author: DALY, J.

text:
    STANLEY GOODRUM v. COMMISSIONER OF CORRECTION
    (AC 19413)
    Lavery, C. J., and Foti and Daly, Js.

      Argued March 1
    officially released May 8, 2001

      Sandra J. Crowell, deputy assistant public defender, for the appellant (petitioner).

      Denise B. Smoker, assistant state’s attorney, with whom, on the brief, was Michael Dearington, state’s attorney, for the appellee (respondent).
   Opinion

DALY, J.

The petitioner, Stanley Goodrum, appeals from the judgment of the habeas court denying his petition for a writ of habeas corpus. He claims on appeal that the court improperly failed to find that his trial counsel was ineffective because (1) counsel made errors (a) in his cross-examination of a prosecution witness, (b) by failing to request a jury instruction and (c) by failing to take exception to two jury instructions, (2) counsel advised him to plead guilty to one of the charges against him and failed to object properly when evidence of the plea was introduced at trial, (3) counsel failed to raise the petitioner’s drug dependency as a defense at trial and (4) a conflict of interest resulted from counsel’s simultaneous representation of a code-fendant, which the trial court failed to inquire about. We affirm the judgment of the habeas court.

The factual background of this case is set forth in State v. Goodrum, 39 Conn. App. 526, 665 A.2d 159, cert. denied, 235 Conn. 929, 667 A.2d 554 (1995). Therein, on direct appeal, we upheld the petitioner’s conviction of possession of a narcotic substance with intent to sell by a person who is not drug-dependent in violation of General Statutes § 21a-278 (b), possession of marijuana in violation of General Statutes § 2 la-279 (c) and five counts of violation of probation. Thereafter, the petitioner sought a writ of habeas corpus. The court denied his petition in a memorandum of decision dated November 18, 1996.

In each of his claims before the court, the petitioner alleged that his trial counsel had, in some way, been ineffective. Our standard of review of a habeas court’s judgment on ineffective assistance of counsel claims is well settled. “In a habeas appeal, this court cannot disturb the underlying facts found by the habeas court unless they are clearly erroneous, but our review of whether the facts as found by the habeas court constituted a violation of the petitioner’s constitutional right to effective assistance of counsel is plenary.” (Internal quotation marks omitted.) Holley v. Commissioner of Correction, 62 Conn. App. 170, 172, 774 A.2d 148 (2001).

“A criminal defendant is constitutionally entitled to adequate and effective assistance of counsel .... In Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984), the United States Supreme Court established that for a petitioner to prevail on a claim of ineffective assistance of counsel, he must show ‘that counsel’s assistance was so defective as to require reversal of [the] conviction . . . .’ That requires the petitioner to show (1) that counsel’s performance was deficient and (2) that the deficient performance prejudiced the defense. . . . Unless a [petitioner] makes both showings, it cannot be said that the conviction . . . resulted from a breakdown in the adversary process that renders the result unreliable.” (Citations omitted; internal quotation marks omitted.) Minnifield v. Commissioner of Correction, 62 Conn. App. 68, 70-71, 767 A.2d 1262, cert. denied, 256 Conn. 907, 772 A.2d 596 (2001); see Phillips v. Warden, 220 Conn. 112, 132, 595 A.2d 1356 (1991).

“The first component of the Strickland test, generally referred to as the performance prong, requires that the petitioner show that counsel’s representation fell below an objective standard of reasonableness. ... In Strickland, the United States Supreme Court held that [jjudicial scrutiny of counsel’s performance must be highly deferential. It is all too tempting for a [petitioner] to second-guess counsel’s assistance after conviction or adverse sentence, and it is all too easy for a court, examining counsel’s defense after it has proved unsuccessful, to conclude that a particular act or omission of counsel was unreasonable. ... A fair assessment of attorney performance requires that every effort be made to eliminate the distorting effects of hindsight, to reconstruct the circumstances of counsel’s challenged conduct, and to evaluate the conduct from counsel's perspective at the time. Because of the difficulties inherent in making the evaluation, a court must indulge a strong presumption that counsel’s conduct falls within the wide range of reasonable professional assistance; that is, the [petitioner] must overcome the presumption that, under the circumstances, the challenged action might be considered sound trial strategy. . . . [C]oun-sel is strongly presumed to have rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment.” (Citation omitted; internal quotation marks omitted.) Minnifield v. Commissioner of Correction, supra, 62 Conn. App. 71-72.

“Even if a petitioner shows that counsel’s performance was deficient, the second prong, or prejudice prong, requires that the petitioner show that there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.” (Internal quotation marks omitted.) Id., 72. Therefore, “[a] habeas court deciding an ineffective assistance of counsel claim need not address the question of counsel’s performance, if the claim may be disposed of on the ground of an insufficient showing of prejudice.” Williams v. Commissioner of Correction, 41 Conn. App. 515, 519, 677 A.2d 1 (1996), appeal dismissed, 240 Conn. 547, 692 A.2d 1231 (1997).

With those standards in mind, we will examine each of the petitioner’s claims in turn. Additional facts will be set forth as necessary.

I

The petitioner first claims that his counsel made a number of errors at trial, each of which amounted to ineffective assistance pursuant to the standards of Strickland.

A

The petitioner claims that his counsel was ineffective because, when cross-examining a state’s witness, he elicited testimony unfavorable to the petitioner. We disagree.

At trial, the state called Detective Thomas Trochio of the New Haven police department in its case-in-chief. Trochio testified that, while conducting surveillance at 265 Dixwell Avenue, he saw the petitioner enter that building carrying a brown paper bag and that, when the petitioner exited the building, he no longer had the bag. The police subsequently entered the building, specifically, the apartment of the petitioner’s brother within, and discovered a large amount of what was later determined to be cocaine and heroin. The drugs were in a brown paper bag bearing a McDonald’s restaurant logo.

On cross-examination, the petitioner’s counsel questioned Trochio about the specifics of the brown paper bag. In answering, Trochio testified that the bag he saw the petitioner carrying looked similar to the bag in which the drugs were found. Particularly, he testified that both bags had color on them. On redirect examination, Trochio added that the bags appeared to be the same size. Similarly, in response to another question from the petitioner’s counsel, Trochio testified that rubber bands found at 265 Dixwell Avenue were of a similar type to those found at 377 Shelton Avenue, where the petitioner lived and was arrested. The petitioner claims that those questions evidence his counsel’s ineffectiveness because they had the effect of causing the jury to draw a connection between the petitioner and the drugs found at his brother’s residence. We are not convinced.

We think it clear that the state, in its direct examination of Trochio, elicited testimony implying that the witness saw a similarity between the bag held by the petitioner and the bag found at 265 Dixwell Avenue and, additionally, between the two sets of rubber bands. We note that it is likely that the jurors, presumably competent individuals, already appreciated the connections the state intended to draw between the various items before the petitioner’s counsel began questioning the witness. Any reinforcement of the idea brought out on cross-examination was minimal or cumulative at best. Further, as we concluded in the petitioner’s direct appeal, there was ample additional evidence before the jury that connected the petitioner to the drugs he was found to have possessed.

The petitioner, therefore, has failed to show that the challenged line of questioning by his counsel prejudiced him in any way. Further, in that Trochio’s answer also conveyed that he was unable to see the McDonald’s logo on the bag carried by the petitioner, the testimony arguably was favorable to the petitioner. Keeping in mind that our standard of review requires us to indulge a “strong presumption” that counsel’s questions were shaped by reasonable professional judgment, without the “distorting effects of hindsight,” they easily could be considered “sound trial strategy.” (Internal quotation marks omitted.) Minnifield v. Commissioner of Correction, supra, 62 Conn. App. 71-72. As such, we cannot say that they amounted to ineffective assistance of counsel. We agree, therefore, with the court’s judgment that the petitioner, in making his claim, failed to satisfy either prong of Strickland.

B

The petitioner also claims that his counsel was ineffective in failing to request a jury instruction on exclusive possession of the drugs at issue pursuant to State v. Alfonso, 195 Conn. 624,490 A.2d 75 (1985). We disagree.

The drugs that the petitioner was convicted of possessing were not found on his person. As a consequence, the state had to establish at trial that he constructively possessed the drugs. Further, the drugs were found in a location to which both the petitioner and other people had access. Our Supreme Court in Alfonso “established the principle that a jury may not infer possession of illegal drugs solely from a person’s presence on premises where drugs are found, if the person is not in exclusive possession of such premises.” State v. Nes-mith, 220 Conn. 628, 635, 600 A.2d 780 (1991). “Where the defendant is not in exclusive possession of the premises where the narcotics are found, ‘it may not be inferred that [the defendant] knew of the presence of the narcotics and had control of them, unless there are other incriminating statements or circumstances tending to buttress such an inference.’ ” State v. Alfonso, supra, 195 Conn. 633. The petitioner claims ineffectiveness in his counsel's failure to request a jury charge explaining that principle.

We addressed that issue in the petitioner’s direct appeal within the framework of State v. Golding, 213 Conn. 233, 239-40, 567 A.2d 823 (1989), because the issue was unpreserved at trial. We held that the third prong of Golding was unsatisfied because “[t]he trial court gave a thorough definition of the terms ‘possession’ and ‘constructive possession’,” and “properly informed the jurors that they could not find that the defendant possessed the narcotic substance unless they concluded that he ‘knew of its presence, and that he exercised dominion and control over it’.” State v. Goodrum, supra, 39 Conn. App. 542. We further held that the charge overall “gave the jury ‘a clear understanding of the elements of the crime charged and the proper guidance to determine if those elements were present.’ ” Id.

Had the petitioner’s counsel requested the exclusive possession charge and the court refused to give it, we would have employed the well settled standard of review on direct appeal to assess whether the charge that was given was adequate. “When reviewing [a] challenged jury instruction ... we must adhere to the well settled rule that a charge to the jury is to be considered in its entirety, 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 . . . whether it fairly presents the case to the juiy 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 . . . [this court] will not view the instructions as improper.” (Internal quotation marks omitted.) State v. Corbin, 61 Conn. App. 496, 507, 765 A.2d 14 (2001).

“In reviewing the charge as a whole, the instructions need not be perfect, as long as they are legally correct, adapted to the issues and sufficient for the jury’s guidance. . . . The test to be applied to any part of a charge is whether the charge, considered in its entirety, presents the case to the jury so that no injustice will result.” (Internal quotation marks omitted.) Id., 507-508. “[I]n appeals involving a constitutional question, [the standard is] whether it is reasonably possible that the jury [was] misled.” (Internal quotation marks omitted.) State v. Valinski, 254 Conn. 107, 119-20, 756 A.2d 1250 (2000).

If we had more explicitly applied the previously discussed standard to the charge given to the jury in this case, we would have arrived at the same result. Because, as we found in the petitioner’s direct appeal, there was ample additional testimonial and circumstantial evidence connecting him to the drugs, it is not reasonably possible that the jury found the element of possession satisfied solely because the petitioner had been present at the location where the drugs were found. The petitioner has not demonstrated that injustice resulted from the lack of an exclusive possession charge and that he was, consequently, prejudiced by his counsel’s failure to request the desired charge.

We agree, therefore, with the court that the petitioner did not receive ineffective assistance of counsel because of the failure of counsel to request a specific charge on exclusive possession of the drugs at issue.

C

Last, the petitioner claims that his counsel was ineffective because he failed to take exception to two jury instructions requested by the state. See footnote 3. We disagree.

The petitioner claims that his counsel was ineffective in failing to except to the court’s giving of a Secondino charge. At trial, the petitioner’s counsel introduced evidence that suggested that the petitioner, at the time he was being watched by the police, was at 265 Dixwell Avenue to visit his son, rather than at his brother’s apartment where the drugs were found. The petitioner’s son apparently lived in a different unit within the same building. It was determined at the close of evidence that the petitioner’s son had been present in the courtroom during the trial. The petitioner’s counsel, however, declined to call him as a witness. As a result, the state requested and the court agreed to give a Secondino charge. The petitioner’s counsel did not except to that charge. Accordingly, in the petitioner’s direct appeal, we limited our review of whether the charge was improper to a search for plain error and found that none existed.

The habeas court held that had the issue been properly preserved and considered by this court in the petitioner’s direct appeal, it would not have resulted in a reversal of the judgment of conviction. In other words, the petitioner failed to show that he suffered prejudice as a result of his counsel’s actions, as required under the second prong of Strickland. We agree with the habeas court.

The prerequisites to the giving of a Secondino instruction are twofold. First, it must be shown that the party who declined to call the witness was in fact able to procure that witness’ physical presence in court, i.e., the witness was available. Second, under the facts of the case, it must be shown that the witness was one whom that party naturally would be expected to have testify. State v. Wood, 208 Conn. 125, 140, 545 A.2d 1026, cert. denied, 488 U.S. 895, 109 S. Ct. 235, 102 L. Ed. 2d 225 (1988); 1 B. Holden & J. Daly, Connecticut Evidence (2d Ed. 1988) § 65 (b). Here, the parties do not dispute that the petitioner’s son was present in court and, therefore, was available to testify. Further, insofar as the petitioner was claiming that he had been at 265 Dixwell Avenue to visit his son and had not been at his brother’s apartment where the drugs were seized, it naturally was expected that he would have called his son to the witness stand to verify the visit. The court’s instruction, therefore, was proper and would have been upheld on appeal had the petitioner’s counsel taken exception to it.

The petitioner also claims error in his counsel’s failure to except to the court’s charge to the jury on consciousness of guilt. See footnote 3. When the petitioner was arrested, he had $307 on his person. The police asked him how much money he had, and the petitioner stated that it was only $30 or $40. At trial, the state introduced testimony regarding that exchange. The court gave the jury an instruction on consciousness of guilt, directing the jurors as to how they might interpret the petitioner’s false statement. As part of the charge, the court used the phrase, “guilty connection,” a phrase that the petitioner claims would have been reversible error had he preserved it for appellate review.

The habeas court held that had the issue properly been preserved and considered by this court in the petitioner’s direct appeal, it would not have resulted in a reversal of the judgment of conviction. As with the Secondino charge, the petitioner failed to show that he suffered prejudice as a result of his counsel’s failure to except to the charge. We agree with the habeas court.

The petitioner cites no case law in support of the proposition that the court’s use of the phrase “guilty connection” in a consciousness of guilt instruction is an error mandating automatic reversal of a judgment of conviction. In fact, our Supreme Court in State v. Francis, 228 Conn. 118, 635 A.2d 762 (1993), rejected that very claim. After stating the well established principle that jury instructions are to be considered in their entirety rather than be critically dissected, the court in Francis held that “the instruction as a whole identified a permissive inference of consciousness of guilt that the jury might draw from the defendant’s false statement, an item of circumstantial evidence,” rather than a forced conclusion. (Internal quotation marks omitted.) Id., 133; see also State v. Adams, 225 Conn. 270, 289, 623 A.2d 42 (1993).

Here, as in Francis, the court’s charge was otherwise “thorough and proper.” State v. Francis, supra, 228 Conn. 133. As with the instruction challenged in Adams, “the language ‘guilty connection’ did not mandate that the jury find that the facts about which the defendant had made the false statements were conclusively established. Rather, the instruction as a whole identified a permissive inference of consciousness of guilt that the jury might draw from the defendant’s false statement, an item of circumstantial evidence.” State v. Adams, supra, 225 Conn. 289. The petitioner makes no attempt to distinguish those cases and to show how his claim would have fared differently on appeal. We therefore agree with the habeas court that the petitioner has failed to show that he was prejudiced by his counsel’s failure to take exception to the trial court’s consciousness of guilt charge.

II

The petitioner next claims that he was denied effective assistance when his counsel advised him to plead guilty before trial to the count of possession of marijuana in violation of § 21a-279 (c), with the understanding that the marijuana would not be introduced into evidence at trial. Further, he claims counsel was ineffective for failing to state the basis of his objection when the marijuana subsequently was introduced into evidence. We disagree.

When searching the residence at 377 Shelton Avenue, where the petitioner was arrested, the police found more than $1550, a jacket similar to one the petitioner was seen wearing earlier in the day at 265 Dixwell Avenue, six packets of marijuana, and a tray containing marijuana residue and seeds. State v. Goodrum, supra, 39 Conn. App. 530. Before trial on the charges of which he was convicted, the petitioner agreed to plead guilty to possession of marijuana. When accepting his plea of guilty on the marijuana charge, the court canvassed the petitioner and advised him of the consequences of the plea, including that it could, subsequently, be admitted into evidence against him. The petitioner, in response, indicated that he understood. At trial, the marijuana was admitted into evidence without the petitioner’s counsel objecting. The petitioner now claims that he agreed to the plea on the incompetent advice of counsel. Particularly, he complains that the seized marijuana was introduced into evidence at his trial when he believed that, because of the plea, it would not be introduced. He argues that the admission of the marijuana changed the outcome of his trial. We disagree.

To prevail on his claim, the petitioner must demonstrate prejudice. He must show that he would not have pleaded guilty on the marijuana charge but for the advice of counsel, that the evidence of the seized marijuana would have been ruled inadmissible at trial but for counsel’s actions and that the admission of the evidence changed the outcome of the trial. That he has not done.

First, the petitioner cannot show that, but for his counsel’s assurance that the marijuana would be inadmissible at trial, he would not have agreed to the guilty plea on the marijuana charge. That is because the court, when accepting the plea, clearly conveyed to him the fact that evidence of his guilty plea could be admitted at trial.

Second, even if the petitioner’s counsel had raised a specific objection, the evidence regarding his possession of the marijuana still would have been admissible at trial. Evidence of other misconduct, as a general rule, is not admissible to show that a criminal defendant likely is guilty of the charges for which he is being tried. State v. Ramsundar, 204 Conn. 4, 15, 526 A.2d 1311, cert. denied, 484 U.S. 955, 108 S. Ct. 348, 98 L. Ed. 2d 374 (1987). Such evidence, “however, may be allowed for the purpose of proving many different things, such as intent, identity, malice, motive or a system of criminal activity.” (Emphasis in original; internal quotation marks omitted.) Id. “Such evidence is admissible if the trial court, in the exercise of its sound discretion, determines that its probative value, for one or more of the purposes for which it is admissible, outweighs its prejudicial impact on the accused.” Id. Here, the trial court properly allowed the state to introduce evidence of the marijuana to establish that the petitioner intended to run a drug operation from 265 Dixwell Avenue and 377 Shelton Avenue.

Last, as we held in the petitioner’s direct appeal, much other evidence was introduced at trial to prove the petitioner’s guilt, including the testimony of police and the petitioner’s brother, and the petitioner’s connections to various items seized at 265 Dixwell Avenue. Therefore, we cannot say that the marijuana was a decisive factor in the verdict.

The evidence concerning the marijuana likely would have been admissible irrespective of whether the petitioner had pleaded not guilty or whether a proper objection had been advanced. Additionally, even if it were not admitted, there remained ample other evidence to support the petitioner’s conviction of possession of a narcotic substance with intent to sell. Therefore, the court correctly determined that the petitioner failed to show that he suffered prejudice as a result of his counsel’s actions, as required by the second prong of Strickland.

Ill

The petitioner next claims that the court improperly failed to find that his counsel was ineffective in failing to advance the petitioner’s drug dependency as a defense at trial. We disagree.

The petitioner was convicted of possession of narcotics with intent to sell by a person who is not drug-dependent in violation of § 21a-278 (b). Drug dependency is an affirmative defense to a charged violation under that statute. Thus, a drug-dependent defendant may be exempt from liability under § 2 la-278 if he or she proves that dependency by a preponderance of the evidence. State v. Hart, 221 Conn. 595, 607-11, 605 A.2d 1366 (1992). A person exempt from liability under § 21a-278 by virtue of drug dependency still may be held liable under § 21a-277, which proscribes similar conduct. “The difference between these statutes is not in their elements but in the potential mandatory minimum sentence provision of § 21a-278 (b). If the defendant does not prove by a preponderance of the evidence that he is drug-dependent, he is subject to the mandatory minimum sentence of § 21a-278 (b), whereas, if he proves that he is drug-dependent, the mandatory minimum sentence does not apply.” State v. Little, 54 Conn. App. 580, 585, 738 A.2d 195 (1999). “The design and effect of § 21a-278 (b) is to punish persons who are not drug-dependent and sell narcotics more severely than drug-dependent persons who sell narcotics.” (Internal quotation marks omitted.) State v. Vasquez, 53 Conn. App. 661, 666, 733 A.2d 856, cert. denied, 250 Conn. 922, 738 A.2d 662 (1999).

The petitioner presented evidence to the habeas court that tended to show that he has been drug-dependent for many years and that he had communicated as much to his counsel. He claimed, therefore, that his counsel was ineffective in failing to put forth his drug dependency as a defense at trial. The habeas court found that, in regard to that claim, the petitioner had failed to satisfy both prongs of Strickland. The court apparently was persuaded by testimony suggesting that counsel’s choice not to pursue a drug dependency defense was a reasonable tactical decision. We agree with the habeas court.

A defendant facing a charge, pursuant to § 21a-278, of possession with intent to sell by a person who is not drug-dependent may pursue different strategies on defense. He may, as did the petitioner, argue that the element of possession was unproven. He may, alternatively or additionally, present evidence of his drug dependency which, if proven, may be rebutted by the state. If the defense is successful to the extent that the state fails to prove the element of possession, the defendant will be fully acquitted. A defendant who fails to negate the state’s proof on the element of possession, but who puts forth unrebutted evidence of his own drug dependency, still may be subject to conviction under § 21a-277, a lesser offense included within § 21a-278. See State v. Bradley, 60 Conn. App. 534, 545, 760 A.2d 520, cert. denied, 255 Conn. 921, 763 A.2d 1042 (2000). If the state proves possession and the defendant fails to prove drug dependency, the defendant faces conviction under § 21a-278.

Faced with those alternative possible outcomes, it is not unreasonable for counsel to choose to defend only on the element of possession, risking a mandatory minimum sentence, but with the aim of full acquittal. Moreover, pursuing both defenses simultaneously is a risky approach when the defendant is being tried before a jury in that there is some degree of inconsistency in acknowledging one’s dependency on drugs but denying having engaged in sales to support that dependency. The risk is that a jury perceiving inconsistency in various defense theories may, as a result, find the entire defense case incredible. State v. Shabazz, 246 Conn. 746, 764-65, 719 A.2d 440 (1998), cert. denied, 525 U.S. 1179, 119 S. Ct. 1116, 143 L. Ed. 2d 111 (1999); State v. Person, 236 Conn. 342, 359, 673 A.2d 463 (1996) (Borden, J., concurring).

Keeping in mind the presumptions on review that “the challenged action might be considered sound trial strategy” and that “counsel . . . made all significant decisions in the exercise of reasonable professional judgment”; (internal quotation marks omitted) Minnifield v. Commissioner of Correction, supra, 62 Conn. App. 71-72; we hold that the petitioner’s counsel’s decision not to pursue a defense of drug dependency at trial did not render his assistance ineffective.

IV

The petitioner’s final claim is that his counsel’s representation of both him and an alleged coconspirator, Ruth Ford, resulted in an actual conflict of interest that adversely affected counsel’s performance and that the trial court’s failure to inquire about the alleged conflict requires automatic reversal of the judgment of conviction. We disagree.

At the time of his arrest, the petitioner was living at 377 Shelton Avenue with his girlfriend, Ford. The police also arrested Ford and charged her with possession of a controlled substance and conspiracy to sell narcotics. The petitioner and Ford retained the same counsel to represent them in their respective cases. The petitioner went to trial first. Counsel obtained continuances on Ford’s case and expended no other efforts on her behalf, since he believed that the state would not pursue the charges against her. At trial, the petitioner called Ford as his first witness. The court, noticing that her attorney of record was also the petitioner’s attorney, called the situation “intolerable” and immediately appointed a special public defender to represent her.

Pursuant to the state and federal constitutions, “a criminal defendant is entitled to be represented by an attorney free from conflicts of interest.” (Internal quotation marks omitted.) State v. Webb, 238 Conn. 389, 417, 680 A.2d 147 (1996). The test for an alleged conflict of interest differs from that for ineffective assistance claims generally. “In a case of a claimed [actual] conflict of interest ... in order to establish a violation of [his constitutional rights], the [petitioner] has a two-pronged task. He must establish (1) that counsel actively represented conflicting interests and (2) that an actual conflict of interest adversely affected his lawyer’s performance.” (Internal quotation marks omitted.) State v. Crespo, 246 Conn. 665, 689, 718 A.2d 925 (1998), cert. denied, 525 U.S. 1125, 119 S. Ct. 911, 142 L. Ed. 2d 909 (1999), citing Phillips v. Warden, supra, 220 Conn. 133.

“Cases involving conflicts of interest usually arise in the context of representation of multiple codefendants by one attorney where the attorney adduces evidence or advances arguments on behalf of one defendant that are damaging to the interests of the other defendant. ... A conflict of interest also arises if trial counsel simultaneously represents the defendant and another individual associated with the incident and that representation inhibits counsel's ability to represent the defendant.” (Citation omitted; internal quotation marks omitted.) State v. Cruz, 41 Conn. App. 809, 812, 678 A.2d 506, cert. denied, 239 Conn. 908, 682 A.2d 1008 (1996). “[0]ne of the principal safeguards of [the right to conflict free representation] is the rule announced by [our Supreme Court] that ‘ [a trial] court must explore the possibility of conflict . . . when it knows or reasonably should know of a conflict ....’” State v. Martin, 201 Conn. 74, 79, 513 A.2d 116 (1986).

When the matter of the dual representation by counsel of both the petitioner and Ford was brought to the trial court’s attention, it conducted an immediate inquiry and appointed a special public defender to represent Ford. Her testimony at the hearing revealed that, although counsel had been retained to represent both Ford and the petitioner, she in fact had never spoken with counsel and had been present only when he conversed with the petitioner. Counsel had requested continuances of her case on her behalf and nothing more. Ford never discussed her case or the petitioner’s case with counsel prior to the appointment of the special public defender to represent her. Her special public defender advised her not to testify, and the court advised her regarding her fifth amendment right not to incriminate herself. Nevertheless, she chose to testify and her testimony was very favorable to the petitioner. Ford’s case subsequently was nolled.

“We have had occasion to point out the caution from the United States Supreme Court that the possibility of conflict is insufficient to impugn a criminal conviction. . . . Cuyler v. Sullivan, [446 U.S. 335, 350, 100 S. Ct. 1708, 64 L. Ed. 2d 333 (1980)]. To demonstrate an actual conflict of interest, the petitioner must be able to point to specific instances in the record which suggest impairment or compromise of his interests for the benefit of another party.” (Emphasis in original; internal quotation marks omitted.) Whyte v. Commissioner of Correction, 53 Conn. App. 678, 689, 736 A.2d 145, cert. denied, 250 Conn. 920, 738 A.2d 663 (1999).

The petitioner in his brief only speculates as to the possibility that his counsel compromised his interest for Ford’s benefit. He argues that counsel would have pursued a drug dependency defense if he were not worried about incriminating Ford, but points to no evidence in the record in support of that assertion. As discussed in part III, counsel’s choice in that regard reflects a reasonable trial strategy. The petitioner also contends that had there been no conflict, counsel would have “questioned] . . . Ford’s involvement” to prevent the petitioner from being “set up as the bad guy.” There is no indication in the record, however, that Ford was involved in the drug operation in any way. As previously mentioned, her case subsequently was nolled. Furthermore, because separate counsel was appointed for Ford prior to her taking the witness stand to testify, the petitioner’s counsel was free to question her in any manner he saw fit. As such, the petitioner has not demonstrated a violation of his right to counsel predicated on an actual conflict of interest.

The judgment is affirmed.

In this opinion the other judges concurred.

       The testimony at issue was as follows:
      “Q. And when you say that [the petitioner] had a brown bag with him when you saw him both instances that day?
      “A. Yes, sir.
      “Q. You weren’t able to identify it being the same bag that you found up there, were you?
      “A. It appeared similar, yes, sir.
      “Q. You couldn’t see ‘McDonald’s’?
      “A. I saw some color. It was not a brown plain bag, there was something on it; I couldn’t make out what it was.”

       “[A] defendant can prevail on a claim of constitutional error not preserved at trial only if all of the following conditions are met: (1) the record is adequate to review the alleged claim of error; (2) the claim is of constitutional magnitude alleging the violation of a fundamental right; (3) the alleged constitutional violation clearly exists and clearly deprived the defendant of a fair trial; and (4) if subject to harmless error analysis, the state has failed to demonstrate harmlessness of the alleged constitutional violation beyond a reasonable doubt.” (Emphasis in original.) State v. Golding, supra, 213 Conn. 239-40.

       Practice Book § 42-16 provides that “[a]n appellate court shall not be bound to consider error as to the giving of, or the failure to give, an instruction unless the matter is covered by a written request to charge or exception has been taken by the party appealing immediately after the charge is delivered. Counsel taking the exception shall state distinctly the matter objected to and the ground of exception. The exception shall be taken out of the hearing of the jury.”

       “The failure to produce a witness for trial who is available and whom a party would naturally be expected to call warrants an adverse inference instruction against the party who would be expected to call that witness. Secondino v. New Haven Gas Co., 147 Conn. 672, 674-75, 165 A.2d 598 (1960)” State v. Santangelo, 205 Conn. 578, 596, 534 A.2d 1175 (1987). We note that subsequent to the petitioner’s criminal trial, our Supreme Court abandoned the “missing witness rule” of Secondino in criminal cases. State v. Malave, 250 Conn. 722, 738, 737 A.2d 442 (1999) (en banc), cert. denied, 528 U.S. 1170, 120 S. Ct. 1195, 145 L. Ed. 2d 1099 (2000). The petitioner does not argue that Malave’s holding should apply retroactively to his case.

       The petitioner also claims that his counsel was ineffective in “inviting” the Secondino charge. We take that to mean that counsel was ineffective in failing to call the petitioner’s son as a witness. “[CJomplaints that trial counsel failed to call certain witnesses are not favored because the presentation of testimonial evidence is a matter of trial strategy. . . . The failure of defense counsel to call a potential defense witness does not constitute ineffective assistance unless there is some showing that the testimony would have been helpful in establishing the asserted defense.” (Citation omitted; internal quotation marks omitted.) Chace v. Bronson, 19 Conn. App. 674, 680-81, 564 A.2d 303, cert. denied, 213 Conn. 801, 567 A.2d 832 (1989). The petitioner made no showing to the habeas court that his son’s testimony would have been helpful in establishing the petitioner’s defense, nor does he make any such argument in his appellate brief.

       With regard to evidence of an accused’s consciousness of guilt, “[i]t is relevant to show the conduct of an accused, as well as any statement made by him subsequent to an alleged criminal act, which may be inferred to have been influenced by the criminal act.” (Emphasis in original; internal quotation marks omitted.) State v. Aleksiewicz, 20 Conn. App. 643, 652, 569 A.2d 567 (1990). When such evidence is admitted and “is sufficient for a jury to infer from it that the defendant had a consciousness of guilt, it is proper for the court to instruct the jury as to how it can use that evidence.” Id. “[A] misstatement of a suspect to police officers is admissible against him in a later prosecution because it permits the jury to draw the reasonable inference that the misstatement was made in an attempt to avoid detection for the crime.” (Internal quotation marks omitted.) State v. Banks, 194 Conn. 617, 621-22, 484 A.2d 444 (1984).

       The full text of the court’s charge on consciousness of guilt was as follows: “There is also another legal principle that applies in this case, I’m not sure it was referred to in argument, called consciousness of guilt. Certain conduct of a person may be considered by you to show a guilty knowledge or consciousness of guilt. When a person is on trial for a criminal offense it is proper to show his conduct as well as any declarations made by him subsequent to the alleged criminal offense which may fairly have been influenced by that act. The state here claims that the [petitioner], Mr. Goo-drum, made certain statements to the police on January 9th, 1992, at the time he was arrested concerning the amount of money on his person. I believe the evidence was from the police officer that [the petitioner] told the police officer he had thirty or forty dollars in his pocket, and when he was arrested and searched it turned out he had over three hundred dollars. The state claims that his statements to the police were false. Now, if you find that 1he [petitioner] did make false statements to the police, you may find, that such statements tend to show a guilty connection by the [petitioner] with the crimes charged. In other words, any statements made by the [petitioner] subsequent to the alleged criminal act, which are shown to be false, you may fairly infer guilty knowledge influenced by the criminal act itself. Such statements when shown to be false are circums! antial evidence of guilty conscience and have independent probative force. But remember, it’s up to you as judges of the facts to decide whether these statements or conduct, on the part of the [petitioner] were, first of all, false, and, second, whether they reflect consciousness of guilt.” (Emphasis added.)

       More accurately, the petitioner’s counsel failed to object on a particular ground. He did raise a general objection, which the court overruled.

       The sentences that the petitioner received for possession of marijuana and the resulting violation of his probation are to ran concurrently to the sentence he received for violating General Statutes § 21a-278 (b). As such, the petitioner does not argue that he received additional prison time because of counsel’s advice on the plea.

       If the petitioner had not pleaded guilty to the marijuana charge, he would have been tried on that charge as well. In that case, the marijuana evidence surely would have been admitted.

       General Statutes § 21a-278 (b) provides in relevant part: “Any person who . . . possesses with the intent to sell or dispense . . . any narcotic substance, hallucinogenic substance other than marijuana, amphetamine-type substance, or one kilogram or more of a cannabis-type substance except as authorized in this chapter, and who is not at the time of such action a drug-dependent person, for a first offense shall be imprisoned not less than five years nor more than twenty years; and for each subsequent offense shall be imprisoned not less than ten years nor more than twenty-five years. . . .”

       At the habeas proceedings, the petitioner’s expert witness, initially, questioned defense counsel's failure to pursue a iirug dependency defense at trial In response to questioning from the state’s attorney and the court, the witness acknowledged the difficulties inherent in such a defense in a jury trial and conceded that it was “entirely possible” that the choice not to pursue it was a tactical decision by defense counsel.

       See Conn. Const., art. I, § 8.

       See U.S. Const., amend. VI.

       Ford, a schoolteacher, shared a home with the petitioner for twelve years at the time of trial and, by all accounts, had nothing to do with the drug operation the petitioner was accused of running.


source: Caselaw Access Project

author: MIHALAKOS, J.

license: Public Domain

text:
    STATE OF CONNECTICUT v. EXEL RIVERA
    (AC 19826)
    Foti, Mihalakos and Daly, Js.
    Argued February 28
    officially released May 8, 2001

      Felix Esposito, for the appellant (defendant).

      Susann E. Gill, senior assistant state’s attorney, with whom, on the brief, were Jonathan C. Benedict, state’s attorney, and Cornelius P. Kelly, assistant state’s attorney, for the appellee (state).
   Opinion

MIHALAKOS, J.

The defendant, Exel Rivera, appeals from the judgments rendered after a jury trial of guilty of two counts of sexual assault in the second degree in violation of General Statutes § 53a-71 (a) (l) and two counts of risk of injury to a child in violation of General Statutes § 53-21 (a) (2). The defendant claims that (1) the trial court improperly granted the state’s motion to consolidate the two cases against him and (2) the prosecutor, during summation, engaged in misconduct. We affirm the judgments of the trial court.

The jury reasonably could have found the following facts. The defendant was arrested on February 2, 1997, and charged with numerous offenses that arose from his sexual assault of four separate victims. Prior to trial, the court granted the defendant’s motion to dismiss the charges in one case after the state had revealed that the complaining witness was unavailable to testify. On October 6, 1998, the court granted the state’s motion to consolidate the three remaining cases. On October 13, 1998, after a jury was selected, the state indicated that it was unable to produce another one of the complaining witnesses. That case, which was dependent on the witness’ complaint, was nolled. After a new jury was empaneled, the defendant was tried pursuant to an amended information from the two remaining cases.

The trial concerned the following facts. The first victim, E, lived with the defendant from April through August, 1996. E was fifteen years old at that time. In late June, 1996, the defendant, the defendant’s brother and E went to Seaside Park. While they were at the park, the defendant supplied E with alcohol. E and the defendant returned to the defendant’s residence after midnight. The defendant then suggested that he and E clean the basement. Once they were in the basement, the defendant told E to take his pants off and to lie down on the floor. E complied, out of fear, and the defendant sodomized him.

In early August, 1996, E and the defendant once again consumed alcohol together. When E saw that the defendant intended to sodomize him again, E told the defendant that he did not want to do it because he was not gay. The defendant replied, “Well, I’ll just rape you.” After the defendant had begun sodomizing him, E told the defendant to stop and to get off of him. The defendant replied that he would keep doing it until E cried. After the defendant was through, E went to the bathroom and saw that he was bleeding. E moved out of the defendant’s house later that same summer.

E reported the assaults in January, 1997. He claimed that he had waited to report them because (1) he was frightened of the defendant, who told him that he had hurt people before, (2) he did not want to believe that the assaults had actually happened and (3) he feared that others might think that he was gay or blame him for what had happened.

The second victim, M, who was thirteen years old at the time, visited the defendant’s home alone on January 3, 1997. M began playing with a nine year old and a five year old child in a bedroom. The defendant entered the bedroom and, after telling the nine year old and five year old to leave the room, locked the door. The defendant then took his pants off and removed M’s clothes. While holding M’s hands, the defendant vaginally raped her. When he was done, the defendant left the bedroom. M locked the door in order to clothe herself. When she was dressed, M unlocked the door, and the nine year old and five year old reentered and resumed play. Because no one could drive her home that evening, M was forced to spend the night in the defendant’s home.

The defendant was found guilty of all charges, and, on January 22, 1999, the court sentenced him to a total effective sentence of twenty years, execution suspended after fifteen years, with twenty-five years probation.

I

The defendant first claims that the court improperly granted the state’s motion to consolidate the cases. We disagree.

“We recognize that an improper joinder may expose a defendant to potential prejudice for three reasons. First, when several charges have been made against the defendant, the jury may consider that a person charged with doing so many things is a bad [person] who must have done something, and may cumulate evidence against him .... Second, the jury may have used the evidence of one case to convict the defendant in another case even though that evidence would have been inadmissible at a separate trial. . . . [Third] joinder of cases that are factually similar but legally unconnected . . . presents] the . . . danger that a defendant will be subjected to the omnipresent risk . . . that although so much [of the evidence] as would be admissible upon any one of the charges might not [persuade the jury] of the accused’s guilt, the sum of it will convince them as to all. . . . Nevertheless, because join-der foster[s] economy and expedition of judicial administration . . . we consistently have recognized a clear presumption in favor of joinder and against severance . . . and, therefore, absent an abuse of discretion, we will not second guess the considered judgment of the trial court as to joinder or severance of two or more charges.

“The court’s discretion regarding joinder, however, is not unlimited; rather, that discretion must be exercised in a manner consistent with the defendant’s right to a fair trial. Consequently, we have identified several factors that a trial court should consider in deciding whether a severance may be necessary to avoid undue prejudice resulting from consolidation of multiple charges for trial. These factors include: (1) whether the charges involve discrete, easily distinguishable factual scenarios; (2) whether the crimes were of a violent nature or concerned brutal or shocking conduct on the defendant’s part; and (3) the duration and complexity of the trial. ... If any or all of these factors are present, a reviewing court must decide whether the trial court’s jury instructions cured any prejudice that might have occurred.” (Internal quotation marks omitted.) State v. Lewis, 60 Conn. App. 219, 226-27, 759 A.2d 518, cert. denied, 255 Conn. 906, 762 A.2d 911 (2000).

While both of the cases against the defendant involved sexual assaults of children, they are clearly discrete and easily distinguishable on their facts. The first victim, E, a fifteen year old boy who lived in the defendant’s home, was sodomized by the defendant. The second victim, M, was a thirteen year girl who visited the defendant’s home and was playing with other children in one of the bedrooms before the defendant vaginally raped her. We find these crimes to be easily distinguishable on the facts. The victims and the nature of their assaults are completely divergent, and can easily be kept separate in the minds of jurors, not least because of their opposite gender.

We do not want to minimize the violent nature of the crime of sexual assault. On the basis of our review of the second factor set forth in Lewis, actual, physical violence must be involved in the commission of the charged crime to meet the standard. The defendant did not use physical force or violence to effectuate his assaults on the victims. He did not have to, as they were children who viewed him as an authority figure.

“We are aware that the duration and complexity of a consolidated trial may enhance the likelihood that [the] jury may weigh the evidence against the defendant cumulatively, rather than independently in each case.

. . . The circumstances of each case must be considered where consolidation is claimed to result in a substantial prejudice.” (Citations omitted.) State v. Radzvilowicz, 47 Conn. App. 1, 29, 703 A.2d 767, cert. denied, 243 Conn. 955, 704 A.2d 806 (1997). We cannot say, however, that the cases against the defendant were particularly complex. While the defendant’s trial lasted twelve days, a total of only seventeen witnesses were called to testify. See State v. Delgado, 243 Conn. 523, 536, 707 A.2d 1 (1998) (trial that lasted eleven days and involved testimony of twenty-five witnesses found not to be unusually lengthy or complex); State v. Herring, 210 Conn. 78, 97, 554 A.2d 686 (neither duration of trial nor its complexity created sufficient risk of jury confusion so as to require severance when trial lasted eight days and involved testimony from twenty-three witnesses), cert. denied, 492 U.S. 912, 109 S. Ct. 3230, 106 L. Ed. 2d 579 (1989). Compare State v. Boscarino, 204 Conn. 714, 722-24, 529 A.2d 1260 (1987) (consolidated trial of four cases lasting ten weeks and involving the testimony of fifty-five witnesses found to create high risk of prejudice). Here, the state called nine witnesses over the course of six days and presented its case in an orderly and logical fashion. See State v. Lewis, supra, 60 Conn. App. 231. We cannot conclude that the defendant’s trial was either unusually lengthy or particularly complex. Therefore, a high risk of prejudice was not created by the trial court’s joinder of the cases. Because none of the three Lewis factors was present, the joinder was proper.

II

The defendant next claims that the prosecutor engaged in misconduct at trial by making statements that infringed on his constitutional rights (1) to testily on his own behalf, (2) to present a defense, (3) to due process and (4) to a fair trial. We disagree.

The defendant specifically claims that during summation the prosecutor stated that defense counsel “tells you or the defense tells you that we do not have to prove anything, but they did put evidence on and you have to consider that they shouldn’t be given any benefit because they decided to put a case on or that the defendant decided to take the stand. He’s not given a benefit for that.” The prosecutor also described the assault of M by stating that the defendant “goes into the room, removes her pants, removes her panties and removes his pants, and put his penis inside of her — that’s her testimony — and had stayed there for a period of time with her. He wasn’t inside of her for a long period of time. As she testified, he came out of her, got himself back together again and then left the room.” It is the defendant’s assertion that this statement amounted to a misrepresentation of M’s testimony. The defendant claims that these statements effectively infringed on his constitutional rights to due process, to a fair trial, to testify on his own behalf and to put forth a defense.

Because this claim was not preserved at trial, we must subject it to the four-pronged test set forth in State v. Golding, 213 Conn. 233, 239-40, 567 A.2d 823 (1989). The first two prongs of Golding are satisfied because the record is adequate for review and the claim is of constitutional magnitude. The defendant’s claim, however, fails the third prong because the alleged constitutional violations do not clearly exist and the defendant was not clearly deprived of a fair trial.

“When presenting closing arguments, as in all facets of a criminal trial, the prosecutor, as a representative of the state, has a duty of fairness that exceeds that of other advocates. [A] prosecutor is not an ordinary advocate. His [or her] duty is to see that justice is done and to refrain from improper methods calculated to produce prejudice and wrongful decisions by the jury. . . . [B]y reason of his [or her] office, [a prosecutor] usually exercises great influence upon jurors. His [or her] conduct and language in the trial of cases in which human life or liberty [is] at stake should be forceful, but fair, because [a prosecutor] represents the public interest, which demands no victim and asks no conviction through the aid of passion, prejudice, or resentment.” (Internal quotation marks omitted.) State v. Rivera, 61 Conn. App. 763, 769, 765 A.2d 1240, cert. denied, 256 Conn. 901, 772 A.2d 599 (2001).

“Prosecutorial misconduct can occur in the course of closing argument. . . . Counsel, in addressing the jury, must be allowed a generous latitude in argument, including the zeal of counsel in the heat of argument. . . . Ultimately, the proper scope of closing argument lies within the sound discretion of the trial court. . . . We review the allegedly improper comments in the context of the entire trial.” (Citations omitted.) State v. Beall, 61 Conn. App. 430, 443, 769 A.2d 708, cert. denied, 255 Conn. 954, 772 A.2d 152 (2001). “The fairness of the trial and not the culpability of the prosecutor is the standard for analyzing the constitutional due process claims of criminal defendants alleging prosecutorial misconduct.” (Internal quotation marks omitted.) State v. Rivera, supra, 61 Conn. App. 769.

“When a verdict is challenged on the basis of the prosecutor’s allegedly prejudicial remarks, the defendant bears the burden of proving the remarks prejudicial in light of the whole trial. . . . The trial court’s ruling is entitled to weight because of the vantage point from which it can observe and evaluate the circumstances of the trial. The trial court is in a better position to determine the propriety of the remarks of counsel and whether or not they are harmful. . . . [T]he trial court’s determination that the prosecutor’s remarks did not require a new trial must be afforded great weight.” (Internal quotation marks omitted.) Id., 770.

“The failure to object to certain arguments at trial often is an indication that counsel did not view the remarks as so prejudicial that his client’s right to a fair trial was seriously jeopardized.” (Internal quotation marks omitted.) Id., 777.

The defendant has failed to prove that the challenged statements were so egregious as to prejudice the whole of the trial. The facts that the court, on its own, did not act to rectify the prosecutor’s statements and that the defendant did not object at trial to any of the statements that he now challenges support the conclusion that he was not prejudiced.

The judgments are affirmed.

In this opinion the other judges concurred.

       General Statutes § 53a-71 (a) provides in relevant part: “A person is guilty of sexual assault in the second degree when such person engages in sexual intercourse with another person and: (1) Such other person is thirteen years of age or older but under sixteen years of age and the actor is more than two years older than such person . . . .”

       General Statutes § 53-21 (a) provides in relevant part: “Any person who ... (2) has contact with the intimate parts, as defined in section 53a-65, of a child under the age of sixteen years or subjects a child under sixteen years of age to contact with the intimate parts of such person, in a sexual and indecent manner likely to impair the health or morals of such child . . . shall be guilty of a class C felony.”
      General Statutes § 53a-65 (8) provides: “ ‘Intimate parts’ means the genital area, groin, anus, inner thighs, buttocks or breasts.”

       “[A] defendant can prevail on a claim of constitutional error not preserved at trial only if all of the following conditions are met: (1) the record is adequate to review the alleged claim of error; (2) the claim is of constitutional magnitude alleging the violation of a fundamental right; (3) the alleged constitutional violation clearly exists and clearly deprived the defendant of a fair trial; and (4) if subject to harmless error analysis, the state has failed to demonstrate harmlessness of the alleged constitutional violation beyond a reasonable doubt. In the absence of any one of these conditions, the defendant’s claim will fail. The appellate tribunal is free, therefore, to respond to the defendant’s claim by focusing on whichever condition is most relevant in the particular circumstances.” (Emphasis in original.) State v. Golding, supra, 213 Conn. 239-40.


author: SCHALLER, J.

text:
    JOSEPH R. KREVIS v. CITY OF BRIDGEPORT
    (AC 19949)
    Schailer, Mihalakos and Hennessy, Js.
    Argued January 9
    officially released May 8, 2001

      George C. Springer, Jr., for the appellant (plaintiff).

      Frank A. May, with whom, on the brief, was James J. Rush, Jr., for the appellee (defendant).
   Opinion

SCHALLER, J.

The plaintiff, Joseph Krevis, appeals from the decision of the workers’ compensation review board (board) affirming the decision of the workers’ compensation commissioner (commissioner) to deny benefits to him. The plaintiff claims on appeal that the board improperly affirmed the commissioner’s decision (1) denying the plaintiffs motion for extension of time to file a motion to correct, (2) denying the plaintiff reimbursement for a certain prescription utilized to treat diabetes and (3) determining that the defendant, the city of Bridgeport, was not estopped from denying the plaintiffs total disability by virtue of a waiver of premiums concerning the plaintiffs life insurance policy. We affirm the decision of the board.

The following facts and procedural history are relevant to our disposition of this appeal. The plaintiff, a former police officer of the city of Bridgeport, ceased working for the defendant in 1987 because of a hypertension condition and retired in 1988. Upon retiring, he began receiving a disability pension with a monthly payment based on two thirds of his salary. Pursuant to a permanent partial disability award, he also received $219.03 in weekly compensation through May 21, 1991. The defendant sought to discontinue the payment of benefits, claiming that there was no evidence of an ongoing disability, and, on March 27,1995, the commissioner ordered that the plaintiffs benefits cease.

The plaintiff later filed a claim for temporary total disability benefits from May 22, 1991, to the present or, in the alternative, benefits pursuant to General Statutes § 31-308a for the same period. The plaintiff also sought reimbursement for the cost of his Micronase prescription from June 15, 1994, through December 4, 1997. On July 2, 1998, the commissioner rejected the plaintiffs request for continued benefits and reimbursement for the Micronase prescriptions that had been filled. On August 18, 1999, the board affirmed the decision of the commissioner. The plaintiff appeals from that decision.

As a threshold matter, we set forth the standard of review applicable to workers’ compensation appeals. “The principles that govern our standard of review in workers’ compensation appeals are well established. The conclusions drawn by [the commissioner] from the facts found must stand unless they result from an incorrect application of the law to the subordinate facts or from an inference illegally or unreasonably drawn from them. . . . Besade v. Interstate Security Services, 212 Conn. 441, 449, 562 A.2d 1086 (1989). . . . It is well established that [although not dispositive, we accord great weight to the construction given to the workers’ compensation statutes by the commissioner and review board. ... A state agency is not entitled, however, to special deference when its determination of a question of law has not previously been subject to judicial scrutiny. . . . Duni v. United Technologies Corp., 239 Conn. 19, 24-25, 682 A.2d 99 (1996); Davis v. Norwich, 232 Conn. 311, 317, 654 A.2d 1221 (1995). Where ... [a workers’ compensation] appeal involves an issue of statutory construction that has not yet been subjected to judicial scrutiny, this court has plenary power to review the administrative decision.” (Citations omitted; internal quotation marks omitted.) Dowling v. Slotnik, 244 Conn. 781, 797-98, 712 A.2d 396, cert. denied sub nom. Slotnik v. Considine, 525 U.S. 1017, 119 S. Ct. 542, 142 L. Ed. 2d 451 (1998).

I

The plaintiff first claims that the board improperly affirmed the commissioner’s decision denying his motion for extension of time to file a motion to correct. We disagree.

The award was issued on July 2,1998, and the plaintiff admits receiving notice of the award on July 9, 1998. He filed a motion for extension of time to file a motion to correct on July 10, 1998, which was denied on July 13, 1998. He had fourteen days from the award date to file a motion to correct. Thus, he had until July 16, 1998. See Regs., Conn. State Agencies § 31-301-4. The commissioner may grant extensions of time for good cause shown. See id. The commissioner has broad discretion in such decisions. DeFonce Construction Corp. v. Leslie & Elliot Co., 21 Conn. App. 545, 548, 574 A.2d 1321 (1990); see Mercado v. Personal Moving Services of America, 14 Conn. Workers’ Comp. Rev. Op. 364, 365 (1995).

In this case, there was no abuse of discretion. Even accepting the date on which the plaintiff admits receiving notice, he had sufficient time to file a motion to correct. No showing of good cause was made. The board properly determined that the commissioner did not abuse his discretion. In view of the procedural history of the case, the plaintiff failed to demonstrate any reason why he could not have filed a motion to correct within the time allowed. We conclude, therefore, that the board properly affirmed the decision denying the plaintiffs motion for an extension of time to file a motion to correct.

n

The plaintiff next claims that the board improperly affirmed the commissioner’s decision denying him reimbursement for a prescription to treat his diabetes. We are not persuaded.

The commissioner concluded that the plaintiffs “diabetes medication is not found to be required due to [the plaintiffs General Statutes] § 7-433c heart and hypertension claim, and, therefore, the [defendant] is not found responsible to pay for [or] reimburse the [plaintiffs] prescription for Micronase.” In essence, this was both a factual finding and a conclusion.

“[T]he power and duty of determining the facts rests on the commissioner, the trier of facts. . . . [0]n review of the commissioner’s findings, the [review board] does not retry the facts nor hear evidence. It considers no evidence other than that certified to it by the commissioner, and then for the limited purpose of determining whether or not the finding should be corrected, or whether there was any evidence to support in law the conclusions reached.” (Internal quotation marks omitted.) Mikula v. First National Supermarkets, Inc., 60 Conn. App. 592, 597, 760 A.2d 952 (2000). “The conclusions drawn by [the commissioner] from the facts found must stand unless they result from an incorrect application of the law to the subordinate facts or from an inference illegally or unreasonably drawn from them.” (Internal quotation marks omitted.) Mazzone v. Connecticut Transit Co., 240 Conn. 788, 792, 694 A.2d 1230 (1997).

“Proof that the injury arose out of the employment relates to the origin and cause of the accident. . . . [T]he essential connecting link of direct causal connection between the personal injury and the employment must be established before the act becomes operative. The personal injury must be the result of the employment and flow from it as the inducing proximate cause. The rational mind must be able to trace resultant personal injury to a proximate cause set in motion by the employment and not by some other agency, or there can be no recovery. ... As with the determination that an injury occurred in the course of employment, the question of whether an injury arose out of employment is one of fact.” (Citations omitted; internal quotation marks omitted.) Kolomiets v. Syncor International Corp., 252 Conn. 261, 272-73, 746 A.2d 743 (2000).

The plaintiff failed to establish a causal connection between his heart and hypertension claim and the diabetes for which the Micronase was prescribed. He failed to prove, therefore, the direct causal connection between his injury, the fact that he was diabetic and his employment, which would have entitled him to compensation for his diabetes prescription. It is not enough for the plaintiff to claim that if he is not provided with Micronase, his blood pressure will become elevated, thus exacerbating his hypertension. He must establish that his work on the police force caused the condition for which he seeks compensation. The evidence before the commissioner supports the commissioner’s findings and conclusion that they were not related. Additionally, the failure to file a motion to correct the findings makes it improper for the plaintiff to challenge them now. See Regs., Conn. State Agencies § 31-301-4; Eligio v. DiLauro Bros., 15 Conn. Workers’ Comp. Rev. Op. 253, 255 (1996). We conclude, therefore, that the board properly affirmed the decision denying reimbursement for the prescription.

Ill

The plaintiffs final claim is that the board improperly affirmed the commissioner’s decision that the waiver of premiums concerning his life insurance policy did not estop the defendant from asserting that the plaintiff was not totally disabled. We disagree.

“Under our well-established law, any claim of estop-pel is predicated on proof of two essential elements: the party against whom estoppel is claimed must do or say something calculated or intended to induce another party to believe that certain facts exist and to act on that belief; and the other party must change its position in reliance on those facts, thereby incurring some injury. . . . It is fundamental that a person who claims an estoppel must show that he has exercised due diligence to know the truth, and that he not only did not know the true state of things but also lacked any reasonably available means of acquiring knowledge. ... In addition, estoppel against a public agency is limited and may be invoked: (1) only with great caution; (2) only when the action in question has been induced by an agent having authority in such matters; and (3) only when special circumstances make it highly inequitable or oppressive not to estop the agency.” (Internal quotation marks omitted.) In re Michaela Lee R., 253 Conn. 570, 604, 756 A.2d 214 (2000).

The commissioner found that “the evidence that the [defendant] maintained a waiver of life insurance premiums for the [plaintiff] is not evidence that the [plaintiff] was totally disabled, as the standard for life insurance premium waiver is not the standard or controlling factor in determining whether or not [the plaintiff] is temporarily totally disabled . . . .”

The board correctly determined that the plaintiff had failed to establish any connection between the life insurance policy and the compensation coverage. The disability waiver is irrelevant to the issue of disability for purposes of this claim, for even if we were to accept the notion that the defendant had acknowledged that the plaintiff satisfied the definition of disabled pursuant to the insurance policy, the definition under the insurance policy does not equate to the definition of disability under the Workers’ Compensation Act (act), General Statutes § 31-275 et seq. Under the policy, “total disability” is defined as “your inability, due to sickness or accidental injury, to work at any job suited to your education, training or experience.” In contrast, under the act, “[a] worker is entitled to total disability payments pursuant to [General Statutes] § 31-307 only when his injury results in a ‘total incapacity to work,’ which [our Supreme Court has] defined as ‘the inability of the employee, because of his injuries, to work at his customary calling or at any other occupation which he might reasonably follow.’ ” Mulligan v. F. S. Electric, 231 Conn. 529, 538, 651 A.2d 254 (1994). The definitions of total disability under the insurance policy and the act are not the same. The former definition speaks of an inability to work at a suitable job, while the latter definition speaks of a total incapacity to work at a job within reason.

Even if we were to accept the two definitions as equivalent, the plaintiff has not carried his burden of establishing the requisite elements of an estoppel claim. The plaintiff produced no evidence that the defendant had utilized the waiver of premiums to induce a belief in the plaintiff that he had a total disability, nor has the plaintiff produced evidence that he changed his position to his detriment as a result of the waiver. See In re Michaela Lee R., supra, 253 Conn. 604. In short, the plaintiff failed to establish any of the essential elements of estoppel in this situation. Accordingly, we conclude that the board properly concluded that the waiver of premiums concerning the plaintiffs life insurance policy did not estop the defendant from asserting that the plaintiff was not totally disabled.

The decision of the workers’ compensation review board is affirmed.

In this opinion the other judges concurred.

       Micronase is medication for the treatment of diabetes.

       Section 31-301-4 of the Regulations of Connecticut State Agencies provides in relevant part: “If the appellant desires to have the finding of the commissioner corrected he must, within two weeks after such finding has been filed, unless the time is extended for cause by the commissioner, file with the commissioner his motion for the correction of the finding and with it such portions of the evidence as he deems relevant, and material to the corrections asked for . . .

       “[Our Supreme Court] has consistently interpreted ‘for cause’ as synonymous with nonfrivolous reasons or good cause.” Robinson v. Unemployment Security Board, of Review, 181 Conn. 1, 23 n.7, 434 A.2d 293 (1980).

       The board, in reviewing the denial of the plaintiff s motion for an extension of time, concluded: “Here, the [plaintiff] contended that his counsel needed more time to peruse the transcript and exhibits before a motion to correct could be prepared. The trier of fact presumably disagreed. Based on the [plaintiff’s thirty-seven] proposed findings, we deduce that the transcripts and the exhibits were available to him prior to the issuance of the trier’s decision. ... It is also apparent that counsel had reviewed these docu-merits in preparing Ms proposal. The [plaintiffs] assertion that he needed more time to file Ms motion to correct was not bolstered by specific examples of items that could not be obtained or reviewed in the allotted filing period. He merely stated that he needed additional time to review the transcript and the exMbits, without getting into further detail.
      “On appeal, it remains unclear exactly how the [plaintiff] was unfairly prejudiced by the trier’s demal of Ms request for an extension. We are aware that the record in tMs case contains [twenty-eight] marked exMbits, and over 400 pages of transcribed testimony. Though large, this file is not so unusually enormous and complex that a thorough evaluation of the trier’s findings could not reasonably be completed within the standard two week filing period. The trier certainly had the discretion to determine that the [plaintiffs] counsel was familiar enough with the file to prepare a motion to correct within the time limit prescribed by ... § 31-301-4 [of the Regulations of Connecticut State Agencies]. Also, the [plaintiff] has not demonstrated any concrete prejudice from the demal of tMs motion, other than the ultimate absence of the motion to correct itself. We thus cannot say on appeal that the deMal of the [plaintiffs] motion for extension of time was error. Accordingly, as the [plaintiff] did not file a motion to correct, we are limited to the trier’s factual findings on review.”

       General Statutes § 7433c (a) provides in relevant part: “[I]n the event auniformed member of apaid municipal fire department or aregular member of a paid municipal police department who successfully passed a physical examination on entry into such service, wMch examination failed to reveal any evidence of hypertension or heart disease, suffers either off duly or on duty any condition or impairment of health caused by hypertension or heart disease resulting in his death or his temporary or permanent, total or partial disability, he or his dependents, as the case may be, shall receive from his municipal employer compensation and medical care in the same amount and the same manner as that provided under chapter 568 if such death or disability was caused by a personal injury which arose out of and in the course of his employment and was suffered in the line of duty and within the scope of his employment, and from the municipal or state retirement system under which he is covered, he or his dependents, as the case may be, shall receive the same retirement or survivor benefits which would be paid under said system if such death or disability was caused by a personal injury which arose out of and in the course of his employment, and was suffered in the line of duty and within the scope of his employment. . .

       The plaintiff argues that Philip Fazzone, a physician, in his medical report, stated: “Micronase, which is being prescribed for treatment of the [plaintiffs] diabetes, is related to treatment of his heart condition in that excellent control of his blood sugar is considered to be a factor in reducing the rate of progression of vascular disease.” The board, having reviewed that finding, concluded: “The commissioner found, with little supporting discussion, that the [plaintiffs] diabetes medication was unrelated to his § 7-433c claim. As noted above, the [plaintiff] did not seek correction of this finding. Legally, the trier of fact was within his authority to disregard any medical testimony offered by the [plaintiff] in support of his position, even if apparently uncontradicted. . . . However, as the [defendant] points out, two doctors testified that the [plaintiffs] hypertension was unrelated to his diabetes, which implies that it was also unrelated to his need for the drug Micronase. . . . This directly supports the trier’s conclusion . . . and precludes any possibility of our reversing the trier’s decision on that matter. ” The board’s conclusion accurately states the role of the commissioner in credibility determinations. We are also mindful that “[t]he trier of the facts determines with finality the credibility of the witnesses and the weight to be accorded their testimony." Gibson v. Keebler Co., 37 Conn. App. 392, 396, 655 A.2d 1172 (1995).

       The board, having reviewed this finding, concluded: “[T]here is no evidence that the [plaintiff] somehow detrimentally relied on the [defendant’s] contention to the life insurer that he was totally disabled, and there is no evidence that the [defendant] took an inconsistent position on a factual matter in which it had actual knowledge of the relevant facts. ... We thus find no merit in the estoppel argument.”


author: PER CURIAM.

text:
    COVENANT HOME, INC. v. TOWN OF CROMWELL
    (AC 20599)
    Schaller, Mihalakos and Stoughton, Js.
    Argued February 27
    officially released May 8, 2001

      Kenneth R. Slater, Jr., with whom, on the brief, was Edward T. Lynch, Jr., for the appellant (plaintiff).

      John W. Bradley, Jr., for the appellee (defendant).
   Opinion

PER CURIAM.

The plaintiff, Covenant Home, Inc., appeals from the judgment of the trial court denying a petition and motion for contempt by which it sought to have the defendant, the town of Cromwell, adjudged in contempt for its disregard of a prior judgment. We affirm the judgment of the trial court.

In 1988, the parties stipulated to a judgment in connection with a settlement of tax appeals. A judgment was rendered in accordance with the stipulation on December 28, 1988. As part of the judgment, and in accordance with the stipulation, the court found that the infirmary located on the plaintiffs property was exempt from taxation. In February, 1999, the assessor for the defendant determined that the infirmary no longer was exempt from taxation, and the plaintiff appealed to the board of assessment appeals, which denied the appeal. The plaintiff then filed its petition and motion for contempt, which the court denied. This appeal followed.

The plaintiff claims that the court improperly (1) found that the remedy of contempt is not available to enforce the judgment against the defendant and (2) denied the plaintiff an evidentiary hearing. We disagree.

Our examination of the record and briefs has persuaded us that the judgment of the court should be affirmed. The issues presented at trial were resolved properly in the court’s thoughtful and comprehensive memorandum of decision. See Covenant Home, Inc. v. Cromwell, 47 Conn. Sup. 60, 777 A.2d 216 (2000). Because the decision fully addresses the arguments raised in this appeal, we adopt it as a proper statement of the facts and the applicable law on those issues. It would serve no useful purpose for us to repeat the discussion contained in the court’s decision. See East v. Labbe, 54 Conn. App. 479, 480-81, 735 A.2d 370 (1999), aff'd, 252 Conn. 359, 746 A.2d 751 (2000).

The judgment is affirmed.