author: FLYNN, C. J.

text:
    STATE OF CONNECTICUT v. JEROME RICE
    (AC 28465)
    Flynn, C. J., and Harper and Peters, Js.

      Argued October 23
    officially released December 25, 2007

      Mary Anne Royle, special public defender, for the appellant (defendant).

      Michele C. Lukban, senior assistant state’s attorney, with whom, on the brief, were John A. Connelly, state’s attorney, and Eva B. Lenczewski, supervisory assistant state’s attorney, for the appellee (state).
   Opinion

FLYNN, C. J.

The defendant, Jerome Rice, appeals from the judgment of conviction, following a trial by jury, of one count of murder in violation of General Statutes § 53a-54a (a). On appeal, the defendant claims that the trial court improperly (1) denied his motion for a judgment of acquittal for insufficient evidence where the state failed to establish the essential element of intent to kill and (2) denied his motion to suppress his signed confession where it was not knowingly and voluntarily given because he had not slept for two days and had been under the undue influence of alcohol when he signed it. We affirm the judgment of the trial court.

The following facts reasonably could have been found by the jury. On October 23, 2003, the defendant, accompanied by his friend, Frank Orr, drove from the defendant’s home in New York to Waterbuiy to see his son and his son’s mother, Tosha McClashie. After arriving, Norris McClashie, Tosha McClashie’s brother, who also was a friend of the defendant, asked the defendant and Orr to go out on the town with him so that he could purchase some marijuana. They took the defendant’s automobile. Sometime after they left the house, the defendant removed his Taurus nine millimeter handgun from the trunk of his automobile and placed it into his jacket pocket. While driving around in the automobile, the three men drank some forty ounce beers and may have shared a marijuana cigarette. They stopped at a few locations before ending up at Buddies Billiards (Buddies). While at Buddies, Norris McClashie (McClas-hie) was approached by his friend, Jose Lopez, who asked McClashie for a ride home. McClashie asked the defendant if they could drop Lopez off at home, and the defendant agreed. When they left Buddies, at approximately 12:30 a.m. on the morning of October 24, the defendant and Orr sat in the front seat, and McClashie and Lopez sat in the backseat of the defendant’s automobile. At some point during the ride, Lopez took out some cocaine and asked McClashie if he wanted some. The defendant became very angry and told Lopez that he did not want drugs in his automobile, and Lopez gave the defendant a sarcastic response. Shortly thereafter, Lopez asked the defendant to stop the automobile because he had to reheve himself. The defendant stopped, and Lopez walked to the rear of the automobile. The defendant exited the vehicle and walked behind the vehicle as well. McClashie then heard two bangs, and the defendant returned to the driver’s seat. When the defendant began to drive away, McClashie asked the defendant what had happened and if he had shot Lopez. The defendant did not respond. McClashie asked the defendant to return to the scene to get Lopez and take him to a hospital, but the defendant again said nothing. The defendant drove normally and took McClashie home, telling him not to say anything about what had transpired. The defendant and Orr then drove back to New York. McClashie telephoned the defendant later in the day and asked him if Lopez was dead, and the defendant stated that he had shot Lopez in the chest and in the head. McClashie then asked the defendant why he had shot Lopez, and the defendant responded that he had never liked Lopez.

Later in the evening, McClashie gave a statement to the police. A warrant was issued for the defendant’s arrest, and members of the Waterbury police department went to New York to execute the warrant. During the night of October 25, 2003, at approximately 11:30 p.m., the defendant was arrested at his New York apartment, where the police also found the gun that was used to kill Lopez. The police took the defendant to the 105th precinct in New York City. Within approximately twenty minutes, the defendant confessed to shooting Lopez and signed a written confession. He was returned to Connecticut to face trial. The defendant was tried, found guilty by the jury and was sentenced to fifty-three years imprisonment, with three years of special probation. This appeal followed. Additional facts will be set forth where necessary.

I

The defendant first claims that the court improperly denied his motion for a judgment of acquittal, in which he claimed that the state presented insufficient evidence to prove that he had the necessary intent to shoot and kill Lopez. He argues that the evidence demonstrated that he was intoxicated at the time of the shooting and that he had smoked marijuana, which negated the element of intent. We disagree.

“The standard of review we apply to a claim of insufficient evidence is well established. In reviewing the sufficiency of the evidence to support a criminal conviction we apply a two-part test. First, we construe the evidence in the light most favorable to sustaining the verdict. Second, we determine whether upon the facts so construed and the inferences reasonably drawn therefrom the [finder of fact] reasonably could have concluded that the cumulative force of the evidence established guilt beyond a reasonable doubt. . . .

“We note that the jury must find every element proven beyond a reasonable doubt in order to find the defendant guilty of the charged offense, [but] each of the basic and inferred facts underlying those conclusions need not be proved beyond a reasonable doubt. . . . If it is reasonable and logical for the jury to conclude that a basic fact or an inferred fact is true, the jury is permitted to consider the fact proven and may consider it in combination with other proven facts in determining whether the cumulative effect of all the evidence proves the defendant guilty of all the elements of the crime charged beyond a reasonable doubt. . . .

“Moreover, it does not diminish the probative force of the evidence that it consists, in whole or in part, of evidence that is circumstantial rather than direct. . . . It is not one fact, but the cumulative impact of a multitude of facts which establishes guilt in a case involving substantial circumstantial evidence. ... In evaluating evidence, the [finder] of fact is not required to accept as dispositive those inferences that are consistent with the defendant’s innocence. . . . The [finder of fact] may draw whatever inferences from the evidence or facts established by the evidence it deems to be reasonable and logical. . . .

“Finally, [a]s we have often noted, proof beyond a reasonable doubt does not mean proof beyond all possible doubt . . . nor does proof beyond a reasonable doubt require acceptance of every hypothesis of innocence posed by the defendant that, had it been found credible by the [finder of fact], would have resulted in an acquittal. ... On appeal, we do not ask whether there is a reasonable view of the evidence that would support a reasonable hypothesis of innocence. We ask, instead, whether there is a reasonable view of the evidence that supports the [finder of fact’s] verdict of guilty.” (Internal quotation marks omitted.) State v. Calabrese, 279 Conn. 393, 402-403,902 A.2d 1044 (2006).

To establish a violation of § 53a-54a, the crime of murder, the state must prove beyond a reasonable doubt that the defendant, “with intent to cause the death of another person . . . cause [d] the death of such person or of a third person. ...” General Statutes § 53a-54a (a). As our Supreme Court reiterated in State v. Gary, 273 Conn. 393, 869 A.2d 1236 (2005), “[t]he specific intent to kill is an essential element of the crime of murder. To act intentionally, the defendant must have had the conscious objective to cause the death of the victim. . . . Because direct evidence of the accused’s state of mind is rarely available . . . intent is often inferred from conduct . . . and from the cumulative effect of the circumstantial evidence and the rational inferences drawn therefrom. . . . Intent to cause death may be inferred from the type of weapon used, the manner in which it was used, the type of wound inflicted and the events leading to and immediately following the death. . . . Furthermore, it is a permissible, albeit not a necessary or mandatory, inference that a defendant intended the natural consequences of his voluntary conduct. ... In addition, intent to kill may be inferred from evidence that the defendant had a motive to kill.” (Citations omitted; internal quotation marks omitted.) Id., 406-407.

Here, the defendant argues that there was insufficient evidence of his intent to kill because he was intoxicated due to alcohol and marijuana at the time he shot Lopez. “Intoxication, as used in General Statutes § 53a-7, means a substantial disturbance of mental or physical capacities resulting from the introduction of substances into the body. . . . [Although] intoxication is neither a defense nor an affirmative defense to a murder charge in Connecticut, evidence of a defendant’s intoxication is relevant to negate specific intent which is an essential element of the crime of murder. . . . Intoxication, however, does not automatically negate intent. ... It is for the jury to decide, after weighing all the evidence adduced at trial, whether a criminal defendant’s intoxication rendered him incapable of forming the intent required to commit the crime with which he is charged.” (Citation omitted; internal quotation marks omitted.) State v. LaSalle, 95 Conn. App. 263, 271, 897 A.2d 101, cert. denied, 279 Conn. 908, 901 A.2d 1227 (2006).

In the case at bar, McClashie testified that on the night of the murder, he, the defendant and Orr were drinking some forty ounce beers while they drove around in the defendant’s automobile. He also stated that he thought the defendant had smoked some of a marijuana cigarette that he had passed around, but he was not sure of that. He stated that he thought the defendant was “buzzed” but not drunk. Finally, McClashie testified that the defendant “wasn’t that drunk” and that he was able to drive his vehicle without difficulty. The evidence also showed that after the defendant shot Lopez, he returned to the vehicle and drove McClashie home without incident. McClashie asked the defendant if he had shot Lopez, and the defendant refused to answer. McClashie also asked the defendant to return to the scene to get Lopez and take him to a hospital, but the defendant would not respond. When he drove McClashie home, the defendant repeatedly instructed him not to say anything to anyone regarding what had happened. The defendant and Orr then drove back to New York. The jury also had before it the defendant’s statement to the police, in which he stated that he had consumed a “couple of beers” and that McClashie had been unable to get any marijuana.

Despite what the defendant argues on appeal, the jury had before it evidence that the defendant was not intoxicated—that there was no “substantial disturbance of mental or physical capacities . . . .” General Statutes § 53a-7. Moreover, the defendant shot Lopez not once, but twice, once in the chest and once in the head, at close range. As our Supreme Court has reasoned, “[o]ne who uses a deadly weapon upon a vital part of another will be deemed to have intended the probable result of that act, and from such a circumstance a proper inference may be drawn in some cases that there was an intent to kill.” (Internal quotation marks omitted.) State v. Tomasko, 238 Conn. 253, 259, 681 A.2d 922 (1996). In this case, the defendant shot Lopez in the chest and in the head, and then drove away, refusing to return to the scene to get medical attention for Lopez when requested to do so. Instead, he drove McClashie home, firmly instructing him to say nothing, and he returned with Orr to New York. The next day, when asked by McClashie why he had shot Lopez, the defendant responded that he had never liked Lopez. Given these facts, it was not unreasonable for the jury to find that the defendant had intended to kill Lopez.

Viewing the evidence in the light most favorable to sustaining the verdict, we conclude that the evidence was sufficient for the jury to have concluded beyond a reasonable doubt that the defendant had formed the specific intent to kill Lopez. It was the responsibility of the jury to determine whether the defendant had been intoxicated at the time of the murder and, even if intoxicated, whether he still was able to form the specific intent to kill. On the basis of the evidence presented and the reasonable inferences drawn therefrom, we conclude that the jury reasonably could have found that the defendant had the specific intent to kill Lopez.

II

The defendant next claims the court improperly denied his motion to suppress his signed confession on the ground that it was not knowingly and voluntarily given because he had not slept for two days and had been under the undue influence of alcohol when he signed it. We reject the defendant’s claim.

The following additional facts, brought out at the suppression hearing, are relevant to our resolution of the defendant’s claim. After being arrested during the late hours of October 25, 2003, the defendant was taken to the 105th precinct in New York City, where Detective John Kennelly read him his Miranda rights in the presence of another officer, Sergeant Lee Levesque. The defendant signed a form acknowledging that he had been read his rights and that he understood them. Ken-nelly and Levesque also signed the form. The defendant further acknowledged, orally, to Kennelly and Levesque that he understood his rights. The officers asked the defendant if he was prepared to give a statement at that time, but he did not respond. Levesque and Ken-nelly then left the defendant alone for approximately ten minutes. When they returned, they again asked the defendant if he was prepared to give a statement. At this time, the defendant told the officers what had happened and how he had shot Lopez. The officers asked the defendant to repeat his story so that they could put it in writing, and the defendant complied. The defendant could see the computer screen as Kennelly typed the statement, and, at one point, the defendant rearranged what Kennelly had typed. Once the statement was typewritten, the defendant read it, confirmed its accuracy and signed it.

Kennelly and Levesque testified that no force or threats were employed in getting the defendant to confess, that the defendant was calm and cooperative, that they had detected no odor of alcohol emanating from the defendant, that the defendant appeared normal and coherent, that he did not yawn or otherwise indicate sleepiness or tiredness, that he had no trouble walking, that he did not stumble and that the defendant did not appear to be under the influence of alcohol or drugs. Additionally, Kennelly testified that the defendant appeared alert while speaking with the officers. Ken-nelly acknowledged that the defendant had put in his statement that he had not slept in a couple of days and that he had been drinking. The defendant did not testify at the suppression hearing.

After the hearing, the court denied the defendant’s motion to suppress his written confession, concluding that the confession had been knowingly and voluntarily given after the defendant had been fully advised of his rights. The court rendered a detailed decision specifically finding that “the defendant was not intoxicated when he was arrested and brought to the precinct,” that he “did not doze off at any time or display other ill affects of any lack of sleep” and that the police interrogation had not occurred in a manner “that would have been likely to overbear the defendant’s will to resist and to bring about a confession that was not freely self-determined.” Accordingly, the court concluded that the defendant “knowingly, intelligently and voluntarily agreed to waive his rights,” and it denied the motion to suppress the statement. We conclude that the court’s findings are supported by substantial evidence.

“As an initial matter, we note that [o]ur standard of review of a trial court’s findings and conclusions in connection with a motion to suppress is well defined. A finding of fact will not be disturbed unless it is clearly erroneous in view of the evidence and pleadings in the whole record. . . . [When] the legal conclusions of the court are challenged, [our review is plenary, and] we must determine whether they are legally and logically correct and whether they find support in the facts set out in the court’s [ruling] ....

“Furthermore, [t]o be valid, a waiver must be voluntary, knowing and intelligent. . . . The state has the burden of proving by a preponderance of the evidence that the defendant voluntarily, knowingly and intelligently waived his Miranda rights. ... In considering the validity of a waiver, we look to the totality of the circumstances of the claimed waiver.....Although the issue of whether there has been a knowing and voluntary waiver is ultimately factual, the usual deference to fact-finding by the trial court is qualified in this area by the necessity for a scrupulous examination of the record to ascertain whether such a factual finding is supported by substantial evidence.” (Citation omitted; internal quotation marks omitted.) State v. Jones, 281 Conn. 613, 654, 916 A.2d 17, cert. denied, 552 U.S. 868, 128 S. Ct. 164, 169 L. Ed. 2d 112 (2007).

The defendant’s entire argument rests on his assertion that his confession was not knowing and voluntary because he was under the influence of alcohol and he had not slept in two days. The only evidence before the court that would lend any credence to the defendant’s contention that he had not slept in two days and had been under the influence of alcohol was the defendant’s written statement and the testimony of Kennelly, who acknowledged that the defendant had said this. The defendant’s statement contained the following relevant details of what had occurred after the defendant shot Lopez: “I brought [McClashie] back to Tosha’s house. Me and [Orr] drove back to Queens, New York. I dropped [Orr] off at a bus stop on Jamaica Avenue. It was still dark out. I drove to my apartment and started drinking beer. I put the gun in a small safe that is in the apartment. I didn’t sleep for two days. Tosha called me last night and today asking me what was going on. She seemed to know that something was wrong. Tonight when the police knocked on my door, I knew it was all over. This is the truth.”

It is unclear from reading this statement exactly when the two day’s lack of sleep occurred. Because the statement seems to be in chronological order from the beginning to the end, it gives the impression that between the time the defendant placed the gun in his safe, in the early morning hours of October 24, 2003, and the time that Tosha McClashie telephoned him later that night, the defendant had not slept for two days. There is no indication in this statement, however, that the defendant still had not slept by the time the police arrived at 11:30 p.m. on the night of October 25, 2003, or that he had continued to drink alcohol during this time. There also was no evidence that the defendant had been so impaired at the time of his arrest that he was unable to knowingly and voluntarily waive his rights. The murder of Lopez occurred during the very early hours of October 24, 2003, not long after the four men left Buddies at approximately 12:30 a.m. Following the killing, the defendant drove McClashie home, and he and Orr then drove back to New York. Although the exact time that the defendant returned home is not in the record, his statement contains the assertion that it still was dark out. Certainly, from this assertion, one could infer that it was very early in the morning on October 24, 2003. The police did not arrest the defendant until the late night of October 25, 2003, more than one and one-half days after the killing. We can ascertain nothing in the record that would provide proof that the defendant still had not slept before he was arrested. Additionally, the testimony of Kennelly and Levesque demonstrated that the defendant was calm, coherent, cooperative and alert. He did not smell of alcohol or appear to be under the influence of drugs or alcohol when they questioned him in the late night hours of October 25, 2003.

Acknowledging that the state has the burden of proving, by a preponderance of the evidence, that the defendant’s waiver was knowingly, voluntarily and intelligently given, the court made specific, detailed findings of fact in accordance with the evidence presented at the hearing, and it concluded that the state had met its burden of proof. On the basis of our own review of the record, we conclude that the court’s factual findings are supported by substantial evidence, and the court’s conclusion that the defendant made a valid waiver of his Miranda rights on the basis of the totality of the circumstances was not improper.

The judgment is affirmed.

In this opinion the other judges concurred.

        Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).


source: Caselaw Access Project

author: BISHOP, J.

license: Public Domain

text:
    STATE OF CONNECTICUT v. ROBERT GREEN
    (AC 27824)
    Bishop, DiPentima and West, Js.

      Argued October 10
    officially released December 25, 2007

      Mary Beattie Schairer, special public defender, for the appellant (defendant).

      Kathryn Ward Bare, deputy assistant state’s attorney, with whom, on the brief, were James E. Thomas, former state’s attorney, and Edward R. Narus, senior assistant state’s attorney, for the appellee (state).
   Opinion

BISHOP, J.

The defendant, Robert Green, appeals from the judgment of the trial court rendered following the denial of his motion to withdraw his guilty pleas, entered pursuant to the doctrine of North Carolina v. Alford, 400 U.S. 25, 91 S. Ct. 160, 27 L. Ed. 2d 162 (1970), to sexual assault in the first degree in violation of General Statutes § 53a-70 (a) (1), risk of injury to a child in violation of General Statutes § 53-21 (a) (2) and larceny in the first degree in violation of General Statutes § 53a-122 (a) (4). On appeal, the defendant claims that the court (1) abused its discretion in denying his motion for a continuance to obtain private counsel and (2) improperly denied his motion to withdraw his guilty pleas because they were not entered into knowingly, intelligently and voluntarily. We affirm the judgments of the trial court.

The following factual and procedural history is pertinent to our resolution of the defendant’s appeal. On October 14, 2004, the defendant was charged with one count of larceny in the first degree. On October 15, 2004, he was charged under a separate docket number with two counts of sexual assault in the first degree and one count of risk of injury to a child. On November 16, 2004, a public defender was appointed to represent the defendant, and the defendant entered pro forma not guilty pleas to all of the charges.

On November 16, 2005, in exchange for his guilty pleas, the state offered the defendant the mandatory minimum sentence of ten years incarceration and ten years special parole. Between November 16, 2005, and February 22,2006, the court granted the defendant three continuances to consider the state’s offer. On February 22, 2006, the defendant requested another continuance in order to obtain private counsel. Noting the previous continuances, the court indicated that the defendant had been afforded plenty of time to obtain private counsel and denied the request. That same day, the defendant pleaded guilty under the Alford doctrine to one count of sexual assault in the first degree, one count of risk of injury to a child and one count of larceny in the first degree.

Thereafter, on March 10, 2006, the day on which the defendant was scheduled to be sentenced, the defendant orally moved to withdraw his guilty pleas. The court continued the matter to obtain a copy of the plea proceeding and to afford the defendant the opportunity to file a written motion to withdraw his guilty pleas, which he did on May 9, 2006. On May 11, 2006, the court heard argument on the motion. The defendant claimed that his pleas were not knowingly, intelligently and voluntarily entered into because he was nervous, upset and not thinking clearly during the plea proceedings. The court denied the defendant’s motion to withdraw and sentenced the defendant to a total effective sentence of ten years of incarceration plus five years of special parole. This appeal followed.

I

The defendant first claims that the court abused its discretion in denying his motion for a continuance to obtain private counsel. We disagree.

“[T]he determination of whether to grant a request for a continuance is within the discretion of the trial court, and will not be disturbed on appeal absent an abuse of discretion. ... A reviewing court is bound by the principle that [e]very reasonable presumption in favor of the proper exercise of the trial court’s discretion will be made. ... To prove an abuse of discretion, an appellant must show that the trial court’s denial of a request for a continuance was arbitrary. . . . There are no mechanical tests for deciding when a denial of a continuance is so arbitrary as to violate due process. The answer must be found in the circumstances present in every case, particularly in the reasons presented to the trial judge at the time the request is denied. . . . In addition, we consistently have acknowledged that [o]ur role as an appellate court is not to substitute our judgment for that of a trial court that has chosen one of many reasonable alternatives.” (Citation omitted; internal quotation marks omitted.) State v. Rivera, 268 Conn. 351, 378, 844 A.2d 191 (2004).

Here, as noted, the defendant was arrested in September, 2004, and was appointed a public defender in November, 2004. He was offered a plea agreement in both cases on November 16, 2005, and requested, and was granted, three continuances in order to decide whether to accept or reject the state’s offer. When the defendant requested a further continuance on February 22, 2006, the court denied that request in light of the three continuances previously granted and the amount of time that the defendant already had to consider the plea offers and to obtain private counsel. On the basis of these sound reasons for denying the defendant’s motion for a continuance, we cannot conclude that the court abused its discretion.

II

The defendant also claims that the court improperly denied his motion to withdraw his guilty pleas because his pleas were not knowing, intelligent and voluntary in that he did not understand the proceedings and was not adequately canvassed on the larceny charge. We are unpersuaded.

“Practice Book § [39-27] specifies circumstances under which a defendant may withdraw a guilty plea after it has been entered. [0]nce entered, a guilty plea cannot be withdrawn except by leave of the court, within its sound discretion, and a denial thereof is reversible only if it appears that there has been an abuse of discretion. . . . The burden is always on the defendant to show a plausible reason for the withdrawal of a plea of guilty.” (Internal quotation marks omitted.) State v. Sutton, 95 Conn. App. 139, 145, 895 A.2d 805, cert. denied, 278 Conn. 920, 901 A.2d 45 (2006).

“In order for a plea to be valid, the record must affirmatively disclose that the defendant understands the nature of the charge upon which the plea is entered . . . the mandatory minimum sentence, if any . . . the fact that a statute does not permit the sentence to be suspended . . . the maximum possible sentence . . . and that the defendant has the right to plead not guilty or to persist in that plea if already made, the right to a trial by a jury or judge, the right to assistance of counsel, the right to confront the defendant’s accusers and the right against compelled self-incrimination. . . . The record must further disclose that the plea is voluntary and not the result of threats or promises.” (Internal quotation marks omitted.) State v. Samuel, 94 Conn. App. 715, 718-19, 894 A.2d 363, cert. denied, 278 Conn. 911, 899 A.2d 39 (2006).

The defendant contends that his pleas were involuntary because he was nervous and upset and was not thinking clearly during the plea proceedings. Specifically, the defendant claims that in denying his motion for a continuance, the court stated that it was too late to get private counsel but that he could get private counsel if he went to trial. The defendant claims that because he is a “slow learner” with only a ninth grade education, he understood the court’s statement to mean that he could not go to trial, and he was, therefore, upset and nervous and did not enter his pleas knowingly, intelligently and voluntarily.

The record discloses that during the plea proceeding, the court carefully and thoroughly reviewed with the defendant all of the rights that he was waiving by not going to trial and accepting the pleas. While reviewing the defendant’s rights, the court also indicated that it was not in a rush and wanted to be certain that the defendant understood the proceedings and that if he had any questions, he could interrupt or speak to his attorney at any time. The court asked the defendant twice if he had sufficient time to discuss matters with his attorney, and the defendant answered affirmatively. The court asked the defendant if he had any questions at all about any aspect of the proceedings, and the defendant indicated that he did not. On the basis of our review of the record, there is no indication that the defendant did not comprehend the nature of the plea proceedings or the rights that he was waiving.

The defendant also claims that because the court did not canvass him on the essential elements of the larceny charge, he did not understand the elements of that charge, and, accordingly, his plea should be vacated. Although the court did not explain the elements of the larceny charge to the defendant, his attorney indicated that he had explained to the defendant all of the elements of all of the charges that the state was required to prove. The defendant confirmed his attorney’s representation and stated that he was satisfied with his attorney’s advice. “[E]ven without an express statement by the court of the elements of the crimes charged, it is appropriate to presume that in most cases defense counsel routinely explain the nature of the offense in sufficient detail to give the accused notice of what he is being asked to admit.” (Internal quotation marks omitted.) State v. Reid, 277 Conn. 764, 783, 894 A.2d 963 (2006). Accordingly, we conclude that on the basis of the record in the present case, the defendant was sufficiently apprised of the elements of larceny and the facts on which the state’s case was based. We therefore find no disagreement with the court’s conclusion that the defendant’s pleas were voluntary and knowing.

The judgments are affirmed.

In this opinion the other judges concurred.

       “Under North Carolina v. Alford, [supra, 400 U.S. 25], a criminal defendant is not required to admit his guilt, but consents to being punished as if he were guilty to avoid the risk of proceeding to trial. ... A guilty plea under the Alford doctrine is a judicial oxymoron in that the defendant does not admit guilt but acknowledges that the state’s evidence against him is so strong that he is prepared to accept the entry of a guilty plea nevertheless. ” (Internal quotation marks omitted.) State v. Faraday, 268 Conn. 174, 204-205, 842 A.2d 567 (2004).


author: PER CURIAM.

text:
    ANTHONY CRUZ v. COMMISSIONER OF CORRECTION
    (AC 28003)
    Flyim, C. J., and McLachlan and Lavine, Js.
    Submitted on briefs November 15
    officially released December 25, 2007

      James M. Fox, special public defender, filed a brief for the appellant (petitioner).

      Adam E. Mattei, special deputy assistant state’s attorney, and Jonathan C. Benedict, state’s attorney, and Gerard P. Eisenman, senior assistant state’s attorney, filed a brief for the appellee (respondent).
   Opinion

PER CURIAM.

The petitioner, Anthony Cruz, appeals following the denial of his petition for certification to appeal from the judgment of the habeas court denying his amended petition for a writ of habeas corpus. The petitioner claimed that his trial counsel rendered ineffective assistance, that he was innocent of one of the crimes to which he pleaded guilty and of which he was convicted and that his plea was involuntary. As to these claims, the court concluded that the petitioner failed to satisfy his burden under Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984), in that he did not establish by a preponderance of the evidence that counsel’s performance was deficient and that the deficient performance prejudiced his defense. As to his actual innocence claim, the court concluded that the petitioner failed to prove by clear and convincing evidence that “no reasonable fact finder would find the petitioner guilty of the crime [s]” to which he pleaded guilty. See Miller v. Commissioner of Correction, 242 Conn. 745, 747, 700 A.2d 1108 (1997). Moreover, the court concluded that the petitioner’s pleas of guilty were knowing, intelligent and voluntary. See Hill v. Lockhart, 474 U.S. 52, 59, 106 S. Ct. 366, 88 L. Ed. 2d 203 (1985); see also State v. Commins, 276 Conn. 503, 514-15, 886 A.2d 824 (2005).

After a careful review of the record and briefs, we conclude that the court did not abuse its discretion in denying the petitioner certification to appeal because he has not demonstrated that “the issues are debatable among jurists of reason; that a court could resolve the issues [in a different manner]; or that the questions are adequate to deserve encouragement to proceed further.” (Internal quotation marks omitted.) Simms v. Warden, 230 Conn. 608, 616, 646 A.2d 126 (1994).

The appeal is dismissed.

       The petitioner claimed innocence as to only the first count, in which he was charged with risk of injury to a child in violation of General Statutes (Rev. to 1997) § 53-21 (1) and to which he subsequently pleaded guilty under the Alford doctrine. See North Carolina v. Alford, 400 U.S. 25, 91 S. Ct. 160, 27 L. Ed. 2d 162 (1970).


text:
    THOMAS S. EDWARDS v. COMMISSIONER OF CORRECTION
    (AC 27421)
    Flynn, C. J., and DiPentima and Lavine, Js.

      Argued September 19, 2007
    officially released January 1, 2008

      William S. Palmieri, special public defender, for the appellant (petitioner).

      David M. Carlucci, deputy assistant state’s attorney, with whom, on the brief, were David I. Cohen, state’s attorney, and Michael A. DeJoseph, assistant state’s attorney, for the appellee (respondent).
   Opinion

FLYNN, C. J.

The petitioner, Thomas S. Edwards, appeals following the denial of his petition for certification to appeal from the judgment of the habeas court denying his amended petition for a writ of habeas corpus. On appeal, the petitioner claims that the habeas court improperly concluded that the trial court had jurisdiction to accept the petitioner’s guilty plea. We dismiss the appeal.

The following procedural history underlies the petitioner’s claim. The petitioner originally was charged with two counts of sexual assault in the first degree and one count of kidnapping in the first degree in violation of General Statutes §§ 53a-70 and 53a-92, respectively. On October 7, 2003, the state submitted a substitute information in which it charged the petitioner with one count of unlawful restraint in the first degree in violation of General Statutes § 53a-95, to which the defendant pleaded guilty under the Alford doctrine that same day. The court accepted the plea, and the petitioner was sentenced to five years imprisonment, which was to be served concurrently with another sentence already being served.

On September 16, 2005, the petitioner filed an amended petition for a writ of habeas corpus, claiming, inter alia, that the trial court did not have jurisdiction to accept his guilty plea because it failed to hold a hearing in probable cause within sixty days of the filing of the information. Accordingly, he argued, his plea was null and void. The respondent commissioner of correction filed a motion for summary judgment, which was granted by the habeas court upon finding that there was no genuine issue of material fact and that the petitioner had not been entitled to a hearing in probable cause and had cited no case law to support the proposition that he had been entitled to such a hearing when the aggregate of the charges exposed him to a possible life sentence. The court also concluded that by pleading guilty to the charge of unlawful restraint in the first degree, the petitioner had waived any alleged defect in the failure to hold a probable cause hearing. The petitioner then filed a petition for certification to appeal, which the habeas court denied. This appeal followed.

The petitioner claims that the court abused its discretion in denying his petition for certification to appeal from the court’s rendering of summary judgment on his habeas petition, improperly concluding that he had not been entitled to a hearing in probable cause during his criminal proceedings. We do not agree.

“Faced with the habeas court’s denial of certification to appeal, a petitioner’s first burden is to demonstrate that the habeas court’s ruling constituted an abuse of discretion. ... If the petitioner succeeds in surmounting that hurdle, the petitioner must then demonstrate that the judgment of the habeas court should be reversed on its merits.” (Citations omitted.) Simms v. Warden, 230 Conn. 608, 612, 646 A.2d 126 (1994). “To prove an abuse of discretion, the petitioner must demonstrate that the [resolution of the underlying claim involves issues that] are debatable among jurists of reason; that a court could resolve the issues [in a different manner]; or that the questions are adequate to deserve encouragement to proceed further.” (Internal quotation marks omitted.) Falcon v. Commissioner of Correction, 98 Conn. App. 356, 359, 908 A.2d 1130, cert. denied, 280 Conn. 948, 912 A.2d 480 (2006).

Additionally, we note that “[o]ur review of a rendering of summary judgment is subject to a well established standard of review. [S]ummary judgment shall be rendered forthwith if the pleadings, affidavits and any other proof submitted show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. Such questions of law are subject to plenary appellate review.” (Internal quotation marks omitted.) Pouncey v. Commissioner of Correction, 84 Conn. App. 734, 737, 854 A.2d 1129 (2004).

The petitioner argues that pursuant to General Statutes § 54-46a (a), the court was required to hold a hearing in probable cause within sixty days of the state’s filing of the information and that the state and the court both agreed on October 7, 2003, that he was entitled to such a hearing, but the court accepted his guilty plea before holding the hearing. He further argues that the trial court’s failure to hold the hearing and to find probable cause requires that his conviction be vacated because the court lacked jurisdiction over his person and, therefore, was unable to accept his Alford plea. The respondent asserts that the habeas court did not abuse its discretion in denying certification to appeal because “[a]t no time during the trial court proceedings was the petitioner ever entitled to a hearing in probable cause, and the trial court consistently had jurisdiction over the petitioner and his criminal case because the petitioner never faced a single charge that exposed him to imprisonment for life.” Additionally, the respondent argues that by pleading guilty to a single substituted charge of unlawful restraint in the first degree, a crime punishable by a maximum of five years imprisonment, the petitioner waived any challenge based on personal jurisdiction. We agree with each argument advanced by the respondent.

First, because the petitioner entered an unconditional plea of guilty, we conclude that he waived his right to contest the trial court’s jurisdiction over his person.

“In State v. Mitchell, 200 Conn. 323, 332, 512 A.2d 140 (1986), [our Supreme Court] recognized that an adversarial probable cause hearing is a critical stage in the prosecution of a defendant and held that under the express terms of article first, § 8, of our state constitution as amended, [a valid probable cause hearing] is a jurisdictional prerequisite to continuing prosecution.” (Internal quotation marks omitted.) State v. Niblack, 220 Conn. 270, 275-76, 596 A.2d 407 (1991). Our Supreme Court’s reference to a jurisdictional prerequisite, however, pertained to jurisdiction over the person of the defendant and not to subject matter jurisdiction. Id.; State v. John, 210 Conn. 652, 665 n.8, 557 A.2d 93, cert. denied, 493 U.S. 824, 110 S. Ct. 84, 107 L. Ed. 2d 50 (1989); see also State v. Boyd, 214 Conn. 132, 136, 570 A.2d 1125 (1990), on appeal after remand, 221 Conn. 685, 607 A.2d 376, cert. denied, 506 U.S. 923, 113 S. Ct. 344, 121 L. Ed. 2d 259 (1992); State v. McPhail, 213 Conn. 161, 170, 567 A.2d 812 (1989).

“Personal jurisdiction may be established by consent of the accused or by waiver unless an objection is properly preserved. The accused waives his objection to personal jurisdiction by pleading not guilty and by going to trial.” State v. Ong, 30 Conn. App. 45, 49, 618 A.2d 583, cert. denied, 225 Conn. 909, 621 A.2d 290 (1993). Similarly, a “defendant’s unconditional guilty plea constitutes a waiver of his subsequent challenge to the trial court’s in personam jurisdiction.” State v. Niblack, supra, 220 Conn. 275.

“Although General Statutes § 54-46a (b) provides that an accused shall be afforded a probable cause hearing within sixty days of the filing of the information, § 54-46a (a) provides that the accused person may knowingly and voluntarily waive such preliminary hearing to determine probable cause. In Johnson v. Zerbst, 304 U.S. 458, 464, 58 S. Ct. 1019, 82 L. Ed. 1461 (1938), the United States Supreme Court articulated the classic definition of waiver, stating [that] a waiver is ordinarily an intentional relinquishment or abandonment of a known right or privilege. An effective waiver presupposes full knowledge of the right or privilege allegedly waived and some act done designedly or knowingly to relinquish it. . . . Moreover, the waiver must be accomplished with sufficient awareness of the relevant circumstances and likely consequences. . . . The existence of the waiver depends on the unique circumstances of each case . . . and the particular facts and conditions surrounding that case, including the background, experience and conduct of the accused. . . . The waiver, however, does not have to be express, but may be implied from the acts or conduct of the defendant.” (Citations omitted; internal quotation marks omitted.) State v. Ramos, 201 Conn. 598, 603-604, 519 A.2d 9 (1986).

Here, although the petitioner requested a probable cause hearing on October 7, 2003, demonstrating that he presupposed he had such a right, and the court agreed to hold such a hearing, the petitioner then decided to accept a plea bargain and pleaded guilty to a reduced charge that same day, before the date scheduled for the hearing in probable cause. By unconditionally accepting this plea deal and pleading guilty, the petitioner waived any challenge to the court’s jurisdiction over his person.

Furthermore, in this case, the state filed a substitute information, and the petitioner knowingly, voluntarily and intelligently pleaded guilty to a charge of unlawful restraint in the first degree, a class D felony, punishable by one to five years imprisonment. See General Statutes §§ 53a-95 and 53a-35a. Once the state filed the substituted information charging only a class D felony, the petitioner was not facing a life sentence for any individual charge or for any aggregated charges, and, therefore, he would not have been entitled to a hearing in probable cause even under his theory. We have determined previously that when the state amends an information and the defendant no longer faces the possibility of a life sentence, it is not improper for the trial court to proceed without affording the defendant a hearing in probable cause. See, e.g., State v. Nicholson, 71 Conn. App. 585, 596, 803 A.2d 391, cert. denied, 261 Conn. 941, 808 A.2d 1134 (2002), on appeal after remand, 83 Conn. App. 439, 850 A.2d 1089, cert. denied, 271 Conn. 906, 859 A.2d 565 (2004), cert. denied, 543 U.S. 1162, 125 S. Ct. 1327, 161 L. Ed. 2d 134 (2005).

Nevertheless, even if we were to assume that the petitioner did not waive his challenge to the court’s jurisdiction or that the amended information negated any need for a probable cause hearing, we still would conclude that the petitioner was not entitled to a probable cause hearing based on the aggregate of the maximum sentences for the charges contained in the initial information. See generally State v. Brown, 279 Conn. 493, 504, 903 A.2d 169 (2006) (defendant’s challenge to validity of probable cause hearing, despite waivability of personal jurisdiction defects, reviewed because variations in our case law could be interpreted to indicate that defects may implicate constitutional rights to probable cause hearing).

The petitioner argues that, pursuant to § 54-46a, which finds its origins in article first, § 8, of the Connecticut constitution, he was entitled to a probable cause hearing because the charges in the original information exposed him to a potential life sentence when considered in the aggregate. He likens his situation to the situation of a defendant facing a part B information. We also note that the petitioner does not analyze his claim in terms of a violation of our state constitution; rather, he briefs it as a violation of § 54-46a as interpreted by our case law. Accordingly, we consider any separate claim arising specifically under the state constitution inadequately briefed and look only to the statutory requirements of § 54-46a. See State v. Colon, 272 Conn. 106, 153 n. 19, 864 A.2d 666 (2004) (“ [analysis, rather than mere abstract assertion, is required in order to avoid abandoning an issue by failure to brief the issue properly” [internal quotation marks omitted]), cert. denied, 546 U.S. 848, 126 S. Ct. 102, 163 L. Ed. 2d 116 (2005).

In determining whether § 54-46a mandates that a defendant, who is exposed to a sentence totaling more than sixty years imprisonment when all charges are combined, is entitled to a hearing in probable cause, we employ our well settled principles of statutory construction. “Statutory interpretation is a matter of law over which this court’s review is plenary. ... In construing statutes, [o]ur fundamental objective is to ascertain and give effect to the apparent intent of the legislature. ... In seeking to discern that intent, we [first] look to the words of the statute itself .... [Although we recognize the fundamental principle that [penal] statutes are to be construed strictly, it is equally fundamental that the rule of strict construction does not require an interpretation which frustrates an evident legislative intent. . . . We begin our analysis with the words of the statute itself . . . [t]he plain language of . . . [which] offers insight as to the legislature’s intent.” (Citations omitted; internal quotation marks omitted.) State v. Gibbs, 254 Conn. 578, 601-602, 758 A.2d 327 (2000). “[U]nder General Statutes § l-2z, we cannot look beyond the text of the statutory language if that language, as applied to the facts of the case, is plain and unambiguous and does not yield a bizarre or unworkable result.” State v. Casiano, 282 Conn. 614, 620 n.12, 922 A.2d 1065 (2007). In the case at bar, there is no contention that the statutory language at issue is not plain and unambiguous as applied.

General Statutes § 54-46a provides in relevant part: “(a) No person charged by the state . . . shall be put to plea or held to trial for any crime punishable by death or life imprisonment unless the court at a preliminary hearing determines there is probable cause to believe that the offense charged has been committed and that the accused person has committed it. The accused person may knowingly and voluntarily waive such preliminary hearing to determine probable cause. . . .” (Emphasis added.)

The statute on its face contains the terms “any crime,” “the offense” and “it” when mandating that a defendant exposed to a punishment of life imprisonment or death be given a preliminary hearing in probable cause. There is nothing in the statute that refers to crimes, offenses or an aggregation of crimes or offenses, and the petitioner has referred us to no case law or other authority that has interpreted this statute to require a probable cause hearing when the aggregate of the charges exposes a defendant to sixty years imprisonment, but the crimes, when considered individually, expose a defendant to less than sixty years on each charge. We agree with the state’s argument that if we took the petitioner’s claim to its logical conclusion, any person charged with sixty class A misdemeanors, which potentially would expose that person to sixty years imprisonment, would be entitled to a hearing in probable cause on each and every misdemeanor charge. The petitioner has provided no authority for the proposition that this is what the legislature intended, nor does it seem a logical result. Because “it is also a fundamental principle of statutory construction that courts must interpret statutes using common sense and assuming that the legislature intended a reasonable and rational result; State v. Lutters, 270 Conn. 198, 218, 853 A.2d 434 (2004); we simply cannot agree with the petitioner’s proposed expansion of § 54-46a.

On the basis of the foregoing analysis, we conclude that the petitioner has not shown that the issues raised with regard to the court’s denial of his petition for a writ of habeas corpus are debatable among jurists of reason, that a court could resolve the issues in a different manner or that the questions raised deserve encouragement to proceed further. See Simms v. Warden, supra, 230 Conn. 616. Accordingly, the petitioner has failed to demonstrate that the court’s denial of his petition for certification to appeal constituted an abuse of discretion.

The appeal is dismissed.

In this opinion the other judges concurred.

       See North Carolina v. Alford, 400 U.S. 25, 91 S. Ct. 160, 27 L. Ed. 2d 162 (1970).

       General Statutes § 54-46a (a) provides: “No person charged by the state, who has not been indicted by a grand jury prior to May 26,1983, shall be put to plea or held to trial for any crime punishable by death or life imprisonment unless the court at a preliminary hearing determines there is probable cause to believe that the offense charged has been committed and that the accused person has committed it. The accused person may knowingly and voluntarily waive such preliminary hearing to determine probable cause.”

       Article first, § 8 (a) of the constitution of Connecticut, as amended by articles seventeen and twenty-nine of the amendments, provides in relevant part that “[n]o person shall be held to answer for any crime, punishable by death or life imprisonment, unless upon probable cause shown at a hearing in accordance with procedures prescribed by law . . . (Emphasis added.)


author: BORDEN, J.

text:
    RAJA ZABANEH ET AL. v. DAN BEARD ASSOCIATES, LLC
    (AC 28107)
    Bishop, McLachlan and Borden, Js.

      Argued October 16, 2007
    officially released January 1, 2008

      Ian Angus Cole, for the appellant (substitute plaintiff).

      William J. Wenzel, for the appellee (defendant).
   Opinion

BORDEN, J.

The substitute plaintiff, NSHE Leechburg, LLC, appeals from the judgment of the trial court rendered in favor of the defendant, Dan Beard Associates, LLC, after a trial to the court, denying the plaintiffs request for injunctive relief. The court determined that the plaintiff does not have express or prescriptive easements to use the defendant’s property and, therefore, denied the plaintiffs request for an injunction ordering the defendant to remove certain fences that the defendant had erected impeding the use of the alleged easements. The dispositive issue on appeal is whether the court properly determined that the defendant had demonstrated that the plaintiffs prior use of the defendant’s property was with the defendant’s permission. We affirm the judgment of the trial court.

Certain facts are undisputed. The plaintiff and the defendant are neighboring property owners. The plaintiff owns two buildings located on a single parcel of land at 60-64 Huntington Street in the Huntington section of Shelton. The property is bounded to the north and east by the defendant’s property. More specifically, the property is bounded to the north and east by a parking lot owned by the defendant and leased to Beechwood Market. The plaintiffs predecessors in title are Herbert Fitzpatrick and Gloria Fitzpatrick, who owned the property from the late 1940s to June, 1984; Franklyn E. Ackley, Jr., and Georgiann Ackley, who owned it from June, 1984, to July, 1996; and Raja Zabaneh and Loraine Zabaneh, who owned it until July, 2005, when they sold it to the plaintiff. The defendant’s immediate predecessor in title was Daniel Beard in his individual capacity. Behind the plaintiffs buildings is a parking area that lies wholly on the plaintiffs land, the east end of which borders on the defendant’s parking lot. A row of hedges separates the two parking areas, except for an opening wide enough to allow vehicular traffic to pass between them.

The plaintiff and its predecessors in title have driven through the defendant’s parking lot and through this accessway to enter and exit the plaintiffs rear parking lot for a period beginning when the Fitzpatricks owned the property. They also used a pedestrian walkway connecting the defendant’s parking lot to the north side of the plaintiffs land. The defendant erected a chain-link fence on the portion of its parking lot bordering the eastern boundary of the plaintiffs land in September, 2003, thereby blocking vehicular traffic from the defendant’s parking lot to the plaintiffs rear parking area.

The plaintiff initiated this action by filing an application for a temporary injunction and a complaint seeking a permanent injunction. The plaintiff requested the court to order “the defendant to restore the [plaintiffs] access to [its] parking lot by removing the fence it recently erected across the paved entrance to the parking lot and to refrain from interfering with the [plaintiffs] right-of-way.” Subsequent to the initiation of this action, the defendant built an additional chain-link fence along the plaintiffs northern border, thereby preventing use of the pedestrian walkway leading from the defendant’s parking lot to the plaintiffs land. In its final form, the plaintiffs amended complaint had three counts. In the first count, the plaintiff claimed a prescriptive easement passing over the defendant’s parking lot to access the rear parking area on the plaintiffs property. The complaint alleged that this accessway is the only vehicular access to the plaintiffs parking area. In its second count, the plaintiff claimed a prescriptive easement over the defendant’s parking lot that provides pedestrian access to the north side of the plaintiffs property. In its third count, the plaintiff alleged, in essence, that each of the previously claimed prescriptive easements were really easements expressly granted to the plaintiffs predecessors in title. The plaintiff also claimed that Beard had granted “a permanent right to use the parking lot located on the defendant’s property for additional parking for the owners, commercial tenants and customers of businesses located on the property known as 60-64 Huntington Street . . . .” The defendant denied the plaintiffs claims. Additionally, as to the first and second counts, the defendant raised as a special defense that any use of the defendant’s property was by permission. In its answer to the third count, the defendant again raised the special defense of permission and an additional special defense that any express easement that may have previously existed had been abandoned. The defendant also filed a counterclaim for declaratory relief, in which it requested the court to declare that the plaintiff holds “no right, title or interest to, in or upon any of the property owned by the defendant . . . .”

In its memorandum of decision, the court found, among other things, that the Fitzpatricks’ use of the defendant’s property had been by permission and that the Ackleys knew of this grant of permission. The court subsequently rendered judgment in favor of the defendant. After the court had rendered its decision, the defendant filed a motion for articulation. Among its requests, the defendant asked the court to clarify its finding that the use of the defendant’s property was with permission. Specifically, the defendant requested that “the court further clarify and articulate in the memorandum of decision that such finding of permission is an affirmative finding and sustains the special defense of permission.” The plaintiff objected to defendant’s motion for articulation. With respect to the defendant’s special defense, the plaintiff argued that the court “clearly” stated that any use was with permission and that this determination was “clear and unambiguous” in the memorandum of decision. The court denied the motion for articulation. This appeal followed.

“An injunction is not [ordered as of right] for an injury threatened or done to the estate or rights of a person; but the granting it must always rest in sound discretion, governed by the nature of the case.” Enfield Toll Bridge Co. v. Connecticut River Co., 7 Conn. 28, 49 (1828); see Tighe v. Berlin, 259 Conn. 83, 87, 788 A.2d 40 (2002). The rule in Connecticut is that a “prescriptive easement is established by proving an open, visible, continuous and uninterrupted use for fifteen years made under a claim of right. . . . The standard of proof that is required is a fair preponderance of the evidence.” (Internal quotation marks omitted.) Gallo-Mure v. Tomchik, 78 Conn. App. 699, 704-705, 829 A.2d 8 (2003); see also Chalker v. Dickinson, 1 Conn. 382, 384 (1815). The use must occur without license or permission. Gallo-Mure v. Tomchik, supra, 705. “Where . . . there is neither, on the one side, proof of an express license or permission from the landowner, nor, on the other, proof of an express claim of right by the person using the way, the character of the use, whether adverse or permissive, is left to be determined as an inference from the circumstances of the parties and the nature and character of the use.” Phillips v. Bonadies, 105 Conn. 722, 727, 136 A. 684 (1927). It is not the plaintiffs burden to establish that an otherwise apparently adverse use of the defendant’s property was conducted without the defendant’s permission or license. McManus v. Roggi, 78 Conn. App. 288, 296, 826 A.2d 1275 (2003). When the defendant raises permission by way of a special or affirmative defense, the burden of proof rests on the defendant; see Lumbermens Mutual Casualty Co. v. Scully, 3 Conn. App. 240, 245 n.5, 486 A.2d 1141 (1985); who must prove the special defense by a fair preponderance of the evidence. See 1 E. Stephenson, Connecticut Civil Procedure (3d Ed. 1997) § 83 (e), pp. 246-47.

The plaintiff claims that the court improperly found that any use that the plaintiff, and its predecessors in title, made of the defendant’s land was by permission, thereby defeating the plaintiffs claims for prescriptive easements. Specifically, the plaintiff argues that: (1) the court improperly required the plaintiff to disprove permission rather than require the defendant to prove that permission had been granted; (2) if the court had used the correct standard to evaluate the defendant’s special defense, the conclusion that the evidence supported a finding of permission was clearly erroneous; and (3) if the court properly found permission as between the defendant and the plaintiffs predecessors in interest, the Fitzpatricks, such permission was implicitly revoked when the Fitzpatricks sold the property. We disagree with the plaintiff and, therefore, affirm the court’s finding that any use that the plaintiff made of the defendant’s property was by permission.

I

The plaintiff first argues that the court improperly required that it, rather than the defendant, bear the burden of proof regarding the existence of permission. We are unpersuaded that the court improperly allocated the burden of proof on the question of permission to use the defendant’s property.

We note the following relevant portions of the court’s memorandum of decision. The court commenced its memorandum of decision by noting that the defendant had raised the special defense of permission. Before evaluating the testimony regarding permission, the court stated as a rule: “Using the [defendant’s] property for access which was obtained by permission granted by Beard or his successor cannot ripen into a prescriptive right, as such use under such conditions recognizes the rights of the servient estate rather [than] a use under any claim of right.” Regarding the evidence relating to the plaintiffs predecessors in title, the court stated: “The Fitzpatricks, who were longtime neighbors of Beard as prior owners of the [plaintiffs] property, recognized that their use of the [defendant’s] property was by permission .... Franklyn Ackley, by deposition dated January 3, 2005, testified that as a former owner of the [plaintiffs] property ... he understood that permission had been granted to access his [parking area] in the rear . . . and he never claimed any right to use it.” (Citations omitted.)

Despite having found that Beard had given the Fitzpa-tricks permission to use the defendant’s parking lot to access the rear parking area, the court did not refer to the defendant’s special defense in its concluding paragraph. Instead, after having conducted an analysis of the plaintiffs claim, which it intertwined with its analysis of the issue of permission, the court merely concluded that the plaintiff had not proven the elements of a prescriptive easement. The defendant seizes on this ambiguity in the memorandum of decision and essentially argues that this court should resolve the ambiguity in its favor.

“When a party contests the burden of proof applied by the trial court, the standard of review is de novo because the matter is a question of law.” (Internal quotation marks omitted.) Smith v. Muellner, 283 Conn. 510, 536, 932 A.2d 382 (2007) “To the extent that the trial court’s memorandum of decision may be viewed as ambiguous in regard to the assignment of the burden of proof ... we read an ambiguous record, in the absence of a motion for articulation, to support rather than to undermine the judgment.” (Internal quotation marks omitted.) Abington Ltd. Partnership v. Heublein, 257 Conn. 570, 586 n.29, 778 A.2d 885 (2001).

We agree that the memorandum of decision is ambiguous as to which party was assigned the burden of proof on the issue of the special defense of permission. We, however, resolve this ambiguity in a manner that supports, rather than undermines, the judgment. First, the plaintiff did not file a motion for articulation, and our Supreme Court has held that ambiguities, when the challenging party does not first file a motion for articulation, should be resolved in a manner that upholds the judgment. Second, the plaintiff took affirmative steps to thwart the defendant’s attempt to clarify any ambiguity regarding the finding of permission. After the court had rendered judgment, the defendant filed a motion requesting the court to articulate that it had determined that the defendant had proved the special defense of permission by a preponderance of the evidence. The plaintiff objected, stating that the judgment was “clear and unambiguous.” In light of these considerations, we are unpersuaded that the court required the plaintiff, rather than the defendant, to bear the burden of proof on the special defense of permissive use of the defendant’s parking lot.

II

The plaintiff next argues that the court’s finding that the Fitzpatricks had used the defendant’s property with permission was clearly erroneous. Specifically, the plaintiff argues that the court was unable, as a matter of law, to consider evidence that one of Beard’s tenants had given permission to the Fitzpatricks to pass over the defendant’s parking lot and that there was insufficient information from which the court could determine that Beard had given his permission directly to the Fitzpa-tricks. We disagree.

A finding of fact is clearly erroneous when there is no evidence in the record to support it or when, although there is some evidence to support it, the reviewing court is left with the definite and firm conviction that a mistake has been committed. Smith v. Muellner, supra, 283 Conn. 533.

In determining that the Fitzpatricks had received permission to use the defendant’s property, the court explicitly relied on a transcript of testimony that Gloria Fitzpatrick provided at a Shelton zoning board of appeals meeting. In 1978, Gloria Fitzpatrick testified before the board to support her request for a variance so that she could operate a thrift shop in one of the buildings on her property. One of the issues before the board was whether the property had sufficient parking. An excerpt of the testimony relied on by the court follows:

“[Board member Gerard] St. Laurent: . . . She has a letter from her . . .

“Mrs. Fitzpatrick: The Beechwood supermarket.

“Mr. St. Laurent: The Beechwood supermarket, her immediate neighbor.

“Mrs. Fitzpatrick: Because—you see . . . Beard owns the property, but Beechwood signs the lease

* * *

“Mrs. Fitzpatrick: [S]o, Beechwood just signed alease for twenty more years. So, they have control of the parking area in back of my house.”

St. Laurent then read the letter, which was handwritten by Beard’s tenant, Robert D. Scanlon, manager of Beechwood Market, the original of which was also before the court.

“To Whom It May Concern: As leasee of the property of . . . Beard . . . we grant permission to Herbert and Gloria Fitzpatrick to use the lower parking area to the rear of their house in conjunction with a proposed thrift shop. Likewise, we grant a right-of-way through the parking area, as a means of access to their property.”

The court also had before it the transcript of Scan-lon’s deposition. Scanlon testified that Beard stated that he, Scanlon, could grant permission to others to use the parking lot as long as such uses did not interfere with Beard’s ownership interest in the property.

The plaintiff asserts that to the extent that the court relied on permission from Scanlon, this reliance was misplaced because only an owner of record can grant a license to use land. We are not aware of any case from Connecticut supporting this assertion.

Scanlon had a long-term lease that provided him with, among other things, control over the parking lot in question. Further, Scanlon testified during his deposition that Beard had authorized him to grant permission to others to use the parking lot. See Stueck v. G. C. Murphy Co., 107 Conn. 656, 663-64, 142 A. 301 (1928) On these facts, we conclude that Scanlon was authorized to grant the Fitzpatricks permission to use the parking lot to access their rear parking area. Furthermore, on the basis of Scanlon’s letter and deposition and Gloria Fitzpatrick’s recorded testimony, we conclude that the court’s factual finding of permission was supported adequately by the evidence in the record.

Ill

Finally, the plaintiff argues that the court improperly determined that Scanlon’s permission to the Fitzpatricks was not implicitly revoked or repudiated when the Fitzpatricks sold their property to the Ackleys in 1984. Specifically, the plaintiff argues that the license was implicitly revoked because (1) the relationship between Beard and the Fitzpatricks was significantly different from the relationship between Beard and the Ackleys, and (2) the Ackleys’ use of the accessway was significantly outside the parameters of the original license. We are unpersuaded.

“[A] license in real property is a mere privilege to act on the land of another, which does not produce an interest in the property . . . .” (Internal quotation marks omitted.) Top of the Town, LLC v. Somers Sportsmen’s Assn., Inc., 69 Conn. App. 839, 845, 797 A.2d 18, cert. denied, 261 Conn. 916, 806 A.2d 1058 (2002). “A use that is initially permissive can become adverse only by express or implied revocation or repudiation of the license.” 1 Restatement (Third), Property, Servitudes §2.16, comment (f), p. 232 (2000). The existence of permission is a factual question; therefore, we must decide whether the court’s determination was clearly erroneous. See Lisiewski v. Seidel, 72 Conn. App. 861, 872, 806 A.2d 1121, cert. denied, 262 Conn. 921, 922, 812 A.2d 865 (2002).

The plaintiff first asserts that any license granted to the Fitzpatricks to use the accessway was implicitly revoked when the Fitzpatricks sold the land to the Ackleys. In support of its argument, the plaintiff relies on § 2.16 of the Restatement (Third) of Property, Servi-tudes. Comment (f) of that section notes that an initially permissive use can become adverse only if the license is revoked or repudiated. Id., § 2.16, comment (f), p. 232. The Restatement further provides that “[i]f the initial use is deemed permissive because of facts that overcome a presumption of adverse use ... a change in the facts may constitute an implied revocation.” Id. Illustration nineteen hypothesizes a situation in which two sisters own adjoining land, and one sister uses the property of the other to access her land. Id., illustration (19). The Restatement asserts that this use, absent additional facts, can justifiably be presumed to be permissive, as “implied by the closeness of their relationship . . . .’’Id. The illustration further provides, however, that when one of the properties is sold to a stranger, the change in the relationship between the owner and the user can justify a finding that the implied permission was implicitly revoked. Id.

The plaintiff asserts that the Fitzpatricks were close friends of Beard and that the Ackleys were strangers at the time they purchased the property, and it argues that the court should have determined that the permission was implicitly revoked upon sale. The defendant, on the other hand, argues, first, that the illustration applies only when the initial finding of permissive use is implied from special facts, and not to situations where, as here, the permission is expressly given, and, second, that it applies only when the original owners are family. We need not determine whether the defendant is correct that the reasoning of illustration nineteen does not apply, as a matter of law, to the facts at hand because we conclude that the plaintiff has not demonstrated that the relationship change was so great as to compel the court to presume the license was revoked.

The grant of the license to use the accessway was not given directly by Beard himself but, rather, by Scan-lon, his tenant. According to Scanlon, Beard had authorized him to allow others to use the property as long as their use did not interfere with Beard’s ownership. This indicates that the friendly relationship between Beard and the Fitzpatricks, as relied on by the plaintiffs, was not an overriding concern of the grant of the license, which Scanlon issued. Second, the license was not limited to the personal use of the Fitzpatricks and their social guests, as would likely be the case in a situation like that in the Restatement illustration but, rather, the license was granted for commercial use so that the Fitzpatricks could establish a thrift shop and have sufficient parking for their future customers. With regard to the grant of the license, then, the relevant relationship was one of neighboring commercial lessors. The Ackleys continued to rent the buildings to commercial tenants, and so their relationship to Beard was one of neighboring commercial lessors. Further, we consider that permission was, at least initially, expressly granted. Thus, this is not a situation in which the justification for the court’s initial presumption of permissive use evaporates upon sale of one of the properties, such as in illustration nineteen of the Restatement. We are unpersuaded that the change in the nature of the relationship was so significant that the court was legally obliged to find that the license was implicitly revoked upon sale.

Next, the defendant asserts that the license was implicitly repudiated by the Ackleys at the time of their purchase because the Ackleys used the accessway in a manner significantly different from the use contemplated by the license. We disagree.

Although there is some evidence that the volume of traffic using the accessway increased during the Ackleys’ time as landowners, the evidence does not compel the conclusion that the Ackleys, their customers or their tenants used the property in a way that was inconsistent with the permission that Scanlon had given to the Fitzpatricks or that reasonably would have put Beard on notice that he needed to reassert his ownership and control over the accessway in question. Beard had authorized Scanlon to grant others permission to use the commercial parking lot as long as that use did not interfere with Beard’s ownership interests. Scanlon, so authorized, granted a license to the Fitzpatricks to cross over the parking lot to provide access to their future customers and tenants to their rear parking area. The Ackleys used the accessway in a similar manner, to provide their customers and tenants access to their rear parking area. Thus, the Ackelys’ use of the accessway was not so repugnant to the initial grant as to compel the trial court to find that the Ackelys implicitly repudiated the license. Further, we note that the court found that Franklyn Ackley “understood that permission had been granted to access his property in the rear . . . .” Thus, this is not a case in which the circumstances regarding the initial use of the accessway had been forgotten by long usage. Even if Franklyn Ackley did not know the exact nature of the grant of permission, whether it was a grant of license only or of legal easement, he was aware that some form of permission had been granted.

For these reasons, we conclude that it was not clearly erroneous for the court to determine that the license initially granted to the Fitzpatricks survived the transfer of the alleged dominant estate to the Ackleys. Because the Fitzpatricks and the Ackleys used the defendant’s land pursuant to a license, and the Zabanehs and the plaintiff did not use the accessway for a period sufficient to justify the finding of a prescriptive easement, we are unpersuaded that the court improperly determined that the plaintiff failed to establish a prescriptive easement over the defendant’s land.

The plaintiff failed to demonstrate that it had a right, legal or equitable, to use the defendant’s property as alleged. Therefore, we conclude that the court did not abuse its equitable discretion in declining to enjoin the defendant from building and maintaining its fences.

The judgment is affirmed.

In this opinion the other judges concurred.

       The original plaintiffs, Raja Zabaneh and Loraine Zabaneh, sold their interest in the property at issue to NSHE Leechburg, LLC, subsequent to the initiation of this action. Thereafter, NSHE Leechburg, LLC, was substituted as the plaintiff. We therefore refer in this opinion to NSHE Leechburg, LLC, as the plaintiff.

       The court found in favor of the defendant on the plaintiff’s claim for express easements, and that issue is not before us in this appeal.

       Because of our resolution of the issue regarding permission, we do not reach the plaintiffs other claims, namely, that the court improperly required the plaintiff to prove its claim of prescriptive easement by a higher standard of proof than warranted, misconstrued the “claim of right” requirement in determining that the plaintiffs use was not adverse, determined that the asserted prescriptive easement was too indefinite to be recognized and determined that the use the plaintiff made of the defendant’s parking lot was similar to the use made by the general public. Furthermore, although the plaintiff asserts that it and previous property owners purchased the property and made improvements in reliance on their ability to use the accessway to the plaintiffs rear parking lot, the plaintiff does not raise the issue of easement by estoppel, and therefore we do not consider it.

       The court did not make a finding regarding when the defendant became the owner of its property. The defendant, in its posttrial brief, alleged that Beard owned the property during the relevant period until 2000, when ownership passed to the defendant.

       The parties agree that the defendant was legally required to prove its special defense by a fair preponderance of the evidence.

       The defendant, in addition to arguing that the court’s finding of permission as to the Fitzpatricks was supported by the evidence, also asserts that the evidence was sufficient for the court to have determined that the Ackleys’ use of the property was with express permission. The court was faced with conflicting testimony as to this point, however, and it did not make a finding that Beard had expressly granted the Ackleys permission, but only that Franklyn Ackley "understood that permission had been granted” to use the defendant’s parking lot.

       The plaintiff relies on a case from the Appellate Division of the New York Supreme Court, Duke v. Sommer, 205 App. Div. 2d 1009, 613 N.Y.S.2d 985 (1994). Dulce, however, is distinct from the present case. In Duke, the plaintiffs had purchased from Edith Bills property near, but not aborning, a lake. During the subsequent forty years, the plaintiffs had seasonally passed over the defendant’s property to reach the lake. One of the plaintiffs commented during a deposition that she recalled receiving “permission of some sort” from Edith Bills’ son, Kenneth Bills, to pass over the defendant’s property. The trial court relied on this testimony to deny the plaintiffs’ claim of a prescriptive easement. The Appellate Division reversed, noting that the Bills did not have an ownership interest in the defendant’s property. Although not explicitly stated, the import of this determination was that the Bills, who were the predecessors in title to the plaintiffs’ land, had no legal control over the defendant’s land.

       In its reply brief, the plaintiff explicitly disclaims any argument that the license was automatically revoked by the sale itself. Therefore, we need not determine whether the license given to the Fitzpatricks was transferrable. Cf. Prince v. Case, 10 Conn. 375 (1835); Top of the Town, LLC v. Somers Sportsmen’s Assn., Inc., 69 Conn. App. 839, 797 A.2d 18, cert. denied, 261 Conn. 916, 806 A.2d 1058 (2002).

       Section 2.16, comment (f), states in relevant part: “A use that is initially permissive can become adverse only by express or implied revocation or repudiation of the license. If the initial use is deemed permissive because of facts that overcome a presumption of adverse use ... a change in the facts may constitute an implied revocation. Repudiation can be implied by acts that are inconsistent with recognition of the licensor’s superior title.” (Citation omitted.) 1 Restatement (Third), supra, § 2.16, comment (f), p. 232.