author: BORDEN, J.

text:
    MICHAEL RICHEY ET AL. v. MAIN STREET STAFFORD, LLC, ET AL.
    (AC 28241)
    (AC 29021)
    Flynn, C. J., and Beach and Borden, Js.

      Argued March 26
    officially released September 16, 2008

      Robert Shluger, for the appellants (plaintiffs).

      Robert D. Swartout, for the appellees (defendants).
   Opinion

BORDEN, J.

The plaintiffs, Michael Richey and Patricia Richey, appeal from the judgments of the trial court. The court rendered judgments in favor of the plaintiffs against two of the defendants, Brett Colon and Main Street Stafford, LLC (Main Street), following a hearing in damages after these two defendants were defaulted for failure to plead and in favor of the third defendant, Debra A. Colon, following a trial to the court that was consolidated with the hearing in damages against the other two defendants. On appeal, the plaintiffs claim that the court improperly (1) granted defendant Debra Colon’s motion to open the default judgment against her, (2) failed to award adequate monetary damages against the two defaulting defendants and (3) admitted certain evidence presented by the defaulted defendants at the hearing in damages. We reverse in part the judgments of the trial court.

On April 22, 2003, the plaintiffs initially filed a one count complaint against Main Street and Brett Colon, alleging, in substance, that those two defendants had engaged in an illegal entry and detainer of certain premises leased by those two defendants to the plaintiffs. The plaintiffs requested the court to issue a writ of restitution. On April 30, 2003, the court, Graziani, J., granted the writ and ordered that possession of the premises be returned to the plaintiffs and that their personal property be restored. The court did not determine the issue of damages at that time.

On November 20, 2003, the plaintiffs filed a second complaint against the defendants, this time adding Debra Colon as a defendant. This complaint contained seven counts. The first three counts alleged an illegal entry and detainer committed by the three defendants and also alleged various items of damages arising therefrom. The fourth count alleged that the defendants, in committing the entry and detainer, violated the Connecticut Unfair Trade Practices Act (CUTPA), General Statutes § 42-110a et seq. The fifth and sixth counts alleged, respectively, intentional infliction of emotional distress and negligent infliction of emotional distress suffered by Patricia Richey. Finally, the seventh count alleged civil theft, asserting that all three defendants had failed to return items of the plaintiffs’ personal property. The plaintiffs requested an award of damages, the return of their property and that the first and second complaints be consolidated. The defendants failed to plead timely, and the plaintiffs’ motion for default against all three defendants on the second complaint was granted on April 7, 2004.

On March 23, 2005, Debra Colon filed a motion to open the default entered against her. The court granted the motion. Thereafter, the court held a consolidated trial as to Debra Colon and a hearing in damages as to Brett Colon and Main Street. The court issued a memorandum of decision as to Debra Colon, in which it found that the plaintiffs had failed to demonstrate that Debra Colon was liable for any of the counts. Neither of the defaulted defendants had filed a notice of intent to present defenses. As to these defendants, the court subsequently issued a separate memorandum of decision.

In that later memorandum of decision, the court found the following facts based on the factual allegations in the complaint that were accepted as true because of the default as well as on the hearing in damages, as relevant to the plaintiffs’ appeals. “In 2002, the plaintiffs had commenced operation of a restaurant, called ‘Eagle One Restaurant,’ at 69 Main Street in Stafford, Connecticut, serving breakfast and lunch. After several months, they decided to relocate the restaurant to another location, about one block down the street and in the same town, in premises owned by the defendants. In October, 2002, the plaintiffs took possession of those premises, the address of which is 35-37 Main Street, to begin preparation of the space for operation out of that location. ... [A disagreement ensued between the plaintiffs and the defendants regarding the plaintiffs’ continued possession of the leased premises.] Rather than avail himself of a remedy under the law at the time, through summary process, [Brett Colon] took the matter into his own hands. On Sunday night, April 13, 2003, or in the early morning hours of Monday, April 14, he changed the locks on the property, precluding the plaintiffs from being able to enter the premises.”

After the hearing in damages, the court made the following findings regarding the damages claimed against the two defaulted defendants. The court organized the plaintiffs’ claimed items of damages arising from the entry and detainer into eight categories: food items; stolen items; restoration of material and labor costs; loss of profit for Eagle One Restaurant; lost business to a trucking company operated by Michael Richey; lost revenue from the sale of a product invented by Michael Richey; attorney’s fees; and other damages. Before specifically addressing the plaintiffs’ evidence regarding damages, the court noted that it found the testimony of both plaintiffs to be inconsistent, contradictory and generally lacking in credibility. The court then addressed the various categories of claimed damages.

Concerning the food items, the plaintiffs claimed that they had already stored food for the restaurant at the premises at the time of the lockout and, as a result of the lockout, the food spoiled. The court found that the plaintiffs had stored “freezers packed with food, and items such as eggs in the walk-in cooler [and] other highly perishable items such as milk, tomatoes, lettuce, etc.” The court also noted that the plaintiffs were required by law to dispose of the food because it was not in their continuous possession before sale, raising the possibility of contamination. The court did not credit the plaintiffs’ testimony regarding the amount of food on the premises, but it did credit an inventory supplied by the plaintiffs and from that calculated that the spoiled food had a value of $1853.92.

Concerning stolen items, the plaintiffs claimed that various items had been stolen from their restaurant, as well as from another business, Bigfoot-Lightfoot Industries, LLC, which the plaintiffs also operated from the premises. The court reviewed a list of claimed stolen and damaged items supplied by the plaintiffs regarding the restaurant property. The court did not credit the list regarding the claimed stolen items, and found that the claimed damaged items, a stove and several plants, were not damaged. Regarding stolen items related to Bigfoot-Lightfoot Industries, LLC, the court did not credit the only evidence supplied by the plaintiffs, namely, Michael Richey’s testimony that several items were missing, and therefore concluded that “the evidence does not establish that the plaintiffs suffered this loss.”

Concerning the restoration of material and labor costs, the court noted that although the plaintiffs claimed that several individuals had supplied services to renovate the premises before the lockout, “there are no copies of checks provided, no W-2s or other tax information documenting payment to these individuals for the labor they allegedly provided, and [other than a receipt for plumbing for $526.82] there are no records provided for the materials used in the renovations.” The court concluded that it was unable to calculate an award for damages for this item.

Concerning lost profit for Eagle One Restaurant, the plaintiffs’ trucking company and sale of products from Bigfoot-Lightfoot Industries, LLC, the court determined that it was unable to calculate damages related to the restaurant’s lost profit, as discussed in part III. Regarding lost profit from the trucking company, the plaintiffs claimed that the only set of keys to their commercial truck was locked in the premises. The court noted that the plaintiffs “did not present any contracts reflecting lost opportunities or any other proof of just what business [they claim] to have lost; however, [Michael Richey] asserts that he did lose income for the period and poses a figure of lost profit in the amount of $10,400. At that rate, [Michael Richey] would have to have been clearing $135,200 per year on his trucking business. The 2002 tax return, however, reflects $37,485 in gross income for 2002 and $56,049 in expenses, resulting in a net loss for that year in the amount of $18,564.” The court concluded that the plaintiffs had provided no credible evidence of lost revenue from their trucking company. Regarding the claimed lost profit from Bigfoot-Lightfoot Industries, LLC, the court noted that the product produced by the company had been recently invented by Michael Richey and that there was no evidence from which the court could have determined the probable monetary value of the product.

Concerning attorney’s fees and other damages, the court also awarded attorney’s fees, as we will discuss, and damages of $100 on the basis of the defendants’ failure to comply with a previously issued court order to put the plaintiffs back in possession of the premises. Finally, the court summarily found that there was no evidence of any missing items belonging to a third party, Stephen Smith, as alleged by the plaintiffs.

The court did not make findings as to the damages claimed in the fourth count, the CUTPA claim, as discussed in part II B. It did not find sufficient evidence from which it could have calculated damages for the fifth and sixth counts, the emotional distress claims, as discussed in parts II C. Finally, it did not award any damages pursuant to the seventh count, which alleged civil theft. Because the court had found that the plaintiffs failed to demonstrate that any property was actually stolen, it concluded that “the value of the stolen property is determined to be ‘0’ [and] trebling of that amount gives us the same figure.”

The court rendered judgment in favor of the plaintiffs against the defaulted defendants in the amount of $7407.84. Specifically, the court awarded: $3707.84 in damages on the entry and detainer counts and $3500 for attorney’s fees; no award for the CUTPA claim; nominal damages in the amount of $100 for the emotional distress claims; and no award for the civil theft claim. Additionally, the court awarded the plaintiffs nominal damages in the amount of $100 on the basis of the defendants’ violation of the previous court order directing them to put the plaintiffs back in possession of the premises. The plaintiffs then filed a motion to correct, which the court granted in part. As a result, the court increased the amount of attorney’s fees awarded and issued an amended memorandum of decision, in which it rendered judgment for the plaintiffs in the amount of $17,762.84. These appeals followed.

I

The plaintiffs first claim that the court abused its discretion in opening the default judgment entered against Debra Colon. The defendants, in opposition, argue that this claim is moot because of the court’s subsequent determination that the plaintiffs failed to demonstrate liability on the part of Debra Colon.

Debra Colon filed a motion to open the default on March 23, 2005. In it, she alleged that she had not received notice that there was a motion for default pending and that she did not otherwise know of the motion, in part because of the procedural complexity of the case. She also alleged that she was not given notice of the subsequent entry of default and that she had a valid defense to the merits of the plaintiffs’ claims. The court granted the motion. Subsequently, the court determined that the plaintiffs failed to establish that Debra Colon was liable for the entry and detainer or any of the related counts in the plaintiffs’ second complaint and rendered judgment in her favor.

Although the defendants have not provided any legal authority supporting their assertion that the plaintiffs’ claim is moot, we determine this issue first because mootness involves our subject matter jurisdiction to hear an appeal. See In re William D., 97 Conn. App. 600, 603-604, 905 A.2d 696 (2006), aff'd, 284 Conn. 305, 933 A.2d 1147 (2007).

The defendants’ argument rests on the assertion that the court, pursuant to a hearing in damages against a defaulted defendant, may ignore the usual legal effect of the default judgment, i.e., that liability is admitted and conclusively established on all adequately pleaded causes of action, if it determines that there is no evidence that would have supported the claim had the defaulting parties contested it. Case law makes clear, however, that once the defendants had been defaulted and had failed to file a notice of intent to present defenses, they, by operation of law, were deemed to have admitted to all the essential elements in the claim and would not be allowed to contest liability at the hearing in damages. See Practice Book §§ 17-35 and 17-37; Whitaker v. Taylor, 99 Conn. App. 719, 725-27, 916 A.2d 834 (2007). Therefore, were we to conclude that the motion to set aside the default was granted improperly, the court on remand would be required to find liability against Debra Colon, provided the counts against her were adequately pleaded, and proceed to determine the amount of damages. Therefore, this claim is not moot.

The plaintiffs claim that the court abused its discretion in granting the motion to open the default. Specifically, they argue that Debra Colon failed to show cause why the default should be opened, filed her motion to open seven months after default had entered, was represented by an attorney and should have known about the motion for default. We review the court’s grant of a motion to open only to determine whether the court abused its discretion. Skyler Ltd. Partnership v. S.P. Douthett & Co., 18 Conn. App. 245, 248-49, 557 A.2d 927, cert. denied, 212 Conn. 802, 560 A.2d 984 (1989). It is the appellant’s burden to provide a record that is adequate for us to review the claimed abuse of discretion. See 1525 Highland Associates, LLC v. Fohl, 62 Conn. App. 612, 624, 772 A.2d 1128, cert. denied, 256 Conn. 919, 774 A.2d 137 (2001).

The plaintiffs have not presented us with a memorandum of decision regarding the issue. They did not request that the court articulate its decision to grant the motion. It is unclear whether there was oral argument, and no transcripts appear in the record regarding any such argument. On the record before us, we are unable to conclude that the court abused its discretion when it granted the motion to open.

II

The plaintiffs next claim that the court failed to award an adequate amount of monetary damages. Specifically, they argue that the court improperly (1) awarded no monetary damages for certain items of damage claimed by them, (2) failed to award any damages pursuant to their claim of a violation of CUTPA and (3) failed to award more than nominal damages for their emotional distress claims. We agree in part.

“A default admits the material facts that constitute a cause of action . . . and entry of default, when appropriately made, conclusively determines the liability of a defendant. ... If the allegations of the plaintiffs complaint are sufficient on their face to make out a valid claim for the relief requested, the plaintiff, on the entry of a default against the defendant, need not offer evidence to support those allegations. . . . Therefore, the only issue before the court following a default is the determination of damages. ... A plaintiff ordinarily is entitled to at least nominal damages following an entry of default against a defendant in a legal action. . . .

“It does not follow [however] that the plaintiff is entitled to a judgment for the full amount of the relief claimed. The plaintiff must still prove how much of the judgment prayed for in the complaint he is entitled to receive. . . .

“After a default, a defendant may still contest liability. Practice Book §§ 17-34, 17-35 and 17-37 delineate a defendant’s right to contest liability in a hearing in damages after default. Unless the defendant provides the plaintiff written notice of any defenses [however] the defendant is foreclosed from contesting liability.” (Citations omitted; internal quotation marks omitted.) Whitaker v. Taylor, supra, 99 Conn. App. 725-27.

We conduct a plenary review of the pleadings to determine whether they are sufficient to establish a cause of action upon default. Id., 727. We review other facts, which were not established by the pleadings, pursuant to the clearly erroneous standard of review. Id.

A

The plaintiffs first argue that the court improperly failed to ¿ward them at least nominal damages for certain items of damages they claimed in their complaint. Specifically, the plaintiffs argue that the court “should have awarded nominal damages or greater for each and every element of damages pleaded in the complaint . . . .” We disagree.

None of the cases cited by the plaintiffs supports their assertion that the defaults entitled them to at least nominal damages for each item of damages claimed. In contrast to the plaintiffs’ assertion, case law makes clear that after default by the defendants, the plaintiffs were entitled to at least nominal damages for each adequately pleaded cause of action, not every item of claimed damage. See Whitaker v. Taylor, supra, 99 Conn. App. 725 (“[a] default admits the material facts that constitute a cause of action” [internal quotation marks omitted]). Therefore, we reject this claim.

B

The plaintiffs next argue that the court improperly failed to award them damages pursuant to their fourth count, which alleged a violation of CUTPA. We agree.

The plaintiffs alleged in their complaint that the defendants’ commission of the illegal entry and detainer constituted an unfair trade practice. They further alleged that the defendants’ conduct of locking the doors to the premises, in addition to the defendants’ failure to put the plaintiffs back in possession despite a court order, made them liable for punitive damages. The court, after reviewing the evidence at the hearing in damages, declined to award any amount of damages, including nominal damages, on the plaintiffs’ CUTPA claim because it determined that the plaintiffs had failed to prove that the defendants’ conduct was reckless or wanton.

“A party seeking to recover damages under CUTPA must meet two threshold requirements. First, [the party] must establish that the conduct at issue constitutes an unfair or deceptive trade practice. . . . Second, [the party] must [allege facts] providing the court with a basis for a reasonable estimate of the damages suffered. . . .

“Once a violation of CUTPA has been established, evidence that the defendant has acted with reckless indifference to the rights of the plaintiff or has committed an intentional and wanton violation of those rights is a necessary prerequisite to the award of punitive damages.” (Citation omitted; internal quotation marks omitted.) Id., 733.

The plaintiffs’ fourth count incorporated by reference all of the prior allegations relating to the alleged unlawful entry and detainer. Taken as true because of the defaults, the allegations that the defendants changed the locks to the premises early one morning “for the purpose of putting the plaintiffs out of their possession,” kept the plaintiffs out of possession despite repeated requests for the return of possession of the premises and continued to keep the plaintiffs out of possession after a court issued a writ of restitution are sufficient to establish liability for the purpose of awarding punitive damages pursuant to CUTPA.

The defendants argue, however, that the award of punitive damages is discretionary with the court, and, therefore, the plaintiffs are not entitled to any award at all pursuant to CUTPA, including nominal damages. This court has recently reiterated that when a CUTPA violation is sufficiently pleaded, including allegations that demonstrate reckless and wanton behavior to support a punitive damages award, a plaintiff is entitled to at least nominal damages after a default has entered against the defendant and no defenses have been properly raised. See Whitaker v. Taylor, supra, 99 Conn. App. 734. Therefore, we conclude that the court improperly failed to award at least nominal damages to the plaintiffs on the CUTPA count.

We next consider the proper remedy. Our Supreme Court has long held that a new trial should not be granted when the court, on remand, is able to award only nominal damages. Larsen Chelsey Realty Co. v. Larsen, 232 Conn. 480, 504, 656 A.2d 1009 (1995); Gold v. Ives, 29 Conn. 119, 123 (1860) (“as a general rule, a new trial ought not to be granted merely to enable a party to recover nominal damages”).

Here, because the court determined that the plaintiffs had not demonstrated wanton and reckless conduct, the court did not consider whether an award of punitive damages was appropriate. On remand, the court, although compelled to award at least nominal damages, is not restricted to awarding only nominal damages if it determines, pursuant to the exercise of its discretion, that punitive damages are appropriate. Therefore, it is appropriate to remand this case for a new hearing in damages as to the CUTPA count.

C

The plaintiffs’ third argument relates to their counts that alleged negligent and intentional infliction of emotional distress. The plaintiffs argue that the court improperly considered other possible sources of Patricia Richey’s distress and that its determination that they failed to present credible evidence as to the amount of damages suffered was clearly erroneous. We disagree.

The plaintiffs identify, in their appellate brief, three sources of evidence that they presented to the court regarding their emotional distress claim: Patricia Richey’s testimony and two documents sent by Patricia Richey’s physician to her attorney. The first document stated in relevant part: “Patricia Richey was under a great deal of stress as well as depression/anxiety due to the closing of her business and the repercussions that followed.” The second document provided: “I believe with a reasonable degree of medical probability, that my patient, Patricia Richey’s past and ongoing symptoms are connected to the closing of Patricia’s restaurant business and the continuing financial circumstances that it brought about since April 2003.”

The court provided three observations while considering these counts. First, it noted the absence of evidence demonstrating the amount of damages that Patricia Richey suffered. Specifically, it stated that there were no “medical or psychological treatment notes or reports reflecting symptoms, dates of complaints, dates and types of treatment or the status of the patient. . . . Nor have any billing statements been provided. There is no indication that there was any reference of [Patricia] Richey to another professional for these claimed problems, nor of any medication prescribed for these claimed afflictions.” Second, the court examined other potential sources that may have caused Patricia Richey’s distress. Third, it “significantly questioned] whether this medical doctor ... is qualified to offer his opinions as to the cause of the depression . . . .” After reviewing the evidence, the court concluded: “The court finds that there is no credible evidence on which to premise a calculation of damages for the negligent and intentional infliction of emotional distress and consequently orders nominal damages in the amount of $100.” (Emphasis added.)

Although we agree with the plaintiffs that the court improperly considered that Patricia Richey’s emotional distress may have been caused by other sources, because the default established liability for the distress, we do not agree that the court’s award of nominal damages rested on these observations. The court clearly noted, while reciting the facts, that the plaintiffs had not provided any evidence from which the court could formulate a damages award. The plaintiffs failed to provide medical bills, medical reports or any evidence of types of treatments. The court did not find, as the plaintiffs assert, that the plaintiffs had failed to demonstrate causation. Instead, the court concluded, after reviewing the evidence related to damages, that the plaintiffs failed to provide evidence from which the court could calculate a particular amount of damages deriving from the alleged distress.

We also disagree with the plaintiffs’ argument that the court’s conclusion that they failed to submit sufficient evidence proving the amount of damages was clearly erroneous. Even on appeal, the only items of evidence to which the plaintiffs refer in support of their argument that they proved damages are two documents written by a physician and Patricia Richey’s testimony. The two documents contain only the physician’s conclusion that the defendants’ actions were the proximate cause of the distress and do not provide any guidance to determine a monetary value of the distress, and the court specifically found the testimony of both plaintiffs not to be credible. With no available evidence to guide the court to assign a monetary value to the distress suffered by Patricia Richey, it was not improper for the court to award nominal damages. This claim fails.

Ill

The plaintiffs’ final claim challenges certain testimony that the court admitted at the damages hearing. Specifically, the plaintiffs challenge the court’s admission of testimony regarding the readiness of the restaurant to open for business, arguing that this testimony improperly allowed the court to consider other sources that may have caused the restaurant not to open when calculating damages for lost profit.

The plaintiffs cite three sets of questions and answers that they argue were impermissible. First, the defendants asked Michael Richey, during cross-examination: “So, did you need another inspection from the health department, though, before you opened?” The witness answered, “Yes.” Second, the defendants further asked Michael Richey on cross-examination: “So, without all of that—without what you’re telling me, you could not have opened the restaurant at any point in time—any time in the foreseeable future. ... I need to know why the restaurant wasn’t opened. ” The witness replied: “Spoilage and the fact that [Brett Colon] served us an eviction notice.” Third, the defendants asked Brett Colon during direct examination: “Did you know if the premises were going to be used for anything other than a restaurant?” He answered, “No.”

The court, in determining whether the plaintiffs had proved damages for lost profit as to their restaurant, noted that the plaintiffs’ prior restaurant lost revenue and that the plaintiffs, in support of their claims for lost profit, provided no evidence other than their assertions that the new restaurant would be successful. The court also noted that the plaintiffs had not proved that the restaurant would have been ready to open even if the defendants did not commit an illegal entry and detainer. In conclusion, the court noted that it was “left with a significant question as to when and if the newly located Eagle One Restaurant would ever open; just what its business would be—dinner added to the menu? Liquor served? How successful would it be? How many employees would be necessary? What would the expenses be? Would profit eventually be realized? If so, what would it be?” It concluded: “The plaintiffs’ projections are premised on too much dreamlike speculation, contrary to definitive evidence . . . both in terms of their prior experience and the lack of diligence in making the premises ready. The court cannot award theses damages as claimed.”

The plaintiffs claim that the evidence was submitted to establish a defense that the restaurant would not have opened for reasons other than the entry and detainer, and that the defendants were prohibited from demonstrating this defense by their failure to file notice that they had intended to present a defense. Regarding whether the admitted evidence caused them harm, the plaintiffs state in their appellate brief: “[The evidence was] harmful because [it] allowed the court to hear and consider testimony from defense witnesses that there were events other than the lockout and detainer which may have caused the restaurant to not open. . . . Such evidence led the court [to find] that the illegal lockout and detainer did not result in the plaintiffs’ restaurant not opening, that it was not going to open at all, and that the plaintiffs themselves caused their own demise . . . .”

We assume, without deciding, that the evidence was admitted improperly to allow the defendants to demonstrate a defense to liability. Although, arguably, the court’s determination was based in part on its consideration that the plaintiffs’ actions, and not the defendants’, were the true cause of the failure of the restaurant to open, the court also determined that the plaintiffs had failed to provide evidence from which it could calculate the restaurant’s lost profits even if the defendants were responsible. The plaintiffs provide no analysis demonstrating how the challenged testimony had an impact on this determination. Furthermore, the court specifically found the plaintiffs not to be credible witnesses. Therefore, we conclude that the plaintiffs have failed to demonstrate that the evidentiary rulings, even if improper, harmed them. It is well settled that not every mistake committed during trial entitles the parties to a new trial. The appealing party must also demonstrate that the alleged mistake caused harm. See Mazurek v. East Haven, 99 Conn. App. 795, 801, 916 A.2d 90, cert. denied, 282 Conn. 908, 920 A.2d 1017 (2007). Because the plaintiffs have failed to demonstrate that they were harmed by the admission of the testimony, we reject this claim.

The judgment in the second case is reversed only as to the determination that the plaintiffs were not entitled to damages on their CUTPA claim and the case is remanded for a hearing in damages as to that claim. The judgments are affirmed in all other respects.

In this opinion the other judges concurred.

       This court has not been provided with these documents for review. The quoted language is provided by the plaintiffs in their appellate brief. The parties do not dispute that the quoted language appears in the original documents or that the documents were admitted as full exhibits at trial. Further, the plaintiffs’ description of the contents of the documents is consistent with the description provided by the court in its memorandum of decision. Therefore, we may review this claim. See Finch v. Earl, 104 Conn. App. 515, 519 n.5, 935 A.2d 172 (2007); Moss v. Foster, 96 Conn. App. 369, 371 n.2, 900 A.2d 548 (2006); Lisiewski v. Seidel, 95 Conn. App. 696, 700 n.2, 899 A.2d 59 (2006).

       The plaintiffs provide no analysis explaining how this last piece of testimony is relevant to lost restaurant profits. Later in their appellate brief, the plaintiffs assert that the quoted testimony, among other things, allowed the court to find that “the defendants were unaware that [another business operated by the plaintiffs] had its offices in the premises.” No further analysis of this challenged testimony is provided. To the extent that the plaintiffs raise a claim as to this last piece of testimony, we decline to review it, as it is briefed inadequately.


source: Caselaw Access Project

author: FLYNN, C. J.

license: Public Domain

text:
    DONNA DUTKO v. PLANNING AND ZONING BOARD OF THE CITY OF MILFORD
    (AC 28695)
    Flynn, C. J., and Robinson and Berdon, Js.

      Argued May 20
    officially released September 16, 2008

      Michael C. Jankovsky, for the appellant (plaintiff).

      Matthew B. Woods, with whom, on the brief, was Cynthia C. Anger, assistant city attorney, for the appellee (defendant).
   Opinion

FLYNN, C. J.

This certified appeal arises out of the decision of the defendant, the planning and zoning board of the city of Milford (board), not to extend the Milford center design development district (MCDD) to include other nearby properties. The plaintiff, Donna Dutko, appealed from the board’s decision to the Superior Court, which dismissed the appeal, concluding that the board properly declined to exercise its legislative authority to extend the MCDD. The plaintiff now appeals, claiming that (1) the trial court utilized an improper standard of review, (2) the court wrongly concluded that the board’s decision was based on proper considerations and (3) the board failed to take the plan of conservation and development (plan) into consideration when rendering its decision. We affirm the judgment of the trial court.

The following facts are relevant to our consideration of the plaintiffs appeal. On December 2,2003, the board created the MCDD, which included several properties around the plaintiffs property. The MCDD allows mixed uses, including multifamily residential and commercial uses. Early in 2004, the board, sua sponte, again considered whether to expand the MCDD to include the plaintiffs property, located at 75 High Street, and two other properties, located at 67 High Street and 83-85 High Street. On May 4,2004, the board voted not to extend the zone. The plaintiff appealed from the board’s decision to the Superior Court, which dismissed the appeal on its merits. Upon our granting certification to appeal, this appeal followed.

I

The plaintiff claims that the court utilized a less stringent standard of review when assessing the merits of her appeal from the board’s decision. She argues that the court acted improperly “in holding that there was ‘adequate’ or ‘sufficient’ evidence to support [the] board’s decision when the applicable standard of review is ‘substantial’ evidence.” We conclude that this claim lacks merit.

“In voting [on the appropriateness of a] zone change of . . . property, [a planning and zoning authority] exercise [s] a legislative function ... as distinguished from an administrative one. . . . Acting in such a legislative capacity, the [planning and zoning authority] has wide and liberal discretion . . . and is free to amend its regulations whenever time, experience, and responsible planning for contemporary or future conditions reasonably indicate the need for a change.” (Citations omitted; internal quotation marks omitted.) West Hartford Interfaith Coalition, Inc. v. Town Council, 228 Conn. 498, 505 n.10, 636 A.2d 1342 (1994). “Legislative decisions reached by [a planning and zoning] commission must be upheld by the trial court if they are reasonably supported by the record. ... In appeals from administrative zoning decisions, by contrast, the decisions will be invalidated even if they were reasonably supported by the record, if they were not supported by substantial evidence in that record.” (Citation omitted; emphasis added; internal quotation marks omitted.) Heithaus v. Planning & Zoning Commission, 258 Conn. 205, 215, 779 A.2d 750 (2001); see Konigsberg v. Board of Aldermen, 283 Conn. 553, 582, 930 A.2d 1 (2007); Kaufman v. Zoning Commission, 232 Conn. 122, 151-53, 653 A.2d 798 (1995); Cottle v. Planning & Zoning Commission, 100 Conn. App. 291, 294-95, 917 A.2d 1030 (2007).

In the present case, there is no dispute that the board was acting in a legislative capacity when considering whether the MCDD should be expanded. Accordingly, the standard to be employed by the trial court when reviewing the board’s decision was whether there was reasonable support in the record to sustain the board’s decision. Contrary to the plaintiffs claim, the substantial evidence standard is applicable to administrative actions, not to legislative actions. Accordingly, we conclude that the court used the proper standard in assessing the merits of the plaintiffs appeal.

II

The plaintiff next claims that the trial court wrongly concluded that the board’s decision reasonably was supported by the record and was not clearly erroneous. She argues that “the board voted against the zone change because ‘the historic residential character [of the area] should be preserved’ and ‘revising the zoning map and moving the [MCDD] boundary [would] have an adverse impact on neighboring residential properties.’ ” She further argues that the court was “confined to whether those [stated] grounds were valid and supported by the record,” which, she argues, they were not. The board argues that the court correctly concluded that the board had legislative discretion to deny the zone change. We agree with the board.

Our Supreme Court often has articulated the proper, limited scope of judicial review of a decision of a local planning and zoning authority. “[T]he commission, acting in a legislative capacity, [has] broad authority to adopt [zoning] amendments. ... In such circumstances, it is not the function of the court to retry the case. Conclusions reached by the commission must be upheld by the trial court if they are reasonably supported by the record. The credibility of the witnesses and the determination of issues of fact are matters solely within the province of the agency. The question is not whether the trial court would have reached the same conclusion but whether the record before the agency supports the decision reached. . . . Acting in such legislative capacity, the local board is free to amend [or decline to amend] its regulations whenever time, experience, and responsible planning for contemporary or future conditions reasonably indicate the need for a change. . . . The discretion of a legislative body, because of its constituted role as formulator of public policy, is much broader than that of an administrative board, which serves a quasi-judicial function. . . . This legislative discretion is wide and liberal, and must not be disturbed by the courts unless the party aggrieved by that decision establishes that the commission acted arbitrarily or illegally. . . . Zoning must be sufficiently flexible to meet the demands of increased population and evolutionary changes in such fields as architecture, transportation, and redevelopment. . . . The responsibility for meeting these demands rests, under our law, with the reasoned discretion of each municipality acting through its duly authorized zoning commission.” (Citations omitted; internal quotation marks omitted.) Protect Hamden/North Haven from Excessive Traffic & Pollution, Inc. v. Planning & Zoning Commission, 220 Conn. 527, 542-43, 600 A.2d 757 (1991).

“Appeals from legislative zoning decisions require a showing that the commission has acted arbitrarily . . . illegally ... or in abuse of discretion. . . . Legislative decisions reached by [a planning and zoning] commission must be upheld by the trial court if they are reasonably supported by the record. ... A zoning commission is not required to give reasons for denying a zone change application [but] [w]here reasons are given, it is sufficient if any one of the reasons would be a valid basis to deny the application. R. Fuller, 9A Connecticut Practice Series: Land Use Law and Practice (3d Ed. 2007) § 33:2, p. 236. In accordance with these principles, in [an] appeal from the commission’s [legislative] decision, the commission’s only burden before the trial court [is] to show that the record before the [commission] supported] the decision . . . and that the commission did not act arbitrarily . . . illegally ... or in abuse of discretion.” (Citation omitted; internal quotation marks omitted.) Cottle v. Planning & Zoning Commission, supra, 100 Conn. App. 294-95.

At its May 4, 2004 meeting, board members voiced their reasons for not wanting to expand the MCDD. Board member Frank J. Goodrich initially moved that the board “not change the zoning map designation from R-7.5 to MCDD for properties located at 67, 75 and 83-85 High Street for the following reasons: (1) the historic residential character of High Street should be preserved; (2) revising the zoning map and moving the MCDD boundary will have an adverse impact on the neighboring residential properties; [and] (3) the owner of the property at 83-85 High Street testified at the public hearing [that] he does not want his zoning changed and submitted a letter on behalf of the owner of 67 High Street that she [does] not want the zone changed.” The motion was seconded by board member John Ludtke. The board then discussed the matter in some detail. Ludtke explained that the plaintiffs “house is a significant historical building” and that he believed that “it should be preserved.”

Board member Nanci Seltzer explained that although the MCDD is nearby, the property at 75 High Street, which is the plaintiffs property, is not surrounded by the MCDD but, rather, has residential homes on both sides of it. She acknowledged that the property to the rear of 75 High Street was commercial and that the property across the street housed a utility company. She also expressed her opinion that these remaining residential High Street properties should remain residential. Board member Jeanne K. Cervinalso expressed her opinion, stating that she thought that these properties had significant historical value to the city.

The board’s chaiiperson, John Jansen, explained that in his opinion, “the argument that this property is surrounded by commercial [property] is not valid . . . .” He also explained that this property has “always been residential” and that the board, previously, “ha[d] determined that it should just remain as it has been for years.” He stated that he did not “see any basis for making the change.” After further discussion by the members, the board voted seven to none in support of the motion not to make a change, with three members abstaining because they were not present at the public hearing.

On appeal, the plaintiff argues that the board acted improperly in declining to expand the MCDD on the stated grounds because “the board had no authority or guidance to consider the historical significance of the area, let alone base its decision on historic preservation” and because “no historic district existed at the time of the hearing . . . .” The board argues that it properly could consider the historic nature of the area, despite not having a designated historic district in the city. Additionally, the board argues that it also declined to expand the zone because of the residential character of the area and the desire to preserve that character, which reason, it argues, the plaintiff fails to challenge or even mention in her brief. We agree with the board.

On appeal, we must uphold the decision of the board if any of its stated reasons reasonably are supported by the record. See Heithaus v. Planning & Zoning Commission, supra, 258 Conn. 215. In rendering its decision, the board had before it the following relevant evidence in opposition to the expansion of the MCDD. More than twenty-five letters were submitted to the board by area residents, each stating that the signatories were opposed to a rezoning of 67, 75 and 83-85 High Street because they desired to preserve “the historically residential character of the neighborhood.” Petitions signed by homeowners and residents of High Street also were submitted to the board, stating that the signatories were against expanding the MCDD to these properties because it would “cause irreparable harm to a residential neighborhood with predominately historic homes [and the expansion would change] the residential character of the neighborhood and [subject] the neighborhood to creeping development.”

Additionally, the board had before it a letter from Jose Giner, a member of the American Institute of Certified Planners, whom the board had hired as an independent planner to look at this issue. Giner confirmed in his letter that he had inspected the neighborhood and “noted that there is a marked contrast in the character of the streetscape when one turns onto High Street from South Broad Street. The predominant character of the area immediately west of the current [MCDD] line is residential in nature.” He noted that the “residential uses appear stable and thriving [and that the] residential properties appear fully occupied and well kept.” He further opined that “in reviewing the record, there were concerns regarding the retention of the historic character of the neighborhood in which the subject property is located. The current [z]oning regulation for the [MCDD] would not offer much if any protection for the retention of the structures [and] changing [the current zone] to [MCDD] will not promote the retention of the historic character of the neighborhood.”

During the April 20, 2004 public hearing, the board also was presented with three Connecticut historical commission historic resources inventory forms, one for each of the subject properties, by Richard N. Platt, Jr., the city historian. Apparently, these forms had been filed with the state in 1977. Each form described the relevant property and noted that each was located in a “residential neighborhood, just south of [the] commercial area of Broad Street, [having a ] high concentration of historic homes.” Platt spoke against expanding the MCDD, noting that this area always has been residential. Platt also stated that the mayor recently had appointed a historic district study committee to look at designating this area as a historic district.

Peter Moen, the owner of 83-85 High Street spoke in opposition to expanding the MCDD, stating that he “wish[ed] to go on record with [his] opposition to any change in zoning from R-7.5 of this historic property [because] the property was purportedly built in 1745, making it one of the ten oldest properties in Milford.” He then “urge[d] the board to consider [its] role as temporary custodian of [the city’s] common heritage and the immediate and irreversible devastating effect a change in zoning to MCDD of [his] property and any adjacent properties [would] have on this historic residential neighborhood.” Moen also submitted a letter written by his mother-in-law, Ruth Merwin MacMaster, opposing the expansion of the MCDD to include her property at 67 High Street. Many other residents of the neighborhood also spoke against expanding the MCDD to these properties.

The plaintiff argues that the board had no authority to refuse to expand the MCDD on the basis of “the historic residential character” of the area. Despite this argument, at the April 20, 2004 hearing, her attorney, David Quatrella, although arguing that the plaintiffs property was not historical, stated that he was “not denying that there are historical properties in this neighborhood.” He also stated: “Simply because it is an old structure, does not make it historically significant. This is a vinyl sided house; this is not, it is not of any . . . architectural significance or design, and it is not a house that we feel qualifies as a historical structure.” After Quatrella spoke, Platt gave a final comment, stating: “I just wanted to speak to one rather extraordinary statement we just heard that number 75—just because it is old, it is not historic. There, I guess the people who put it on the historic resources inventory list must have been wrong.” With that said, chairman Jansen closed the public hearing.

The board voted to approve the motion that Goodrich made at the May 4, 2004 board meeting “not [to] change the zoning map designation from R-7.5 to MCDD for properties located at 67, 75 and 83-85 High Street for the following reasons: (1) the historic residential character of High Street should be preserved; (2) revising the zoning map and moving the MCDD boundary will have an adverse impact on the neighboring residential properties; [and] (3) the owner of the property at 83-85 High Street testified at the public hearing [that] he does not want his zoning changed and submitted a letter of behalf of the owner of 67 High Street that she [does] not want the zone changed.”

We begin by looking at the third reason stated by the board for not expanding the MCDD, namely, that the owners of two of the three properties that would have been affected by the zone change were not in favor of the change. There is no doubt that this reason finds considerable support in the record. We also are drawn to § 10.5 of the Milford zoning regulations, which states: “Where a protest is filed with the . . . board at a public hearing on a proposed amendment signed by the owners of 20 percent or more of the area of the lots included in such proposed change, or of the lots within 500 feet in all directions of the lots included in the proposed change, such change shall not be adopted except by a vote of two-third of the entire membership of said [b]oard.” Additionally, we note that the plaintiff does not challenge this reason or make any argument as to whether this reason alone would or would not be sufficient to support the board’s decision. Nevertheless, we also look for support in the record for the other reasons cited by the board.

Certainly there were many people who stated that they opposed the expansion of the MCDD because they wanted to maintain the historical character of the neighborhood. Giner, the board’s expert, noted that this area was residential in nature and that rezoning this area to the MCDD “would not offer much if any protection for the retention of the structures . . . .’’He also opined that “changing [the current zone] to [MCDD] will not promote the retention of the historic character of the neighborhood.” The board also had before it Connecticut historical commission historic resources inventory forms that listed these properties and stated that they were “in an area highly concentrated with historic homes.” Quatrella, himself, admitted that there were “historical properties in this neighborhood.” More than twenty-five letters were submitted to the board, each stating that the signatories were opposed to a rezoning of this area because they desired to preserve “the historically residential character of the neighborhood.” Accordingly, the record reasonably supports the board’s decision “not [to] change the zoning map designation from R-7.5 to MCDD for properties located at 67, 75 and 83-85 High Street [because] . . . the historic residential character of High Street should be preserved . . . .”

As to the final reason stated by the board for not expanding the MCDD, namely, that “revising the zoning map and moving the MCDD boundary will have an adverse impact on the neighboring residential properties,” despite the plaintiffs failure to challenge this reason, after reviewing the record, we conclude that it also finds reasonable support in the record. The board had before it several petitions that were signed by homeowners and residents of High Street, stating that they were against expanding the MCDD to include the subject properties because the expansion would “cause irreparable harm to a residential neighborhood with predominately historic homes . . . [and the expansion would change] the residential character of the neighborhood and [subject] the neighborhood to creeping development.” Many of these residents also spoke at the public hearing reiterating what was expressed in the petitions. Giner also opined that the “predominant character” of the subject area is residential and that changing the zone would not promote the preservation of the character of the neighborhood. Accordingly, we conclude that the board’s decision finds reasonable support in the record.

III

The plaintiffs final claim on appeal is that “[i]n violation of General Statutes §§ 8-2, 8-3 and 8-23, the board and the Superior Court failed to consider the [plan] and specifically state why they departed from [the plan].” The plaintiff argues that “[d]espite the fact that the [plan] includes 75 High Street in the MCDD, the board decided not to include it in said zone, and the Superior Court upheld that decision. . . . [E]ven if the board was not required to specifically comply with the [plan], it was not free to ignore it.” (Citations omitted.) After reviewing the record, we conclude that the board did take into consideration the plan, and, accordingly, we are not persuaded by the plaintiffs claim.

“While courts seldom second guess a zoning commission on zone change applications, the decision is more likely to be upheld if it is based upon the material considerations for a zone change, namely conformity with the comprehensive plan and a use which meets one of the police power puiposes in § 8-2 of the General Statutes.” 9 R. Fuller, supra, § 21:10, p. 623. “A comprehensive plan has been defined as a general plan to control and direct the use and development of property in a municipality or a large part thereof by dividing it into districts according to the present and potential use of the properties. . . . The requirement of a comprehensive plan is generally satisfied when the zoning authority acts with the intention of promoting the best interests of the entire community. ... It is established that the comprehensive plan is to be found in the zoning regulations themselves and the zoning map, which are primarily concerned with the use of property.” (Citation omitted; internal quotation marks omitted.) Konigsberg v. Board of Aldermen, supra, 283 Conn. 584-85. “[I]n making its decision regarding a zone change, a zoning agency must consider the general public welfare inherent in the comprehensive zoning development plan rather than the individual benefit of one petitioner.” Fenn v. Planning & Zoning Commission, 24 Conn. App. 430, 436, 589 A.2d 3, cert. denied, 219 Conn. 908, 593 A.2d 133 (1991).

“The plan of conservation and development or master plan prepared by the planning commission under section 8-23 is not the same thing as the comprehensive plan, which is a zoning concept. The comprehensive plan is a general plan to control and direct the use and development of property in a municipality or in a large part of it by dividing it into districts according to the best and potential uses of the properties. The comprehensive plan consists of the zoning regulations themselves and the zoning map which has been established pursuant to those regulations.” 9 R. Fuller, supra, § 21:15, pp. 642-43. Although zone changes must be in accordance with the comprehensive plan, “[t]he recommendations in the plan of conservation and development designating appropriate uses for various areas in the municipality is merely advisory to and does not bind the zoning commission.” Id., p. 641.

The Milford zoning regulations set forth the following: “Section 1.1—Purposes There is hereby established a comprehensive zoning plan for the [c]ity of Milford, which plan is set forth in the text, schedule, and maps, all of which constitute these [r]egulations. Said plan is adopted for the purposes set forth in the General Statutes of the [s]tate of Connecticut and is consistent with the policies and objectives of the [p]lan of [conservation and [development, dated September 20, 2002, which, in the interest of protecting and promoting the public health, safety and welfare, shall be deemed to include the following, among others: 1.1.1 Existing Development: The protection of the character of existing built-up areas and the enhancement of the appearance of the community as a whole. 1.1.2 Historic sites: The preservation of sites, buildings and uses of historical significance to the community. ...”

The plan provides in relevant part: “During the neighborhood and topical meetings, there were several comments related to the need to protect historic resources in Milford. There were concerns raised about enforcement of regulations within the existing historic district as well as negative impacts on individual historic structures. Interest was expressed in the creation of a second historic district in the area south of the downtown. There is a need to pay more attention to the design of new development in order not to adversely impact the traditional architecture and New England charm of individual properties and areas in Milford. ... In addition, an approach to some neighborhood centers may be to strengthen them through . . . mixed-use development. During the neighborhood meetings many people commented on the lost charm of Milford when there used to be local merchants supported by neighborhood business. An initiative to revitalize these centers should be examined through the plan update.”

Throughout the entirety of the plan, there is much discussion on preserving neighborhood character and historic preservation. The plan also contains a section entitled “Milford Center Plan,” which explains that “Milford Center is the historic center of the community dating back to the original [t]own [p]lot with its Line of Palisade as shown on a plan dating to 1646.” It goes on to state that the traditional downtown portion of the center is where goods and services are available and where government offices are located. “Of equal importance in shaping the character of Milford Center are the residential neighborhoods surrounding the downtown. . . . Future development in Milford Center should recognize the importance of the residential neighborhoods as a customer base while protecting the neighborhoods from negative impact.”

Directly considering the propriety of expanding the MCDD to include the subject properties, Giner, the board’s planning expert, opined in his letter to the board that “[t]he 2002 [plan] appears to recognize that [the subject] area, [which is] to the west of the current center, may be in flux and could possibly become part of the center at some future point. There is general discussion about the future of the [MCDD] and the possibility for expansion. However, I could find no specific discussion of the subject area with respect as to why or why not the [MCDD] boundaries ought to extend beyond their current borders. The proposed land use map shows this area as potential [MCDD] perhaps anticipating that the impacts of the adjacent center may become so great as to someday render use of the property as residential space impossible. My review of the present situation leads me to believe that this is not the case yet. . . . The fact that the [plan] indicates that this area may merit future consideration as part of the [MCDD] does not automatically seal the fate of these properties to such zoning.”

During the April 20, 2004 hearing, Betsey Wright, a former member of the board, who chaired the planning committee while it was putting together the plan, also spoke. Wright stated that when the planning committee saw the initial land use map, the members thought there were many errors contained therein. She stated that they also believed that the map showing the MCDD over the plaintiffs property was in error and that they told the plaintiff that as well. Wright stated that the committee informed the plaintiff during this time “that her house . . . and an outbuilding in the back [were] very important for preservation and that . . . [the] neighborhood as it stood was . . . important . . and [that they] were concerned about the nibble, nibble factor . . . let [ting] one more historic piece of property go . . . .” She also stated that she told the plaintiff that they “needed to preserve the history of our community.”

At the board’s May 4, 2004 meeting, the board discussed Wright’s remarks concerning the errors in the map. It also was stated that “the issue [regarding the plaintiffs property] started back when [the board was] putting in the plan of development . . . .” Much of the board’s discussion at the meeting centered on the desire to preserve the character of the neighborhood and the concern for historical aspects of the neighborhood and the subject properties, the same concerns expressed throughout the plan. Although the board may not have stated on the record that it was considering the plan when it rendered its decision, certainly many of the factors it raised were concerns expressed throughout the plan. Additionally, the board had heard its own expert and a former member of the board at the public hearing two weeks earlier explain relevant aspects of the plan in relation to the plaintiffs property. Further, board members repeatedly stated that the properties were zoned residential and that they should remain as such. Accordingly, we conclude that the board did take into consideration the plan, as well as the comprehensive plan, when deciding the propriety of expanding the MCDD. Our review of the record supports the court’s conclusion that the board’s decision was not arbitrary, illegal or an abuse of its discretion.

The judgment is affirmed.

In this opinion the other judges concurred.

       General Statutes § 8-2 (a) provides in relevant part: “[Zoning] regulations shall be made in accordance with a comprehensive plan and in adopting such regulations the commission shall consider the plan of conservation and development prepared under section 8-23. Such regulations shall be designed to lessen congestion in the streets; to secure safety from fire, panic, flood and other dangers; to promote health and the general welfare; to provide adequate light and air; to prevent the overcrowding of land; to avoid undue concentration of population and to facilitate the adequate provision for transportation, water, sewerage, schools, parks and other public requirements. Such regulations shall be made with reasonable consideration as to the character of the district and its peculiar suitability for particular uses and with a view to conserving the value of buildings and encouraging the most appropriate use of land throughout such municipality. . . .”
      General Statutes § 8-3 (b) provides: “[Zoning] regulations and boundaries shall be established, changed or repealed only by a majority vote of all the members of the zoning commission, except as otherwise provided in this chapter. In making its decision the commission shall take into consideration the plan of conservation and development, prepared pursuant to section 8-23, and shall state on the record its findings on consistency of the proposed establishment, change or repeal of such regulations and boundaries with such plan. If a protest against a proposed change is filed at or before a hearing with the zoning commission, signed by. the owners of twenty per cent or more of the area of the lots included in such proposed change or of the lots within five hundred feet in all directions of the property included in the proposed change, such change shall not be adopted except by a vote of two-thirds of all the members of the commission.”
      General Statutes § 8-23 (d) provides in relevant part: “(1) [The] plan of conservation and development shall (A) be a statement of policies, goals and standards for the physical and economic development of the municipality .. . (C) be designed to promote, with the greatest efficiency and economy, the coordinated development of the municipality and the general welfare and prosperity of its people and identify areas where it is feasible and prudent . . . (D) recommend the most desirable use of land within the municipality for residential, recreational, commercial, industrial, conservation and other purposes and include a map showing such proposed land uses, (E) recommend the most desirable density of population in the several parts of the municipality . . . (H) promote housing choice and economic diversity in housing, including housing for both low and moderate income households, and encourage the development of housing which will meet the housing needs identified in the housing plan prepared pursuant to section 8-37t and in the housing component and the other components of the state plan of conservation and development prepared pursuant to chapter 297. In preparing such plan the commission shall consider focusing development and revitalization in areas with existing or planned physical infrastructure.”


author: FOTI, J.

text:
    STATE OF CONNECTICUT v. ROBERT EDWARD MISH, SR.
    (AC 27284)
    Bishop, Beach and Foü, Js.

      Argued May 28
    officially released September 16, 2008

      Carlos E. Caudal, special public defender, for the appellant (defendant).

      Lisa A. Riggione, senior assistant state’s attorney, with whom, on the brief, were David Shepack, state’s attorney, and Devin T. Stilson, senior assistant state’s attorney, for the appellee (state).
   Opinion

FOTI, J.

The defendant, Robert Edward Mish, Sr., appeals from the judgment of conviction, rendered after a jury trial, of two counts of possession of narcotics in violation of General Statutes § 2 la-279 (a), two counts of sale of narcotics by a person who is not drug-dependent in violation of General Statutes § 21a-278 (b) and two counts of conspiracy to sell cocaine in violation of General Statutes §§ 53a-48 and 21a-278 (b). On appeal, the defendant claims that (1) the court improperly denied his motion to dismiss for failure to grant him a speedy trial, (2) the court improperly limited his cross-examination of a state’s witness and (3) the court incorrectly denied his motion for a judgment of acquittal because the evidence adduced at trial was insufficient as a matter of law to support his conviction of two counts of sale of narcotics by a person who is not drug-dependent. We affirm the judgment of the trial court.

The jury reasonably could have found the following facts. In 2003, acting on the concerns of the New Milford police department, the statewide narcotics task force (task force) initiated an investigation into the possible trafficking of cocaine out of the Eagles Cafe in New Milford. Information provided by the New Milford police department, as well as other sources, indicated that the defendant supplied the cocaine to the individuals selling narcotics out of the cafe. Officer David Eldridge, assigned to the task force and acting undercover, made several narcotics purchases in the cafe in the subsequent weeks.

On January 22, 2004, at 8:15 p.m., Eldridge returned to the Eagles Cafe. Forty-five minutes later, he left after purchasing one gram of cocaine from James Taylor, a low-level drug dealer working for the defendant. The defendant was present at this transaction and actually took the money from Eldridge and put it in his pocket. On February 4, 2004, Eldridge made another purchase of cocaine from Taylor and the defendant in the cafe. Again, Taylor handed Eldridge the drugs, and the defendant took the money from Eldridge.

The jury could have also found that these two purchases were but a small part of an illegal drug conspiracy that specialized in trafficking cocaine, organized and controlled by the defendant, which operated in the New Milford area. This operation involved the “bagging up,” selling and distributing for sale of two to three ounces of cocaine per week. Several people were involved in this operation, including Taylor, Robert Kelly and Robert Edward Mish, Jr., the defendant’s son. The defendant estimated to various individuals that this operation netted him $3000 a week.

Oh March 10, 2004, the defendant was arrested. At the time, he was serving a thirteen and one-half year sentence on an unrelated conviction for violation of probation. On February 2, 2005, he filed a speedy trial motion. On February 8, 2005, the court granted this motion. The defendant was subsequently found guilty by the jury of the subject charges. On December 2, 2005, the court sentenced the defendant to a total effective term of fifteen years incarceration of which five cannot be suspended. This appeal followed. Additional facts will be set forth where necessary.

I

First, the defendant claims that the court improperly denied his motion to dismiss for failure to grant him a speedy trial. Specifically, the defendant challenges the court’s factual findings with respect to excludable time from speedy trial calculations. We disagree.

The following facts are necessary for our resolution of the defendant’s claim. The defendant, while incarcerated for a previous conviction, was arrested on March 10, 2004, on the subject charges. On February 2, 2005, the defendant filed a motion for a speedy trial pursuant to General Statutes § 54-82c. On February 8, 2005, the court, Brunetti, J., granted the motion for a speedy trial and set a trial date for May 26, 2005.

On May 18,2005, defense counsel filed with the court, pursuant to General Statutes § 54-56d, a motion requesting an evaluation of the defendant to determine his competency to stand trial. On May 25, 2005, the court, Brunetti, J., ordered that an examination be done within fifteen days and continued the case until June 9, 2005, expressly tolling the time for the defendant’s speedy trial. At the hearing, defense counsel reported observing, on several occasions during extended meetings with the defendant, paranoid behavior to the extent that the defendant was unable to assist in his defense. This behavior was a marked deviation from the defendant’s past behavior. Moreover, the defendant was offering no relevant information in preparation of his defense. The defendant also addressed the court. He opposed the motion and asked how he could stop the court from granting it. The court granted the motion.

On June 9, 2005, the court, Gill, J., in light of the fact that the requested examination had yet to occur, continued the case until July 1, 2005. In reference to this additional continuation, counsel for the defendant expressed a “need to reschedule [the examination]” and did not raise any objection. A report determining that the defendant was competent was filed with the court on June 29, 2005. At a July 7, 2005 hearing, the report was admitted into evidence, and the court, Gill, J., found the defendant competent to stand trial. The defendant’s attorney indicated that he was prepared to stipulate to the court that the defendant was competent to stand trial, as well. The court also specified that it was ready to start jury selection the following day. The defendant’s counsel, however, requested that jury selection not begin until July 12, 2005. After an off the record discussion with the defendant, the defendant’s counsel stated to the court that the defendant agreed to delay jury selection until July 12, 2005. The court granted the continuance and ordered jury selection to begin on July 12, 2005.

On July 12, 2005, the defendant filed a pro se, handwritten motion to dismiss for violation of his right to a speedy trial. The court, Gill, J., denied this motion, finding that there was no violation of § 54-82c and that “all the delays [were] attributable to initiatives of the defense . . . .”

At the outset, we identify the applicable standard of review. “The determination of whether a defendant has been denied his right to a speedy trial is a finding of fact, which will be reversed on appeal only if it is clearly erroneous. . . . The trial court’s conclusions must stand unless they are legally and logically inconsistent with the facts. . . . Although the right to a speedy trial is fundamental, it is necessarily relative, since a requirement of unreasonable speed would have an adverse impact both on the accused and on society.” (Citation omitted; internal quotation marks omitted.) State v. Lacks, 58 Conn. App. 412, 417, 755 A.2d 254, cert. denied, 254 Conn. 919, 759 A.2d 1026 (2000).

“General Statutes §§ 54-82c and 54-82d provide a statutory method by which an inmate of a Connecticut penal institution who has a detainer placed against him can request and receive an expedited disposition of pending charges. The inmate must be serving a sentence at that time in order to have the procedure available to him. . . . Eligible inmates are entitled to a trial within 120 days or to a dismissal of the pending charges, if they follow the procedure outlined in the statutes. ... If the procedure is complied with and the case is not assigned for trial within 120 days, then the charges must be dismissed. . . . The trial court may, however, toll the 120-day period by granting, for good cause shown, any necessary or reasonable continuance.” (Citations omitted; emphasis added; internal quotation marks omitted.) State v. Toste, 198 Conn. 573, 585-87, 504 A.2d 1036 (1986).

The start date for calculating days for the defendant’s speedy trial motion was February 2, 2005. See State v. Springer, 149 Conn. 244, 250, 178 A.2d 525 (1962) (completed delivery of request for trial and information concerning confinement starts 120 day period). Accordingly, absent any excludable delay, pursuant to the 120 day limit, the start of the defendant’s trial would have been June 1, 2005.

The defendant argues that the delay from May 25 through July 7, 2005, occasioned by his competency examination and the proceedings related to it, amounting to forty-four days, was erroneously calculated by the court as excludable delay in regard to his speedy trial motion. He makes two arguments in support of this contention.

First, the defendant argues that the entire delay occasioned by the examination and proceedings related to his competence was unnecessary, and, therefore, the court erroneously included this delay in its calculations of excludable time for speedy trial calculations. The defendant asserts that he opposed the competency examination to the court at the May 25, 2005 hearing. As such, it was not a personal request of the defendant. Therefore, he contends, the court erroneously included the delay in its calculation of excludable time. We do not agree.

This court has concluded that in cases in which “requests for continuances [are] made by defense counsel rather than by the defendant, himself, we find that distinction to be inconsequential. Absent some indication to the contrary, a court is entitled to rely on counsel’s representations on behalf of his or her client.” (Internal quotation marks omitted.) State v. Jeffreys, 78 Conn. App. 659, 671-72, 828 A.2d 659, cert. denied, 266 Conn. 913, 833 A.2d 465 (2003). Furthermore, “a court may not rely on the defendant’s subjective appraisal of his own capacity.” (Internal quotation marks omitted.) State v. Cuesta, 68 Conn. App. 470, 482, 791 A.2d 686, cert. denied, 260 Conn. 914, 796 A.2d 559 (2002). We conclude that the defendant’s opposition to the competency examination is irrelevant for purposes of the court’s calculating the excludable delay under the defendant’s speedy trial motion.

Second, the defendant argues that the delay occasioned by the examination and proceedings related to his competence was erroneously included in the court’s calculation of excludable delay because the requisite proceedings under § 56-54d did not occur within that statute’s time constraints. The defendant’s speedy trial motion was filed under § 54-82c, however, which provides in relevant part: “For good cause shown in open court, the prisoner or his counsel being present, the court may grant any necessary or reasonable continuance. . . .” General Statutes § 54-82c (a). The record indicates that each continuance granted by the court, which concerned the competency examination of the defendant ordered pursuant to § 54-56d, was for good cause, in open court, with the defendant and his counsel present, thereby meeting the requirements of § 54-82c. Therefore, the delay occasioned by the defendant’s competency examination and the related proceedings was determined properly by the court to be excludable from speedy trial calculations under § 54-82c.

Next, the defendant also argues that the tolling of May 25, 2005, ended on June 9, 2005, on the basis of the mistaken belief that the June 9 hearing did not occur. The June 9, 2005 hearing did, however, take place. A continuation until July 1, 2005, was ordered by the court at that hearing. That continuation extended to the next hearing on the record, which was July 7, 2005. As the June 9, 2005 hearing took place in open court with the defendant present, it also falls within the ambit § 54-82c, and the defendant’s argument fails.

Last, the defendant contends that the resulting delay from the continuation ordered by the court on July 7, 2005, was erroneously calculated by the court as excludable time. We disagree. At the July 7, 2005 hearing, the court stated that it was prepared to start jury selection the following day. The defendant’s counsel, however, requested that jury selection be continued until July 12, 2005. The record shows that this continuance was requested on behalf of the defendant. The record further indicates that the defendant was present when this request was made. We conclude, therefore, that the time period being challenged, from July 7 to 12, 2005, was determined appropriately by the court to be excludable from speedy trial calculations under § 54-82c.

The jury selection in the present case began on July 12, 2005, which is the effective start of the defendant’s trial. Although July 12, 2005, was the 161st day after commencement of the speedy trial calculations, the period of excludable delay, which the court found to be “attributable to initiatives of the defense,” amounted to a total of forty-eight days. After a thorough review of the record, we conclude that the court’s factual findings of excludable delay were not clearly erroneous. As a result, the excludable delay brings the commencement of the defendant’s trial within the ambit of § 54-82c. Therefore, the court properly denied the defendant’s motion to dismiss.

II

The defendant next claims that the court improperly limited his cross-examination of a state’s witness and thereby violated his right to present a defense and his rights under the confrontation clause of the sixth amendment to the United States constitution. Specifically, the defendant argues that the court improperly restricted his impeachment of Kelly, a pivotal witness for the state. We do not agree.

The following facts and procedural history are relevant to the resolution of the defendant’s claim. Prior to trial, the court ruled on a motion in limine regarding the testimony of Kelly. The court limited the extent of the defendant’s right to cross-examine Kelly with reference to his past criminal record. Additionally, during the discussion in chambers with the parties concerning this matter, it was agreed on by the defendant that only unnamed felonies committed within the past ten years were to be used in the cross-examination of Kelly. At trial, however, defense counsel broached the subject of the nature of Kelly’s felony convictions, asking if any of his convictions were “related to any crimes of honesty . . . .” The state’s objection to this question was sustained by the court, and that line of questioning ceased.

As the claim was unpreserved at trial, the defendant seeks review under State v. Golding, 213 Conn. 233, 239-40, 567 A.2d 823 (1989). “Golding is a narrow exception to the general rule that an appellate court will not entertain a claim that has not been raised in the trial court. The reason for the rule is obvious: to permit a party to raise a claim on appeal that has not been raised at trial—after it is too late for the trial court or the opposing party to address the claim—would encourage trial by ambuscade, which is unfair to both the trial court and the opposing party. . . . Nevertheless, because constitutional claims implicate fundamental rights, it also would be unfair automatically and categorically to bar a defendant from raising a meritorious constitutional claim that warrants a new trial solely because the defendant failed to identify the violation at trial.” (Internal quotation marks omitted.) State v. DeVivo, 106 Conn. App. 641, 647, 942 A.2d 1066 (2008).

“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. . . . The first two Golding requirements involve whether the claim is reviewable, and the second two involve whether there was constitutional error requiring a new trial.” (Internal quotation marks omitted.) State v. Fagan, 280 Conn. 69, 89-90, 905 A.2d 1101 (2006), cert. denied, 549 U.S. 1269, 127 S. Ct. 1491, 167 L. Ed. 2d 236 (2007).

The record in the present case is adequate for review, and the claim is of constitutional magnitude, alleging a violation of the defendant’s right to confront a witness against him. See State v. Rolon, 257 Conn. 156, 174-75, 777 A.2d 604 (2001) (“[i]t is well established that a defendant has the right to confront witnesses against him as guaranteed by the confrontation [clause] of . . . our federal . . . [constitution]”). Although we conclude that the defendant’s claim is reviewable under the first two prongs of Golding, because the alleged constitutional violation does not exist, the defendant’s claim fails under the third prong of Golding.

The defendant argues that the restriction of the cross-examination of Kelly unduly limited the defendant’s impeachment of a pivotal state’s witness, thereby violating the defendant’s federal constitutional right to present a defense and his rights under the confrontation clause of the sixth amendment. The record clearly indicates that the defendant agreed to limit the discussion of felonies in his cross-examination of Kelly to unnamed felonies. This agreement constituted a waiver of his rights under the confrontation clause. This waiver was made expressly and unambiguously by the defendant through counsel. “A defendant in a criminal prosecution may waive one or more of his or her fundamental rights.” State v. Cooper, 38 Conn. App. 661, 669, 664 A.2d 773, cert. denied, 235 Conn. 908, 665 A.2d 903 (1995), cert. denied, 517 U.S. 1214, 116 S. Ct. 1837, 134 L. Ed. 2d 940 (1996). “A constitutional right that has been waived at trial cannot be resurrected successfully on appeal ... by invoking the Golding doctrine.” State v. McDaniel, 104 Conn. App. 627, 632, 934 A.2d 847 (2007), cert. denied, 285 Conn. 912, 943 A.2d 471 (2008). Specifically, our Supreme Court has held that “unpreserved, waived claims, fail under the third prong of Golding . . . .” State v. Fabricatore, 281 Conn. 469, 482, 915 A.2d 872 (2007). Therefore, because the defendant has failed to demonstrate that a constitutional violation clearly existed and deprived him of a fair trial, he has failed to satisfy the third prong of the test set forth in Golding.

In light of the defendant’s express waiver of his rights with regard to the extent of the cross-examination of Kelly and the precedents that guide our decision, we cannot say that the alleged constitutional violation clearly exists and deprived the defendant of a fair trial, as required under the third prong of Golding. Therefore, his claim fails.

Ill

Last, the defendant claims that the court incorrectly denied his motion for a judgment of acquittal because the evidence adduced at trial as a matter of law was insufficient to support a conviction of two counts of sale of narcotics by a person who is not drug-dependent. The defendant specifically argues that the evidence is insufficient to support the fact that he possessed the requisite knowledge to have sold the drugs “knowingly.” We disagree.

The following additional facts are relevant to the disposition of the defendant’s claim. At trial, Eldridge testified at great length as to the transactions in question. On January 22, 2004, he arrived at the Eagles Cafe at 8 p.m. and encountered Taylor, an individual from whom he had purchased narcotics on previous occasions. Eldridge asked Taylor if he had any “work,” a drug reference to cocaine for sale. Taylor responded that he did not and was waiting for the defendant. While waiting for the defendant to arrive, Eldridge and Taylor negotiated a price for the narcotics. Eldridge requested three “forties” of cocaine for $100.

Soon after this conversation, the defendant arrived at the cafe. Taylor and Eldridge approached the defendant and Taylor relayed Eldridge’s proposal. Eldridge heard the defendant agree to the negotiated price. Soon after, the defendant left the bar without consummating the deal; however, he returned within thirty seconds to one minute. Once in the bar, Taylor, Eldridge and the defendant “formed a triangle [at the bar], and [the defendant] gave the package to [Taylor], [Taylor] handed it to [Eldridge]. [Eldridge] took the $100 and gave it to [the defendant],” who then placed the money in his pocket. The package contained one gram of cocaine. Eldridge testified that a similar transaction took place among Taylor, the defendant and himself on February 4, 2004, in the Eagles Cafe. Immediately after, Eldridge asked the defendant about the quality of the cocaine he had just purchased. The defendant replied, “[y]ou’re [going to] love it.” Immediately following the close of the state’s case-in-chief, defense counsel orally moved for a judgment of acquittal as to the two counts of sale of narcotics by a person who is not drug-dependent.

“The standard of appellate review of a denial of a motion for a judgment of acquittal has been settled by judicial decision. . . . The issue to be determined is whether the jury could have reasonably concluded, from the facts established and the reasonable inferences which could be drawn from those facts, that the cumulative effect was to establish guilt beyond a reasonable doubt. . . . The facts and the reasonable inferences stemming from the facts must be given a construction most favorable to sustaining the jury’s verdict.” (Internal quotation marks omitted.) State v. Hamlett, 105 Conn. App. 862, 866, 939 A.2d 1256, cert. denied, 287 Conn. 901, 947 A.2d 343 (2008).

“Moreover, it does not diminish the probative force of the evidence that it consists, in whole or in part, of evidence that is circumstantial rather than direct. . . . It is not. one fact, but the cumulative impact of a multitude of facts which establishes guilt in a case involving substantial circumstantial evidence. ... In evaluating evidence, the [finder] of fact is not required to accept as dispositive those inferences that are consistent with the defendant’s innocence. . . . The [finder of fact] may draw whatever inferences from the evidence or facts established by the evidence it deems to be reasonable and logical.” (Internal quotation marks omitted.) State v. Lopez, 280 Conn. 779, 808, 911 A.2d 1099 (2007).

The defendant argues that as a matter of law, the evidence was insufficient to support the element of knowledge under § 2 la-278 (b). He contends that the evidence supports beyond a reasonable doubt only that he was present at the time of the transactions in question. Furthermore, he asserts that no evidence adduced at trial supports the conclusion beyond a reasonable doubt that he knew cocaine was being sold by Taylor to Eldridge. Additionally, he contends, there was no evidence presented to support the conclusion beyond a reasonable doubt that he was aware that he was receiving money from Eldridge in return for the drugs given by Taylor. Last, the defendant purports that no evidence presented beyond speculation or conjecture supports the conclusion beyond a reasonable doubt that he acted as a principal or agent in the transaction between Eldridge and Taylor. The state, in contrast, argues that the evidence overwhelmingly supported the challenged conviction. We agree with the state.

At the outset we note that “[t]o prove sale of a narcotic substance, [t]he state [must] prove . . . [beyond a reasonable doubt] that the defendant knowingly sold the substance to another person and that the substance sold was a narcotic.” (Internal quotation marks omitted.) State v. Gayle, 64 Conn. App. 596, 601, 781 A.2d 383, cert. denied, 258 Conn. 920, 782 A.2d 1248 (2001). “The state of mind of one accused of a crime is often the most significant and, at the same time, the most elusive element of the crime charged. . . . Because it is practically impossible to know what someone is thinking or intending at any given moment, absent an outright declaration of intent, a person’s state of mind is usually proved by circumstantial evidence . . . and is, except in rare cases, a question of fact. . . . Intention is a mental process which, of necessity, must be proven either by the statements or the actions of the person whose conduct is being examined. . . . Where there is sufficient evidence to support a reasonable inference that the defendant intended to commit the crime charged, whether such an inference should be drawn is properly a question for the jury to decide.” (Internal quotation marks omitted.) State v. Parades, 35 Conn. App. 360, 373, 646 A.2d 234, cert. denied, 231 Conn. 925, 648 A.2d 166 (1994).

In a three way drug transaction similar to the transactions in the present case, we have found sufficient incriminating evidence to support a jury’s finding of guilty of the sale of narcotics. See State v. Green, 81 Conn. App. 152, 838 A.2d 1030, cert. denied, 268 Conn. 909, 845 A.2d 413 (2004). In Green, an undercover officer testified that the defendant exited a building accompanied by a man named Goggins. Id., 159. Goggins approached the officer in his vehicle and completed a drug sale. Id. Goggins then returned to the defendant, handed him the proceeds, and both he and the defendant reentered the building. Id. In Green, we concluded that this evidence was supportive of “the jury’s finding the defendant guilty of the sale of narcotics ... as a principal . . . .” Id.

In this case, the evidence is stronger than that which supported the conviction in Green. Here, the defendant not only accepted money from a drug sale, but he accepted it from the undercover officer himself immediately after Taylor had transferred the drugs to Eldridge. Moreover, the defendant transferred the drugs to Taylor, in Eldridge’s presence, immediately prior to the transaction. Also, the defendant, in a conversation that took place immediately after the February 4,2004 transaction, remarked to Eldridge about the quality of the cocaine Eldridge had just purchased. “The jury is entitled to draw reasonable inferences from the evidence before it and, in performing its function, the jury brings to bear its common sense and experience of the affairs of life.” (Internal quotation marks omitted.) State v. Ramirez, 94 Conn. App. 812, 822, 894 A.2d 1032, cert. denied, 278 Conn. 915, 899 A.2d 621 (2006). From the evidence offered by the state, taken in the light most favorable to sustaining the verdict, we cannot say as a matter of law that the jury as the trier of fact could not reasonably have concluded that the defendant knowingly sold the substance to another person and that the substance sold was a narcotic. See State v. Gayle, supra, 64 Conn. App. 601. We conclude, therefore, that the state presented sufficient evidence that the defendant possessed the requisite knowledge of the sale of narcotics in the present case.

The judgment is affirmed.

In this opinion the other judges concurred.

       General Statutes § 21a-278 (b) provides in relevant part: “Any person who manufactures, distributes, sells, prescribes, dispenses, compounds, transports with the intent to sell or dispense, possesses with the intent to sell or dispense, offers, gives or administers to another person any narcotic substance . . . and who is not at the time of such action a drug-dependent person, for a first offense shall be imprisoned not less than five years nor more than twenty years; and for each subsequent offense shall be imprisoned not less than ten years nor more than twenty-five years. The execution of the mandatory minimum sentence imposed by the provisions of this subsection shall not be suspended . . .

       The defendant has not clearly set forth what claims he is asserting with respect to this issue. He appears to argue that the denial of his motion to dismiss for failure to grant him a speedy trial violated the federal and state constitutions. We conclude that to the extent that constitutional claims have been raised, they have been abandoned as a result of an inadequate brief. See State v. Blango, 103 Conn. App. 100, 116 n.11, 927 A.2d 964 (“[W]e are not required to review issues that have been improperly presented to this court through an inadequate brief. . . . Analysis, rather than mere abstract assertion, is required in order to avoid abandoning an issue by failing to brief the issue properly.” [Internal quotation marks omitted.]), cert. denied, 284 Conn. 919, 933 A.2d 721 (2007).

       General Statutes § 54-56d mandates a competency examination when defense counsel or the court requests such an inquiry. State v. Mitchell, 54 Conn. App. 361, 367, 738 A.2d 188, cert. denied, 251 Conn. 910, 739 A.2d 1250 (1999), cert. denied, 528 U.S. 1171, 120 S. Ct. 1197, 145 L. Ed. 2d 1101 (2000). Moreover, “the time consumed in the proceedings relating to the defendant’s competence . . . cannot be charged against the state for speedy trial purposes.” Id., 366; see Practice Book § 43-40.

       During the hearing on the motion for a competency examination, the court spoke directly to the defendant on the matter of his speedy trial motion:
      “The Court: Okay. Well, you understand if I grant this motion to hear his request, it takes thirty days to get this done. That would mean the 120 days has run; however, that will not run. . . . [T]he time period is tolled or stopped while you’re being examined. Do you understand that?
      “[The Defendant]: Well, yeah.”

       Though a hearing was scheduled for July 1, 2005, the state, in oral argument, stipulated that there is no record of any court proceedings involving this case on that date.

       It is worthy of note that the defendant preserved his claim for appellate review merely by his motion for a speedy trial. Therefore, it is not significant that he filed a subsequent pro se motion to dismiss while represented by counsel because his motion for a speedy trial was filed appropriately. See State v. Cote, 101 Conn. App. 527, 532 n.6, 922 A.2d 322, cert. denied, 284 Conn. 901, 931 A.2d 266 (2007).

       General Statutes § 54-56d (d) provides in relevant part: “The examination shall be completed within fifteen days from the date it was ordered and the examiners shall prepare and sign, without notarization, a written report and file such report with the court within twenty-one business days of the date of the order. On receipt of the written report, the clerk of the court shall cause copies to be delivered immediately to the state’s attorney and to counsel for the defendant.”
      General Statutes § 54-56d (e) provides in relevant part: “Hearing. The court shall hold a hearing as to the competency of the defendant no later than ten days after the court receives the written report. . . .”

       “For the purpose of the speedy trial rules, commencement of trial means the commencement of the voir dire examination in jury cases . . . .’’(Internal quotation marks omitted.) State v. Green, 38 Conn. App. 868, 873, 663 A.2d 1085 (1995).

       The defendant also asserts that the court’s limiting his right to cross-examine Kelly violated his right of confrontation under article first, § 8, of the state constitution. The defendant, however, has provided no independent state constitutional analysis for the claim. In the absence of such analysis, we limit our review to the defendant’s federal constitutional claim. See State v. Robertson, 254 Conn. 739, 743 n.5, 760 A.2d 82 (2000).

       In the alternative, the defendant seeks review under the plain error doctrine established in Practice Book § 60-5, “which provides in relevant part that [t]he court may reverse or modify the decision of the trial court if it determines . . . that the decision is . . . erroneous in law. . . . The plain error doctrine is not... a rule of reviewability. It is a rule of reversibility. That is, it is a doctrine that this court invokes in order to rectify a trial court ruling that, although either not properly preserved or never raised at all in the trial court, nonetheless requires reversal of the trial court’s judgment, for reasons of policy.” (Internal quotation marks omitted.) State v. LaBrec, 270 Conn. 548, 559, 854 A.2d 1 (2004).
      Moreover, “a valid waiver . . . thwarts plain error review of a claim. [The] Plain Error Rule may only be invoked in instances of forfeited-but-reversible error . . . and cannot be used for the purpose of revoking an otherwise valid waiver. This is so because if there has been a valid waiver, there is no error for us to correct. . . . [WJaiver is the intentional relinquishment or abandonment of a known right.” (Internal quotation marks omitted.) State v. Corona, 69 Conn. App. 267, 274-75, 794 A.2d 565, cert. denied, 260 Conn. 935, 802 A.2d 88 (2002). Therefore, because we conclude that there was a valid waiver by the defendant with regard to his rights under the confrontation clause as to the extent of his cross-examination of Kelly, his claim is not reviewable under the plain error doctrine.