author: PELLEGRINO, J.

text:
    IRENE SANDFORD v. WATSON B. METCALFE ET AL. GRETCHEN PULVERMANN, EXECUTRIX (ESTATE OF MARY JANE WATSON) v. WATSON B. METCALFE ET AL.
    (AC 29467)
    Flynn, C. J., and Lavine and Pellegrino, Js.

      Argued April 18
    officially released July 18, 2008

      Daniel W. Moger, Jr., with whom was Joyce H. Young, for the appellants (defendants).

      James A. Fulton, for the appellees (plaintiffs).

       July 18, 2008, the date that this decision was released as a slip opinion, is the operative date for all substantive and procedural purposes.

   Opinion

PELLEGRINO, J.

This is an appeal from the judgments of the trial court sustaining two appeals from the Probate Court for the district of Greenwich, which refused to authorize a distribution to the plaintiffs, Irene Sandford and Gretchen Pulvermann, in accordance with the will of Mary Jane Watson (decedent). We affirm the judgments of the trial court.

The dispute giving rise to this appeal concerns the distribution of the assets of the estate of the decedent, who died on February 10, 2000. Five days before the decedent’s death, on February 5, 2000, she asked Sand-ford, a friend who lived in Armonk, New York, to come to her house in Greenwich. Sandford, an attorney licensed to practice law in New York but not in Connecticut, arrived at the decedent’s home after work that evening. Sandford found the decedent in her bed and suggested that the decedent should be seen by a physician.

The decedent asked Sandford to draft her a new will, continually insisting that she would discuss no other subject until Sandford did as she requested. The decedent’s prior will had been executed in December, 1962, and left her estate to her now deceased mother and husband with a contingent beneficiary of her cousin, Watson B. Metcalfe. Sandford explained to the decedent that she was not licensed to practice law in Connecticut and, upon learning that the decedent wanted to name her as a beneficiary, told the decedent that she could not prepare the will. The decedent, however, insisted that she prepare the will. Sandford relented and complied with the decedent’s wishes by handwriting a will that, in accordance with the decedent’s instructions, left the estate in equal shares to Sandford and to the decedent’s handyman, Robert Peterson, who was also present in the decedent’s home that evening. No provision was made in the will for residuary beneficiaries. After the will was signed and witnessed, the decedent was taken to a hospital where she died five days later.

After the decedent’s death, both the 1962 will and the handwritten will dated February 5,2000, were offered to the Probate Court for the district of Greenwich for probate. The heirs at law attempted to prevent the handwritten will from being admitted to probate, making the same public policy and undue influence arguments that they are asserting in this appeal. The Probate Court, Hon. David R. Tobin, found that the February 5, 2000 will was the decedent’s last will and testament and admitted it to probate. The plaintiffs attempted to appeal from Judge Tobin’s decision, but that appeal subsequently was dismissed as untimely. No appeal was taken from the trial court’s judgment dismissing the probate appeal.

Pulvermann was appointed as executrix of the estate, as set forth in the decedent’s February, 2000 will. In fulfilling her duties, Pulvermann submitted an accounting to the Probate Court, calling for an equal distribution of the proceeds of the estate to Sandford and Peterson in accordance with the provisions of the will. At that time, Metcalfe, an heir at law, applied to the Probate Court for an order of distribution, claiming that the bequest to Sandford failed by operation of law, and, because the will did not have a residuary clause, the bequest to Sandford should pass under the laws of intestacy to the decedent’s heirs, including himself.

The order for distribution filed by Pulvermann and the order for distribution filed by Metcalfe were presented to the Probate Court. Hon. Daniel F. Caruso, serving as the acting judge of the Probate Court for the district of Greenwich, held that the bequest to Sandford failed by operation of law and ordered that her bequest pass in accordance with the laws of intestacy to the decedent’s heirs at law. Pulvermann and Sandford thereafter filed separate appeals from Judge Caruso’s decision to the Superior Court. The appeals subsequently were consolidated, and the court, R. Robinson, J., sustained the appeals. The heirs at law have filed this appeal.

At the outset, we take a moment to clarify what is at issue in this appeal. It is the claim of the heirs at law that because the will drafted by Sandford constituted the unauthorized practice of law and was violative of the Rules of Professional Conduct, which prohibit an attorney from preparing any instrument giving herself a substantial gift; Rules of Professional Conduct 1.8 (c); Sandford’s conduct violated public policy, and this court must remedy that violation. We conclude, however, that the question of whether Sandford engaged in the unauthorized practice of law or violated rule 1.8 (c) of the Rules of Professional Conduct was not decided in the action from which this appeal arises. Accordingly, that aspect of the claim by the heirs at law is not an issue before us and we need not address it. See Celentano v. Oaks Condominium Assn., 265 Conn. 579, 589 n.9, 830 A.2d 164 (2003) (“[b]ecause our review is limited to matters in the record, we will not address issues not decided by the trial court” [internal quotation marks omitted]).

Moreover, because the heirs at law did not file a timely appeal from Judge Tobin’s decision admitting the February 5, 2000 will to probate, we are presented with a duly admitted will that provides for a distribution to Sandford. The issue before this court, therefore, is not whether there should be a distribution in accordance with the will, because that issue was decided by the decision of the Probate Court and unsuccessfully appealed, but whether there should be a forfeiture of the bequest to Sandford, the attorney who drafted the will, on the basis of public policy. We conclude that there should not be a forfeiture.

We begin by identifying the relevant legal principles and standard of review that govern the resolution of the defendants’ appeal. “An appeal from a Probate Court to the Superior Court is not an ordinary civil action. . . . When entertaining an appeal from an order or decree of a Probate Court, the Superior Court takes the place of and sits as the court of probate. ... In ruling on a probate appeal, the Superior Court exercises the powers, not of a constitutional court of general or common law jurisdiction, but of a Probate Court. . . .

“The function of the Superior Court in appeals from a Probate Court is to take jurisdiction of the order or decree appealed from and to try that issue de novo. . . . Thereafter, upon consideration of all evidence presented on the appeal which would have been admissible in the probate court, the superior court should exercise the same power of judgment which the probate court possessed and decide the appeal as an original proposition unfettered by, and ignoring, the result reached in the probate court.” (Citations omitted; internal quotation marks omitted.) State v. Gordon, 45 Conn. App. 490, 494-95, 696 A.2d 1034, cert. granted on other grounds, 243 Conn. 911, 701 A.2d 336 (1997) (appeal dismissed October 27, 1998).

Because the facts underlying this appeal are undisputed, the conclusion of the trial court that the testamentary gift from the decedent to Sandford did not violate public policy involves a question of law, which we review under the plenary standard of review. See Webster Bank v. Zak, 259 Conn. 766, 773, 792 A.2d 66 (2002).

“The law governing descent and distribution emanates from the legislature and is purely statutory. . . . The legislature has, by statute, carved out exceptions to the statutes governing descent and distribution to deprive an ostensibly rightful heir, falling within the ambit of those exceptions, of an otherwise lawful inheritance. Under [General Statutes (Rev. to 1985)] § 45-273a (a) [now § 45a-436 (g)] aperson who, without sufficient cause, abandons his or her spouse is foreclosed from receiving a statutory share of the estate of the deceased spouse. Under [General Statutes (Rev. to 1985)] § 45-279 (a) [now § 45a-447] a person finally convicted of murder is precluded from inheriting any part of the estate of the deceased victim . . . .” (Citations omitted.) Hotarek v. Benson, 211 Conn. 121, 125-28, 557 A.2d 1259 (1989). There is, however, no statute barring an attorney who drafted a testamentary instrument from inheriting by the instrument she drafted.

Because there is no statute barring a distribution to Sandford, the heirs at law ask us to use our equitable powers to prevent such a distribution. We cannot do so. “Even if the omission of such a statute were the result of legislative oversight or neglect, we have no power to supply the omission or to remedy the effect of the neglect. . . . [A]ny qualification [of the law of descent and distribution] pronounced by this court would be a judicial grafting of public policy restrictions on an explicit statutory provision. . . . The authorities make clear that judicial tribunals have no concern with the policy of legislation and they cannot engraft upon the provisions of the statutes of descent and distribution an exception to bar an inheritance. . . . The statutes cannot be changed by the court to make them conform to the court’s conception of right and justice in a particular case. ... To avoid trenching on legislative ground, the court must take the view that if the legislature had intended such an exception from the statutes as is sought in this case, it would have said so.” (Citations omitted; internal quotation marks omitted.) Id., 128-29.

Although we agree that it is ill-advised, as a matter of public policy, for an attorney to draft a will in which she is to receive a bequest, in the absence of statutory provisions to the contrary, there is no bar against the right of Sandford to inherit from the decedent’s estate under the statutes governing descent and distribution. See id.; Bird v. Plunkett, 139 Conn. 491, 500-502, 95 A.2d 71 (1953). If the law is to be changed to make provision for the situation at hand, it is for the legislature to make the change, not the court.

The judgments are affirmed.

In this opinion the other judges concurred.

       Sandford was related to the decedent’s deceased husband, and she and her family were friendly with the decedent.

       There is no claim made in this appeal that the will was invalid because it did not comply with our statutes relating to the number or competency of witnesses.

       The defendants in this appeal, Metcalfe, Julian G. Blake, Vivienne McCandless and Viviene M. Sender, executrix of the estate of Barbara F. Mortimer, are the heirs at law.

       On September 18, 2001, Metcalfe instituted a second probate appeal pursuant to the accidental failure of suit statute. The court, Mintz, J., granted the motion to dismiss of Pulvermann, Sanford and Peterson. This court subsequently affirmed that judgment; Metcalfe v. Sandford, 81 Conn. App. 96, 99-100, 837 A.2d 894 (2004); and our Supreme Court subsequently affirmed the decision, albeit on different grounds. Metcalfe v. Sandford, 271 Conn. 531, 533, 858 A.2d 757 (2004).

       We acknowledge that public policy, as reflected by rule 1.8 (c) of the Rules of Professional Responsibility, precludes an attorney from drafting a will in which she is named as a beneficiary. See 2 Restatement (Third), The Law Governing Lawyers § 127, comment (b) (2000) (“[a] client’s valuable gift to a lawyer invites suspicion that the lawyer overreached or used undue influence”); see also Dinan v. Marchand, 279 Conn. 558, 560 n.1, 903 A.2d 201 (2006) (defining undue influence). Although the violation of this prohibítion does not constitute an irrebutable presumption of undue influence, it does shift the burden to the attorney to show the validity of the bequest. McKnight v. Gizze, 107 Conn. 229, 235, 140 A. 116 (1928). “So strict is the rule on this subject, that dealings between an attorney and his client are held, as against the attorney, to be prima facie fraudulent, that is to say, the burden is not upon the client to establish fraud and imposition, but the burden rests upon the attorney to show fairness, adequacy and equity.” (Internal quotation marks omitted.) Id.

       General Statutes § 45a-436, entitled, “Succession upon death of spouse. Statutory share,” provides in relevant part: “(a) On the death of a spouse, the surviving spouse may elect, as provided in subsection (c) of this section, to take a statutory share of the real and personal property passing under the will of the deceased spouse. The ‘statutory share’ means a life estate of one-third in value of all the property passing under the will, real and personal, legally or equitably owned by the deceased spouse at the time of his or her death, after the payment of all debts and charges against the estate. The right to such third shall not be defeated by any disposition of the property by will to other parties. . . .

        “(g) A surviving husband or wife shall not be entitled to a statutory share, as provided in subsection (a) of this section, or an intestate share, as provided in section 45a-437, in the property of the other if such surviving spouse, without sufficient cause, abandoned the other and continued such abandonment to the time of the other’s death. . . .”

       General Statutes § 45a-447, entitled, “When person guilty of killing another to inherit from or receive property or insurance proceeds as beneficiary of victim,” provides in relevant part: “(a) A person finally adjudged guilty, either as the principal or accessory, of any crime under section 53a-54a or 53a-54b, or in any other jurisdiction, of any crime, the essential elements of which are substantially similar to such crimes, shall not inherit or receive any part of the estate of the deceased, whether under the provisions of any act relating to intestate succession, or as devisee or legatee, or otherwise under the will of the deceased, or receive any property as beneficiary or survivor of the deceased; and such person shall not inherit or receive any part of the estate of any other person when such homicide or death terminated an intermediate estate, or hastened the time of enjoyment. With respect to inheritance under the will of the deceased, or rights to property as heir, devisee, legatee or beneficiary of the deceased, the person whose participation in the estate of another or whose right to property as such heir, devisee, legatee or beneficiary is so prevented under the provisions of this section shall be considered to have predeceased the person killed. With respect to property owned in joint tenancy with rights of survivorship with the deceased, such final adjudication as guilty shall be a severance of the joint tenancy, and shall convert the joint tenancy into a tenancy in common as to the person so adjudged and the deceased but not as to any remaining joint tenant or tenants, such severance being effective as of the time such adjudication of guilty becomes final. When such jointly owned property is real property, a certified copy of the final adjudication as guilty shall be recorded by the fiduciary of the deceased’s estate, or may be recorded by any other interested party in the land records of the town where such real property is situated.”

       Moreover, the public policy concerns that the defendants raise are protected adequately by the statewide grievance committee, the statewide bar counsel and General Statutes § 51-88, which prohibits and prescribes penalties for the unauthorized practice of law.


source: Caselaw Access Project

author: GRUENDEL, J.

license: Public Domain

text:
    STATE OF CONNECTICUT v. ANDRE D. MARTIN
    (AC 25823)
    Bishop, Gruendel and Robinson, Js.

      Submitted May 22
    officially released September 9, 2008

      Arthur L. Ledford, special public defender, for the appellant (defendant).

      G. Robert Satti, Jr., senior assistant state’s attorney, with whom, on the brief, was Jonathan C. Benedict, state’s attorney, for the appellee (state).
   Opinion

GRUENDEL, J.

This appeal is before us on remand from our Supreme Court. The defendant, Andre D. Martin, was convicted of attempt to possess one kilogram or more of marijuana with intent to sell by a person who is not drug-dependent in violation of General Statutes §§ 2 la-278 (b) and 53a-49, possession of four ounces or more of a cannabis-type substance in violation of General Statutes § 2 la-279 (b) and conspiracy to possess one kilogram or more of mari juana with intent to sell in violation of General Statutes §§ 2 la-277 (b), 2 la-278 (b) and 53a-48. He appealed from that judgment of conviction to this court, claiming that (1) his fifth amendment right against double jeopardy was violated when he was convicted of both attempted possession of marijuana with intent to sell and possession of marijuana, (2) the evidence was insufficient to support his conviction of possession of marijuana and attempted possession of marijuana, and (3) the trial court improperly excluded from evidence two statements that exculpated him. In State v. Martin, 98 Conn. App. 458, 909 A.2d 547 (2006), this court addressed only the defendant’s second claim and determined that the evidence was insufficient to support his conviction. We therefore reversed the judgment of the trial court and remanded the case with direction to render judgment of not guilty. The state sought certification to appeal from our Supreme Court, which was granted. In State v. Martin, 285 Conn. 135, 162, 939 A.2d 524 (2008), our Supreme Court reversed our decision, determined that there was sufficient evidence to support the defendant’s conviction and remanded the case to us with direction to consider his remaining claims on appeal. After considering the defendant’s remaining claims, we reverse in part the judgment of the trial court.

The facts of this case are set forth in our earlier opinion. See State v. Martin, supra, 98 Conn. App. 460-65. We therefore will summarize the relevant facts. In May, 2003, the Bridgeport office of the federal Drug Enforcement Administration (DEA) was made aware of a suspicious package that was to be delivered to an address in Bridgeport. Instead of allowing it to be delivered, the DEA arranged for the package to be routed to the Yellow Freight Company (Yellow Freight) facility in Middletown. The DEA obtained a federal search warrant for the package and, upon searching it, discovered that it contained four white buckets and that each bucket contained one or more bundles heavily wrapped in plastic. Laboratory tests confirmed that the bundles contained marijuana and that the total weight of the material was approximately eighteen pounds.

At some point, the investigation was transferred to local authorities, and it was determined that they would conduct a controlled delivery of the package. All but 4.4 ounces of the marijuana was removed, and the remainder of the package was filled so as to approximate its original weight. Jeremy DiPietro, a detective with the Bridgeport police department, and a state police trooper thereafter took over the investigation, and the state trooper, working undercover, telephoned the person Yellow Freight was to contact to pick up the package and told that person to pick up the package at approximately noon the following day.

The following day, aerial and land surveillance revealed that a tan Mitsubishi Gallant entered the Yellow Freight parking lot with a man driving and a woman in the passenger seat. After the woman spoke with a Yellow Freight representative, the car left the parking lot and rendezvoused with a maroon Chevrolet occupied by the defendant and another individual. The Chevrolet then entered the lower parking lot of the facility, and the defendant exited the vehicle and walked around the lot looking at the vehicles as he passed them. He then returned to the vehicle, and it left the lot. After it left the lot, the Gallant returned, and the package was loaded into the car. The Gallant then left the facility and again rendezvoused with the Chevrolet, and the two cars proceeded to the highway and traveled together to 98 Holly Street in Bridgeport. After arriving at 98 Holly Street, the defendant helped an individual, later identified as Keith Mangan, carry the package up the stairs and into the house. Several minutes later, the police executed their search warrant of the house. They discovered the defendant in the living room and the package in a freestanding tub concealed by a shower curtain.

The state charged the defendant with attempt to possess one kilogram or more of marijuana with intent to sell by a person who is not drug-dependent in violation of §§ 21a-278 (b) and 53a-49, possession of four ounces or more of a cannabis-type substance in violation of § 2 la-279 (b) and conspiracy to possess one kilogram or more of marijuana with intent to sell in violation of §§ 21a-277 (b), 21a-278 (b) and 53a-48. After a jury trial, the defendant was convicted on all counts. The court sentenced him to twelve years imprisonment on the attempted possession charge, five years imprisonment on the possession charge and twelve years imprisonment on the conspiracy charge, with the possession and conspiracy charges running concurrently with the attempted possession charge, for a total effective sentence of twelve years imprisonment.

I

The defendant claims that his fifth amendment right against double jeopardy was violated because he was convicted and sentenced for both attempted possession of marijuana with intent to sell and possession of marijuana, which he claims would have been one offense but for the intervening conduct of police. We agree with the defendant.

The defendant concedes that this claim was not preserved at trial, and he now seeks review under State v. Golding, 213 Conn. 233, 239-40, 567 A.2d 823 (1989). Under Golding, a defendant, on appeal, can prevail on a constitutional claim of error when the claim was not raised in the trial court only if all of the following conditions are satisfied: “(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.” Id. “The first two [prongs of Golding] involve a determination of whether the claim is reviewable; the second two . . . involve a determination of whether the defendant may prevail.” (Internal quotation marks omitted.) State v. Peeler, 271 Conn. 338, 360, 857 A.2d 808 (2004), cert. denied, 546 U.S. 845, 126 S. Ct. 94, 163 L. Ed. 2d 110 (2005). The defendant’s claim is reviewable because the first two prongs of Golding are met. In addition, for reasons stated herein, the defendant will prevail on his claim under the third prong of Golding.

“The double jeopardy clause of the fifth amendment to the United States constitution provides: [N]or shall any person be subject for the same offense to be twice put in jeopardy of life or limb .... The double jeopardy clause is applicable to the states through the due process clause of the fourteenth amendment. . . . Although the Connecticut constitution has no specific double jeopardy provision, we have held that the due process guarantees of article first, § 9, include protection against double jeopardy. . . . We have recognized that the Double Jeopardy Clause consists of several protections: It protects against a second prosecution for the same offense after acquittal. It protects against a second prosecution for the same offense after conviction. And it protects against multiple punishments for the same offense. . . . These protections stem from the underlying premise that a defendant should not be twice tried or punished for the same offense.” (Internal quotation marks omitted.) State v. Coltherst, 87 Conn. App. 93, 112, 864 A.2d 869, cert. denied, 273 Conn. 919, 871 A.2d 371 (2005). Here, the defendant’s claim implicates the protection against multiple punishments for the same offense.

Traditionally, when adjudicating double jeopardy claims, we apply the test set out in Blockburger v. United States, 284 U.S. 299, 52 S. Ct. 180, 76 L. Ed. 306 (1932), under which we look only to the charging instruments, bill of particulars and applicable statutes to determine whether multiple offenses arising out of the same act or transaction are the same offense for purposes of double jeopardy. The nature of this case, however, persuades us that Blockburger is not the correct analysis. This is not a case in which we are analyzing only the actions of the defendant to determine if charges that arise out of the same act or transaction constitute the same offense. Rather, we are analyzing the actions of the defendant in addition to intervening actions of the police to determine if, but for the actions of the police, the defendant would have been charged with multiple offenses. We conclude, therefore, that an alternate analysis applies in which we look to the facts of the case to determine whether the defendant properly was convicted and sentenced for possession of marijuana and attempted possession of marijuana with intent to sell.

The defendant was part of a conspiracy to possess eighteen pounds of marijuana that was mailed in a package from Arizona to Connecticut. When the police received a tip about the shipment, they intercepted it and separated the contents of the package so that only 4.4 ounces of marijuana remained in the package. Consequently, when the defendant picked up the package, instead of possessing all of the marijuana, he actually possessed only 4.4 ounces. Because he intended to possess the whole, and the remainder of the marijuana had been removed, he was also charged with attempted possession of marijuana because he engaged in conduct that would have constituted the crime if attendant circumstances were as he believed them to be. In effect, the action of the police in separating out the contents of the package, albeit out of a concern for public safety, nevertheless created two offenses, possession and attempted possession, when only one offense should have arisen. In this case, the marijuana that supports the possession charge and the marijuana that supports the charge of attempted possession with intent to sell are part of the same transaction, the same common scheme or plan, the same mailing and the same receiving, and but for the police separating out the contents of the package, one charge, in addition to the conspiracy charge, would have arisen. See Jerskey v. State, 546 P.2d 173 (Wyo. 1976) (court held defendant’s right to not be sentenced twice for same crime violated when police intercepted package of seven bricks of marijuana, removed six with one remaining, delivered package to defendant, who received it, and charged defendant with possession with intent to deliver and attempted possession with intent to deliver because common scheme or plan consisted of one mailing of controlled substance and fact that six bricks were confiscated by police en route and therefore only one received cannot create different transactions or change common scheme or plan in way that would support conviction of two crimes). We conclude, therefore, that the defendant’s right against double jeopardy was violated when he was convicted and sentenced for both attempted possession of marijuana with intent to sell and possession of marijuana.

In finding a double jeopardy violation, we must also determine the remedy on remand. The proper disposition of this case is to merge the conviction of attempted possession of marijuana with intent to sell with the conviction of possession of marijuana. See State v. Barber, 64 Conn. App. 659, 677, 781 A.2d 464, cert. denied, 258 Conn. 925, 783 A.2d 1030 (2001). The determination of which sentence is to be vacated is a question of the intent of the sentencing court. Id. “In cases in which the intention of the sentencing court is unclear, the court is given discretion on remand to decide which sentence to vacate. See State v. Chicano, [216 Conn. 699, 714 n.16, 584 A.2d 425 (1990), cert. denied, 501 U.S. 1254, 111 S. Ct. 2898, 115 L. Ed. 2d 1062 (1991)]; State v. Barber, [supra, 678].” State v. Edwards, 100 Conn. App. 565, 592, 918 A.2d 1008, cert. denied, 282 Conn. 928, 929, 926 A.2d 666, 667 (2007).

In the present case, however, the court’s intention was clear that the defendant should receive a total effective term of twelve years and that the court intended the controlling charge to be attempted possession of marijuana with intent to sell. See id. The court sentenced the defendant to twelve years on the attempted possession count, twelve years on the conspiracy count and five years on the possession count with the terms of imprisonment for the conspiracy and possession counts to run concurrently with the term of imprisonment for the attempted possession count. As between the attempted possession and possession charges, the court deemed the attempted possession charge to be the greater charge and the possession charge to be the lesser charge. “The typical solution is for the appellate court to order the sentence of the lesser charge vacated to effectuate the longer of the two sentences.” State v. Barber, supra, 64 Conn. App. 678. Accordingly, we order the court to combine the conviction of attempted possession of one kilogram or more of marijuana with intent to sell and possession of four ounces or more of marijuana and to vacate the sentence on the conviction of possession of four ounces or more of marijuana.

II

The defendant’s second claim is that the court abused its discretion when it precluded from evidence two hearsay statements that he argues should have been admitted as statements against penal interest. A review of the transcript reveals that when the defendant attempted to offer each statement into evidence, the state objected to each on hearsay grounds and that the court sustained the objection without argument from the defense. The defendant failed to raise any hearsay exception on which the court could have ruled. See Practice Book § 5-2. This failure by the defendant precludes our review of this claim, as we will not decide an issue that was not presented to the trial court. “To review claims articulated for the first time on appeal and not raised before the trial court would be nothing more than a trial by ambuscade of the trial judge.” (Internal quotation marks omitted.) In re Anna Lee M., 104 Conn. App. 121, 124 n.2, 931 A.2d 949, cert. denied, 284 Conn. 939, 937 A.2d 696 (2007). Because the defendant failed to distinctly raise this evidentiary issue before the trial court, we decline to review the merits of his claim.

The judgment is reversed in part and the case is remanded with direction to combine the conviction of attempted possession of a kilogram or more of marijuana with intent to sell with the conviction for possession of over four ounces of marijuana and to vacate the sentence for possession of over four ounces of marijuana. The judgment is affirmed in all other respects.

In this opinion the other judges concurred.

       The defendant also claims that his fifth amendment right against double jeopardy was violated because the crime of possession is a lesser offense included within the crime of attempt to possess with intent to sell, and, therefore, he should not have been sentenced for both crimes. Because we decide this case on alternate grounds, we need not reach this issue.

       Nothing in this opinion should be construed as a rebuke of the police for removing a large quantity of the marijuana from the package. We recognize that their action was a public safety measure designed to ensure that a large amount of marijuana does not find its way into our communities.


author: LAVERY, J.

text:
    STATE OF CONNECTICUT v. JOHN F.M.

    (AC 25313)
    DiPentima, Harper and Lavery, Js.
    Submitted April 22
    officially released September 9, 2008

      Martin Zeldis, public defender, for the appellant (defendant).

      James M. Ralls, senior assistant state’s attorney, with whom, on the brief, were Michael Dearington, state’s attorney, and Stacey M. Haupt, assistant state’s attorney, for the appellee (state).

       In accordance with our policy of protecting the privacy interests of the victims of sexual abuse, we decline to use the defendant’s full name or to identify the victim or others through whom the victim’s identity may be ascertained. See General Statutes § 54-86e.

   Opinion

LAVERY, J.

On this remand from the Supreme Court, we are charged with the duty to determine whether the jury instructions were proper and whether the defendant, John F.M. was targeted in a selective prosecution scheme. We affirm the judgment of the trial court.

As set forth in State v. John F.M., 285 Conn. 528, 940 A.2d 755 (2008), “[t]he jury reasonably could have found the following facts .... On April 22, 2002, the defendant lived with his wife, J, and her daughter from a prior relationship, the victim, who was seventeen years old. The victim, a junior in high school, stayed home from school that day due to sickness. The only other person home that morning was the defendant. While watching a movie together in the defendant’s bedroom, the defendant engaged in oral sex and vaginal intercourse with the victim. . . .

“The defendant subsequently was arrested and charged with one count of sexual assault in the second degree in violation of General Statutes § 53a-71 (a) (4), and one count of sexual assault in the third degree in violation of [General Statutes] § 53a-72a (a) (2). At the close of evidence in the defendant’s jury trial, the defendant moved for a judgment of acquittal on both counts. The defendant claimed that the evidence was insufficient to establish that, at the time the sexual assault had occurred, he was responsible for the general supervision of the victim’s welfare as required by § 53a-71 (a) (4), or that he was legally married to the victim’s mother as required by § 53a-72a (a) (2). The trial court granted the motion with respect to the first count, but denied the motion with respect to the second count, and submitted the case to the jury for deliberation. Thereafter, the jury found the defendant guilty of sexual assault in the third degree in violation of § 53a-72a (a) (2), and the trial court rendered judgment in accordance with the jury’s verdict.” (Citation omitted; internal quotation marks omitted.) State v. John F.M., supra, 285 Conn. 531-32.

This case initially came to this court on direct appeal from the defendant’s conviction of sexual assault in the third degree in violation of § 53a-72a (a) (2). See State v. John M., 94 Conn. App. 667, 894 A.2d 376 (2006). This court overturned the conviction of the defendant, and the Supreme Court granted certification to appeal limited to the questions of (1) whether there was insufficient evidence that the defendant was the stepfather of the victim to support a conviction of sexual assault in the third degree and (2) whether it was properly decided that § 53a-72a (a) (2) violated the right to equal protection. See State v. John M., 278 Conn. 916, 899 A.2d 622 (2006). The Supreme Court reversed the decision of this court and remanded the case to consider the defendant’s remaining claims. See State v. John F.M., supra, 285 Conn. 528.

I

The first of the remaining claims alleges that the court inaccurately instructed the jury as to an essential element of the crime. Specifically, the defendant claims that the instruction effectively took away an essential element of the crime, namely, that he was the stepfather of the victim, by discussing an admission made by the defendant to police that he was the victim’s stepfather. The state argues that the court charged that the defendant’s admissions constituted valid evidence the jury could consider. We agree with the state.

“In determining whether a trial court’s charge satisfies constitutional requirements . . . individual jury instructions should not be judged in artificial isolation, but must be viewed in the context of the overall charge. . . . The pertinent test is whether the charge, read in its entirety, fairly presents the case to the jury in such a way that injustice is not done to either party under established rules of law. . . . Thus, [t]he whole charge must be considered from the standpoint of its effect on the [jurors] in guiding them to the proper verdict . . . and not critically dissected in a microscopic search for possible error. . . . Accordingly, [i]n reviewing a constitutional challenge to the trial court’s instruction, we must consider the jury charge as a whole to determine whether it is reasonably possible that the instruction misled the jury. . . .

“The trial court should never assume a position of advocacy, real or apparent, in a case before it, and should avoid any displays of hostility or skepticism toward the defendant’s case, or of any approbation for the prosecution’s. ... In commenting on, or marshaling, evidence during its charge, the court is under a duty to provide a fair summary of the evidence and to demonstrate strict impartiality.” (Internal quotation marks omitted.) State v. Rodriquez, 107 Conn. App. 685, 696, 946 A.2d 294 (2008).

Although we have looked to the entire jury charge, the relevant section is as follows: “The crime of sexual assault in the third degree consists of three elements. These elements are:

“One, the defendant engaged in sexual intercourse with the complainant and, two, the complainant was then his stepdaughter, and three, the defendant knew the complainant was his stepdaughter when he engaged in sexual intercourse with her.
“As to the first element, the defendant engaged in sexual intercourse with the [complainant], . . .
“As to the second element, the [complainant] was then his stepdaughter. In order to be [the] stepdaughter of the defendant, the defendant must be married to the complainant’s biological mother, and the defendant is not the biological father of the complainant.
“As to the third element, the defendant knew the complainant was his stepdaughter when he engaged in sexual intercourse with her.
“To know has its usual meaning, that is, that the defendant was aware and understood that his wife was the biological mother of the complainant and that he was not the biological father of the complainant.
“An admission of a fact is evidence that the fact is true. If you find that the defendant has admitted that he engaged in sexual intercourse with the complainant, that is evidence that the defendant did, in fact, have sexual intercourse with the complainant.
“If you find that the defendant has admitted that he is married to the complainant’s mother and that he and his wife lived together for fourteen years and that he is the complainant’s stepfather, that is evidence that he is legally married to the complainant’s mother and that he is the complainant’s stepfather and that he knew he was the complainant’s stepfather.
“Now, bearing in mind the instructions I have given you regarding the crime of sexual assault in the third degree, the state has the burden to prove beyond a reasonable doubt, one, the defendant engaged in sexual intercourse with the complainant and, two, the complainant was then his stepdaughter and, three, the defendant knew the complainant was his stepdaughter when he engaged in sexual intercourse with her.”

Our Supreme Court determined that case law stemming from 1827 had been “overruled sub silentio by subsequent decisions of [that] court and, therefore, that the admissions of a criminal defendant not only are admissible, but often are sufficient, although not conclusive, evidence of a legal and valid familial relationship for purposes of a criminal prosecution.” State v. John F.M., supra, 285 Conn. 537-38; see State v. Roswell, 6 Conn. 446 (1827). Because of this legal development, the jury instructions accurately portrayed the law to the jury and were therefore not misleading. The court made it clear that the jury was to make a finding on whether there was an admission of the familial relationship. In making this finding, in addition to the admission of the defendant, the jury could consider the testimony of the victim that she was the defendant’s stepdaughter, that her mother had married him fourteen years before, that the defendant’s son was her stepbrother and that her health insurance was paid in part by the defendant. The victim’s sister testified that the defendant was her stepfather as well and that her mother had lived with the defendant before they got married in a church in Texas. Accordingly, we conclude that the jury instructions were not improper.

II

The defendant seeks review under State v. Golding, 213 Conn. 233, 239-40, 567 A.2d 823 (1989), for his final remaining claim on appeal, which is that he was selectively prosecuted in a discriminatory manner on the basis of his age and gender because the victim was not likewise prosecuted. The state argues that the record is insufficient for review of this claim. We agree with the state.

The standard of review for claims of selective prosecution is well settled. In cases in which the defense of selective prosecution has been asserted, before a motion to dismiss can be granted, the defendant must prove “(1) that others similarly situated have generally not been prosecuted and that he has been singled out and (2) that he is the victim of invidious discrimination based on impermissible considerations such as race, religion, or the exercise of a constitutionally protected right.” (Internal quotation marks omitted.) State v. Delossantos, 211 Conn. 258, 287, 559 A.2d 164, cert. denied, 493 U.S. 866, 110 S. Ct. 188, 107 L. Ed. 2d 142 (1989); see also United States v. Berrios, 501 F.2d 1207, 1211 (2d Cir. 1974).

The defendant’s claim fails because he has not presented an adequate record for review. There was no evidentiary hearing held to present evidence to the trial court on whether the defendant was singled out. The defendant refers to parts of the record to show that he was forty years of age while the victim was seventeen years of age and that they are identically situated with respect to the statute. The record is silent as to the state’s decision to prosecute. We cannot continue to analyze this claim without an adequate record.

The judgment is affirmed.

In this opinion the other judges concurred.

       General Statutes § 53a-72a (a) provides in relevant part: “A person is guilty of sexual assault in the third degree when such person ... (2) engages in sexual intercourse with another person whom the actor knows to be related to him or her within any of the degrees of kindred specified in section 46b-21.”
      General Statutes § 46b-21 provides: “No man may marry his mother, grandmother, daughter, granddaughter, sister, aunt, niece, stepmother or stepdaughter, and no woman may marry her father, grandfather, son, grandson, brother, uncle, nephew, stepfather or stepson. Any marriage within these degrees is void.”

       “Following [the Supreme Court’s] grant of certification, the appellate clerk’s office directed the parties to refer to this case as State v. John F.M., rather than State v. John M., to avoid confusion with an unrelated case, State v. John M., SC 17398, pending in [that] court. See State v. John M., 273 Conn. 916, 916-17, 871 A.2d 372 (2005) (granting petition for certification to appeal). Accordingly, we refer to the defendant as John F.M.” State v. John F.M., supra, 285 Conn. 530 n.2.

       Under Golding, a defendant can, on appeal, prevail on a constitutional claim of error when the claim was not raised in the trial court only if all of the following conditions are satisfied: “(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.” State v. Golding, supra, 213 Conn. 239-40.


text:
    MICHAEL J. KLUGER ET AL. v. EVELINE C. KUBICK
    (AC 27651)
    McLachlan, Gruendel and Mihalakos, Js.

      Argued April 28
    officially released September 9, 2008

      John F. X. Peloso, Jr., for the appellants (plaintiffs).

      Jennifer J. Tunnard, for the appellee (defendant).
   Opinion

GRUENDEL, J.

The plaintiffs, Michael J. Kluger and Iieidi M. Greene, appeal from the judgment of the trial court dismissing count two of their complaint for failure to make out a prima facie case in accordance with Practice Book § 15-8 and finding that the defendant, Eveline C. Kubick, has an easement by estoppel over a right-of-way owned by the plaintiffs. We affirm the judgment of the trial court.

In its memorandum of decision, the court found that in 1994, the defendant and her former husband purchased from the plaintiffs a parcel of land in Redding “together with a right-of-way to and from the public highway known as Lonetown Road.” The property contained a driveway that connected to the deeded right-of-way. In 1996, the defendant and her former husband subdivided their parcel into two parcels known as parcels A and B. When the defendant and her former husband separated, he quitclaimed his ownership in the two properties to her. Upon division of the property into parcels A and B, the existing driveway began at the defendant’s home in parcel B and crossed over into parcel A before reaching the right-of-way. Subsequently, after the division of the parcels, the defendant sold parcel A to a third party and retained parcel B, where her home existed. In the deed to the new owner of parcel A, the defendant reserved a license to use the driveway for a period of time while she constructed a new driveway, wholly contained on her property, to access the right-of-way. After the defendant constructed the driveway on her property, the plaintiffs initiated this lawsuit. Its three counts alleged that (1) the defendant did not have an additional easement over the right-of-way, (2) the construction and use of the driveway constituted an overburdening of the easement and (3) the construction and presence of the driveway caused damage to the plaintiffs. The defendant counterclaimed, seeking a declaration of whether she had an easement over the right-of-way.

After the plaintiffs’ case-in-chief, the defendant moved for dismissal of counts two and three in accordance with Practice Book § 15-8. The court granted this motion as to both counts and proceeded with the trial. At the end of the trial, the court rendered judgment in favor of the defendant, holding that the defendant has an easement by estoppel. This appeal followed. Additional facts will be set forth as necessary.

I

The plaintiffs’ first claim is that the court improperly dismissed count two of their complaint for failure to make out aprima facie case in accordance with Practice Book § 15-8. A review of the record reveals that although the court dismissed count two for failure to make out a prima facie case, it did not state its reason for doing so, and the plaintiffs failed to request an articulation of the court’s ruling. “It is well established that [i]t is the appellant’s burden to provide an adequate record for review. ... It is, therefore, the responsibility of the appellant to move for an articulation or rectification of the record where the trial court has failed to state the basis of a decision ... to clarify the legal basis of a ruling ... or to ask the trial judge to rule on an overlooked matter.” (Internal quotation marks omitted.) Schoonmaker v. Lawrence Brunoli, Inc., 265 Conn. 210, 232, 828 A.2d 64 (2003). Because the record is inadequate for review, we cannot review this issue.

II

The plaintiffs’ second claim is that there were no facts in the record to support the court’s finding that the plaintiffs agreed to the construction of an additional driveway, and, as such, the court improperly found that the defendant had an easement by estoppel. The three essential elements of estoppel, translated into the context of easements, were discussed in Mellon v. Century Cable Management Corp., 247 Conn. 790, 795, 725 A.2d 943 (1999): “(1) the party against whom estoppel is asserted must induce a belief in another person that certain facts exist, (2) the other party must change its position in reliance on that belief and (3) that party must suffer some injury as a result of such rebanee.” See also 1 Restatement (Third), Property, Servitudes § 2.10 (1) (2000).

In the present case, the court concluded that the defendant had an easement by estoppel because it found that “(1) there was a verbal agreement between the parties to construct a new driveway on the defendant’s parcel, with . . . Kluger . . . agreeing to the additional easement for the defendant’s parcel; (2) the parties agreed to the location of the new driveway; [and] (3) the defendant relied on this verbal agreement when she sold parcel ‘A’ to a third party and when she hired the paving company to relocate her driveway.” The plaintiffs do not argue that these findings are insufficient to support the determination that an easement by estoppel exists. Rather, the plaintiffs challenge the findings as not having support in the record. To determine whether the court’s findings have support in the record, “we must determine whether the facts set out in the memorandum of decision are supported by the evidence or whether, in light of the evidence and the pleadings in the whole record, those facts are clearly erroneous. . . . We also must determine whether those facts correctly found are, as a matter of law, sufficient to support the judgment. . . . [W]e give great deference to the findings of the trial court because of its function to weigh and interpret the evidence before it and to pass upon the credibility of witnesses . . . .” (Citations omitted; internal quotation marks omitted.) Briggs v. McWeeny, 260 Conn. 296, 322, 796 A.2d 516 (2002).

Kluger testified that he received a letter from the defendant regarding her intent to sell parcel A and offering to sell it to him. The two entered into negotiations, which never materialized, and the defendant ultimately sold the parcel to a third party. At the same time, the defendant also discussed with Kluger her intention to relocate her driveway and asked him if he would be willing to walk the property line so that the two could find a place to construct it that would be agreeable to both of them. Kluger agreed, and the two walked the property north of the then-existing driveway to determine the best location for the driveway. Both Kluger and the defendant testified that they stopped walking at a location where there was sufficient space between two pine trees to place a driveway. Although Kluger denied it, the defendant testified that Kluger agreed that this would be a good place to construct the driveway. The defendant, relying on this agreement, hired a paving company to install the new driveway. In addition, she testified that because she previously had agreed with Kluger on the location for installing the driveway, rather than negotiating with the new owner of parcel A to share the then-existing driveway, she instead retained only a license to use the existing driveway to gain access to and from the right-of-way while she constructed her new driveway.

As the court is entitled to do, it credited the testimony of the defendant. See id. It found that the defendant and Kluger had an agreement for the defendant to relocate her driveway to a specified area on her property and that the defendant relied on this agreement when she sold parcel A to a third party and hired and paid the paving company to construct a driveway on her property. As such, the court properly found that the plaintiffs were estopped from challenging the driveway once it was constructed.

The judgment is affirmed.

In this opinion the other judges concurred.

       Although the deeded right-of-way is actually fifty feet wide, the plaintiffs argue that what they call the “easement” is limited to the approximately seven foot wide gravel road within the fifty foot right-of-way. Because this discrepancy was not addressed by the court, we will not discuss it other than to note that it exists.

       As the court determined, an easement by estoppel is outside the statute of frauds because an oral easement may be created when there has been part performance by one of the parties. Walton v. New Hartford, 223 Conn. 155, 164 n.10, 612 A.2d 1153 (1992).


author: BISHOP, J.

text:
    NATHANIEL CARMONA v. COMMISSIONER OF CORRECTION
    (AC 29394)
    Bishop, DiPentima and Mihalakos, Js.
    Argued April 30
    officially released September 9, 2008

      Tejas Bhatt, assistant public defender, with whom were Jennifer L. Bourn, deputy assistant public defender, and, on the brief, Adele V. Patterson, acting chief of habeas corpus services, for the appellant (petitioner).

      MichaelE. O’Hare, supervisory assistant state’s attorney, with whom were Ann E. Lynch, assistant attorney general, and, on the brief, Erik T. Lohr, former deputy assistant state’s attorney, for the appellee (respondent).
   Opinion

BISHOP, J.

The petitioner, Nathaniel Carmona, appeals from the judgment of the habeas court denying his petition for a writ of habeas corpus. On appeal, the petitioner essentially claims that the respondent, the commissioner of correction, improperly calculated his effective date of release from incarceration. Because the petitioner has been released from the respondent’s custody, we dismiss the appeal as moot.

The following relevant facts are not in dispute. “On November 30, 2000, the [petitioner] was arrested for sale of narcotics in violation of General Statutes § 2 la-277 (a). He was arraigned in Bridgeport on December 1, 2000, and posted bond shortly thereafter (the Bridgeport file). The [petitioner] remained out on bond until April 28, 2001, when he was arrested for robbery in the second degree in violation of General Statutes § 53a-135. The [petitioner] was arraigned on this charge in Norwalk on April 30, 2001, and was subsequently held on bond (the Norwalk file). On June 4, 2001, the bond in the Bridgeport file was raised. On November 28,2001, the [petitioner] pleaded guilty in the Bridgeport file and received a sentence of five years, execution suspended after eighteen months, and three years probation. On March 18, 2002, the [petitioner] pleaded guilty in the Norwalk file and received a sentence of five years, execution suspended after twenty months, and four years probation, to run concurrently with the sentence in the Bridgeport file. The department of correction [department] credited both the Bridgeport and Norwalk sentences with presentence confinement credit. In the Bridgeport file, the [petitioner] received 177 days of credit for the time he served from June 4, 2001, the date the bond was raised, to November 28, 2001, the date he was sentenced. Therefore, the [petitioner’s] discharge date was calculated to be November 29, 2002. In the Norwalk file, the [petitioner] received 212 days of credit for the time he served from April 30, 2001, the date of his arraignment in that file, to November 28, 2001, the date of his sentencing in the Bridgeport file. Accordingly, the [petitioner’s] discharge date was calculated to be May 19, 2003. On that date, the [petitioner] was released to probation.

“Almost three years later, on April 25, 2006, the [petitioner] was arrested for violation of probation in the Bridgeport file. The [petitioner] was arrested for violation of probation in the Norwalk file two days later, on April 27,2006. On July 14,2006, the [petitioner] admitted to the violation of probation in the Norwalk file and was sentenced to twenty months in prison. On July 18, 2006, the [petitioner] admitted to the violation of probation in the Bridgeport file and was sentenced to one year in prison, to run concurrently with the Norwalk sentence. The department . . . credited the [petitioner] with seventy-eight days of presentence confinement credit on the Norwalk violation of probation sentence for the time the [petitioner] served from his arraignment on April 27, 2006, to his sentencing on July 14, 2006. Accordingly, the [petitioner’s] discharge date for the violation of probation in Norwalk would have been December 27, 2007. The department . . . however, added 177 days to the sentence as time owed, based on its interpretation of the Supreme Court’s decision in Harris v. Commissioner of Correction, 271 Conn. 808, 860 A.2d 715 (2004), which had been decided after the [petitioner] served his time on the underlying charges in the Bridgeport and Norwalk files, but before he violated his probation in those files. Therefore, the [petitioner’s] discharge date was calculated to be June 14,2008.” State v. Carmona, 104 Conn. App. 828, 829-31, 936 A.2d 243 (2007), cert. denied, 286 Conn. 919, 946 A.2d 1249 (2008).

The petitioner filed a motion to correct his sentence pursuant to Practice Book § 43-22. The trial court denied the petitioner’s motion on the basis that it lacked subject matter jurisdiction to correct the sentence because the sentence was not illegal at the time the court imposed it; the decision regarding the addition of the 177 days to the original sentence was that of the department. The petitioner appealed to this court, and we affirmed the judgment. See id., 833.

On June 25, 2007, the petitioner filed a five count amended petition for a writ of habeas corpus claiming that his due process rights were violated because the state failed to honor its plea agreement and because his plea was not knowing, voluntary and intelligent, that the manner in which the respondent applied his presentence confinement credit violated the proscriptions against ex post facto laws and double jeopardy and that he had ineffective assistance of counsel. The court rejected all of the petitioner’s claims and denied his petition for a writ of habeas corpus. The court granted certification to appeal, and this appeal followed.

We first determine whether the petitioner’s claim is moot. “Mootness implicates [this] court’s subject matter jurisdiction and is thus a threshold matter for us to resolve. ... It is a well-settled general rule that the existence of an actual controversy is an essential requisite to appellate jurisdiction; it is not the province of appellate courts to decide moot questions, disconnected from the granting of actual relief or from the determination of which no practical relief can follow. ... An actual controversy must exist not only at the time the appeal is taken, but also throughout the pendency of the appeal. . . . When, during the pendency of an appeal, events have occurred that preclude an appellate court from granting any practical relief through its disposition of the merits, a case has become moot.” (Internal quotation marks omitted.) Segal v. Segal, 264 Conn. 498, 505, 823 A.2d 1208 (2003). Here, the petitioner’s sole request for relief is for release from the custody of the respondent. Because the petitioner was discharged from the custody of the respondent on June 14, 2008, there is no practical relief we can afford him. Thus, his claim is moot.

We next consider whether, despite its mootness, the petitioner’s claim presents an issue that is capable of repetition yet likely to evade review. “[F]or an otherwise moot question to qualify for review under the ‘capable of repetition, yet evading review’ exception, it must meet three requirements. First, the challenged action, or the effect of the challenged action, by its very nature must be of a limited duration so that there is a strong likelihood that the substantial majority of cases raising a question about its validity will become moot before appellate litigation can be concluded. Second, there must be a reasonable likelihood that the question presented in the pending case will arise again in the future, and that it will affect either the same complaining party or a reasonably identifiable group for whom that party can be said to act as surrogate. Third, the question must have some public importance. Unless all three requirements are met, the appeal must be dismissed as moot.” Loisel v. Rowe, 233 Conn. 370, 382-83, 660 A.2d 323 (1995).

Although the petitioner’s claim implicates, generally, the methodology utilized by the respondent in calculating the effective release dates for inmates who are serving multiple sentences and may have earned preconviction credit on one or more of those sentences, it is factually unique in that the petitioner was released from custody on his original sentence before Harris and was returned as a result of having violated the terms of his probation after Harris, thus resulting in the recalculation of his release date. Because Loisel does not provide an exception to the mootness doctrine when it is merely possible that an issue could recur, but states instead that “there must be a reasonable likelihood that the question presented in the pending case will arise again in the future”; (emphasis added) id., 382; this factual distinction makes it unlikely that the petitioner’s claim is capable of repetition.

Additionally, as noted in Loisel, the “evading review” concept implicates the notion of time and its likely effect on a court’s ability to review an action or claim. Id. Thus, according to Loisel, “[i]f an action or its effects is not of inherently limited duration, the action can be reviewed the next time it arises, when it will present an ongoing live controversy. Moreover, if the question presented is not strongly likely to become moot in the substantial majority of cases in which it arises, the urgency of deciding the pending case is significantly reduced. Thus, there is no reason to reach out to decide the issue as between parties who, by hypothesis, no longer have any present interest in the outcome.” Id., 383-84.

Here, there is no basis for us to conclude that the issue of time calculation raised by the petitioner is likely to evade review. In Ruffin v. Commissioner of Correction, 89 Conn. App. 724, 874 A.2d 857 (2005), this court stated that “[w]e make that determination on the basis of our belief that there is no invariable connection between the issue of time calculation raised by the petitioner and the length of an inmate’s sentence. In other words, an inmate serving a lengthy sentence could make the same assertion as the present petitioner because the claim implicates a methodology that is just as applicable to long sentences as it is to shorter periods of incarceration. Thus, because the action challenged in this instance is not of a necessarily limited duration, we have no reason to conclude that, if raised in another matter, it would evade review. [Thus], there is no impulsion to decide the merits of this appeal because the issue reasonably can be decided on another day in which there is an actual controversy in which the vindication of one’s rights is, in fact, at issue.” Id., 728. For the same reasons expressed in Ruffin, we conclude that this court lacks jurisdiction to entertain the petitioner’s appeal.

The appeal is dismissed.

In this opinion the other judges concurred.

       In Harris v. Commissioner of Correction, supra, 271 Conn. 820, the Supreme Court decided that presentence confinement time earned simultaneously under two files must be used to reduce the sentence first imposed and may not be used again to reduce a sentence subsequently imposed.


author: HARPER, J.

text:
    CAROL S. MODUGNO v. COLONY FARMS OF COLCHESTER, INC., ET AL.
    (AC 28672)
    McLachlan, Harper and Beach, Js.

      Argued February 21
    officially released September 9, 2008

      Keith Yagaloff, for the appellant (plaintiff).

      Michael J. Tortora, for the appellee (named defendant).
   Opinion

HARPER, J.

The plaintiff, Carol S. Modugno, appeals from the judgment of the trial court, rendered after the jury’s verdict in favor of the defendant Colony Farms of Colchester, Inc. On appeal, the plaintiff claims that the court improperly denied her motion for a new trial. We affirm the judgment of the trial court.

The following facts and procedural history are relevant to our review. The plaintiff commenced this premises liability action in June, 2005. In her complaint, the plaintiff alleged that the defendant operated on its property a gasoline station and a farm stand and that she had been injured after tripping over a rocky, hilly parcel of terrain that led from the defendant’s parking lot to the farm stand. She further alleged that the defendant had been negligent, inter alia, in permitting the rocky condition to exist. On August 30, 2005, the defendant filed an answer that denied the plaintiffs allegation of premises liability negligence. The defendant also asserted two special defenses: (1) that the plaintiffs claims were limited, if not barred, by the doctrine of comparative, negligence, pursuant to General Statutes § 52-572h (b); and (2) that any dangerous condition on the defendant’s property was open and notorious.

The case was tried to the jury in September, 2006. On September 26, 2006, the jury returned a verdict in favor of the defendant, which the court accepted. The parties did not submit written interrogatories to the jury. The plaintiff thereafter filed a motion for a new trial, arguing that the court improperly (1) permitted the defendant to argue, during closing argument, that the plaintiff had failed to seek treatment for her alleged injuries during a certain period of time, (2) permitted the defendant to argue, during closing argument, that the plaintiff had not been prescribed ibuprofen during that same period and (3) excluded testimony about the zoning regulations, permit requirements and site plan applicable to the defendant. The plaintiff also argued that the first two of these three improprieties improperly called her credibility into question. On February 7, 2007, the court denied the plaintiffs motion. This appeal followed.

I

The plaintiff on appeal has renewed the claims contained in her motion for a new trial. Upon careful consideration, we conclude that, to the extent that the plaintiffs claims involve the admissibility of the subject evidence, the general verdict rule precludes us from reviewing those claims.

The general verdict rule provides that “if a jury renders a general verdict for one party, and no party requests interrogatories, an appellate court will presume that the jury found every issue in favor of the prevailing party.” (Internal quotation marks omitted.) Curry v. Burns, 225 Conn. 782, 786, 626 A.2d 719 (1993). “Thus, in a case in which the general verdict rule operates, if any ground for the verdict is proper, the verdict must stand; only if every ground is improper does the verdict fall. . . . Our Supreme Court has held that the general verdict rule applies, inter alia, to a situation in which there has been a denial of a complaint along with the pleading of a special defense.” (Citation omitted; internal quotation marks omitted.) Turturino v. Hurley, 98 Conn. App. 259, 262, 907 A.2d 1266 (2006).

The present case involves just such a scenario. The plaintiffs allegation of premises liability negligence was denied by the defendant, and the defendant pleaded two special defenses. Therefore, to determine if the general verdict rule precludes our review of the plaintiffs claims, we must determine whether the claimed improprieties relate to either of the two grounds on which the jury might have based its verdict. See Diener v. Tiago, 80 Conn. App. 597, 602, 836 A.2d 1224 (2003).

The plaintiff first claims that because the defendant failed to introduce medical records to show that the plaintiff had ceased treating her alleged injury for a certain period of time, the court improperly permitted the defendant to argue that the plaintiff had done so. Our careful review of the record reveals that this claim is in no way relevant to whether the plaintiff may have been contributorily negligent or whether any defective condition on the defendant’s property may have been open and notorious, as alleged in the defendant’s two special defenses. Rather, the issue of whether the plaintiff continuously treated her alleged injury is relevant to her allegation of premises liability negligence contained in the complaint itself; specifically, the claim relates to whether the plaintiff had been injured at all and to the extent of that injury. The plaintiffs second claim, which is that the court improperly permitted the defendant to state that the plaintiff had failed to obtain a prescription for ibuprofen during that same time period, similarly, is relevant only to the plaintiffs allegation of premises liability negligence and irrelevant to the defendant’s special defenses.

The plaintiffs final claim, which is that the court improperly excluded testimony about the zoning regulations, permit requirements and site plan applicable to the defendant, is relevant to whether a deficient condition existed on the defendant’s property and, thus, also relates only to the plaintiffs allegation of premises liability negligence. The nexus between the plaintiffs third claim and her allegation of premises liability negligence is more attenuated than that of her first two claims and, thus, deserves further explanation. The following colloquy, which occurred during oral argument before this court, and during which the plaintiff attempted to allay our concerns that the general verdict rule may preclude our review of her claims, serves to explain this nexus:

“The plaintiffs attorney: [T]he site plan would have shown that there was actually a sidewalk that ran in front of the entire property along the road and that this [farm stand] was supposed to be sited adjacent to the sidewalk.
“Judge Beach: So, had this site plan been adhered to, then your position is that your client would not have walked on that uneven surface.
“The plaintiffs attorney: That would be part of it, Your Honor, and that the [defendant] allowed the dangerous defect to be created and to exist and didn’t do anything about it because of the fact that it . . . put [its farm stand] on a piece of property not in a location [it] was supposed to put it in, not with the sidewalk that was supposed to be adjacent to the [farm stand].
“[I]n this case, if [the jury] heard [this evidence], we think, Your Honor, [that it] would have assessed the nature of the danger, the obligation to inspect and maintain differently than [it] did.”

This statement that had the jury heard of the alleged site plan violations, it would have “assessed the nature of the danger . . . differently than [it] did” demonstrates a fundamental misunderstanding of the general verdict rule on the part of the plaintiff, because this evidence is simply not relevant to whether the defendant should prevail with respect to its special defenses. Without the benefit of interrogatories, we are not able to determine whether the jury found for the defendant because the plaintiff failed to prove the allegations set forth in her complaint or because the defendant prevailed on its special defenses. We therefore must presume that the jury found all the issues in favor of the defendant. See Turturino v. Hurley, supra, 98 Conn. App. 263. Because each of the claimed improprieties relates only to the allegations of premises liability negligence contained in the plaintiffs complaint, and not to the allegations contained in the defendant’s special defenses, the general verdict rule precludes our review of the plaintiffs claims to the extent that they involve the admissibility of the subject evidence.

II

We now turn to the plaintiffs claim that the court improperly denied her motion for a new trial because the defendant’s assertions during closing argument improperly called into question the plaintiffs credibility. We conclude that the record is inadequate to review this claim.

The following additional facts and procedural history are largely undisputed. The plaintiff initially sought treatment for her claimed injury with Pedro A. Romero, a physician. The plaintiff ceased treating her injury with Romero after three months. Seventeen months later, the plaintiff resumed treating her injury with Romero. At trial, she testified that dining the seventeen month period in which she was not treating her injury with Romero, she was treating it with Raymond London, another physician. She also testified that London had prescribed her ibuprofen in connection with his treatment.

During closing argument, the defendant’s counsel indicated that although the plaintiff claimed to have treated her injury with London, she had failed to present any medical records to corroborate such a claim. He further argued that although the plaintiff claimed that London had prescribed her ibuprofen, the defendant had presented proof that this had not occurred.

After the defendant’s counsel completed his closing argument, the plaintiffs counsel, outside of the presence of the jury, took exception to these two assertions. After hearing argument from both counsel, the court stated: “All right. All right. We need to bring the jury back in. Okay. Thank you.” The court offered no further explanation, nor took any action with respect to the plaintiffs exceptions.

After the jury returned a verdict in favor of the defendant, the plaintiff, on October 6, 2006, filed a motion for a new trial in which she argued that two assertions made by counsel for the defendant during closing argument improperly called her credibility into question. In support of this argument, she contended that London’s medical records indicated that he had in fact prescribed her ibuprofen and that she had failed to introduce London’s medical records pursuant to an in chambers agreement that had been reached with the defendant’s counsel. The defendant, on October 25, 2006, filed an objection to the motion for a new trial, in which it argued that London’s medical records clearly indicated that he had prescribed the plaintiff ibuprofen in relation to an entirely unrelated injury and, further, that an agreement not to introduce London’s medical records did not exist. The court, on February 7, 2007, denied the plaintiffs motion. No memorandum of decision or oral ruling accompanied this denial. We are therefore left without findings of fact or conclusions of law as to the court’s decision.

This court was presented with a similar scenario in Ceslik v. Winer, 62 Conn. App. 650, 772 A.2d 655 (2001). In Ceslik, the plaintiff had brought an action to recover on a promissory note. Id., 651. After the trial court rendered judgment in favor of the defendant, the plaintiff filed a motion for a new trial on the basis of newly discovered evidence. Id. The trial court denied the plaintiffs motion for a new trial without supplying a written memorandum of decision or oral ruling. Id. On appeal, this court concluded that because the plaintiff had failed to request an articulation of the trial court’s decision, the record before it was inadequate to review the plaintiffs claim. Id., 653. This court reasoned as follows:

“This court has consistently adhered to the rule of Practice Book § 61-10, which provides that it is the responsibility of the appellant to provide an adequate record for review. ... It was, therefore, incumbent on the plaintiff to move for an articulation of the court’s ruling pursuant to Practice Book § 66-5.
“Further, this court has held that the responsibility that arises out of Practice Book § 61-10 includes moving for articulation when the trial court has failed to state the basis of a decision ... [or when] the legal basis of a ruling is unclear ....
“The plaintiffs failure to request an articulation of the court’s decision pursuant to Practice Book § 66-5 has resulted in an inadequate record for this court to review the court’s factual findings that formed the basis of its decision. Thus, [w]e are . . . left to surmise or speculate as to the existence of a factual predicate for the trial court’s [ruling]. Our role is not to guess at possibilities, but to review claims based on a complete factual record developed by a trial court. . . . Without the necessary factual and legal conclusions furnished by the trial court . . . any decision made by us respecting [the plaintiffs claims] would be entirely speculative.” (Citations omitted; internal quotation marks omitted.) Id., 651-53.

Accordingly, we conclude that under the present circumstances, the plaintiff was required to file a motion for an articulation so as to provide us with an adequate record for appellate review. Because the plaintiff failed to do so, we are unable to review her claim.

The judgment is affirmed.

In this opinion the other judges concurred.

       William F. Loughery, an employee of the defendant Colony Farms of Colchester, Inc., was also named as a defendant. Shortly before trial, the plaintiff withdrew her complaint against him. We therefore refer in this opinion to Colony Farms of Colchester, Inc., as the defendant.

       On February 5, 2008, we notified the parties via letter to be prepared to address at oral argument “any questions that the court might have as to whether the general verdict rule precludes appellate review of the plaintiffs claims on appeal.”

       The defendant’s counsel referenced a medical record from Romero’s second round of treatment that stated that he would “start her on ibuprofen” and argued to the jury that “[i]f [the plaintiff] was on [ibuprofen], she would have said, Dr. [Romero], I’m already on this. Dr. London has me on it. She wouldn’t need to be put on it.”

       The court questioned the plaintiffs counsel as to whether London had in fact prescribed ibuprofen for the plaintiff. The plaintiffs counsel was unable to state whether this had occurred. The plaintiffs counsel further contended that he had failed to introduce London’s medical records due to either an agreement he had reached with the defendant’s counsel or a motion in limine that had precluded their introduction.