text:
    GAIL DECORSO v. JAMAL CALDERARO ET AL.
    (AC 30353)
    Lavine, Beach and McDonald, Js.

      Argued October 22
    officially released December 29, 2009

      Gail DeCorso, pro se, the appellant (plaintiff).

      Alfred J. Zullo, pro se, the appellee (defendant).

      Laura Pascole Zaino, with whom, on the brief, was Regen O’Malley, for the appellee (defendant Neil Longobardi).
   Opinion

LAVINE, J.

The pro se plaintiff, Gail DeCorso, appeals from the judgment of the trial court rendered when it granted the motions for summary judgment filed by the defendants Alfred J. Zullo, an attorney, and Neil Longobardi, a state marshal. On appeal, the plaintiff claims that the court erred when it granted the motions for summary judgment because it failed to consider (1) Practice Book § 61-11 (a), (2) 11 U.S.C. § 362 (a) (2), and (3) (a) issues of material fact as to the rules of practice and the United States Bankruptcy Code and (b) the allegations of trespass in the original complaint. We affirm the judgment of the trial court.

The following facts and procedural history are relevant to this appeal. Jamal Calderaro purchased 4 Summit Road in Prospect (premises) in early 2004. Before Calderaro had purchased the premises, the plaintiff and the previous owner had entered into a written commercial lease. During Calderaro’s ownership of the premises, the plaintiff failed to pay rent, and Calderaro brought a summary process action against her. In that action, the court, Pinkus, J., rendered judgment in favor of Calderaro on September 1,2004. The original execution on the judgment of possession was issued on September 15, 2004. The plaintiff, however, filed a petition in bankruptcy under chapter 13 of the Bankruptcy Code, which stayed the eviction. Calderaro retained Zullo to represent her in the Bankruptcy Court, and he filed a motion for relief from the bankruptcy stay on Calderaro’s behalf. The bankruptcy petition, however, was dismissed on November 2, 2004, due to the plaintiffs failure to file schedules and make postpetition payments.

The plaintiff filed a second chapter 13 bankruptcy petition on October 29, 2004, but did not name Calde-raro as a creditor. Although Calderaro did not receive notice of the second bankruptcy petition, Zullo learned of it and filed another motion for relief from the bankruptcy stay. The motion for relief from the stay was granted. In the interim, Calderaro obtained a second execution on the judgment of possession on January 3, 2005. That execution was stayed, however, by the Bankruptcy Court’s having extended the bankruptcy stay until January 19, 2005, to give the plaintiff time to file an appeal with the United States District Court. The District Court granted the plaintiff a temporary stay pending a hearing. The bankruptcy stay expired on February 10,2005, when the District Court denied the plaintiffs motion for stay pending appeal and her motion for a continuance of the stay. On February 12, 2005, Longobardi evicted the plaintiff from the premises pursuant to the judgment of possession and General Statutes § 6-38a.

On February 24, 2007, the plaintiff commenced the present action against Calderaro, Zullo and Longobardi. The plaintiffs original complaint sounded in five counts, including trespass to chattels. Thereafter, the plaintiff filed a sixteen count, substituted revised complaint, which is the operative complaint (complaint). The complaint alleged as to Zullo that he (1) violated the Connecticut Unfair Trade Practices Act (CUTPA), (2) acted wilfully and wantonly, entitling the plaintiff to punitive damages, (3) negligently inflicted emotional distress on the plaintiff and (4) intentionally inflicted emotional distress on the plaintiff. The plaintiff alleged similar claims as to Longobardi. Longobardi filed a motion to strike all of the counts against him. The court, Roche, J., granted the motion to strike as to only the intentional infliction of emotional distress count. After the pleadings were closed, Calderaro, Zullo and Longo-bardi each filed motions for summary judgment. On July 15, 2008, Judge Roche granted Calderaro’s summary judgment motion in part and the summary judgment motions filed by Zullo and Longobardi in their entirety. The plaintiff appealed.

I

STANDARD OF REVIEW

On appeal, a court’s decision to render summary judgment is subject to the plenary standard of review. Weiner v. Clinton, 106 Conn. App. 379, 383, 942 A.2d 469 (2008). “Summary judgment shall be rendered forthwith if the pleadings, affidavits and any other proof submitted show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. Practice Book § [17-49]. In deciding a motion for summary judgment, the trial court must view the evidence in the light most favorable to the nonmoving party. . . . Although the party seeking summary judgment has the burden of showing the nonexistence of any material fact ... a party opposing summary judgment must substantiate its adverse claim by showing that there is a genuine issue of material fact together with the evidence disclosing the existence of such an issue. ... It is not enough, however, for the opposing party merely to assert the existence of such a disputed issue. Mere assertions of fact . . . are insufficient to establish the existence of a material fact and, therefore, cannot refute evidence properly presented to the court [in support of a motion for summary judgment].” (Internal quotation marks omitted.) Gold v. East Haddam, 290 Conn. 668, 677-78, 966 A.2d 684 (2009).

“A genuine issue has been variously described as triable, substantial or real issue of fact . . . and has been defined as one which can be maintained by substantial evidence. . . . Hence, the genuine issue aspect of summary judgment procedure requires the parties to bring forward before trial evidentiary facts, or substantial evidence outside the pleadings, from which the material facts alleged in the pleadings can warrantably be inferred. ... A material fact has been defined adequately and simply as a fact which will make a difference in the result of the case.” (Internal quotation marks omitted.) Craftsmen, Inc. v. Young, 18 Conn. App. 463, 465, 557 A.2d 1292 (1989), cert. denied, 212 Conn. 806, 561 A.2d 947 (1989). “The applicable rule regarding the material facts to be considered on a motion for summary judgment is that the facts at issue are those alleged in the pleadings.” New Haven Savings Bank v. LaPlace, 66 Conn. App. 1, 15, 783 A.2d 1174, cert. denied, 258 Conn. 942, 786 A.2d 426 (2001), citing Plouffe v. New York, N.H. & H.R. Co., 160 Conn. 482, 488-89, 280 A.2d 359 (1971). “The interpretation of pleadings is an issue of law.” Maloney v. PCRE, LLC, 68 Conn. App. 727, 746, 793 A.2d 1118 (2002).

II

SUBJECT MATTER JURISDICTION

Before addressing the plaintiffs claims, we must determine whether we have subject matter jurisdiction to hear the appeal as to Longobardi. In preparing for oral argument, we noted that although the court granted Longobardi’s motion to strike the intentional infliction of emotional distress count, the judgment file does not indicate that judgment has entered as to that count. See Practice Book § 10-44. Ordinarily, all causes of action alleged as to a particular party must be disposed of before an appeal may lie. See Practice Book § 61-3. The ruling upon the motion to strike, therefore, does not qualify as a final judgment because it neither terminated a separate and distinct proceeding nor concluded the rights of the parties so that further proceedings could not affect them. See Breen v. Phelps, 186 Conn. 86, 89, 439 A.2d 1066 (1982).

“The lack of a final judgment implicates the subject matter jurisdiction of an appellate court to hear an appeal. A determination regarding . . . subject matter jurisdiction is a question of law .... The jurisdiction of the appellate courts is restricted to appeals from judgments that are final. General Statutes §§ 51-197a and 52-263; Practice Book § [61-1] .... The policy concerns underlying the final judgment rule are to discourage piecemeal appeals and to facilitate the speedy and orderly disposition of cases at the trial court level. . . . The appellate coruts have a duty to dismiss, even on [their] own initiative, any appeal that [they lack] jurisdiction to hear.” (Internal quotation marks omitted.) Liberty Mutual Ins. Co. v. Lone Star Industries, Inc., 290 Conn. 767, 793-94, 967 A.2d 1 (2009).

“A plaintiff, however, may elect to stand upon a complaint which has been stricken as deficient by refusing to plead further.” Breen v. Phelps, supra, 186 Conn. 89. In granting the motion to strike the intentional infliction of emotional distress count, the court stated that “[count sixteen] is stricken with prejudice against the plaintiff and cannot be repleaded without the court’s permission.” The plaintiff never sought permission to replead and did not replead count sixteen. In similar circumstances where a count of a complaint was stricken, but the plaintiff failed to plead over, no judgment was entered thereon and the remaining counts were disposed of by way of summary judgment, this court has considered the appeal to have been from a final judgment. See Yancey v. Connecticut Life & Casualty Ins. Co., 68 Conn. App. 556, 557 n.1, 791 A.2d 719 (2002), citing Breen v. Phelps, supra, 91 n.7; see also Jones v. H.N.S. Management Co., 92 Conn. App. 223, 224 n.1, 883 A.2d 831 (2005). We therefore conclude that we have jurisdiction to consider the appeal as to Longobardi.

III

PLAINTIFF’S CLAIMS

The plaintiffs claims on appeal are directed toward both Zullo and Longobardi. She claims that in its memorandum of decision, the court failed to address (1) Practice Book § 61-11 (a), (2) 11 U.S.C. § 362 (a) (2), and (3) (a) issues of material fact as to the rules of practice and the Bankruptcy Code and (b) the allegations of trespass. We disagree with the plaintiffs claims.

A

The plaintiff first claims that the court erred in not addressing Practice Book § 61-11 (a) in its memorandum of decision. We disagree.

Following a trial in the summary process action, Judge Pinkus rendered judgment of possession in favor of Calderaro on September 1, 2004. The plaintiff did not file an appeal from the judgment of possession until January 20, 2005. The plaintiff contends that the appellate stay was in effect at the time she was evicted from the premises on February 12, 2005.

Our rules of practice provide for a stay of execution pending appeal of a trial court judgment. Practice Book § 61-11 (a) provides in relevant part: “Except where otherwise provided by statute or other law, proceedings to enforce or carry out the judgment or order shall be automatically stayed until the time to take an appeal has expired. If an appeal is filed, such proceedings shall be stayed until the final determination of the cause.

With respect to summary process actions, General Statutes § 47a-35 provides in relevant part: “(a) Execution shall be stayedforfive days from the date judgment has been rendered, provided any Sunday or legal holiday intervening shall be excluded in computing such five days, (b) No appeal shall be taken except within such five-day period. . . .” (Emphasis added.)

There are no genuine issues of material fact that Longobardi did not evict the plaintiff within five days of the judgment and that the plaintiff failed to file an appeal within five days of the judgment, as required. No stay of execution pursuant to § 47a-35 was in effect in January, 2005, when the plaintiff filed her appeal. The court therefore did not err in granting the motions for summary judgment, as there was no appellate stay in effect at the time the plaintiff was evicted from the premises.

B

The plaintiffs second claim is that the court erred in granting the motions for summary judgment filed by Zullo and Longobardi by failing to address 11 U.S.C. § 362 (a) (2). The plaintiff cannot prevail, as she has failed to bring to our attention any issue of material fact on the issue of the bankruptcy stay. The bankruptcy stay terminated on February 10, 2005, and the eviction was not carried out until February 12, 2005. There was no bankruptcy stay in effect at the time of the eviction.

Moreover, Zullo only represented Calderaro in the bankruptcy proceedings, and the plaintiff has presented no evidence that Zullo was in any way responsible for the eviction. As to Longobardi, it is fundamental to our law that a plaintiffs ability to recover is limited to the allegations of her complaint. See Yellow Page Consultants, Inc. v. Omni Home Health Services, Inc., 59 Conn. App. 194, 200, 756 A.2d 309 (2000). Although the plaintiff alleged that Calderaro and Zullo knew or should have known of the bankruptcy stay, she made no such allegations against Longobardi. The plaintiffs claim as to the bankruptcy stay, therefore, fails.

C

The plaintiff claims that the court erred by failing (1) to conclude that there were genuine issues of material fact as to the rules of practice and the Bankruptcy Code and (2) to address the allegations of common-law trespass when it granted the motions for summary judgment filed by Zullo and Longobardi. We do not agree.

In the original complaint, the plaintiff alleged five counts against Calderaro, Zullo and Longobardi: professional liability (intentional and contributory), intentional infliction of emotional distress, trespass to chattels, conversion, negligence per se and negligent infliction of emotional distress. Zullo filed a request to revise, asking the plaintiff to allege the causes of action in separate counts as to the individual defendants. The plaintiff did not respond to the request to revise but instead filed a sixteen count substituted revised complaint that did not allege trespass as to either Zullo or Longobardi. When the plaintiff filed the substituted revised complaint, the trespass bause of action was withdrawn; the original complaint was no longer the operative complaint. See, e.g., Forbes v. Ballaro, 31 Conn. App. 235, 240 n.8, 624 A.2d 389 (1993). In adjudicating the motions for summary judgment, the court was not required to address trespass because the operative complaint did not contain counts alleging trespass. For the foregoing reasons, we conclude that the court did not err in granting the motions for summary judgment filed by Zullo and Longobardi.

The judgment is affirmed.

In this opinion the other judges concurred.

       The named defendant, Jamal Calderaro, is not a party to this appeal.

       Zullo did not represent Calderaro in the summary process action.

       On January 20, 2005, the plaintiff filed an appeal from the judgment of possession. The appeal was dismissed on May 11, 2005.

       See 11 U.S.C. § 1301 et seq.

       The District Court’s order states in part: “Temporary stay given until 2/10/05 expires at midnight on 2/10/05.”

       General Statutes § 6-38a provides in relevant part: “(b) Any state marshal, shall, in the performance of execution . . . functions, have the right of entry on private property and no such person shall be personally liable for damage or injury, not wanton, reckless or malicious, caused by the discharge of such functions.”

       See General Statutes § 42-110a et seq.

       The court granted Zullo’s motion for summary judgment for the following reasons. The plaintiff presented no credible evidence that Zullo’s limited representation of Calderaro in the bankruptcy proceeding, which the plaintiff initiated, was a violation of CUTPA. With respect to count nine, which alleged wilful and wanton conduct, the court concluded that the plaintiff produced no credible evidence that Zullo’s acts or failures to act were wilful or wanton. As to the plaintiff’s allegations of negligent and intentional infliction of emotional distress, the court concluded that the complaint alleged no credible factual or legal issues, and the plaintiff offered no proof to support the allegations.

       The court granted Longobardi’s motion for summary judgment for the following reasons. The court concluded that with respect to count seven, Longobardi was operating within the parameters of his authority as a civil officer and in his official capacity. His service of process was protected pursuant to § 6-38a (b) as a matter of law. As to count ten, the court found no credible factual or legal basis for punitive damages, as Longobardi did not violate CUTPA. As to the allegations of negligent infliction of emotional distress, the plaintiff failed to allege credible issues of material fact.

       The plaintiffs appeal included all of the defendants. Because Calderaro’s motion for summary judgment was granted in part only, Calderaro filed a motion to dismiss the appeal as to her. This court granted Calderaro’s motion to dismiss.

      A question concerning subject matter jurisdiction may be raised by the court sua sponte at any stage of the proceedings. Grimm v. Grimm, 276 Conn. 377, 393 n.18, 886 A.2d 391 (2005), cert. denied, 547 U.S. 1148, 126 S. Ct. 2296, 164 L. Ed. 2d 815 (2006).

       During oral argument, we inquired as to whether a judgment had been rendered with respect to the intentional infliction of emotional distress count. Neither party indicated that such a judgment had been entered.

       Practice Book § 10-44 provides that “[w]ithin fifteen days after the granting of any motion to strike, the party whose pleading has been stricken may file a new pleading; provided that in those instances where an entire complaint, counterclaim or cross complaint, or any count in a complaint, counterclaim or cross complaint has been stricken, and the party whose pleading or a count thereof has been so stricken fails to file a new pleading within that fifteen day period, the judicial authority may, upon motion, enter judgment against said party on said stricken complaint, counterclaim or cross complaint, or count thereof. Nothing in this section shall dispense with the requirements of Section 61-3 or61-4 of the appellate rules.” (Emphasis added.)

       Although we conclude on the facts of this case that the appeal is from a final judgment, the circumstances of this case are the exception, rather than the rule. The correct procedure is to file a motion for judgment if a stricken count is not pleaded over. See Practice Book §§ 10-44 and 61-3.

       Section 362 (a) of title 11 of the United States Code provides in relevant part: “Except as provided in subsection (b) of this section, a petition filed under section 301, 302, or 303 of this title, or an application filed under section 5 (a) (3) of the Securities Investor Protection Act of 1970 . . . operates as a stay, applicable to all entities, of . . . (2) the enforcement, against the debtor or against property of the estate, of a judgment obtained before the commencement of the case under this title . . . .”

       This court granted Calderaro’s motion to dismiss the appeal as late. See General Statutes § 47a-35 (b).

       We decline to address the first part of the claim, as we addressed it in part III A and B of this opinion.


source: Caselaw Access Project

author: ROBINSON, J.

license: Public Domain

text:
    STATE OF CONNECTICUT v. VICTOR L. JORDAN
    (AC 29163)
    DiPentima, Robinson and Mihalakos, Js.

      Argued September 24
    officially released December 29, 2009

      Pamela S. Nagy, special public defender, for the appellant (defendant).

      C. Robert Satti, Jr., supervisory assistant state’s attorney, with whom, on the brief, were John C. Smriga, state’s attorney, and Jonathan C. Benedict, former state’s attorney, for the appellee (state).
   Opinion

ROBINSON, J.

The defendant, Victor L. Jordan, appeals from the judgment of conviction, rendered after a jury trial, of reckless endangerment in the first degree in violation of General Statutes § 53a-63 (a). On appeal, the defendant claims that the court improperly (1) denied his request to represent himself, (2) restricted cross-examination and (3) allowed the state to make a missing witness argument. We affirm the judgment of the trial court.

The jury reasonably could have found the following facts. On May 2, 2004, at approximately 2:20 a.m., the defendant was operating a motorcycle northbound on Interstate 95, just past exit thirty. Jennifer Diaz was a passenger on the defendant’s motorcycle. The defendant was driving alongside Rodney Howard, who was driving a motorcycle with passenger Country Washington, and George Hutchings, who was driving a car with passengers Corey Cook and Tonya Ellis. While operating the motorcycle at an excessive rate of speed, the defendant struck a motor vehicle operated by Ricardo Ringor, causing Diaz to be ejected from the motorcycle. Diaz sustained fatal injuries from the accident. The state charged the defendant with manslaughter in the first degree in violation of General Statutes § 53a-55 (a) (3), misconduct with a motor vehicle in violation of General Statutes § 53a-57 (a) and reckless endangerment in the first degree in violation of § 53a-63 (a).

On January 24, 2007, the court heard the defendant’s motion to dismiss counsel. The defendant requested that his attorney, William R. Schipul, be dismissed and that either he be allowed to represent himself or a special public defender be appointed as counsel or standby counsel. The defendant argued that he was unhappy with the fact that his trial was delayed because his attorney was on trial for another client and that the defendant was “willing to handle [his] case.” The defendant also proposed that there was a conflict of interest between him and his attorney because his attorney had represented a codefendant in a case seventeen years before. Finally, the defendant argued that he disagreed with his attorney’s determination not to present forensic experts. The court denied this motion on the ground that it had heard no substantive reason to grant the motion.

In February, 2007, at trial, the defendant questioned Ringor about whether his license was suspended at the time of the accident and whether he had ever received any speeding tickets. The court ruled that evidence of prior license suspension was not admissible and that testimony concerning past speeding tickets was not relevant. The court further stated that “even if it were relevant, it would be a classic application of § 4-3 of [the Connecticut] Code of Evidence.” The defendant then requested that he be allowed to ask Ringor about his citizenship in front of the jury to show motive to fabricate facts about the accident. The court found that Ringor’s citizenship status was irrelevant to a motive to lie about the accident and sustained the state’s objection. Last, the defendant questioned Ringor about his knowledge of a lawsuit concerning the accident and whether he had spoken to an attorney and an insurance agent about the case. The court found that reference to a lawsuit in front of the jury was irrelevant and improper, but stated that the defendant was free to request any discovery materials regarding the lawsuit from the attorneys involved.

On March 6, 2007, the state filed a motion for permission to argue to the jury the matter of missing witnesses who had not been called by the defendant to testify at trial — Cook, Ellis and Washington. The state argued that Cook and Ellis were in the car with Hutchings, another witness, and could, therefore, provide testimony as to what they saw, and that the state had asked if they were available to testify and that Howard and Hutchings indicated that they were available. Further, the state argued that Washington was on the back of another witness’ motorcycle and could have been in a position to see the collision. The defendant argued that the testimony of Ellis and Cook would be duplicative and that, due to the way that passengers on motorcycles are seated, Washington was not in a position to see anything. The court granted the state’s motion and noted that the defendant was allowed to make similar arguments in rebuttal.

On March 8,2007, the jury returned a verdict of guilty as to the third charge of reckless endangerment but was deadlocked on the first and second charges of manslaughter in the first degree and misconduct with a motor vehicle. The court declared a mistrial on the first and second counts and accepted the guilty verdict on the count of reckless endangerment. The court then sentenced the defendant to time served, which amounted to approximately fifteen months in pretrial detention. This appeal followed.

I

We begin our analysis with the defendant’s claim that the court improperly denied his request to represent himself because the court failed to canvass him before denying his request. “[T]he United States Supreme Court [has] concluded that the sixth amendment embodies a right to self-representation and that a defendant in a state criminal trial has a constitutional right to proceed without counsel when he voluntarily and intelligently elects to do so.” (Emphasis in original; internal quotation marks omitted.) State v. Flanagan, 293 Conn. 406, 417, 978 A.2d 64 (2009). Practice Book § 44-3 was implemented to ensure that a defendant’s request to represent himself is actually voluntary and intelligent by requiring the court to conduct an inquiry into the defendant’s awareness of the consequences of his request before allowing him to represent himself. Id., 419. The requirement that a court canvass a defendant is not triggered, however, until it has been established that the defendant clearly and unequivocally requested to represent himself. Id., 421. The first piece of the analysis, therefore, is whether the defendant’s request to represent himself was clear and unequivocal.

A

The defendant claims that he clearly invoked his right to represent himself by filing a motion to dismiss counsel with the court and through his statements during the hearing on the motion. In the defendant’s motion to dismiss counsel, he requested that the court remove Schipul and either allow the defendant to proceed pro se or appoint a special public defender to represent the defendant or to serve as standby counsel. In response to questions from the court as to why the defendant wanted to dismiss Schipul as counsel, he stated that he previously made clear that he would handle his case as a self-represented litigant and was “willing to do [so] under the circumstances at this moment and time.” After expressing dismay about the amount of time it was taking to reach trial, the defendant again said, “I’m willing to handle my case and have this case brought to trial.” We do not agree that this was a clear and unequivocal request to represent himself.

“[W]hether the defendant’s request was clear and unequivocal presents a mixed question of law and fact, over which . . . our review is plenary.” State v. Flanagan, supra, 293 Conn. 420. Accordingly, we review the issue of whether the defendant’s request was clear and unequivocal de novo. Id., 420 n.10. “The threshold requirement that the defendant clearly and unequivocally invoke his right to proceed pro se is one of many safeguards of the fundamental right to counsel.” Id., 423. “To invoke his [s]ixth [a]mendment right [to self-representation] under Faretta [v. California, 422 U.S. 806, 95 S. Ct. 2525, 45 L. Ed. 2d 562 (1975)] a defendant does not need to recite some talismanic formula hoping to open the eyes and ears of the court to his request. Insofar as the desire to proceed pro se is concerned, [a defendant] must do no more than state his request, either orally or in writing, unambiguously to the court so that no reasonable person can say that the request was not made.” (Internal quotation marks omitted.) State v. Flanagan, supra, 423-24.

As our Supreme Court previously has observed, however, “[t]he right to counsel and the right to self-representation present mutually exclusive alternatives. A criminal defendant has a constitutionally protected interest in each, but since the two rights cannot be exercised simultaneously, a defendant must choose between them. When the right to have competent counsel ceases as the result of a sufficient waiver, the right of self-representation begins. . . . Put another way, a defendant properly exercises his right to self-representation by knowingly and intelligently waiving his right to representation by counsel. . . . When an accused manages his own defense, he relinquishes, as a purely factual matter, many of the traditional benefits associated with the right to counsel. For this reason, in order to represent himself, the accused must knowingly and intelligently [forgo] those relinquished benefits.” (Internal quotation marks omitted.) State v. Connor, 292 Conn. 483, 508, 973 A.2d 627 (2009).

The defendant did not clearly choose the right to represent himself over the right to be represented by counsel. Rather, he requested, in his motion to dismiss counsel, that he either be permitted to represent himself or be appointed new counsel or standby counsel. Though the defendant stated that he was willing to represent himself, his motion filed with the court suggests that he was open to various forms of representation. In essence, the defendant was attempting to exercise the right to counsel and the right of self-representation simultaneously. Precedent instructs us that absent evidence that the defendant has made a clear choice between the two rights, a court cannot determine that the defendant clearly and unequivocally has requested to represent himself. Id. We, therefore, conclude that the defendant did not clearly and unequivocally request self-representation.

B

The defendant also claims that he was denied the right to represent himself because the court failed to canvass him before deciding his request. Our Supreme Court has reiterated, however, that the court is only required to canvass a defendant after the defendant clearly and unequivocally has requested to represent himself. State v. Flanagan, supra, 293 Conn. 420. Because we conclude that the defendant’s request was not clear and unequivocal, whether the defendant was properly canvassed is moot. We, therefore, do not reach the second prong of the analysis.

II

The defendant next claims that the court improperly restricted his cross-examination of Ringor on three occasions. He contends that the court improperly prohibited him from questioning Ringor about (1) prior speeding tickets and license suspensions, (2) Ringor’s United States citizenship and (3) whether Ringor contemplated filing a lawsuit in connection with the case.

The court’s ruling on proffered testimony is an evidentiary ruling requiring review under the abuse of discretion standard. State v. Santiago, 103 Conn. App. 406, 430, 931 A.2d 298, cert. denied, 284 Conn. 937, 937 A. 2d 695 (2007). “To establish an abuse of discretion, it must be shown that restrictions imposed on cross-examination were clearly prejudicial. ” (Internal quotation marks omitted.) State v. Oliphant, 115 Conn. App. 542, 550, 973 A.2d 147, cert. denied, 293 Conn. 912, 978 A.2d 1113 (2009). This court will “make every reasonable presumption in favor of upholding the trial court’s ruling, and only upset it for a manifest abuse of discretion. ” (Internal quotation marks omitted.) State v. Santiago, supra, 430. After analyzing the court’s restrictions on cross-examination, we find no abuse of discretion.

The defendant first claims that the court improperly restricted him from questioning Ringor about his prior speeding convictions and license suspensions because they would be irrelevant and, moreover, with respect to speeding convictions, any probative value was outweighed by the danger of prejudice. The court noted that it already had ruled on the issue in this case and found that license suspensions were not admissible in cases of motor vehicle accidents as evidence of character, and, therefore, of fault. This reasoning is predicated on Connecticut Code of Evidence § 4-5, which prohibits the admission of certain evidence to show bad character or criminal tendencies. We find that the defendant was not clearly prejudiced and that no abuse of discretion occurred because the court properly was complying with the Connecticut Code of Evidence.

The defendant next claims that the court improperly excluded testimony from Ringor pertaining to Ringor’s status as a United States citizen, which the defendant contends had the potential to show a motive to lie to avoid possible felony charges that could lead to his deportation. “The proffering party bears the burden of establishing the relevance of the offered testimony. Unless a proper foundation is established, the evidence is irrelevant.” (Internal quotation marks omitted.) State v. Gaskin, 116 Conn. App. 739, 748, 977 A.2d 681 (2009). The court entertained the theory that the testimony would manifest Ringor’s motive to lie but found it too far-fetched to bolster the defendant’s argument. In support, the court provided the logical reasoning that people, in general, avoid felony charges and that not being a United States citizen does not heighten the desire to avoid such charges. We agree and conclude that the defendant was not clearly prejudiced by this ruling.

Finally, the defendant claims that the court improperly restricted him from questioning Ringor about whether Ringor contemplated filing a lawsuit in regard to the accident. This issue, however, was not raised at trial, and “[appellate courts] will not consider claimed errors on the part of the trial court unless it appears that the question was distinctly raised at the trial and was ruled upon and decided by the trial court . . . .” (Internal quotation marks omitted.) State v. Groomes, 232 Conn. 455, 465, 656 A.2d 646 (1995). Accordingly, we decline to review this claim.

Ill

Finally, the defendant argues that the court improperly granted the state’s motion to make a missing witness argument. Specifically, the defendant contends that the state offered no proof that the witnesses, Cook, Ellis and Washington, actually were available to testify. Further, the defendant asserts that even if the witnesses had been available, the state failed to offer proof of their testimony and how it would have been detrimental to his case. We conclude that although the court abused its discretion by allowing the missing witness argument, the argument did not deprive the defendant from receiving a fair trial.

We review the court’s decision allowing the state to include a missing witness argument in its closing argument for abuse of discretion. State v. Cruz, 71 Conn. App. 190, 210-11, 800 A.2d 1243, cert. denied, 261 Conn. 934, 806 A.2d 1067 (2002). “It is within the discretion of the trial court to limit the scope of final argument . . . .” (Internal quotation marks omitted.) State v. Saunders, 114 Conn. App. 493, 505 n.12, 969 A.2d 868, cert. denied, 292 Conn. 917, 973 A.2d 1277 (2009). “The broad discretion vested in trial courts by [State v. Malave, 250 Conn. 722, 737 A.2d 442 (1999), cert. denied, 528 U.S. 1170, 120 S. Ct. 1195, 145 L. Ed. 2d 1099 (2000)] mirrors the general standards regarding the trial court’s ability to limit closing argument. [T]he scope of final argument lies within the sound discretion of the court . . . subject to appropriate constitutional limitations.” (Internal quotation marks omitted.) State v. Gaskin, supra, 116 Conn. App. 757. We first “determine whether the trial court abused its discretion in light of the information before the court when it ruled on the motion. If there was such an abuse of discretion, the reviewing court must determine whether the defendant has established that, in light of the totality of evidence at trial and the trial court’s subsequent instructions to the jury, the impropriety constituted harmful error.” State v. Davis, 286 Conn. 17, 53-54, 942 A.2d 373 (2008) (Katz, J., concurring).

A

We first assess whether the court abused its discretion in granting the state’s motion to make a missing witness argument. Either party in a criminal case may make “appropriate comment, in closing arguments, about the absence of a particular witness, insofar as that witness’ absence may reflect on the weakness of the opposing party’s case. ... So long as counsel does not directly exhort the jury to draw an adverse inference by virtue of the witness’ absence . . . .” State v. Malave, supra, 250 Conn. 739. As justification for its request, “counsel must demonstrate that such witness was available to testify, set forth the substance of the testimony that such witness would have given had he been called to the witness stand and explain how his testimony would have been detrimental to the [opposing party’s] case. Evidence that would have been merely cumulative or of no consequence to a reasonable assessment of the [opposing party’s] case, for example, would not warrant such an argument.” State v. Mungroo, 104 Conn. App. 668, 677, 935 A.2d 229 (2007), cert. denied, 285 Conn. 908, 942 A.2d 415 (2008). After hearing the party’s justification, the court retains broad discretion to allow or to preclude either party from making such a comment in its closing statement. State v. Malave, supra, 740.

When proving availability, counsel seeking to make the missing witness argument must offer evidence to support the witness’ availability and the court must make a finding that the witness was actually available to testify. Raybeck v. Danbury Orthopedic Associates, P.C., 72 Conn. App. 359, 365, 805 A.2d 130 (2002). For example, counsel can “serve a subpoena on that witness and put the subpoena in evidence to show that that person was available or, for instance ... [in a case where] the wife is the passenger. The husband is the plaintiff. The question is who had the red light. The husband doesn’t call the wife as a witness. Then the husband’s on the witness stand and [the attorney says], by the way, where’s your wife? [The husband responds] [w]ell, she’s home. Established availability.” (Internal quotation marks omitted.) Id., 367 n.4, quoting Conn. Joint Standing Committee Hearings, Judiciary, Pt. 5, 1998 Sess., p. 1564, remarks of Robert Adelman on behalf of the Connecticut Trial Lawyers Association.

In the present case, when asked about the availability of the witnesses, the prosecutor informed the court that he had asked Howard and Hutchings, two other witnesses, if Ellis and Cook were in the area and available to testify, and they indicated that they were. There is no testimony from either witness, however, that they knew of Ellis’ or Cook’s availability. Further, at the hearing on the motion, the court asked the state about the availability of Washington, but the state provided no answer. The state did not establish that any of the three witnesses included in the missing witness argument were actually available to testify. See Raybeck v. Danbury Orthopedic Associates, P.C., supra, 72 Conn. App. 367-68 (holding that counsel must prove witnesses’ availability through evidence presented at trial). We, therefore, conclude that the court abused its discretion in allowing the state to make a missing witness argument. Consequently, we now turn to the second part of our analysis, which is whether the abuse of discretion constituted harmful error.

B

“The dispositive question in harmful error analysis is whether we have a fair assurance that the defendant received a fair trial.” State v. Davis, supra, 286 Conn. 55 (Katz, J., concurring). This may be determined by considering “whether the jury’s verdict was substantially swayed by the error.” State v. Sawyer, 279 Conn. 331, 357, 904 A.2d 101 (2006) (en banc). The thrust of the standard is to look to the effect of the error and to determine if it had little to no impact on the defendant’s conviction. Id., 355-57.

The gravamen of the defendant’s defense was that Ringor moved his vehicle into the left lane without ensuring that the lane was clear, collided with the defendant and caused the accident. The state’s missing witness argument consisted of a few brief sentences commenting on the amount of evidence supporting the defendant’s contention that Ringor’s car went into the left lane. Howard testified that he was driving a motorcycle alongside the defendant and saw Ringor move into the defendant’s lane and cause the accident. The state’s reference to Washington’s absence was weak because she was on Howard’s motorcycle, so it is as likely that the jury inferred that her testimony would have supported Howard’s testimony as it is that the jury assumed it would contradict it. Further, the state did not present any evidence to the jury that Washington actually was available to testify and that the defendant purposefully did not call her as a witness because he preferred her to be absent.

Further, Cook and Ellis were in the car with Hutch-ings, who testified that he lost sight of the motorcycles on the highway. The state’s comment that Cook and Ellis did not testify was likely nugatory because Hutch-ings, the driver of the car that they were in, testified that he had lost sight of the motorcycles and did not see the accident. His testimony was used mainly to establish the speed of the motorcycles. It is, therefore, unlikely that the jury would have inferred that the two missing witnesses in the car would have provided testimony adverse to the defendant regarding the witnesses’ observation of the accident.

Finally, the court specifically informed the defendant that he was welcome to include an argument in his closing statement rebutting the inference that he did not call these three witnesses to testify because they would have been harmful to his case. The defendant, however, neglected to do so. This leads us to believe that, at the time of trial, the defendant did not view the missing witness argument as being particularly damaging.

In light of all of the evidence, we conclude that the brief argument “ ‘did not substantially affect the verdict.’ ” State v. DeJesus, 288 Conn. 418, 476 n.38, 953 A.2d 45 (2008). Therefore, the error was harmless.

The judgment is affirmed.

In this opinion the other judges concurred.

       At the motion hearing, the prosecutor, Schipul and the defendant agreed that the defendant originally requested to represent himself, was canvassed properly and was allowed to proceed. His standby counsel was originally David Abbamonte, but during the course of the proceedings he died and Schipul was appointed standby counsel. During a previous motion hearing, it became apparent that the defendant did not have the funds or ability to hire expert witnesses, as he wanted to do, and consequently agreed to have Schipul appointed as counsel.

       Section 4-3 of the Connecticut Code of Evidence provides: “Relevant evidence may be excluded if its probative value is outweighed by the danger of unfair prejudice or surprise, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time or needless presentation of cumulative evidence.”

       Practice Book § 44-3 provides: “A defendant shall be permitted to waive the right to counsel and shall be permitted to represent himself or herself at any stage of the proceedings, either prior to or following the appointment of counsel. A waiver will be accepted only after the judicial authority makes a thorough inquiry and is satisfied that the defendant:
      “(1) Has been clearly advised of the right to the assistance of counsel, including the right to the assignment of counsel when so entitled;
      “(2) Possesses the intelligence and capacity to appreciate the consequences of the decision to represent oneself;
      “(3) Comprehends the nature of the charges and proceedings, the range of permissible punishments, and any additional facts essential to a broad understanding of the case; and
      “(4) Has been made aware of the dangers and disadvantages of self-representation.”

       Although titled “Motion to Dismiss Counsel,” the defendant’s handwritten motion to dismiss provides in relevant part: “I conclude that the court should either [djismiss [ajttomey Schipul as [the] defendantf’s] counsel and allow [the] defendant to file [pro se; Practice Book § 44-3;] or appoint a special public defender as counsel or standby [counsel. Practice Book § 44-4].”

       The defendant asked Ringor a series of questions outside the presence of the jury regarding Ringor’s knowledge of any lawsuit connected with the accident, conversations he had with attorneys and insurance agents, and ownership of the car Ringor was driving. The court commented that none of Ringor’s answers seemed relevant but that the matter of a lawsuit could be revisited after further discovery. The court then allowed the defendant to question Ringor, in the presence of the jury, on the two points. Schipul specifically asked to question him about whether he was concerned about being blamed for the accident and who was the owner of the car involved in the accident. Schipul then continued with cross-examination and made no further objections or requests.


author: DiPENTIMA, J.

text:
    ANDREW GENGARO v. CITY OF NEW HAVEN
    (AC 29947)
    Bishop, DiPentima and Berdon, Js.

      Submitted on briefs September 14
    officially released December 29, 2010

      Frank F. Aiello filed a brief for the appellant (plaintiff).

      Audrey C. Kramer, assistant corporation counsel, filed a brief for the appellee (named defendant).

      J. William Gagne, Jr., and Kimberly A. Cuneo, filed a brief for the appellee (defendant Local 3144, AFSCME, AFL-CIO).
   Opinion

DiPENTIMA, J.

The plaintiff, Andrew Gengaro, appeals from the judgment rendered by the trial court in favor of the defendants, the city of New Haven (city) and Local 3144, AFSCME, AFL-CIO (union). On appeal, the plaintiff claims that the court improperly granted the defendants’ motions for summary judgment because it failed to consider all of the relevant factors underlying the plaintiff’s claim of undue influence in determining whether there were material facts in dispute. We affirm the judgment of the trial court.

The following facts and procedural history are not in dispute. The city employed the plaintiff and assigned him to the city’s livable cities initiative department (department). He was a dues paying member of the union. In February, 2004, the plaintiff was notified that he had been suspended indefinitely from his employment with the city pending an investigation into allegations of sexual harassment and inappropriate personal behavior. By certified letter dated March 16, 2004, the city notified the plaintiff that a pretermination hearing had been scheduled for March 26, 2004.

Subsequent to the pretermination hearing, the city and the union met for negotiations. They arrived at a confidential settlement agreement that called for the plaintiffs resignation in return for a payment of $7500, full payment of accrued vacation and sick pay, two months additional medical coverage and a promise by the city not to oppose any claim by the plaintiff for unemployment compensation. The agreement also provided that the plaintiff would not discuss publicly the terms of the agreement or the circumstances surrounding the plaintiffs employment. Both the city and the plaintiff also agreed not to make disparaging remarks publicly about each other or the circumstances surrounding the plaintiffs employment and separation from employment. The plaintiff alleged that the city and the union told him that if he did not sign the agreement, his employment would be terminated and he would not receive any of the benefits negotiated in the agreement. By signing the settlement agreement, the plaintiff acknowledged that he was advised to consult with an attorney regarding the agreement and the release of claims contained therein, that he had at least twenty-one days to consider the terms and decide whether to execute the agreement and that he could revoke the agreement within a seven day period after he had signed the agreement. The plaintiff signed the settlement agreement on June 9, 2004.

On April 8, 2005, the plaintiff filed a complaint requesting declaratoiy relief against the city. On September 19, 2005, the plaintiff filed an amended complaint, adding the union as a defendant. In the amended complaint, the plaintiff claimed that the city told him that if he did not sign the agreement, his employment would be terminated. The plaintiff also claimed that the union told him that it had conducted its own independent investigation and that if he did not sign the agreement, the union would not represent his interests any longer, including representation at any arbitration proceeding. The plaintiff also alleged that “[a]t the time of the ultimatum . . . [he had] . . . serious financial difficulties . . . serious medical problems, and corresponding medical bills; was a care provider to an elderly family member who was a stroke survivor; would not have had the benefit of any further representation by his union; and would have seen embarrassing allegations made public; and therefore, the [p]laintiff s state of mind at the time he signed the agreement was that he had no reasonable alternative but to acquiesce to the [city’s] ultimatum and accept the settlement agreement.” The plaintiff also alleged in his complaint that the city breached certain sections of the agreement that were related to discussion of the settlement. More specifically, he claimed that “ ‘Andrew [J.] Rizzo [Jr.], executive director of the department], at a department-wide staff meeting, offered an open door to any employee who felt a need to discuss the plaintiffs situation.’ ”

On May 10, 2007, the city filed a motion for summary judgment on the grounds that (1) there was no dispute of material fact as to whether the plaintiff was subject to undue influence and (2) the plaintiff could not accept benefits under a contract fairly made and at the same time question its validity. On July 24, 2007, the union filed a motion for summary judgment on identical bases. Both motions were accompanied by two sworn affidavits filed in support of both defendants’ motions: a sworn affidavit by Emmet P. Hibson, Jr., director of the city’s office of labor relations, and a sworn affidavit by Rizzo. The defendants’ motions also were accompanied by a copy of the settlement agreement. The plaintiff filed nearly identical objections to both of the defendants’ motions for summary judgment. In these objections, the plaintiff asserted that (1) there were questions of fact as to whether the plaintiff was subject to undue influence when he entered into the settlement agreement and (2) even if the settlement agreement was deemed enforceable, the terms of such an agreement would be a question of fact. The only documents submitted by the plaintiff with the opposition to the motions for summary judgment were his own identical sworn affidavits. The plaintiffs affidavits did not address the surrounding circumstances that were stated in his complaint. In fact, the plaintiffs affidavits focused on the claim that he was never presented personally with evidence gathered from the defendants’ investigations and that the defendants offered him a settlement in lieu of pursuing the termination of his employment, which he referred to as an “ultimatum . . . .”

The court granted the motions for summary judgment as to both defendants in May, 2008. In its decision, the court discussed extensively all affidavits, the agreement itself, as well as the relevant pleadings. The court found that “the mere fact that the city indicated it would terminate [the plaintiffs employment] if he did not sign the agreement without more cannot be considered the exercise of undue influence.” The court also found that “[t]hese bare-boned facts alone do not rise to the level which would permit the court to conclude that the city had such control over the situation [the plaintiff] was faced with that his ‘free agency’ was destroyed and he was ‘constrained’ to do what he would not otherwise have done.”

As to the plaintiffs second claim, which is that Rizzo’s statements constituted a breach of the agreement by the city, the court found that “apart from [a] mere statement in the brief of the plaintiff, [the claim] is not supported by any affidavit or documentation.” The court went on to note that the city did submit an affidavit rebutting this claim. On the basis of the evidence on the record, the court granted both defendants’ motions for summary judgment. This appeal followed.

The standard for reviewing a court’s rendering of summary judgment is well established. “Practice Book § 17-49 provides that summary judgment shall be rendered forthwith if the pleadings, affidavits and any other proof submitted show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. In deciding a motion for summary judgment, the trial court must view the evidence in the light most favorable to the nonmoving party. . . . The party moving for summary judgment has the burden of showing the absence of any genuine issue of material fact and that the party is, therefore, entitled to judgment as a matter of law. . . .

“[A] party opposing summary judgment must substantiate its adverse claim by showing that there is a genuine issue of material fact together with the evidence disclosing the existence of such an issue. . . . It is not enough ... for the opposing party merely to assert the existence of such a disputed issue. Mere assertions of fact . . . are insufficient to establish the existence of [an issue of] material fact and, therefore, cannot refute evidence properly presented to the court [in support of a motion for summary judgment]. . . .

“On appeal, we must determine whether the legal conclusions reached by the trial court are legally and logically correct and whether they find support in the facts set out in the memorandum of decision of the trial court. . . . Our review of the trial court’s decision to grant [a] defendant’s motion for summary judgment is plenary.” (Citations omitted; internal quotation marks omitted.) Boyne v. Glastonbury, 110 Conn. App. 591, 595-96, 955 A.2d 645, cert. denied, 289 Conn. 947, 959 A. 2d 1011 (2008).

The plaintiff claims that the court improperly granted the defendants’ motions for summary judgment because the court failed to consider all of the relevant factors he presented in determining whether there were material facts in dispute as to whether elements of undue influence were present. We do not agree.

Both defendants filed two affidavits and a copy of the settlement agreement in support of their motions for summary judgment. In his affidavit, Hibson attested that the plaintiff would have been entitled to have his grievance regarding the termination of his employment heard in arbitration and that the city was “ready, willing and able to proceed” with arbitration. Hibson also stated that the plaintiff had contacted the city’s office of labor relations several times to confirm that payments pursuant to the agreement would be forwarded to the plaintiff. He also affirmed that the plaintiff actually received the benefits agreed to in the settlement. The confidential settlement agreement itself stated that by signing, the plaintiff was acknowledging that he was advised to consult with an attorney, that he had at least twenty-one days to consider the terms and to decide whether to execute the agreement and that he could revoke the agreement within a seven day period after he had signed the agreement. In his opposition to the motions for summary judgment, the plaintiff attested in his affidavits that “but for [the union’s and the city’s] ultimatum[s],” he would have challenged the termination of his employment in an arbitration hearing. The plaintiff offered no evidence raising an issue of material fact to support a claim of undue influence.

“Our law has long been clear that a ‘compromise agreement ... if free from fraud, mistake or undue influence ... is conclusive between the parties.’ ” Doherty v. Sullivan, 29 Conn. App. 736, 741, 618 A.2d 56 (1992). The plaintiff in this case claims that he was under undue influence when he signed the settlement agreement with the city. In Connecticut, “[u]ndue influence is the exercise of sufficient control over a person, whose acts are brought into question, in an attempt to destroy his free agency and constrain him to do something other than he would do under normal control. ... It is stated generally that there are four elements of undue influence: (1) a person who is subject to influence; (2) an opportunity to exert undue influence; (3) a disposition to exert undue influence; and (4) a result indicating undue influence. . . . Relevant factors include age and physical and mental condition of the one alleged to have been influenced, whether he had independent or disinterested advice in the transaction . . . consideration or lack or inadequacy thereof for any contract made, necessities and distress of the person alleged to have been influenced, his predisposition to make the transfer in question, the extent of the transfer in relation to his whole worth . . . active solicitations and persuasions by the other party, and the relationship of the parties.” (Citations omitted; internal quotation marks omitted.) Pickman v. Pickman, 6 Conn. App. 271, 275-76, 505 A.2d 4 (1986).

The defendants claim that the plaintiff cannot accept benefits under a contract fairly made and at the same time question the contract’s validity. They argue that even if the plaintiff presented sufficient evidence to create a genuine issue of material fact as to whether he was subject to undue influence, his actions in the months that followed his signing of the agreement constituted a ratification of the contract so that he could not, as a matter of law, assert a claim of undue influence in an attempt to void the contract. We agree. Our Supreme Court has addressed the issue of contract ratification in a similar context involving a claim of duress that induced the signing of a severance agreement to terminate employment. In Young v. Data Switch Corp., 231 Conn. 95, 646 A.2d 852 (1994), the defendant informed the plaintiff that his employment was going to be terminated and then sent a letter to the plaintiff that contained the details of the severance plan that the defendant was prepared to offer him. The letter offered to retain the plaintiff on a paid leave of absence for two additional months so that he could “retain [his] right to exercise a significant amount of company stock options.” (Internal quotation marks omitted.) Id., 97. The plaintiff signed the severance agreement. The plaintiff had several further communications with the defendant and eighteen months later brought a claim alleging that he believed that he had been coerced into signing the agreement so that he could retain his stock options and that the agreement should be voided. Id., 98-99. The Supreme Court held: “Section 381 (1) of the Restatement (Second) [of Contracts] provides that ‘the power of a party to avoid a contract for . . . duress ... is lost if, after the circumstances that made it voidable have ceased to exist, he does not within a reasonable period of time manifest to the other party his intention to avoid it.’ As a general matter, comment (a) to § 381 provides that ‘what time is reasonable depends on all the circumstances, including the extent to which the delay was or was likely to be prejudicial to the other party . . . .’ Comment (a) to § 381 adds, however, that ‘[o]rdinarily, if the party with the power of avoidance retains during the delay something that he has received from the other party, avoidance will be precluded by the rule stated in § 380.’ Section 380 (1) of the Restatement (Second), in turn, provides that ‘[t]he power of a party to avoid a contract for . . . duress ... is lost if, after the circumstances that made the contract voidable have ceased to exist, he . . . acts with respect to anything that he has received in a manner inconsistent with disaffirmance.’ Read in its entirety, therefore, the [Restatement equates the retention of benefits with ‘delay [that is] prejudicial to the other party’ and imposes strict time constraints on the avoidance for duress under such circumstances.” Young v. Data Switch Corp., supra, 101-102.

“[Ratification of a voidable contract is ordinarily a matter of intent. ... As the plaintiff acknowledges, however, intent may be inferred from silence as well as from affirmative acts. . . . The question necessarily becomes, therefore, whether the trial court abused its discretion in concluding that, as a matter of law, the plaintiff could no longer disaffirm the severance agreement in this case.” (Citations omitted.) Id., 102. The court in Young cited approvingly the case law of other jurisdictions, which demonstrates that “the dis-positive question is not why the plaintiff chose not to disaffirm a contract that is voidable for duress, but whether, once the duress had ceased, he had the opportunity to do so. These cases hold, in accordance with the Restatement, that ratification results, as a matter of law, ‘if the party who executed the contract under duress accepts the benefits flowing from it or remains silent or acquiesces in the contract for any considerable length of time after opportunity is afforded to annul or avoid it.’ ”Id., 103. The time elapsed between the signing of the contract and the lawsuit in Young was eighteen months, but the court approvingly cited cases from other jurisdictions in which the time period at issue was two, three, five, ten, eleven and eighteen months. Id.

The plaintiff in this case brought an action to void the agreement because of undue influence, not duress, but the two concepts are related. “Because of their similarities, the concepts of duress and undue influence are often discussed in conjunction with each other. See 25 Am. Jur. 2d, Duress and Undue Influence §§ 1 through 49 (1966). Although distinctions exist between the two concepts, contracts obtained by duress or undue influence are deemed invalid because in both circumstances the free assent of one of the parties in making the contract is lacking. . . . Moreover, acts of compulsion or influence by one party on another giving rise to a claim of duress or a claim of undue influence must be operative at the time the contract is entered into. Shlensky v. Shlensky, [369 Ill. 179, 186, 15 N.E.2d 694 (1938)]; 17 C.J.S., Contracts § 180 (c) (1963); 25 Am. Jur. 2d, [supra, § 13]. Because both must be operative at the time the contract is entered into, it is not [always] necessary . . . that we distinguish between duress and undue influence.” (Citations omitted.) Jenks v. Jenks, 34 Conn. App. 462, 468, 642 A.2d 31 (1994), rev’d on other grounds, 232 Conn. 750, 657 A.2d 1107 (1995). Therefore, the reasoning set forth in Young can be applied to this case.

In this case, the plaintiff waited ten months to file the first complaint against the city, and, as is reflected in the record, the plaintiff made several calls to the city to ensure that he would continue receiving payments pursuant to the agreement in the months after the agreement was signed. Further, the plaintiff did receive the benefits that were bargained for in the agreement. As the court stated in its memorandum of decision granting the motions for summary judgment: “How can a contractual arrangement be declared null and void when one of the parties has received the major part of the benefits contracted for?” Therefore, because the plaintiff had seven days to rescind, pursuant to the terms, after the signing of the agreement, took actions to confirm that he would receive the benefits of the agreement, accepted and enjoyed the benefits of the agreement and did not bring an action claiming that the agreement was void until at least ten months after it was signed, he effectively ratified the agreement, and, therefore, the agreement cannot, as a matter of law, be voided due to undue influence.

Accordingly, the defendants were entitled to judgment as a matter of law, and the court properly rendered summary judgment in this case.

The judgment is affirmed.

In this opinion the other judges concurred.

       As the court, noted in its memorandum of decision: “Section 8 (c) states that ‘the city agrees that it will not in a public forum or in the media make any disparaging remarks about [the plaintiff], or the circumstances surrounding his employment and/or his separation from employment from the city.’ The plaintiff then refers to § 8 (a) of the agreement which explicitly applies to [the plaintiff] only and says that he shall not ‘in any manner publish, publicize, disclose or otherwise make known or permit or cause to be made known to any third person the terms and conditions of this agreement.’ ‘Third person’ is defined as ‘members or [the plaintiffs] nonim-mediate family, any past or present employees of the city or any member of such employee’s family, union, association or group.’
      “The immediate problem for the plaintiff is how his claim that the parties had an ‘understanding’ that paragraph 8 (a) of the contract would apply to the city could be advanced without violating the parol evidence rule. The language of that paragraph is clear and unambiguous in stating that it applies to [the plaintiff] and not to any other party to the agreement.”

       Both defendants raised this as an alternate argument in the memoranda of law in support of their motions for summary judgment, as well as on appeal.

       The defendants’ primary claim on appeal is that there was not sufficient evidence to support the claim of undue influence. The court granted the motions for summary judgment on the ground that there were not sufficient facts to create a genuine issue of material fact, which is required to support a claim of undue influence. Because we conclude that the plaintiff ratified the agreement and cannot, as a matter of law, void the agreement on the basis of undue influence, we do not address this argument. Cf. Hopkins v. O’Connor, 282 Conn. 821, 827, 925 A.2d 1030 (2007) (“[w]here the trial court reaches a correct decision but on mistaken grounds, this court has repeatedly sustained the trial court’s action if proper grounds exist to support it” [internal quotation marks omitted]).


author: BISHOP, J.

text:
    STATE OF CONNECTICUT v. MARK A. WEED
    (AC 28909)
    Bishop, Robinson and Foti, Js.

      Argued October 28
    officially released December 29, 2009

      James J. Ruane, with whom, on the brief, were James O. Ruane and Sean P. Barrett, certified legal intern, for the appellant (defendant).

      RaheemL. Mullins, deputy assistant state’s attorney, with whom, on the brief, were David I. Cohen, state’s attorney, and Yamini Menon, former deputy assistant state’s attorney, for the appellee (state).
   Opinion

BISHOP, J.

The defendant, Mark A. Weed, appeals from the judgment of conviction, rendered following a jury trial, of operating a motor vehicle while under the influence of intoxicating liquor or drugs in violation of General Statutes § 14-227a. On appeal, the defendant claims that the court improperly (1) admitted his request for counsel as evidence of his refusal to submit to a breath test, (2) instructed the jury regarding consciousness of guilt and (3) admitted evidence of standardized field sobriety tests that had been administered to him prior to his arrest. We affirm the judgment of the trial court.

The jury reasonably could have found the following facts. On August 7, 2005, the defendant spent the day, from approximately 1 p.m. to 7 p.m., on his boat on Long Island Sound with his friend, Chris Rysz. Over the course of the afternoon, they consumed a twelve pack of beer, the defendant drinking four beers, Rysz drinking eight. The defendant brought the boat back to his house in Norwalk, where he and Rysz stayed for about one hour, and then the defendant drove Rysz to his house in Danbury. To bring Rysz home, the defendant traveled on Route 7, which is a four lane public roadway with two lanes for northbound travel and two for southbound travel. As he was heading north, the defendant noticed that there was construction taking place on the southbound side of Route 7.

After he dropped Rysz off, the defendant headed south on Route 7 to return to Norwalk. Approaching the construction site from the north, there were warning signs alerting drivers to use caution. Due to the construction in the left lane, the right lane was the only open lane for travel. Approximately one tenth of a mile before the construction site, there was a three to four foot neon orange reflective sign with a large black arrow pointing to the right, ushering traffic into the right lane. Several three foot high orange cones separated the travel lane from the construction, and there were several signs posted informing drivers that fines would be doubled in this area due to the construction. There were also various yellow lights flashing inside the site, and the site itself was lit with several high powered, generator operated lights that stood approximately twelve to fifteen feet high. Approximately twelve people were working at the construction site. The defendant drove into the wrong lane and crashed into one of the large orange signs. He continued driving, swerving toward the construction site. Officer Peter Trahan of the Wilton police department was stationed at the construction site to ensure safety and visibility, and his police truck, with lights flashing, was parked approximately fifty to seventy-five feet north of the construction site. Trahan had to run into the road to avoid being struck by the defendant’s vehicle. The large sign was stuck to the grill of the defendant’s truck, and the truck had knocked over one of the traffic cones. After the defendant swerved back into the right lane, Trahan ordered him to drive into a parking lot to the right of the construction site.

When Trahan approached the defendant, who was still in his vehicle, he detected the odor of alcohol and noticed that the defendant’s eyes were glassy and glazed over. The defendant told Trahan that he had been on a boat earlier with a friend and that he had consumed two or three beers. Trahan asked the defendant to get out of the vehicle so he could conduct field sobriety testing. Trahan then administered the horizontal gaze nystagmus test to the defendant. The defendant failed that test. On the basis of the failure of this test, the odor of alcohol and the fact that the defendant had crashed into the construction sign, Trahan concluded that the defendant was intoxicated. Because Trahan was working an off-duty assignment, he radioed police headquarters to request an on-duty officer to complete the field sobriety testing on the defendant.

Shortly thereafter, Officer Diana Papa arrived on the scene to continue the investigation. When Papa approached the defendant, she noted that the defendant’s clothes were disheveled, his face was red and he smelled of alcohol. When Papa asked the defendant if he had been drinking, he told her that he had had three or four beers. Papa then told the defendant that she would be conducting some field sobriety tests on him. She informed the defendant that she was going to be administering three tests: the horizontal gaze nystag-mus test, the walk and turn test and the one leg stand test. Prior to commencing, Papa ascertained that the defendant was not wearing contact lenses, and she explained each test to the defendant. The defendant indicated that he understood what was required of him to perform each test. The defendant failed all three tests. Papa’s supervising officer, Sergeant Thomas Tunney, observed Papa administer the field sobriety tests and testified that she had done so properly. Tunney also testified that the defendant smelled of alcohol. Consequently, Papa placed the defendant under arrest at 10:32 p.m. and transported him to the Wilton police department.

At the police station, Papa informed the defendant that he would have to submit to a breath test and that he had a right to call an attorney before submitting to the test. He also was informed of the ramifications of a refusal to submit to the test. In response, the defendant asked to call an attorney, which he was permitted to do. The defendant first called the law firm of DePanfilis and Vallerie, LLC, where he left a message. He then requested that he be allowed to call his cousin, attorney Alice McQuade, which he did. When she also did not respond to the defendant’s telephone call, he was then permitted to call and to speak to his girlfriend. After approximately fifteen minutes from the time Papa first asked the defendant to take a breath test, she asked him again if he would submit to the test. The defendant continued to state that he wanted to speak to an attorney. After he was informed that his continued request for counsel, instead of taking the test, would be deemed a refusal, and was notified of the repercussions of such a refusal, the defendant, nevertheless, persisted in his request for an attorney. Papa finally told the defendant that she had to interpret his failure to submit to the test as a refusal. The defendant never took the test.

Following a jury trial, the defendant was convicted of operating a motor vehicle while under the influence of intoxicating liquor or drugs in violation of § 14-227a. Thereafter, the defendant entered a plea of nolo conten-dere on a part B information charging him with having previously committed the offense of operating a motor vehicle while under the influence of intoxicating liquor or drugs in violation of § 14-227a (a) (1) on February 17, 1999. The defendant was sentenced to a term of two years incarceration, execution suspended after six months, 120 days of which was mandatory, and three years probation. This appeal followed.

I

The defendant first claims that the court improperly admitted his request for counsel as evidence of his refusal to submit to a breath test. The defendant’s objection to this evidence at trial was based solely on his contention that the admission into evidence of his request to speak with counsel unreasonably burdened his constitutional right to counsel. It is well settled, however, and the defendant conceded at oral argument before this court, that he had no such constitutional right to counsel at that juncture. S ee Altschul v. Salinas, 53 Conn. App. 391, 394-95, 730 A.2d 1171, cert. denied, 249 Conn. 931, 761 A.2d 751 (1999). We note, as well, that the record fairly reflects that the state introduced evidence of the defendant’s continuing request for counsel not as proof that he refused to take the test but simply as the factual underlayment to his refusal. As aptly noted by the state, a refusal to take a breath test need not be explicit but may occur through conduct. Tompkins v. Commissioner of Motor Vehicles, 60 Conn. App. 830, 832, 761 A.2d 786 (2000). Here, the record is plain and undisputed that the defendant did not agree to submit to the breath test in the approximately fifteen minute interval between the time he was asked to take the test and when the police deemed his failure to take the test a refusal. Accordingly, the defendant’s claim must fail.

II

The defendant next claims that the court improperly instructed the jury regarding consciousness of guilt. Specifically, the defendant claims that the court improperly instructed the jury that the refusal to submit to a breath test could be considered evidence of consciousness of guilt. We are not persuaded.

In instructing the jury, after the court gave general instructions regarding inferences and explained the elements of the charged offense, the court instructed the jury that it could infer consciousness of guilt from the defendant’s refusal to submit to the breath test. The court instructed the jury as follows: “[I]n this case, the state claims that — and has offered evidence, that the defendant refused to submit to a blood, breath or a urine test. Now, under our law, in the circumstances of this case, the defendant is deemed to have given an implied consent to the taking of a blood, breath or urine test at the option of the police officer. Again, the selection of the type of test is for the officer to make. Here, there is evidence that the officer selected a breath test. The issue, then, is not whether the defendant refused any and all tests but whether he refused the selected test. The word refuse is defined as, to show or express unwillingness to do or to comply with. Here, it means to show or express unwillingness to do or comply with the directive of the officer to take a particular test: the breath test. Now, whether the defendant refused the breath test remains a question of fact for you to decide, in accordance with my instructions.

“If you find that the defendant did refuse a breath test, you may draw inferences from that refusal in accordance with my instruction on inferences I gave previously, and one of these inferences concerns the legal principle of consciousness of guilt. In any criminal trial, it’s permissible for the state to show that conduct of the defendant after the time of the alleged offense may fairly have been influenced by the criminal act. That is, the conduct shows a consciousness of guilt. The defendant’s conduct in refusing a breath test, if you find that he did refuse a breath test, might be offered because such conduct tends to show a consciousness of guilt. It does not, however, raise a presumption of guilt. It is up to you as judges of the facts to decide whether the conduct of the defendant reflects consciousness of guilt and to consider such in your deliberations in conformity with these instructions. If you find that the defendant did refuse to submit to such a test, you may make any reasonable inference that follows from that fact. In this regard, you should refer and apply to — apply my previous instruction regarding the drawing of inferences. To be clear, though, the state does not have to prove a refusal as an element of the offense of driving under the influence. It simply permits you to draw inferences in accordance with my earlier instructions. Again, ladies and gentlemen, you may consider all the evidence you saw and heard concerning the defendant’s alleged refusal to submit to the selected test.”

The defendant objected to the court’s instruction regarding consciousness of guilt on the grounds that the instruction did not inform the jury that inferences should be based on probabilities, not possibilities, the legislature has preempted such an instruction by explicitly stating in the statute that the jury can draw any reasonable inference from the refusal if it is found and no adverse inference could be drawn from the assertion of a constitutional right.

During its deliberations, the jury sent a note to the court, asking: “[Is] establishing consciousness of guilt in and of itself sufficient legal grounds to return a guilty verdict?” In response to the jury’s question, the court further instructed the jury as follows: “Establishing consciousness of guilt is not, in and of itself, sufficient grounds — legal grounds — to return a guilty verdict. If you find [that] the defendant refused the breath test— and that is a question of fact for you — you may draw any reasonable inference from that. One of these inferences relates to the defendant’s consciousness of guilt, but it is not a presumption of guilt. It is not even a required inference. It is a permissive inference, which you may draw in accordance with my previous instructions concerning the drawing of inferences.” The defendant again took exception to the court’s instruction regarding consciousness of guilt.

“It has been stated numerous times that consciousness of guilt issues are evidentiary and not constitutional in nature. . . . When a challenge to a jury instruction is not of constitutional magnitude, the charge to the jury is to be considered in its entirety, read as a whole, and judged by its total effect rather than by its individual component parts. . . . [T]he test of a court’s charge is not whether it is as accurate upon legal principles as the opinions of a court of last resort but whether it fairly presents the case to the jury in such a way that injustice is not done to either party under the established rules of law. ... As long as [the instructions] are correct in law, adapted to the issues and sufficient for the guidance of the jury . . . we will not view the instructions as improper.” (Internal quotation marks omitted.) State v. Gonzalez, 106 Conn. App. 238, 253, 941 A.2d 989, cert. denied, 287 Conn. 903, 947 A.2d 343 (2008). “The decision to give a consciousness of guilt instruction is left to the sound discretion of the trial court.” State v. Hinds, 86 Conn. App. 557, 565, 861 A.2d 1219 (2004), cert. denied, 273 Conn. 915, 871 A.2d 372 (2005).

The issue of whether, in a criminal prosecution for a violation of § 14-227a, evidence that the defendant refused to submit to a breath test provides a sufficient basis for a consciousness of guilt charge has not been directly addressed in our appellate case law. Section 14-227a (e) provides that “the court shall instruct the jury as to any inference that may or may not be drawn from the defendant’s refusal to submit to a . . . breath . . . test.” In that statute, the legislature has provided for a permissive inference that the jury may draw from evidence of the fact that the defendant refused to submit to a breath test.

Here, consistent with the statutory language of § 14-227a (e), in instructing the jury on consciousness of guilt, the court did not refer to the defendant’s request to contact an attorney but merely instructed the jury that if it found that the defendant had refused to submit to the breath test, then it could take that refusal as evincing a consciousness of guilt. The court instructed the jury that only if it found that the defendant refused to submit to the test, then the jury “may make any reasonable inference that follows from that fact.” The court further advised the jury that it should refer to the court’s earlier instruction regarding drawing inferences from circumstantial evidence. In addition, when the court recharged the jury as to consciousness of guilt, it reiterated that consciousness of guilt is a permissive and not a required inference. The court clearly stated that it was the jury’s duty to determine whether the defendant’s conduct tended to show a consciousness of guilt and that, even if the jury so concluded, such evidence did not raise a presumption of guilt but, rather, simply may be used by the jury in its deliberations. Thus, when read as a whole, the court’s instruction properly informed the jurors that the defendant’s consciousness of guilt, found by the jury, was a permissive inference that it could draw from his conduct. Because the court repeatedly explained to the jury that consciousness of guilt was only a permissive inference that it could draw only if it determined that the defendant had refused to submit to the breath test, the court’s instruction was well within the parameters of § 14-227a. Accordingly, we conclude that the court’s instruction as to consciousness of guilt was in accordance with the law and that the court did not abuse its discretion.

Even if we were to conclude that the court’s instruction regarding consciousness of guilt was improper, the defendant has failed to prove that the instruction was harmful. “[W]e have often stated that before a party is entitled to a new trial ... he or she has the burden of demonstrating that the error was harmful. ... An instructional impropriety is harmful if it is likely that it affected the verdict.” (Internal quotation marks omitted.) Mahon v. B.V. Unitron Mfg., Inc., 284 Conn. 645, 656, 935 A.2d 1004 (2007). Here, there was ample evidence that the defendant was under the influence of alcohol aside from his refusal to take the breath test. The defendant drove into the wrong lane and crashed into a large reflective construction sign and several traffic cones. He admitted to drinking earlier in the day, failed the field sobriety tests and smelled of alcohol. In fight of this additional evidence, we cannot conclude that the instruction, even if erroneous, likely affected the verdict.

Ill

The defendant finally claims that the court improperly admitted evidence of his performance on standardized field sobriety tests because they were not administered according to recognized protocol. Specifically, the defendant claims that the court improperly admitted evidence of the horizontal gaze nystagmus test that was administered by Papa to the defendant and was not in accordance with the standards set forth by the National Highway Traffic Safety Administration (traffic safety administration). We disagree.

The following additional facts and procedural history are necessary to our resolution of the defendant’s claim. Prior to trial, the defendant filed a motion to suppress evidence of the standardized field sobriety tests administered to him prior to his arrest. Following a hearing on the defendant’s motion, the court denied it, determining that the traffic safety administration standards are not exclusive and that the tests were administered in accordance with state and local standards. The defendant renewed his objection when the evidence of these tests was presented to the jury. The court overruled the defendant’s objection.

“[T]he trial court’s ruling on the admissibility of evidence is entitled to great deference. ... In this regard, the trial court is vested with wide discretion in determining the admissibility of evidence, including issues of relevance and the scope of cross-examination. ., . . Accordingly, [t]he trial court’s ruling on eviden-tiary matters will be overturned only upon a showing of a clear abuse of the court’s discretion. ... In determining whether there has been an abuse of discretion, every reasonable presumption should be made in favor of the correctness of the trial court’s ruling, and we will upset that ruling only for a manifest abuse of discretion.” (Internal quotation marks omitted.) State v. Saucier, 283 Conn. 207, 236-37, 926 A.2d 633 (2007) (Norcott, J., concurring in part).

This court has “consistently expressed [the] view that horizontal gaze nystagmus evidence is the type of scientific evidence that may mislead a jury in the absence of a proper foundation . . . [and has] enunciated [a] three part test that must be satisfied before such evidence is admissible. That test requires that the state (1) satisfy the criteria for admission of scientific evidence, (2) lay a proper foundation with regard to the qualifications of the individual administering the test and (3) demonstrate that the test was conducted in accordance with relevant procedures.” (Citation omitted.) State v. Balbi, 89 Conn. App. 567, 573-74, 874 A.2d 288, cert. denied, 275 Conn. 919, 883 A.2d 1246 (2005). In addition, this court has concluded that because the horizontal gaze nystagmus evidence satisfies the requirements of State v. Porter, 241 Conn. 57, 698 A.2d 739 (1997) (en banc), cert. denied, 523 U.S. 1058, 118 S. Ct. 1384, 140 L. Ed. 2d 645 (1998), the trial court is not required to hold a Porter hearing in every case in which horizontal gaze nystagmus evidence is proffered. State v. Balbi, supra, 576-77. Rather, “[t]he state still must lay a proper foundation with regard to the qualifications of the individual administering the test and demonstrate that the test was conducted in accordance with generally accepted standards such as those specified in the relevant sections of the [traffic safety administration’s] manual.” Id., 577.

Here, the defendant does not claim that Papa was unqualified to administer the field sobriety tests. The defendant contends, instead, that the court improperly admitted the evidence of the horizontal gaze nystagmus test administered to him on the sole ground that Papa did not administer it in accordance with the protocol established by the traffic safety administration. There is no authority, however, for the defendant’s claim that the horizontal gaze nystagmus test must be administered in accordance with the standards set forth by the traffic safety administration. In State v. Popeleski, 291 Conn. 769, 970 A.2d 108 (2009), our Supreme Court affirmed the trial court’s determination that the defendant’s claim that the horizontal gaze nystagmus test had not been performed in accordance with the traffic safety administration’s standards pertained to the weight of the evidence, not its admissibility. Id., 776. In affirming the judgment of the trial court, the Supreme Court implicitly rejected the defendant’s claim that this field sobriety test must be administered in accordance with the protocols of the traffic safety administration.

Because the claim in Popeleski is parallel to the claim made by the defendant in this case, this case is controlled by the Supreme Court’s holding in Popelseki. Like the arresting officer in Popeleski, Papa testified that she had been trained in administering field sobriety tests and interpreting the results of those tests. Papa testified that she received her training through the Wilton police department and the Connecticut police academy.

Additionally, Papa’s testimony demonstrated that her administration of the horizontal gaze nystagmus test had complied substantially with the standards already accepted by this court. In State v. Commins, 83 Conn. App. 496, 504-505, 850 A.2d 1074 (2004), aff'd, 276 Conn. 503, 886 A.2d 824 (2005), this court explained: “To administer the [horizontal gaze nystagmus] test, the officer positions a stimulus approximately twelve to eighteen inches away from and slightly above the subject’s eyes. The stimulus, usually a pen or the officer’s finger, is then moved slowly from the midline of the nose to maximum deviation, the farthest lateral point to which the eyes can move to either side. The officer observes the subject’s eyes as he tracks the stimulus and looks for six clues, three for each eye, to determine whether the subject passes or fails the test. The officer looks for (1) the inability of each eye to track movement smoothly, (2) pronounced nystagmus at maximum deviation and (3) the onset of nystagmus at an angle less than forty-five degrees in relation to the center point. A finding of four clues indicates failure of the test and is a sign of intoxication.” Here, Papa testified that she used her pen as the stimulus, placed it in front of the defendant’s eyes and moved it from side to side and checked for: (1) lack of smooth pursuit, (2) nystagmus at maximum deviation and (3) nystagmus prior to forty-five degrees. Papa testified that she had noticed six clues of intoxication and concluded that the defendant had failed the test and was intoxicated. Here, as in Popeleski, the defendant was given ample opportunity on cross-examination to undermine the weight of this evidence by attempting to show that the officer had not complied with the standards of the traffic safety administration for administering the test. We, therefore, conclude that the court did not abuse its discretion in admitting the evidence of the horizontal gaze nystagmus test and its results.

The judgment is affirmed.

In this opinion the other judges concurred.

       “The horizontal gaze nystagmus test measures the extent to which a person’s eyes jerk as they follow an object moving from one side of the person’s field of vision to the other. The test is premised on the understanding that, whereas everyone’s eyes exhibit some jerking while turning to the side, when the subject is intoxicated the onset of the jerking occurs after fewer degrees of turning, and the jerking at more extreme angles becomes more distinct.” (Internal quotation marks omitted.) State v. Popeleski, 291 Conn. 769, 770 n.3, 970 A.2d 108 (2009).

       “The walk and turn test requires the subject to walk heel to toe along a straight line for nine paces, pivot, and then walk back heel to toe along the line for another nine paces. The subject is required to count each pace aloud from one to nine.” (Internal quotation marks omitted.) State v. Popeleski, 291 Conn. 769, 771 n.4, 970 A.2d 108 (2009).

       “The one leg stand test requires the subject to stand on one leg with the other leg extended in the air for [thirty] seconds, while counting aloud from [one] to [thirty].” (Internal quotation marks omitted.) State v. Popeleski, 291 Conn. 769, 771 n.5, 970 A.2d 108 (2009).

       To the extent that the defendant’s claim on appeal focuses on his assertion that the invocation of his constitutional right to counsel cannot trigger an inference of consciousness of guilt, we need not address that aspect of his claim because no such constitutional right exists at the time of the administration of the breath test.

       The court instructed: “You may draw reasonable inferences from the established facts in this case. The inferences which you draw, however, must not be from a guess upon the evidence, but they must be from a fact or facts which the evidence has established. In drawing inferences from established facts, you should use your reason and your common sense. The inferences which you draw must be logical and reasonable. And any facts, whether inferred or proven directly, which are essential to proof of an element of the offense charged must be proved beyond a reasonable doubt.”

       In State v. Merritt, 36 Conn. App. 76, 647 A.2d 1021 (1994), appeal dismissed, 233 Conn. 302, 659 A.2d 706 (1995), this court.declined to review a similar claim on the ground that it was not raised before the trial court. Id., 96. In State v. McCarthy, 63 Conn. App. 433, 775 A.2d 1013, cert. denied, 258 Conn. 904, 782 A.2d 139 (2001), the defendant was charged with operating a motor vehicle while under the influence of alcohol and assault in the second degree with a motor vehicle, and the trial court instructed the jury that consciousness of guilt could be inferred from the defendant’s refusal to submit to a breath test. Id., 438. The defendant did not claim that the instruction was improper under the circumstances of the case but, rather, assailed the language and the applicability of the instruction to the assault with a motor vehicle charge. Id. This court affirmed the judgment of the trial court. Id., 442.

       General Statutes § 14-227a (e) provides: “Evidence of refusal to submit to test. In any criminal prosecution for a violation of subsection (a) of this section, evidence that the defendant refused to submit to a blood, breath or urine test requested in accordance with section 14-227b shall be admissible provided the requirements of subsection (b) of said section have been satisfied. If a case involving a violation of subsection (a) of this section is tried to a jury, the court shall instruct the jury as to any inference that may or may not be drawn from the defendant’s refusal to submit to a blood, breath or urine test.”