including, to the extent applicable and consistent with sections 45a-557 to 45a-560b, inclusive, powers pursuant to section 45a-234, but a custodian may exercise those rights, powers and authority in that custodian’s fiduciary capacity only.” (Emphasis added.)

That provision states that the custodian has powers pursuant to General Statutes § 45a-234, which sets forth the powers of a fiduciary. Thus, § 45a-558j grants the custodian, when acting in a custodial capacity, fiduciary powers. Moreover, § 45a-558j (a) specifically provides that the custodian may exercise her powers in her “fiduciary capacity only.” A custodian cannot act in a fiduciary capacity unless the custodian has fiduciary powers. Accordingly, the plain language of the statute provides that the custodian is a fiduciary. To construe it otherwise would render the phrases “powers pursuant to section 45a-234” and “custodian’s fiduciary capacity” meaningless. “[I]t is a basic tenet of statutory construction that the legislature [does] not intend to enact meaningless provisions. . . . [I]n construing statutes, we presume that there is a purpose behind every sentence, clause, or phrase used in an act and that no part of a statute is superfluous.” (Internal quotation marks omitted.) Fleet National Bank’s Appeal From Probate, supra, 267 Conn. 250. Thus, the clear language of § 45a-558j (a) provides that the legislature intended the custodian-minor relationship to be a fiduciary relationship.

In addition to the clear language of the statute, common-law principles governing fiduciary relationships support the court’s interpretation. “It is well settled that a fiduciary . . . relationship is characterized by a unique degree of trust and confidence between the parties, one of whom has superior knowledge, skill or expertise and is under a duty to represent the interests of the other.” (Internal quotation marks omitted.) Hi-Ho Tower, Inc. v. Com-Tronics, Inc., 255 Conn. 20, 38, 761 A.2d 1268 (2000). Moreover, “[t]he law will imply [fiduciary responsibilities] only where one party to a relationship is unable to fully protect its interests [or where one party has a high degree of control over the property ... of another] and the unprotected party has placed its trust and confidence in the other.” (Internal quotation marks omitted.) Id., 41.

In the present case, the overriding goal of the act is to preserve the property of the minor who, due to her age, was unable to protect her interests fully. To further that goal, the legislature granted the custodian control over the property of the minor and placed the custodian under a specific duty to act for the benefit of that minor. Those are the quintessential characteristics of a fiduciary relationship; the custodian is in a dominant position, thereby creating a relationship of dependency, and is under the specific duty to act for the benefit of another. Id., 38 (“[i]n the seminal cases in which this court has recognized the existence of a fiduciary relationship, the fiduciary was either in a dominant position, thereby creating a relationship of dependency, or was under a specific duty to act for the benefit of another”). Thus, common-law principles also support the court’s interpretation that a fiduciary relationship is established between a custodian and minor under the act.

We therefore conclude that given the clear language of § 45a-558j, the legislative purpose underlying the act and the common-law principles governing fiduciary relationships, the most reasonable interpretation of the act is the reading that establishes a fiduciary relationship between the custodian and the minor. Accordingly, the defendant’s first claim must fail.

II

The defendant’s second claim is that even if the custodian of an account governed by the act is in a fiduciary relationship with the minor, the evidence adduced in the case did not support the court’s finding that the defendant breached her fiduciary duties. We are not persuaded.

The defendant’s claim requires us to review a finding of fact. See Spector v. Konover, 57 Conn. App. 121, 126-27, 747 A.2d 39, cert. denied, 254 Conn. 913, 759 A.2d 507 (2000). As such, it is subject to the clearly erroneous standard of review. Id., 126. “A finding of fact is clearly erroneous when there is no evidence in the record to support it ... or when although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed.” (Internal quotation marks omitted.) Id., 126-27.

It is well established that when a complaint against a fiduciary alleges self-dealing, the fiduciary carries the burden of proving fair dealing. “[T]he standard of proof for establishing fair dealing is not the ordinary standard of proof of fair preponderance of the evidence, but requires proof either by clear and convincing evidence, clear and satisfactory evidence or clear, convincing and unequivocal evidence.” (Internal quotation marks omitted.) Id., 127. Thus, “[i]n determining whether the court’s decision was clearly erroneous, we must examine the court’s decision in the context of the heightened standard of proof imposed on a fiduciary.” Id.

We begin our analysis by further clarifying the defendant’s burden of proof at trial. As a fiduciary, the defendant had a duty of loyalty to the plaintiff. See Beverly Hills Concepts, Inc. v. Schatz & Schatz, Ribicoff & Kotkin, 247 Conn. 48, 57, 717 A.2d 724 (1998). The fiduciary duty of loyalty is breached when the fiduciary engages in self-dealing by using the fiduciary relationship to benefit her personal interest. Spector v. Konover, supra, 57 Conn. App. 128. Applying that principle to the present case, we conclude that the defendant breached her fiduciary duty of loyalty if she used custodial funds to satisfy her child support obligation. The defendant’s burden at trial, therefore, was to prove by clear and convincing evidence that she did not use custodial funds to satisfy that obligation.

Our careful review of the record, exhibits and transcripts reveals that the defendant did not satisfy that burden because she adduced minimal evidence to refute the plaintiffs claim of self-dealing. The defendant did testify that although the funds were in fact used for the plaintiffs support, they were not used to satisfy the child support obligation. Nonetheless, the defendant’s check register for the account clearly belies that testimony. As a consequence, we conclude that the court’s finding that the defendant failed to satisfy her heightened burden of proof was not clearly erroneous. For that reason, the defendant’s second claim must fail.

The judgment is affirmed.

In this opinion the other judges concurred.

       The plaintiffs operative complaint, contained counts alleging fraud, theft, embezzlement, conversion and breach of fiduciary duty. At the close of the plaintiffs case, the defendant sought to dismiss all counts for failure to make out a prima facie case. The court dismissed the claims of fraud, theft, embezzlement and conversion but did not dismiss the breach of fiduciary duty claim.

       In its memorandum of decision filed October 29, 2003, the court stated in relevant part: “In the opinion of this court, the defendant violated her fiduciary duty as custodian under the [act] when she spent the money in the custodial account for the support of her daughter, thus engaging in self-dealing by a fiduciary. Despite the protestations of the defendant, a custodian acting in a custodial capacity is a fiduciary. General Statutes § 45a-558j. This section provides for the powers of a custodian and states: ‘[B]ut a custodian may exercise those rights, powers and authority in that custodian’s fiduciary capacity only.’ ” (Emphasis in original.)

       See General Statutes § 45a-558i (a), which provides: “A custodian shall: (1) Take control of custodial property; (2) register or record title to custodial property if appropriate; and (3) collect, hold, manage, invest and reinvest custodial property." (Emphasis added.); see also General Statutes § 45a-558k (a), which provides in relevant part: “A custodian may deliver or pay to the minor or expend for the minor’s benefit so much of the custodial property as the custodian considers advisable for the use and benefit of the minor . . . (Emphasis added.)

       In its memorandum of decision, the court stated in relevant part: “In this case, the plaintiff . . . accuse[d] the defendant of self-dealing and . . . maintains that the defendant has taken the money for herself and defrauded her. The defendant offers practically no contrary evidence to rebut the evidence offered by the plaintiff and failed completely to meet her burden of proof(Emphasis added.)

       The plaintiff adduced the check register at trial, and it was admitted into evidence as a full exhibit.


source: Caselaw Access Project

author: STOUGHTON, J.

license: Public Domain

text:
    STATE OF CONNECTICUT v. JOSEPH IZZO
    (AC 23646)
    Dranginis, McLachlan and Stoughton, Js.

      Argued January 9 —
    officially released March 30, 2004

      David V. DeRosa, special public defender, for the appellant (defendant).

      Proloy K. Das, special deputy assistant state’s attorney, with whom, on the brief, were Walter D. Flanagan, state’s attorney, and Anthony Bochicchio, assistant state’s attorney, for the appellee (state).
   Opinion

STOUGHTON, J.

The defendant, Joseph Izzo, appeals from the judgment of conviction, rendered after a jury trial, of two counts of burglary in the first degree in violation of General Statutes §§ 53a-101 (a) (1) and (2), conspiracy to commit burglary in the first degree in violation of General Statutes §§ 53a-48 and 53a-101 (a) (1), and attempt to commit robbery in the first degree in violation of General Statutes §§ 53a-49 and 53a-134 (a) (2). His sentence was enhanced for having committed a class B felony with a firearm in violation of General Statutes § 53-202k. On appeal, the defendant claims that (1) he was deprived of his right to due process and a fair trial by the introduction of evidence of prior misconduct, (2) the prosecutor engaged in egregious misconduct and, thus, deprived him of a fair trial and (3) the evidence was insufficient to prove entry into the victims’ residence, a required element of the burglary charge. We do not agree with those claims and, accordingly, affirm the judgment of the trial court.

The jmy reasonably could have found the following facts. Sometime in June, 2001, the defendant told Michael Martinez about a plan to lie in wait for Thomas Farrington and his wife, Susan Farrington, outside of their house in New Fairfield. The defendant plotted to push the Farringtons into their house, tie them up and rob them. The defendant showed Martinez the Farring-tons’ house, as well as a shotgun and some wire ties. The defendant informed Martinez that there was $100,000 located in the Farringtons’ safe and that Martinez’ part in the robbery would be to grab Susan Farrington. Martinez declined to participate in the defendant’s plan.

On June 4, 2001, Martinez, after being arrested on an unrelated matter, told the police that he had information about a pending home invasion and robbery. He described the plan and said that it was suggested to him by “Joe,” an individual he described as “an Italian” who was staying at a Best Western motel. The police found the name of the defendant registered at the motel and showed Martinez a photographic array containing three photographs from which Martinez identified the defendant. The police drove Martinez around New Fair-field, and he identified the Farringtons’ home as the target of the defendant’s plan. The state police were notified, and they watched the house for a time until they believed the danger had passed.

The police informed Thomas Farrington of the possible plot against him and his wife. The Farringtons subsequently devised a plan for self-protection. Thomas Farrington, a gun collector, deposited loaded guns in various places in his house. He and his wife arranged that whenever they arrived home, she would remain in their vehicle until he had determined that it was safe for her to enter the house. The plan was for him to enter the house, turn off the alarm and turn on the outside lights as a signal that it was safe to enter.

On June 28, 2001, the Farringtons returned home after having gone out to dinner. They arrived just after 10 p.m. and utilized their security precautions. Thomas Farrington entered the home, turned off the alarm, turned the lights on and told his wife to come in. As Susan Farrington got out of the car, three men rushed at her from their concealed hiding spot near the house. Two of the men ran toward her and threw her to the ground. All of the men wore masks of some kind and were armed. One of the men had a handgun, which he put to her head. Susan Farrington screamed for her husband and watched as a man with a mask and a rifle ran to the house. When Thomas Farrington heard his wife’s screams, he retrieved a loaded handgun from under a cushion on a nearby couch. He then saw the front door of his house open and a masked man enter carrying a rifle. As the intruder looked to his right and saw him, Thomas Farrington attempted to shoot his handgun, but the weapon would not fire because the safety was on. The intruder ran from the Farringtons’ house.

Thomas Farrington followed the masked intruder from the house and saw one of the other men still on top of his wife, who was lying prone on the ground. Thomas Farrington fired his handgun at the man who had run from the house. Thomas Farrington fired gunshots until the weapon’s magazine was empty but did not hit anyone. The two men who had attacked Susan Farrington fled, and Susan Farrington managed to retreat to the safety of the house. Thomas Farrington, after obtaining a second gun from the house, told his wife to telephone the police.

Thomas Farrington then observed one of the men running up a hill and took the cordless telephone from his wife to report what had happened. He ran to the street and saw the man getting into a sport utility vehicle that was located up the hill. He fired six gunshots, hitting the vehicle with some of them. The vehicle sped away and eventually went off the road, down an embankment and crashed into a tree. The three men were able to escape through a wooded area. Neither of the Farringtons could identify any of the three masked men.

The police arrived at approximately 10:30 p.m., set up roadblocks and used dogs to try to track the suspects. They found a green vehicle in a gully near the Farringtons’ house. There were bullet holes in the vehicle, and bullet fragments were found that were determined to have been fired from Thomas Farrington’s gun. In the vehicle, the police found the defendant’s cellular telephone and pager. On the ground next to the vehicle, the police recovered a gas mask, and subsequent testing revealed the presence of the defendant’s DNA in the mask. The police also found two duffle bags on the Farringtons’ property that contained, among other items, a baseball bat, duct tape, electrical ties, a two-way radio, ammunition and latex gloves.

The green vehicle that the masked men had used to flee the scene was registered to the father of Theresa Hinty, the defendant’s girlfriend. Earlier that evening, Hinty had driven the vehicle to a restaurant where she worked and left it parked there. The defendant had called Hinty on his cellular telephone at about 9 p.m. and arranged for her to leave the ignition key under the mat of the vehicle so that he could borrow it that night. At about 11 p.m., she discovered that the vehicle was not in the lot.

At some point in time, the defendant told Martinez that the plan had backfired. He explained to Martinez that the victim had two guns and had shot at him, that he ran and escaped through the wooded area and that he saw state police dogs in the wooded area.

Before we discuss the defendant’s claims, we note that it often is possible, after the verdict, to conclude that certain pieces of evidence might not have been absolutely necessary. We recognize, however, that when a defendant in a criminal trial pleads not guilty, the state is required to meet the burden of proving, beyond a reasonable doubt, that the defendant committed the crimes charged. The parties do not know beforehand how the witnesses will withstand cross-examination, how the jury will assess their credibility or how it will interpret the evidence.

We also reiterate the common-law principle, recognized in our case law and code of evidence, that any evidence that is relevant is admissible unless some other rule makes it inadmissible. See Jenkins v. Kos, 78 Conn. App. 840, 843, 829 A.2d 31 (2003); Conn. Code Evid. § 4-2. A party is entitled to offer any relevant evidence to aid the trier of fact in its determination, as long as the evidence is not unfairly prejudicial. Jenkins v. Kos, supra, 845.

I

The defendant first claims that five instances of irrelevant prior misconduct “found their way in front of the defendant’s jury.” Of those five instances, only one was properly preserved for review.

At the outset, we set forth certain legal principles and the standard of review that guides the resolution of the defendant’s claim. “Connecticut Code of Evidence § 4-1 provides in relevant part that [r]elevant evidence means evidence having any tendency to make the existence of any fact that is material to the determination of the proceeding more probable or less probable than it would be without the evidence. As it is used in the code, relevance represents two distinct concepts: Probative value and materiality. Conn. Code Evid. § 4-1, commentary. Conceptually, relevance addresses whether the evidence makes the existence of a fact material to the determination of the proceeding more probable or less probable than it would be without the evidence. . . . [I]t is not necessary that the evidence, by itself, conclusively establish the fact for which it is offered or render the fact more probable than not. Conn. Code Evid. § 4-1, commentary. In contrast, materiality turns upon what is at issue in the case, which generally will be determined by the pleadings and the applicable substantive law .... Id. If evidence is relevant and material, then it may be admissible. See id., § 4-2.” (Citation omitted; emphasis in original; internal quotation marks omitted.) State v. Gombert, 80 Conn. App. 477, 488-89, 836 A.2d 437 (2003), cert. denied, 267 Conn. 915, 841 A.2d 220 (2004).

“We begin our review of the trial corut’s action by noting that [a]s a general rule, evidence of prior misconduct is inadmissible to prove that a defendant is guilty of the crime of which he is accused. . . . Nor can such evidence be used to suggest that the defendant has a bad character or a propensity for criminal behavior. . . . Evidence of prior misconduct may be admitted, however, when the evidence is offered for a purpose other than to prove the defendant’s bad character or criminal tendencies. . . . Exceptions to the general rule precluding the use of prior misconduct evidence have been recognized in cases in which the evidence is offered to prove, among other things, intent, identity, motive, malice or a common plan or scheme. . . .

“In order to determine whether such evidence is admissible, we use a two part test. First, the evidence must be relevant and material to at least one of the circumstances encompassed by the exceptions. Second, the probative value of [the prior misconduct] evidence must outweigh [its] prejudicial effect .... Because of the difficulties inherent in this balancing process, the trial court’s decision will be reversed only whe[n] abuse of discretion is manifest or whe[n] an injustice appears to have been done. . . . On review by this court, therefore, every reasonable presumption should be given in favor of the trial court’s ruling.” (Internal quotation marks omitted.) State v. Camera, 81 Conn. App. 175, 183, 839 A.2d 613 (2004). With the foregoing principles in mind, we now turn to the defendant’s specific claims.

A

The defendant first argues that the court improperly admitted into evidence the fact that he was prohibited from entering the restaurant where Hinty worked. On the night of June 28, 2001, when the defendant telephoned Hinty at the restaurant to arrange to borrow her vehicle, it was agreed that she would leave the ignition key under the floor mat of the vehicle. The reason she left the key under the mat was because the defendant was prohibited from entering the restaurant.

The defendant filed a motion in limine to preclude testimony concerning the reason that the key was left under the mat. The court deferred a decision on the defendant’s motion until the question came up during the trial. The court subsequently granted the motion in part and ordered that there be no mention of why the defendant was not permitted into the restaurant.

During the trial, Hinty testified that the defendant had telephoned her, stating that he would be at the restaurant in fifteen minutes to get the vehicle. She testified that she did not give the defendant the keys and that she put them under the mat in the vehicle. When asked why she had done that, the defendant objected, arguing that there was no need for the jury to know the reason. The prosecutor responded that the witness had been instructed to state only that the defendant was not allowed into the restaurant and not to give the reason why the defendant was not permitted there. The prosecutor asserted that because Hinty did not see the defendant take the car, the time frame was important and that because there were innocent reasons for not allowing the defendant to enter the restaurant, the evidence was not prejudicial. The defendant objected, arguing that evidence that he was not allowed to enter the restaurant had nothing to do with the time frame. The court overruled the objection on the ground that the evidence was relevant and, thereafter, Hinty testified that she put the keys under the mat because the defendant was not allowed in the restaurant.

We agree with the court that the evidence was relevant. Although the evidence did not establish a precise time frame, it did explain why Hinty left the keys to her unlocked vehicle under the floor mat in a parking lot outside the restaurant. That information was helpful to demonstrate to the jury the events of the night in question and to fill in some of the background details. It was necessary for the prosecution to establish that the defendant had the vehicle that night, and Hinty’s testimony was part of the chain of evidence that was relevant to proving that fact. Hinty could testify that the defendant had arranged to borrow the vehicle, but could not state that she had seen him take it. It would be natural for the jury to wonder why Hinty had not simply given the keys to the defendant and why she had left them in the vehicle. The evidence was relevant as part of the circumstances under which the defendant obtained the use of the vehicle. Despite the defendant’s claim, that was not evidence of prior misconduct because nothing was said of the reason for not allowing the defendant to enter the restaurant. It is difficult to see how the statement that he was not allowed in the restaurant could have caused harmful prejudice to the defendant. Any prejudice there might have been was outweighed by the probative value of the evidence. In any event, any prejudice would have been harmless in light of the other evidence admitted to prove the defendant’s guilt. In short, we cannot say that the court abused its discretion in allowing the challenged testimony into evidence.

B

The defendant did not preserve any of his remaining claims of error and has requested plain error review. See Practice Book § 60-5. He asserts that either viewed individually or taken together, those evidentiary rulings were harmful to him. We must, therefore, determine if such review is warranted.

“As we often have stated, [p]lain error review is reserved for truly extraordinary situations where the existence of the error is so obvious that it affects the fairness and integrity of and public confidence in the judicial proceedings. . . . Plain error is a doctrine that should be invoked sparingly. ... A party cannot prevail under plain error unless it has demonstrated that the failure to grant relief will result in manifest injustice. . . . Furthermore, even if the error is so apparent and review is afforded, the defendant cannot prevail on the basis of an error that lacks constitutional dimension unless he demonstrates that it likely affected the result of the trial.” (Internal quotation marks omitted.) Menon v. Dux, 81 Conn. App. 167, 172, 838 A.2d 1038 (2004).

1

The defendant first argues that he was prejudiced by the admission of a statement elicited from a witness regarding his police mug shot. During the trial, Craig Martin, one of the police detectives who had interviewed Martinez, testified that as he investigated the information about the planned robbery, the police came to suspect the defendant. Martin was asked if he had shown Martinez any photographs and responded that he had shown Martinez “three mug shots of white males with [the defendant] being one of them.” The prosecution had not asked about “mug shots,” and there was no objection when Martin used the words. The photograph was not introduced into evidence. The words were unsolicited and uttered spontaneously by the witness. The defendant’s claim simply does not meet the high threshold necessary for plain error review.

2

The defendant next argues that he was prejudiced by the admission of evidence, of his prior use or sale of cocaine. The state called Daniel Trompetta, one of the investigating detectives. During cross-examination, Trompetta was asked how he had developed the defendant as a suspect. He responded: “Mr. Martinez described him and stated his name was Joey, he was an Italian, he told me he was from Brooklyn and Martinez was from Brooklyn, so they kind of hit it off. Martinez said they used to exchange some cocaine together.” Defense counsel immediately objected, and the objection was sustained by the court.

The defendant claims that the court, sua sponte, should have ordered the testimony stricken. Although the defendant’s objection was sustained, the defendant failed to seek to have the unsolicited remark stricken. The defendant has not provided this court with any authority for the proposition that the trial court was under an obligation to strike the testimony in the absence of a motion to strike. See generally State v. Koslik, 80 Conn. App. 746, 765-66, 837 A.2d 813 (2004). Furthermore, the jury was instructed that certain matters were not evidence and, therefore, were not to be considered, including testimony that had been excluded or stricken. In short, the defendant’s claim fails to meet the Stringent requirements of plain error review.

3

The defendant next argues that he was prejudiced by the improper testimony of Thomas Farrington. During cross-examination, defense counsel established that Thomas Farrington had known the defendant because they once had lived on the same street. The following colloquy then occurred:

“[Defense Counsel]: And you grew up on the same street as [the defendant], is that correct?
“[The Witness]: Yeah. I know [the defendant], you know, more so from reading the police blotter and everything else—
“The Court: All right. Now, stop right now. You have to do this very carefully, you answer the questions.”

The court then proceeded to strike Thomas Farring-ton’s commentary. The remark was unsolicited by the prosecutor, and the court immediately stopped the testimony and admonished the witness. The court ordered the jury to disregard the extraneous response. The defendant did not ask the court to take any additional action, such as to declare a mistrial. The defendant’s claim, therefore, does not warrant plain error review.

4

The defendant next argues that the state improperly offered evidence that he was an adulterer. Hinty testified that she was romantically involved with the defendant at the time of the crimes and that he, on occasion, had stayed "with her at various hotels during the past six months of their relationship. Later testimony revealed that the defendant was married at the time. The defendant claims that he was prejudiced unfairly by the testimony about his affair with Hinty. There was no objection to the testimony, and we are not persuaded that plain error review is warranted for that unpre-served claim of evidentiary error.

5

The defendant’s final claim is that, taken together, those four unpreserved instances of alleged prior misconduct evidence, combined with the testimony that he was not allowed to enter the restaurant, were so harmful that a failure to reverse the judgment would result in manifest injustice. He asserts that the trial judge should have given, sua sponte, a limiting instruction as to the use of evidence of uncharged misconduct and that it was plain error not to do so. No such charge was requested, and the court was not obligated to do so sua sponte.

“The defendant cites no authority for the proposition that the court, sua sponte, must give a limiting instruction under the circumstances of this case. It is well established in Connecticut, however, that the trial court generally is not obligated, sua sponte, to give a limiting instruction.” (Emphasis added.) State v. Cator, 256 Conn. 785, 801, 781 A.2d 285 (2001); see also State v. Niemeyer, 55 Conn. App. 447, 458, 740 A.2d 416 (1999), rev’d in part on other grounds, 258 Conn. 510, 782 A.2d 658 (2001). The defendant has not persuaded us that any of those claims, singly or taken together, establish his claim of plain error.

II

The defendant next claims that the prosecutor engaged in a pattern of egregious misconduct throughout the trial. Only two of the instances of claimed prose-cutorial misconduct were preserved, and the defendant requests review pursuant to State v. Golding, 213 Conn. 233, 239-40, 567 A.2d 823 (1989), for the remaining claims.

“Prior to analyzing the defendant’s specific claims of prosecutorial misconduct, we set forth the well established principles that guide our inquiry as to all of his claims. To prove prosecutorial misconduct, the defendant must demonstrate substantial prejudice. ... In order to demonstrate this, the defendant must establish that the trial as a whole was fundamentally unfair and that the misconduct so infected the trial with unfairness as to make the conviction a denial of due process. . . .

“[I]t is not the prosecutor’s conduct alone that guides our inquiry, but, rather, the fairness of the trial as a whole. . . . Moreover, in analyzing claims of prosecu-torial misconduct, we engage in a two step analytical process. The two steps are separate and distinct: (1) whether misconduct occurred in the first instance; and (2) whether that misconduct deprived a defendant of his due process right to a fair trial. Put differently, misconduct is misconduct, regardless of its ultimate effect on the fairness of the trial; whether that misconduct caused or contributed to a due process violation is a separate and distinct question that may only be resolved in the context of the entire trial, an inquiry that in the present case necessarily will require evaluation of the defendant’s other misconduct claims.” (Citations omitted; internal quotation marks omitted.) State v. Coney, 266 Conn. 787, 806-808, 835 A.2d 977 (2003).

“In determining whether prosecutorial misconduct was so serious as to amount to a denial of due process, this court, in conformity with courts in other jurisdictions, has focused on several factors. . . . Included among those factors are the extent to which the misconduct was invited by defense conduct or argument . . . the severity of the misconduct . . . the frequency of the misconduct . . . the centrality of the misconduct to the critical issues in the case . . . the strength of the curative measures adopted . . . and the strength of the state’s case. . . .

“Just as the prosecutor’s remarks must be gauged in the context of the entire trial, once a series of serious improprieties has been identified we must determine whether the totality of the improprieties leads to the conclusion that the defendant was deprived of a fair trial. . . . Thus, the question ... is whether the sum total of [the prosecutor’s] improprieties rendered the defendant’s [trial] fundamentally unfair, in violation of his right to due process. . . . The question of whether the defendant has been prejudiced by prosecutorial misconduct, therefore, depends on whether there is a reasonable likelihood that the jury’s verdict would have been different absent the sum total of the improprieties.” (Citations omitted; internal quotation marks omitted.) State v. Thompson, 266 Conn. 440, 460, 832 A.2d 626 (2003). With the foregoing in mind, we now turn to the specific claims of error.

A

We first address the preserved claims of error. Specifically, the defendant claims that the prosecutor improperly shifted the burden of proof during the questioning of two of the witnesses and during closing argument to the jury.

The following additional facts are necessary for the resolution of that issue. The state called Mark Maisano, one of the investigating detectives, to testify. On cross-examination by the defendant, Maisano explained that he had taken photographs of the defendant on June 29, 2001, because he saw fresh scratch marks on him that appeared to be consistent with someone running through a wooded area. On redirect examination, the prosecutor asked if the defendant had explained how he got the scratches, and Maisano stated that the defendant had said that they were from work. The prosecutor asked Maisano if the defendant had provided him with the names of anyone who could verify that. Counsel for the defendant objected, and the court sustained the objection.

The state also called Christine Roy, a criminalist employed by the department of public safety in its forensic science laboratory. Roy testified that she had examined certain physical evidence for physiological fluids and performed DNA testing. She stated that the police had submitted items for testing and that defense attorneys are permitted to submit items for testing. Roy described the testing she performed and the results she obtained. She was then asked how many requests for testing she had received from the defense and replied that she had received none. The defense earlier had established that a number of the seized items that had been sent to the laboratory had not been tested because the laboratory deemed that it was not essential to examine them and that some of the seized items were not sent to the laboratory at all. During closing argument, the prosecutor commented that defense counsel had addressed a number of items that had not been tested, but the jury “never heard what the defense requested.” The court overruled an objection that the prosecutor was shifting the burden of proof. The prosecutor continued, commenting on the defendant’s failure to request scientific testing on any of the evidence and another objection followed. The court instructed the prosecutor to “move along” and “stay out of this area.”

The defendant argues that the combination of the questions during the evidentiary phase of the trial and the comments made during closing argument constituted prosecutorial misconduct and, thus, deprived him of a fair trial. We are not persuaded.

The court sustained the defendant’s objection to the question posed to Maisano with respect to whether the defendant had provided the names of any individuals who could verify that he received the facial wounds at work. Even if we were to determine that that isolated question was improper, it did not deprive the defendant of a fair trial. Furthermore, the court sustained the defendant’s objection, and the jury, in the absence of any proof to the contrary, is presumed to have followed the court’s instructions to ignore testimony that was not admitted properly. See State v. Vargas, 80 Conn. App. 454, 468, 835 A.2d 503 (2003), cert. denied, 267 Conn. 913, 840 A.2d 1175 (2004).

Similarly, the defendant’s claim as to his failure to have scientific testing performed on the evidence is unavailing. Even if it was somewhat questionable, the argument was based on the evidence and was invited by defense counsel’s cross-examination, showing that a number of seized items had not been examined and hence suggesting that examination might have revealed some kind of evidence. Furthermore, the court properly instructed the jury on the burden of proof, the presumption of innocence and that the defendant did not have to prove his innocence. The defendant has not identified anything in the record to show that the jury disregarded those instructions. See State v. Jefferson, 67 Conn. App. 249, 269-70, 786 A.2d 1189 (2001), cert. denied, 259 Conn. 918, 791 A.2d 566 (2002).

B

We now review the defendant’s unpreserved claims of prosecutorial misconduct. The defendant seeks review pursuant to State v. Golding, supra, 213 Conn. 239-40, of three matters that occurred during the prosecutor’s argument to the jury. We note that “[w]e have long held, however, that Golding review of such a claim will not result in reversal where the claimed misconduct was not blatantly egregious and merely consisted of isolated and brief episodes that did not reveal a pattern of conduct repeated throughout the trial . . . because in such a case the claimed misconduct is insufficient to infect the fundamental fairness of the trial itself. . . . Again, it is important to note that the defendant made no objections and failed to ask for any curative instruction with regard to [these] prosecutorial misconduct claims. The defendant, therefore, presumably did not regard those remarks ... as seriously prejudicial at trial.” (Citation omitted; internal quotation marks omitted.) State v. Williams, 81 Conn. App. 1, 6-7, 838 A.2d 214 (2004). We conclude that each of the claims fails under the third prong of Golding, which requires an alleged constitutional violation that clearly exists and clearly deprived the defendant of a fair trial.

1

In discussing Martinez’ testimony, the prosecutor invited the jury to consider whether he was credible and asked whether he looked frightened or afraid. The prosecutor asked whether the members of the jury might be concerned for their safety if they testified against somebody accused of the kinds of crimes at issue. That was a reasonable and proper comment on the witness’ demeanor. See State v. Cobb, 27 Conn. App. 601, 609, 605 A.2d 1385 (1992). Indeed, defense counsel also commented on Martinez’ nervous demeanor. Thus, the defendant’s claim fails to meet the third Golding prong.

2

The defendant next argues that the prosecutor improperly bolstered and vouched for the credibility of a witness. The state called Susan Farrington as a witness. During her testimony, she explained that she had worked for a United States Navy supplier, and that she had to have a government confidential clearance and background check by the Federal Bureau of Investigation. There was no objection to that testimony. In discussing the credibility of witnesses during closing argument, the prosecutor mentioned that Susan Farrin-gton had a government job and had passed the background check, and that the jury could consider that in evaluating her testimony.

The prosecutor did not bolster or vouch for Susan Farrington’s credibility. Instead, the prosecutor merely commented on her response to a proper background question and reminded the jury of Susan Farrington’s answer. Additionally, we note that the court gave the jury a proper charge on credibility. Accordingly, the defendant’s claim fails to satisfy Golding's third prong.

3

Finally, the defendant claims that the prosecutor improperly commented on the fact that the defendant did not testify. “It is well settled that comment by the prosecuting attorney ... on the defendant’s failure to testify is prohibited by the fifth amendment to the United States constitution. Griffin v. California, 380 U.S. 609, 615, 85 S. Ct. 1229, 14 L. Ed. 2d 106, reh. denied, 381 U.S. 957, 85 S. Ct. 1797, 14 L. Ed. 2d 730 (1965).” (Internal quotation marks omitted.) State v. Rizzo, 266 Conn. 171, 269, 833 A.2d 363 (2003).

During closing argument, the prosecutor made the following statements: “What were they driving? The defendant’s girlfriend’s [vehicle]. The [vehicle] by his own testimony — by his own words to the police, he picked up at 8:55 p.m. a little over an hour before this burglary. His own testimony he used [it] for forty-five minutes. . . .”

The defendant did not object. He now claims that the use of the word “testimony” was a comment on his failure to testify. We disagree and note that the prosecutor, after using the phrase “by his own testimony,” immediately corrected himself and said “by [the defendant’s] own words to the police . . . .” Additionally, the court, during its charge, instructed the jury that it was not to draw an unfavorable inference from the fact that the defendant did not testify. The claim lacks merit and deserves no further comment.

Ill

The defendant’s final claim is that the evidence was insufficient to prove that any of the three men ever entered the house. “The standard of review employed in a sufficiency of the evidence claim is well settled. [W]e apply a two:part test. First, we construe the evidence in the light most favorable to sustaining the verdict. Second, we determine whether upon the facts so construed and the inferences reasonably drawn therefrom the [finder of fact] reasonably could have concluded that the cumulative force of the evidence established guilt beyond a reasonable doubt.” (Internal quotation marks omitted.) State v. Santos, 81 Conn. App. 147, 149-50, 838 A.2d 1020 (2004).

“Our Penal Code provides: A person is guilty of burglary in the first degree when he enters or remains unlawfully in a building with intent to commit a crime therein and (1) . . . is armed with ... a deadly weapon or dangerous instrument .... General Statutes § 53a-101 (a).” (Internal quotation marks omitted.) State v. Stagnitta, 74 Conn. App. 607, 611-12, 813 A.2d 1033, cert. denied, 263 Conn. 902, 819 A.2d 838 (2003).

The argument made by the defendant simply ignores the plethora of evidence from which the jury reasonably might have concluded that the Farringtons’ attacker had entered their house. For example, Thomas Farring-ton, in describing the incident, testified that the front door had opened and that the person looked ahead and then looked to the right. The jury might reasonably have inferred that the person must have been inside the house. During cross-examination, Thomas Farrington testified that when the door opened, he went to the couch, laid down and pointed the gun at the head of the man who had come into the house. Defense counsel asked what hand the intruder had the gun in, and Thomas Farrington testified that it was the right hand. Susan Farrington testified that when she was pushed to the ground, she saw a “gentleman” running from her and “proceeding to go into my house.” Later, she testified: “I saw this gentleman run into my house, running out of my house, and I ran in.” Finally, we note that Martinez testified that the defendant had told him that he had been shot at by Thomas Farrington.

The sum of the evidence indicates that a reasonable jury could have concluded that one of the three intruders, at some point during the violent episode, broke the plane of the door and entered into the Farringtons’ house. Accordingly, we conclude that the defendant’s claim is without merit.

The judgment is affirmed.

In this opinion the other judges concurred.

       We note that it was due only to an extremely fortuitous set of circumstances that no one, particularly an innocent bystander to the crime, was injured during the shooting spree.

       The defendant claims that the admission of that evidence deprived him of his constitutional rights to due process and to a fair trial. We are not persuaded. “[R]obing garden variety claims [of an evidentiary nature] in the majestic garb of constitutional claims does not make such claims constitutional in nature. . . . Putting a constitutional tag on a nonconstitutional claim will no more change its essential character than calling a bull a cow will change its gender.” (Citation omitted; internal quotation marks omitted.) State v. Wargo, 53 Conn. App. 747, 753, 731 A.2d 768 (1999), aff'd, 255 Conn. 113, 763 A.2d 1 (2000).

       The court instructed Thomas Farrington to answer only the question asked and to avoid providing any additional commentary.

       “In Golding, our Supreme Court held that a defendant can prevail on a claim of constitutional error not preserved at trial only if all of the following conditions are met: (1) the record is adequate to review the alleged claim of error; (2) the claim is of constitutional magnitude alleging the violation of a fundamental right; (3) the alleged constitutional violation clearly exists and clearly deprived the defendant of a fair trial; and (4) if subject to harmless error analysis, the state has failed to demonstrate harmlessness of the alleged constitutional violation beyond a reasonable doubt. In the absence of any one of these conditions, the defendant’s claim will fail. The appellate tribunal is free, therefore, to respond to the defendant’s claim by focusing on whichever condition is most relevant in the particular circumstances. . . . The first two questions relate to whether a defendant’s claim is renewable, and the last two relate to the substance of the actual review.” (Emphasis in original; internal quotation marks omitted.) State v. Garcia, 81 Conn. App. 294, 298, 838 A.2d 1064 (2004).

       Specifically, the court instructed the jury: “The defendant’s failure to testify. The accused . . . has not testified in this case. An accused person is under no obligation to testify [on] his own behalf. He has a constitutional right not to testify. You may not draw any unfavorable inferences.”


author: SCHALLER, J.

text:
    STEPHANIE TOISE v. AUDREY ROWE, COMMISSIONER OF SOCIAL SERVICES, ET AL.
    (AC 23484)
    Schaller, West and DiPentima, Js.

      Argued January 12 —
    officially released April 6, 2004

      GwendolynK. McDonald, for the appellant (plaintiff).

      Maureen D. Regula, assistant attorney general, with whom, on the brief, were Richard Blumenthal, attorney general, and Eliot D. Prescott, assistant attorney general, for the appellees (defendants).
   Opinion

SCHALLER, J.

The plaintiff, Stephanie Toise, appeals from the judgment of the trial court dismissing her administrative appeal from the decision of the bureau of rehabilitation services (bureau) of the department of social services, of which the defendant Audrey Rowe was the commissioner at the time this matter first arose. On appeal, the plaintiff claims that the court improperly determined that she was not entitled to tuition support from the bureau. We disagree and affirm the judgment of the trial court.

The following facts and procedural history are relevant to the plaintiffs appeal. The plaintiff has a learning disability. She was found eligible for assistance from the bureau in December, 1990. In May, 1991, the plaintiff and the bureau created an individualized written rehabilitation program (program). The program stated that the plaintiffs “vocational goal” was to become a “public health worker” with the following intermediate goals: (1) “[t]o obtain [a] Master’s [degree] in Public Health through Yale University,” funded through student loans, and (2) “[t]o determine [the] appropriateness of [a] computer purchase” with funding from the bureau. The one page program contained the qualification that “[d]ue to a spending freeze, any services listed in this planned program tha[t] could result in a cost to the Agency are tentative and will require review when funding becomes available. This will be done jointly to determine that the vocational goal and the services indicated are still appropriate and necessary.” Funding by the bureau can be provided only in accordance with a jointly developed and agreed on program. Regs., Conn. State Agencies § 10-102-15 (b). The plaintiff signed the program in June, 1991.

During the summer of 1991, the plaintiff requested tuition assistance for a summer course and was informed of the continuing spending freeze, which would make financial assistance “a virtual impossibility.” In November, 1991, the plaintiff graduated from Yale University with her master’s degree. The plaintiff requested additional services and financial support from the bureau. A bureau counselor denied the request. At the plaintiffs insistence, an administrative review of that decision was conducted. On July 10, 1992, the administrative reviewer denied the plaintiffs request for funding and services. The plaintiff requested a hearing to appeal from the bureau’s decision.

“The bureau held a hearing and a hearing officer issued a decision on October 4,1993. The hearing officer reversed the bureau’s decision as to tuition assistance and ordered the bureau to pay for one semester of a comparable program at the University of Connecticut. The bureau’s director reviewed the hearing officer’s decision. On February 4,1994, the director reversed the hearing officer’s decision. The plaintiff sought review by the Superior Court. On August 2, 1995, the trial court, Norko, J., rendered judgment dismissing the appeal on the ground that it lacked subject matter jurisdiction to entertain the appeal.” Toise v. Rowe, 44 Conn. App. 143, 145, 687 A.2d 557 (1997), rev’d, 243 Conn. 623, 707 A.2d 25 (1998). The plaintiff appealed from that decision to this court on the limited question of subject matter jurisdiction. We affirmed the judgment of the court. Id., 152. Our Supreme Court granted certification to appeal, reversed our decision and remanded the case to the trial court for further proceedings. Toise v. Rowe, 243 Conn. 623, 632, 707 A.2d 25 (1998). The plaintiff now appeals from the decision of the trial court dismissing her administrative appeal on the merits.

The plaintiff claims that the court improperly determined that she was not entitled to tuition support from the bureau. Specifically, the plaintiff argues that the court improperly concluded that (1) the plaintiff was not entitled to financial assistance because it was not provided for in the program, (2) the bureau could not retroactively provide assistance, (3) the bureau did not fail to inform her of her rights, and (4) the bureau’s decision that was upheld by the court did not violate the purpose and intent of the Rehabilitation Act of 1973 (act), 29 U.S.C. § 701 et seq.

“We review the issues raised by the plaintiff in accordance with the limited scope of judicial review afforded by the [Uniform Administrative Procedure Act (UAPA), General Statutes § 4-166 et seq.] . . . Judicial review of an administrative agency decision requires a court to determine whether there is substantial evidence in the administrative record to support the agency’s findings of basic fact and whether the conclusions drawn from those facts are reasonable. . . . [Constrained by a narrow scope of review] [n] either this court nor the trial court may retry the case or substitute its own judgment for that of the administrative agency on the weight of the evidence or questions of fact. . . . Our ultimate duty is to determine, in view of all of the evidence, whether the agency, in issuing its order, acted unreasonably, arbitrarily, illegally or in abuse of its discretion. . . .

“The substantial evidence rule governs judicial review of administrative fact-finding under the UAPA. ... An administrative finding is supported by substantial evidence if the record affords a substantial basis of fact from which the fact in issue can be reasonably inferred. . . . The substantial evidence rule imposes an important limitation on the power of the courts to overturn a decision of an administrative agency . . . and . . . provide [s] a more restrictive standard of review than standards embodying review of weight of the evidence or clearly erroneous action.” (Citation omitted; internal quotation marks omitted.) United Technologies Corp. v. Commission on Human Rights & Opportunities, 72 Conn. App. 212, 222, 804 A.2d 1033, cert. denied, 262 Conn. 920, 812 A.2d 863 (2002).

I

The plaintiff first argues that the court improperly concluded that the plaintiff was not entitled to financial assistance because it was not provided for in the program. We disagree.

The plaintiffs program stated that her Yale University tuition would continue to be funded through student loans. There is no provision in the program for the bureau to provide financial assistance for her tuition. State and federal regulations are clear that financial assistance will “be made only in accordance with an appropriately completed Individualized Written Rehabilitation Program.” (Emphasis added.) Regs., Conn. State Agencies § 10-102-15 (b); see also 29 U.S.C. § 722 (b). The plaintiff explicitly acknowledged that she “participated in the development of this program” and understood and accepted it.

The court’s memorandum of decision correctly stated that “[b]ecause these authorities are clear that the agency can only provide funding for services, and particularly higher education, in accordance with [a program] that the bureau and the plaintiff jointly develop and agree upon, and because [the program] in this case reveals that there was no agreement that the bureau would provide funds for the plaintiffs Yale University tuition, the plaintiff lacked an essential ingredient to obtaining tuition assistance from the bureau.” Accordingly, the court correctly found that the plaintiff was not entitled to financial assistance because it was not provided for in the program.

II

The plaintiff also argues that the court improperly concluded that the bureau could not provide financial assistance retroactively. The plaintiffs reliance on McGuire v. Switzer, supra, 734 F. Sup. 99, is misguided. She argues that McGuire permits her to seek retroactive relief. The court’s memorandum of decision correctly concluded, however, that McGuire “holds only that a request under the Rehabilitation Act for reimbursement of graduate school tuition is not barred by the eleventh amendment [to the United States constitution] or the mootness doctrine.” Those issues are not present in this case. Furthermore, the decision in McGuire does not conflict with the applicable federal regulation, which provides in relevant part that “[t]he State plan must assure that written authorization is made, either before or at the same time as the purchase of services. . . .” 34 C.F.R. § 361.44 (1994). Therefore, the bureau correctly determined that it could not reimburse the plaintiff for the tuition payments that she already had made.

Ill

The plaintiff next argues that the court improperly concluded that the bureau did not fail to inform her of her right to tuition assistance. She argues that she was not advised of her right to seek financial assistance for her Yale University tuition and, therefore, she did not request it. She further contends that the bureau’s failure to fulfill its duty to inform her of her right to tuition assistance inhibited her from fully participating in the development of her program as contemplated by the act. The plaintiff requests “compensatory payment for services as should have been offered to remedy the violation of regulations and the counselor’s manual as occurred here.”

Compensatory payments do not apply here because such payments would be a proper remedy only if the bureau’s error resulted in services not being offered that should have been offered. As discussed in parts I and II of this opinion, the bureau properly did not provide tuition assistance because of the applicable federal regulations that prohibit retroactive payments. The trial court determined that “even if the bureau had advised the plaintiff of the availability of state tuition assistance, the bureau would not have had authority to include such assistance in the [program] signed in June, 1991. In this case, the plaintiff sought written authorization . . . after she had completed most of her studies at Yale, rather than before or contemporaneously with her matriculation.” The trial court correctly concluded that the bureau’s failure to inform her of her right to tuition assistance was irrelevant when the request was for retroactive payment.

IV

The plaintiff finally argues that the court improperly concluded that the bureau’s decision did not violate the purpose and intent of the act. We disagree.

The plaintiff properly asserts that the purpose of the act is “to ensure that the Federal Government plays a, leadership role in promoting the employment of individuals with disabilities, especially individuals with significant disabilities, and in assisting States and providers of services in fulfilling the aspirations of such individuals with disabilities for meaningful and gainful employment and independent Uving.” 29 U.S.C. § 701 (b) (2). “Individuals with disabilities must be provided the opportunities to obtain gainful employment in integrated settings.” 29 U.S.C. § 720 (a) (3) (B).

“The Act is sprinkled with references to providing ‘opportunities’ for ‘meaningful’ and ‘gainful’ employment to individuals with disabilities. It nowhere guarantees actual optimal employment. Notably, a primary purpose of the Act is to ‘[assist] States and providers of services in fulfilling the aspirations of . . . individuals with disabilities for meaningful and gainful employment’ (29 U.S.C. § 701 [b] [2] . . .). Further, ‘the goals of the Nation properly include the goal of providing individuals with disabilities with the tools necessary to . . . achieve equality of opportunity . . . employment . . . and economic and social self-sufficiency’ (29 U.S.C. § 701 [a] [6] [B] ...).... Appellant’s arguments do not . . . support her desired outcome, that her particular rehabilitation program must provide, guarantee or continue until optimal employment is actually secured.” (Citations omitted; emphasis in original.) Murphy v. Office of Vocational & Educational Services for Individuals with Disabilities, 92 N.Y.2d 477, 484, 705 N.E.2d 1180, 683 N.Y.S.2d 139 (1998). The plaintiff was not guaranteed optimum employment, and the bureau was unable to provide tuition support due to the applicable federal regulations that prohibit retroactive payments. Accordingly, the court correctly determined that the plaintiff was not entitled to tuition support from the bureau.

The judgment is affirmed.

In this opinion the other judges concurred.

       Also named as a defendant was John F. Halliday, the director of the bureau.

       The plaintiff also claims that the hearing officer improperly limited the tuition support to the cost of a comparable program at a Connecticut state supported college or university and to one semester. Because we determine that the plaintiff was not entitled to tuition support from the bureau, we do not reach those issues.

       “The bureau of rehabilitation services is a unit of the state department of social services. The department administers and provides a variety of welfare, employment, housing and human service programs. It is the designated state agency for administration of the state plan for vocational rehabilitation services [as authorized under the Rehabilitation Act of 1973,29 U.S.C. § 701-803]. See General Statutes § 17b-2; 29 U.S.C. § 721 (a) (1); 34 C.F.R. § 361.5. The bureau operates a statewide vocational rehabilitation program in accordance with General Statutes § 17b-650 et seq. It is the designated state unit for rehabilitation services under both state and federal authority. See General Statutes § 17b-651; 29 U.S.C. § 721 (a) (2); 34 C.F.R. § 361.6.” Toise v. Rowe, 44 Conn. App. 143, 144 n.1, 687 A.2d 557 (1997), rev’d on other grounds, 243 Conn. 623, 707 A.2d 25 (1998).


author: DRANGINIS, J.

text:
    STATE OF CONNECTICUT v. MARTY CALDERON
    (AC 23499)
    Schaller, Dranginis and DiPentima, Js.

      Argued December 9, 2003 —
    officially released April 6, 2004

      Marty Calderon, pro se, the appellant (defendant).

      Leon F. Dalbec, Jr., senior assistant state’s attorney, with whom, on the brief, were Michael Dearington, state’s attorney, and JohnP. Doyle, Jr., assistant state’s attorney, for the appellee (state).
   Opinion

DRANGINIS, J.

The pro se defendant, Marty Calderon, appeals from the judgment of conviction, rendered after a jury trial, of violation of a protective order under General Statutes § 53a-223. On appeal, the defendant claims that the trial court improperly (1) violated her constitutional rights to the effective assistance of counsel, (2) admitted hearsay into evidence, (3) denied her motion to order her daughter to undergo a competency evaluation prior to testifying, (4) violated her constitutional rights to confront and to cross-examine the witnesses against her, thereby denying her constitutional right to present an adequate defense, and (5) deprived her of her rights to subpoena witnesses and to enter evidence in her defense. In her final claim, she contends that the state failed to give her adequate notice of the acts that constituted a violation of the protective order. We affirm the judgment of the trial court.

The jury reasonably could have found the following facts. On April 3, 2001, the court, Alexander, J., issued a family violence protective order requiring the defendant to have “no contact” with her daughter. On May 31, 2001, the daughter received by mail a document concerning the defendant’s appeal from a Probate Court order. The written protective order, in contrast to the court’s verbal order, did not explicitly forbid the defendant from mailing something to her daughter. The defendant had mailed the probate document in an envelope addressed to her daughter. The envelope bore the defendant’s name and return address. The defendant’s daughter contacted the police. Officer Brendon Hosey of the New Haven police department investigated the daughter’s complaint and retrieved the envelope and its contents. After confirming that a protective order had been issued against the defendant, Hosey obtained a warrant for her arrest. The defendant subsequently was arrested. After the verdict of guilty, the court sentenced the defendant to one year imprisonment, execution suspended, with two years of probation. This appeal followed.

I

The defendant’s first claim is that her right to the effective assistance of counsel was violated when the court denied her motion for a continuance to obtain new counsel on the morning of trial. We disagree.

The following additional facts are relevant to our resolution of that issue. The defendant retained counsel, William C. Rivera, in September, 2001. Before the start of jury selection on September 5, 2002, the defendant requested a continuance so that she could obtain new counsel. The defendant told the court that “communications [with her attorney] have broken down.” She represented to the court that she had had limited contact with Rivera and that he was unavailable to review her case with her prior to the start of trial. In response, the court stated: “[Y]ou are absolutely entitled to go out and hire a new attorney; that’s your right and your privilege. . . . [B]ut this trial is not going to be continued or suspended or delayed. In order for you to do that, you can’t wait until the eve of trial, the morning of trial, the minute of trial, and come into court and ask for time to get a new lawyer.”

The court denied the defendant’s request for a continuance. The defendant subsequently requested to represent herself and dismissed her attorney. After thoroughly canvassing the defendant on her ability and competence to represent herself adequately, the court concluded that she had “knowingly, voluntarily and understanding!/’ waived her right to counsel. The court, however, told Rivera to serve as standby counsel during the trial.

“Our review of a trial court’s decision to grant or deny a continuance is limited to whether the court abused its discretion. ... An abuse of discretion must be proven by the appellant by showing that the denial of the continuance was unreasonable or arbitrary. . . . We must afford the trial court every reasonable presumption in favor of the proper exercise of its discretion.” (Citations omitted.) State v. Bradley, 39 Conn. App. 82, 87, 663 A.2d 1100 (1995), cert. denied, 236 Conn. 901, 670 A.2d 322 (1996). “We are especially hesitant to find an abuse of discretion where the court has denied a motion for continuance made on the day of the trial.” (Internal quotation marks omitted.) Catalano v. Falco, 74 Conn. App. 86, 91, 812 A.2d 63 (2002).

On the basis of our review of the record, the court did not abuse its discretion in denying the defendant’s motion for a continuance to seek new counsel. “A defendant has no unbridled right to discharge counsel on the eve of trial. ... In order to work a delay by a last minute discharge of counsel there must exist exceptional circumstances.” (Emphasis in original; internal quotation marks omitted.) State v. Robinson, 227 Conn. 711, 726, 631 A.2d 288 (1993). “Our judicial system cannot be controlled by the litigants and cases cannot be allowed to drift aimlessly through the system. . . . Judges must be firm and create the expectation that a case will go forward on the specific, day that it is assigned.” (Internal quotation marks omitted.) State v. Bradley, supra, 39 Conn. App. 87-88.

In this case, the defendant had ample time, prior to the start of trial, to hire new counsel if she believed that the attorney-client relationship had broken down. Instead, she waited until the day of trial to express her dissatisfaction with her counsel. We therefore conclude that the court did not abuse its discretion in denying the defendant’s motion for a continuance.

II

The defendant’s second claim is that the court improperly admitted hearsay into evidence. Specifically, the defendant argues that the exhibits introduced by the state were inadmissible hearsay. She further argues that the court improperly allowed the state’s witnesses to offer hearsay testimony. We disagree.

“A trial court’s ruling on the admissibility of evidence is entitled to great deference and will be overturned only if a clear abuse of the court’s discretion is shown and the defendant shows that the ruling caused substantial prejudice or injustice. . . . An appellate tribunal is required to make every reasonable presumption in favor of upholding the trial court’s ruling.” (Citation omitted; internal quotation marks omitted.) State v. Bryant, 61 Conn. App. 565, 573, 767 A.2d 166 (2001). Hearsay is an out-of-court statement offered to prove the truth of the matter asserted and is generally inadmissible unless an exception to the hearsay rule applies. See State v. Stepney, 191 Conn. 233, 249, 464 A.2d 758 (1983), cert. denied, 465 U.S. 1084, 104 S. Ct. 1455, 79 L. Ed. 2d 772 (1984).

A

At trial, the state offered the testimony of the deputy chief clerk of the judicial district of New Haven, Louis P. Fagnani, Jr., who identified the state’s exhibit one as a copy of a protective order and described the nature of the protective order, when it was issued and where the record was kept. The defendant objected to that line of questioning on the ground that it was “hearsay because the judge that signed it [was] not here to identify it, and Mr. Fagnani did not sign it.”

The state argues, and we agree, that even if the document was hearsay, it was properly admitted under the public records exception to the hearsay rule. “The public records exception to the hearsay rule is based upon the fact that the [record] of the public official can be relied upon for its trustworthiness. The public official may act only occasionally, but when he does act he knows and feels that he is acting under the sanction of his official place. Experience has led to the conclusion that it is ordinarily safe to rely upon the trustworthiness of a [record] made under such circumstances.” (Internal quotation marks omitted.) Lawrence v. Kozlowski, 171 Conn. 705, 718 n.10, 372 A.2d 110 (1976), cert. denied, 431 U.S. 969, 97 S. Ct. 2930, 53 L. Ed. 2d 1066 (1977); see also State v. Torello, 103 Conn. 511, 519-20, 131 A. 429 (1925). Additionally, the protective order was authenticated properly before it was offered as an exhibit. “[I]t is generally recognized that public documents can be authenticated simply by showing [that] the record purports to be a public record and comes from the custody of the proper public office.” (Internal quotation marks omitted.) C. Tait, Connecticut Evidence (3d Ed. 2001) § 9.4.2, pp. 757-58. Under those circumstances, the court did not abuse its discretion in admitting the protective order.

In another portion of her brief, the defendant contends that Fagnani’s testimony about the procedures used in court on the issuance of a protective order was “hearsay because he was not present ... at the time the alleged document was given to the defendant.” Here, the court properly overruled the defendant’s objection with regard to Fagnani’s testimony. Fagnani was not testifying about an out-of-court statement made by the judge; rather, he was simply describing the general practice regarding protective orders issued in court, a matter with which he was well acquainted and, thus, about which he was qualified to testify. Accordingly, the court did not abuse its discretion because the testimony was not hearsay.

B

The defendant contends that the envelope and the sixteen page document it contained, introduced by the state as exhibit two, were inadmissible hearsay. The envelope was addressed to the defendant’s daughter, bearing the defendant’s name and return address. The state called the daughter, who testified that after receiving the document in the mail, she contacted the police. The defendant’s claim that the document is hearsay lacks merit.

As previously stated, “an out-of-court statement offered to prove the truth of the matter asserted is hearsay. ... If such a statement [however] is offered for a purpose other than establishing the truth of the matters contained in the statement, it is not hearsay.” (Citation omitted.) State v. Esposito, 223 Conn. 299, 315, 613 A.2d 242 (1992). The state did not offer exhibit two for its contents, but rather to prove that the defendant had violated the “no contact” provision of the protective order by communicating with her daughter through the mail. The contents of the document were not offered as evidence of the crime. The fact that it was mailed at all was the element of the violation of the protective order that the state sought to prove. Here, it was necessary that the state prove only a general intent that the defendant intended to perform the activity that constituted the violation. See State v. Charles, 78 Conn. App. 125, 140, 826 A.2d 1172, cert. denied, 266 Conn. 908, 832 A.2d 73 (2003). In the defendant’s case, mailing the envelope was sufficient. The nature of the contents of the envelope was irrelevant. As such, the court did not abuse its discretion in admitting the document.

C

The defendant contends that the court improperly admitted into evidence a four page transcript of the court proceedings before Judge Alexander and excerpts of that transcript to prove the truth of Judge Alexander’s statements, even though the judge was not present at trial. Our review of the record reveals that the four page transcript was not placed into evidence, but was marked for identification only. Excerpts of the transcripts, however, were introduced as full exhibits, and we will consider the claim as it relates to the exceipts only. See footnote 2.

The excerpts of the transcript introduced at trial concerned the colloquy between Judge Alexander and the defendant, at which time the defendant admitted that she understood the terms of the protective order. The defendant claims that the statements made by the court were hearsay. We disagree. The court made the statements to put the defendant on notice of what the “no contact” order meant, and the statements constituted verbal acts that simply were not hearsay. See Gyro Brass Mfg. Corp. v. United Automobile, Aircraft & Agricultural Implement Workers of America, AFL-CIO, 147 Conn. 76, 80, 157 A.2d 241 (1959) (testimony about oral modification of sales agreement was admissible nonhearsay because testimony offered to prove only that utterance was made, not for truth of any statements within utterance); State v. Tolisano, 136 Conn. 210, 214, 70 A.2d 118 (1949) (statements by anonymous callers to suspected bookie’s apartment admissible because statements offered not for truth of their content but as proof of verbal act of placing bet).

Although the excerpts that contained the defendant’s response, “Yes, Your Honor,” were hearsay statements, we conclude that they were admissible because the defendant’s response to the court was an admission that she understood the scope of the protective order. “It is an elementary rule of evidence that an admission of a party may be entered into evidence as an exception to the hearsay rule. . . . [Statements made out of court by a party-opponent are universally deemed admissible when offered against him ... so long as they are relevant and material to issues in the case.” (Citations omitted; internal quotation marks omitted.) State v. Ferguson, 260 Conn. 339, 357-58, 796 A.2d 1118 (2002). Here, the excerpts referred only to the court’s canvass and the defendant’s response that she understood the requirements of the protective order, which she later violated. Judge Alexander explained to the defendant that the “no contact” provision of the protective order meant that she could not mail anything to her daughter. The defendant stated that she understood the judge’s order. The portion of the transcripts referring to the defendant’s response to the court was offered for the truth of the facts contained in the statement that the defendant understood that the protective order prohibited her from mailing anything to her daughter. The state also offered the excerpts to prove that the defendant’s claim that she did not have notice of the order’s scope was disingenuous at best. See part V of this'opinion. Accordingly, the court did not abuse its discretion in admitting the excerpts into evidence.

D

The defendant contends that on the basis of her hearsay objection, the testimony from the state’s witnesses, Hosey and an assistant state’s attorney, Maura K. Coyne, should not have been admitted. We disagree.

During direct examination, the defendant objected to Hosey’s answer that he believed that the defendant was subsequently arrested for a violation of a protective order. The defendant claimed that because Hosey was not the arresting officer, his answer should be stricken because it was hearsay. Any error in admitting the testimony was harmless because there was no dispute that the defendant was arrested on the charge of violating the protective order. The court therefore did not abuse its discretion in admitting Hosey’s testimony.

The state also called Coyne, who testified about the substance of the protective order that was issued by Judge Alexander. The defendant objected to that testimony as hearsay. The state argues that if Coyne’s testimony was admitted improperly, it was harmless because she had referred to the protective order, which already had been admitted into evidence properly. “It is well established that if erroneously admitted evidence is merely cumulative of other evidence presented in the case, its admission does not constitute reversible error.” Swenson v. Sawoska, 215 Conn. 148, 155, 575 A.2d 206 (1990). Upon review, the record reveals that the substance of what the defendant claims was improperly admitted testimony merely was cumulative of other validly admitted evidence. We conclude that it was harmless error and, therefore, unlikely to have affected the outcome of the trial.

E

The state called Jessica Roman, a court recording monitor, to authenticate exceipts from the April 3,2001, transcript. On appeal, the defendant claims that the court improperly admitted Roman’s testimony. The defendant did not raise any hearsay objections during the state’s examination of Roman and, thus, did not preserve the claim. When the defendant has failed to preserve the issue properly by raising it before the trial court, we decline to review the claim. State v. Hathaway, 78 Conn. App. 527, 532 n.4, 827 A.2d 780, cert. denied, 266 Conn. 909, 832 A.2d 73 (2003).

Ill

The defendant’s third claim is that her daughter was incompetent to testify. Specifically, the defendant argues that the court improperly (1) sustained the state’s objection to her proffer of a Probate Court order requiring her daughter to seek counseling and (2) denied her motion to order her daughter to undergo a competency evaluation prior to testifying in the state’s case-in-chief. We disagree.

The defendant argues that because her daughter had been ordered into counseling at approximately the same time that the court entered the protective order, there was a basis for a competency evaluation because her daughter’s mental condition was put in issue. The defendant asserts that her daughter was the primary witness against her and that a full evaluation was necessary for adequate cross-examination. We are not persuaded.

“The competency of a witness is a matter peculiarly within the discretion of the trial court and its ruling will be disturbed only in a clear case of abuse or some error in law.” (Internal quotation marks omitted.) State v. Morant, 242 Conn. 666, 677, 701 A.2d 1 (1997). “Our case law demonstrates that the drastic measure of ordering a psychiatric examination . . . should be taken only upon compelling reasons. . . . Such an examination should not be ordered if the trial court, after hearing the testimony of the witness, has no doubt of [the witness’] mental soundness. ... In making such a determination, the trial court may make use of its own observations of the witness.” (Citations omitted; internal quotation marks omitted.) Id., 679.

Here, the court had an opportunity to observe the daughter’s demeanor and ability to testify, as well as to hear the substance of her testimony to determine her competence as a witness. The daughter was able to recall and to testify appropriately. She was a college student who understood the questions as well as the oath that was administered to her. Her testimony was important but was not the sole evidence against the defendant. Court records and the testimony proffered by the witnesses were central to proving a violation of a criminal protective order. On the basis of our review, there is nothing in the record to indicate that the court abused its discretion in declining to order an evaluation to determine whether the defendant’s daughter was competent to testify. Accordingly, the court did not abuse its discretion in denying the motion for a competency evaluation.

IV

The defendant’s fourth claim is that the court denied her constitutional rights to confront and to cross-examine the witnesses against her and to present an adequate defense. We disagree. Those claims are evidentiary in nature, and we will review them on that basis.

The defendant argues that she was not allowed to cross-examine her daughter regarding the substance of the documents the defendant had mailed to her. She further contends that she was denied her right to put other documents into evidence, to call witnesses on her behalf and to give unrestricted testimony if she chose to testify. The court properly excluded the proffered evidence, as it was irrelevant to the charge against the defendant.

“The trial court has wide discretion to determine the relevancy of evidence and the scope of cross-examination. Every reasonable presumption should be made in favor of the correctness of the court’s ruling in determining whether there has been an abuse of discretion. . . . The proffering party bears the burden of establishing the relevance of the offered testimony.” (Citations omitted; internal quotation marks omitted.) State v. Reeves, 57 Conn. App. 337, 345, 748 A.2d 357 (2000). The proffered testimony was collateral to the issues in this criminal case. A retrial of the ongoing family dispute would have been irrelevant and would not have aided the trier of fact in determining the challenged issue. See State v. Cepeda, 51 Conn. App. 409, 416, 723 A.2d 331 (“‘[o]nly relevant evidence may be elicited through cross-examination’ ”), cert. denied, 248 Conn. 912, 732 A.2d 180 (1999).

“A defendant’s right to cross-examine witnesses is not absolute and is subject to reasonable limitation.” State v. Vitale, 197 Conn. 396, 401, 497 A.2d 956 (1985). “Although the constitutional right of cross-examination guarantees the opportunity for effective cross-examination . . . that does not mean cross-examination that is effective in whatever way, and to whatever extent, the defense might wish. . . . That right does not include, in a word, unrestricted cross-examination.” (Citation omitted; internal quotation marks omitted.) State v. Jones, 60 Conn. App. 866, 871, 761 A.2d 789 (2000), cert. denied, 255 Conn. 942, 769 A.2d 59 (2001).

We conclude that the court did not abuse its discretion in limiting the defendant’s cross-examination or in ruling that the evidence offered by the defendant was inadmissible. The defendant’s questioning and proffered evidence had no bearing on the charge of a violation of a protective order, and the defendant failed to demonstrate otherwise. On the basis of the foregoing, the court’s evidentiary rulings were proper.

V

The defendant’s final claim concerns whether she had proper notice of what acts constituted a violation of the protective order. The claim implies that the state failed to inform her of the basis of the charge of violating the protective order because the “no contact” provision of the protective order was impermissibly vague. That claim has no merit.

The defendant argues that the protective order failed to put her on notice that the act of mailing her daughter the documents from the Probate Court constituted a violation of the protective order. Although the protective order that was entered into evidence as exhibit one did not state that the defendant could not mail anything to her daughter, Judge Alexander pointedly told the defendant that “no contact” meant that she was not permitted to contact her daughter “in person, by phone, by letter or by sending anyone on your behalf.” (Emphasis added.) See part II C of this opinion.

In determining whether the “no contact” provision provided definite notice of prohibited conduct, we consider “whether a person of ordinary intelligence would reasonably know what acts are permitted or prohibited by the use of his common sense and ordinary understanding.” (Internal quotation marks omitted.) State v. Edelman, 64 Conn. App. 480, 485, 780 A.2d 980 (2001), appeal dismissed, 262 Conn. 392, 815 A.2d 104 (2003). On the basis of Judge Alexander’s explanation of the “no contact” provision of the protective order, a person of ordinary intelligence would have understood that sending mail to a person protected by the order would violate that “no contact” provision of the protective order. Under those circumstances, the defendant had fair warning that she would violate the “no contact” provision of the protective order by sending mail to her daughter.

We agree with the defendant that nothing in the protective order or Judge Alexander’s explanation of the “no contact” provision informed the defendant that the content of the Probate Court documents violated the protective order. The nature of the contents of the court documents, however, was not at issue. As previously noted, Judge Alexander told the defendant that she could have no contact with her daughter and that no contact included not mailing anything to her. The defendant, nevertheless, violated the protective order by mailing the Probate Court documents to her daughter.

The defendant’s brief also implies that nothing in the protective order gave her notice that exercising her right to access the Probate Court was a violation of the “no contact” provision. Yet again, the defendant failed to grasp the nature of the charge against her. She was charged with violating the protective order because she mailed the document to her daughter, not because she exercised her right to access the Probate Court. We therefore cannot conclude that the defendant did not receive proper notice of the charge against her. Accordingly, there was no due process violation, and the defendant was on notice that she could not mail anything to her daughter. The defendant’s final claim must fail.

The judgment is affirmed.

In this opinion the other judges concurred.

       The defendant claims a violation of her rights under both the sixth amendment to the United States constitution and article first, § 8, of the constitution of Connecticut. “Because the defendant has not briefed [her] claim separately under the Connecticut constitution, we limit our review to the United States constitution. We have repeatedly apprised litigants that we will not entertain a state constitutional claim unless the defendant has provided an independent analysis under the particular provisions of the state constitution at issue. . . . Without a separately briefed and analyzed state constitutional claim, we deem abandoned the defendant’s claim . . . .” (Internal quotation marks omitted.) State v. Gonzalez, 69 Conn. App. 649, 656 n.6, 796 A.2d 1225, cert. denied, 260 Conn. 937, 802 A.2d 91 (2002).

       The court explained the terms of the protective order to the defendant in relevant part:
      “The Court: . . . [W]ith respect to [your daughter], it is the order of the court that you not restrain, threaten, harass, assault, molest or sexually assault that individual. Do not go to [your daughter’s home]. It also indicates that you may not go to her place of employment.... No contact in person, by phone, by letter or by sending anyone on your behalf. Do you understand this order . . . yes or no?
      “[The Defendant]: Yes, Your Honor. . . .”

       “Almost without exception, we have required that a claim of ineffective assistance of counsel must be raised by way of habeas corpus, rather than by direct appeal .... On the rare occasions that we have addressed an ineffective assistance of counsel claim on direct appeal, we have limited our review to allegations that the defendant’s sixth amendment rights had been jeopardized by the actions of the trial court, rather than by those of his counsel.” (Citations omitted; emphasis in original; internal quotation marks omitted.) State v. Parrott, 262 Conn. 276, 285, 811 A.2d 705 (2003). Because the defendant is claiming that the court violated her right to the effective assistance of counsel, her claim is properly before this court.

       At trial, the defendant indicated that she was a third year law student and stated before this court at oral argument that she was “seven credits from obtaining [her] law degree and fully competent to argue [her] appeal.”

       The state introduced the following five exhibits at trial: Exhibit one, the protective order; exhibit two, the envelope containing the sixteen page document that the defendant had mailed to her daughter; exhibit three, the April 3, 2001 transcript of the court proceedings before Judge Alexander; and exhibits four and five, portions of the April 3, 2001 transcript.

       Connecticut Code of Evidence § 8-3 (7) excludes the following from the hearsay rule: “Records, reports, statements or data compilations, in any form, of public offices or agencies, provided (A) the record, report, statement or data compilation was made by a public official under a duty to make it, (B) the record, report, statement or data compilation was made in the course of his or her official duties, and (C) the official or someone with a duty to transmit information to the official had personal knowledge of the matters contained in the record, report, statement or data compilation.”

       The defendant has included in the appendix to her brief a copy of the probate order that required her daughter to see a counselor. During the trial, the defendant failed to make that document an exhibit for identification purposes. Therefore, the document was not properly before this court for review. See State v. Harrison, 34 Conn. App. 473, 490, 642 A.2d 36 (“purpose of marking an exhibit for identification is to preserve it as part of the record and to provide an appellate court with a basis for review” [internal quotation marks omitted]), cert. denied, 231 Conn. 907, 648 A.2d 157 (1994). Because the defendant failed to provide an adequate record for our review of her evidentiary claim, we decline to afford it review.

       In her brief, the defendant relied on United States v. Partin, 493 F.2d 750 (5th Cir. 1974), in seeking plain error review of her claim and arguing that she has “the right to explore every facet of relevant evidence pertaining to the credibility of those who testify against” her. (Internal quotation marks omitted.) Id., 763. Plain error review is reserved for extraordinary situations. State v. Beverly, 72 Conn. App. 91, 104-105, 805 A.2d 95, cert. denied, 262 Conn. 910, 810 A.2d 275 (2002). This is not the case here. Plain error review therefore is unwarranted.

        “It is well established that [rjobing garden variety claims of [an evidentiary nature] in the majestic garb of constitutional claims does not make such claims constitutional in nature.” (Internal quotation marks omitted.) State v. William C., 71 Conn. App. 47, 71 n.12, 801 A.2d 823, rev’d on other grounds, 267 Conn. 686, 841 A.2d 1144 (2004).

       The envelope contained a document referring to an appeal from a Probate Court proceeding during which the defendant unsuccessfully attempted to become her daughter’s temporary conservator.

       The defendant wanted to introduce the following into evidence: A one page document entitled “Motion for Appeal from Probate,” a letter from her daughter’s Probate Court attorney to the Probate Court judge pertaining to her daughter’s counseling, the employment records of the defendant’s ex-husband and an offer of proof regarding proposed testimony from her son.

       The defendant wanted to testify about her daughter’s mental competency, her relationship with her daughter and her daughter’s relationship with her father. The defendant chose not to testify after the court warned her that her testimony would be limited to the scope of the crime charged.