author: O’CONNELL, J.

text:
    STATE OF CONNECTICUT v. TODD C. MORRISON
    (13566)
    O’Connell, Foti and Lavery, Js.
    Argued September 19
    decision released October 31, 1995

      Kent Drager, assistant public defender, for the appellant (defendant).

      John A. East, deputy assistant state’s attorney, with whom was John T. Redway, state’s attorney, and Russell C. Zentner, assistant state’s attorney, for the appel-lee (state).
   O’CONNELL, J.

The defendant appeals from the refusal of the trial court to consider the merits of his motion for sentence reduction. The sole issue is whether the doctrine of separation of powers mandates that a Practice Book rule prevail over a conflicting statute. We affirm the judgment of the trial court.

Prior to 1982, General Statutes § 53a-39 and Practice Book § 934 both provided that a sentencing court had the discretion to reduce any definite sentence. Effective June 8, 1982, the legislature amended § 53a-39 to limit the sentencing court’s power to reduce only definite sentences of “three years or less.” Practice Book § 934, however, was not amended to mirror the statute until October 1, 1983, thereby leaving a period of time during which the statute and the rule of practice conflicted. During this time, Practice Book § 934 purported to permit the sentencing judge to reduce any definite sentence while General Statutes § 53a-39 empowered the judge to reduce only those definite sentences of three years or less.

The defendant pleaded guilty to two offenses committed during the period of time when the statute and rule of practice conflicted. He was subsequently given a total effective sentence of fifty years. On February 15, 1994, the defendant filed a motion seeking a reduction of his sentence pursuant to Practice Book § 934, arguing that the court had the power to reduce his fifty year sentence. The trial court denied the motion on the ground that General Statutes § 53a-39, not Practice Book § 934, was controlling, and thus the court lacked jurisdiction to modify the sentence.

The defendant now challenges General Statutes § 53a-39 on the ground that it is an impermissible usurpation of the powers of the judicial branch of government by the legislature.

It is axiomatic that every statute is presumed to be constitutional. Eielson v. Parker, 179 Conn. 552, 557, 427 A.2d 814 (1980). A defendant who challenges a statute as a violation of the constitutional doctrine of separation of powers bears the heavy burden of establishing the statute’s invalidity beyond a reasonable doubt. Adams v. Rubinow, 157 Conn. 150, 152, 251 A.2d 49 (1968). In order to sustain this burden, the defendant must negate “ ‘every conceivable basis which might support’ ” the statute in question. Fishman v. Middlesex Mutual Assurance Co., 4 Conn. App. 339, 353, 494 A.2d 606, cert. denied, 197 Conn. 806, 499 A.2d 57 (1985).

The constitution assigns to the legislature the power to enact laws defining crimes and fixing the degree and method of punishment. State v. Darden, 171 Conn. 677, 679-80, 372 A.2d 99 (1976). Prescribing punishments for crimes clearly fits into this category and is therefore a function of the legislature. “Whatever views may be entertained regarding the severity of punishment whether one believes in its efficacy or its futility . . . these are peculiarly questions of legislative policy.” Gore v. United States, 357 U.S. 386, 393, 78 S. Ct. 1280, 2 L. Ed. 2d 1405 (1958); State v. Darden, supra, 679. The judiciary’s power to impose specific types of sentences is therefore defined by the legislature. No constitutional requirement exists that gives courts discretion in imposing sentence. State v. Darden, supra, 680.

A court similarly has no inherent power to modify a lawful sentence that a convicted defendant has begun serving. State v. Walzer, 208 Conn. 420, 424-30, 545 A.2d 559 (1988). “The jurisdiction of the sentencing court terminates when the sentence is put into effect, and that court may no longer take any action affecting a sentence unless it has been expressly authorized to act” by the legislature. State v. Tuszynski, 23 Conn. App. 201, 206, 579 A.2d 1100 (1990).

In the present case, General Statutes § 53a-39 does not afford the defendant a remedy since it authorizes the sentencing court to reduce only those definite sentences consisting of three years or less. Although Practice Book § 934 appeared to empower the sentencing court to reduce sentences in excess of three years, we cannot construe that rule of practice to confer jurisdiction on the sentencing court. General Statutes § 51-14 (a); State v. Carey, 222 Conn. 299, 307, 610 A.2d 1147 (1992). The judiciary simply cannot confer jurisdiction on itself through its own rule-making power. Simms v. Warden, 229 Conn. 178, 184, 640 A.2d 601 (1994). Accordingly, General Statutes § 53a-39 does not violate the separation of powers doctrine and takes precedence over Practice Book § 934. The trial court properly denied the defendant’s motion to reduce his fifty year sentence.

The judgment is affirmed.

In this opinion the other judges concurred.

       The shift from indeterminate to determinate sentencing prompted the amendment of General Statutes § 53a-39. State v. Millhouse, 3 Conn. App. 497, 499, 490 A.2d 517 (1985).

       The offenses to which the defendant pleaded guilty were one count of murder in violation of General Statutes § 53a-54a and one count of kidnapping in violation of General Statutes § 53a-92.


source: Caselaw Access Project

author: DUPONT, C. J.

license: Public Domain

text:
    GABRIELLA GUMPERT v. ORE-IDA FOODS, INC., ET AL.
    (13859)
    Dupont, C. J, and O’Connell and Spear, Js.
    Submitted on briefs September 8
    decision released October 31, 1995

      Giovanna Tiberii Weller filed a brief for the appellants (defendant Weight Watchers Food Company, Inc., et al.).

      Alec A. Rimer filed a brief for the appellee (plaintiff).
   DUPONT, C. J.

The defendant Weight Watchers Food Company, Inc., and the defendant Stop & Shop Holdings, Inc., are appealing from the judgment rendered by the trial court pursuant to the court’s acceptance of the report of an attorney trial referee. The sole issue is whether the trial court improperly accepted the report of the attorney trial referee and rendered judgment thereon after the defendants had objected to the untimeliness of the report and after the trial court had found the attorney trial referee in violation of Practice Book § 430A. We conclude that on the facts of this case, the trial court had no power to accept a report of an attorney trial referee that did not comply with Practice Book § 430A and, therefore, reverse the judgment rendered and remand to the trial court for a new trial.

Certain facts are relevant to this appeal. On May 27, 1992, the plaintiff filed suit against the defendants, Ore-Ida Foods, Inc. (Ore-Ida), Weight Watchers Food Company, Inc. (Weight Watchers), and Stop & Shop Holdings, Inc. (Stop & Shop), alleging a violation of Connecticut’s product liability statutes, General Statutes § 52-572m et seq. The plaintiff claimed that she had consumed “Weight Watcher’s Homestyle Chicken and Noodles” containing glass particles, which caused injuries to her mouth. The plaintiff subsequently withdrew her complaint against Ore-Ida and proceeded to trial against Weight Watchers and Stop & Shop (defendants). The matter was heard before an attorney trial referee.

The trial commenced before the attorney trial referee on March 9, 1993, and concluded on March 16, 1993. Both parties filed posttrial briefs on April 16, 1993. Practice Book § 430A prescribes a 120 day limit for an attorney trial referee to file a report. The attorney trial referee in this case had until August 16, 1993, to file his report with the clerk of the court. In its memorandum of decision filed on June 16, 1994, the trial court found that on the filing deadline of August 16,1993, the parties agreed to a sixty day extension of the 120 day limit for the filing of the report, and that the filing deadline for the attorney trial referee’s report had been extended to October 13, 1993. The attorney trial referee failed to meet the filing deadline of October 13, 1993, and subsequently filed his report with the clerk five months later on March 31, 1994. In his report, the attorney trial referee found the facts in favor of the plaintiff, and recommended an award of $3500 in damages.

The defendants filed a timely objection to the report pursuant to Practice Book § 440 et seq. on April 14, 1994. The defendants objected on the ground that the attorney trial referee’s failure to file a report within the time limited by Practice Book § 430A deprived the referee of jurisdiction. A hearing on the objection was held before the trial court on April 25,1994, and the trial court subsequently filed a memorandum of decision overruling the defendant’s objection, notwithstanding the court’s finding that the “attorney trial referee had violated the one hundred and twenty day rule.” On July 11, 1994, the trial court granted the plaintiffs motion for acceptance of the attorney trial referee’s report and for judgment, and rendered judgment in favor of the plaintiff.

This appeal is a case of first impression and requires a determination of whether the language of Practice Book § 430A providing that an attorney trial referee “shall file a report with the clerk of the court . . . within one hundred and twenty days of the completion of the trial” is mandatory or permissive and, if mandatory, the sanction for the violation of the rule. If we interpret the word “shall” in § 430A to be mandatory, the next issue is whether a timely objection to an attorney trial referee’s failure to comply with § 430A automatically strips the trial court of any power to accept the late report or to render judgment on the late report, and necessitates a new trial. The plaintiff argues that the trial court retains jurisdiction despite the attorney trial referee’s failure to meet the 120 day limit. The plaintiff contends that it is within the trial court’s discretion to accept or reject an untimely report of an attorney trial referee. We disagree.

Prior to the enactment of § 430A in 1990, this court was faced with the issue of whether the 120 day limit prescribed forjudges of the Superior Court by General Statutes § 51-183b, was also applicable to attorney trial referees. Kupstis v. Michaud, 20 Conn. App. 425, 567 A.2d 1253 (1989), appeal dismissed, 215 Conn. 435, 576 A.2d 152 (1990); Kowalsky Properties, Inc. v. Sherwin-Williams Co., 7 Conn. App. 136, 508 A.2d 43 (1986).

The rule that this court enunciated in Kowalsky Properties, Inc. v. Sherwin-Williams Co., supra, 7 Conn. App. 136, was that attorney referees are not bound by the 120 day limit because “[t]he time limitations of General Statutes § 51-183b only apply to judges and ‘any trial referee who has the power to render judgments.’ We have ruled . . . that attorney trial referees do not have the power to render judgments. Consequently, they are exempt from the 120 day time restraint.” Id., 140. The court, however, strongly suggested the establishment of a rule that would bind attorney referees to the 120 day limit. Our Supreme Court echoed our desire to have a rule enacted that would explicitly hold attorney trial referees to the same 120 day limit to which judges; see General Statutes § 51-183b; fact finders; see Practice Book § 546G; and arbitrators are held; see Practice Book § 546Q; and recognized that “[t]he problem illuminated by this litigation calls for a change in the rules of practice that this court cannot enact.” Kupstis v. Michaud, 215 Conn. 435, 437, 576 A.2d 152 (1990). We conclude that the enactment of Practice Book § 430A in 1990 answers this call for change and clearly binds attorney trial referees to the 120 day limit.

Although the language of Practice Book § 430A is unambiguous, the rule is silent as to any sanction if an attorney trial referee fails to meet the 120 day rule and a party files an objection to the acceptance of the report. In Sanchez v. Prestia, 29 Conn. App. 157, 612 A.2d 824, cert. denied, 224 Conn. 913, 617 A.2d 167 (1992), we addressed the proper sanction for a violation of the 120 day time limit prescribed in General Statutes § 51-183b, which, like Practice Book § 430A, is silent as to any sanctions. We held, on the basis of the case law interpreting the long history of the statute, that the proper sanction for noncompliance was the revocation of the judgment rendered, with the concomitant necessity for a new trial. Sanchez v. Prestia, supra, 161-62, citing Waterman v. United Caribbean, Inc., 215 Conn. 688, 577 A.2d 1047 (1990). We apply the same reasoning and utilize, by analogy, the same case law in determining the sanction for noncompliance with Practice Book § 430A.

“[T]he defect in a late judgment is that it implicates the trial court’s power to continue to exercise jurisdiction over the parties before it.” Waterman v. United Caribbean, Inc., supra, 215 Conn. 692. Absent waiver of the provisions of the statute, a judgment rendered by a court beyond the time period permitted by § 51-183b, lacks personal jurisdiction over the defendants. Id., 691. “Even after the expiration of the time period within which a judge has the power to render a valid, binding judgment, a court continues to have jurisdiction over the parties until and unless they object.” Id., 692. Here, the defendants neither consented to nor waived the provisions of the rules of practice, but instead objected to the acceptance of the untimely report.

The attorney trial referee’s failure to comply with the 120 day limit as set forth in Practice Book § 430A, coupled with the objection by the defendants, requires a new trial.

The judgment is reversed and the case is remanded for a new trial.

In this opinion the other judges concurred.

       “[Practice Book] Sec. 430A. Attorney Trial Referees; Time to File Report
      “An attorney trial referee to whom a case has been referred shall file a report with the clerk of the court, with sufficient copies for all counsel, within one hundred and twenty days of the completion of the trial before such referee.”

       Wo find April 16, 1993, to be the date of the completion of the trial before the attorney trial referee. Although the testimony before the attorney trial referee concluded on March 16, 1993, the completion of the trial was extended until the filing of posttrial briefs by the parties on April 16, 1993. See Frank v. Streeter, 192 Conn. 601, 604, 472 A.2d 1281 (1994) (“the completion date” includes filing of posttrial briefs on legal issues that are components of judicial gathering of materials necessary to well reasoned decision).

       We need not address the issue of whether the parties may waive or agree to extend the 120 day period under Practice Book § 430A. Unlike General Statutes § 51-183b, Practice Book § 430A contains no explicit waiver provision, but in this case the issue is not before this court because the attorney trial referee filed his report beyond the extended due date.

         Practice Book § 440 provides in relevantpart: “A party may file objections to the acceptance of a report on the ground that conclusions of fact stated in it were not properly reached on the basis of the subordinate facts found, or that the committee erred in ruling on evidence or other rulings or that there are other reasons why the report should not be accepted. . . .”
      Practice Book § 441 provides: “Objections to the acceptance of a report shall be filed within two weeks after the filing of the report or finding, or if a motion to correct the report or finding has been made, within two weeks from the filing of the decision of the motion.”
      Practice Book § 440 et seq. contains no specific language regarding a party’s objection to the acceptance of the attorney trial referee’s report on the ground that the report was filed beyond the 120 day period as set forth in Practice Book § 430A The catchall provision of Practice Book § 440 pertaining to any “other reasons why the report should not be accepted” is sufficient authority for the defendants’ objection.

       General Statutes § 51-183b provides: “Any judge of the superior court and any state trial referee who has the power to render judgment, who has commenced the trial of any civil cause, shall have power to continue such trial and shall render judgment not later than one hundred and twenty days from the completion date of the trial of such civil cause. The parties may waive the provisions of this section.”


author: LANDAU, J.

text:
    THE WEITZ COMPANY, INC. v. SHORELINE CARE LIMITED PARTNERSHIP
    (14208)
    Landau, Schaller and Hennessy, Js.
    Argued September 20
    decision released November 7, 1995

      Raymond A. Garcia, with whom, on the brief, was Gary Sheldon, for the appellant (defendant).

      Barry J. Waters, with whom, on the brief, was Laura E. Evangelista, for the appellee (plaintiff).
   LANDAU, J.

The defendant, Shoreline Care Limited Partnership (Shoreline), appeals from the judgment of the trial court granting a permanent injunction restraining it from proceeding with arbitration. Shoreline claims that the trial court improperly granted the permanent injunction in that the court (1) did not have subject matter jurisdiction to determine whether the defendant’s claim was arbitrable and (2) failed to conclude that the contract, as amended by the parties, subjected disputes under the contract to arbitration.

The trial court found the following facts. On October 5, 1989, the plaintiff, The Weitz Company, Inc. (Weitz), as a general contractor, entered into a written contract with Shoreline, as owner, for the construction of a continuing care retirement community known as Evergreen Woods located in North Branford. The parties agreed that the construction of the project would be accomplished in two phases. Although the phase I portion of the contract incorporated the American Institute of Architects’ general conditions of contracts for construction, it expressly deleted the arbitration section of the general conditions. The contract further expressly deleted all references to arbitration of the phase I contract.

By agreement between the parties, dated April 30, 1991, the parties modified the terms of the October 5, 1989 contract. Under the amended agreement, any and all issues, claims or disputes between the parties concerning the phase II portion of the contract were made subject to arbitration.

On June 7,1994, Shoreline filed a demand for arbitration claiming that Weitz had breached the contract, and further claiming that the parties had agreed to arbitrate all disputes under phase I and phase II of the contract. Weitz filed an objection claiming that the alleged breach was not arbitrable because it pertained to phase I. An arbitrator determined that the issue of arbitrability should be decided by the arbitrator and ordered both parties to proceed. Weitz thereafter filed its application for an injunction.

After finding the necessary prerequisites of irreparable harm and no adequate remedy at law, the trial court issued a permanent injunction restraining Shoreline from proceeding with the arbitration it demanded on June 7, 1994. The court found that the phase II work was subject to arbitration based on the April 30, 1991 agreement, and the phase I work was not subject to arbitration because of the terms of the October 5,1989 agreement. The court further found that the October 5, 1989 agreement was not amended insofar as it applied to arbitration of phase I disputes.

Shoreline posits that the trial court failed to apply the required “positive assurance” test. This test, first articulated in United Steelworkers of America v. Warrior & Gulf Navigation Co., 363 U.S. 574, 80 S. Ct. 1347, 4 L. Ed. 2d 1409 (1960), is employed by the courts in our state to determine whether a dispute is arbitrable. See, e.g., Policemen’s & Firemen’s Retirement Board v. Sullivan, 173 Conn. 1, 14, 376 A.2d 399 (1977); Board of Police Commissioners v. Maher, 171 Conn. 613, 621, 370 A.2d 1076 (1976). Weitz argues that the trial court applied the appropriate standard, and merely failed to state the talismanic “positive assurance” language. Weitz claims the court’s ruling is no less binding as a result of this oversight.

We may reverse or modify the decision of the trial court if we determine that the factual findings are clearly erroneous in view of the evidence and pleadings in the whole record, or that the decision is otherwise erroneous in law. Practice Book § 4061. In this case the facts are not in dispute. The trial court received documents in evidence and heard arguments as to their interpretation and meaning. Therefore, we need only to determine whether the trial court was incorrect as a matter of law. Morton Buildings, Inc. v. Bannon, 222 Conn. 49, 53, 607 A.2d 424 (1992).

To resolve this issue, we apply the positive assurance test. “ ‘Under the positive assurance test, “judicial inquiry . . . must be strictly confined to the question whether the reluctant party did agree to arbitrate the grievance. ... An order to arbitrate the particular grievance should not be denied unless it may be said with positive assurance that the arbitration clause is not susceptible of an interpretation that covers the asserted dispute. Doubts should be resolved in favor of coverage.” ’ ” John A. Errichetti Associates v. Boutin, 183 Conn. 481, 488-89, 439 A.2d 416 (1981), quoting Board of Education v. Frey, 174 Conn. 578, 581-82, 392 A.2d 466 (1978). “Whether a particular dispute is arbitrable is a question for the court, unless, by appropriate language, the parties have agreed to arbitrate that question, also.” Welch Group, Inc. v. Creative Drywall, Inc., 215 Conn. 464, 467, 576 A.2d 153 (1990), quoting Frager v. Pennsylvania General Ins. Co., 155 Conn. 270, 274, 231 A.2d 531 (1967). Whether the parties have agreed to submit the merits of the dispute, as well as the question of arbitrability, depends on the intention manifested in the agreement the parties have made. Bridgeport v. Bridgeport Police Local 1159, 183 Conn. 102, 104, 438 A.2d 1171 (1981). The manifestation of arbitrability may be by express provision to that effect or the use of broad terms; White v. Kampner, 229 Conn. 465, 472, 641 A.2d 1381 (1994); and courts must look to the plain language of the contract and construe the contract as a whole when determining the intent of the parties. Id., 473.

Here, the parties expressly agreed not to submit phase I of the contract to arbitration. In the supplementary conditions for phase I work, the parties contracted to delete the standard arbitration clause found in the American Institute of Architects’ general conditions contract they employed for this project. Therefore, no authority exists under the phase I contract to submit the issue of arbitrability to the arbitrators. While the language of the phase I contract makes it plain that disputes arising under it are not arbitrable, the language of the phase II contract leaves no doubt that the arbitration clause was inserted for phase II work only. Because this language is clear and unambiguous, and resolving any doubts in favor of coverage, it provides positive assurance that the parties intended that phase I disputes were not subject to arbitration.

We conclude that because the parties contracted not to submit the issue of arbitrability to an arbitrator as to phase I, the trial court had proper subject matter jurisdiction to determine the arbitrability of the claim. We further conclude that the trial court’s decision to enjoin the plaintiff from proceeding with arbitration was proper as a matter of law.

The judgment is affirmed.

In this opinion the other judges concurred.

       After the trial court found cause that a temporary injunction should issue, the parties consented to the entry of a permanent injunction.


text:
    STATE OF CONNECTICUT v. JAMES DARDEN
    (14010)
    O’Connell, Ileiman and Hennessy, Js.

      Argued September 12
    decision released November 7, 1995

      Jeremiah Donovan, special public defender, for the appellant (defendant).

      Lawrence J. Tytla, assistant state’s attorney, with whom, on the brief, was Kevin T. Kane, state’s attorney, for the appellee (state).
   O’CONNELL, J.

The defendant appeals from the judgment of conviction, after a jury trial, of two counts of assault in the first degree in violation of General Statutes § 53a-59 (a) (1) and (4) and one count of conspiracy to commit assault in the first degree in violation of General Statutes §§ 53a-59 and 53a-48 (a).

The defendant’s first three claims are based on his contention that the state improperly destroyed potentially exculpatory evidence. Additionally, the defendant argues that the trial court abused its discretion in permitting testimony that the defendant was a lieutenant in a criminal gang. We reverse the judgment and remand the case for a new trial.

The jury could reasonably have found the following facts. The defendant and the victim, James Douglas, were both inmates at the J. B. Gates Correctional Unit in Niantic. The defendant, a lieutenant in a gang, planned the stabbing and beating of the victim. In order to carry out that plan, the defendant enlisted inmate Larry Henry to lure the victim to a cubicle where the defendant was waiting with inmates Jerome Ely and Clarence Bridgeforth. When the victim entered the defendant’s cubicle, Ely held him while Bridgeforth and the defendant stabbed him repeatedly with shanks.

After some delay, the victim disclosed to prison authorities that he had been injured. He was eventually taken to a hospital where he was treated for injuries resulting from the attack, including multiple stab wounds and a collapsed lung. The victim identified the defendant as one of his assailants.

Shortly after the assault, but before it had been reported to correction officials, a correction officer made a routine shakedown of the dormitory while the inmates were at dinner. In the cubicle next to the defendant’s, the officer found a paper bag containing two shanks and a piece of damp terry cloth concealed in the sleeve of a jacket. The officer turned over the items to his supervisor. The shanks were identified as the weapons used to stab the victim.

The shanks and the paper bag in which they had been found were destroyed. The supervisor discarded the paper bag because he did not believe that it had eviden-tiary value. The shanks were destroyed in compliance with a court order following judicial disposition of a codefendant’s case. Additional facts are included in our analysis of the issues.

I

The defendant first contends that he was deprived of due process of law under article first, § 8, of the Connecticut constitution because the police failed to preserve potentially exculpatoiy evidence.

Prior to 1988, Connecticut had applied a balancing test to determine whether the failure of police to preserve potentially useful evidence had deprived a defendant of due process of law under either the federal or our state constitution. State v. Asherman, 193 Conn. 695, 723-24, 478 A.2d 227 (1984), cert. denied, 470 U.S. 1050, 105 S. Ct. 1749, 84 L. Ed. 2d 814 (1985). Under the Asherman test, trial courts were required to weigh four factors in making that determination: (1) the materiality of the missing evidence; (2) the likelihood of mistaken interpretation of it by witnesses or the jury; (3) the reason for its unavailability to the defense; and (4) the prejudice to the defendant caused by the unavailability of the evidence. Id.

In 1988, the United States Supreme Court ruled that under the federal constitution, a defendant need prove only that the police acted in bad faith in order to establish a denial of due process. Arizona v. Youngblood, 488 U.S. 51, 58, 109 S. Ct. 333, 102 L. Ed. 2d 281 (1988). Following the Youngblood decision, this court concluded that the federal standard enunciated in Youngblood was applicable to due process challenges of destruction of evidence under the state constitution. State v. Morales, 33 Conn. App. 184, 634 A.2d 1193 (1993).

In 1995, however, our state Supreme Court reversed this court’s decision in State v. Morales, supra, 33 Conn. App. 184, holding that the bad faith test was not appropriate for due process challenges under the state constitution. State v. Morales, 232 Conn. 707, 657 A.2d 585 (1995). In that case, the Supreme Court determined, on a due process claim raised under the Connecticut constitution, that bad faith of the police in failing to preserve potentially useful evidence was not in itself dispositive. Id., 726-27. Rather, in determining whether a criminal defendant has been afforded due process of law under the state constitution, the trial court must employ the four prong balancing test first enunciated in Asherman. Id.

The timing of the two Morales decisions in relation to the present appeal is significant. The defendant’s case was tried in 1994, when the Youngblood bad faith test had been stated to be Connecticut law pursuant to this court’s decision in State v. Morales, supra, 33 Conn. App. 184. Despite the fact that State v. Morales, supra, 184, had been decided at the time that the defendant took his appeal, he nonetheless urged us in his brief to reconsider that decision and to find the Asherman test applicable to determine if the destruction of potentially useful evidence infringes on a defendant’s due process rights under the state constitution. Such reconsideration became unnecessary when, prior to the scheduled hearing before this court, the Supreme Court decided State v. Morales, supra, 232 Conn. 707, thereby reinstating the Asherman test.

Because State v. Morales, supra, 232 Conn. 707, was not decided until after the trial in the present case, the trial court had not conducted the balancing test with respect to the shanks and the paper bag as required by Asherman. Although the trial court was not at fault, the failure to perform the Asherman balancing test violated the defendant’s due process guarantee under the state constitution. It is clear that his conviction must be vacated.

State v. Morales, supra, 232 Conn. 707, however, did not dictate a per se result as a consequence of the failure to perform the Asherman test, but rather recognized that the disposition of each case will vary according to individual circumstances. Id., 728-29. The circumstances of the present case suggest four possible dispositions: (1) dismissal of the charges; (2) performance of the Asher-man test by this court; (3) performance of the Asherman test by the trial court; or (4) a new trial.

The first alternative, dismissal of the charges, is too drastic under the circumstances. Without a record of a ruling based on the four factors of Asherman, we have no way of determining whether the defendant was prejudiced. We therefore decline to dismiss the case. The second alternative, performance of the balancing test by this court, would require us to make factual findings, and it is axiomatic that making findings of fact is not within the province of appellate tribunals. See New Haven v. Local 884, Council 4, AFSCME, AFL- CIO, 38 Conn. App. 709, 713, 662 A.2d 818 (1995). The third alternative, ordering the trial court to conduct the balancing test now, is also inappropriate. Because this court had declared that the Asherman test was not the law at the time of trial, it is unlikely that the parties developed the evidence in such a manner as to allow the trial judge to conduct an informed balancing at this stage of the proceedings. Only the fourth alternative, a new trial, will allow the parties to develop the evidence so that the trial court may properly apply the Asherman balancing test.

Accordingly, the defendant is entitled to a new trial at which the court may properly consider the defendant’s claim under the Connecticut constitution.

II

The second and third issues are subsumed in our analysis of the first issue and require no further discussion.

Ill

Despite our remand for a new trial, we discuss the defendant’s fourth claim because it may arise on retrial. The defendant claims that the trial court abused its discretion in permitting two witnesses to testify that the defendant was a lieutenant in a criminal gang known as Punk Nation.

Inmates Ely and Henry testified to the effect that they each participated in the assault because the defendant ordered them to do so. The inmates, also gang members, testified that the defendant’s orders carried significant weight because the defendant held a position of rank in the gang. Ely testified that his reason for participating in the assault was so that he would be permitted to quit the gang without being beaten. He further testified that he believed that the defendant held the rank of lieutenant or captain in the gang.

The defendant argues that any probative value of this evidence is outweighed by its prejudice to the defendant. Probative evidence, although in some respects prejudicial, “is admissible if the trial court, in the exercise of its sound discretion, determines that its probative value, for one or more of the purposes for which it is admissible, outweighs its prejudicial impact on the accused.” State v. Ramsunder, 204 Conn. 4, 15, 526 A.2d 1311, cert. denied, 484 U.S. 955, 108 S. Ct. 348, 98 L. Ed. 2d 374 (1987).

The trial court has broad discretion in determining whether the probative value of proffered evidence is outweighed by the prejudice that is likely to result from its admission. State v. Prioleau, 235 Conn. 274, 315, 664 A.2d 743 (1995). We will reverse the trial court only where it has been demonstrated to this court that the trial court abused its discretion. State v. Brown, 169 Conn. 692, 702, 364 A.2d 186 (1975).

The evidence that the defendant was a gang member of rank was highly probative because it served to explain why Ely and Bridgeforth participated in the attack on the victim. Gang affiliation, common among all the inmates who joined in the assault, was also important to negate the defendant’s assertion that he was in no way connected to the incident. We cannot agree that in this case the probative value of such evidence is clearly outweighed by its prejudicial impact. Under the circumstances of the present case, we conclude that the trial court did not abuse its discretion by admitting evidence that the defendant was a lieutenant in a criminal gang.

The judgment is reversed and the case is remanded for a new trial.

In this opinion the other judges concurred.

       The defendant’s first three claims were as follows: (1) This court should reconsider and reverse our decision in State v. Morales, 33 Conn. App. 184, 634 A.2d 1193 (1993); (2) the trial court improperly failed to find that destruction of potentially useful evidence violated the defendant’s due process rights under the state and federal constitutions; and (3) the trial court improperly failed to charge the jury that it could draw an adverse inference from the destruction of potentially useful evidence.

       A cubicle refers to the space in which a prisoner is housed. In this case, the dormitory where the assault took place housed 112 inmates divided among numerous cubicles separated by walls approximately four feet tall. Pour inmates were assigned to each even numbered cubicle and nine were assigned to each odd numbered cubicle.

       A shank is a homemade knife.

       Article first, § 8, of the Connecticut constitution provides in pertinent part: “No person shall be compelled to give evidence against himself, nor be deprived of life, liberty or property without due process of law . . . .”

       As a result of the remand in State v. Morales, supra, 232 Conn. 707, this court has recently decided State v. Morales, 39 Conn. App. 617, 667 A.2d 68 (1995). Although State v. Morales, supra, 39 Conn. App. 617, discusses the principles that are currently before us, that decision does not affect our analysis of the present case.

       The Supreme Court decision in State v. Morales, 232 Conn. 707, was pending when the defendant took his appeal to this court in the present case.


author: FOTI, J.

text:
    RONALD DASILVA v. DANBURY PUBLISHING COMPANY, A DIVISION OF OTTAWAY NEWSPAPERS, INC., ET AL.
    (13882)
    O’Connell, Foti and Spear, Js.
    Argued September 12
    decision released November 7, 1995

      Scott R. McCarthy, for the appellant (plaintiff).

      David W. Schoolcraft, for the appellees (defendants).
   FOTI, J.

The plaintiff appeals, pursuant to General Statutes § 31-30lb, from the decision of the compensation review board (board) affirming the findings of the workers’ compensation commissioner (commissioner) and his determination that the plaintiff was an independent contractor rather than an employee of the named defendant. On appeal, the plaintiff claims that the board improperly affirmed the commissioner’s decision that the subordinate facts support a finding that the plaintiff was an independent contractor. The plaintiff also asserts that the classification of newspaper carriers as independent contractors is an antiquated and purposeful device used by publishers to avoid their responsibilities to minors in violation of the public policy of this state.

The commissioner made the following findings that are pertinent to this appeal. In January, 1992, the plaintiff started delivering The News Times, an afternoon newspaper published by the named defendant, the Dan-bury Publishing Company (Danbury Publishing). On February 16, 1993, the plaintiff, who was then fourteen years of age, suffered an eye injury while in the process of delivering the newspaper to residential subscribers in Danbury. The newspapers were dropped off each day at the plaintiffs house for delivery by him to subscribers designated by Danbury Publishing. The newspapers were purchased by the plaintiff at a wholesale price and sold to the subscribers on his route at a retail price suggested by Danbury Publishing. The plaintiff kept all moneys, including tips, received over and above the wholesale cost of the newspapers. He was billed each week by the publisher for the wholesale cost of the newspapers delivered to him and was responsible for the payment of that bill regardless of whether he was paid by the subscribers. Included in the plaintiffs bill from Danbury Publishing was a fifty cent per week charge for newspaper carrier accident insurance. The plaintiff claims that the insurance fee was mandatory, while the publisher maintains that it was optional. The plaintiff kept a record of his collections in a book that he purchased from the publisher. In delivering the newspapers, he traveled on foot or on his own bicycle, carrying the newspapers in a bag that he also purchased from the publisher. While he was orally advised by The News Times of a guideline calling for delivery of the newspapers by a certain time, he was not told in what order to deliver the papers along his route, and he adopted his own routine for their daily delivery. If for any reason he could not deliver some or all of the papers at any given time, he was personally responsible for getting a substitute to do so. He was free to deliver other publications and he could solicit new customers even if they were located on another carrier’s route. If a carrier failed to deliver a newspaper to a subscriber on a given day, the publisher would do so, but if that carrier was repeatedly remiss in completing a delivery route, the publisher would stop wholesaling newspapers to that carrier.

On the basis of the evidence presented, the commissioner dismissed the plaintiffs claim for workers’ compensation, concluding that he was an independent contractor and not an employee of Danbury Publishing. The plaintiff appealed that ruling to the board, which affirmed the findings of the commissioner. The plaintiff now appeals from the board’s decision. We affirm the decision.

“As a preliminary matter, we note that . . . [the] board ... is obligated to hear the appeal on the record of the hearing before the commissioner. . . . The commissioner, as trier of facts, has the power and duty to determine the facts, and the conclusions drawn from those facts as found must stand unless they result from an incorrect application of the law to the subordinate facts or from an inference illegally or unreasonably drawn from them.” (Citation omitted; internal quotation marks omitted.) Moxon v. Board of Trustees of Regional Community Colleges, 37 Conn. App. 648, 650-51, 657 A.2d 699, cert. denied, 234 Conn. 908, 659 A.2d 1209 (1995). “Our scope of review of the actions of the review division is similarly limited.” DeBarros v. Singleton, 21 Conn. App. 107, 110, 572 A.2d 69, cert. denied, 215 Conn. 808, 576 A.2d 538 (1990).

Whether someone is an employee or an independent contractor is a question of fact, absent controlling circumstances. Ross v. Post Publishing Co., 129 Conn. 564, 567, 29 A.2d 768 (1943). The ultimate test is “the right of general control of the means and methods used by the person whose status is involved.” Id. The plaintiff does not dispute that these principles accurately present the authoritative rules of law governing his claim. He contends, however, that the subordinate facts found by the commissioner overwhelmingly support a finding of a master-servant relationship rather than one of an independent contractor. The facts found by the commissioner, which the plaintiff advances in support of his argument, include his status as a minor at the time of the accident, the control the publisher had over him, the nature of the work performed, i.e., the work performed by the plaintiff was part of the publisher’s regular business, and his continuity of service.

We conclude that none of the above findings presents the type of controlling circumstance required to transform the query of the nature of the plaintiffs relationship with the defendant from one of fact into one of law. This court cannot overrule Ross. The commissioner’s findings of fact are properly focused on the issue of control. His conclusion that the plaintiff was an independent contractor must stand because it was not illegally or unreasonably drawn from the subordinate facts.

The plaintiff argues that public policy requires that he be protected under workers’ compensation laws because his minor status prevented him from understanding the ramifications of being an independent contractor. We cannot accept the plaintiffs assertion that public policy requires his protection under the workers’ compensation laws because he may have lacked the capacity to form a contract to act as an independent contractor. If we were to accept such an argument, it would follow that the plaintiff also lacked the capacity to enter into an employment contract. We leave the public policy concerns regarding newscarriers to the discretion of the legislature.

We conclude that the subordinate findings of the commissioner are sufficient to support his final determination that the plaintiff was an independent contractor.

The decision of the compensation review board is affirmed.

In this opinion the other judges concurred.

       General Statutes § 31-30 lb provides: “Any party aggrieved by the decision of the Compensation Review Board upon any question or questions of law arising in the proceedings may appeal the decision of the Compensation Review Board to the appellate court.”

       One commissioner dissented.


author: HEIMAN, J.

text:
    STATE OF CONNECTICUT v. KENNETH LEMOINE, JR.
    (11701)
    Dupont, C. J., and Landau and Heiman, Js.
    Submitted September 7
    decision released November 7, 1995

      Paul T. Edwards, special public defender, for the appellant (defendant).

      Marjorie Allen Dauster, assistant state’s attorney, with whom, on the brief, were Michael Dearington, state’s attorney, Maxine Wilesky, assistant state’s attorney, and Trisha Morris, law student intern, for the appellee (state).
   HEIMAN, J.

This matter is before us on remand from our Supreme Court. State v. Lemoine, 233 Conn. 502, 659 A.2d 1194 (1995). The defendant originally appealed to this court from the judgment of conviction, rendered after a jury trial, of sexual assault in the third degree in violation of General Statutes § 53a-72a (a) (1) (B), risk of injury to a child in violation of General Statutes § 53-21, and two counts of assault of a peace officer in violation of General Statutes (Rev. to 1991) § 53a-167c (a) (1). State v. Lemoine, 33 Conn. App. 743, 744, 641 A.2d 131 (1994). In his original appeal to us, the defendant asserted that the trial court had improperly (1) denied his motions for a directed verdict and judgment of acquittal on the count of sexual assault in the third degree, (2) instructed the jury by failing to relate the issues of law to the facts of the case, and (3) instructed the jury on the crime of risk of injury to a child. Id. Concerning the defendant’s first claim, we concluded that the trial court properly denied the defendant’s motions for a directed verdict and judgment of acquittal because the evidence was sufficient to support the conviction of the defendant for the crime of sexual assault in the third degree. Id., 747-48A. We agreed with the defendant’s second claim, however, that the trial court improperly failed to relate the issues of law to the facts of the case and on that ground reversed the judgment of the trial court. Id., 748A-54. Because we agreed with the defendant’s second claim, we did not address the defendant’s third claim that the trial court improperly instructed the jury as to the crime of risk of injury to a child. Id., 744, 744 n.4.

Our Supreme Court granted the state’s petition for certification. State v. Lemoine, 230 Conn. 909, 644 A.2d 920 (1994). The Supreme Court reversed this court and remanded the case to us with direction to resolve the remaining issues on appeal. State v. Lemoine, supra, 233 Conn. 516. The only remaining claim in this appeal is the defendant’s third claim that the trial court improperly instructed the jury on the crime of risk of injury to a child. State v. Lemoine, supra, 33 Conn. App. 744 n.4. We are not persuaded that the jury instructions as to the crime of risk of injury to a child were improper. We therefore affirm the judgment of the trial court.

“The jury could reasonably have found the following facts. On June 20, 1991, the victim, his mother, the defendant, Barbara Tirado and her daughter went to a lake. The victim was eight years old at the time. After staying at the lake, they drove to the home of the defendant’s mother, then to the home of his sister and then to Tirado’s home located on Maple Street in Meriden. The victim’s father later joined the group and the adults all began drinking. The victim fell asleep on the couch in Tirado’s home wearing his pants, shirt and underpants. The victim’s father was asleep on a chair near the couch and the victim’s mother was asleep in another room. The victim awoke to find the defendant placing his hands between the victim’s legs on the outside of the victim’s pants. The defendant was attempting to pull down the victim’s pants. The defendant was behind the victim on the couch and the victim was facing away from the defendant. The defendant told him to be quiet. The victim took off his pants while the defendant continued to touch the outside of the underpants between the legs and then the defendant cut the victim’s underpants. The victim was scared and ran to his mother’s room and told her what had just occurred.

“The victim’s mother ran into the living room to wake the victim’s father. In the meantime, the defendant, who was wearing only a tee shirt, ran down the stairs and out the backdoor. Tirado caught the defendant outside and asked him ‘why he did it’ and the defendant responded that he was sorry and the drugs made him do it. Tirado brought the defendant back upstairs. The victim’s father and the defendant then fought while the victim’s mother took off the victim’s underpants and dressed him. The victim then went downstairs with his parents and got into a van. The victim’s father began to drive on Main Street in Meriden to the police station when he obseived the defendant driving a truck with Tirado as a passenger on Maple Street. The victim’s father blocked the defendant’s vehicle and the two vehicles collided. The victim and his mother exited the van and proceeded to the side of the road.

“Officers Michael Merrigan, Mark Masse and Grant Treiber of the Meriden police department arrived at the scene in uniform shortly thereafter. Merrigan approached the father and was informed by him about the events that occurred at Tirado’s home. Masse and Treiber approached the defendant’s vehicle and asked him to exit it. As they attempted to open the door of the defendant’s vehicle and take the keys, the defendant hit Treiber in the face and drove the vehicle in reverse. The officers at that point were hanging onto the doors of the vehicle. The truck veered to the right and almost hit a building on Maple Street. Treiber fell off the side of the truck and Masse hit a door attached to the building with sufficient force to break a hole in the door. Masse sustained lacerations to his right hand, right forearm, shoulder and back. Treiber sustained bruises and injured his right hand. Treiber then placed the defendant under arrest.

“At the crime scene, Robert Pocobello, a Meriden police detective, seized a pair of scissors and underpants. He discovered the scissors on a coffee table near the couch and the underpants on the couch. Pocobello processed the scissors for fingerprints. The processing revealed the presence of fingerprints that were not clear enough to be identified.

“Ted Standish, another Meriden police detective, employed by the department’s sexual assault unit, interviewed the victim on June 21, 1991. The victim stated that after arriving at Tirado’s home, she told him to sleep on the couch, where the defendant was already sleeping. The victim further told Standish that he awoke when the defendant placed his hands on the victim’s ‘dinky’ and that the defendant pulled at the victim’s pants. The victim also told Standish that the defendant told the victim to take off his pants and keep quiet. The victim then told Standish that the defendant tried to make him take off his underpants and when he refused, the defendant cut the underpants with scissors.

“The defendant disputed the facts. He testified on his own behalf that he, the victim, Tirado and the victim’s mother arrived at Tirado’s home after they had spent the day at the lake. The defendant also testified that he left Tirado’s at 11 p.m., just after the victim’s father arrived, returned at around 4:30 or 5 a.m., and found Tirado and the victim’s father drinking and the victim asleep on the couch. The defendant also stated that he fell asleep on the couch, ‘opposite the victim’ and awoke to find the victim’s father with his hand in the pocket of the defendant’s pants, which the defendant had on, and thought that the victim’s father was attempting to steal money. The defendant then testified that he tried to get up and that the victim’s father jumped on him and hit him in the face. The defendant then testified that Tirado offered to drive him to the hospital and that he accepted Tirado’s offer. He further testified that as Tirado drove him to the hospital, the victim’s father forced their vehicle to a stop on Maple Street. The defendant then testified that he moved into the driver’s seat, placed the track in reverse and police officers tried to grab him, causing the track to move in reverse.” State v. Lemoine, supra, 33 Conn. App. 744-47.

In the only issue remaining to be resolved, the defendant asserts that the trial court improperly instructed the jury with respect to the law governing the crime of risk of injury to a child. We are unpersuaded. The defendant concedes that this issue was not properly preserved for review in the trial court, but seeks review under the well established principles of State v. Golding, 213 Conn. 233, 567 A.2d 823 (1989). We will not again set out the four prongs of Golding that the defendant must satisfy in order to show entitlement to review. Id., 239-40.

The following additional facts are necessary to the resolution of this appeal. In the third count of the long form information, the state charged the defendant with the crime of risk of injury to a child and alleged that “in the City of Meriden, on or about the 21st day of June, 1991, at or about 5:30 a.m, the said Kenneth Lemoine, Jr. did wilfully or unlawfully perform an act likely to impair the health or morals of a child, to wit: [D.N.], a minor, under the age of sixteen years, by causing the removal or attempted removal of clothing from such a child, and rubbing the genital area of said child in violation of Section 53-21 of the Connecticut General Statutes.” In its charge to the jury regarding the crime of risk of injury to a child, the trial court focused on the principle that the state had to establish three elements in order to prove the existence of the crime: “(1) that the victim was less than sixteen years of age, (2) that the defendant perpetrated an act upon the victim and (3) that this act was likely to be injurious to his health or morals. The acts prohibited are those acts that are directly perpetrated on the person of a minor and injurious to his health or moral well-being.” The trial court then properly defined the terms health and impair.

The defendant asserts that the trial court, in its jury instructions, failed to limit explicitly the jury’s inquiry to the specific acts alleged by the state in the third count of the information. The defendant claims that this failure unconstitutionally “enlarged” the crime with which the defendant had been charged. The trial court’s instruction regarding the third count of the information, however, is not an instruction that implicates a constitutional violation as enumerated in our enlargement case law. The defendant’s mere assertion that the jury instruction must be subjected to an enlargement analysis does not automatically mandate such an analysis. See State v. Webb, 37 Conn. App. 722, 730, 657 A.2d 711, cert. denied, 234 Conn. 915, 660 A.2d 357 (1995) (“ ‘[rjobing garden variety claims of improper jury instructions concerning evidentiary matters in the majestic garb of constitutional claims does not make such claims constitutional in nature’ ”). Our enlargement cases involve claims that the trial court expanded the state’s information by instructing the jury on statutory or factual alternatives not charged in the information. See, e.g., State v. Scognamiglio, 202 Conn. 18, 519 A.2d 607 (1987) (statutory alternative); State v. Marra, 222 Conn. 506, 610 A.2d 1113 (1992) (factual alternative). Enlargement cases are properly analyzed under the sixth amendment to the United States constitution and article first, § 8, of the Connecticut constitution. “ ‘The sixth amendment to the United States constitution and article first, § 8, of the Connecticut constitution guarantee a criminal defendant the right to be informed of the nature of the charge against him “with sufficient precision to enable him to prepare his defense and to avoid prejudicial surprise, and ... to enable him to plead his acquittal or conviction in bar of any future prosecution for the same offense . . . .” State v. Sumner, 178 Conn. 163, 168, 422 A.2d 299 (1979); State v. Roque, 190 Conn. 143, 154, 460 A.2d 26 (1983).’ State v. Franko, 199 Conn. 481, 490, 508 A.2d 22 (1986); State v. Couture, 194 Conn. 530, 560, 482 A.2d 300 (1984), cert. denied, 469 U.S. 1192, 105 S. Ct. 967, 83 L. Ed. 2d 971 (1985).” State v. Scognamiglio, supra, 22. It is incumbent upon the defendant in an enlargement case to demonstrate that the trial court’s charge caused him unfair surprise or prejudiced him in the preparation of his defense. Id.

Here, the trial court correctly set forth the elements of the crime of risk of injury, and did not expand the information by instructing the jury on a statutory or factual alternative not charged in the information. An unconstitutional enlargement is therefore not in issue. The instruction involved here is not the kind of instruction that we consider in the context of the test for enlargement to determine whether a constitutional violation exists that clearly deprived the defendant of a fair trial.

Although we conclude that no unconstitutional enlargement exists here, we will review the charge as a whole to determine if the charge deprived the defendant of a fair trial. “In reviewing a constitutional challenge to the trial court’s instructions, we must consider the jury charge as a whole to determine whether it is reasonably possible that the instruction misled the jury. State v. Avila, 223 Conn. 595, 607, 613 A.2d 731 (1992); State v. Santangelo, [205 Conn. 578, 595 n.11, 534 A.2d 1175 (1987)]; State v. Ruiz, 171 Conn. 264, 273, 368 A.2d 222 (1976). The test is whether the charge as a whole presents the case to the jury so that no injustice will result. . . . State v. Utz, 201 Conn. 190, 196-97, 513 A.2d 1191 (1986). . . . State v. Campbell, 225 Conn. 650, 661, 626 A.2d 287 (1993). We will reverse a conviction only if, in the context of the whole, there is a reasonable possibility that the jury was misled in reaching its verdict. State v. Scognamiglio, [supra, 202 Conn. 28]; State v. Shannon, 212 Conn. 387, 408, 563 A.2d 646, cert. denied, 493 U.S. 980, 110 S. Ct. 510, 107 L. Ed. 2d 512 (1989); State v. Fleming, 198 Conn. 255, 268-69, 502 A.2d 886, cert. denied, 475 U.S. 1143, 106 S. Ct. 1797, 90 L. Ed. 2d 342 (1986).

“A jury instruction is constitutionally adequate if it provides the jurors with a clear understanding of the elements of the crime charged, and affords them proper guidance for their determination of whether those elements were present. . . . State v. Usry, 205 Conn. 298, 316, 533 A.2d 212 (1987); State v. Sinclair, 197 Conn. 574, 581, 500 A.2d 539 (1985); see State v. Wood, 208 Conn. 125, 132, 545 A.2d 1026, cert. denied, 488 U.S. 895, 109 S. Ct. 235, 102 L. Ed. 2d 225 (1988). An instruction that fails to satisfy these requirements would violate the defendant’s right to due process of law as guaranteed by the fourteenth amendment to the United States constitution and article first, § 8, of the Connecticut constitution. State v. Anderson, 212 Conn. 31, 36, 561 A.2d 897 (1989); State v. Foster, 202 Conn. 520, 537, 522 A.2d 277 (1987); State v. Fleming, [supra, 198 Conn. 269-70]. . . . State v. Avila, supra, 223 Conn. 602-603.

“The test of a charge is whether it is correct in law, adapted to the issues and sufficient for the guidance of the jury. Berniere v. Kripps, 157 Conn. 356, 358, 254 A.2d 496 (1969); State v. Bell, 153 Conn. 540, 219 A.2d 218 (1966) .... The primary purpose of the charge is to assist the jury in applying the law correctly to the facts which they might find to be established. Vita v. McLaughlin, 158 Conn. 75, 77, 225 A.2d 848 (1969); Worden v. Francis, 153 Conn. 578, 579, 219 A.2d 442 (1966). . . . State v. Sumner, [178 Conn. 170]. The purpose of a charge is to call the attention of the members of the jury, unfamiliar with legal distinctions, to whatever is necessary and proper to guide them to a right decision in a particular case. Shea v. Tousignant, 172 Conn. 54, 59-60, 372 A.2d 151 (1976).” (Internal quotation marks omitted.) State v. Lemoine, supra, 233 Conn. 509-10.

Here, the defendant was charged in the state’s long form information in nine separate counts. See id., 512-13. “After the close of evidence and immediately after the final arguments of counsel, the trial court instructed the jury as to the law applicable to all of the charges against the defendant. The court first instructed the jury on the general principles of law applicable to the case, such as reasonable doubt, direct evidence, circumstantial evidence and other principles typically contained in all criminal jury instructions. The court then instructed the jury accurately as to the elements the state must prove as to each crime charged in the information in order to convict the defendant.” Id., 513.

We conclude that, in its charge to the jury, the trial court was not constitutionally obligated to articulate that the jury was limited in its consideration of the third count to the specific acts alleged by the state in its long form information. We are not persuaded that it was reasonably possible that the jury was misled by the trial court’s failure to do so. “Moreover, the information, which the jury had with it during its deliberations, clearly stated to which victim each of the nine counts pertained”; id., 514; and to which alleged acts of the defendant each of the nine counts pertained.

“In assessing whether a jury reasonably could have been misled by the court’s instructions ... it is always proper to consider whether the issues in the case are complicated.” Id., 514-15. “In the present appeal, although the defendant was charged with nine separate counts in the information, the evidence related to those charges was not complicated and the charges arose from three separate and distinct incidents. The first three counts against the defendant all related to the minor victim and concerned the incident involving sexual conduct at Tirado’s apartment. The two counts of reckless endangerment arose from the collision of the defendant’s truck with the victim’s father’s van at the comer of Maple Street and Main Street in Meriden. The assault counts involved only the police officers. The three incidents were not similar. Moreover, the final arguments of counsel, delivered immediately prior to the court’s instructions, thoroughly reviewed the testimony elicited from the witnesses.” Id., 515-16.

“We conclude that the court’s jury instructions, when examined as a whole and in the context of the entire trial, achieved their purpose of assisting the jury in applying the law. See State v. Sumner, supra, 178 Conn. 170-71. . . . We also conclude that it was not reasonably possible that the jury was misled by the trial court’s instructions and that no injustice to the defendant resulted by reason of the court’s instructions. See Amato v. Sawicki, 159 Conn. 490, 494, 271 A.2d 80 (1970). There was, therefore, no due process violation under either the state or the federal constitution.” State v. Lemoine, supra, 233 Conn. 516.

The judgment is affirmed.

In this opinion the other judges concurred.

       General Statutes § 53a-72a (a) provides in pertinent part: “A person is guilty of sexual assault in the third degree when such person (1) compels another person to submit to sexual contact . . . (B) by the threat of use of force against such other person or against a third person, which reasonably causes such other person to fear physical injury to himself or herself or a third person . . .

       General Statutes § 53-21 provides: “Any person who wilfully or unlawfully causes or permits any child under the age of sixteen years to be placed in such a situation that its life or limb is endangered, or its health is likely to be injured, or its morals likely to be impaired, or does any act likely to impair the health or morals of any such child, shall be fined not more than five hundred dollars or imprisoned not more than ten years or both.”

       General Statutes (Rev. to 1991) § 53a-167c (a) provides in pertinent part: “A person is guilty of assault of a peace officer, fireman, employee of an emergency medical service organization or employee of the department of correction when, with intent to prevent a reasonably identifiable peace officer, fireman or employee of an emergency medical service organization, as defined in section 53a-3, or employee of the department of correction from performing his duty, and while such peace officer, fireman or employee is acting in the performance of his duties, (1) he causes physical injury to such peace officer, fireman or employee . . .

       The grant of certification was limited to the following issues:
      “1. Did the Appellate Court properly conclude that the trial court had a constitutional obligation to refer to the facts relating to each charge in its jury instructions?
      “2. Did the Appellate Court correctly order a new trial because the trial court did not relate the facts to each crime charged?” State v. Lemoine, supra, 230 Conn. 909.

       In its opinion remanding this matter to us, our Supreme Court states: “Because the Appellate Court agreed with the defendant’s second claim, it did not reach the defendant’s first and third claims.” State v. Lemoine, supra, 233 Conn. 505 n.4. We did, however, in our first opinion, resolve both issues one and two, leaving unresolved only issue three. State v. Lemoine, supra, 33 Conn. App. 747-54.

       The victim testified that his underwear was left in Tirado’s bedroom. The victim’s mother testified that she did not remember where the underwear was left.

       “Standish testified that the victim pointed to his penis when he used the word ‘dinky.’ ” State v. Lemoine, supra, 33 Conn. App. 747 n.6.

       “The first two conditions [of Golding] are determinations of whether a defendant’s claim will be reviewed, and the third condition involves a review of the claim itself.” State v. Graham, 33 Conn. App. 432, 442, 636 A.2d 852, cert. denied, 229 Conn. 906, 640 A.2d 117 (1994).


author: SPEAR, J.

text:
    JOSEPHINE AVELLA v. ANTONIO AVELLA
    (13763)
    Heiman, Spear and Hennessy, Js.
    Argued September 19
    decision released November 7, 1995

      Alfred F. Morrocco, Jr., with whom, on the brief, was Thomas W. Conlin, for the appellant (plaintiff).

      William F. O’Shea, with whom, on the brief, was Louis Kiefer, for the appellee (defendant).
   SPEAR, J.

The plaintiff appeals from the judgment of the trial court granting the defendant’s motion for modification of alimony that was ordered pursuant to the dissolution of the parties’ marriage. On appeal, the plaintiff asserts that the trial court’s modification of the alimony was improper because (1) the evidence did not support a finding of a substantial change in circumstances, and (2) the court considered the defendant’s motion for modification prior to rendering a decision on the plaintiffs motion for contempt. We disagree with both of the plaintiffs assertions and affirm the judgment of the trial court.

The pertinent facts are as follows. In 1991, the plaintiff brought an action for dissolution of the parties’ marriage. On January 7, 1993, the trial court granted a dissolution of the nineteen and one-half year marriage. Pursuant to a stipulation that was made part of the judgment, the trial court ordered the defendant to maintain the plaintiff on his medical insurance plan for three years under COBRA, but ordered the plaintiff to pay for the cost of the insurance. The trial court further ordered the defendant to pay the plaintiff $271 per month as alimony, “which shall be nonmodifiable as to amount . . . ,” At the time of the judgment, the plaintiff was unemployed. On July 19, 1993, the defendant filed a motion to open the judgment claiming that the plaintiffs recent employment constituted a substantial change in circumstances. The parties subsequently entered into a stipulation on August 2, 1993, whereby they agreed to terminate the order requiring the defendant to maintain medical insurance for the plaintiff. The stipulation was silent as to alimony.

On September 23, 1993, the defendant filed a motion to open and correct the judgment, a motion to reform the separation agreement, and a motion for modification. On December 21, 1993, the plaintiff filed a motion for contempt, alleging that the defendant was in arrears on his alimony and child support payments. On June 15, 1994, the trial court denied the defendant’s motion to open and correct the judgment and his motion to reform the separation agreement. The trial court, however, granted the defendant’s motion for modification and modified the alimony to “zero dollars as of September 19, 1993.” The trial court took no action on the motion for contempt and this appeal followed.

I

The plaintiff first maintains that, pursuant to General Statutes § 46b-86 (a), there was not a substantial change in circumstances to warrant the termination of alimony. The plaintiff contends that the trial court should have focused on the time period between the August 2, 1993 stipulation and the defendant’s September 23, 1993 motion for modification in determining whether there had been a substantial change in circumstances. She further asserts that the trial court improperly considered the time period between the original judgment and the defendant’s motion for modification in making its determination. We do not agree.

The plaintiff principally relies on language in commentary that states: “Once there has been a modification of the original decree, any subsequent modification depends upon changed circumstances arising not since the original decree but since the date of the earlier modification.” 7 A. Rutkin, E. Effron & K. Hogan, Connecticut Practice Series: Family Law and Practice with Forms (1991) § 34.8, p. 583. Because the stipulation of August 2,1993, constituted a modification of the original decree, the plaintiff maintains that the trial court should have used the date of the stipulation, and not the date of the original decree, in determining the appropriate time period for reviewing whether there was a substantial change in circumstances.

The plaintiffs reliance on that particular language in the commentary is misplaced. The language that immediately follows in the commentary states: “It is not sufficient for there simply to have been a substantial change of circumstances since the time of the immediately previous court proceeding. Rather, the change must be since the most recent prior proceeding in which an alimony order was entered.” (Emphasis added.) Id. Although the stipulation entered into by the parties modified the original judgment with respect to medical insurance and child support, the stipulation was silent as to alimony. The most recent prior proceeding in which an alimony order was entered was the original judgment awarding the plaintiff alimony of $271 per month. Accordingly, it is the date of that judgment that must be used in determining whether a change in circumstances warranted a modification of the alimony award. The record reflects that after the date of the original judgment, the plaintiff was able to secure full-time employment as well as health benefits. The trial court did not abuse its discretion in finding a substantial change in circumstances and, consistent with that finding, in modifying the alimony order.

II

The plaintiff next claims that pursuant to Practice Book § 464 (a), the trial court was required to consider her motion for contempt prior to, or concurrent with, the defendant’s motion for modification. We disagree.

Practice Book § 464 (a) provides that “[u]pon an application for a modification of an award of . . . alimony . . . filed by a person who is then in arrears under the terms of such award, the court shall, upon hearing, ascertain whether such arrearage has accrued without sufficient excuse so as to constitute a contempt of court, and, in its discretion, may determine whether any modification of current alimony . . . shall be ordered prior to the payment, in whole or in part as the court may order, of any arrearage found to exist.” The plaintiff maintains that this language mandates that the trial court consider the motion for contempt prior to the motion for modification.

Our cases have held that Practice Book § 464 (a) is merely directory. “The court [has] discretion in deferring action on the motion for modification until the contempt proceeding [has] been resolved.” Mays v. Mays, 193 Conn. 261, 267, 476 A.2d 562 (1984); see also Bryant v. Bryant, 228 Conn. 630, 639, 637 A.2d 1111 (1994). We are also guided by General Statutes § 46b-8 and our Supreme Court’s recent interpretation of that statute. Section 46b-8 provides that “[w]henever a motion for modification of an order for support and alimony is made to the superior court by a moving party against whom a motion for contempt for noncompliance with such order is pending, the court shall accept such motion and hear both motions concurrently.” In Bryant, the Supreme Court, in deciding whether § 46b-8 is mandatory or directory, concluded that “[§] 46b-8 merely sets forth a procedure whereby the trial court may consider a motion for modification jointly with a motion for contempt when doing so would be in the interests of the orderly and efficient resolution of the two motions.” (Emphasis added.) Bryant v. Bryant, supra, 639. Although the court in Bryant addressed the issue of whether § 46b-8 is mandatory or directory, the court, in concluding that the statute was directory, emphasized that “[t]his conclusion is also consistent with Practice Book § 464 (a) . . . .” Id., 639 n.7. Therefore, the right of the trial court to defer action on the motion for modification under § 46b-8, and likewise under Practice Book § 464 (a), is discretionary. Granting the defendant’s motion for modification prior to taking action on the plaintiffs motion for contempt was an appropriate exercise of that discretion.

The judgment is affirmed.

In this opinion the other judges concurred.

       The plaintiff makes no claim in her brief that this language precluded the trial court from modifying the alimony pursuant to General Statutes § 46b-86 (a). Section 46b-86 (a) provides in pertinent part: “Unless and to the extent that the decree precludes modification, any final order for the periodic payment of permanent alimony . . . may at any time thereafter be continued, set aside, altered or modified by said court upon a showing of a substantial change in the circumstances of either party . . . .” (Emphasis added.) Rather, the plaintiff claims that modification was improper because there was not a substantial change in circumstances and because the parties did not intend “that the plaintiffs alimony be tied to reemployment and ability to obtain health insurance . . . .” Accordingly, since the plaintiff has failed to brief the issue as to whether the nonmodifiable clause precluded modification, we must treat the issue as abandoned. Bridgeport Hospital v. Commission on Human Rights & Opportunities, 232 Conn. 91, 115, 653 A.2d 782 (1995); Allstate Ins. Co. v. Link, 35 Conn. App. 338, 343, 645 A.2d 1052, cert. denied, 231 Conn. 924, 648 A.2d 161 (1994).

       See footnote 1.


author: LAVERY, J.

text:
    JOAQUIN SANTIAGO v. COMMISSIONER OF CORRECTION ERIBERTO DELEON v. COMMISSIONER OF CORRECTION JULIO ARROYO v. COMMISSIONER OF CORRECTION FLOYD JOHNSON v. COMMISSIONER OF CORRECTION EVERETT BREEDLOVE v. COMMISSIONER OF CORRECTION
    (14219)
    (14220)
    (14221)
    (14223)
    (14224)
    Foti, Lavery and Landau, Js.

      Argued September 21
    decision released November 14, 1995

      Mei-wa Cheng, with whom, on the brief, was A. Cristina Cabral, for the appellants (petitioners).

      Steven R. Strom, assistant attorney general, with whom were Madeline A. Melchionne, assistant attorney general, and, on the brief, Richard Blumenthal, attorney general, for the appellee (respondent).
   LAVERY, J.

The petitioners appeal from the judgments of the trial court dismissing their petitions for writs of habeas corpus. In this consolidated appeal, the petitioners claim that the trial court improperly granted the commissioner of correction’s (respondent) motion to quash their petitions because it failed to find a legally cognizable liberty interest on the face of the petitions. The petitioners also claim that the trial court improperly found that they did not allege sufficient facts to support a finding of cruel and unusual punishment. Finally, the petitioners claim that the department of correction (department) violated the Uniform Administrative Procedure Act by failing to promulgate properly the department’s Administrative Directive § 6.14.

The petitioners in this case are five inmates at various correctional facilities in Connecticut. At some point during their incarceration, the department designated each inmate as a security risk group member pursuant to the department’s Administrative Directive § 6.14. The petitioners claim that the department erroneously and unconstitutionally labeled them as members of various street gangs, which resulted in their being classified as security risk group members. They allege that such designation has violated their constitutional rights to due process under article first, §§ 8 and 10, of the Connecticut constitution, and the fifth and fourteenth amendments to the United States constitution. They further claim that this designation has violated the constitutional right to be free from cruel and unusual punishment under the eighth and fourteenth amendments to the United States constitution.

Although this court has consolidated these appeals for the purposes of disposition, it is important to note that the allegations made in each of the petitions are not identical. The petitioners Joaquin Santiago, Eriberto DeLeon, Julio Arroyo and Everett Breedlove allege similar due process violations. These petitioners claim that they were denied due process because of the erroneous designation, and that they have suffered a loss of recreation, school and work privileges, as well as access to the prison law library. Santiago, DeLeon and Arroyo further allege that their rights to be free from cruel and unusual punishment have been violated “by the retention of erroneous information such that [they are] subjected to unduly harsh conditions of continuing confinement as long as the erroneous information remains on [their] records . . . .”

The petitioner Floyd Johnson alleges that as a direct result of the erroneous designation as a security risk group member he has lost good time credits toward the diminution of his length of confinement. He claims that the “erroneous designation . . . has made [him] ineligible for restoration of lost good time credits and thus, subjects [him] to a lengthier sentence in deprivation of his state and federal constitutional rights to be free from excessive confinement which constitutes cruel and unusual punishment under the Eighth and Fourteenth Amendments to the U.S. Constitution.” As have the other petitioners, Johnson claims that as a result of the erroneous designation, he has suffered a loss of school, work and recreation privileges, as well as a loss of familial visits and access to the prison law library.

The trial court granted the respondent’s motion to quash all of the petitions on the ground that security classifications fall outside the subject matter jurisdiction of habeas corpus proceedings because such claims fail to attack the length of confinement. We affirm the trial court with respect to Santiago, DeLeon, Arroyo and Breedlove. We find, however, that Johnson has alleged sufficient facts to constitute a legally recognized habeas corpus claim. We therefore reverse the judgment of the trial court with respect to Johnson’s petition.

I

The proper vehicle for attacking the legal sufficiency of a petition for a writ of habeas corpus is a motion to quash. Practice Book § 532; see also Holcomb v. Commissioner of Correction, 39 Conn. App. 485, 490, 644 A.2d 1199 (1995). Practice Book § 532 provides that when the court considers a motion to quash a petition for a writ of habeas corpus, the allegations made in the petition are deemed admitted. Because a motion to quash is analogous to a motion to strike in a civil action, the court does not look to facts outside those alleged in the petition. Liljedahl Bros., Inc. v. Grigsby, 215 Conn. 345, 348-49, 576 A.2d 149 (1990); Pi v. Delta, 175 Conn. 527, 528, 400 A.2d 709 (1978); Holcomb v. Commissioner of Correction, supra, 490.

Basing our inquiry solely on the facts alleged in the petition, we must determine whether each petitioner has alleged sufficient facts to confer subject matter jurisdiction on the habeas court. The scope of relief available through a petition for habeas corpus is limited. In order to invoke the trial court’s subject matter jurisdiction in a habeas action, a petitioner must allege that he is illegally confined or has been deprived of his liberty. Our Supreme Court found that “[t]he writ of habeas corpus, as it is employed in the twentieth century, however, does not focus solely upon a direct attack on the underlying judgment or upon release from confinement”; Lozada v. Warden, 223 Conn. 834, 841, 613 A.2d 818 (1992); but is available as aremedy for issues of fundamental fairness implicating constitutional rights. Id., 840; see also Arey v. Warden, 187 Conn. 324, 445 A.2d 916 (1982) (claims concerning conditions of confinement may be brought in habeas coipus proceeding). This court has similarly recognized that “the well established precepts of illegal detention and deprivation of constitutional rights remain the touchstones of [habeas coipus] jurisdiction.” Vincenzo v. Warden, 26 Conn. App. 132, 138 n.4, 599 A.2d 31 (1991). We must therefore determine whether the petitioners have alleged sufficient facts to constitute the deprivation of a legally recognized constitutional right.

II

The petitioners initially claim that the trial court improperly quashed their petitions by finding that they failed to allege sufficient facts to support a constitutional due process violation. On the basis of our examination of the allegations in each petition, we find that Santiago, DeLeon, Arroyo and Breedlove have not alleged sufficient facts to show that the department deprived them of their constitutional due process rights through its enforcement of Administrative Directive § 6.14. Johnson, however, has alleged sufficient facts in his petition to support a due process claim and to invoke the subject matter jurisdiction of the trial court in a habeas corpus proceeding.

A

In order to prevail on a due process claim, the petitioners must show that they have been deprived of a legally recognized liberty interest, and that they have been deprived of liberty without due process of law. Johnson v. Meehan, 225 Conn. 528, 546, 626 A.2d 244 (1993). “While no State may ‘deprive any person of life, liberty, or property, without due process of law,’ it is well settled that only a limited range of interests fall within this provision. Liberty interests protected by the Fourteenth Amendment may arise from two sources—the Due Process Clause itself and the laws of the States.” Hewitt v. Helms, 459 U.S. 460, 466, 103 S. Ct. 864, 74 L. Ed. 2d 675 (1983).

Each petitioner alleges that he has suffered a loss of recreation, school and work privileges because of his designation as a security risk group member. Johnson and Breedlove allege that they have suffered a loss of contact visits with their families. Even if we assume those facts to be true, the allegations fail to implicate a protected liberty interest. A prisoner has no property or liberty interest in prison employment, increased recreation or educational courses. See Garza v. Miller, 688 F.2d 480, 485 (7th Cir. 1982), cert. denied, 459 U.S. 1150, 103 S. Ct. 796, 74 L. Ed. 2d 1000 (1983). Similarly, inmates have no protected liberty interest in access to visitors. Kentucky Dept. of Corrections v. Thompson, 490 U.S. 454, 460-61, 109 S. Ct. 1904, 104 L. Ed. 2d 506 (1989). The allegations are insufficient to support subject matter jurisdiction in a habeas corpus proceeding.

Each petitioner’s allegation that he has suffered a loss of any access to the prison law library similarly does not rise to a constitutional violation. We recognize that “the fundamental constitutional right of access to the courts requires prison authorities to assist inmates in the preparation and filing of meaningful legal papers by providing prisoners with adequate law libraries or adequate assistance from persons trained in the law.” Bounds v. Smith, 430 U.S. 817, 828, 97 S. Ct. 1491, 52 L. Ed. 2d 72 (1977). Practices or regulations are invalid under Bounds only if the prisoner is denied access to both legal assistance and legal materials. See Casey v. Lewis, 43 F.3d 1261, 1267 (9th Cir. 1994), cert. granted, 514 U.S. 1126, 115 S. Ct. 1997, 131 L. Ed. 2d 999 (1995); Abdul-Akbar v. Watson, 4 F.3d 195, 203-204 (3d Cir. 1993); Morello v. James, 810 F.2d 344, 347 (2d Cir. 1987). The petitioners make no allegations that they have been denied access to legal materials or assistance in preparing legal memoranda. Therefore, the petitioners have failed to allege sufficient facts to constitute a constitutional violation under Bounds.

B

Because this court found insufficient facts alleging deprivation of a legally recognized liberty interest on the face of their petitions, Santiago, DeLeon, Arroyo and Breedlove next urge us to incorporate into their petitions all possible liberty interests implicated by the enforcement of Administrative Directive § 6.14. Specifically, these petitioners claim that they have been deprived of a liberty interest in retaining good time credit pursuant to General Statutes § 18-7a (c), even though they make no such allegation in their petitions. It is well settled that essential allegations in a pleading may not be supplied by conjecture or remote implication. Cahill, v. Board of Education, 198 Conn. 229, 236, 502 A.2d 410 (1985); Preleski v. Farganiasz, 97 Conn. 345, 348, 116 A. 593 (1922). We decline to supplement their petitions by speculating as to any possible constitutional interests implicated by the department’s directive.

We find that Santiago, DeLeon, Arroyo and Breedlove have failed to allege sufficient facts showing a due process violation.

C

Johnson alleges in his petition that, as a direct result of his designation as a member of a security risk group, he has suffered a loss of good time credits that would have shortened the term of his confinement. We find that this allegation sufficiently implicates a liberty interest to support a constitutional due process claim.

While there is no fourteenth amendment right for an inmate to receive good time credits, when a state creates a right to good time credits, it is “required by the Due Process Clause to insure that the state-created right is not arbitrarily abrogated.” Wolff v. McDonnell, 418 U.S. 539, 557, 94 S. Ct. 2963, 41 L. Ed. 2d 935 (1974). Earned statutory good time credits cannot be forfeited without due process. Superintendent v. Hill, 472 U.S. 445, 453, 105 S. Ct. 2768, 86 L. Ed. 2d 356 (1985); Wolff v. McDonnell, supra, 557-58; McCarthy v. Warden, 213 Conn. 289, 298-99, 567 A.2d 1187 (1989), cert. denied, 496 U.S. 939, 110 S. Ct. 3220, 110 L. Ed. 2d 667 (1990). Because Johnson’s allegation can be construed to include a loss of earned statutory good time credits, we find that he has alleged facts sufficient to implicate a recognized liberty interest. Therefore, the motion to quash directed to Johnson’s petition should not have been granted.

Ill

Santiago, DeLeon, Arroyo and Johnson also claim that their designation as security risk group members has rendered them subject to cruel and unusual punishment. They do not claim that their conditions of confinement would constitute cruel and unusual punishment if their designations as security risk group members are correct. Rather, they claim that an erroneous designation of a prisoner as a security risk group member results in enhanced penalties and constitutes cruel and unusual punishment.

Cruel and unusual punishment refers to punishment that involves the unnecessary and wanton infliction of pain or is grossly disproportionate to the severity of the crime. Arey v. Warden, supra, 187 Conn. 328. “In its prohibition of cruel and unusual punishments, the Eighth Amendment places restraints on prison officials, who may not, for example, use excessive physical force against prisoners. . . . The Amendment also imposes duties on these officials, who must provide humane conditions of confinement; prison officials must ensure that inmates receive adequate food, clothing, shelter, and medical care, and must take reasonable measures to guarantee the safety of the inmates . . . .’’(Citations omitted; internal quotation marks omitted.) Farmer v. Brennan, 511 U.S. 825, 832-33, 114 S. Ct. 1970, 128 L. Ed. 2d 811 (1994).

We agree with the habeas court that these petitioners have failed to allege sufficient facts demonstrating deprivation of the minimal civilized measure of life’s necessities or excessive force because of their designations as security risk group members. We conclude that these petitioners have not alleged sufficient facts to constitute an eighth amendment violation. The habeas court, therefore, properly granted the respondent’s motion to quash.

The judgments in the Santiago, DeLeon, Arroyo and Breedlove cases are affirmed. The judgment in the Johnson case is reversed and the case is remanded for further proceedings.

In this opinion the other judges concurred.

       The petitioners originally filed eight separate petitions for writs of habeas corpus. Each petitioner filed an appeal from the judgment rendered against him. Three of the inmates withdrew their appeals with the approval of the court. On December 23, 1994, this court granted the respondent’s motion to consolidate the appeals.

       Department of Correction Administrative Directive § 6.14 (3) (D) defines a security risk group member as an “inmate specifically determined to be a member of a security risk group in accordance with this directive.”
      Department of Correction Administrative Directive § 6.14 (3) (9) defines a security risk group as a “specifically designated group of inmates possessing common characteristics which serve to distinguish them from other inmates or groups of inmates and which as a discrete entity poses a threat to the safety of staff, the facility, other inmates or the community.”

       We decline to conduct a separate state constitutional analysis of the issues in this case. The petitioners have not provided us with any reason why the result would be different under the Connecticut constitution. See State v. Johnson, 227 Conn. 611, 614-15, 630 A.2d 69 (1993). We are not required to review issues that have not been briefed. State v. Ramos, 36 Conn. App. 831, 839, 661 A.2d 606 (1995).

       General Statutes § 18-7a (c) provides: “Any person sentenced to a term of imprisonment for an offense committed on or after July 1, 1983, may, while held in default of bond or while serving such sentence, by good conduct and obedience to the rules which have been established for the service of his sentence, earn a reduction of his sentence as such sentence is served in the amount of ten days for each month served and pro rata for a part of a month served of a sentence up to five years, and twelve days for each month served and pro rata for a part of a month served for the sixth and each subsequent year of a sentence which is more than five years. Misconduct or refusal to obey the rules which have been established for the service of his sentence shall subject the prisoner to the loss of all or any portion of such reduction by the commissioner or his designee.”

       While Johnson’s petition could also be construed as alleging loss of the ability to earn future statutory good time credits, we do not reach that issue because he has alleged sufficient facts in his petition to confer subject matter jurisdiction on the habeas court.

       Because the trial court properly granted the motion to quash, we do not reach the petitioners’ claim that the department violated the Uniform Administrative Procedure Ac-. See Vincenzo v. Warden, supra, 26 Conn. App. 138. Johnson does not raise this claim in his petition.