author: GRUENDEL, J. DUPONT, J.,

text:
    JAMES DEPIETRO v. DEPARTMENT OF PUBLIC SAFETY
    (AC 31484)
    Gruendel, Beach and Dupont, Js.

      Argued October 12, 2010
    officially released February 8, 2011

      A. Paul Spinella, for the appellant (plaintiff).

      RonaldD. Williams, Jr., for the appellee (defendant).
   Opinion

GRUENDEL, J.

The plaintiff, James DePietro, appeals from the judgment of the trial court dismissing his action to recover monetary damages from the defendant, the department of public safety, for lack of subject matter jurisdiction. He claims that the court improperly concluded that the doctrine of sovereign immunity barred the action. We affirm the judgment of the trial court.

When reviewing a motion to dismiss, “we take the facts to be those alleged in the complaint, including those facts necessarily implied from the allegations, construing them in a manner most favorable to the pleader.” (Internal quotation marks omitted.) Prigge v. Ragaglia, 265 Conn. 338, 340, 828 A.2d 542 (2003). At all relevant times, the plaintiff was an officer with the Bridgeport police department assigned to the statewide firearms trafficking task force. As such, he acted as a special state police officer pursuant to General Statutes §§ 29-177 and 29-178. In the early morning of February 23, 2001, the plaintiff, acting within the scope of that employment and driving a vehicle owned by the defendant, sustained serious physical injuries in an automobile accident on Interstate 91 in Middletown that was caused by the negligence of Paul Albrycht in operating his motor vehicle.

The plaintiff subsequently obtained payment of the $25,000 insurance policy limit from Albrycht. He thereafter commenced an action for monetary damages against the defendant on January 7, 2003. In his complaint, the plaintiff averred, inter alia, that on February 23, 2001, he “was an insured under the self-insurance policy of the . . . state which policy provides for underinsured motorist benefits in the amount of [$1 million] per accident involving a [s]tate of Connecticut police officer.” He also alleged that the vehicle he operated on that date “was a motor vehicle insured for underinsured motorist benefits pursuant to said . . . [s]tate self-insured policy.”

More than one year later, on January 20, 2004, the plaintiff filed a claim with the claims commissioner (commissioner) pursuant to chapter 53 of the General Statutes, §§ 4-141 through 4-165. The record before us is devoid of any ruling thereon by the commissioner. It does not indicate if, when, why or how the commissioner acted on the plaintiffs claim. Whatever that ruling, the plaintiff concedes that he did not appeal from that determination to the General Assembly pursuant to General Statutes § 4-158.

On April 24, 2007, the defendant filed a motion to dismiss the plaintiffs action on the ground that it was barred by the doctrine of sovereign immunity, which the court granted on November 24, 2008. The plaintiff thereafter filed a motion for reconsideration which the court denied, and this appeal followed.

At the outset, we note that “[t]he doctrine of sovereign immunity implicates subject matter jurisdiction and is therefore a basis for granting a motion to dismiss. ... A determination regarding a trial court’s subject matter jurisdiction is a question of law. When . . . the trial court draws conclusions of law, our review is plenary and we must decide whether its conclusions are legally and logically correct and find support in the facts that appear in the record.” (Citation omitted; internal quotation marks omitted.) Martinez v. Dept, of Public Safety, 263 Conn. 74, 80-81, 818 A.2d 758 (2003).

Our courts “have long recognized the validity of the common-law principle that the state cannot be sued without its consent .... A sovereign is exempt from suit, not because of any formal conception or obsolete theory, but on the logical and practical ground that there can be no legal right as against the authority that makes the law on which the right depends.” (Citations omitted; internal quotation marks omitted.) Horton v. Meskill, 172 Conn. 615, 623, 376 A.2d 359 (1977). The doctrine of sovereign immunity “operates as a strong presumption in favor of the state’s immunity from liability or suit.” Envirotest Systems Corp. v. Commissioner of Motor Vehicles, 293 Conn. 382, 387-88, 978 A.2d 49 (2009). “When the legislature intends to waive immunity from suit or liability, it expresses that intent by using explicit statutory language.” Rivers v. New Britain, 288 Conn. 1, 12, 950 A.2d 1247 (2008). Accordingly, to circumvent the strong presumption of sovereign immunity in an action for monetary damages, the burden is on the plaintiff to “show that . . . the legislature, either expressly or by force of a necessary implication, statutorily waived the state’s sovereign immunity . . . .” (Internal quotation marks omitted.) Envirotest Systems Corp. v. Commissioner of Motor Vehicles, supra, 388. “Exceptions to [the] doctrine [of sovereign immunity] are few and narrowly construed under our jurisprudence”; C. R. Klewin Northeast, LLC v. Fleming, 284 Conn. 250,258,932 A.2d 1053 (2007); which is consistent with what our Supreme Court has termed its “longstanding adherence to the strict requirements for a waiver of such immunity.” Envirotest Systems Corp. v. Commissioner of Motor Vehicles, supra, 389 n.5. “In the absence of a statutory waiver of sovereign immunity, the plaintiff may not bring an action against the state for monetary damages without authorization from the claims commissioner to do so.” Columbia Air Services, Inc. v. Dept, of Transportation, 293 Conn. 342, 351, 977 A.2d 636 (2009).

I

Thus, we first consider whether the plaintiff has demonstrated that the legislature has statutorily waived the state’s sovereign immunity in the present case. Before the trial court, the plaintiff insisted that General Statutes § 52-556 authorized his action against the defendant. That statute “provides a cause of action against the state when any person is injured through the negligence of any state employee while operating a motor vehicle owned and insured by the state.” Babes v. Bennett, 247 Conn. 256, 260, 721 A.2d 511 (1998). Because the plaintiff was injur ed by the negligence of a private citizen and not by a state official operating a motor vehicle owned and insured by the state, the court properly found that statute inapplicable. The plaintiff wisely has not advanced § 52-556 as the basis for his claim of statutory waiver in this appeal. Indeed, the plaintiff has identified no statute whatsoever indicating that the legislature has waived sovereign immunity with respect to his claim for underinsured motorist benefits.

It is well established that “a litigant that seeks to overcome the presumption of sovereign immunity” bears the burden of demonstrating that the legislature has authorized a particular action for money damages against the state. C. R. Klewin Northeast, LLC v. Fleming, supra, 284 Conn. 258; see also Envirotest Systems Corp. v. Commissioner of Motor Vehicles, supra, 293 Conn. 388; DaimlerChrysler Corp. v. Law, 284 Conn. 701, 711-12, 937 A.2d 675 (2007); Miller v. Egan, 265 Conn. 301, 314, 828 A.2d 549 (2003). The plaintiff in this appeal does not claim, never mind provide any substantive analysis or discussion of applicable precedent; see Connecticut Light & Power Co. v. Dept, of Public Utility Control, 266 Conn. 108, 120, 830 A.2d 1121 (2003); that § 29-178 constitutes a statutory waiver of sovereign immunity.

The dissent nevertheless champions such a claim, concluding that § 29-178 constitutes a statutory waiver of sovereign immunity, thereby permitting the plaintiff to maintain the present action. For two distinct reasons, we disagree.

First and foremost, we repeat that the burden is on the plaintiff to establish a statutory waiver of sovereign immunity. The precedent of our Supreme Court instructs that “a litigant that seeks to overcome the presumption of sovereign immunity” must identify and demonstrate a statutory waiver; C. R. Klewin Northeast, LLC v. Fleming, supra, 284 Conn. 258; it does not instruct that a reviewing appellate body sua sponte may do so. By sua sponte raising the issue of § 29-178 as a basis for statutory waiver and proceeding to a determination on that basis, the dissent disregards that precedent. In so doing, it contravenes the “strong presumption in favor of the state’s immunity from liability or suit.” Envirotest Systems Corp. v. Commissioner of Motor Vehicles, supra, 293 Conn. 387-88.

Our Supreme Court repeatedly has admonished this court for “[reaching] out [to] decide a case before it on a basis that the parties never have raised or briefed.” Sabrowski v. Sabrowski, 282 Conn. 556, 560, 923 A.2d 686, aff'd after remand, 105 Conn. App. 49, 935 A.2d 1037 (2007); see also Lynch v. Granby Holdings, Inc., 230 Conn. 95, 97-99, 644 A.2d 325 (1994) (Appellate Court improperly reached issue never raised by parties); State v. Rosario, 81 Conn. App. 621, 640, 841 A.2d 254 (Schaller, J., concurring) (“Our Supreme Court does not approve of this court reaching and deciding issues that were not raised or briefed by the parties. . . . We should not, and indeed are without authority, to render advisory opinions.” [Citations omitted.]), cert. denied, 268 Conn. 923, 848 A.2d 473 (2004). Only weeks ago, in reversing a judgment of this court, our Supreme Court in Sequenzia v. Guerrieri Masonry, Inc., 298 Conn. 816,821-22,9 A.3d 322 (2010), concluded that this court “should have decided the appeal based only on the issues properly brought before it” and rejected the contention that “the Appellate Court has the discretion to decide a case on any basis, regardless of whether that claim was raised by the parties.” Because the burden rests exclusively with the plaintiff to demonstrate a statutoiy waiver on the part of the legislature, logic dictates that the “strong presumption in favor of the state’s immunity from liability or suit”; Envirotest Systems Corp. v. Commissioner of Motor Vehicles, supra, 293 Conn. 387-88; cannot be overcome by a plaintiff who fails to identify or to analyze the statutory provision allegedly waiving sovereign immunity. Principles of judicial restraint and binding precedent preclude this court from sua sponte advancing a statutory analysis on the plaintiffs behalf.

In addition, we disagree with the dissent’s determination that the plaintiffs action is authorized by § 29-178. Assuming, arguendo, that “coverage pursuant to the defendant’s underinsured motorist insurance plan is ... a privilege afforded to persons such as the plaintiff’ under § 29-178, as the dissent concludes, an analytical gap remains. The defendant maintains that the legislature has not waived sovereign immunity with respect to state police officers, special or otherwise. Its position is that no state police officer in Connecticut is statutorily authorized to commence an action for monetary damages against the state to recover underin-sured motorist benefits.

In the face of that assertion of sovereign immunity and the “strong presumption in favor of the state’s immunity from liability or suit”; Envirotest Systems Corp. v. Commissioner of Motor Vehicles, supra, 293 Conn. 387-88; it is incumbent on the party challenging that immunity to demonstrate that “the legislature, either expressly or by force of a necessary implication, statutorily waived the state’s sovereign immunity . . . .” (Internal quotation marks omitted.) Id., 388. The dissent identifies no statute, nor does it provide any statutory analysis, to support the proposition that a “regular state police officer would be entitled to pursue such a suit.” Absent such a showing, the presumption of immunity must apply. We, therefore, conclude that neither the plaintiff nor the dissent has demonstrated a statutory waiver of sovereign immunity authorizing the plaintiffs action for monetary damages.

II

Because the plaintiff has not demonstrated a statutory waiver, he was required to obtain authorization from the commissioner prior to commencing an action in the Superior Court. Miller v. Egan, supra, 265 Conn. 317. That he did not do. Instead, he initiated such a claim more than one year after the commencement of the present action. That procedural impropriety, although not insignificant, pales in comparison to the larger defect plaguing this appeal, which is the failure of the plaintiff to provide this court with any record of the commissioner’s determination on his claim. It is axiomatic that the appellant must provide this court with an adequate record for review. Practice Book § 61-10 provides that “[i]t is the responsibility of the appellant to provide an adequate record for review. The appellant shall determine whether the entire trial court record is complete, correct and otherwise perfected for presentation on appeal. For purposes of this section, the term ‘record’ is not limited to its meaning pursuant to [Practice Book §] 63-4 (a) (2), but includes all trial court decisions, documents and exhibits necessary and appropriate for appellate review of any claimed impropriety.” Accord Brown & Brown, Inc. v. Blumenthal, 288 Conn. 646, 655 n.6, 954 A.2d 816 (2008) (appellant must ensure that record is perfected for presentation of appeal); Narumanchi v. DeStefano, 89 Conn. App. 807, 815, 875 A.2d 71 (2005) (appellant must furnish adequate record because “[speculation and conjecture have no place in appellate review”). Without a record indicating that the commissioner granted the plaintiff authorization to maintain his action for monetary damages against the defendant, we cannot say that the court improperly dismissed the matter for lack of subject matter jurisdiction.

The plaintiff devotes substantial discussion in his appellate brief to the collective bargaining agreement (agreement) between the state and the state police union. He argues that because he filed a grievance thereunder and allegedly has exhausted the administrative remedies set forth therein, the court has jurisdiction over his claim. He is mistaken. First and foremost, the plaintiff filed that grievance on December 23, 2008, almost six years after the commencement of this action and one month after the court dismissed the action for lack of subject matter jurisdiction. “It is well settled under both federal and state law that, before resort to the courts is allowed, an employee must at least attempt to exhaust exclusive grievance and arbitration procedures, such as those contained in the collective bargaining agreement between the defendant and the plaintiffs’ union.” Daley v. Hartford, 215 Conn. 14, 23, 574 A.2d 194, cert. denied, 498 U.S. 982, 111 S. Ct. 513, 112 L. Ed. 2d 525 (1990). Second, the agreement does not purport to waive the sovereign immunity of the state; rather, it contains a grievance procedure by which a party may pursue “an alleged violation or a dispute involving the application or interpretation of a specific provision of [the] [agreement” that does not include recourse to our courts, save for limited judicial review of an arbitration award pursuant to General Statutes § 52-418. The agreement does not permit a party to institute an action for monetary damages against the state in the Superior Court, nor does the plaintiff advance such an argument in this appeal. As a result, the plaintiffs reliance on the agreement as a basis for subject matter jurisdiction is misplaced.

To survive a motion to dismiss his action for monetary damages against the defendant, the allegations of the plaintiffs complaint, construed in their most favorable light, needed to establish either that the legislature had statutorily waived the state’s sovereign immunity or that the commissioner had authorized the action. See Miller v. Egan, supra, 265 Conn. 316-17. The plaintiffs pleading establishes neither. Accordingly, the court properly determined that sovereign immunity barred the plaintiffs action for monetary damages.

As far as we can tell, this case is the first that concerns the unique status of special state police officers and the privileges and benefits extended to them under Connecticut law. The record before us indicates that the plaintiff sustained life-altering injuries, including a permanent partial impairment of his spine, while acting within the scope of his employment as a special state police officer pursuant to §§ 29-177 and 29-178, and while driving a vehicle owned by the defendant, due to the negligence of an underinsured third party. The record further reveals that the underinsured motorist policy in effect at that time provided coverage to the defendant in the amount of $1 million per accident. Paragraph C of that policy, titled “Who is An Insured,” lists “state police officers employed by the [defendant]” as the insured. In its April 28,2004 motion to dismiss the plaintiffs claim before the commissioner, the attorney general, on behalf of the defendant, affirmed that “[the plaintiff] is a Connecticut [s]tate [p]olice [t]rooper assigned to the [statewide [f]irearms [t]ask [f]orce and employed by the [defendant].” On its face, the policy thus appears to provide underinsured motorist coverage to the plaintiff.

At oral argument, counsel for the defendant stated that he has handled similar claims on behalf of the defendant for “close to twenty years.” He explained that although the doctrine of sovereign immunity bars such suits, the state declines to assert its sovereign immunity “on an individual basis” in the face of a bona fide claim for underinsured motorist benefits by a member of the state police union. As he put it, “the state in its benevolence does not raise the issue of sovereign immunity” when a member of the state police union entitled to underinsured motorist benefits under the agreement commences suit in the Superior Court to recover monetary damages. Counsel nevertheless articulated his position that, because the plaintiff was not a member of the state police union, the state, as is its prerogative, elected not to do so in the present case. In enacting § 29-178, the General Assembly expressly extended to special state police officers “the same powers, duties, privileges and immunities as are conferred upon [them as] state police officerfs].” General Statutes § 29-178. The procedural posture of this case precludes consideration of the question of whether underinsured motorist coverage constitutes a privilege, as that term is used in § 29-178. We draw attention to this issue because that statute has not previously been subject to judicial scrutiny and because the facts alleged in the complaint, construed in a manner most favorable to the pleader, suggest that the plaintiffs service on the statewide firearms trafficking task force may have qualified him as an insured under the defendant’s underinsured motorist policy. At the same time, § 29-177 (b) provides that “[e]ach municipality shall be responsible for the full payment of the compensation of personnel temporarily assigned to the state-wide narcotics task force and such salary shall be payable to such assigned personnel while on duty with said task force.” General Statutes § 29-177 (b). As with any question involving statutory waiver of sovereign immunity, it remains the province of our General Assembly to define the contours of claims involving special state police officers such as the one presented in this appeal.

The judgment is affirmed.

In this opinion BEACH, J., concurred.

DUPONT, J.,

dissenting. The plaintiff, James DePie-tro, appeals from the judgment of the trial court dismissing his action to recover monetary damages from the defendant, the department of public safety. The defendant’s motion to dismiss was premised on the application of the doctrine of sovereign immunity, which the defendant claimed barred the plaintiffs claim for damages because the doctrine divested the court of subject matter jurisdiction. The trial court agreed. The basic issue to be decided is whether the plaintiff, a member of the Bridgeport police department who was assigned to the defendant’s statewide firearms trafficking task force (task force), could, pursuant to General Statutes §§ 29-177 and 29-178, bring an action for monetary damages against the defendant. I would conclude that the plaintiff could sue the defendant for the underin-sured motorist benefits to which I believe he is entitled by virtue of § 29-178 and that the defendant waived its sovereign immunity against such claims by the passage of that legislation. Accordingly, I would reverse the judgment of the trial court.

The genesis of the plaintiffs action is a motor vehicle accident in which the plaintiff, while driving a state owned vehicle and while acting as a special state police officer carrying out the duties of the defendant’s task force, and acting within the scope of that employment, was injured seriously due to the negligence of the driver of another vehicle, a private citizen who was underin-sured. The plaintiff alleged in his complaint that the defendant “was self-insured for underinsured motorists benefits coverage pursuant to [General Statutes] § 38a-371” and that he “was an insured under the self-insurance policy of the . . . [s]tate, which policy provides for underinsured motorist benefits in the amount of [$1 million] per accident involving a [s]tate of Connecticut police officer.” He also alleged that the vehicle he operated on that date “was a motor vehicle insured for underinsured motorist benefits pursuant to said . . . [s]tate self-insured policy.”

In its answer, the defendant admitted that, at the time of the accident, the plaintiff was operating a state owned vehicle as a state employee acting within the scope of his employment with the defendant’s task force, the defendant was self-insured for underinsured motorist benefits coverage pursuant to § 38a-371, and the plaintiff was an insured for underinsured motorist benefits through the defendant by virtue of his status as a special state police officer assigned to the defendant’s task force. The defendant’s admissions in its answer are judicial admissions and relieve the plaintiff of the burden of proving by a preponderance of the evidence the factual allegations admitted. See Reese v. First Connecticut Small Business Investment Co., 182 Conn. 326, 329,438 A.2d 99 (1980). Such admissions are conclusive upon the defendant in this case. See Webster Bank v. Zak, 259 Conn. 766, 777, 792 A.2d 66 (2002).

The majority opinion concludes that, although the state’s insurance policy appears to provide underin-sured motorist coverage to the plaintiff, this court need not decide if § 29-178 applies to the plaintiff. As is noted by the majority opinion, no case interpreting whether the words “powers, duties, privileges and immunities,” as used in that statute, include persons such as the plaintiff who were injured while assigned to the defendant’s task force, has yet been decided. The majority concludes that because the allegations of the plaintiffs complaint do not establish either that the legislature had statutorily waived the state’s sovereign immunity or that the claims commissioner had authorized the action, the court properly determined that sovereign immunity deprived the court of subject matter jurisdiction and, therefore, barred the plaintiff’s action for money damages. I conclude that § 29-178 grants persons such as the plaintiff the same powers and privileges as are conferred on a state police officer, that a regular state police officer would receive underinsured benefits under the state’s policy and that the defendant’s motion to dismiss should not have been granted. The defendant admits that the plaintiff was insured for underinsured motorist benefits through the state by virtue of his status as a special state police officer assigned to the defendant’s task force.

The state obtained its insurance policy pursuant to the collective bargaining agreement between the state and the state police union and pursuant to § 38a-371. Paragraph C of the policy is entitled “Who is An Insured” and lists state police officers employed by the defendant as insured. If an insured includes a state police officer, as is stated in paragraph C, because § 29-178 treats a special state police officer as a regular state police officer, the plaintiff is covered as an insured under the policy. No mention is made in § 29-178 that members of a municipal force assigned temporarily to the state police must be members of the state police union. In fact, the collective bargaining agreement between the state and the state police union specifically states in art. VI, § 1, that “[d]uring the life of this Agreement, an employee retains the freedom of choice whether or not to become or remain a member of the Union which has been designated as the exclusive bargaining agent.” I conclude that whether the plaintiff is a member of the union is irrelevant with regard to whether he is entitled to coverage under the state’s insurance policy. It is undisputed by the defendant that the plaintiff, by virtue of his status as a member of the task force while acting within the scope of his authority, was insured for under-insured motorist benefits through the state. Section 29-178 provides in relevant part that “[a]ny municipal police officer, while assigned to duty with the task force and working at the direction of the [defendant] . . . shall, when acting within the scope of his authority, have the same powers, duties, privileges and immunities as are conferred upon him as a state police officer.” As discussed herein, I conclude that coverage by such underinsured motorist insurance is a privilege that inures to the plaintiff by virtue of his status as a member of the task force.

Our plenary review requires us to decide if the sovereign immunity doctrine prevents the plaintiff from suing the defendant without authorization from the claims commissioner, and our answer depends on whether statutory authority for the claim exists. It is necessary, therefore, to know which statute authorizes the plaintiffs action. In the plaintiffs complaint, he alleged only that the defendant was self-insured for underinsured motorist benefits pursuant to § 38a-371 and the relevant facts to support his claim that he is entitled to those benefits pursuant to § 29-178. As discussed herein, I do not believe that the plaintiff must cite a particular statute in order to provide this court with subject matter jurisdiction as long as the court can establish such jurisdiction.

The primary question for resolution is whether the plaintiff was required to obtain permission from the claims commissioner before instituting this action for money damages against the defendant. In order to circumvent the doctrine of sovereign immunity, a plaintiff must show that the legislature, either expressly, or by force of necessary implication, statutorily waived that immunity. Miller v. Egan, 265 Conn. 301, 314, 828 A.2d 549 (2003). The state cannot be sued for money damages without its consent except as permitted by the legislature. Id., 317. Thus, the plaintiff, in order to negate the doctrine of sovereign immunity, must either show an authorization by the claims commissioner or a statutory exemption allowing such a claim against the state. I conclude that the claims commissioner lacked subject matter jurisdiction to hear the defendant’s claim.

The standard procedure for making claims for money damages against the state is through a petition to the claims commissioner to waive sovereign immunity. See General Statutes §§ 4-141 through 4-165. General Statutes § 4-142 provides in relevant part that the commissioner “shall hear and determine all claims against the state except . . . claims upon which suit otherwise is authorized by law including suits to recover similar relief arising from the same set of facts . . . .” (Emphasis added.) Our Supreme Court has explained that “in order for statutory language to give rise to a necessary implication that the state has waived its sovereign immunity, [t]he probability . . . must be apparent, and not a mere matter of conjecture; but . . . necessarily such that from the words employed an intention to the contrary cannot be supposed. ... In other words, in order for a court to conclude that a statute waives sovereign immunity by force of necessary implication, it is not sufficient that the claimed waiver reasonably may be implied from the statutory language. It must, by logical necessity, be the only possible interpretation of the language.” (Citation omitted; internal quotation marks omitted.) Envirotest Systems Corp. v. Commissioner of Motor Vehicles, 293 Conn. 382, 388-90, 978 A.2d 49 (2009).

Section 29-178 provides that an officer such as the plaintiff, who was assigned to duty with the task force and working at the direction of the defendant and acting within the scope of his authority, shall “have the same powers, duties, privileges and immunities as are conferred upon him as a state police officer.” A privilege, as defined by Ballentine’s Law Dictionary (3d Ed. 1969), is “[a]n advantage held by way of . . . permission, not possessed by others.” See also Hartford v. Powers, 183 Conn. 76, 83 n.3, 438 A.2d 824 (1981) (“Webster’s Third New International Dictionary defines privilege as ‘a right or immunity granted as a peculiar benefit, advantage, or favor; special enjoyment of a good or exemption from an evil or burden; a peculiar or personal advantage or right esp. when enjoyed in derogation of common right; prerogative’ ”). I would conclude that coverage pursuant to the defendant’s underinsured motorist insurance plan is such a privilege afforded to persons such as the plaintiff.

The defendant admitted in its answer that the plaintiff was an insured for underinsured motorist benefits because of his status as a special state police officer assigned to the task force and that the state was self-insured for underinsured motorist benefits coverage pursuant to § 38a-371. As noted by the majority, on the face of the underinsured motorist policy at issue, the policy appears to provide coverage to the plaintiff. The defendant has impliedly conceded that a regular state police officer would be entitled to pursue such an action. The defendant contends that the state could, but in its “benevolence” could choose not to, raise the issue of sovereign immunity when a state police officer commences an action in the Superior Court to recover underinsured motorist benefits and admitted that on one occasion the state paid such a claim brought by a municipal police officer assigned to a state police task force. The policy of self insurance was provided because of a collective bargaining agreement between the state and the state police union and admittedly covers regular police officers. If a regular state police officer can pursue an action in Superior Court to recover underinsured motorist benefits, it defies both logic and the plain meaning of § 29-178 to conclude that the plaintiff cannot do so as well. I would hold that § 29-178 gave the plaintiff a statutory right to sue the state because a state police officer had the same right, which waived the sovereign immunity of the state that would otherwise exist.

In this case, the plaintiff’s action is otherwise authorized by law by the force of necessary implication by § 29-178 because a regular state police officer would be covered by the policy. Whether the plaintiff provided an adequate record of the claims commissioner’s ruling is irrelevant because the plaintiff did not have to seek the commissioner’s permission to sue the state. Although I would conclude that § 29-178 contains a statutory exception to the doctrine of sovereign immunity, a subsidiary question is whether a reviewing court may so conclude when the plaintiff has not cited a particular statute that he claims waives sovereign immunity.

The question of subject matter jurisdiction addresses the basic competency of the court and can be raised at any time by a court sua sponte. A reviewing court has a duty to dismiss, even on its own initiative, any appeal that it lacks jurisdiction to hear. Webster Bank v. Zak, supra, 259 Conn. 774. Thus, even if the plaintiff has not identified a particular statute that he claims waives sovereign immunity, we have a duty to determine whether such statutory authority exists because without the statutory authority, or approval of the claims commissioner, we would lack subject matter jurisdiction. The reviewing court is not an officious intermeddler or an advocate for either party when it determines its jurisdiction. Rather, it is engaging in a necessary quest to establish its power, and the trial court’s power, to determine the issue.

Unlike the majority, I would therefore conclude that the plaintiff, as a special state police officer injured while acting in the scope of that employment and driving a state owned vehicle, was covered by the self-insured defendant’s underinsured motorist coverage and that he comes within the purview of § 29-178. That statute gives persons such as the plaintiff the same powers, duties, privileges and immunities as are conferred on state police officers, including the right to pursue this action. The defendant admitted in its answer that the plaintiff was an insured entitled to underinsured motorist benefits because of his status on the task force. I submit that the plaintiff did not need to file his claim with the claims commissioner because the claims commissioner did not have jurisdiction to consider the plaintiffs claim. The statutory authority in § 29-178 allows the plaintiff to bring a direct action for monetary damages against the state in the Superior Court. On the facts of this case, the doctrine of sovereign immunity did not deprive the court of subject matter jurisdiction, and the defendant’s motion to dismiss the plaintiffs claim should have been denied. Therefore, I would reverse the court’s judgment dismissing the plaintiffs action and remand the case for further proceedings.

       General Statutes § 29-177 provides: “(a) The Commissioner of Public Safety may from time to time select such number of police personnel of any municipality of the state to act temporarily as special state policemen to carry out the duties of the task force as he deems necessary. Such policemen shall be appointed from a list of names of persons recommended to the State-Wide Narcotics Task Force Policy Board by the chiefs of police of the municipalities and approved by said board.
      “(b) Each municipality shall be responsible for the full payment of the compensation of personnel temporarily assigned to the state-wide narcotics task force and such salary shall be payable to such assigned personnel while on duty with said task force.
      “(c) For purposes of indemnification of such personnel and its municipalities against any losses, damages or liabilities arising out of the service and activities of the task force, personnel while assigned to, and performing the duties of, the task force shall be deemed to be acting as employees of the state.”
      General Statutes § 29-178 provides: “Any municipal police officer, while assigned to duty with the task force and working at the direction of the Commissioner of Public Safety or his designee, shall, when acting within the scope of his authority, have the same powers, duties, privileges and immunities as are conferred upon him as a state police officer.”

       The plaintiffs position is somewhat understandable in light of the attestation of the defendant before the commissioner. In its April 28, 2004 motion to dismiss the plaintiffs claim before the commissioner, the defendant maintained that “§ 52-556 provides a direct [cause of] action against the state to recover damages for injuries caused by motor vehicles owned by the state. Therefore, the commissioner lacks subject matter jurisdiction to hear this claim because a direct cause of action is authorized by § 52-556 and the [plaintiffs] claim is excepted by the provisions of General Statutes § 4-142 (2).” The defendant subsequently represented to the trial court, in urging it to dismiss the present action, that § 52-556 was inapplicable to the plaintiffs claim. Our Supreme Court recently recognized that “[¡Judicial estoppel prevents a party in a legal proceeding from taking a position contrary to a position the party has taken in an earlier proceeding. . . . [judicial estoppel serves interests different from those served by equitable estoppel, which is designed to ensure fairness in the relationship between parties. . . . The courts invoke judicial estoppel as a means to preserve the sanctity of the oath or to protect judicial integrity by avoiding the risk of inconsistent results in two proceedings. . . . Typically, judicial estoppel will apply if: (1) a party’s later position is clearly inconsistent with its earlier position; (2) the party’s former position has been adopted in some way by the court in the earlier proceeding; and (3) the party asserting the two positions would derive an unfair advantage against the party seeking estoppel. . . . We further limit judicial estoppel to situations where the risk of inconsistent results with its impact on judicial integrity is certain.” (Citations omitted; internal quotation marks omitted.) Assn. Resources, Inc. v. Wall, 298 Conn. 145, 169-70, 2 A.3d 873 (2010). In light of our conclusion that the court lacked subject matter jurisdiction, we do not address the issue of judicial estoppel. The defendant’s inconsistent representations to the commissioner and the trial court are troubling nonetheless.

       We repeat that sovereign immunity always implicates subject matter jurisdiction. Martinez v. Dept, of Public Safety, supra, 263 Conn. 80. Although, as a general matter, the issue of subject matter jurisdiction may be raised at any time, including sua sponte invocation by a reviewing court; DeCorso v. Calderaro, 118 Conn. App. 617, 623 n.11, 985 A.2d 349 (2009), cert. denied, 295 Conn. 919, 991 A.2d 564 (2010); the precedent of our Supreme Court also instructs that because the doctrine of sovereign immunity “operates as a strong presumption in favor of the state’s immunity from liability or suit,” the burden is on the plaintiff in an action against the state for monetary damages to establish that “the legislature, either expressly or by force of a necessary implication, statutorily waived the state’s sovereign immunity . . . .” (Internal quotation marks omitted.) Envirotest Systems Corp. v. Commissioner of Motar Vehicles, supra, 293 Conn. 387-88; see also C. R. Klewin Northeast, LLC v. Fleming, supra, 284 Conn. 258 (“a litigant that seeks to overcome the presumption of sovereign immunity” must demonstrate statutory waiver). Leaving that burden to a plaintiff is entirely consistent with what our Supreme Court has termed its “long-standing adherence to the strict requirements for a waiver of such immunity.” Envirotest Systems Corp. v. Commissioner of Motor Vehicles, supra, 389 n.5.
      Absent from the dissenting opinion is any recognition of the strong presumption in favor of the state’s immunity from liability or suit and the strict requirements for waiver thereof. Rather, the dissent appears to apply the more general precept that reviewing courts should indulge every presumption in favor of the court’s subject matter jurisdiction. See, e.g., New England Pipe Corp. v. Northeast Corridor Foundation, 271 Conn. 329, 335, 857 A.2d 348 (2004); Miko v. Commission on Human Rights & Opportunities, 220 Conn. 192, 198, 596 A.2d 396 (1991). If the dissent is correct that, in cases in which a plaintiff seeks to establish a statutory waiver of sovereign immunity but has provided no statutory basis whatsoever, a reviewing court nevertheless sua sponte may articulate the statutory basis on the plaintiffs behalf and indulge every presumption in favor of that basis in resolving the jurisdictional question, then the precedent of our Supreme Court recognizing the strong presumption in favor of the state’s immunity from liability or suit and the corresponding responsibility of the plaintiff to demonstrate a statutory waiver is but superfluous rhetoric. Apart from our disagreement with that position, we must adhere to the bedrock principle that, as an intermediate appellate body, we are not at liberty to discard, modify, reconsider, reevaluate or overrule the precedent of our Supreme Court. See Hartford Steam Boiler Inspection & Ins. Co. v. Underwriters at Lloyd’s & Cos. Collective, 121 Conn. App. 31, 48-49, 994 A.2d 262, cert. denied, 297 Conn. 918, 996 A.2d 277 (2010), and case law cited therein.

       The dissent states that the defendant has conceded that a regular state police officer would be entitled to pursue a suit for underinsured motorist benefits against the state. To the contrary, the transcript of oral argument before this court indicates that the defendant adamantly maintained that the doctrine of sovereign immunity barred any and all such actions, but that the state, “in its benevolence,” declines to assert that defense “on an individual basis.” In neither its appellate brief nor its oral argument did the defendant make the concession attributed to it by the dissent.

       In representing that the majority “argues that . . . the plaintiff has not established that a regular police officer would be entitled to recover monetary damages against the state under the same factual conditions that exist in this case”; the dissent misstates our position. To be clear, we hold that the plaintiff has not established that the legislature has statutorily waived sovereign immunity so as to permit a regular police officer to commence suit against the state.

       Within the exhaustion of administrative remedies discussion in his appellate brief, the plaintiff asserts that the dismissal of his claim “for lack of subject matter jurisdiction permitted the state of Connecticut to treat similarly situated people differently, in violation of the equal protection clause of the fourteenth amendment to the United States constitution.” His complaint did not include an equal protection claim and that claim was not presented to, or decided by, the trial court. In addition, he has not sought review pursuant to State v. Golding, 213 Conn. 233, 239-40, 567 A.2d 823 (1989). In any event, the doctrine of sovereign immunity deprives this court of subject matter jurisdiction to consider that claim.

       The record includes the August 11, 2004 diagnosis of Eric M. Garver, an orthopedic surgeon. Garver stated that “[o]n August 29, 2003, [the plaintiff] underwent an anterior cervical discectomy, fusion, and plate fixation at the C6-7 level. On April 7, 2003, the patient underwent posterior lumbar fusion with pedicle screw fixation at L4-5 and L5-S1.” In that report, Garver opined that the plaintiff “has reached maximum medical improvement and has a 25 percent disability with respect to the cervical spine and a 30 percent disability with respect to his lumbar spine as a direct result of his injury.”

       Given the record before us, we would not use the word benevolent to describe the state’s conduct toward state police officers employed by the defendant who are ipjured in the line of duty by an uninsured or underinsured third party.

       The record before us includes an admission by the defendant that “on a prior occasion the state paid $25,000 to settle an [uninsured-underinsured motorist] claim brought by a municipal police officer assigned to a [s]tate [p]olice [tjask [floree.”

       General Statutes § 29-177 provides: “(a) The Commissioner of Public Safety may from time to time select such number of police personnel of any municipality of the state to act temporarily as special state policemen to carry out the duties of the task force as he deems necessary. Such policemen shall be appointed from a list of names of persons recommended to the State-Wide Narcotics Task Force Policy Board by the chiefs of police of the municipalities and approved by said board.
      “(b) Each municipality shall be responsible for the full payment of the compensation of personnel temporarily assigned to the state-wide narcotics task force and such salary shall be payable to such assigned personnel while on duty with said task force.
      “(c) For purposes of indemnification of such personnel and its municipalities against any losses, damages or liabilities arising out of the service and activities of the task force, personnel while assigned to, and performing the duties of, the task force shall be deemed to be acting as employees of the slate.”

       General Statutes § 29-178 provides: “Any municipal police officer, while assigned to duty with the task force and working at the direction of the Commissioner of Public Safety or his designee, shall, when acting within the scope of his authority, have the same powers, duties, privileges and immunities as are conferred upon him as a state police officer.”

       Because the defendant admitted in its answer that the plaintiff was an insured under the state’s self-insured policy for underinsured motorist benefits, it could not negate that admission at oral argument before this court. The vital force of a judicial admission is that it is conclusive on the party making it and prohibits any further dispute of the fact. Webster Bank v. Zak, supra, 259 Conn. 777.

       The majority correctly notes that the plaintiff has not identified any statute that he claims waives the sovereign immunity of the state. Therefore, the majority reasons that we, as the reviewing court, should not “sua sponte” identify such a statute. The majority also argues that even if § 29-178 applies to this plaintiff, he has not established that a regular police officer would be entitled to recover monetary damages against the state under the same factual conditions that exist in this case.

       The plaintiff admits that he is not a member of the state police union.

       In cases involving the subject matter jurisdiction of the court, we can and should raise and review such an issue sua sponte, even if the plaintiff has not provided a particular statute on which he relies to waive the state’s sovereign immunity. See Miller v. Egan, 265 Conn. 301, 324, 828 A.2d 549 (2003); Webster Bank v. Zak, supra, 259 Conn. 774.

       The plaintiff argued to the trial court the applicability of General Statutes § 52-556. The trial court correctly rejected the argument that § 52-556 applies. That statute waives the defendant’s sovereign immunity when a state official operates a state vehicle negligently. Here, the negligent operator was a private citizen.

       As the majority points out, the plaintiff did not provide this court with a record of the proceedings before the claims commissioner. In a memorandum of law before the trial court that is part of the record before this court, the plaintiff represented that he sought permission from the claims commissioner on January 20, 2004, and that the commissioner dismissed the plaintiffs notice of claim on June 18,2004, citing a lack of subject matter jurisdiction. The plaintiff provided documentation that the defendant filed a motion to dismiss his claim before the claims commissioner, citing several grounds, including the ground that the plaintiff could pursue a direct action against the state to recover money damages, thus depriving the commissioner of subject matter jurisdiction. The record does not reflect the commissioner’s actual ruling on this motion.


source: Caselaw Access Project

author: LAVINE, J.

license: Public Domain

text:
    STATE OF CONNECTICUT v. ALBERT V. FARAH
    (AC 29875)
    Lavine, Kobinson and Lavery, Js.

      Argued November 18, 2010
    officially released February 8, 2011

      Lauren Weisfeld, senior assistant public defender, for the appellant (defendant).

      Leon F. Dalbec, Jr., senior assistant state’s attorney, with whom, on the brief, were Gail P. Hardy, state’s attorney, and Anne Mahoney, senior assistant state’s attorney, for the appellee (state).
   Opinion

LAVINE, J.

The defendant, Albert V. Farah, appeals from the judgments of conviction, following a jury trial, of two counts of risk of injury to a child in violation of General Statutes § 53-21 (a) (2) and seven counts of sexual assault in the second degree in violation of General Statutes § 53a-71 (a) (1). On appeal, the defendant claims that the court violated his constitutional rights to due process, confrontation and to present a defense, as well as his rights pursuant to (1) General Statutes (Rev. to 2007) § 17a-28 (l), when it would not order the state’s attorney to examine department of children and families (department) records pertaining to the minor victims of the defendant’s sexual assaults for exculpatory information, and (2) General Statutes § 54-86f, referred to as the rape shield statute, when it prohibited him from eliciting testimony from the victims pertaining to their exposure to sexual activity with individuals other than the defendant. We affirm the judgments of the trial court.

On the basis of the evidence presented at trial, the jury reasonably could have found the following facts. The defendant was bom in Ecuador on April 4, 1961, and moved to the Hartford area in 1989. Between 1999 and 2001, the defendant resided in Manchester, and then in Hartford before moving to New Britain in July, 2003.

Sometime in 1999 or 2000, D, who was then fourteen years old, was walking on a street in Hartford when the defendant, who was sitting in his parked car, asked her if she “wanted to hang out and stuff like that.” The defendant then gave D his cell phone number so they could arrange to meet again later.

D called the defendant’s cell phone number several times. In response, the defendant picked up D from a location near her home and took her to one of his former residences in Hartford or Manchester. The defendant paid D approximately $20 to $25 to engage in oral sex with him during these visits.

On one occasion, the defendant went looking for D at her home, but she was not there. Instead, the defendant encountered D’s older sister, S. This was the first time that the defendant had met S. The defendant and S, who was then fifteen years old, developed a relationship that was similar to his relationship with D. The defendant took S to one of his former or current residences in Hartford, Manchester or New Britain and paid her money to engage in sexual intercourse. During some of those encounters, the defendant also provided S with alcohol.

S and D later introduced the defendant to a mutual friend, M. When M was fourteen years old, the defendant convinced her to come to his residence in Hartford by telling her that he was going to get her drunk. The defendant provided M with drugs and alcohol and engaged in sexual intercourse with her. Afterward, the defendant gave her approximately $20. The defendant engaged in this conduct with M a couple of more times in both Hartford and Manchester.

The police became aware of the defendant’s relationship with the victims during an unrelated investigation of alleged sexual assaults involving the victims. Those assaults were perpetrated by Ismael and Paula and were captured on video and made available on the Internet. During this investigation, M’s sister, R, notified the police that the defendant called M on the telephone and that he came to M’s house to pick her up in his car. R was able to identify the defendant because her boyfriend had recognized him as a counselor from a detoxification clinic.

In connection with his conduct with the victims, the defendant was charged in two separate criminal files with eight counts of sexual assault in the second degree in violation of § 53a-71 (a) (1), two counts of risk of injury of a child in violation of § 53-21 (a) (1) and two counts of risk of injury to a child in violation of § 53-21 (a) (2). These files were joined for trial.

On August 23, 2007, the defendant filed a motion for disclosure, production and inspection, requesting that the court order the state to produce all exculpatory information or material that may be favorable to him. On October 1,2007, the court addressed the defendant’s motion and, at this hearing, defense counsel specifically indicated that she was interested in department reports. The court, however, did not issue an order concerning the defendant’s motion at that time. Also on October 1, 2007, the defendant filed a motion in limine to preclude application of § 54-86f to the risk of injury charges, thereby permitting him to present evidence of the victims’ sexual histories.

On October 11, 2007, the defendant filed a second motion for disclosure, production and inspection in which he requested the court to order the state to comply with his August 23, 2007 motion. In support of his request, the defendant noted that it was his understanding that the department had reports and notes that contained or might contain exculpatory information. The defendant also requested that, at a minimum, such potentially exculpatory material should be submitted to the court for an in camera review.

The court held a hearing on the same day to consider all outstanding motions, including the defendant’s second motion for disclosure, production and inspection and motion in limine. With respect to the motion for disclosure, production and inspection, the court, relying on State v. Esposito, 192 Conn. 166,471 A.2d 949 (1984), and without objection, stated that the department records could only be reviewed if the defense made a preliminary showing that they should be disclosed and then the witness to whom the records applied authorized disclosure. If the witness did not give authorization, then, the court noted, the witness’ testimony would be stricken from the record. The state indicated during this hearing that it was unaware of any department records in reference to the defendant’s case and that it had spoken to a department worker who stated that there had been no disclosures from the victims in the defendant’s case. The court then denied the defendant’s motion without prejudice.

The court also denied, without prejudice, the defendant’s motion in limine. Relying on State v. Kulmac, 230 Conn. 43, 644 A.2d 887 (1994), the court concluded that it could not grant “a categorical [m]otion in limine.” It stated, however, that if, during trial, the defendant made an offer of proof that met one or more of the four exceptions listed in § 54-86f, the court would revisit the issue.

The evidentiary portion of the defendant’s trial began on October 15, 2007. Before the jury entered the courtroom, defense counsel indicated that she had subpoenaed the department records relating to Paula. The court responded that it intended, absent some agreement by counsel to the contrary, to follow Espos-ito, and that the defendant still needed to make a preliminary showing to warrant any in camera review of the confidential material. During trial, however, Paula was not called as a witness, and the victims were not questioned, either by the state or the defense, about any information that they gave to the department concerning the defendant.

After commencement of the evidence portion of the trial, outside of the jury’s presence, defense counsel also sought permission to question D concerning her prior sexual conduct and sexual conduct contemporaneous with the period in which she alleged she had engaged in sexual activity with the defendant. Specifically, counsel argued that pursuant to § 54-86f (2) and (4), the defense should be permitted to pierce the rape shield statute because D was unclear and hesitant in her identification of the defendant and may have been confusing him with a different sexual partner. The court sustained the state’s objection to this line of questioning, concluding that there was no possibility of confusion, the evidence proffered was not relevant or material and that evidence of D’s sexual history did not constitute a defense.

On October 18, 2007, the jury returned verdicts of guilty to seven counts of sexual assault in the second degree and two counts of risk of injury to a child. On January 4, 2008, the defendant was sentenced on both dockets to fifty years imprisonment, execution suspended after serving thirty years, followed by thirty-five years of probation. The defendant appealed from the judgments of conviction.

We begin our analysis by setting forth the proper standard of review. The defendant claims that the record demonstrates that the court violated his constitutional and statutory rights. While confrontation issues provide a backstop, we note that his claims challenge the court’s evidentiary rulings. “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.” State v. Gooch, 186 Conn. 17, 18, 438 A.2d 867 (1982).

“[0]ur standard of review regarding challenges to a trial court’s evidentiary rulings is that these rulings will be overturned on appeal only where there was an abuse of discretion and a showing by the defendant of substantial prejudice or injustice. ... In reviewing claims that the trial court abused its discretion, great weight is given to the trial court’s decision and every reasonable presumption is given in favor of its correctness. . . . We will reverse the trial court’s ruling only if it could not reasonably conclude as it did.” (Internal quotation marks omitted.) State v. Hart, 118 Conn. App. 763, 786, 986 A.2d 1058, cert. denied, 295 Conn. 908, 989 A.2d 604 (2010).

I

The defendant first claims that the court violated his constitutional rights to due process, confrontation and to present a defense, as well as his rights pursuant to § 17a-28 (0, when it would not order the state to examine department records pertaining to the victims for exculpatory information. We disagree.

We repeat that “[i]t is well established that a defendant has the right to confront witnesses against him as guaranteed by the confrontation clauses of both our federal and state constitutions. . . . [T]he right of an accused in a criminal trial to due process is, in essence, the right to a fair opportunity to defend against the [s]tate’s accusations. The rights to confront and cross-examine witnesses and to call witnesses in one’s own behalf have long been recognized as essential to due process. . . . We are mindful, however, that the right to confront and to cross-examine is not absolute and may, in appropriate cases, bow to accommodate other legitimate interests in the criminal trial process.” (Citations omitted; internal quotation marks omitted.) State v. Rolon, 257 Conn. 156, 174-75, 777 A.2d 604 (2001).

One such circumstance in which the constitutional right to confrontation will give way to other legitimate interests occurs when confidential department records are involved. General Statutes (Rev. to 2007) § 17a-28 (b) provides in relevant part that “records maintained by the department shall be confidential and shall not be disclosed. Such records of any person may only be disclosed, in whole or in part, to any individual, agency, coiporation or organization with the consent of the person or as provided in this section . . . .” Our courts have recognized that the primary purpose of this statute is “to preserve the confidentiality of information in connection with the department’s child protection activities or activities related to a child while in the care or custody of the department.” Abreu v. Leone, 120 Conn. App. 390,411, 992 A.2d 331, cert. denied, 297 Conn. 926, 998 A.2d 1193 (2010). The statute also protects children from “the embarrassment, stigmatization and emotional harm that can result from the mere disclosure that he or she is under the department’s care.” (Internal quotation marks omitted.) Id.

Section 17a-28 and our case law, however, establish certain circumstances in which department records may be disclosed without the consent of the individual to whom they apply. Specifically, to obtain an in camera review of confidential department records believed to contain exculpatory information, “the defendant must at least make some plausible statement of how the information would be both material and favorable to his defense.” State v. Leduc, 40 Conn. App. 233, 248, 670 A.2d 1309 (1996); see also State v. Berube, 256 Conn. 742, 756, 775 A.2d 966 (2001) (“[although we agree that due process requires that a defendant be entitled to an in camera review of confidential department files in some instances, we conclude that there is nothing in the record to indicate that the defendant in this case met the requisite threshold that would require a court to undertake such a review”).

A threshold showing is required notwithstanding a criminal defendant’s due process rights; see State v. Leduc, supra, 40 Conn. App. 244-50; and confrontation rights; see State v. McClelland, 113 Conn. App. 142,159, 965 A.2d 586, cert. denied, 291 Conn. 912, 969 A.2d 176 (2009). While our cases have not addressed whether a preliminary showing is required for claims based on a right to present a defense, we note that “[a] defendant’s right to present a defense is rooted in the compulsory process and confrontation clauses of the sixth amendment”; (internal quotation marks omitted) State v. Hedge, 297 Conn. 621, 625 n.2, 1 A.3d 1051 (2010); and apply the same requirements applicable to a claim based on rights pursuant to the confrontation clause.

Although advance notice of the need to make a preliminary showing is not required, the court, nonetheless, notified the defendant on two separate occasions that it would not review any department records absent a preliminary showing that the records contained exculpatory information. Defense counsel also acknowledged the proper procedures for disclosure of department records and that she was fully aware of the steps that needed to be taken before the court could conduct an in camera review. Still, there is nothing in the record to suggest that a threshold showing was made. Speculation that records might contain exculpatory information does not suffice. We conclude that the court did not abuse its discretion by failing to review the department records subpoenaed by the defendant or ordering the state’s attorney to review the records because the defendant did not make a preliminary showing that they contained exculpatory information.

The defendant argues, however, that the court applied the wrong procedure for determining whether confidential records may be disclosed or undergo an in camera review. Specifically, he argues that the procedures articulated in Esposito are not applicable to disclosure of department records. Instead, the defendant claims that § 17a-28 (Q mandates that the state both read the relevant department files and disclose any exculpatory material that they contain.

At trial, the defendant did not object to the court’s use of the procedures articulated in Esposito for disclosure of confidential records, nor did he raise any claims pursuant to his rights under § 17a-28 (Q. Practice Book § 60-5 provides in relevant part that this court “shall not be bound to consider a claim unless it was distinctly raised at the trial or arose subsequent to the trial. . . .” Additionally, this court previously has stated that it “will not consider issues which are brought to the court’s attention for the first time by way of the appellant’s brief.” (Internal quotation marks omitted.) CMB Capital Appreciation, LLC v. Planning & Zoning Commission, 124 Conn. App. 379, 396, 4 A.3d 1256 (2010). We conclude, therefore, that the defendant failed to preserve this claim for appeal properly.

The defendant argues, alternatively, that if this issue has not been preserved, his claim is adequate for review pursuant to State v. Golding, 213 Conn. 233, 239-40, 567 A.2d 823 (1989), or the plain error doctrine. See Practice Book § 60-5. The defendant’s claim, however, does not meet the requirements for Golding or plain error review. We therefore decline to address it on appeal.

II

The defendant next argues that the court violated his constitutional rights to due process, confrontation and to present a defense, as well as his rights pursuant to § 54-861', when it prohibited him from presenting evidence concerning the victims’ sexual histories. We are not persuaded and conclude that the court did not abuse its discretion in prohibiting the defendant from questioning the victims about their sexual histories.

Section 54-86f “was enacted to bar or limit the use of prior sexual conduct of an alleged victim of sexual assault because it is such highly prejudicial material. . . . Our legislature has determined that, except in specific instances, and taking the defendant’s constitutional rights into account, evidence of prior sexual conduct is to be excluded for policy purposes. Some of these policies include protecting the victim’s sexual privacy and shielding her from undue [harassment], encouraging reports of sexual assault, and enabling the victim to testify in court with less fear of embarrassment. . . . Other policies promoted by the law include avoiding prejudice to the victim, jury confusion and waste of time on collateral matters.” (Citation omitted; internal quotation marks omitted.) State v. Clifford P., 124 Conn. App. 176,182-83,3 A.3d 1052, cert. denied, 299 Conn. 911, 10 A.3d 529 (2010).

The rape shield statute “directs the court to examine the defendant’s constitutional rights, implicating both his sixth amendment right to confront witnesses and his fourteenth amendment due process right to call witnesses on his own behalf.” (Internal quotation marks omitted.) State v. Malon, 96 Conn. App. 59, 74, 898 A.2d 843, cert. denied, 280 Conn. 906, 907 A.2d 93 (2006). As with laws and policies surrounding the disclosure of confidential department records, the right to confront and to cross-examine victims of sexual assault about their sexual histories is not absolute and may bow to accommodate other legitimate interests. Id. “One of the legitimate interests is the court’s right, indeed, duty, to exclude irr elevant evidence. ... If the court determines that the proffered evidence is not relevant, the defendant’s right to present witnesses in his own behalf has not been affected and the evidence can properly be excluded.” (Citation omitted; internal quotation marks omitted.) Id.

Finally, “[a] defendant who seeks to introduce evidence under one of the exceptions of § 54-86f must first make an offer of proof.” (Internal quotation marks omitted.) State v. Martinez, 295 Conn. 758, 771, 991 A.2d 1086 (2010). “A clear statement of the defendant’s theory of relevance is all important in determining whether the evidence is offered for a permissible purpose.” (Internal quotation marks omitted.) State v. Cecil J., 291 Conn. 813, 825, 970 A.2d 710 (2009).

In his attempt to introduce evidence concerning the victims’ sexual histories, the defendant made no offers of proof in regard to M and S but did make such an offer as to D. Therefore, the court properly prohibited any inquiries concerning M’s and S’s sexual histories.

Our determination of whether the court properly prohibited the defendant from questioning D about her sexual history is guided by State v. Kulmac, supra, 230 Conn. 43. In Kulmac, the defendant had sexually abused two girls when they were nine and eleven years old. Id., 49-50. At the time of trial, the girls were fourteen and fifteen years old. Id., 49. The defendant claimed that the court violated his rights pursuant to the confrontation clause by excluding evidence, based on the rape shield statute, that other men had sexually abused the two girls. Id., 50. Specifically, the defendant claimed that this evidence was necessary because the high number of assaults committed on the girls by other men created a risk of confusion. Id., 55.

On appeal, our Supreme Court stated that “[w]hether there is a sufficient basis for a claim that a witness is confused, so as to permit cross-examination that would otherwise be inadmissible, is a question of fact that is properly left to the discretion of the trial court.” Id. The court noted that the trial court specifically concluded that the victims were not confused and affirmed the court’s decision to exclude evidence of their sexual histories. Id.

As in Kulmac, the court here specifically found that D did not appear confused. Moreover, the court found that any sexual activity that D had with other men would not constitute a defense for the defendant. Therefore, we conclude that the court properly exercised its discretion by precluding inquiry into D’s prior sexual history.

The judgments are affirmed.

In this opinion the other judges concurred.

       In accordance with our policy of protecting the privacy interests of the victims of sexual abuse and the crime of risk of injury to a child, we decline to identify the victims or others through whom the victims’ identities may be ascertained. See General Statutes § 54-86e.

       At the time, the defendant was working as a drug and alcohol counselor for the methadone program at the Hartford Dispensary and worked on a part-time basis as a drug and alcohol counselor for Alcohol and Drug Recovery Centers, Inc., in Hartford. The defendant testified that D approached his car and asked for a ride to McDonald’s because “she got the munchies.” He further testified that he was concerned that she might have a drug habit so he gave her his business card. According to his testimony, D’s mother called him one week later, and he went to meet with D.

       The defendant admitted that he engaged in vaginal intercourse with S but stated that the first sexual encounter occurred one week after she became eighteen years of age.

       General Statutes § 54-86Í provides in relevant part: “In any prosecution for sexual assault under sections 53a-70, 53a-70a, and 53a-71 to 53a-73a, inclusive, no evidence of the sexual conduct of the victim may be admissible unless such evidence is (1) offered by the defendant on the issue of whether the defendant was, wi1h respect to the victim, the source of semen, disease, pregnancy or injury, or (2) offered by the defendant on the issue of credibility of the victim, provided the victim has testified on direct examination as to his or her sexual conduct, or (3) any evidence of sexual conduct with the defendant offered by the defendant on the issue of consent by the victim, when consent is raised as a defense by the defendant, or (4) otherwise so relevant and material to a critical issue in the case that excluding it would violate the defendant’s constitutional rights. Such evidence shall be admissible only after a hearing on a motion to offer such evidence containing an offer of proof. ...”

        Esposito states in relevant part: “If, however, the claimed impeaching information is privileged there must be a showing that there is reasonable ground to believe that the failure to produce the information is likely to impair the defendant’s right of confrontation such that the witness’ direct testimony should be stricken. Upon such a showing the court may then afford the state an opportunity to secure the consent of the witness for the court to conduct an in camera inspection of the claimed information and, if necessary, to turn over to the defendant any relevant material for the purposes of cross-examination. If the defendant does make such showing and such consent is not forthcoming then the court may be obliged to strike the testimony of the witness. ... If the in camera inspection does reveal relevant material then the witness should be given an opportunity to decide whether to consent to release of such material to the defendant or to face having her testimony stricken in the event of refusal.” State v. Esposito, supra, 192 Conn. 179-80.

       Specifically, the court stated: “It seems to me that the defendant obviously does have confrontation rights involved here. And I’m inclined not to view the matter overly technically. If, for example, one of the actual complaining witnesses, with respect to that witness if the preliminary showing is made, the court may well conclude that the Esposito procedure should be implemented with respect, you know, to that particular witness. . . . So, I mean, you’d still have to make the preliminary showing with respect to that particular witness.”

       General Statutes (Rev. to 2007) § 17a-28 © provides in relevant part: “Information disclosed from a person’s [department of children and families] record shall not be disclosed further without the written consent of the person, except if disclosed to a party or his counsel pursuant to an order of a comt in which a criminal prosecution or an abuse, neglect, commitment or termination proceeding against the party is pending. A state’s attorney shall disclose to the defendant or his counsel in a criminal prosecution, without the necessity of a court order, exculpatory information and material contained in such record and may disclose, without a court order, information and material contained in such record which could be the subject of a disclosure order. . . .”

       Additionally, we note that “[t]he sixth amendment to the United States constitution require [s] that criminal defendants be afforded a meaningful opportunity to present a complete defense. . . . The defendant’s sixth amendment right, however, does not require the trial court to forgo completely restraints on the admissibility of evidence. . . . [T]he constitution does not require that a defendant be permitted to present every piece of evidence he wishes.” (Internal quotation marks omitted.) State v. Adorno, 121 Conn. App. 534, 547, 996 A.2d 746, cert. denied, 297 Conn. 929, 998 A.2d 1196 (2010).

       The transcript provides in relevant part:
      “[Defense Counsel]: My only difficulty in understanding how that procedure works as a practical matter is knowing how the defense is suppose[d] to point to specific items in the sealed record—

        “The Court: I can’t give you advice. You just have to read Esposito and, you know, proceed accordingly. It would be your responsibility to make— under Esposito to make a preliminary showing. And sometimes you can do that and sometimes you can’t.”

       During oral argument, counsel for the defendant conceded that § 17a-28 (i) was not raised during trial.

       As noted, the defendant’s evidentiary claims are couched in the nomenclature of a constitutional claim but are actually evidentiary in nature. “[T]he [Golding] rule is designed to protect fundamental constitutional rights. It deals with substance, not labels.” (Internal quotation marks omitted.) Rosenfeld v. Rosenfeld, 115 Conn. App. 570, 579, 974 A.2d 40 (2009). Additionally, “[t]he plain error doctrine ... is not ... a rule of reviewability. It is a rule of reversibility. That is, it is a doctrine that this court invokes in order to rectify a trial court ruling that, although either not properly preserved or never raised at all in the trial court, nonetheless requires reversal of the trial court’s judgment, for reasons of policy. . . . In addition, the plain error doctrine 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.” (Internal quotation marks omitted.) Crawford v. Commissioner of Correction, 294 Conn. 165, 204-205, 982 A.2d 620 (2009). Because this is not such an extraordinary situation, plain error review is also improper.

       The defendant can only rely on § 54-86f (2) and (4) as possible exceptions to the prohibition of evidence concerning a victim’s sexual history. The state claims that § 54-86f (2) does not apply here because none of the victims testified about their past sexual conduct aside from their conduct with the defendant. We do not agree. D testified on direct examination that she stopped seeing the defendant when she became pregnant. D later clarified on cross-examination she was not claiming that the defendant was the father of her child, but the proverbial door concerning D’s sexual history had been opened.

       The defendant relied on a police witness statement made by D as his offer of proof. The portion of the transcript concerning her statement to the police provides in relevant part:
      “[Defense Counsel]: This witness began in a very tentative, foggy kind of way of being unable to remember how far she got in school, she didn’t remember whether or not M had seen the defendant, even though the state attempted to encourage her to remember that. She said a number of times that she wasn’t sure about things.
      “The Court: She never said she wasn’t sure about the defendant or what she did with the defendant. Am I correct?
      “[Defense Counsel]: That’s correct. . . . She was not asked whether she had, during that same time frame, performed sexual acts, specifically oral sex with any one else.
      “The Court: That’s true. That’s why I have to know how that’s relevant.
      “[Defense Counsel]: I think that’s relevant to our determining whether that shakes her determinateness that it was, in fact, [the defendant].”

       In State v. Rolon, supra, 257 Conn. 156, our Supreme Court noted that the victims in Kulmac were of an age at which most individuals are less likely to be confused over an individual’s identity and are capable of understanding matters of a sexual nature. Id., 181. In the present case, D was fourteen when the assaults occurred and twenty years old at the time of trial.


author: PER CURIAM.

text:
    LEROY HARRIS v. COMMISSIONER OF CORRECTION
    (AC 30989)
    Gruendel, Robinson and Pellegrino, Js.
    Argued November 15, 2010
    officially released February 8, 2011

      David J. Reich, special public defender, for the appellant (petitioner).

      ToniM. Smith-Rosario, senior assistant state’s attorney, with whom, on the brief, were Michael Dearington, state’s attorney, John Waddock, supervisory assistant state’s attorney, and Linda N. Howe, former senior assistant state’s attorney, for the appellee (respondent).
   Opinion

PER CURIAM.

The petitioner, Leroy Harris, appeals from the judgment of the habeas court, Nazzaro, J., denying his fourth petition for a writ of habeas corpus. The petitioner claims that the habeas court improperly concluded that his trial and first and second habeas counsel provided effective assistance. We reject the petitioner’s claim and affirm the judgment of the habeas court.

The procedural history and facts underlying the petitioner’s conviction and prior habeas petitions were set out at length in Harris v. Commissioner of Correction, 108 Conn. App. 201, 203-204, 947 A.2d 435, cert. denied, 288 Conn. 911, 953 A.2d 652 (2008). “The petitioner was convicted, following a jury trial, of three counts of robbery in the first degree in violation of General Statutes §§ 53a-134 (a) and 53a-8, and one count of sexual assault in the first degree in violation of General Statutes § 53a-70 (a). The petitioner was sentenced to a total effective term of eighty years incarceration. State v. Harris, 22 Conn. App. 329, 330, 577 A.2d 1077 (1990).

“In the petitioner’s direct criminal appeal, he claimed that (1) the trial court improperly permitted the introduction into evidence of a certain statement under the Whelan doctrine, [State v. Whelan, 200 Conn. 743, 753, 513 A.2d 86, cert. denied, 479 U.S. 994, 107 S. Ct. 597, 93 L. Ed. 2d 598 (1986)] and (2) his conviction should be reversed because of prosecutorial impropriety. This court rejected those claims and affirmed his conviction. [State v. Harris, supra, 22 Conn. App.] 337.

“In his first petition for a writ of habeas corpus, filed in 1993, in which he was represented by Paula Mangini Montonye, he claimed that Patricia Buck Wolf, who acted as both his criminal trial and appellate counsel, rendered ineffective assistance. With respect to the trial, the petitioner raised fifteen different claims of ineffectiveness. With respect to the appeal, the petitioner raised two different claims of ineffectiveness. The first habeas court, Hodgson, J., determined that with respect to both sets of claims, the petitioner had failed to establish prejudice. See Strickland v. Washington, 466 U.S. 668, 694, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984). This court affirmed the judgment. Harris v. Commissioner of Correction, 40 Conn. App. 250, 671 A.2d 359 (1996).

“In his second petition, filed in 2003, in which he was represented by Salvatore Adamo, the petitioner raised three issues regarding his trial: (1) police misconduct, (2) prosecutorial impropriety and (3) actual innocence. The second habeas court, Hon. William L. Hadden, Jr., judge trial referee, rejected these claims. This court dismissed the appeal. Harris v. Commissioner of Correction, 86 Conn. App. 903, 859 A.2d 979 (2004), cert. denied, 272 Conn. 919, 866 A.2d 1286 (2005).

“In his third petition, filed in 2004, in which he was represented by [David J. Reich], the petitioner raised five claims of ineffective assistance of his criminal trial counsel. The respondent, the commissioner of correction, moved to dismiss the petition on the ground that it presented the same grounds as prior petitions. The third habeas court, Fuger, J., dismissed the petition on the ground that it was premised on the same legal grounds and sought the same relief as the first petition, and was supported by facts and allegations reasonably available at the time of the first petition. This court dismissed the appeal. Harris v. Commissioner of Correction, 97 Conn. App. 382, 904 A.2d 280, cert. denied, 280 Conn. 928,909 A.2d 523 (2006).” Harris v. Commissioner of Correction, supra, 108 Conn. App. 203-204.

In his fourth petition, filed in 2005, in which he was represented by Reich, the petitioner raised several claims challenging the effectiveness of the representation provided by his habeas counsel during his first and second petitions. The petitioner also alleged that his trial counsel was ineffective for failing to present properly his claims as to misidentification and prosecutorial impropriety. Again, the respondent moved to dismiss the petition because it presented the same grounds as prior petitions. The fourth habeas court, Fuger, J., dismissed the petition on the ground that it was a successive petition and an abuse of the writ and denied the petitioner’s requested certification to appeal. This court reversed and remanded the case for an evidentiary hearing on the petition for a writ of habeas corpus. Id., 211.

On remand, the court, Nazzaro, J., held an eviden-tiary hearing on the petitioner’s habeas petition. The petitioner alleged ineffective assistance of (1) trial counsel in failing to discover an exculpatory police report that demonstrated that the petitioner was misidentified, (2) first habeas counsel in failing to address trial counsel's ineffectiveness as to that misidentification issue and (3) second habeas counsel for failing to present evidence to support the petitioner’s claims of prosecutorial misconduct and actual innocence. On April 2, 2009, the court issued a memorandum of decision denying the petition, and, on April 6, 2009, the court granted the petition for certification to appeal. This appeal followed.

Initially, we set forth the appropriate standard of review for a challenge to the denial of a petition for a writ of habeas corpus when certification to appeal is granted. “The conclusions reached by the trial court in its decision to dismiss [a] habeas petition are matters of law, subject to plenary review. . . . [When] the legal conclusions of the court are challenged, [the reviewing court] must determine whether they are legally and logically correct . . . and whether they find support in the facts that appear in the record. ... To the extent that factual findings are challenged, this court cannot disturb the underlying facts found by the habeas court unless they are clearly erroneous . . . .” (Citation omitted; internal quotation marks omitted.) Smith v. Commissioner of Correction, 122 Conn. App. 637, 641, 999 A.2d 840 (2010).

In the petitioner’s present appeal, the habeas court determined that he failed to satisfy either prong of the two-pronged test set forth in Strickland v. Washington, supra, 466 U.S. 687. “A claim of ineffective assistance of counsel consists of two components: a performance prong and a prejudice prong. To satisfy the performance prong . . . the petitioner must demonstrate that his attorney’s representation was not reasonably competent or within the range of competence displayed by lawyers with ordinary training and skill in the criminal law. ... To satisfy the prejudice prong, a claimant must demonstrate that there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different. . . . The claim will succeed only if both prongs are satisfied.” (Internal quotation marks omitted.) Turner v. Commissioner of Correction, 118 Conn. App. 565, 568, 984 A.2d 793 (2009), cert. denied, 296 Conn. 901, 991 A.2d 1104 (2010).

The petitioner also claims that counsel in his first and second habeas proceedings rendered ineffective assistance. “[A] person convicted of a crime is entitled to seek a writ of habeas corpus on the ground that his attorney in his prior habeas corpus proceeding rendered ineffective assistance. Lozada v. Warden, 223 Conn. 834, 845, 613 A.2d 818 (1992). ... To succeed in his bid for a writ of habeas corpus, the petitioner must prove both (1) that his appointed habeas counsel was ineffective and (2) that his trial counsel was ineffective. A convicted defendant’s claim that counsel’s assistance was so defective as to require reversal of a conviction . . . has two components. First, the defendant must show that counsel’s performance was deficient. . . . Second, the defendant must show that the deficient performance prejudiced the defense. Unless a defendant makes both showings, it cannot be said that the conviction . . . resulted from a breakdown in the adversary process that renders the result unworkable. . . . Only if the petitioner succeeds in [this] herculean task will he receive a new trial. This new trial would go to the heart of the underlying conviction to no lesser extent than if it were a challenge predicated on ineffective assistance of trial or appellate counsel.” (Citation omitted; internal quotation marks omitted.) Stevenson v. Commissioner of Correction, 112 Conn. App. 675, 684, 963 A.2d 1077, cert. denied, 291 Conn. 904, 967 A.2d 1221 (2009).

This court instructed the habeas court that the claims raised by the petitioner in this petition were not successive and, therefore, must be addressed on remand. Harris v. Commissioner of Correction, supra, 108 Conn. App. 209. The habeas court, as evidenced by its thorough, well reasoned memorandum of decision, carefully reviewed the petitioner’s claims and concluded that his criminal trial counsel and first and second habeas counsel performed within the wide range of reasonable professional assistance. The habeas court, in denying the petition, stated that the petitioner’s claims were “woefully lacking in substantiation . . . .” We, having also reviewed the transcripts, record and briefs, agree with the habeas court’s analysis of the petitioner’s claims. The petitioner has failed to establish that his trial or habeas counsel were ineffective or, absent any ineffective assistance, that the first or second habeas courts would have found that he was entitled to reversal of his conviction.

The petitioner has also raised the claim that he is actually innocent of the crime of sexual assault in the first degree of which he stands convicted and that his second habeas counsel was ineffective for failing to present that claim. The habeas court addressed the petitioner’s claim and found that, on the basis of the evidence, the petitioner had failed to establish by clear and convincing evidence that he is actually innocent of the crime of sexual assault of which he stands convicted. Having reviewed the evidence in the record, we agree with the court’s finding that the petitioner has failed to establish his actual innocence.

The judgment is affirmed.

       The court, in its memorandum of decision, ordered that “any further attempts by the petitioner to yet again use tire writ of habeas corpus to attack his robbery and sexual assault convictions shall be deemed to be an abuse of the writ of habeas corpus.” Insofar as the petitioner brings forth new claims, we cannot foreclose the petitioner’s right to file future petitions for a writ of habeas corpus.
      “In our case law, we have recognized only one situation in which a court is not legally required to hear a habeas petition. . . . [I]f a previous application brought on the same grounds was denied, the pending application may be dismissed without hearing, unless it states new facts or proffers new evidence not reasonably available at the previous hearing. ... A petitioner is entitled, by statute, to effective assistance of habeas counsel, and a claim challenging the effectiveness of prior habeas counsel constitutes a new ground for which a petition for habeas relief may be brought. . . . When a petitioner has filed a petition for a writ of habeas corpus based on new grounds, such as the ineffective assistance of prior habeas counsel, there arises a strong presumption that [the] petitioner ... is entitled to present evidence in support, of his claims.” (Citations omitted; internal quotation marks omitted.) Harris v. Commissioner of Correction, supra, 108 Conn. App. 208-209.