author: MCDONALD, J.

text:
    STATE OF CONNECTICUT v. TENG BUNLEUT
    (AC 23425)
    Dranginis, Flynn and McDonald, Js.

      Argued January 22 —
    officially released May 4, 2004

      Maria A. Cahill, with whom was Carlos E. Candal, for the appellant (defendant).

      Howard S. Stein, assistant state’s attorney, with whom, on the brief, were Jonathan C. Benedict, state’s attorney, Joseph P. Harry, senior assistant state’s attorney, and Brian King, law student intern, for the appel-lee (state).
   Opinion

MCDONALD, J.

The defendant, Teng Bunleut, appeals from the judgment of conviction, rendered after a jury trial, of carrying a pistol without a permit in violation of General Statutes § 29-35 (a). On appeal, the defendant claims that (1) the assistant state’s attorney engaged in misconduct during closing argument and (2) the trial court improperly instructed the jury on the charge of carrying a pistol without a permit. We affirm the judgment of the trial court.

The jury reasonably could have found the following facts. During the early morning hours of June 3, 2001, the defendant and his cousin drove to the Golden Bamboo Restaurant in Bridgeport. As the defendant later told the police, he was in possession of a nine millimeter handgun that night, and he did not have a permit for the gun. While at the restaurant, Chandra Sam and Buntham Sam approached the defendant, asked him if he was from Danbury and if he had attended a wedding two months earlier. The defendant had attended a wedding at the restaurant approximately two and one-half months earlier when, during an altercation, Buntham Sam and Chandra Sam fired gunshots at the defendant and his friends. The Sams repeatedly asked the defendant to go outside, which the defendant refused to do.

The defendant told the police that when the restaurant closed he had gone outside, where the Sams started shooting at him. The defendant stated that he then began to fire his pistol at the Sams. The defendant then entered a vehicle and left with the gun. When the police stopped the vehicle, they found the nine millimeter handgun that was used to wound the Sams and another person. In the parking lot of the restaurant, the police collected twenty-three shell casings, some of which came from the nine millimeter handgun that was recovered from the defendant’s vehicle.

I

The defendant claims that the assistant state’s attorney engaged in misconduct during closing argument. The defendant failed to make that claim at trial and now seeks review under State v. Golding, 213 Conn. 233, 239-40, 567 A.2d 823 (1989).

“[W]e consider it highly significant that defense counsel failed to object to any of the improper remarks, request curative instructions, or move for a mistrial. Defense counsel, therefore, presumably [did] not view the alleged impropriety as prejudicial enough to jeopardize seriously the defendant’s right to a fair trial. . . . Given the defendant’s failure to object, only instances of grossly egregious misconduct will be severe enough to mandate reversal.” (Citation omitted; emphasis added; internal quotation marks omitted.) State v. Thompson, 266 Conn. 440, 479-80, 832 A.2d 626 (2003).

“Prior to analyzing the defendant’s specific claims of prosecutorial misconduct, we set forth the well established principles that guide our inquiry as to all of his claims. To prove prosecutorial misconduct, the defendant must demonstrate substantial prejudice. ... In order to demonstrate this, the defendant must establish that the trial as a whole was fundamentally unfair and that the misconduct so infected the trial with unfairness as to make the conviction a denial of due process. . . . [I]t is not the prosecutor’s conduct alone that guides our inquiry, but, rather, the fairness of the trial as a whole.” (Citation omitted; internal quotation marks omitted.) State v. Coney, 266 Conn. 787, 806-807, 835 A.2d 977 (2003).

“Moreover, in analyzing claims of prosecutorial misconduct, we engage in a two step analytical process. The two steps are separate and distinct: (1) whether misconduct occurred in the first instance; and (2) whether that misconduct deprived a defendant of his due process right to a fair trial. Put differently, misconduct is misconduct, regardless of its ultimate effect on the fairness of the trial; whether that misconduct caused or contributed to a due process violation is a separate and distinct question that may only be resolved in the context of the entire trial . . . .” (Internal quotation marks omitted.) Id., 808.

“As we previously have recognized, prosecutorial misconduct of a constitutional magnitude can occur in the course of closing arguments.” (Internal quotation marks omitted.) State v. Thompson, supra, 266 Conn. 458.

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

“Just as the prosecutor’s remarks must be gauged in the context of the entire trial, once a series of serious improprieties has been identified we must determine whether the totality of the improprieties leads to the conclusion that the defendant was deprived of a fair trial. . . . Thus, the question ... is whether the sum total of [the assistant state’s attorney’s] improprieties rendered the defendant’s [trial] fundamentally unfair, in violation of his right to due process. . . . The question of whether the defendant has been prejudiced by prosecutorial misconduct, therefore, depends on whether there is a reasonable likelihood that the jury’s verdict would have been different absent the sum total of the improprieties.” (Citations omitted; internal quotation marks omitted.) Id., 460.

The following facts are relevant to our resolution of the defendant’s claim. During his rebuttal argument, the assistant state’s attorney stated: “[The defendant] cooperated with the police. How’s he going to deny the fact [that he] just left the [restaurant], the shooting, here’s a gun, what’s he going to deny, [that] it was his? First of all, he’s caught with it, so he makes the story. Here’s a stoiy, they were shooting at me, but no one had produced anything about a previous shooting. Was it reported? No, I didn’t report it the last time, I think someone else did. You’ll see that in his statement [to the police].

“Come on? Is that reasonable? You’re going to go back to the same place that someone shot at you two months earlier? Or, are you going to go back there armed, looking for revenge? This time they won’t catch me the second time. This time I’ll have a gun. He couldn’t tell the officers, hey, you know, I went back for revenge and I shot them, I’m going — yes, and I’m going to plead guilty to the assaults. He can’t say that. So, he says, well, they threatened me while I was there, so being that I put myself into this situation, being that I came from Danbury with a gun, I wasn’t going to let them get away with it.”

The defendant did not object, but the court, at that point, interrupted the assistant state’s attorney, questioning whether the comments were proper argument. The assistant state’s attorney informed the court that he was referring to the defendant’s statement, which had been admitted into evidence. The court then cautioned the jury: “[I]f it’s not in that statement, counsel cannot remark — attribute any remarks to an accused person; it’s contrary to the law.”

The defendant now claims on appeal that those comments by the assistant state’s attorney were improper because they (1) were not based on evidence in the record, (2) expressed the personal opinion of the assistant state’s attorney and (3) appealed to the emotions, passions and prejudices of the jurors.

Even if we were to find that the comments of the assistant state’s attorney were improper, the defendant has failed to establish that he was deprived of a fair trial as a result of the comments. All the comments that the defendant alleges were improper related to his claim of self-defense as to the charges of assault in the first degree and attempt to commit murder. The comments were not directed toward the only charge as to which the jury found the defendant guilty, carrying a pistol without a permit. The jury acquitted the defendant of all counts of assault and attempt to commit murder, which indicates that the jury made its finding rationally, on the basis of the evidence, and was not unduly swayed by the remarks of the assistant state’s attorney. See State v. Thompson, supra, 266 Conn. 482.

Furthermore, in his statement to the police, which was in evidence, the defendant admitted that he had the gun and shot the victims with it. There was uncon-tradicted evidence that the defendant did not have a permit to carry that handgun. The evidence in this case as to the count of carrying a pistol without a permit was not only strong, it was overwhelming.

Finally, the court, in keeping with its responsibility as a minister of justice; In re Jonathan M., 255 Conn. 208, 234, 764 A.2d 739 (2001); properly interrupted the argument of the assistant state’s attorney, inquired if the comments were proper and then, sua sponte, gave an effective curative instruction. See State v. Thompson, supra, 266 Conn. 460. Accordingly, we conclude that the defendant was not deprived of a fair trial as a result of the remarks of the assistant state’s attorney.

II

The defendant claims that the court improperly instructed the jury on the charge of carrying a pistol without a permit. The defendant did not object to the court’s instructions to the jury and seeks review under State v. Golding, supra, 213 Conn. 239-40. We will review the defendant’s claim because the record is adequate and the claim is of constitutional magnitude. See State v. Koslik, 80 Conn. App. 746, 760, 837 A.2d 813 (2004).

In its instructions to the jury on the charge of possessing a pistol without a permit, the court stated in relevant part: “Carrying a weapon on a person without a permit is against the law in this state. A . . . person is in violation of the law if he carries any such pistol or revolver upon his person except when such person is within a dwelling or place of business without first obtaining a permit to carry. ...” The court continued and later char ged in relevant part: “Now, a permit may be issued by the issuing authority of the state or local government. . . . But, if one doesn’t have a pistol permit, one cannot carry such a weapon or revolver or pistol on their person either in a car or in — on their person. The state must prove beyond a reasonable doubt that the proper permit had not been issued, and, you heard evidence concerning that.”

It is the defendant’s claim that it is reasonably possible that the jury was misled when the court included in its charge a statement that a pistol cannot be carried on one’s person in a car. It is the defendant’s claim that by including the reference to the car, the court “added an element of the crime to the charge of carrying a pistol without a permit.” We disagree.

“When reviewing the challenged jury instruction . . . we must adhere to the well settled rule that a charge to the jury is to be considered in its entirety, read as a whole, and judged by its total effect rather than by its individual component parts. . . . [T]he test of a court’s charge is not whether it is as accurate upon legal principles as the opinions of a court of last resort but whether it fairly presents the case to the jury in such a way that injustice is not done to either party under the established rules of law. ... 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. . . .

“[I]n appeals involving a constitutional question, [the standard is] whether it is reasonably possible that the jury [was] misled. . . . 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 to any part of a charge is whether the charge, considered as a whole, presents the case to the jury so that no injustice will result.” (Citations omitted; internal quotation marks omitted.) State v. Betances, 265 Conn. 493, 509-10, 828 A.2d 1248 (2003).

We conclude that it is not reasonably possible that the court’s instructions misled the jury. When read in their entirety, the court’s instructions were an accurate reflection of the law and were adapted to the evidence in the case. See State v. Davis, 261 Conn. 553, 563-64, 804 A.2d 781 (2002).

The defendant was charged with carrying a pistol without a permit in violation of § 29-35 (a). Section 29-35 (a) provides in relevant part: “No person shall carry any pistol or revolver upon one’s person, except when such person is within the dwelling house or place of business of such person, without a permit to carry the same . . . .” In his statement to the police, which was in evidence, the defendant admitted that he was carrying a pistol without a permit. In the statement, the defendant told the police that he purchased the nine millimeter pistol in Florida and that he did not have a permit for the weapon. Also in the statement, the defendant told the police that on June 3, 2001, he went to the Golden Bamboo Restaurant with that pistol and that while he was in the parking lot, he fired seven to eight gunshots from that pistol, aiming at Buntham Sam and Chandra Sam. He then left the area in a vehicle being driven by his cousin that was stopped by the police. The police testified that in the vehicle they found a nine millimeter handgun, which had been fired in the restaurant parking lot.

The court specifically instructed the jury that an individual is in violation of § 29-35 (a) if that person “carries any such pistol or revolver upon his person except when such person is within a dwelling or place of business, without first obtaining a permit to carry.” When read in context, the language that the court incorporated in its charge as to carrying a pistol on one’s person in a car instructed the jury, perhaps inartfully, that an individual is in violation of § 29-35 (a) if the individual is carrying a pistol on his person in any place, including a car, other than a dwelling or a place of business, without a permit to carry the pistol. We accordingly conclude that it was not reasonably possible that the jury was misled by the court’s instructions.

The judgment is affirmed.

In this opinion the other judges concurred.

       The defendant was acquitted of one count of attempt to commit murder in violation of General Statutes §§ 53a-49 and 53a-54a (a), one count of assault in the first degree in violation of General Statutes § 53a-59 (a) (1) and two counts of assault in the first degree in violation of General Statutes § 53a-59 (a) (5).

       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.) State v. Golding, supra, 213 Conn. 239-40.


source: Caselaw Access Project

author: WEST, J.

license: Public Domain

text:
    STATE OF CONNECTICUT v. LUIS COLON
    (AC 24114)
    Foti, West and DiPentima, Js.
    Argued February 18 —
    officially released May 4, 2004

      Thomas M. Conroy, special public defender, for the appellant (defendant).

      Erik T. Lohr, special deputy assistant state’s attorney, with whom, on the brief, were Michael Dearington, state’s attorney, and Eugene R. Calistro, Jr., assistant state’s attorney, for the appellee (state).
   Opinion

WEST, J.

The defendant, Luis Colon, appeals from the judgment of the trial court, rendered after it denied his motion to withdraw his plea of guilty, which was entered under the Alford doctrine, to the charge of sexual assault in the first degree in violation of General Statutes § 53a-70 (a) (1). On appeal, he claims that the court failed to exercise any discretion in denying the motion to withdraw his plea. Specifically, he argues that the court improperly limited itself to the grounds for withdrawing a guilty plea under Practice Book § § 39-26 and 39-27, and encourages this court to adopt the “fair and just” reason standard for withdrawing a plea, as employed by federal courts and the American Bar Association. The defendant makes that particular argument for the first time on appeal.

“The court shall not be bound to consider a claim unless it was distinctly raised at the trial or arose subsequent to the trial. . . . The requirement that [a] claim be raised distinctly means that it must be so stated as to bring to the attention of the court the precise matter on which its decision is being asked.” (Citation omitted; emphasis in original; internal quotation marks omitted.) State v. Stewart, 77 Conn. App. 238, 245, 822 A.2d 366 (2003). The defendant also has not requested review pursuant to State v. Golding, 213 Conn. 233, 239-40, 567 A.2d 823 (1989). Accordingly, we decline to review the defendant’s unpreserved claim.

The judgment is affirmed.

In this opinion the other judges concurred.

        North Carolina v. Alford, 400 U.S. 25, 37, 91 S. Ct. 160, 27 L. Ed. 2d 162 (1970).

       “ [A] district court may permit withdrawal of a guilty plea prior to sentencing if there are valid grounds for withdrawal and if granting the motion would be fair and just, giving due regard to any prejudice the government might suffer as a result.” United States v. Couto, 311 F.3d 179, 185 (2d Cir. 2002).

       During argument before the court on the defendant’s motion to withdraw his guilty plea, defense counsel stated: “I have reviewed the canvass that took place on December 6, 2002, and I did not detect any of the normal Practice Book identified defects that would allow [the defendant] to withdraw the plea.” Defense counsel then urged the court to vacate the plea because the defendant was unaware that he would be barred from any contact with his minor children during his period of probation. He never stated, however, that he was seeking to have the court consider his motion under the federal “fair and just” reason standard, nor did he indicate that there was some other authority, aside from Practice Book §§ 39-26 and 39-27, by which the court could allow the defendant to withdraw his guilty plea.


author: FOTI, J. BISHOP, J.,

text:
    NATEYSHA MONK ET AL. v. TEMPLE GEORGE ASSOCIATES, LLC, ET AL.
    (AC 24275)
    Foti, Bishop and West, Js.
    Argued January 9 —
    officially released May 4, 2004

      Steven D. Jacobs, for the appellant (named plaintiff).

      Jonathan A. Beatty, for the appellees (named defendant et al.).
   Opinion

FOTI, J.

In this negligence action, the plaintiff Nateysha Monk appeals from the trial court’s judgment, rendered after it granted the motion for summary judgment that was filed by the defendants Temple George Associates, LLC, and Pro Park, Inc. On appeal, the plaintiff claims that the court improperly granted the . motion for summary judgment because there is a genuine issue of material fact as to (1) whether the defendants had a legal duty to protect her and (2) whether the defendants’ conduct was the proximate cause of her injuries. We disagree with the plaintiff and affirm the judgment of the trial court.

The following undisputed facts are relevant to our resolution of the plaintiffs claims. On December 26, 1998, the plaintiff attended a New Haven nightclub and parked her car at the defendants’ parking lot for a fee. While in the nightclub, Ayishea Denson, a former girlfriend of the plaintiffs husband, verbally confronted the plaintiff, as she had done on past occasions. The plaintiff then left the nightclub, and Denson followed her, continuing the verbal attack. Denson then physically attacked the plaintiff in the defendants’ parking lot.

The plaintiff filed the present action on January 17, 2001, alleging that her injuries were caused by the defendants’ negligence. In their answer, filed August 6, 2001, the defendants denied those allegations. On April 25, 2002, the defendants filed a motion for summary judgment, claiming that (1) they did not have a legal duty to protect the plaintiff from such an attack, and (2) their conduct was not the proximate cause of the attack. In its memorandum of decision, filed April 29, 2003, the court agreed with the defendants and concluded that (1) because the type of harm alleged was not reasonably foreseeable, the defendants did not have a legal duty to protect the plaintiff from such an attack, and (2) even if the plaintiff presented evidence to support a claim of duty, she would fail on the issue of proximate cause. This appeal followed.

We begin by setting forth our standard of review. “Summary judgment shall be rendered forthwith if the pleadings, affidavits and any other proof submitted show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. Practice Book § 17-49. . . . Our review of the trial court’s decision to grant [a] motion for summary judgment is plenary.” (Citation omitted; internal quotation marks omitted.) Barry v. Quality Steel Products, Inc., 263 Conn. 424, 450, 820 A.2d 258 (2003).

“The essential elements of a cause of action in negligence are well established: duty; breach of that duty; causation; and actual injury. . . . First, it is necessary to determine the existence of a duty . . . .” (Internal quotation marks omitted.) Baptiste v. Better Val-U Supermarket, Inc., 262 Conn. 135, 138, 811 A.2d 687 (2002). Here, because the plaintiff parked her car at the defendants’ parking lot for a fee, she was a business invitee, and the defendants owed her a duty to keep their premises in a reasonably safe condition. See id., 140. The issue presented in this appeal, however, is whether the defendants had a legal duty to protect the plaintiff from this type of attack occurring on its premises.

“The existence of a duty is a question of law and only if such a duty is found to exist does the trier of fact then determine whether the defendant violated that duty in the particular situation at hand. . . . Our Supreme Court has stated that the test for the existence of a legal duty of care entails (1) a determination of whether an ordinary person in the defendant’s position, knowing what the defendant knew or should have known, would anticipate that harm of the general nature of that suffered was likely to result, and (2) a determination, on the basis of a public policy analysis, of whether the defendant’s responsibility for its negligent conduct should extend to the particular consequences or particular plaintiff in the case. . . . The first part of the test invokes the question of foreseeability, and the second part invokes the question of policy.” (Citations omitted; internal quotation marks omitted.) Abramczyk v. Abbey, 64 Conn. App. 442, 445, 780 A.2d 957, cert. denied, 258 Conn. 933, 785 A.2d 229 (2001).

The court determined that, as a matter of law, the defendants did not owe the plaintiff a duty to protect her from the type of harm complained of. To the contrary, the plaintiff argues extensively that there is a genuine issue of material fact on the issue of foreseeability that would preclude the granting of the defendants’ motion for summary judgment. Specifically, the plaintiff argues that she produced adequate evidence to create a genuine issue of material fact as to whether the defendants, knowing what they knew, or in light of what they should have known, about the crime in the area in which the parking lot is located, anticipated the type of harm that occurred. We, however, need not address that argument under the first prong of the analysis concerning the existence of a duty if public policy requires that no legal duty be imposed on the defendants. See, e.g., Gomes v. Commercial Union Ins. Co., 258 Conn. 603, 618 n.11, 783 A.2d 462 (2001). We therefore must look at the public policies at issue under the second prong of our duty analysis.

We note that “[t]he fundamental policy purposes of the tort compensation system [are] compensation of innocent parties, shifting the loss to responsible parties or distributing it among appropriate entities, and deterrence of wrongful conduct .... It is sometimes said that compensation for losses is the primary function of tort law . . . [but it] is perhaps more accurate to describe the primary function as one of determining when compensation [is] required. . . . An equally compelling function of the tort system is the prophylactic factor of preventing future harm .... The courts are concerned not only with compensation of the victim, but with admonition of the wrongdoer. . . . [I]mposing liability for consequential damages often creates significant risks of affecting conduct in ways that are undesirable as a matter of policy. Before imposing such liability, it is incumbent upon us to consider those risks.” (Citations omitted; internal quotation marks omitted.) Lodge v. Arett Sales Corp., 246 Conn. 563, 578-79, 717 A.2d 215 (1998).

To impose a legal duty on the defendants under the circumstances of this case would (1) be tantamount to imposing strict liability on a parking lot owner or operator for any injury occurring on its property no matter what the circumstances, (2) not act as a deterrent, given the unique circumstances of the attack at issue, where a known attacker attacked the plaintiff because of a personal dispute that arose two years earlier and (3) shift the cost of the plaintiffs harm to parties who were not directly, if at all, responsible for the injuries. The policy goals of the tort compensation system would, therefore, not be met if we were to permit a legal duty to be imposed on the defendants. Consequently, although we do not conclude that a parking lot operator or owner never has a legal duty to protect business invitees from attacks occurring on its premises, public policy requires this court to conclude, as a matter of law, that the defendants did not have a legal duty to protect the plaintiff from the attack at issue.

The judgment is affirmed.

In this opinion WEST, J., concurred.

BISHOP, J.,

dissenting. The core question presented in this appeal is whether the owners and managers of a parking lot who invite members of the public to park their vehicles in the lot for a fee during evening hours have a legal duty of care to provide reasonable protections to their invitees against the harm of being physically assaulted by third parties in the parking lot. Rather than address this question, the majority recasts the issue to ask whether, on public policy grounds, the defendants, Temple George Associates, LLC (Temple), and Pro Park, Inc. (Pro Park), should have a responsibility to afford reasonable protection to this plaintiff, Nateysha Monk, against assault by her husband’s ex-girlfriend. I would reverse the judgment of the trial court because I disagree with the majority’s policy analysis, and I believe the trial court incorrectly decided the factual issue of foreseeability.

The underlying factual allegations are uncomplicated. The plaintiff filed a multicount complaint against (1) the owner of a parking lot, Temple, (2) the manager of the parking lot, Pro Park, (3) the proprietor of a nightclub, John LoRicco, doing business as the Alley Cat Club, and (4) Ayishea Denson, a former girlfriend of the plaintiffs husband. The plaintiff claimed that during the evening of December 26, 1998, she parked her motor vehicle in the defendants’ parking lot located on College Street in New Haven and paid an attendant the required parking fee. She alleged additionally that after parking her car, she went to the Alley Cat Club where she was accosted by Denson. At approximately 2 a.m., she left the bar and headed back to her vehicle. While in the parking lot, she was physically assaulted by Denson. In her complaint, the plaintiff claims, inter alia, that her injuries were due to the negligence of Temple and Pro Park by reason of their failure to have sufficient security personnel on the premises, failure to keep the premises reasonably safe for business invitees, failure to enact and or to enforce adequate safety measures, failure to warn the plaintiff and other persons authorized to be on the premises that they may be assaulted on the premises, failure to warn the plaintiff and other business invitees that the parking lot attendant would not be on the premises at all times, and, lastly, that the defendants failed to illuminate the parking lot adequately.

In response to the complaint, the defendants filed a motion for summary judgment premised on their claims that they had no legal duty to protect the plaintiff from the attack and that their conduct was not the proximate cause of the attack. The plaintiff filed an opposition to the defendants’ motion for summary judgment, and included an affidavit and investigative report prepared by an expert concerning the issue of foreseeability. The report indicates that the parking lot in question is located at 189-95 College Street and that it is bounded on either side by buildings, that it contains spaces for seventy cars and that sight lines within the parking lot are, in some places, obstructed. The report further indicates that at the entrance to the parking lot, there was a sign stating: “PLEASE SEE ATTENDANT Vehicles without valid ticket or pass towed at owner’s expense. NO PARKING IF LOT UNATTENDED.” The report notes that there was no attendant on duty when the assault occurred. As to the potential dangerousness of the area in which the incident took place, the report indicates that the parking lot is located in an area in which there are several nightclubs and where numerous “street people” can be seen scavenging for bottles and other items. It also indicates that the New Haven police department regularly deploys extra police officers to that area as a strategy of “crowd control” to deal with the numbers of people exiting the various entertainment venues at closing time. Additionally, the report states that crime statistics from the Federal Bureau of Investigation reveal that the city of New Haven had the highest rate of serious crime among Connecticut’s major cities during the relevant time period. Finally, the expert indicates that he has “personal knowledge that serious crimes have occurred with some frequency in the area of Crown and George Street in New Haven, the locale of the injury to the Plaintiff.” On the basis of this information, the plaintiffs expert concluded that the defendants knew or should have known that unruly behavior by bar patrons at closing time created a risk of injury to people or property in the area of the defendants’ parking lot.

In response to the defendants’ motion for summary judgment, the trial court concluded that while the defendants had a duty reasonably to care for their business invitees, they did not have a duty to protect the plaintiff from this particular attack because it was not foreseeable. Additionally, the court observed that the defendants would have been entitled to summary judgment on the ground that, as a matter of law, any negligence on their part was not the proximate cause of the plaintiffs injuries.

The majority states, and I agree, that in assessing the granting of a motion for summary judgment, we need not review the court’s determination on the issue of foreseeability if, on policy grounds, the defendants should not be held responsible for the plaintiffs injuries. I disagree, however, with the majority’s conclusion that we should not impose on the defendants a duty to protect the plaintiff from this particular attack. I respectfully believe that the majority has misconstrued the nature of the duty in question since the imposition of a duty does not depend on the identity of the attacker or on the presence or absence of a relationship between the assailant and victim. Rather, it depends on the nature of the relationship between the plaintiff and the defendants. See 2 D. Pope, Connecticut Actions and Remedies, Tort Law (1993) § 25:05, p. 25-7; RK Constructors, Inc. v. Fusco Corp., 231 Conn. 381, 385, 650 A.2d 153 (1994); see also W. Prosser & W. Keeton, Torts (5th Ed. 1984) § 42, p. 274 (“[t]he question whether there is a duty has most often seemed helpful in cases where the only issue is in reality whether the defendant stands in any such relation to the plaintiff as to create any legally recognized obligation of conduct for the plaintiffs benefit”).

In the present case, the plaintiff was a business invitee of the defendants. Thus, as the majority correctly points out, the defendants had a duty to the plaintiff to exercise reasonable care to protect the plaintiff from dangers that were either actually known by them or reasonably foreseeable. Cf. Baptiste v. Better Val-U-Supermarket, Inc., 262 Conn. 135, 138-41, 811 A.2d 687 (2002). The majority is, however, unwilling to impose that duty in the present case based on the specific identity of the plaintiffs assailant, the specific nature of the assault, and the fact that the plaintiff and the assailant were not strangers. I respectfully believe that this portion of the majority’s analysis is legally incorrect. As has been oft-stated, the test for whether a duty of care exists does not require that “one charged with negligence must be found actually to have foreseen the probability of harm or that the particular injury which resulted was foreseeable, but the test is, would the ordinary [person] in the [defendants’] position, knowing what he knew or should have known, anticipate that harm of the general nature of that suffered was likely to result?” (Emphasis added; internal quotation marks omitted.) Jaworski v. Kiernan, 241 Conn. 399, 405, 696 A.2d 332 (1997).

As the majority has noted, however, the imposition of a duty on a defendant involves considerations of both foreseeability and public policy. Thus, even if the plaintiffs injury could reasonably have been foreseen, a duty of care will not be imposed on the defendants if public policy considerations do not support it. See, e.g., Gomes v. Commercial Union Ins. Co., 258 Conn. 603, 618 n.11, 783 A.2d 462 (2001). On that basis, the majority reached the issue of public policy without considering foreseeability and determined that no legal duty should be imposed in this instance. I disagree, respectfully, with the majority’s analysis of public policy.

At the outset, it is useful to observe that our analysis of public policy must take place in a legal context. As noted, it is a basic legal tenet that one in possession of property has a duty of care to his or her business invitees to afford them reasonable protections against foreseeable harm. 2 Restatement (Second), Torts § 344 (1965). The question, then, is whether there are reasons founded on public policy to constrict that generally applicable principle of premises liability in this instance. I find no reason to impose such a limitation.

In considering whether public policy suggests the imposition of a duty, we have been instructed to consider the following four factors: “(1) the normal expectations of the participants in the activity under review; (2) the public policy of encouraging participation in the activity, while weighing the safety of the participants; (3) the avoidance of increased litigation; and (4) the decisions of other jurisdictions.” Murillo v. Seymour Ambulance Assn., Inc., 264 Conn. 474, 480, 823 A.2d 1202 (2003).

As to the first criterion, regarding the normal expectations of participants in the activity, I believe that the “participants” are those in possession of the parking lot as well as their business invitees, and the “activity” is that of parking one’s motor vehicle in that lot so that one may enjoy the downtown area. In this instance, when a driver enters the parking lot, the driver is required to pay a fee for parking when an attendant is on duty. That driver is also confronted, however, by a sign stating that parking is not permitted if an attendant is not on duty. From these circumstances, I believe that a driver has a reasonable expectation that the parking lot is and will be attended while one’s motor vehicle is parked in the lot, and that one will be able to traverse the parking lot safely in order to depart from and return to one’s motor vehicle.

As to the second criterion, regarding the public policy of encouraging drivers to utilize such parking lots so that they may enjoy the downtown area in the evening, I believe that public policy suggests the imposition of a duty, as such action would likely encourage people to travel downtown since they would feel safer using a downtown parking lot. On the other hand, restricting the liability of parking lot owners and managers under these circumstances would likely discourage public use of downtown areas because of the perceived dangerousness of the environ. I believe also that an outcome that causes the burden of enhancing public safety to be borne not only by the public but shared by downtown private economic interests is consonant with sound public policy. To the extent that undertaking reasonable precautions against foreseeable risks entails marginal costs, I conclude that the assignment of these extra costs to users by way of increased parking fees would not violate public policy if consequent increased safety resulted in a greater use of the parking lot in the evening. To the contrary, such measures, to the extent they would increase the likelihood and frequency of downtown traffic, would appear to be consistent with public policy. Additionally, the provision of reasonable precautions to safeguard against foreseeable harm likely would reduce the risk of harm to business invitees, an amelioration of danger that could enhance the likelihood of public use of downtown facilities in the evening. In short, there is reason to conclude that the imposition of a responsibility on parking lot owners and managers to provide for the reasonable protection of business invitees against foreseeable harm from the criminal activity of third parties would likely result not only in a diminished risk of harm to their invitees but also in greater use of downtown parking facilities in the evening.

The third factor involved in a public policy analysis is the determination of whether the imposition of a duty in a particular circumstance would likely increase litigation. At first blush, it might seem the imposition of such a duty on downtown landowners and those in possession of downtown properties could foster litigation based on familiar notions of “deep pockets.” Upon further analysis, however, if the coercive purpose of imposing a duty is to cause the proper utilization of reasonable safety precautions, then the consequence of such a policy should be a lessening of injurious incidents and a consequent decrease in litigation. I find no basis to conclude, therefore, that the result of requiring parking lot owners and managers to provide reasonable protections would be additional litigation. Consequently, I disagree with the majority’s conclusion that the imposition of such a duty on the defendants would have no deterrent effect.

In addition, unlike the majority, I do not believe that the imposition of such a duty on a parking lot owner and manager would be tantamount to imposing strict liability. To the contrary, the imposition of such a duty would require only that one in possession of land undertake reasonable precautions for the safety of business invitees. Since the question of whether certain safeguards are reasonable is, in the main, one of fact, the imposition of such a duty would simply afford the plaintiff the opportunity to prove that this assault was foreseeable, that the defendants did not take reasonable precautions to protect the plaintiff against the assault and that the defendants’ negligence was a substantial factor in producing the plaintiffs injuries. Thus, the majority’s conclusion that the imposition of a duty in this instance on the defendants would be tantamount to imposing strict liability is legally incorrect.

Also, as to the policy consideration of potential litigation, I believe the majority is incorrect in its conclusion that the imposition of a duty on the parking lot defendants to bear the cost of a wilful assault by a third party would unreasonably redirect the cost of one’s wilful misbehavior away from the actor. First of all, the notion that an assailant should bear the financial burden of his or her misconduct, while apt in theory, generally affords no practical relief to an injured party. Moreover, and contrary to the majority’s conclusion, I know of no authority for the proposition that the imposition of a duty on the defendants would relieve the actor of his or her responsibility. Rather, it represents a separate basis for recovery in addition to one’s claim against the actor.

I also believe that a landowner or one in possession who invites the public onto its premises for business purposes is, by reason of his or her familiarity with the area surrounding his or her property, in a superior position to assess the risk of harm from criminal attack. Because the landowner controls the premises, he or she is in a unique position to take reasonable measures to deter criminal behavior on the premises for the protection of those invited to use the premises.

The final consideration in a public policy analysis is the decisional law of other jurisdictions. In this regard, I have found no uniformity in the manner in which this question is addressed. Rather, there are two principal schools of thought. In some jurisdictions, a parking lot

owner will not be held responsible for an assault on a patron unless there is evidence that there have been prior criminal acts in the parking lot itself. See, e.g., Selektor v. Smiles Parking Co., 210 App. Div. 2d 18, 618 N.Y.S.2d 813 (1994), leave to appeal denied, 85 N.Y.2d 807, 650 N.E.2d 1325, 627 N.Y.S.2d 323 (1995). In Selektor, the court held that the owner of a parking lot had no duty to provide protective measures to a person murdered inside the parking lot absent a showing that the lot owner had experience with or knowledge of criminal activity inside or near the lot. Id., 18. Jurisdictions requiring evidence of past criminal acts are known to have adopted the “prior similar incidents” rule. Other jurisdictions have adopted a “totality of circumstances” rule. Under this view, a parking lot proprietor may be held to a duty to take reasonable precautions against criminal attack on a patron even absent proof of prior similar crimes where all the circumstances, including prior criminal activity and crime-prone conditions in and near the parking lot, are sufficient to put the lot proprietor on notice that such attacks are possible. See, e.g., Isaacs v. Huntington Memorial Hospital, 38 Cal. 3d 112, 126-27, 695 P.2d 653, 211 Cal. Rptr. 356 (1985). In Isaacs, the court held that the failure of a plaintiff who was assaulted in a parking lot to show the existence of prior similar incidents was not fatal to his claim against the defendant parking lot owner. Id., 130-31. The court reasoned that the showing of crime-prone conditions in the vicinity of the lot was sufficient to raise a jury question as to whether the assault was foreseeable even in the absence of prior similar attacks in the lot. Id.

Although Connecticut has not formally adopted either the prior similar incidents rule or the totality of circumstances rule, it is apparent that the existence of prior criminal activity will be viewed as a significant factor in determining foreseeability. See Stewart v. Federated Dept. Stores, Inc., 234 Conn. 597, 613, 662 A.2d 753 (1995). It is noteworthy, however, that our Supreme Court has not said that evidence of a prior criminal occurrence is the sine qua non of the imposition of a duty. To the extent that this precise question has yet to be answered in Connecticut, I find soundness in the reasoning of one commentator who observed: “The modem trend appears to be that the foreseeability of a violent crime being perpetrated on a patron is not absolutely dependent upon notice of prior crimes of a similar nature occurring on or near the parking facility premises, but may also be determined from all the circumstances present.” 9 Am. Jur., Proof of Facts 3d, p. 597, Premises Liability — Failure to Protect Parking Facility Patron from Criminal Attack (1990). In sum, while I agree that proof of prior criminal acts of a same or similar nature at the specific location of the injury is an important factor in determining the issue of foreseeability, such proof should be understood as a significant but not controlling factor in the assessment of the foreseeability of the risk of harm to a parking lot patron from the criminal acts of third parties. The more flexible totality of circumstances approach to this issue creates less risk of violence to our general jurisprudence of premises liability than the more restrictive approach that imposes liability only in those instances in which there is proof of past criminal activities on the premises.

Having concluded that there is no public policy reason to insulate the Temple and Pro Park defendants from liability, I am required, therefore, to review the court’s determination that the assault on the plaintiff was not foreseeable. My difficulty with the trial court’s analysis concerns the court’s construct that this assault was perpetrated by a particular individual. Having made that determination, the court then concluded that the assault was not reasonably foreseeable. As noted, however, the notion of foreseeability does not require one to foresee the specific harm, but only a harm of the same general nature as that alleged. Jaworski v. Kier-nan, supra, 241 Conn. 405. Thus, in this case, the question was whether an assault on the plaintiff while going from or to her motor vehicle in the parking lot was reasonably foreseeable.

Furthermore, in determining that the contents of the expert’s report concerning the dangerousness of the area of the crime were inadequate, I believe that the court improperly engaged in a weighing of the evidence rather than in a determination of whether any reasonable jurist could determine that the assault was foreseeable. The court’s memorandum of decision reflects that the court determined, as a matter of fact, that the plaintiffs allegations and supporting documentation were inadequate to surmount summary judgment. Weighing evidence, however, is not the court’s function in ruling on a motion for summary judgment. See Siudyla v. ChemExec Relocation Systems, Inc., 23 Conn. App. 180, 184, 579 A.2d 578 (1990) (“In ruling on a motion for summary judgment, the court’s function is not to decide issues of material fact, but rather to determine whether any such issues exist. ... If a genuine issue exists, it must be left to a later determination after a full hearing. ” [Citation omitted.]).

Had the court correctly exercised its role, I believe it would have found that the facts alleged by the plaintiff in her complaint and in the documentation she filed in opposition to the motion for summary judgment fairly established the existence of a genuine issue of material fact. Put another way, I do not believe that in viewing the evidence in the light most favorable to the plaintiff, the court could have concluded that fair and reasonable persons could reach but one conclusion that the assault was not foreseeable. I therefore believe that summary judgment was not appropriate in the present case, as the issue of foreseeability remained a factual question for the jury’s consideration.

Additionally, to the extent that the trial court based its determination on the absence of a history of criminal activity in the parking lot itself, I believe that the court improperly narrowed its consideration of foreseeablity to one factor. In this respect, the court, without saying so, appears to have adopted the prior incidents rule instead of assessing the totality of the circumstances in its determination of whether a genuine issue of material fact was raised with regard to the question of foreseeability. When one applies the totality of the circumstances test to the present case, I believe that a genuine issue of material fact clearly exists. For example, the report filed by the plaintiffs expert stated that the city of New Haven has a high rate of serious crime, that there are several nightclubs in the area of the parking lot, that the area is frequented by “street people,” that the police routinely provide extra patrols in this area during the times at which the bars typically close to effectuate crowd control, and that “serious crimes have occurred with some frequency in the area of Crown and George Street in New Haven, the locale of the injury to the Plaintiff.” The affidavits and supporting documentation submitted by the plaintiff, when viewed in a light most favorable to the plaintiff, could have provided the jury with a reasonable basis for determining that the assault on the plaintiff was reasonably foreseeable by the defendants. Thus, a genuine issue of material fact existed and, as such, summary judgment was inappropriate.

Finally, although the majority was not required to review the trial court’s determination that summary judgment should be granted on the alternate ground that the plaintiff could not, as a matter of law, prove that the defendant’s negligence was the proximate cause of her injuries, I must reach this issue to adequately assess the plaintiffs appeal. Here, I believe the court was legally incorrect. As noted, the imposition of liability on the criminal actor need not be exclusive. Under appropriate circumstances, owners and managers of a parking lot may be liable to a patron for the criminal acts of a third party if such conduct was reasonably foreseeable and if the failure of the owners and managers to exercise reasonable care was a substantial factor in causing the plaintiffs injuries. Stewart v. Federated Dept. Stores, Inc., supra, 234 Conn. 613. In Stewart, the administrator of an estate brought an action against a parking garage owner for the death of the decedent resulting from her murder by a third party in the garage. Id., 599. Affirming the judgment in favor of the plaintiff, the Supreme Court held that the trial court correctly had denied the defendant’s motion for a directed verdict and properly submitted the issue of causation to the jury for its factual determination. Id., 610-13. In this case, as in Stewart, the question of whether Denson’s criminal assault on the plaintiff was within the scope of the risk created by the defendants’ negligent conduct is a question for the fact finder. In short, it was legally incorrect for the trial court to determine that the intentional act of Denson must lead inescapably to the conclusion that the plaintiff could not, as a matter of law, prove that the defendants’ negligence was a substantial factor in producing her injuries.

Because I would reverse the trial court’s decision granting the defendants’ motion for summary judgment, I respectfully dissent.

       Jermaine Monk, Nateysha Monk’s husband, also was a plaintiff and sought damages on his claims for loss of consortium. Only Nateysha Monk has appealed from the judgment and we refer to her in this opinion as the plaintiff.

       John LoRicco, doing business as the Alley Cat Club, and Ayishea Denson also were defendants in the underlying action, but neither is involved in this appeal. We therefore refer in this opinion to Temple George Associates, LLC, and Pro Park, Inc., as the defendants.

       Two years prior to the incident at issue in this appeal, Denson challenged the plaintiff to a fight while the two visited a New Haven nightclub.

       Because we conclude, as a matter of law, that the defendants did not have a legal duty to protect the plaintiff from the type of attack at issue, we need not address the plaintiffs claim concerning causation.

       For the purpose of clarity, we refer only to Temple and Pro Park as the defendants since they are the only parties involved in this appeal.

       The imposition of that duty is also in accord with the generally accepted notion that a possessor of land is subject to liability to the members of the public whom the possessor invites onto that land for the possessor’s business purposes. See 2 Restatement (Second), Torts § 344, pp. 223-24 (1965) (“possessor of land who holds it open to the public for entry for his business puiposes is subject to liability to members of the public while they are upon the land for such a purpose, for physical harm caused by the accidental, negligent, or intentionally harmful acts of third persons or animals, and by the failure of the possessor to exercise reasonable care to (a) discover that such acts are being done or are likely to be done, or (b) give a warning adequate to enable the visitors to avoid the harm, or otherwise to protect them against it”).

       It is difficult to conceive of an argument that a city, here, the city of New Haven, would not want to encourage public enjoyment of its downtown venues during the evening.

       For an elucidation of this point, see 42 Am. Jur., Proof of Facts 2d, p. 173, Landowner’s Failure to Provide Adequate Security (1985).

       For a thorough discussion of this issue, see annot., 49 A.L.R.4th 1257 (1986).


text:
    STATE OF CONNECTICUT v. DONALD P. BROWN
    (AC 24145)
    Foti, West and Hennessy, Js.

      Argued January 21 —
    officially released May 4, 2004

      Sebastian O. DeSantis, special public defender, for the appellant (defendant).

      Michael L. Regan, supervisory assistant state’s attorney, with whom, on the brief, was Kevin T. Kane, state’s attorney, for the appellee (state).
   Opinion

WEST, J.

The defendant, Donald P. Brown, appeals from the judgment of conviction, rendered by the trial court, subsequent to his plea of nolo contendere to the charge of attempt to commit assault in the first degree in violation of General Statutes §§ 53a-49 and 53a-59 (a) (2). On appeal, the defendant claims that the court improperly denied his motion to withdraw the plea. The defendant sought to withdraw his plea on the ground that it had resulted from ineffective assistance of counsel. We disagree and affirm the judgment of the trial court.

The following facts and procedural history are relevant to the defendant’s appeal. On September 28, 2001, the defendant was involved in a physical altercation that was recorded on a supermarket surveillance videotape. The videotape showed the defendant striking the victim on the head with a log and, after the victim was on the ground, striking him several times in the face. The victim’s ear was split open, and the victim received sutures from a plastic surgeon. The defendant initially was charged with assault in the first degree in violation of § 53a-59 (a) (2). On October 2, 2002, the defendant entered a plea of nolo contendere to the substituted charge of attempt to commit assault in the first degree in violation of §§ 53a-49 and 53a-59 (a) (2).

At his December 3, 2002 sentencing hearing, the defendant made an oral motion to withdraw his plea on the ground of ineffective assistance of counsel. The defendant argued that he had entered the nolo conten-dere plea only because his attorney had told him that the victim had had “plastic surgery,” which the defendant later came to believe was a he after speaking with the victim. The defendant’s attorney told the court that she “did tell him that the medical reports indicated that [the victim had] had plastic surgery,” and the court agreed, stating, “[t]hat’s what they do indicate.” The court denied the defendant’s oral motion.

On January 27,2003, the court appointed new counsel for the defendant. On March 3, 2003, the defendant filed a formal motion to withdraw his plea, pursuant to Practice Book §§ 39-26 and 39-27 (4), claiming that his attorney was ineffective because (1) she did not explain the facts properly as they related to the law, (2) she did not explain what a plea of nolo contendere was and (3) he did not realize that he was pleading guilty. On March 4,2003, the court conducted a hearing on the motion to withdraw the plea and ultimately denied the motion. On March 12, 2003, consistent with his plea agreement, the defendant was sentenced to ten years imprisonment, execution suspended after five years, and five years probation. This appeal ensued.

“Practice Book § [39-27] specifies circumstances under which a defendant may withdraw a guilty plea after it has been entered. [0]nce entered, a guilty plea cannot be withdrawn except by leave of the court, within its sound discretion, and a denial thereof is reversible only if it appears that there has been an abuse of discretion. . . . The burden is always on the defendant to show a plausible reason for the withdrawal of aplea of guilty.” (Citation omitted; internal quotation marks omitted.) State v. Andrews, 253 Conn. 497, 505, 752 A.2d 49 (2000).

“[A] claim of ineffective assistance of counsel is generally made pursuant to a petition for a writ of habeas corpus rather than in a direct appeal. . . . Section 39-27 of the Practice Book, however, provides an exception to that general rule when ineffective assistance of counsel results in a guilty plea. A defendant must satisfy two requirements ... to prevail on a claim that his guilty plea resulted from ineffective assistance of counsel. . . . First, he must prove that the assistance was not within the range of competence displayed by lawyers with ordinary training and skill in criminal law .... Second, there must exist such an interrelationship between the ineffective assistance of counsel and the guilty plea that it can be said that the plea was not voluntary and intelligent because of the ineffective assistance.” (Internal quotation marks omitted.) State v. Nelson, 67 Conn. App. 168, 177, 786 A.2d 1171 (2001).

At the defendant’s hearing on his motion to withdraw his plea, the court found that the defendant’s attorney was not ineffective and that the plea was voluntary and intelligent; thus, the defendant failed to satisfy either prong of the test for withdrawing a plea due to ineffective assistance of counsel. The court’s decision was based on its conclusions that (1) although the defendant may have been confused as to whether the victim was sutured by a plastic surgeon or received a more serious form of plastic surgery, that confusion did not make counsel ineffective and did not make the plea involuntary, (2) the defendant’s statements at his plea canvass on October 2, 2002, indicated that he understood the meaning of a nolo contendere plea, and (3) the court did not find credible the testimony of the defendant or that of a witness who testified on his behalf at the hearing, and instead found his former attorney to be more credible.

On appeal, we must rely on the court’s findings regarding credibility. See id., 179. “[T]he trial judge is the sole arbiter of the credibility of the witnesses and the weight to be given specific testimony.” (Internal quotation marks omitted.) Id. We can overturn the court’s finding only “when there is no evidence in the record to support it” or if, after reviewing all the evidence, we are “left with the definite and firm conviction that a mistake has been committed.” (Internal quotation marks omitted.) Id., 179-80.

The record contains support for the conclusion that the defendant understood the significance of a nolo contendere plea and was aware of the fact that he was entering into a plea agreement. Although he represented in his motion that he did not know at that time that he was pleading guilty, he testified at the hearing that “back in front of the judge I was thought and told that I was coming to plead guilty.” When asked if he knew he was entering a plea that day, the defendant admitted, “yeah, under a lie.” In addition, the transcript from the defendant’s plea hearing on October 2,2002, which was entered into evidence as a full exhibit, revealed that the defendant had answered affirmatively to the court’s inquiries about whether he had had enough time to discuss with his attorney what he was doing there, whether he was satisfied with her advice, whether he was entering his plea voluntarily and of his free will, and whether anyone was forcing him or threatening him to enter into the plea. The transcript also revealed that the court explained what rights the defendant was giving up by entering a nolo contendere plea, and the defendant stated that he understood. The court explained the meaning of a nolo contendere plea, and the defendant stated that he understood. The court explained that if his nolo contendere plea was accepted, he could not change his mind and decide to have a trial unless there was some valid legal reason to withdraw his plea. The defendant stated that he understood. Finally, his former attorney testified that she had explained in detail the meaning of a nolo contendere plea and that the defendant did not ask any questions in response.

The record also contains support for the conclusion that the defendant’s counsel did not make misrepresentations of fact regarding the surgery. Rather, the record demonstrates that the defendant, through no fault of his counsel, did not understand the meaning of “plastic surgery.” That conclusion is supported by his testimony that the victim “didn’t have plastic surgery. He had surgery by a plastic surgeon. It’s a difference.” We conclude that the court did not abuse its discretion by denying the defendant’s motion to withdraw his plea.

The judgment is affirmed.

In this opinion the other judges concurred.

       The issue of plastic surgery and scarring was potentially relevant to the state’s ability to prove permanent disfigurement under General Statutes § 53a-59 (a) (2). The issue became irrelevant, however, when the defendant entered a plea of nolo contendere to attempt to commit assault in the first degree, which does not require proof of actual permanent disfigurement.

       In his original motion to the court, the defendant also requested that his plea be withdrawn pursuant to Practice Book § 39-27 (2) because he was under the influence of marijuana at the time of his plea hearing. The defendant did not raise that issue on appeal and, therefore, we do not address it.

       A motion to withdraw a plea of nolo contendere is treated the same as a motion to withdraw a guilty plea for purposes of appellate review. State v. Irala, 68 Conn. App. 499, 506 n.7, 792 A.2d 109, cert. denied, 260 Conn. 923, 797 A.2d 519, cert. denied, 537 U.S. 887, 123 S. Ct. 132, 154 L. Ed. 2d 148 (2002).


author: FOTI, J.

text:
    STATE OF CONNECTICUT v. JOSEPH BARRETTA
    (AC 23670)
    Foti, Flynn and Bishop, Js.
    Argued February 26 —
    officially released May 4, 2004

      John R. Williams, for the appellant (defendant).

      Eileen F. McCarthy, assistant state’s attorney, with whom were John J. Davenport, assistant state’s attorney, and, on the brief, Michael Dearington, state’s attorney, for the appellee (state).
   Opinion

FOTI, J.

The defendant, Joseph Barretta, appeals from the judgment of conviction, rendered after a jury trial, of assault in the second degree as an accessory in violation of General Statutes §§ 53a-8 (a) and 53a-60 (a) (3). On appeal, the defendant claims that the evidence presented was insufficient to sustain his conviction. Specifically, the defendant contends that the state failed to prove, beyond a reasonable doubt, that he had caused the victim to sustain a serious physical injury, which was an essential element of assault in the second degree. We affirm the judgment of the trial court.

The jury reasonably could have found the following facts. On the morning of December 3, 1999, at about 10 a.m., John Quiello was operating his car on Main Street in East Haven when he encountered his godfather and cousin, the victim, Mark Scarpellino, who was driving with his friend, Michelle Schettino. When the two cars stopped at a traffic light, Quiello accused Scarpel-lino of cutting him off while driving. The two exchanged words. Quiello then threw a cup of coffee into the other vehicle and began to exit his vehicle, but Scarpellino drove away before anything further took place.

Quiello was angry and called the defendant, his stepfather, by cellular telephone. The defendant, who was at work, agreed to meet Quiello so that they could “take care of this” together. After meeting, the two drove to College Street in New Haven, where the victim’s brother, Daniel Scarpellino, owned a business called Scarpellino’s Sub Shop. They arrived at about 11:30 a.m. and observed the victim’s car in an adjacent alley. Quiello parked so as to block the victim’s vehicle and learned from Schettino, who was seated in the vehicle, that the victim had gone into the restaurant. When Quiello and the defendant entered the restaurant, the victim was not present, but the defendant stated to Daniel Scarpellino: “[T]oday is the day I bury your brother.” Quiello and the defendant left the restaurant, but waited behind the building for the victim. Quiello took a baseball bat from his car and smashed a headlight on the victim’s car. As the victim came out of the rear of the building, the defendant grabbed him from behind and Quiello proceeded to beat him about his body repeatedly with the bat. The defendant kept telling Quiello to hit the victim repeatedly. The defendant finally released the victim, who fell to the ground. The defendant then kicked him in the rib cage, stomach and back. Quiello and the defendant then left the scene. The victim had great difficulty walking and had to be assisted by Daniel Scarpellino and Schettino. Both observed his condition and urged him to go to a hospital, which he refused to do.

The following day, the victim’s bruising worsened, and he was still unable to walk without difficulty. On December 6, 1999, the victim went to the outpatient clinic at the Hospital of Saint Raphael and was treated by Carol Amico, a physician’s assistant. She prescribed two medications, an analgesic and a muscle relaxant, and also directed him to go to radiology for X rays, but he refused to go.

On September 20,2002, the defendant was convicted, following a jury trial, of assault in the second degree as an accessory. On September 23, 2002, he filed a motion for a judgment of acquittal, claiming that the state’s evidence did not establish that the injury inflicted on the victim was a serious physical injury, as required by § 53a-60 (a) (3). The court denied the motion on November 15, 2002. This appeal followed. Additional facts will be set forth as needed.

“The standard of review employed in a sufficiency of the evidence claim is well settled. [W]e apply a two part test. First, we construe the evidence in the light most favorable to sustaining the verdict. Second, we determine whether upon the [evidence] so construed . . . 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. Senquiz, 68 Conn. App. 571, 575-76, 793 A.2d 1095, cert. denied, 260 Conn. 923, 797 A.2d 519 (2002).

“[T]he inquiry into whether the record evidence would support a finding of guilt beyond a reasonable doubt does not require a court to ask itself whether it believes that the evidence . . . established guilt beyond a reasonable doubt. . . . Instead, the relevant question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. . . .

“It bears emphasis that [i]n evaluating evidence that could yield contrary inferences, the [jury] is not required to accept as dispositive those inferences that are consistent with the defendant’s innocence. ... As we have often noted, proof beyond a reasonable doubt does not mean proof beyond all possible doubt . . . nor does proof beyond a reasonable doubt require acceptance of every hypothesis of innocence posed by the defendant that, had it been found credible by the [jury], would have resulted in an acquittal. ... On appeal, we do not ask whether there is a reasonable view of the evidence that would support a reasonable hypothesis of innocence. We ask, instead, whether there is a reasonable view of the evidence that supports the jury’s verdict of guilty. ” (Citations omitted; internal quotation marks omitted.) State v. Best, 56 Conn. App. 742, 752-53, 745 A.2d 223, cert. denied, 253 Conn. 902, 753 A.2d 937 (2000).

Here, the defendant argues that although the victim may have suffered pain, bruising and temporary restricted mobility, the injuries did not create any risk of death, serious disfigurement, loss of any bodily organ, the function of any organ or any serious impairment. The defendant further argues that although the evidence may have been sufficient to sustain a conviction of assault in the third degree as an accessory, it was not sufficient for the crime for which he was convicted. We do not agree.

Whether the physical injury sustained was a serious physical injury that caused serious disfigurement is a question of fact for the jury. See State v. Almeda, 211 Conn. 441, 450, 560 A.2d 389 (1989). As a result, our review of the defendant’s claim is limited to determining whether the jury reasonably could have concluded that the victim’s injury was a “serious physical injury” within the meaning of General Statutes § 53a-3 (4), which defines the term to mean “physical injury which creates a substantial risk of death, or which causes serious disfigurement, serious impairment of health or serious loss or impairment of the function of any bodily organ . . . .” Further, although our Penal Code does not define in title 53a of the General Statutes what exactly constitutes “disfigurement,” as contained in that definition, “it is appropriate to look to the common understanding of the term as expressed in a dictionary.” (Internal quotation marks omitted.) State v. Payne, 240 Conn. 766, 771, 695 A.2d 525 (1997). To “disfigure” is to “blemish or spoil the appearance or shape of’; American Heritage Dictionary (New College Ed. 1976); and “disfigurement” is “[t]hat which impairs or injures the beauty, symmetry, or appearance of a person or . . . which renders unsightly, misshapen, or imperfect, or deforms in some manner.” Ballentine’s Law Dictionary (3d Ed. 1969).

Furthermore, we have, on previous occasions, concluded that the teim “serious physical injury” does not require that the injury be permanent. State v. Denson, 67 Conn. App. 803, 811, 789 A.2d 1075, cert. denied, 260 Conn. 915, 797 A.2d 514 (2002); State v. Aponte, 50 Conn. App. 114, 121, 718 A.2d 36 (1998), rev’d in part on other grounds, 249 Conn. 735, 738 A.2d 117 (1999), citing State v. Rumore, 28 Conn. App. 402, 415, 613 A.2d 1328, cert. denied, 224 Conn. 906, 615 A.2d 1049 (1992). We also have stated that a victim’s complete recovery is of no consequence; see State v. Dickson, 10 Conn. App. 462, 465, 523 A.2d 935 (1987); nor is the fact that the skin was not penetrated dispositive. See State v. Ortiz, 14 Conn. App. 493, 494-97, 542 A.2d 734, cert. denied, 209 Conn. 804, 548 A.2d 441 (1988).

Here, although the victim did not testify, the jury heard evidence of the beating and was able to observe through medical evidence, eyewitness testimony and photographs of the victim the extent of the injuries sufficient to support a finding that the injuries constituted serious disfigurement. Specifically, the evidence showed that the victim sustained numerous severe bruises, abrasions and contusions across the trunk of his body. He also had an imprint and welts on his back that caused his skin to be a varied color of purple and blue, with additional visible injuries to his upper left shoulder and neckline. Further abrasions were visible on his collarbone, and there were bruises on his breastbone. Additionally, the medical testimony, given by an attending physician’s assistant, described extensive and severe bruising that covered more of the victim’s body than the photographs reflected and caused the victim to be tender to pressure across his back and left side.

Consequently, our review of the record cannot lead us to say, as a matter of law, that the jury could not reasonably have found that the victim suffered serious physical injury, which caused serious disfigurement. Having so opined, we cannot substitute our judgment for that of the jury. See State v. Rodriquez, 200 Conn. 685, 693, 513 A.2d 71 (1986). We therefore conclude that the court properly denied the defendant’s motion for a judgment of acquittal, as the evidence before the jury was sufficient for it to conclude beyond a reasonable doubt that the victim had sustained serious physical injury.

The judgment is affirmed.

In this opinion the other judges concurred.

       General Statutes § 53a-8 (a) provides: “A person, acting with the mental state required for commission of an offense, who solicits, requests, commands, importunes or intentionally aids another person to engage in conduct which constitutes an offense shall be criminally liable for such conduct and may be prosecuted and punished as if he were the principal offender.”

       General Statutes § 53a-60 (a) provides in relevant part: “A person is guilty of assault in the second degree when ... (3) he recklessly causes serious physical ipjury to another person by means of a deadly weapon or a dangerous instrument . . . .”

       The state has asked that we f ake judicial notice of the transcript concerning the plea and sentencing of Quiello that took place on December 7, 2001. The record, however, does not reflect that any part of that transcript was presented to the jury at the subsequent trial of the defendant. Our task is limited to determining whether the evidence, as presented to the jury, was sufficient to prove beyond a reasonable doubt that the victim sustained a serious physical injury. See State v. Best, 56 Conn. App. 742, 752-53, 745 A.2d 223, cert. denied, 253 Conn. 902, 753 A.2d 937 (2000). We may not look beyond the record as established at trial to accomplish that duty.

         The record reflects that the victim died of a ruptured spleen twelve days after the attack. The jury was made aware of the fact that he had died, but was instructed that the defendant had not been charged with his death.


author: SCHALLER, J.

text:
    STATE OF CONNECTICUT v. DAVID ROSARIO
    (AC 23654)
    Foti, Schaller and Dranginis, Js.
    Argued January 7 —
    officially released May 4, 2004

      Richard E. Condon, Jr., assistant public defender, for the appellant (defendant).

      Timothy J. Sugrue, senior assistant state’s attorney, with whom, on the brief, was Michael Dearington, state’s attorney, for the appellee (state).
   Opinion

SCHALLER, J.

The defendant, David Rosario, appeals from the judgment of conviction, rendered after a jury trial, of manslaughter in the first degree with a firearm in violation of General Statutes § BSa-SSa and criminal possession of a pistol or revolver in violation of General Statutes § 53a-217c (a) (l). On appeal, the defendant first claims that the trial court denied him his constitutional right to notice by instructing the jury on manslaughter in the first degree with a firearm as a lesser offense included within the crime of murder. Second, the defendant claims that the court improperly declined his request to instruct the jury on manslaughter in the first degree in violation of General Statutes § 53a-55 (a) (3) as a lesser offense included within the crime of murder. We affirm the judgment of the trial court.

The following facts are pertinent to the defendant’s appeal. On May 11, 2000, the defendant and his three friends rented a room at the Colonial Park Motel in Meriden. After the defendant adamantly disputed the room charge, he fatally shot the motel clerk, Husmakh Patel, with a small caliber handgun. The state’s original information charged the defendant with murder in violation of General Statutes § 53a-54a and criminal possession of a pistol or revolver in violation of § 53a-217c. Thereafter, the defendant filed a request for essential facts, requesting that the state specify “[wjhat specific . . . acts, language or behavior are alleged to constitute each offense charged?” In response, the state filed a long form information, charging the defendant with committing murder “by means of the discharge of a firearm” in violation of § 53a-54a. At the charging conference, the defendant requested an instruction on reckless manslaughter in the first degree, as provided for in § 53a-55 (a) (3), as a lesser offense included within the crime of murder. The state also sought a lesser included offense instruction and requested that the court charge the jury on manslaughter in the first degree with a firearm, as provided for in § 53a-55a.

The court instructed that “the third element” of murder requires the state to prove “that the defendant caused the death ... by the use of a firearm.” (Emphasis added.) Moreover, the court, over the defendant’s objection, charged the jury on manslaughter in the first degree with a firearm as a lesser offense included within the crime of murder. The jury found the defendant guilty of manslaughter in the first degree with a firearm. This appeal followed.

I

The defendant first claims that the court deprived him of his federal and state constitutional rights to notice by instructing the jury on manslaughter in the first degree with a firearm as a lesser offense included within the crime of murder. The defendant sets forth various theories in support of his claim. First, the defendant contends that the court improperly relied on the “evidence test” when it considered the state’s nonessential factual allegation that he had committed murder “by means of the discharge of a firearm” in its lesser included offense analysis. Essentially, the defendant asserts that because manslaughter in the first degree with a firearm requires the “use” of a firearm as an essential element, which murder does not, the former offense cannot be a lesser offense included within the offense of murder. The defendant asserts that the court’s charge contradicts decisions of our Supreme Court, which establish that an appropriate lesser included offense analysis is limited to a comparison of the essential statutory elements of the offenses at issue, rather than the nonessential factual allegations set forth in the charging document. Second, notwithstanding whether the “use” of a firearm constitutes the “third element” of murder, as alleged in this case, the defendant argues that manslaughter in the first degree with a firearm is still not a lesser offense included within the crime of murder because the manslaughter offense can be committed in three alternative ways, two of which do not require as an element the “use” of a firearm. We disagree.

A

At the outset, we state our standard of review. The court, in determining whether manslaughter in the first degree with a firearm is a lesser offense included within the crime of murder, is confronted with a question of law. State v. Tomlin, 266 Conn. 608, 615-16, 835 A.2d 12 (2003). Accordingly, our cases instruct us to conduct de novo or plenary review. See, e.g., State v. Holmes, 257 Conn. 248, 252, 777 A.2d 627 (2001), cert. denied, 535 U.S. 939, 122 S. Ct. 1321, 151 L. Ed. 2d 229 (2002).

The defendant has a constitutional right “to be informed of the nature and cause of the charges against him with sufficient precision to enable him to meet them at trial.” State v. Laracuente, 205 Conn. 515, 518, 534 A.2d 882 (1987), cert. denied, 485 U.S. 1036, 108 S. Ct. 1598, 99 L. Ed. 2d 913 (1988). “The function of an accusatory pleading such as an information is to inform a defendant of ‘the nature and cause of the accusation’ as required by our federal and state constitutions.” State v. Carter, 189 Conn. 631, 646, 458 A.2d 379 (1983). “The doctrine of lesser included offenses in Connecticut serves the state by precluding acquittal due to failure of proof of the greater crime, the accused by permitting conviction of a lesser crime, and the constitution by preserving the function of the fact-finder.” State v. MacFarlane, 188 Conn. 542, 546, 450 A.2d 374 (1982). “The constitutionality of instructing on lesser included offenses is grounded on the premise that whe[n] one or more offenses are lesser than and included within the crime charged, notice of the crime charged includes notice of all lesser included offenses. . . . This notice permits each party to prepare a case properly, each cognizant of its burden of proof.” (Internal quotation marks omitted.) State v. Tomlin, supra, 266 Conn. 616-17.

“A defendant is entitled to an instruction on a lesser offense if, and only if, the following conditions are met: (1) an appropriate instruction is requested by either the state or the defendant; (2) it is not possible to commit the greater offense, in the manner described in the information or bill of particulars, without having first committed the lesser; (3) there is some evidence, introduced by either the state or the defendant, or by a combination of their proofs, which justifies conviction of the lesser offense; and (4) the proof on the element or elements which differentiate the lesser offense from the offense charged is sufficiently in dispute to permit the jury consistently to find the defendant [not guilty] of the greater offense but guilty of the lesser.” State v. Whistnant, 179 Conn. 576, 588, 427 A.2d 414 (1980). Whistnant’s second prong is implicated when the accused asserts that he was denied his constitutional right to notice of the crime of which he was ultimately convicted. State v. Tomlin, supra, 266 Conn. 617.

Courts follow three methods to ascertain “whether a crime is a ‘lesser included crime’ when the evidence would support a conclusion that the lesser crime was committed: (1) The included crime may be one consisting solely of elements which must always be present for the greater crime to have been committed; (2) it may be one consisting solely of elements which must have been present for the greater offense to have been committed in the manner described by the information or bill of particulars thereto; (3) or it may be a crime which the evidence suggests and which could have been included in the information.” State v. Brown, 163 Conn. 52, 60, 301 A.2d 547 (1972).

Connecticut’s lesser included offense doctrine utilizes the second approach set forth in Brown. See id. That approach includes Whistnant's second prong, “which encompasses the cognate pleadings approach.” State v. Tomlin, supra, 266 Conn. 618. “The cognate-pleadings approach . . . does not insist that the elements of the lesser offense be a subset of the higher offense. It is sufficient that the lesser offense have certain elements in common with the higher offense, which thereby makes it a ‘cognate’ or ‘allied’ offense even though it also has other elements not essential to the greater crime. [In addition], the relationship between the offenses is determined not by a comparison of statutory elements in the abstract, but by reference to the pleadings in the case. The key ordinarily is whether the allegations in the pleading charging the higher offense . . . include all of the elements of the lesser offense.” Id., quoting 5 W. LaFave, J. Israel & N. King, Criminal Procedure (2d Ed. 1999) § 24.8 (e), pp. 579-80; see also State v. Coleman, 242 Conn. 523, 532, 700 A.2d 14 (1997).

In the present case, the defendant contends that the court improperly determined that Whistnanf s second prong was satisfied when the court charged the jury on manslaughter in the first degree with a firearm as a lesser offense included within the crime of murder. Specifically, the defendant contends in his brief that the court’s “[i]ncorporating nonessential factual allegations into its lesser included offense analysis is tantamount to employing the ‘evidence test,’ ” which was rejected in State v. Brown, supra, 163 Conn. 60-61. We disagree.

Following the cognate pleadings approach, it is apparent that the factual allegations contained in the state’s information established that manslaughter in the first degree with a firearm was a lesser offense included within the crime of murder. The state originally had charged the defendant with murder in violation of § 53a-54a. Before the defendant can be found guilty of murder, the state must prove that (1) he “inten[ded] to cause the death of another person,” and (2) he did “[cause] the death of such person . . . .” General Statutes § 53a-54a (a). In response to the defendant’s subsequent request for essential facts, the state filed a long form information alleging that the defendant had committed murder in violation of § 53a-54a “by means of the discharge of a firearm . . . .” In effect, the state, by alleging those facts in its long form information, converted “the discharge of a firearm” terminology into the “third element” of murder.

To satisfy Whistnant’s second prong, it cannot be possible for the state to prove each element of the greater offense of murder, as previously set forth, without first satisfying each element of the offense of manslaughter in the first degree with a firearm. Essentially, an accused is guilty of manslaughter in the first degree with a firearm in violation of § 53a-55a (a) when (1) “he commits manslaughter in the first degree as provided in section 53a-55,” and (2) “in the commission of such offense [the accused] use[d], or [was] armed with and threatenfed] the use of or displayed] or represented] by his words or conduct that he possesse[d] a . . . firearm. ...” General Statutes § 53a-55a (a). General Statutes § 53a-55 (a) provides in relevant part that “[a] person is guilty of manslaughter in the first degree when ... (3) under circumstances evincing an extreme indifference to human life, he recklessly engages in conduct which creates a grave risk of death to another person, and thereby causes the death of another person.” Thus, the greater offense of murder, as alleged in the state’s long form information, satisfied Whistnant’s second prong because it would have been impossible to commit that offense without first having committed the lesser offense of manslaughter in the first degree with a firearm. Contrary to the defendant’s assertion, we conclude that the court, in its lesser included offense instruction, properly considered the facts set forth in the state’s long form information, which alleged that the defendant had committed murder “by means of the discharge of the firearm . . . .” See State v. Tomlin, supra, 266 Conn. 620 (holding that trial court “properly considered the allegation that the defendant ‘did shoot’ the victim in determining whether to instruct the jury on the lesser included offense of manslaughter in the first degree with a firearm”).

B

Notwithstanding whether it was proper for the court, in its lesser included offense analysis, to consider nonessential facts alleged by the state, the defendant sets forth an alternative theory to support his assertion that manslaughter in the first degree with a firearm is not a lesser offense included within the crime of murder. Specifically, the defendant argues that even if the “discharge of a firearm” constitutes the “third element” of murder under the cognate pleadings approach, manslaughter in the first degree with a firearm is still not a lesser offense included within the crime of murder under Whistnant’s second prong because the former offense can be proved in three alternative ways. As previously mentioned, pursuant to § 53a-55a (a), the state must prove that the accused either (1) used a firearm, (2) was armed with and threatened the use of a firearm or (3) displayed or represented by his words or conduct that he possessed a firearm. The defendant contends that when the state alleged “discharge of a firearm,” it merely alleged the “ ‘use’ of a firearm for purposes of manslaughter [in the first degree] with a firearm.” Thus, because the “use” of a firearm is only one of the three ways in which to commit manslaughter in the first degree with a firearm, the defendant contends that the state failed to satisfy Whistnant’s second prong by failing to allege the two alternative methods in its murder charge. Likewise, the defendant asserts that under Whistnant’s second prong, manslaughter in the first degree with a firearm cannot be a lesser offense included within the crime of murder, even as it is alleged in this case, because there are two ways in which to commit the manslaughter offense without the actual “use” of that firearm. We disagree.

Our Supreme Court decided the “issue regarding the significance of the term ‘offense,’ as it is used in [the Whistnant test], that [the Supreme Court] previously [had] not considered.” State v. Tomlin, supra, 266 Conn. 623. “[T]he term ‘offense,’ . . . refers to each distinct method, which may be comprised of different elements, by which a crime may be completed. The term ‘offense’ does not refer to the title of the crime encompassing each of those distinct methods.” Id., 624. “The second prong of Whistnant is satisfied, therefore, only to the extent that it was not possible to commit the greater offense of murder, in the manner described in the information, without first having committed the lesser offense of manslaughter in the first degree with a firearm by the actual use of a firearm.” Id., 626. Because the state’s allegations support a conviction only under the use of a firearm portion of the offense of manslaughter in the first degree with a firearm, the court could not properly instruct the jury on the two alternative methods of committing that offense, as the defendant would not have been afforded the required constitutional notice. See id., 626-27. Accordingly, we conclude that it was proper for the court to charge on the “use of a firearm” portion of the offense of manslaughter in the first degree with a firearm.

II

The defendant next claims that the court improperly denied his written request to charge the jury on reckless manslaughter in the first degree, as provided for in § 53a-55 (a) (3), as a lesser offense included with the crime of murder. Because of our resolution of the defendant’s first claim in an adverse manner, there is no need to address his second claim. The defendant does not argue that the element of the use of a firearm was sufficiently in dispute to allow the jury to find that he committed manslaughter in the first degree without the use of a firearm. See State v. Whistnant, supra, 179 Conn. 588; State v. Gebeau, 55 Conn. App. 795, 799-800, 740 A.2d 906 (1999), cert. denied, 252 Conn. 922, 744 A.2d 518 (2000).

The judgment is affirmed.

In this opinion the other judges concurred.

       General Statutes § 53a-55a (a) provides in relevant part: “A person is guilty of manslaughter in the first degree with a firearm when he commits manslaughter in the first degree as provided in section 53a-55, and in the commission of such offense he uses ... [a] firearm. ...”

       General Statutes § 53a-217c (a) provides in relevant part: “A person is guilty of criminal possession of a pistol or revolver when such person possesses a pistol or revolver, as defined in section 29-27, and (1) has been convicted of a felony . . . .”

       General Statutes § 53a-54a (a) provides in relevant part: “A person is guilty of murder when, with intent to cause the death of another person, he causes the death of such person . . . .” The original information did not charge the defendant with any of the lesser included offenses of murder.

       A motion for bill of particulars also was filed.

       General Statutes § 53a-55 (a) provides in relevant part: “A person is guilty of manslaughter in the first degree when ... (3) under circumstances evincing an extreme indifference to human life, he recklessly engages in conduct which creates a grave risk of death to another person, and thereby causes the death of another person.”

       Without deciding, this court assumes that the due process clause of the fourteenth amendment makes applicable to the states the defendant’s sixth amendment right to notice. See State v. Tomlin, supra, 266 Conn. 615 n.5, quoting State v. Scognamiglio, 202 Conn. 18, 21, 519 A.2d 607 (1987).

       The court instructed the jury that “[t]he third element that the state must prove beyond a reasonable doubt [to convict the defendant of murder] is that the defendant caused the death of [the victim] by the use of a firearm.”

       Similarly, the defendant in Tomlin asserted that “the allegation that the defendant ‘did shoot’ the victim, if properly considered, put the defendant on notice of only one of the three alternative ways of completing the crime.” State v. Tomlin, supra, 266 Conn. 621.