author: MCDONALD, J.

text:
    STATE OF CONNECTICUT v. JORDI KERR
    (AC 26818)
    Flynn, C. J., and Harper and McDonald, Js.

      Argued September 25, 2007
    officially released May 6, 2008

      Laljeebhai R. Patel, special public defender, with whom, on the brief, was Jane E. Carroll, special public defender, for the appellant (defendant).

      John A. East III, senior assistant state’s attorney, with whom, on the brief, were James E. Thomas, former state’s attorney, and Thomas R. Garcia, assistant state’s attorney, for the appellee (state).
   Opinion

MCDONALD, J.

The defendant, Jordi Kerr, appeals from the judgments of conviction, rendered after a jury trial, of three counts of robbery in the first degree as an accessory in violation of General Statutes §§ 53a-134 (a) (4) and 53a-8 (a), and two counts of conspiracy to commit robbery in the first degree in violation of General Statutes §§ 53a-134 (a) (4) and 53a-48 (a). The defendant was charged in two separate, long form informations. One charged the defendant in two counts relating to a robbery that occurred at a Kentucky Fried Chicken fast food restaurant (KFC) in West Hartford on or about September 15, 2003. The other charged the defendant in three counts relating to robberies that occurred at a CVS pharmacy (CVS) in Hartford on or about October 1, 2003. On the state’s motion, the court consolidated the defendant’s cases with the cases against Jamal Bazemore and Ronnie Smith for both robberies. Subsequently, the cases were tried to the jury, and the defendant was found guilty on all charges on April 5, 2005. On appeal, the defendant claims that (1) the state produced insufficient evidence for the jury to find him guilty of all charges and that the trial court thus was obligated to render judgments of acquittal, and (2) the court improperly instructed the jury on conspiratorial liability. We affirm the judgments of the trial court.

The jury reasonably could have found the following facts. On September 15, 2003, the defendant and three other men, Smith, Bazemore and Negus Jones were in a black 1998 Nissan Maxima that was stolen by Bazemore on September 14, 2003, to use in a robbery and later to abandon. The four men decided to commit a robbery at a KFC on New Britain Avenue in West Hartford. Upon arriving at the KFC during business hours, shortly after 11 p.m., the men agreed that Bazemore, the driver, would remain in the car while Smith, Jones and the defendant would enter the restaurant. The three men, who were wearing hooded sweatshirts, face coverings and gloves, entered the restaurant carrying handguns. Smith wore a white “Jason mask.” There were no customers in the KFC at the time. After the men entered the restaurant, Smith approached the assistant manager, Vivette Wright-Wilson, who had seen their black car approach near the doorway, and ordered her to empty her pockets at gunpoint. From her pockets, Wright-Wilson gave Smith her money, $22. Jones approached another assistant manager, Mark Hamilton, and, at gunpoint, compelled him to open the cash register. After Hamilton opened the register, Jones removed all of the money. As Smith and Jones collected money, the defendant kept lookout over everyone in the KFC and made sure that no one left the premises. Smith subsequently approached Hamilton and threatened to shoot him if he did not open a second cash register. After Hamilton agreed to open the second register, Smith took the money and immediately exited the restaurant with Jones and the defendant. After the robbery, Hamilton pushed a panic button to contact the West Hartford police.

Upon leaving the store, the three men got back into the stolen Maxima, which turned left onto New Britain Avenue and then took an immediate right turn onto Hollywood Avenue. At that time, Carol Kinnane was walking down Stanwood Avenue, and she observed a black Nissan Maxima without lights driving down Hollywood Avenue. After the car stopped on a side street out of Kinnane’s sight, Kinnane heard doors closing and heard several people running toward her. Kinnane then saw four men, one of whom was wearing a white mask, run around the comer of Stanwood Avenue. The man in the white mask said it was a “rush,” and all four got into Smith’s car, a gray and red Mercury Sable, and drove away. The four men previously had parked the car on Stanwood Avenue earlier that night for use after the robbery. After the men drove away, Kinnane walked to the Maxima, which still had the motor running, to determine if anyone injured was in the car. Then, at Kinnane’s request, a neighbor called the police, who immediately responded.

The four men took Smith’s car to Bazemore’s house on Cornwall Street in Hartford, where they changed their clothing and equally divided the money from the robbery. Bazemore remained at his house while Smith, Jones and the defendant left in Smith’s car. Approximately two hours after the KFC robbery, Paul Cicero, a Hartford police officer, observed a gray and red Mercury Sable speeding southbound on Maple Avenue. Cicero, who was aware that a similar vehicle had been used in the KFC robbery earlier that night, stopped the car after a brief chase. Before Cicero could exit his cruiser, however, Jones, the driver of the car, fled through a backyard, at which point Smith, who was in the backseat, got into the driver’s seat. With his gun drawn, Cicero stopped Smith and the defendant but was unable to stop Jones. Thereafter, Smith and the defendant were detained until a West Hartford police officer arrived at the scene with KFC employees Hamilton and Rudolf Gordon. Because witnesses from the KFC could not positively identify either Smith or the defendant as the masked men that participated in the robbeiy, the two men were not arrested that night. Kinnane, however, identified Smith’s car as the car that she had seen earlier that night on Stanwood Avenue. The police then impounded Smith’s car.

Approximately two weeks later, on October 1, 2003, a 1996 dark green Nissan Maxima was stolen by Bazemore on Cornwall Street in Hartford to commit another robbery. That night, the defendant, Smith, Bazemore and Jones drove in that car to a CVS on Blue Hills Avenue in Hartford, where they all had agreed to commit an armed robbery. After arriving at the store, the defendant, whose gun had been lost, remained in the car with Bazemore while Smith and Jones entered the CVS armed with pistols at about 8 p.m. during business hours. Once inside the store, Smith and Jones covered their faces with T-shirts. Jones immediately went to the cash register where he encountered the store clerk, Nichole Smalls, who was Smith’s sister. At gunpoint, Jones demanded money from the registers. While Jones collected the money from Smalls’ register, Smith stopped three customers at gunpoint: Chayra Rodriguez; her sister, Jasmine Rodriguez; and Jasmine Rodriguez’ eighteen month old son, Brian Harara. Smith ordered the women to give him all of their money. Jasmine Rodriguez and Chayra Rodriguez then gave Smith their money after Smith threatened to shoot Harara as he held a gun to the child’s head. After taking the money, Smith and Jones left the store and got back into the Maxima to join the defendant and Bazemore. With Bazemore driving, they left the scene. The four men later abandoned the Maxima and went to Bazemore’s nearby residence to divide the proceeds equally and to change clothing.

Both robberies were successfully recorded by store surveillance cameras.

After the completion of the presentation of evidence by the state, the defendant moved for judgments of acquittal on all charges. The court denied the motions. After the jury found the defendant guilty of all charges, the court sentenced the defendant to twenty years imprisonment, execution suspended after fourteen years, and four years of probation. This appeal followed. Additional facts will be set forth as necessary.

I

The defendant claims that the evidence was insufficient as a matter of law to support his convictions of robbery in the first degree as an accessory and conspiracy to commit robbery in the first degree. The defendant also argues that the evidence adduced at trial was insufficient to establish that he knowingly and wilfully joined in the CVS robbery with Jones, Smith and Bazemore, that he was a member of the conspiracy to rob the CVS and that he committed any of the charged crimes. We disagree.

First, we conclude that these claims are reviewable on appeal. “It is an essential of the due process guaranteed by the Fourteenth Amendment that no person shall be made to suffer the onus of a criminal conviction except upon sufficient proof—defined as evidence necessary to convince a trier of fact beyond a reasonable doubt of the existence of every element of the offense.” (Internal quotation marks omitted.) State v. Roy, 233 Conn. 211, 212-13, 658 A.2d 566 (1995).

The following additional facts are relevant to our review of the defendant’s claims. At trial, there was testimony that money was taken, at gunpoint, from cash registers at the KFC and the CVS robbery scenes. Moreover, in the KFC robbery, money was taken at gunpoint from an employee, and, in the CVS robbery, money was taken at gunpoint from two of the patrons. At trial, Jones was called as a witness by the state and testified that, on or about September 15 and October 1, 2003, he, Smith, Bazemore and the defendant needed money and that all agreed to use the stolen Maximas to commit a robbery at the KFC and, later, at the CVS. Jones testified that after arriving at the KFC in the stolen Maxima driven by Bazemore on September 15, Smith concealed his face with a “Jason mask” and entered the store with a nine millimeter automatic weapon. Jones, whose face was covered and who also had a pistol, testified that he went to the cash register, demanded money from the register while pointing a gun at an employee and emptied the register. Smith first took money from Wright-Wilson at gunpoint and then pointed his gun at another employee and took money from an opened second register. The defendant, who also had his face concealed, entered the establishment with a pistol to act as a lookout and to ensure that no one left the restaurant dining the robbery. Thereafter, the three men left in the stolen Maxima parked at the entrance to the restaurant.

Jones testified that, during the CVS robbery on October 1, 2003, only he and Smith entered the CVS because the defendant, who remained with Bazemore in the stolen Maxima, no longer had a gun. Jones testified that he went straight to the cash registers, carrying a pistol, and took cash after demanding that one of the registers be opened.

While testifying, Jones referred to the KFC and the CVS security videotapes. There was additional evidence that, while in the CVS, Smith took money at gunpoint from customers. Jones also testified that after both robberies, the four men went to Bazemore’s house to divide the proceeds of the robbery and to change clothing.

“The standard of review we apply to a claim of insufficient evidence is well established. . . . [W]e apply a two-part test. First, we construe the evidence in the light most favorable to sustaining the verdict. Second, we determine whether upon the facts so construed and the inferences reasonably drawn therefrom the [jury] reasonably could have concluded that the cumulative force of the evidence established guilt beyond a reasonable doubt.” (Internal quotation marks omitted.) State v. Calabrese, 279 Conn. 393, 402, 902 A.2d 1044 (2006). “In conducting our review, we are mindful that the finding of facts, the gauging of witness credibility and the choosing among competing inferences are functions within the exclusive province of the jury, and, therefore, we must afford those determinations great deference.” (Internal quotation marks omitted.) State v. Leggett, 94 Conn. App. 392, 398, 892 A.2d 1000, cert. denied, 278 Conn. 911, 899 A.2d 39 (2006).

A

The defendant first claims that there was insufficient evidence to convict him of robbery in the first degree as an accessory in violation of §§ 53a-134 (a) (4) and 53a-8 (a) in connection with the CVS robbery. The defendant argues that the state failed to prove that he participated in the robbery at the CVS. The state argues that there was ample evidence adduced at trial to prove that the defendant did participate in the robbery. We agree with the state.

“To justify a conviction as an accessory, the state must prove both that the defendant had the intent to aid the principal and that, in so aiding, he had the intent to commit the crime. . . . Mere presence as an inactive companion, passive acquiescence, or the doing of innocent acts which may in fact aid the [principal] must be distinguished from the criminal intent and community of unlawful purpose shared by one who knowingly and willingly assists the perpetrator of the offense in the acts which prepare for, facilitate, or consummate it.” (Internal quotation marks omitted.) Id., 404. “Mere knowledge that a crime is going to be committed is not sufficient to establish liability as an accessory if the defendant does not encourage or intentionally aid in the commission of the crime.” State v. Aparo, 223 Conn. 384, 404, 614 A.2d 401 (1992), cert. denied, 507 U.S. 972, 113 S. Ct. 1414, 122 L. Ed. 2d 785 (1993). “It is . . . for the trier of fact to determine whether the defendant was innocently present at the scene of the crime”; State v. McClendon, 56 Conn. App. 500, 506, 743 A.2d 1154 (2000); or whether he knowingly and willingly joined in the robbery with Jones, Smith and Bazemore.

In the present case, Jones testified that the defendant, who had agreed to commit the robbery, was present at the CVS in a stolen vehicle with Bazemore, the driver of the stolen getaway car, while that robbery was committed. This evidence, considered with the testimony of Jones indicating that the defendant knew that the stolen automobile was to be used during the commission of the robbery and that the defendant received a one-quarter share of the proceeds, was sufficient to permit the jury reasonably to infer that the defendant actively participated in the robbery by aiding and abetting the others. We agree with the state that the jury reasonably could have found that the defendant was a lookout, a role that he had previously played inside the KFC. The evidence, therefore, supports a finding that the defendant was an accessory to the robbery beyond a reasonable doubt. See id.; see also State v. Miller, 59 Conn. App. 406, 412-14, 757 A.2d 69 (2000), cert. denied, 255 Conn. 942, 769 A.2d 60 (2001). Accordingly, we conclude that there was sufficient evidence to support the defendant’s conviction of robbery in the first degree as an accessory for the CVS robbery.

B

The defendant next claims that there was insufficient evidence to convict him of conspiracy to commit robbery in the first degree at the CVS. Specifically, the defendant argues that there was no evidence produced at trial that would have enabled the jury to find reasonably that he violated the conspiracy statute, § 53a-48 of the Penal Code. We are not persuaded.

General Statutes § 53a-48 (a) provides: “A person is guilty of conspiracy when, with intent that conduct constituting a crime be performed, he agrees with one or more persons to engage in or cause the performance of such conduct, and any one of them commits an overt act in pursuance of such conspiracy.” See also State v. Johns, 184 Conn. 369, 370 n.2, 439 A.2d 1049 (1981).

We conclude that the jury reasonably could have found that the defendant conspired to commit robbeiy at the CVS. Jones testified that the defendant and the other perpetrators discussed robbing the CVS and that the four men all agreed to participate in the robbery. To facilitate the robbery, Jones testified that the four men discussed stealing a Nissan Maxima. Jones also testified that the men specifically selected the Maxima for the robbery because it was “newer, faster” and because the men did not want to commit a robbery with one of their own cars. Thereafter, a Maxima was stolen by Bazemore and, in furtherance of the conspiracy, the four men drove to the CVS, with Jones and Smith carrying handguns, which Jones and Smith carried into the pharmacy. To steal money, Smith and Jones pointed these guns at the people on the premises of the CVS. From the testimony, the jury reasonably could have inferred that the defendant intentionally agreed with the other individuals to commit robbery in the first degree and, as to the overt acts, that the defendant and the other conspirators rode to the CVS in a vehicle stolen for the purpose of using it during the robbery, and, while Smith and Jones entered the CVS armed with handguns, the defendant remained in the vehicle to serve as a lookout as he had done previously inside the RFC, while Bazemore served as the driver. See State v. Garner, 270 Conn. 458, 472-73, 853 A.2d 478 (2004); State v. Gosselin, 169 Conn. 377, 381, 363 A.2d 100 (1975).

Accordingly, on the basis of the evidence presented at trial and the reasonable inferences that could be drawn therefrom, we conclude that there was sufficient evidence from which the jury reasonably could have found beyond a reasonable doubt that the defendant was guilty of conspiracy to commit robbery in the first degree at the CVS.

C

The defendant also argues that the state failed to produce sufficient evidence to prove his guilt beyond a reasonable doubt as to any of the charged crimes. Specifically, the defendant contends that Jones’ testimony was not credible as a matter of law because Jones “had a motive for falsely implicating the defendant, and a motive for maintaining that he and testifying against him.” This claim merits little discussion.

It is well established that “ [questions of whether to believe or to disbelieve a competent witness are beyond our review. As a reviewing court, we may not retry the case or pass on the credibility of witnesses. . . . We must defer to the [finder] of fact’s assessment of the credibility of the witnesses that is made on the basis of its firsthand observation of their conduct, demeanor and attitude.” (Internal quotation marks omitted.) State v. Keith B., 95 Conn. App. 643, 649, 897 A.2d 725, cert. denied, 279 Conn. 907, 901 A.2d 1227 (2006).

In the present case, the defendant has not demonstrated that it was unreasonable for the jury to have relied on Jones’ testimony. During trial, the defendant, through cross-examination and argument, attempted to discredit the testimony of Jones. The arguments raised by the defendant on appeal with regard to Jones’ credibility are arguments that the defendant properly made before the jury and which were properly considered by the jury in determining what weight to afford Jones’ testimony. See State v. Osoria, 86 Conn. App. 507, 515, 861 A.2d 1207 (2004), cert. denied, 273 Conn. 910, 870 A.2d 1082 (2005). “The sifting and weighing of evidence is peculiarly the function of the trier. [N]othing in our law is more elementary than that the trier is the final judge of the credibility of witnesses and of the weight to be accorded their testimony. . . . The trier is free to accept or reject, in whole or in part, the testimony offered by either party.” (Internal quotation marks omitted.) State v. Keith B., supra, 95 Conn. App. 649. Accordingly, we conclude that Jones’ testimony properly was before the jury, and, when considered in light of the other testimony introduced at trial, provided an evidentiary basis for the convictions. There was evidence at trial from other witnesses demonstrating that, after the KFC robbery, the defendant was found with Smith in Smith’s automobile by the Hartford police. There was also evidence that a third party escaped capture shortly after Smith’s automobile was used by four men, who had abandoned the stolen Maxima with its motor running and its lights turned off.

II

The defendant also claims that the court improperly instructed the jury that it could find, as it did, the defendant guilty of the robbery of Jasmine Rodriguez, a CVS customer, on the basis of a theory of conspiratorial liability found in Pinkerton v. United States, 328 U.S. 640, 66 S. Ct. 1180, 90 L. Ed. 1489 (1946), and State v. Walton, 227 Conn. 32, 630 A.2d 990 (1993).

As a preliminary matter, we note that the defendant concedes that these claims were not preserved at trial. At the conclusion of evidence, the court, which had furnished all counsel with a written proposed charge, held a charging conference with counsel in which the Pinkerton charge was discussed extensively, and it also entertained additional written and oral requests to charge. Counsel for the defendant stated on the record that he had nothing to add and had no disagreement with the court’s summary at the charging conference. Also, at the conclusion of the court’s jury instructions, which were given to the jury both orally and in writing, counsel for the defendant took no exceptions to the charge. He therefore seeks review under State v. Golding, 213 Conn. 233, 239-40, 567 A.2d 823 (1989). Under Golding, a “defendant can prevail on a claim of constitutional error not preserved at trial only if all of the following conditions are met: (1) the record is adequate to review the alleged claim of error; (2) the claim is of constitutional magnitude alleging the violation of a fundamental right; (3) the alleged constitutional violation clearly exists and clearly deprived the defendant of a fair trial; and (4) if subject to harmless error analysis, the state has failed to demonstrate harmlessness of the alleged constitutional violation beyond a reasonable doubt. In the absence of any of these conditions, the defendant’s claim will fail.” (Emphasis in original.) Id. In considering these claims, we may “respond to the defendant’s claim by focusing on whichever [Golding] condition is most relevant in the particular circumstances.” Id., 240. Because we conclude that the court’s Pinkerton instruction was proper, the defendant’s claims must fail under the third prong of Golding.

A

On appeal, the defendant claims that the court improperly instructed the jury that it could find him vicariously guilty of the robbery of Jasmine Rodriguez. In support of this claim, the defendant posits that because the evidence established that he merely was present outside the CVS when Jasmine Rodriguez was robbed, it was improper under State v. Diaz, 237 Conn. 518, 679 A.2d 902 (1996), for the court to give a Pinkerton instruction. The defendant also argues that even if he was a member of a conspiracy, the court’s instruction was unwarranted because the robbery of Jasmine Rodriguez, a CVS customer, was not “integral to the achievement of the conspiracy’s objectives.” (Internal quotation marks omitted.) We disagree.

“Under the Pinkerton doctrine ... a conspirator may be held liable for criminal offenses committed by a coconspirator that are within the scope of the conspiracy, are in furtherance of it, and are reasonably foreseeable as a necessary or natural consequence of the conspiracy. . . . The rationale for the principle is that, when the conspirator [has] played a necessary part in setting in motion a discrete course of criminal conduct, he should be held responsible, within appropriate limits, for the crimes committed as a natural and probable result of that course of conduct.” (Citations omitted; internal quotation marks omitted.) State v. Gamer, supra, 270 Conn. 484. Our Supreme Court has explained that “one natural and probable result of a criminal conspiracy is the commission of originally unintended crimes. When the defendant has played a necessary part in setting in motion a discrete course of criminal conduct ... he cannot reasonably complain that it is unfair to hold him vicariously liable, under the Pinkerton doctrine, for the natural and probable results of that conduct that, although he did not intend, he should have foreseen.” (Citation omitted; emphasis added; internal quotation marks omitted.) State v. Coltherst, 263 Conn. 478, 499, 820 A.2d 1024 (2003). Only when “the nexus between the defendant’s role in the conspiracy and the illegal conduct of a coconspirator is so attenuated or remote . . . would [it] be unjust to hold the defendant responsible for the criminal conduct of his coconspirator.” (Internal quotation marks omitted.) Id., 493.

In the present case, as we have observed, evidence was submitted establishing that the defendant was present when the robbery of the CVS was planned and was committed, participated in the use of a stolen automobile used during the commission of the robbery, remained with Bazemore in the vehicle at the CVS while Jones and Smith masked their faces and entered the CVS armed with pistols, received a one-quarter share of the proceeds and had earlier served as a lookout during the KFC robbery. We conclude, therefore, that the defendant’s participation in the conspiracy was not so attenuated or remote that it would be unjust to hold him responsible for the criminal conduct of his coconspirators. See id.

The defendant also argues that Smith’s robbery of a customer during the robbery at the CVS was not integral to the object of the conspiracy. This argument is belied by the nature of an armed robbery of a retail store during business hours, which involves not an offense where the store itself is the victim, but rather, the victims are the individuals in the store facing armed men demanding money. It is for this reason that robbery has been described by our Supreme Court as an offense against a person. See State v. Lytell, 206 Conn. 657, 666-67, 539 A.2d 133 (1988).

In the present case, as to the robbery of the customers present in the CVS, we note that, previously, during the robbery at the KFC, Smith robbed the assistant manager of her own money at gunpoint while the defendant was in the restaurant acting as a lookout. On the basis of the evidence introduced at trial, therefore, the jury reasonably could have concluded that the object of the conspiracy was to take money forcibly at gunpoint from individuals found in the CVS during business hours. A retail business itself cannot be robbed at gunpoint. It is those on the premises who experience that terror and turn over money who are robbed. Accordingly, we conclude that the court properly instructed the juiy that it could find the defendant guilty of the robbery of Jasmine Rodriguez on the basis of conspiratorial liability under the Pinkerton doctrine. Therefore, a constitutional violation does not clearly exist, and the defendant’s claim fails under the third prong of Golding.

B

The defendant next claims that even if the evidence supported the court’s Pinkerton instruction, such instruction was incomplete, and, therefore, “the jury was misled as to how to correctly apply Pinkerton . . . .” Relying on State v. Diaz, supra, 237 Conn. 529, the defendant asserts, on appeal for the first time, that a valid Pinkerton instruction must include precise language informing the jury that a conspirator cannot be held liable for criminal offenses committed by a coconspirator unless “the defendant was a full partner in the illicit venture and the coconspirator conduct for which the state has sought to hold [the defendant] responsible was integral to the achievement of the conspiracy’s objectives . . . .” We do not agree.

The standard of review for claims of instructional impropriety under Golding is well established. “The principal function of a jury charge is to assist the jury in applying the law correctly to the facts which [it] might find to be established .... When reviewing [a] challenged jury instruction . . . we must adhere to the well settled rule that a charge to the jury is to be considered in its entirety . . . and judged by its total effect rather than by its individual component parts. . . . [T]he test of a court’s charge is . . . whether it fairly presents the case to the jury in such a way that injustice is not done to either party .... In this inquiry we focus on the substance of the charge rather than the form of what was said not only in light of the entire charge, but also within the context of the entire trial. . . . Moreover, as to unpreserved claims of constitutional error in jury instructions, we have stated that under the third prong of Golding, [a] defendant may prevail . . . only if ... it is reasonably possible that the jury was misled . . . .” (Internal quotation marks omitted.) State v. Lawrence, 282 Conn. 141, 179, 920 A.2d 236 (2007). “An accurate jury instruction cannot be the basis for a showing that the defendant was clearly deprived . . . of a fair trial.” (Internal quotation marks omitted.) State v. Sanko, 62 Conn. App. 34, 40-41, 771 A.2d 149, cert. denied, 256 Conn. 905, 772 A.2d 599 (2001).

Here, having considered the court’s jury instructions in their entirety, we conclude that the court correctly charged the jury regarding coconspiratoria! liability as set forth by our Supreme Court in State v. Peeler, 271 Conn. 338, 456 n.89, 857 A.2d 808 (2004), cert. denied, 546 U.S. 845, 126 S. Ct. 94, 163 L. Ed. 2d 110 (2005), and State v. Coltherst, supra, 263 Conn. 488 n.16. The court, in its final instructions, did not utilize the Diaz language pertaining to the extent of the defendant’s participation in the conspiracy. Our Supreme Court has noted, however, that a Pinkerton instruction is not required to contain the precise Diaz language but, rather, should instruct the jury that it must find that the criminal offense committed by the coconspirator was within the scope of the conspiracy, was in furtherance of it and was reasonably foreseeable as a necessary or natural consequence of the conspiracy. State v. Lopez, 280 Conn. 779, 820 n.30, 911 A.2d 1099 (2007); State v. Peeler, supra, 456 n.89. Although our Supreme Court, in Diaz, imposed limitations on the scope of Pinkerton liability, these limitations arise when the nexus between the defendant’s role in the conspiracy and the crimes of a coconspirator is attenuated or remote. State v. Diaz, supra, 237 Conn. 529-30.

In this case, the evidence reasonably demonstrated that the armed robbery of persons on the premises of the CVS was the intended object of the conspiracy as charged in the information. The court did not instruct the jury that the defendant could be liable for unintended crimes or that intent to commit robbery in the first degree was not required for Pinkerton liability. Rather, the court repeatedly and forcefully instructed the jury that the defendant must have intended that conduct constituting a robbery in the first degree be performed to be guilty of conspiracy to commit such robbery. We accordingly conclude that the jury did not receive an incomplete instruction as to Pinkerton liability to the prejudice of the defendant. If anything, the court’s instructions may have made it more difficult for the jury to find the defendant guilty by suggesting that, in addition to finding that the defendant had the specific intent to commit the offenses, the jury had to find that he had entered into an agreement or joint criminal enterprise with his confederates. See State v. Lopez, supra, 280 Conn. 823.

With respect to the defendant’s argument that the court was required to charge the jury that it must find that the defendant was a full partner in the illicit venture and that the coconspirator’s conduct for which the state sought to hold the defendant responsible was integral to the achievement of the conspiracy’s objectives, the instruction in this case requiring the jury to find that the defendant intended to commit the offense of first degree armed robbery at the CVS, and what the jury reasonably could have found from the evidence provided the defendant with protection from being unjustly held accountable for “additional offenses of which he was completely unaware and which he did not influence at all.” (Internal quotation marks omitted.) State v. Walton, supra, 227 Conn. 51; see also State v. Diaz, supra, 237 Conn. 529.

Our review of the record thus reveals that the challenged instructions were not misleading and were “sufficiently correct in law for the jury to understand its responsibility.” State v. Peeler, supra, 271 Conn. 456 n.89. Because our review of the record fails to reveal any impropriety, the court’s jury instruction did not clearly deprive the defendant of a fair trial. See State v. Golding, supra, 213 Conn. 240. Accordingly, the defendant’s claim fails to meet the third prong of Golding.

The judgments are affirmed.

In this opinion the other judges concurred.

      A “Jason mask” is a white hockey mask similar to that worn by the character Jason in the “Friday the Thirteenth” horror movie series.

       General Statutes § 53a-134 (a) provides in relevant part: “A person is guilty of robbery in the first degree when, in the course of the commission of the crime of robbery as defined in section 53a-133 or of immediate flight therefrom, he or another participant in the crime ... (4) displays or threatens the use of what he represents by his words or conduct to be a pistol, revolver, rifle, shotgun, machine gun or other firearm . . . .” (Emphasis added.)

       Because the defendant was charged as an accessory, the state was required to prove that the defendant, while acting with the intent required for robbery in the first degree, solicited, requested, commanded, importuned or intentionally aided another person to engage in robbery in the first degree. See General Statutes § 53a-8 (a).

       During trial, Jones testified that in exchange for testifying against the defendant, Smith and Bazemore, the state would recommend that Jones receive a sentence of twenty years incarceration, with execution of the sentence suspended after four and one-half years for a number of armed robberies.

       During trial, Jones testified that after he left Bazemore’s house with the defendant and Smith, he escaped from Smith’s automobile when it was stopped by the police.

       Because the record is adequate for our review and the claim is of constitutional magnitude, we will review these claims. See State v. Coltherst, 263 Conn. 478, 490, 820 A.2d 1024 (2003) (claim of improper jury instruction on Pinkerton liability is of sufficient constitutional magnitude for Golding review).

       Accordingly, plain error review is inappropriate. Practice Book § 60-5 provides in relevant part: “The court may in the interests of justice notice plain error not brought to the attention of the trial court. . . Because we conclude that the defendant’s argument fails on its merits, we need not address the defendant’s claim of plain error. See State v. Rouleau, 204 Conn. 240, 243, 528 A.2d 343 (1987) (declining to address claim of plain error when reviewable under predecessor of Golding).

       The court instructed the jury as follows: “I will now instruct you on the principle of vicarious liability, which is separate and distinct from accessorial liability and which applies to the robbery in the first—to the robbery in the first degree charges against . . . [the defendant] concerning the alleged robbery of Jasmine Rodriguez. There is a doctrine in our law that provides that once a defendant’s participation in a conspiracy is established beyond a reasonable doubt, he is responsible for each of the criminal acts of the other coconspirators which is within the scope of and in furtherance of the conspiracy. . . . This principle of vicarious liability means that if you conclude that a defendant is guilty of the crime of conspiracy to commit robbery in the first degree beyond a reasonable doubt, but that the defendant personally did not commit the robbery of Jasmine Rodriguez, then you would go on to determine whether sufficient evidence has been proven to convince you beyond a reasonable doubt that another member of the conspiracy did, in fact, commit the crime of robbery in the first degree of Jasmine Rodriguez .... If you conclude beyond a reasonable doubt that . . . Smith did commit the crime of robbery in the first degree of Jasmine Rodriguez, and if that specific robbery was within the scope of and in furtherance of the conspiracy of which you have concluded that the defendant was a member, then the defendant would be guilty of the robbery in the first degree of Jasmine Rodriguez even though he did not personally commit the robbery . . .
      Shortly thereafter, the court instructed the jury that “the intentional robbery in the first degree of Jasmine Rodriguez must be found by you to have been a necessary or natural consequence of the unlawful agreement, the conspiracy to commit robbery [in the] first degree during the CVS incident. And second, that the robbery in the first degree of Jasmine Rodriguez was reasonably foreseeable to the coconspirators sought to be held responsible, that is, the [defendant] ... as a natural consequence of the unlawful agreement, the conspiracy to commit robbery in the first degree during the CVS incident.” The court further instructed the jury that before it could find the defendant guilty of the robbery in the first degree of Jasmine Rodriguez, it would first have to determine that Smith actually committed the crime and that such crime was “reasonably . . . within [the coconspirators’] contemplation that a patron of CVS might also be robbed.”


source: Caselaw Access Project

license: Public Domain

text:
    STATE OF CONNECTICUT v. RONNIE SMITH
    (AC 27009)
    Flynn, C. J., and Harper and McDonald, Js.

      Argued September 25, 2007
    officially released May 6, 2008

      Michael Stone, special public defender, for the appellant (defendant).

      Kathryn Ward Bare, deputy assistant state’s attorney, with whom, on the brief, were James E. Thomas, former state’s attorney, and Thomas R. Garcia and Richard J. Rubino, assistant state’s attorneys, for the appellee (state).
   Opinion

MCDONALD, J.

The defendant, Ronnie Smith, appeals from the judgments of conviction, rendered after a jury trial, of three counts of robbery in the first degree as an accessory in violation of General Statutes §§ 53a-134 (a) (4) and 53a-8 (a), and two counts of conspiracy to commit robbery in the first degree in violation of General Statutes §§ 53a-134 (a) (4) and 53a-48 (a). The defendant was charged in two separate, long form informations. One charged the defendant in two counts relating to a robbeiy that occurred at a Kentucky Fried Chicken fast food restaurant (KFC) in West Hartford on or about September 15,2003. The other charged the defendant in three counts relating to robberies that occurred at a CVS pharmacy (CVS) in Hartford on or about October 1, 2003. On the state’s motion, the court consolidated the defendant’s cases with the cases against Jamal Bazemore and Jordi Kerr for both the KFC and the CVS robberies. Subsequently, the cases were tried to the jury, and the defendant was found guilty on all charges. On appeal, the defendant claims that the evidence adduced at trial was insufficient to establish his identity as a perpetrator of the charged crimes beyond a reasonable doubt. We affirm the judgments of the trial court.

The jury reasonably could have found the following facts. On September 15, 2003, the defendant and three other men, Bazemore, Kerr and Negus Jones were in a black 1998 Nissan Maxima that had been stolen by Bazemore on September 14, 2003, to use in a robbery and later to abandon. The four men decided to commit a robbery at a KFC on New Britain Avenue in West Hartford. Upon arriving at the KFC during business hours, shortly after 11 p.m., the men agreed that Bazemore, the driver, would remain in the car while the defendant, Jones and Kerr would enter the restaurant. The three men, who were wearing hooded sweatshirts, face coverings and gloves, entered the restaurant carrying handguns. The defendant wore a white “Jason mask.” There were no customers in the KFC at the time. After the men entered the restaurant, the defendant approached the assistant manager, Vivette Wright-Wilson, who had seen their black car approach near the doorway, and ordered her to empty her pockets. From her pockets, Wright-Wilson gave the defendant her money, $22. Jones approached another assistant manager, Mark Hamilton, and, at gunpoint, compelled him to open the cash register. After Hamilton opened the register, Jones removed all of the money. As the defendant and Jones collected money, Kerr kept lookout over everybody in the KFC and made sure nobody left the premises. The defendant subsequently approached Hamilton and threatened to shoot him if he did not open a second cash register. After Hamilton opened the second register, the defendant took the money and immediately exited the restaurant with Jones and Kerr. After the robbery, Hamilton pushed a panic button to contact the West Hartford police.

Upon leaving the store, the three men got back into the stolen 1998 Maxima, turned left onto New Britain Avenue and then took an immediate right turn onto Hollywood Avenue. At that time, Carol Kinnane was walking down Stanwood Avenue and observed a black Nissan Maxima without lights driving down Hollywood Avenue. After the car stopped on a side street out of Kinnane’s sight, Kinnane heard doors closing and heard several people running toward her. Kinnane then saw four men, one of whom was wearing a white mask, run around the comer. The man in the white mask said it was a “rush,” and all four got into the defendant’s car, a gray and red Mercury Sable, and drove away. The four men previously had parked the defendant’s car on Stanwood Avenue earlier that night for use after the robbery. After the men drove away, Kinnane walked to the Maxima, which still had the motor running, to determine if anyone injured was in the car. Then, at Kinnane’s request, a neighbor called the police, who immediately responded.

The four men took the defendant’s car to Bazemore’s house on Cornwall Street in Hartford, where they changed their clothing and equally divided the money from the robbery. Bazemore remained at his house while the defendant, Jones and Kerr left in the defendant’s car. Approximately two horns after the KFC robbery, Paul Cicero, a Hartford police officer, observed a gray and red Mercury Sable speeding southbound on Maple Avenue. Cicero, who was aware that a similar vehicle had been used in the KFC robbery earlier that night, stopped the car after a brief chase. Before Cicero could exit his cruiser, however, Jones, the driver of the car, fled through a backyard, at which point the defendant, who was in the backseat, got into the driver’s seat. With his gun drawn, Cicero stopped the defendant and Kerr but was unable to stop Jones. Thereafter, the defendant and Kerr were detained until a West Hartford police officer arrived at the scene with KFC employees Hamilton and Rudolf Gordon. Because employees from the KFC could not positively identify either the defendant or Kerr as the masked men who had participated in the robbery, the two men were not arrested that night. Kinnane, however, identified the defendant’s car as the car that she had seen earlier that night on Stan-wood Avenue. The police then impounded the defendant’s car.

Approximately two weeks later, on October 1, 2003, a 1996 dark green Nissan Maxima was stolen by Bazemore to be used in another robbery. That night, the defendant, Kerr, Bazemore and Jones drove in that car to a CVS on Blue Hills Avenue in Hartford, where they all had agreed to commit an armed robbery. After arriving at the store, Kerr, whose gun had been lost, remained in the car with Bazemore while the defendant and Jones entered the CVS armed with pistols at about 8 p.m. during business hours. Once inside the store, the defendant and Jones covered their faces with T-shirts. Jones immediately went to the cash register where he encountered the store clerk, Nichole Smalls, who was the defendant’s sister. At gunpoint, Jones demanded money from the registers. While Jones collected the money from Smalls’ register, the defendant stopped three customers at gunpoint: Chayra Rodriguez; her sister, Jasmine Rodriguez; and Jasmine Rodriguez’ eighteen month old son, Brian Harara. The defendant ordered the women to give him all of their money. Jasmine Rodriguez and Chayra Rodriguez then gave the defendant their money after the defendant threatened to shoot Harara as he held a gun to the child’s head. After taking the money, the defendant and Jones left the store and got back into the Maxima to join Kerr and Bazemore. With Bazemore driving, they left the scene. The four men later abandoned the Maxima on Cole-brook Street near Cornwall Street in Hartford and went to Bazemore’s nearby residence to divide the proceeds equally and to change clothing.

Both robberies were successfully recorded by store surveillance cameras.

After the completion of evidence by the state, the defendant moved for judgments of acquittal on all charges. The court denied the motions. After the jury found the defendant guilty of all charges, the court sentenced the defendant to twenty years imprisonment. This appeal followed. Additional facts will be set forth as necessary.

On appeal, the defendant claims that the state failed to produce sufficient evidence to prove his guilt beyond a reasonable doubt as to any of the charged crimes. The defendant contends that Jones’ testimony, which was vital to the state’s case, was not credible as a matter of law because the testimony “was inconsistent . . . and . . . was not corroborated by other credible evidence . . . .” This claim merits little discussion.

“The standard of review we apply to a claim of insufficient evidence is well established. . . . [W]e apply a two-part test. First, we construe the evidence in the light most favorable to sustaining the verdict. Second, we determine whether upon the facts so construed and the inferences reasonably drawn therefrom the [jury] reasonably could have concluded that the cumulative force of the evidence established guilt beyond a reasonable doubt.” (Internal quotation marks omitted.) State v. Calabrese, 279 Conn. 393, 402, 902 A.2d 1044 (2006). “In conducting our review, we are mindful that the finding of facts, the gauging of witness credibility and the choosing among competing inferences are functions within the exclusive province of the jury, and, therefore, we must afford those determinations great deference.” (Internal quotation marks omitted.) State v. Leggett, 94 Conn. App. 392, 398, 892 A.2d 1000, cert. denied, 278 Conn. 911, 899 A.2d 39 (2006).

It is well established that “[questions of whether to believe or to disbelieve a competent witness are beyond our review. As a reviewing court, we may not retry the case or pass on the credibility of witnesses. . . . We must defer to the [finder] of fact’s assessment of the credibility of the witnesses that is made on the basis of its firsthand observation of their conduct, demeanor and attitude.” (Internal quotation marks omitted.) State v. Keith B., 95 Conn. App. 643, 649, 897 A.2d 725, cert. denied, 279 Conn. 907, 901 A.2d 1227 (2006).

The following additional facts are relevant to our resolution of the defendant’s claim. At trial, Jones testified as a witness for the state. Jones recalled that, on or about September 15 and October 1, 2003, he, the defendant, Kerr and Bazemore needed money and agreed to steal a car and to rob the KFC and the CVS. After arriving at the KFC, Jones testified, the defendant concealed his face with a “Jason mask” and entered the store with a nine millimeter automatic weapon. Jones, who also had a pistol, testified that he went to a cash register and demanded that it be opened, while the defendant looked for the manager. Jones testified that before the CVS robbery, the defendant had discarded his “Jason mask” after he saw a picture of himself wearing the mask on the television news. Instead, Jones testified that during the CVS robbery, the defendant wore a T-shirt over his face but carried the same nine millimeter pistol. While testifying, Jones referred to the KFC and the CVS security videotapes. There was additional testimony at trial that, at the KFC robbery, money was taken at gunpoint from cash registers by Jones and by the defendant and, at the CVS robbery, money was taken at gunpoint from a cash register by Jones. There also was testimony that, at the KFC robbery, money was taken from an employee by the defendant and, at the CVS robbery, from customers by the defendant.

In the present case, the defendant has not demonstrated that it was unreasonable for the jury to have relied on Jones’ testimony. During trial, the defendant, through cross-examination and argument, attempted to discredit the testimony of Jones. The arguments raised by the defendant on appeal with regard to Jones’ credibility are arguments that the defendant properly made before the jury and were properly considered by the jury in determining what weight to afford Jones’ testimony. See State v. Osoria, 86 Conn. App. 507, 515, 861 A.2d 1207 (2004), cert. denied, 273 Conn. 910, 870 A.2d 1082 (2005). “The sifting and weighing of evidence is peculiarly the function of the trier. [N]othing in our law is more elementary than that the trier is the final judge of the credibility of witnesses and of the weight to be accorded their testimony. . . . The trier is free to accept or reject, in whole or in part, the testimony offered by either party. ” (Internal quotation marks omitted.) State v. Keith B., supra, 95 Conn. App. 649. Accordingly, we conclude that Jones’ testimony was properly before the jury and, when considered in light of the other testimony introduced at trial, provided an evidentiary basis for conviction. There was evidence at trial from other witnesses to the effect that, shortly after the KFC robbery, the defendant was found by the Hartford police in his automobile with Kerr and a third party, who had escaped capture, after the defendant’s automobile was used by four men who had abandoned the stolen Maxima with its motor running and its lights turned off.

The judgments are affirmed.

In this opinion the other judges concurred.

      A “Jason mask” is a white hockey mask similar to that worn by the character Jason in the “Friday the Thirteenth” horror movie series.

       During trial, Jones testified that in exchange for testifying against the defendant, Kerr and Bazemore, the state would recommend that Jones receive a sentence of twenty years incarceration, with execution of the sentence suspended after four and one-half years for a number of armed robberies.

       Jones testified that after he left Bazemore’s residence with the defendant and Kerr, he escaped from the defendant’s automobile after it was stopped by the police.


text:
    STATE OF CONNECTICUT v. JAMAL BAZEMORE
    (AC 26899)
    Flynn, C. J., and Harper and McDonald, Js.

      Argued September 25, 2007
    officially released May 6, 2008

      Mark Diamond, special public defender, for the appellant (defendant).

      Nancy L. Chupak, assistant state’s attorney, with whom, on the brief, were James E. Thomas, former state’s attorney, and Thomas R. Garcia, assistant state’s attorney, for the appellee (state).
   Opinion

MCDONALD, J.

The defendant, Jamal Bazemore, appeals from the judgments of conviction, rendered after a jury trial, of three counts of robbery in the first degree as an accessory in violation of General Statutes §§ 53a-134 (a) (4) and 53a-8 (a), and two counts of conspiracy to commit robbeiy in the first degree in violation of General Statutes §§ 53a-134 (a) (4) and 53a-48 (a). The defendant was charged in two separate, long form informations. One information charged the defendant in two counts relating to a robbery that occurred at a Kentucky Fried Chicken fast food restaurant (KFC) in West Hartford on or about September 15, 2003. The other information charged the defendant in three counts relating to robberies that occurred at a CVS Pharmacy (CVS) in Hartford on or about October 1, 2003. On the state’s motion, the court consolidated the cases against the defendant with the cases of Jordi Kerr and Ronnie Smith for both robberies. Subsequently, the cases were tried to the jury, and the defendant was found guilty on all charges. On appeal, the defendant claims that the trial court improperly (1) instructed the jury regarding (a) accomplice testimony and (b) notetaking, (2) violated his right against double jeopardy, (3) denied his motions for judgments of acquittal when the record lacked sufficient evidence to support his convictions, and (4) deprived him of due process and his right to a fair trial by commenting on other uncharged crimes during sentencing. We affirm the judgments of the trial court.

The jury reasonably could have found the following facts. On September 15, 2003, the defendant, Kerr, Negus Jones and Smith were in a black 1998 Nissan Maxima that the defendant had stolen on September 14, 2003, on Cornwall Street in Hartford to use in a robbery and to abandon later. The four men decided to commit a robbery at a KFC on New Britain Avenue in West Hartford. Upon arriving at the KFC during business hours, shortly after 11 p.m., the men agreed that the defendant would remain in the car while Smith, Jones and Kerr would enter the restaurant. The three men, who were wearing hooded sweatshirts, face coverings and gloves, entered the restaurant carrying handguns. Smith wore a white “Jason mask.” There were no customers in the KFC at the time. After the men entered the restaurant, Smith approached the assistant manager, Vivette Wright-Wilson, who had seen their black car approach near the doorway, and ordered her to empty her pockets. Wright-Wilson gave Smith her money, $22. Jones approached another assistant manager, Mark Hamilton, and, at gunpoint, compelled him to open the cash register. After Hamilton opened the register, Jones removed all of the money. As Smith and Jones collected the money, Kerr kept lookout over everybody in the KFC and made sure nobody left the premises. Later, Smith approached Hamilton and threatened to shoot him if he did not open a second cash register. After Hamilton opened the second register, Smith took the money and immediately exited the restaurant with Jones and Kerr. After the robbery, Hamilton pushed a panic button to contact the West Hartford police.

Upon leaving the store, the men got back into the stolen Maxima driven by Bazemore and turned left onto New Britain Avenue and then took an immediate right turn onto Hollywood Avenue. At that time, Carol Kinnane was walking down Stanwood Avenue and observed a black Nissan Maxima without lights driving along Hollywood Avenue. After the car stopped on a side street out of Kinnane’s sight, Kinnane heard doors closing and heard several people running toward her. Kinnane then saw four men, one of whom was wearing a white mask, run around the comer of Stanwood Avenue. The man in the white mask said it was a “rush,” and all four got into Smith’s car, a gray and red Mercury Sable, and drove away. The four men had parked the car on Stanwood Avenue earlier that night for use after the robbery. After the men drove away, Kinnane walked to the Maxima, which still had the motor running, to determine if anyone injured was in the vehicle. Then, at Kinnane’s request, a neighbor called the police, who immediately responded.

The four men took Smith’s car to the defendant’s house on Cornwall Street in Hartford, where they changed their clothing and equally divided the money from the robbery. The defendant remained at his house while Smith, Jones and Kerr left in Smith’s car. Approximately two hours after the KFC robbery, Paul Cicero, a Hartford police officer, observed a gray and red Mercury Sable speeding southbound on Maple Avenue. Cicero, who was aware that a similar vehicle had been used in the KFC robbery earlier that night, stopped the car after a brief chase. Before Cicero could exit his cruiser, however, Jones, the driver of the car, fled through a backyard, and Smith, who was in the backseat, got into the driver’s seat. With his gun drawn, Cicero stopped Smith and Kerr but was unable to stop Jones. Thereafter, Smith and Kerr were detained until a West Hartford police officer arrived at the scene with KFC employees Hamilton and Rudolf Gordon. Because the witnesses from the KFC could not positively identify either Smith or Kerr as the masked men who had participated in the robbery, the two men were not arrested that night. Kinnane, however, identified Smith’s car as the car that she had seen earlier that night on Stan-wood Avenue.

Approximately two weeks later, on October 1, 2003, the defendant stole a 1996 dark green Nissan Maxima, again on Cornwall Street, to commit another robbery. The defendant, Kerr, Jones and Smith drove in that car to a CVS on Blue Hills Avenue in Hartford, where they all had agreed to commit an armed robbery. After arriving at the store, the defendant remained in the car with Kerr, whose gun had been stolen, as Smith and Jones entered the CVS armed with pistols at about 8 p.m. during business hours. Once inside the store, Smith and Jones covered their faces with T-shirts. Jones immediately went to the cash register where he encountered the store clerk, Nichole Smalls, who was Smith’s sister. At gunpoint, Jones demanded money from the registers. While Jones collected the money from Smalls’ register, Smith stopped three customers at gunpoint: Chayra Rodriguez; her sister, Jasmine Rodriguez; and Jasmine Rodriguez’ eighteen month old son, Brian Harara. Smith ordered the women to give him all of their money. Chayra Rodriguez and Jasmine Rodriguez then gave Smith their money after Smith threatened to shoot Harara as he held a gun to the child’s head. After taking the money, Smith and Jones left the store and got back into the Maxima to join the defendant and Kerr. With the defendant driving, they left the scene. The four men later abandoned the Maxima on Colebrook Street near Cornwall Street in Hartford and went to the defendant’s nearby residence to split the proceeds equally and to change clothing.

Both robberies were recorded by store surveillance cameras.

After the completion of the presentation of evidence by the state, the defendant moved for judgments of acquittal on all charges. The court denied the motions. After the jury found the defendant guilty of all charges, the court sentenced the defendant to twenty years of imprisonment, execution suspended after sixteen years, and four years of probation. This appeal followed. Additional facts will be set forth as necessary.

I

The defendant first claims that the court’s final jury instructions were improper because they deprived him of his constitutional right to a fair trial. The defendant contends that the court improperly instructed the jury in its final charge regarding accomplice testimony and, also, in its preliminary and final charges regarding juror notetaking. The defendant failed to preserve these claims by submitting a request to charge, taking an exception to the charge or by objecting to the instructions given before the trial. At the conclusion of evidence, the court, which had furnished counsel with a written proposed charge, held a charging conference with counsel and entertained additional written and oral requests to charge. Counsel for the defendant stated on the record that he had nothing to add or to subtract and had no disagreement with the court’s summary of the charging conference. The defendant now seeks review under State v. Golding, 213 Conn. 233, 239-40, 567 A.2d 823 (1989).

Under Golding, a “defendant can prevail on a claim of constitutional error not preserved at trial only if all of the following conditions are met: (1) the record is adequate to review the alleged claim of error; (2) the claim is of constitutional magnitude alleging the violation of a fundamental right; (3) the alleged constitutional violation clearly exists and clearly deprived the defendant of a fair trial; and (4) if subject to harmless error analysis, the state has failed to demonstrate harmlessness of the alleged constitutional violation beyond a reasonable doubt. In the absence of any one of these conditions, the defendant’s claim will fail.” (Emphasis in original.) Id. In considering these claims, we may “respond to the defendant’s claim by focusing on whichever [Golding] condition is most relevant in the particular circumstances.” Id., 240.

A

The defendant first claims that the court violated his constitutional right to a fair trial by effectively instructing the jury that Jones’ testimony was rehable instead of inherently suspect. The defendant claims that this alleged impropriety deprived him of his right to a fair trial under both the federal and state constitutions. The defendant further claims that the court’s comment was harmful because Jones’ testimony was central to the state’s case against the defendant.

The following additional facts and procedural history are necessary for our resolution of the defendant’s claim. At trial, Jones testified for the state. Before testifying as to his involvement with the defendant, Kerr and Smith in both robberies, Jones acknowledged that he had entered into a plea agreement with the state in exchange for his cooperation in the criminal prosecutions against his confederates. After agreeing to cooperate with the state, Jones testified that the defendant had been the driver of stolen Maximas used at the scene of the KFC and the CVS robberies.

In its final charge to the jury, the court stated: “An accomplice’s testimony is an admission by him against his own natural interest in not incriminating himself, and, therefore, it may itself be evidence of his testimony’s reliability.” The court also instructed the jury as follows: “A certain witness, by his own testimony, participated in the criminal conduct charged by the state in this case. He is what the law calls an accomplice. In weighing the testimony of the accomplice who was a self-confessed criminal, you must consider that fact. All else being equal, it may be that you would not believe a person who has committed a crime such as this as readily as you would believe a person with good character.

“The amount of moral wrong involved in the participation of a witness in the crimes should be weighed. Also, in weighing the testimony of an accomplice who has not yet been sentence [d] or whose case has not yet been disposed of, you should keep in mind that he may, in his own mind, be looking or hoping for some favorable treatment in the sentence or disposition of his own case and that, therefore, he may have an interest in the outcome in this case [and] that his testimony may have been colored by that fact. Therefore, the jury must look, with particular care, to the testimony of an accomplice and scrutinize it very carefully before [the jury] can accept it.” The court further instructed the jury: “It’s for you, the jury, to decide what credibility you will give to a witness who had admitted his involvement in criminal wrongdoing, whether you believe or disbelieve the testimony of a person who, by his own admission, has committed the crimes charged by the state. Like all other questions of credibility, this is a question you must decide based on all the evidence presented to you.”

Although the record before us is adequate to review the defendant’s claim, our Supreme Court previously has recognized that “an instructional error relating to general principles of witness credibility is not constitutional in nature.” State v. Patterson, 276 Conn. 452, 471, 886 A.2d 777 (2005); State v. Dash, 242 Conn. 143, 152, 698 A.2d 297 (1997). In State v. Boles, 223 Conn. 535, 551 n.7, 613 A.2d 770 (1992), our Supreme Court noted that the failure to give any accomplice instruction is not constitutional error. Accordingly, we conclude that the defendant’s claim fails under the second prong of Golding because it is not of constitutional magnitude.

B

The defendant claims that the court improperly instructed the jury regarding notetaking before and during the trial and, in so doing, deprived him of his right to a fair trial.

The defendant has constructed this claim from several portions of the court’s instructions to the jury on notetaking. In making introductory remarks to the jury, the court explained to the jurors that they should not rely on the other jurors’ notes. The court further cautioned that “[e]verything that is testified to in the case is recorded” and that there was no reason to take “verbatim notes.” In its final charge to the jury, the court reiterated its earlier warnings as follows: “Your notes are merely aids to your memories and should not be given precedence over your independent recollection of the evidence. A juror who has not taken notes should rely on his or her recollection of the evidence and should not be influenced by another juror’s notes.”

In his brief, the defendant argues that these instructions do not comport with Esaw v. Friedman, 217 Conn. 553, 586 A.2d 1164 (1991), or State v. Mejia, 233 Conn. 215, 658 A.2d 571 (1995). In State v. Mejia, supra, 215, our Supreme Court noted that, after a trial court has decided to permit the jury to take notes, the court “should instruct the jurors that their notes are merely aids to their memories and should not be given precedence over their independent recollection of the evidence, that a juror who has not taken notes should rely on his recollection of the evidence and should not be influenced by the fact that other jurors have done so, and that they should not allow their notetaking to distract them from paying proper attention to the evidence presented to them.” (Internal quotation marks omitted.) Id., 235-36.

Because the defendant failed to preserve this issue for our review, he seeks review under State v. Golding, supra, 213 Conn. 239-40. “Under prong three of Golding, a challenged jury instruction constitutes a clear constitutional violation that [unmistakably] deprives a defendant of a fair trial if it is found reasonably possible that the jury was misled by the court’s instruction. . . . The standard of review for constitutional claims of improper jury instructions is well settled. In determining whether it was . . . reasonably possible that the jury was misled by the trial court’s instructions, the charge to the jury is not to be critically dissected for the purpose of discovering possible inaccuracies of statement, but it is to be considered rather as to its probable effect upon the jury in guiding [it] to a correct verdict in the case. . . . The charge is to be read as a whole and individual instructions are not to be judged in artificial isolation from the overall charge. . . . The test to be applied ... is whether the charge, considered as a whole, presents the case to the jury so that no injustice will result. ... As long as [the instructions] are correct in law, adapted to the issues and sufficient for the guidance of the jury . . . we will not view the instructions as improper.” (Internal quotation marks omitted.) State v. Batista, 101 Conn. App. 623, 631-32, 922 A.2d 1116, cert. denied, 284 Conn. 918, 933 A.2d 721 (2007). “An accurate jury instruction cannot be the basis for a showing that the defendant was clearly deprived . . . of a fair trial.” (Internal quotation marks omitted.) State v. Sanko, 62 Conn. App. 34, 40-41, 771 A.2d 149, cert. denied, 265 Conn. 905, 772 A.2d 599 (2001).

Having considered the court’s jury instructions regarding notetaking in their entirety, we conclude that the court correctly charged the jury regarding notetaking in accordance with State v. Mejia, supra, 233 Conn. 215. In reaching this conclusion, we note that our Supreme Court has approved instructions on notetaking substantially similar to the court’s instruction in the present case. See id., 235-36. Because our review of the record fails to reveal any impropriety, the jury instruction did not “clearly [deprive] the defendant of a fair trial . . . .” State v. Golding, supra, 213 Conn. 240. Accordingly, the defendant’s claim fails to meet the third prong of Golding.

II

The defendant claims that counts one and two of the long form information in the KFC case, which alleged that he had committed robbery and conspiracy to commit robbery as an accessory at the KFC, and counts one and three of the long form information in the CVS case, which charged the defendant with robbery as an accessory and conspiracy to commit robbery at the CVS, violated his federal and state constitutional protections against double jeopardy. Alternatively, the defendant argues that these informations were duplicitous and, therefore, deprived him of notice and violated his right to be free of double jeopardy.

A

The defendant claims that the two informations violated his constitutional protections against double jeopardy. Specifically, the defendant contends that “[b]y failing to identify the person(s) robbed, the state can charge [the defendant] with robbing other people who were present in the KFC and [the] CVS in the future, which may or may not duplicate his conviction . . . .” In response, the state argues that because a second prosecution has not been commenced for crimes committed involving the other individuals present during the RFC and CVS robberies, the issue is not yet ripe for adjudication. We agree with the state.

“In light of the rationale of the ripeness requirement, to prevent the courts, through avoidance of premature adjudication, from entangling themselves in abstract disagreements ... we must be satisfied that the case before the court does not present a hypothetical injury or a claim contingent upon some event that has not and indeed may never transpire.” (Internal quotation marks omitted.) State v. Campbell, 84 Conn. App. 648, 650, 854 A.2d 813, cert. denied, 271 Conn. 940, 861 A.2d 515 (2004). “If an issue is not yet ripe for adjudication, this court lacks subject matter jurisdiction to afford it consideration.” Id.

Here, we conclude that the defendant’s double jeopardy claim is not ripe and that we lack jurisdiction to consider the claim.

B

The defendant next argues that he was deprived of his constitutional right to fair notice of the charges against him in violation of the sixth amendment and article first, § 8, of the Connecticut constitution. The defendant claims that the informations were duplicitous because they did not specify the victims of the robbery and conspiracy to commit robbery counts. More specifically, the defendant argues that the informations violate the duplicity doctrine because “they could include more than one offense involving the robbery of any of [the] several employees . . . .”

The following additional information is relevant to our review of the defendant’s claim. On March 4, 2005, the state filed a long form information in Docket No. CR-03-576134 outlining the crimes that the defendant allegedly committed in conjunction with the CVS robbery. Counts one and three of that information did not specify the victims of the robbery or the conspiracy to commit robbery charges at the CVS. Count two did identify Jasmine Rodriguez as the robbeiy victim at the CVS. On March 9, 2005, the state filed a long form information in Docket No. CR-03-576723 setting forth the crimes that the defendant allegedly committed in relation to the KFC robbery. Counts one and two did not specify the victims of the robbery or the conspiracy to commit robbery charges at the KFC.

The record reveals that the defendant never filed a bill of particulars before or at trial as to either information. The defendant thus did not preserve this issue at trial, and the claim he now makes was not submitted to the court for its determination. Accordingly, the defendant seeks review pursuant to State v. Golding, supra, 213 Conn. 239-40. We conclude, however, that the defendant cannot prevail under Golding because he waived this claim by failing to seek a bill of particulars. See State v. Young, 191 Conn. 636, 646, 469 A.2d 1189 (1983); cf. State v. Carbone, 172 Conn. 242, 258, 374 A.2d 215, cert. denied, 431 U.S. 967, 97 S. Ct. 2925, 53 L. Ed. 2d 1063 (1977). “A constitutional right that has been waived at trial cannot be resurrected successfully on appeal ... by invoking the Golding doctrine.” State v. McDaniel, 104 Conn. App. 627, 632, 934 A.2d 847 (2007), cert. denied, 285 Conn. 912, 943 A.2d 471 (2008), citing State v. Fabricatore, 281 Conn. 469, 915 A.2d 872 (2007).

Ill

The defendant next claims that the evidence was insufficient to support the jury’s verdicts of guilty. We do not agree.

“The standard of review we apply to a claim of insufficient evidence is well established. In reviewing the sufficiency of the evidence to support a criminal conviction we apply a two-part test. First, we construe the evidence in the light most favorable to sustaining the verdict. Second, we determine whether upon the facts so construed and the inferences reasonably drawn therefrom the [finder of fact] reasonably could have concluded that the cumulative force of the evidence established guilt beyond a reasonable doubt.” (Internal quotation marks omitted.) State v. Calabrese, 279 Conn. 393, 402, 902 A.2d 1044 (2006).

The record reveals that Jones testified as a witness for the state. Jones testified that on or about September 15 and October 1, 2003, he, the defendant, Kerr and Smith needed money and agreed to steal a Nissan Maxima and to first rob the KFC and later the CVS. Jones testified that the defendant stole both vehicles. Jones testified that on September 15, 2003, the defendant remained in the stolen Maxima while he, Kerr and Smith each entered the KFC armed with a pistol. After arriving at the KFC in the stolen Maxima driven by the defendant, Jones testified that Smith had concealed his face with a “Jason mask” and had entered the store with an automatic weapon. Jones, whose face also was covered and who also had a pistol, testified that he went to the cash registers and demanded money while Smith looked for the manager. Kerr, who also had his face concealed, entered the establishment with a pistol to act as a lookout and to ensure that no one left the restaurant during the robbery. Thereafter, the three men left in the stolen Maxima parked at the entrance to the restaurant. Jones stated that after the men completed the robbery, the defendant drove them to Hollywood Avenue, where they discarded the stolen Maxima and where all four drove away in Smith’s Mercury Sable. Jones testified that the men then drove to the defendant’s house and equally divided the proceeds of the robbeiy.

After leaving the defendant at his residence, Smith, Kerr and Jones left in Smith’s car and were later stopped by the police. Jones testified that he escaped capture by leaping from Smith’s car and that Kerr and Smith were held by the police. Jones testified that on October 1, 2003, the defendant again agreed to serve as the driver of the getaway car during the CVS robbery. Jones testified that during the CVS robbeiy, Smith wore a T-shirt over his face and carried the same pistol that he had used during the KFC robbery. Jones testified that before the CVS robbery, Smith had discarded his “Jason Mask” after he saw himself wearing the mask on the television news. Jones testified that only he and Smith entered the CVS because Kerr, who remained with the defendant in the stolen Maxima, no longer had a gun. Jones also testified that he went straight to a register and that Smith went to look for the manager. While testifying, Jones referred to the KFC and the CVS security videotapes. There was additional evidence at trial that, at the KFC robbery scene, Smith took money at gunpoint from a cash register and from an employee. While in the CVS, Smith took money at gunpoint from customers, and Jones took money from a cash register after using a handgun pointed at an employee.

In his brief, the defendant claims that Jones provided the only evidence that linked him to the crimes. In support of this claim, the defendant contends that because Jones’ testimony was “so suspect because of the unbelievably fantastic plea deal he made with the [state],” the jury’s reliance on such testimony rendered his conviction “insufficient ... as a matter of fact and as a matter of law.” In essence, the defendant requests this court to declare Jones’ testimony not credible as a matter of law.

The defendant’s challenge to the sufficiency of the evidence is a challenge to the credibility of Jones’ testimony, which provided a sufficient evidentiary basis for the convictions. We have repeatedly held that “[t]his court will not revisit credibility determinations. Whether [a witness’] testimony [is] believable [is] a question solely for the jury. It is . . . the absolute right and responsibility of the jury to . . . determine the credibility of witnesses.” (Internal quotation marks omitted.) State v. Falcon, 90 Conn. App. 111, 132, 876 A.2d 547, cert. denied, 275 Conn. 926, 883 A.2d 1248 (2005). Testimony is not rendered inadmissible merely because it is uncorroborated or has inconsistencies. Id.; see also State v. Holmes, 94 Conn. App. 494, 503 n.4, 892 A.2d 969, cert. denied, 278 Conn. 908, 899 A.2d 35 (2006).

We conclude that the defendant has not demonstrated that it was unreasonable for the jmy to have relied on Jones’ testimony. “[T]he question of [the] identify of a perpetrator of a crime is a question of fact that is within the sole province of the jury to resolve. [I]n viewing evidence which could yield contrary inferences, the jury is not barred from drawing those inferences consistent with guilt and is not required to draw only those inferences consistent with innocence. The rule is that the jury’s function is to draw whatever inferences from the evidence or facts established by the evidence it deems to be reasonable aind logical.” (Internal quotation marks omitted.) State v. Felder, 99 Conn. App. 18, 24, 912 A.2d 1054, cert. denied, 281 Conn. 921, 918 A.2d 273 (2007).

In the present case, the defendant, through cross-examination and argument, attempted to discredit the testimony of Jones. The arguments raised by the defendant on appeal with regard to Jones’ credibility are arguments that the defendant properly raised before the jury and which were properly considered by the jury in determining what weight to afford Jones’ testimony. See State v. Osoria, 86 Conn. App. 507, 515, 861 A.2d 1207 (2004), cert. denied, 273 Conn. 910, 870 A.2d 1082 (2005). Accordingly, we conclude that Jones’ testimony was properly before the jury, and, when considered in light of the other testimony introduced at trial, provided an evidentiary basis for the defendant’s conviction. There was testimony from other witnesses that four men were involved in the KFC robbery after the Maxima was abandoned near the KFC and that Smith’s automobile, Smith himself, Kerr and a third person, who had escaped, were involved in the KFC robbery. Testimony was also introduced that established that shortly before the robberies, both Maxima vehicles were stolen from Cornwall Street in Hartford, the street where the defendant resided. There was additional testimony that one stolen Maxima was recovered near the KFC where Smith’s car, which was impounded by the police that night, was observed leaving the area, and that the stolen Maxima used during the CVS robbery was recovered in close proximity to the defendant’s house.

IV

Finally, the defendant claims that the sentencing court deprived him of his right to a jury trial and proof beyond a reasonable doubt under the federal and state constitutions by improperly considering several uncharged crimes that were referenced in his presentence investigation report. Having failed to preserve this claim, the defendant seeks review under State v. Golding, supra, 213 Conn. 239-40, or, in the alternative, under the plain error doctrine. Although the defendant’s claim meets Golding's first two prongs, we conclude that his claim fails because he cannot satisfy the third prong by establishing that a constitutional violation clearly exists.

“As a general matter, a trial court possesses, within statutorily prescribed limits, broad discretion in sentencing matters. On appeal, we will disturb atrial court’s sentencing decision only if that discretion clearly has been abused. . . . Due process requires, however, that information be considered only if it has some minimal indicium of reliability. ... A court should refrain from comments that find no basis in the record. Nonetheless, the mere reference to information outside of the record does not require a sentence to be set aside unless the defendant shows: (1) that the information was materially false or unreliable; and (2) that the trial court substantially relied on the information in determining the sentence.” (Citation omitted; internal quotation marks omitted.) State v. Dudley, 68 Conn. App. 405, 426, 791 A.2d 661, cert. denied, 260 Conn. 916, 797 A.2d 515 (2002). In the present case, the defendant made no such showing.

During sentencing, the court stated that the most important factors that it considered were the two robberies for which the defendant had been convicted. In arriving at a sentence, the court considered carefully the nature of crimes involving firearms, the monetary losses of the retail stores and the status of the victims as either employees or customers who happened to be on the premises at the time of the robberies. The court also considered the effect of the robbery on an employee who had left her job in an effort to avoid future danger. Consideration was also given to the defendant’s previous record and his failure to comply with the conditions of his probation. We note that the court, in its sentencing remarks, did refer to other uncharged robberies involving the defendant and Jones, which, the court acknowledged, factored into its consideration of the defendant’s sentence in a minor way. These robberies, however, were a part of Jones’ plea agreement, which had been admitted into evidence. Because the record reveals that the court properly relied on the evidence presented at trial in imposing the sentence, the defendant cannot prevail on his unpreserved constitutional challenge. See id., 425.

Moreover, having concluded that the court properly considered the evidence presented at trial in imposing the defendant’s sentence, plain error review is inappropriate here because the claimed error is not so obvious that “it affects the fairness and integrity of and public confidence in the judicial proceedings. ” (Internal quotation marks omitted.) See State v. Solman, 67 Conn. App. 235, 239, 786 A.2d 1184 (2001), cert. denied, 259 Conn. 917, 791 A.2d 568 (2002).

The judgments ar e affirmed.

In this opinion the other judges concurred.

      A “Jason mask” is a white hockey mask similar to that worn by the character “Jason” in the “Friday the Thirteenth” horror movie series.

       Before the presentation of evidence began, the court instructed the jury as to notetaldng.

       The defendant invokes both the federal and state constitutions in support of his claim. The defendant, however, has failed to provide us with an independent analysis of his claim under the constitution of Connecticut. “We have repeatedly apprised litigants that we will not entertain a state constitutional claim unless the defendant has provided an independent analysis under the particular provisions of the state constitution at issue.” (Internal quotation marks omitted.) State v. Canales, 281 Conn. 572, 592 n.12, 916 A.2d 767 (2007).

       In its preliminary jury instructions, the court instructed the jury regarding notetaking as follows: “I realize that you all got your notebooks, and you’re free to take notes. . . . Your notes are just aids to your memories. If you don’t take notes, don’t rely on anyone else’s notes. Everything that is testified to in this case is recorded. If you have questions during jury deliberations about what was testified to, you just send me a note and we play it again. Okay? So, there’s no reason for a jury to ever disagree as to what the testimony was. Whether you believed it or not, how it fits into the scheme of the law, theory of the state or theory of the defense, that you may have to wrestle with. But what was said should be no problem. So, you don’t— certainly don’t need detailed—I mean, verbatim notes.”
      In its final charge to the jury, the court instructed as follows: “Your notes are merely aids to your memories and should not be given precedence over your independent recollection of the evidence. A juror who has not taken notes should rely on his or her recollection of the evidence and should not be influenced by another juror’s notes.”

       Our Supreme Court has held that “the plain language of [General Statutes] § 53a-133 clearly mandates punishment for each and every robbery of each and every person, irrespective of whether the robbery was spatially linked with another robbery.” State v. Lytell, 206 Conn. 657, 667, 539 A.2d 133 (1988). “Therefore when two or more persons are the victims of a single episode there are as many offenses as there are victims.” (Internal quotation marks omitted.) State v. D’Antonio, 274 Conn. 658, 717, 877 A.2d 696 (2005).

       During trial, Jones testified that in exchange for testifying against the defendant, Smith and Kerr, the state would recommend that Jones receive a sentence of twenty years incarceration, with execution of the sentence suspended after four and one-half years for a number of armed robberies.

       During his testimony, Jones admitted leaving Smith’s car and escaping from the police after the KFC robbery.

       See Practice Book § 60-5. “It is . . . well established that plain error review is reserved for truly extraordinary situations where the existence of the error is so obvious that it affects the fairness and integrity of and public confidence in the judicial proceedings. ... A defendant cannot prevail under [the plain error doctrine] . . . unless he demonstrates that the claimed error is both so clear and so harmful that a failure to reverse the judgment would result in manifest injustice.” (Citation omitted; internal quotation marks omitted.) State v. Solman, 67 Conn. App. 235, 239-40, 786 A.2d 1184 (2001), cert. denied, 259 Conn. 917, 791 A.2d 568 (2002).

       In reviewing this claim, we note that the defendant’s reliance on Apprendi v. New Jersey, 530 U.S. 466, 120 S. Ct. 2348, 147 L. Ed. 2d 435 (2000), Blakely v. Washington, 542 U.S. 296, 299-300, 124 S. Ct. 2531, 159 L. Ed. 2d 403 (2004), and United States v. Booker, 543 U.S. 220, 226-27, 125 S. Ct. 738, 160 L. Ed. 2d 621 (2005), cases that involved sentence enhancement statutes and federal sentencing guidelines, is misplaced. In this case, the court sentenced the defendant to twenty years of imprisonment, suspended after sixteen years, with four years of probation. In so doing, the court imposed a sentence that is provided for under General Statutes § 53a-35a.