text:
    JAYNE S. v. KYLE S.

    (AC 30459)
    Graendel, Lavine and Lavery, Js.
    Submitted on briefs May 21
    officially released September 1, 2009

      Theodore J. Wurz filed a brief for the appellant (defendant).

       In accordance with the spirit and intent of General Statutes § 46b-142 (b) and Practice Book § 79-3, the names of the parties involved in this appeal are not disclosed. The records and papers of this case shall be open for inspection only to persons having a proper interest therein and upon order of the Appellate Court.

   Opinion

PER CURIAM.

The defendant, Kyle S., appeals from the judgment of the trial court granting the application for a restraining order filed by the pro se plaintiff, Jayne S., pursuant to General Statutes § 46b-15. He claims that the court abused its discretion in so doing because no factual basis existed to support the requisite finding that he presented a continuous threat of present physical pain or physical injury to the plaintiff and her boyfriend, Joseph K. We affirm in part and reverse in part the judgment of the trial court.

The record reveals the following facts. On September 8, 2008, the plaintiff filed an application for relief from abuse against the defendant, to whom she was married at that time. That application sought, inter alia, to protect both the plaintiff and Joseph K. from the defendant by imposing certain restraints, including an order that he not threaten, harass, stalk, assault, molest, sexually assault or attack them. The plaintiff attached an affidavit to her application, in which she averred as follows: “A full protective order was issued in January of 2008 against [the defendant] to protect [the plaintiff and her minor children as a] result of [the defendant] kicking me and breaking my rib and being arrested on January 7, 2008. It was reduced to a modified protective order to allow [the defendant] contact [with] me regarding our child [T], Since the modification, [the defendant] has left me a threatening voicemail stating [that] he was going to find me and kill me, has physically come after me punching his hand saying he was going to kill me, [has] driven by me screaming obscenities [and has been] telling acquaintances [that] he was going to kill me and [Joseph K], He called my human resource [s] [personnel] looking to know [where] I was working

That same day, the court, Levine, J., issued an ex parte domestic violence restraining order, granting the relief requested, and scheduled a hearing for September 19, 2008. See General Statutes § 46b-15 (b). At the conclusion of the September 19, 2008 hearing, the court, Prestley, J., continued the matter and extended the initial domestic violence restraining order for two weeks.

The parties returned to court on October 3, 2008. At that hearing before the court, Hon. Bernard D. Gaffney, judge tiial referee, the plaintiff testified that she believed that she was in danger and repeated the allegations contained in her affidavit, including that she had to transfer her place of employment “to get away from [the defendant].” The court thereafter extended the existing restraining order for a period of six months. From that judgment, the defendant appeals.

We begin by noting that although the restraining order has since expired, the present appeal is not moot. In Putman v. Kennedy, 279 Conn. 162, 164-65, 900 A.2d 1256 (2006), our Supreme Court held that “the expiration of a domestic violence restraining order does not render an appeal from that order moot because it is reasonably possible that there will be significant collateral consequences for the person subject to the order.” Accordingly, we proceed to the merits of the defendant’s appeal.

The defendant first claims that the court abused its discretion in granting the restraining order with respect to the plaintiff. Specifically, he alleges that the plaintiff failed to present sufficient evidence to support a finding that he presented a “continuous threat of present physical pain or physical injury” to the plaintiff, as required by § 46b-15 (a). See Putman v. Kennedy, supra, 279 Conn. 171. That claim lacks merit. The court was presented with evidence that the defendant assaulted the plaintiff some nine months earlier, which resulted in a broken rib for the plaintiff and the issuance of a protective order against the defendant. The court heard testimony from the plaintiff regarding the defendant’s subsequent threats to her life and the physical gestures and profanities he directed toward her. The court, as the sole arbiter of credibility; see Somers v. Chan, 110 Conn. App. 511, 530, 955 A.2d 667 (2008); was free to credit the plaintiffs testimony. In addition, the court was presented with evidence that the defendant had attempted to ascertain the whereabouts of the plaintiff by contacting her employer, which precipitated her transfer to a new employment location. In light of that evidence and in addition thereto, the plaintiff testified that she feared that she was “in danger.” On that evidence, we conclude that the court reasonably could find that the defendant presented a continuous threat of present physical pain or physical injury to the plaintiff and thus did not abuse its discretion in extending the restraining order for a period of six months.

We cannot say the same with regard to the restraining order as it pertains to Joseph K. At neither the September 19 nor the October 3, 2008 hearing did the plaintiff present any evidence regarding a threat of physical pain or physical injury to Joseph K. Without that evidentiary foundation, the court could not find that the defendant presented a continuous threat to Joseph K. We therefore conclude that the court abused its discretion in extending the restraining order insofar as it pertained to Joseph K.

The judgment is reversed in part and the case is remanded with direction to vacate the restraining order with respect to Joseph K. The judgment is affirmed in all other respects.


source: Caselaw Access Project

author: DiPENTIMA, J. ALVORD, J.,

license: Public Domain

text:
    STATE OF CONNECTICUT v. RICHARD KOSLIK
    (AC 29673)
    DiPentima, Robinson and Alvord, Js.

      Argued April 28
    officially released September 1, 2009

      Jodi Zils Gagne, for the appellant (defendant).

      Joseph Rubin, associate attorney general, with whom, on the brief, was Richard Blumenthal, attorney general, for the appellee (state).
   Opinion

DiPENTIMA, J.

The defendant, Richard Koslik, appeals from the denial of his motion to correct an illegal sentence. On appeal, he claims that his sentence is illegal because the term of probation exceeds the permissible statutory maximum for violations of General Statutes § 20-427 (b) (3) and (5). We conclude that the record is inadequate for our review and, therefore, affirm the judgment of the trial court.

The following factual and procedural history is relevant to our discussion. The defendant had been convicted of representing himself falsely as or impersonating a registered home improvement contractor in violation of § 20-427 (b) (3) and offering to make home improvements without having a certificate of registration in violation of § 20-427 (b) (5). The court, Wollenberg, J., sentenced the defendant to a total effective term of one year imprisonment, execution suspended after 180 days, and three years probation. State v. Koslik, 80 Conn. App. 746, 749, 837 A.2d 813, cert. denied, 268 Conn. 908, 845 A.2d 413 (2004). This court affirmed the judgment on direct appeal. Id., 748. The defendant began serving his sentence on April 6, 2004, and his period of probation commenced on September 24,2004.

On February 28, 2007, a warrant was issued for the defendant’s arrest on the basis of a violation of probation. The arrest warrant was executed on April 9, 2007, within the three year period of probation. On September 25, 2007, the defendant, pursuant to Practice Book § 41-8 (1), (2), (3) and (9), moved to dismiss the information and filed a motion to correct an illegal sentence pursuant to Practice Book § 43-22. Specifically, he argued that violations of § 20-427 (b) (3) and (5) constitute class B misdemeanors, and, therefore, the term of probation could not exceed two years. See General Statutes (Rev. to 2001) § 53a-29 (d). The defendant then acknowledged that § 20-427 (c) authorized probation for a period of not more than five years if the court determined that a defendant, convicted of violating § 20-427, could not fully repay a victim within the period of probation set forth in § 53a-29. The defendant argued that because the sentencing court found that the defendant could repay the victim fully within eighteen months, imposing a probationary period of greater than two years was illegal.

On November 15, 2007, the court, B. Fischer, J., held a hearing on the defendant’s motion to correct an illegal sentence. On December 11, 2007, the court denied the defendant’s motion. This appeal followed.

I

As a threshold matter, we must address the state’s claim that the court lacked jurisdiction to consider the defendant’s motion to correct an illegal sentence. The state argues that because the defendant’s sentence fell within the permissible parameters of § 20-427, the trial court lacked jurisdiction pursuant to our Supreme Court’s decision in State v. Lawrence, 281 Conn. 147, 913 A.2d 428 (2007). We disagree with the state’s jurisdictional argument.

We begin by setting forth the legal principles germane to our discussion. “It is axiomatic that jurisdiction involves the power in a court to hear and determine the cause of action presented to it and its source is the constitutional and statutory provisions by which it is created.” (Internal quotation marks omitted.) State v. Reid, 277 Conn. 764, 774, 894 A.2d 963 (2006). “The Superior Court is a constitutional court of general jurisdiction. In the absence of statutory or constitutional provisions, the limits of its jurisdiction are delineated by the common law.” (Internal quotation marks omitted.) State v. Das, 291 Conn. 356, 361, 968 A.2d 367 (2009); see also State v. DeJesus, 288 Conn. 418, 457, 953 A.2d 45 (2008). Issues regarding subject matter jurisdiction present a question of law, and, therefore, we employ the plenary standard of review. State v. Carmona, 104 Conn. App. 828, 832, 936 A.2d 243 (2007), cert. denied, 286 Conn. 919, 946 A.2d 1249 (2008); see also State v. Richardson, 291 Conn. 426, 429, 969 A.2d 166 (2009); State v. Lewis, 108 Conn. App. 486, 488, 948 A.2d 389 (2008) (whether motion fell within scope of Practice Book § 43-22 reviewed under plenary standard). Last, we note our Supreme Court’s instruction that “in determining whether a court has subject matter jurisdiction, every presumption favoring jurisdiction should be indulged.” (Internal quotation marks omitted.) State v. Fowlkes, 283 Conn. 735, 739, 930 A.2d 644 (2007).

Our jurisprudence recognizes that the jurisdiction of a sentencing court terminates once that sentence has begun and, thus, that court may not take any action affecting the sentence unless it expressly has been authorized to act. Cobham v. Commissioner of Correction, 258 Conn. 30, 37, 779 A.2d 80 (2001); see also State v. Das, supra, 291 Conn. 362-63; State v. Tabone, 279 Conn. 527, 533, 902 A.2d 1058 (2006). Both this court and our Supreme Court, however, have stated that courts have the power to correct an illegal sentence. State v. Daniels, 207 Conn. 374, 387, 542 A.2d 306, after remand for articulation, 209 Conn. 225, 550 A.2d 885 (1988), cert. denied, 489 U.S. 1069, 109 S. Ct. 1349, 103 L. Ed. 2d 817 (1989); State v. Guckian, 27 Conn. App. 225, 245, 605 A.2d 874 (1992), aff'd, 226 Conn. 191, 627 A.2d 407 (1993); State v. Elliott, 8 Conn. App. 566, 574, 513 A.2d 1285 (judicial authority may correct illegal sentence at any time), cert. denied, 201 Conn. 813, 517 A.2d 630 (1986).

In State v. Lawrence, supra, 281 Conn. 147, our Supreme Court extensively discussed when atrial court has the authority to modify a criminal judgment after the sentence has been executed. It began by noting that absent a legislative, constitutional or common-law basis for continuing jurisdiction, the trial court lacks jurisdiction to modify its judgment. Id., 153-55. The court then explained the common-law exceptions, embodied in Practice Book § 43-22, to the rule preventing the court from affecting a sentence after it has begun. “Connecticut courts have considered four categories of claims pursuant to § 43-22. The first category has addressed whether the sentence was within the permissible range for the crimes charged. . . . The second category has considered violations of the prohibition against double jeopardy. . . . The third category has involved claims pertaining to the computation of the length of the sentence and the question of consecutive or concurrent prison time. . . . The fourth category has involved questions as to which sentencing statute was applicable.” (Citations omitted; internal quotation marks omitted.) State v. Lawrence, supra, 156-57.

Accordingly, if a defendant’s claim falls within one of these four categories the trial court has jurisdiction to modify a sentence alter it has commenced. It must, however, make the preliminary determination of whether the claim Mis within one of these categories before considering the merits of a claim of an illegal sentence. See, e.g., State v. Das, supra, 291 Conn. 369-70 (determination concerning jurisdiction made before consideration of merits). If the claim is not within one of these categories, then the court must dismiss the claim for a lack of jurisdiction and not consider its merits. State v. Lawrence, supra, 281 Conn. 159. Put another way, because jurisdiction implicates a court’s ability to act, a court may only consider the merits of a claim once the preliminary determination has been resolved in favor of jurisdiction.

Our Supreme Court has concluded that to invoke successfully the court’s jurisdiction with respect to a claim of an illegal sentence, the focus cannot be on what occurred during the underlying conviction. Id., 158; see also State v. Motto, 63 Conn. App. 487, 491, 776 A.2d 1176, cert. denied, 257 Conn. 904, 777 A.2d 194 (2001). “In order for the court to have jurisdiction over a motion to correct an illegal sentence after the sentence has been executed, the sentencing proceeding, and not the trial leading to the conviction, must be the subject of the attack.” State v. Lawrence, supra, 281 Conn. 158. In Lawrence, the defendant’s claim presupposed an invalid conviction; therefore, it was outside of the scope of the exceptions to the general rule regarding a court’s lack of jurisdiction after a sentence has begun. Id., 159.

In the present case, the defendant, via his motion, argued that his sentence of three years of probation was illegal. “An illegal sentence is essentially one which either exceeds the relevant statutory maximum limits, violates a defendant’s right against double jeopardy, is ambiguous, or is internally contradictory.” (Internal quotation marks omitted.) State v. McNellis, 15 Conn. App. 416, 443-44, 546 A.2d 292, cert. denied, 209 Conn. 809, 548 A.2d 441 (1988); see also State v. Das, supra, 291 Conn. 363 n.3.

The defendant’s claim is that his sentence of three years probation was illegal because it exceeded the relevant statutory maximum. Section 20-247 (c) provides that violations of § 20-427 (b) (3) and (5) are class B misdemeanors. The maximum term of probation for a class B misdemeanor, as stated in § 53a-29 (d), is two years. He argues that because the sentencing court did not make a finding that permits an extended period of probation; see General Statutes § 40-247 (c); his three year sentence of probation exceeded the relevant statutory maximum of two years probation. The defendant’s claim presents a “classic” example of an illegal sentence. See State v. Barksdale, 79 Conn. App. 126, 829 A.2d 911 (2003); State v. McNellis, supra, 15 Conn. App. 443-44. Put another way, the defendant argues that, in the present case, a sentence of three years of probation is legal if, and only if, the sentencing court makes the required determination regarding repayment to the victim. Absent that determination, any sentence exceeding two years of probation is an illegal sentence because it exceeds the statutory maximum. Regardless of the merits of such a claim, we conclude that the court had jurisdiction to entertain the defendant’s motion to correct an illegal sentence.

The basis for the defendant’s motion is that the sentence he received exceeds the maximum statutory limit prescribed for the crimes for which he was convicted. Our Supreme Court expressly has stated that in such an event, “§ 43-22 would be the proper vehicle by which [a defendant] could invoke the trial court’s jurisdiction.” State v. Lawrence, supra, 281 Conn. 159. The defendant challenged the events that occurred at the sentencing hearings, and not the underlying conviction. He argued that because the sentencing court found that he could repay the victim within an eighteen month period, three years of probation exceeded the maximum permitted sentence. We conclude, therefore, that the trial court had jurisdiction to consider the defendant’s motion to correct an illegal sentence.

II

Having resolved the threshold jurisdictional question, we now turn to the merits of the arguments presented on appeal. The defendant claims that his sentence of probation should not have been extended to three years because the sentencing court (1) never found him to be a contractor and (2) found that he could repay the victims within eighteen months, and, therefore, his period of probation should not have exceeded two years. We address each claim in turn.

A

The defendant first argues that his sentence of probation should not have been extended to three years because the sentencing court never found him to be a contractor. Specifically, he contends that § 20-427 (c) permitted the court to extend the period of probation to five years for contractors only and that he had been convicted not of being a contractor but of “representing himself as a home improvement contractor and offering to make a home improvement contract without a registration.” We decline to consider this claim.

The defendant raised his claim for the first time on appeal. His motion to correct an illegal sentence presented only the claim that the sentencing court found that he could repay the victims within eighteen months. We have often stated that “we will not consider claims not made before the trial court and raised for the first time on appeal.” (Internal quotation marks omitted.) State v. Mounds, 110 Conn. App. 10, 21, 953 A.2d 938, cert. denied, 289 Conn. 938, 958 A.2d 1257 (2008); State v. Moody, 77 Conn. App. 197, 204, 822 A.2d 990, cert. denied, 264 Conn. 918, 827 A.2d 707, cert. denied, 540 U.S. 1058, 124 S. Ct. 831, 157 L. Ed. 2d 714 (2003); see also State v. Cecil J., 291 Conn. 813, 826 n.11, 970 A.2d 710 (2009); Practice Book § 60-5. “For this court to . . . consider [a] claim on the basis of a specific legal ground not raised during trial would amount to trial by ambuscade, unfair both to the [court] and to the opposing party.” (Internal quotation marks omitted.) State v. Bell, 113 Conn. App. 25, 41, 964 A.2d 568, cert. denied, 291 Conn. 914, 969 A.2d 175 (2009). Accordingly, we decline to review this claim.

B

The defendant next argues that his sentence of probation should not have been extended to three years because the sentencing court found that he could repay the victims within eighteen months, and, therefore, his sentence should not have exceeded two years. We conclude that the record is inadequate to review this claim.

The following additional facts are necessary for our discussion. The defendant’s sentencing occurred on July 18, 2002. The sentencing court initially indicated that it would sentence the defendant to three years probation with the special condition of restitution. It then ordered $500 monthly payments to the victims for a period of eighteen months after the defendant’s release from incarceration. Assistant attorney general Matthew B. Beizer, representing the state, stated to the court: “I believe the statute under which you referred earlier that allows you to give him an extended period of probation—you have to make a finding that he is unable to pay during that period of time .... Obviously, if he is incarcerated . . . .” The court replied: “I will find that he cannot fully repay the victims within the period of probation of—well, that’s not so. I’m ordering it within eighteen months. So that . . . I’m finding that he can make the payment.” A discussion ensued on whether the sentence could be stayed for one month to allow the defendant to complete some business obligations. The defendant then requested an appeal bond. The state objected to the stay and deferred to the court on the issue of the appeal bond.

Beizer then stated that he had been advised that the court could not sentence the defendant to consecutive terms of probation. The court then reconsidered its sentence and stated: “So that on each charge, six months, suspended after ninety days, three years probation, consecutively. Total effective sentence, one year . . . suspended after 180 days, three years probation.”

A review of the record of the sentencing proceedings reveals that it is, at best, ambiguous as to the court’s finding regarding repayment to the victims. Although it is true that, at one point, the court appeared to state that the defendant could repay the victims within eighteen months, such a reading of the transcript ignores what occurred before and after. Subsequent to the court’s eighteen months comment, it heard additional information regarding the defendant’s business and comments from counsel regarding the relevant statutes. The court then “revisited” its sentence and ordered, inter alia, three years of probation. As we indicated, Beizer expressly had alerted the court of the requirement necessary to extend the period of probation beyond two years. We may presume that the court was cognizant of this requirement when it ordered a three year period of probation. See, e.g., State v. Adgers, 101 Conn. App. 122, 132-33, 921 A.2d 122 (appellate court will not presume error by trial court), cert. denied, 283 Conn. 903, 927 A.2d 915 (2007); State v. Baker, 50 Conn. App. 268, 275 n.5, 718 A.2d 450 (“[although the record in this case does not reveal the basis of the trial court’s decision, [w]e do not presume error; the trial court’s ruling is entitled to the reasonable presumption that it is correct unless the party challenging the ruling has satisfied its burden demonstrating the contrary” [internal quotation marks omitted]), cert. denied, 247 Conn. 937, 722 A.2d 1216 (1998).

The lack of an adequate record for review is compounded further as a result of the proceedings before the trial court, B. Fischer, J., on the defendant’s motion to correct an illegal sentence. In its decision denying the motion, the court, after setting forth the relevant statutory framework, stated: “[Section] 20-427 does wot require the sentencing judge to make the factual determination explicitly on the record before sentencing the defendant to more than two years of probation. The defendant has cited no authority in Connecticut for the proposition that the absence of making an explicit factual finding on the record where the statute requires a judicial determination results in an illegal sentence. The court finds [that the sentencing court] sentenced the defendant under the applicable statute and within the statutory limits.” (Emphasis added.)

The basis for the court’s denial of the motion to correct appears to be the fact that it determined that an explicit finding at the sentencing hearing was not necessary to extend the probation period to three years. The court simply concluded that the sentence was within the appropriate limits. There was no finding regarding the defendant’s ability to repay the victims. We note that the defendant failed to file a motion for articulation with respect to the decision of the sentencing court or the decision denying his motion to correct an illegal sentence.

The defendant, as the appellant, bears the burden, pursuant to Practice Book § 61-10, of providing this court with an adequate record. See State v. Bonner, 290 Conn. 468, 493, 964 A.2d 73 (2009). Our Supreme Court “recently has reiterated the fundamental point that [i]t is incumbent upon the [defendant] to take the necessary steps to sustain [his] burden of providing an adequate record for appellate review. . . . 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 defendant’s claims] would be entirely speculative.” (Internal quotation marks omitted.) State v. Brunetti, 279 Conn. 39, 63, 901 A.2d 1 (2006), cert. denied, 549 U.S. 1212, 127 S. Ct. 1328, 167 L. Ed. 2d 85 (2007); State v. Cotto, 111 Conn. App. 818, 821, 960 A.2d 1113 (2008). Accordingly, we decline to review the defendant’s claim.

The judgment is affirmed.

In this opinion ROBINSON, J., concurred.

ALVORD, J.,

concurring. I agree with the majority opinion because it appears to be the result required by our Supreme Court’s decision in State v. Lawrence, 281 Conn. 147, 913 A.2d 428 (2007). In Lawrence, our Supreme Court stated that “for the trial court to have jurisdiction to consider the defendant’s claim of an illegal sentence, the claim must fall into one of the categories of claims that, under the common law, the court has jurisdiction to review.” (Emphasis added.) Id., 155. I write separately, however, because I believe that the common law does not extend jurisdiction to situations implicated by the defendant’s claim, and I am concerned that our Supreme Court did not intend us to interpret Lawrence as enlarging the common law to afford jurisdiction to all claims that superficially fall within the four categories set forth in that opinion. See State v. Lawrence, supra, 155-57.

The majority, like our Supreme Court in Lawrence, cites several cases in which Connecticut courts have considered motions to correct an illegal sentence. A review of these cases, however, reveals that postexecution jurisdiction was often presumed because the issue of an illegal sentence was presented via a direct appeal. That is not the case here.

A review of the remainder of the cases cited by the majority and the Lawrence court shows that jurisdiction was found only when the challenged sentence was in fact illegal.* * That also is not the case here.

In the present case, the defendant argues that his sentence of three years probation is illegal because it exceeds the maximum statutory limits prescribed for the crime for which he was convicted. I agree with the majority that the record of the sentencing proceeding is inadequate. The trial court’s jurisdiction to review the defendant’s motion would be determined by whether the defendant’s sentence fell within the permissible range of sentences for the crimes charged in this case. The defendant argues that the permissible range of probation pursuant to General Statutes § 20-427, as applied to the facts of this case, has a maximum of two years. The state argues that the permissible range has a maximum of five years because the defendant has failed to provide an adequate record to allow for a review of the sentencing court’s factual findings in this case. On the basis of the common law, it appears that the state correctly argues that the permissible range of sentences has a maximum of five years because the defendant failed to provide Judge Fischer with an adequate record. See Orcutt v. Commissioner of Correction, 284 Conn. 724, 738 n.25, 937 A.2d 656 (2007) (“in the absence of an articulation—which the appellant is responsible for obtaining—we presume that the trial court acted properly”).

I also find persuasive the state’s argument that neither Lawrence, nor the cases cited in it, have found jurisdiction when the court imposed a sentence that was plainly authorized by a statute but was arguably illegal because the court did not make a determination required by the sentencing statute.

In this case, the record of the sentencing proceeding is, as the majority notes, at best ambiguous. Because of the inadequacy of the record, the determination of the sentencing court, Wollenberg, J., with regard to the defendant’s ability to repay his victims within the usual two year statutory limit is not clear. On the basis of the record, I cannot say that five years is not the permissible statutory limit. I, therefore, would find that the defendant’s sentence is facially valid and that the common-law exceptions would not apply to grant jurisdiction in this case. Accordingly, I would conclude that the general rule, that a court loses jurisdiction over a defendant’s sentence after it has been executed, applies and, therefore, would reverse the judgment and remand the case with direction to dismiss the motion to correct an illegal sentence.

Because, however, we appear to be bound by our Supreme Court’s analysis of the common law in Lawrence, I respectfully concur.

       On January 25,2007, the defendant was arrested for numerous violations of General Statutes §§ 20-427 (b), 42-135a and 35-1. The application for an arrest warrant also alleged that the defendant had failed to comply with the court-ordered restitution, thereby violating the terms of probation.

       All references and citations in this opinion to General Statutes § 53a-29 are to that statute as revised to 2001, a change in that statute having been effected by the enactment of Public Acts 2008, No. 08-102, to decrease the maximum period of probation for a class B misdemeanor from two years to one year.

       Practice Book § 43-22 provides: “The judicial authority may at any time correct an illegal sentence or other illegal disposition, or it may correct a sentence imposed in an illegal maimer or any other disposition made in an illegal manner.”

       Even if we were to consider this claim on appeal, we would conclude that it is without merit. General Statutes § 20-419 sets forth certain definitions applicable to the Home Improvement Act. Section 20-419 (3) provides in relevant part: “ ‘Contractor’ means any person who owns and operates a home improvement business or who undertakes, offers to undertake or agrees to perform any home improvement. . . .”
      Section 20-419 (4) sets forth the definition for “home improvement” and provides in relevant part that the term includes “the repair, replacement, remodeling, alteration, conversion, modernization [or] improvement . . . to any land or building or that portion thereof which is used or designed to be used as a private residence . . . .”
      A review of the facts underlying the defendant’s conviction reveals that the defendant’s conduct unequivocally fell within the applicable statutory definition of contractor. See State v. Koslik, supra, 80 Conn. App. 748-49.

       The sentencing court stated: “I’m going to sentence you on each charge— on each finding of guilty I’m going to commit you to the commissioner of correction for a period of six months, suspended after ninety days. And, in as much as restitution is not being paid now, I’m going to have you do three years [of] probation on each to run consecutive, for a total effective sentence of one year, suspended after 180 days, three years probation.”

       Specifically, the defendant wanted to finish building cabinets and to have another individual, a registered contractor, install those cabinets.

       The initial sentence discussed by the court contained a term of probation of three years.

       The following colloquy occurred between the sentencing court, assistant attorney general Beizer and an assistant state’s attorney:
      “[The Assistant Attorney General]: I was advised—foEowing up on our previous discussion about the statute with a probation. Madam [assistant] state’s attorney tells me that probation cannot run consecutively.
      “The Court: So that on each, madam? We’ll revisit that. So that on each charge, six months, suspended after ninety days, three years probation, consecutively. Total effective sentence, one year . . . suspended after 180 days, three years probation.
      “[The Assistant State’s Attorney]: The charges that he was convicted of, are they [class] A misdemeanors?
      “[The Assistant Attorney General]: [Class] B.
      “[The Assistant State’s Attorney]: [Class] B. The maximum is two years, but it’s not under the statute—
      “The Court: Not under the statute. If he doesn’t pay restitution in that period of time. AE right. Anything else?” (Emphasis added.)

       The defendant also has requested review pursuant to the plain error doctrine. “[T]he plain error doctrine . . . is not . . . a rule of reviewability. It is a rule of reversibility. That is, it is a doctrine that this court invokes in order to rectify a trial court ruling that, although either not properly preserved or never raised at all in the trial court, nonetheless requires reversal of the trial court’s judgment, for reasons of policy. . . . In addition, the plain error doctrine is reserved for truly extraordinary situations where the existence of the error is so obvious that it affects the fairness and integrity of and public confidence in the judicial proceedings. . . . Plain error is a doctrine that should be invoked sparingly. . . . [Invocation of the plain error doctrine is reserved for occasions requiring the reversal of the judgment under review.” (Emphasis in original; internal quotation marks omitted.) State v. Bowman, 289 Conn. 809, 817, 960 A.2d 1027 (2008). We conclude that plain error review is not warranted under the circumstances presented.

       Our Supreme Court in Lawrence had no need to and did not fully analyze the parameters of whether a claim within those categories need be valid, colorable or a bare claim because, under the facts in that case, it found that the trial court lacked jurisdiction when the defendant’s motion to correct an illegal sentence was based on a challenge to the underlying conviction, not the legality of the sentence. State v. Lawrence, supra, 281 Conn. 158-59.

       See State v. Daniels, 207 Conn. 374, 387, 542 A.2d 306 (on state’s direct appeal, no double jeopardy violation because Practice Book § 935 [now 8 43-22] provides “the power, at any time, to correct a sentence that is illegal”), after remand for articulation, 209 Conn. 225, 550 A.2d 885 (1988), cert. denied, 489 U.S. 1069, 109 S. Ct. 1349, 103 L. Ed. 2d 817 (1989); State v. Guckian, 27 Conn. App. 225, 245, 605 A.2d 874 (1992) (on state’s appeal from sentencing, state not required to file motion to correct in trial court because both “the trial court and this court, on appeal, have the power, at any time, to correct a sentence that is illegal”), aff'd, 226 Conn. 191, 627 A.2d 407 (1993); see also State v. Davis, 190 Conn. 327, 334-35, 461 A.2d 947 (on direct appeal, trial court was without authority to open judgment because sentence was within permissible range for crimes charged), cert. denied, 464 U.S. 938, 104 S. Ct. 350, 78 L. Ed. 2d 315 (1983); State v. Shipp, 79 Conn. App. 427, 433-34, 830 A.2d 368 (on direct appeal, sentence illegal because defendant’s fine of $200 exceeded statutory maximum of $100), cert. denied, 267 Conn. 902, 838 A.2d 212 (2003); State v. Barksdale, 79 Conn. App. 126, 139, 829 A.2d 911 (2003) (on direct appeal, sentence illegal when defendant sentenced to twenty years because at time he committed crime, it was class C felony for which maximum period of incarceration was ten years); State v. Mitchell, 37 Conn. App. 228, 232-33, 655 A.2d 282 (1995) (on direct appeal, double jeopardy claim moot because trial court corrected sentence); State v. McNellis, 15 Conn. App. 416, 443-50, 546 A.2d 292 (on direct appeal, defendant’s claim that sentence imposed in illegal manner meritless), cert. denied, 209 Conn. 809, 548 A.2d 441 (1988).

       See State v. Cator, 256 Conn. 785, 804-805, 781 A.2d 285 (2001) (motion to correct illegal sentence proper when initial sentence violates right against double jeopardy and exceeds maximum statutory limit); State v. Mollo, 63 Conn. App. 487, 490-91, 776 A.2d 1176 (no jurisdiction to consider motion to correct when sentence imposed was facially valid), cert. denied, 257 Conn. 904, 777 A.2d 194 (2001); State v. Elliott, 8 Conn. App. 566, 574-75, 513 A.2d 1285 (no jurisdiction for court to impose increased sentence where execution of original legal sentence has commenced), cert. denied, 201 Conn. 813, 517 A.2d 630 (1986); see also State v. Tabone, 279 Conn. 527, 533-45, 902 A.2d 1058 (2006) (jurisdiction when total sentence of twenty years exceeds statutory limit of ten years); but see State v. Banks, 59 Conn. App. 145, 147-48, 763 A.2d 1046 (2000) (no jurisdictional analysis when finding that trial court properly denied state’s motion to correct that claimed General Statutes § 53a-37 did not authorize court to impose concurrent sentence).
      Although these cases indicate a somewhat circular analysis, namely, that the merits of a claim raised in a motion to correct must be addressed before jurisdiction is found, the analysis was bom out of the common law and thus arose to create only a narrow exception pursuant to which the court retains jurisdiction to correct sentences that are truly illegal.

       It is important to note that the present case is not one in which either (1) as a matter of law, the sentencing court could not determine that the defendant could fully repay his victims within the usual period of probation or (2) the sentencing court explicitly and unambiguously determined that the defendant could fully repay his victims within the usual period of probation. In such a case, we might very well be constrained to hold that the relevant statutory limit for a period of probation for a violation of § 20-427 is two years.


author: LAVERY, J.

text:
    STATE OF CONNECTICUT v. ONTARIO I. GAINEY
    (AC 29143)
    Flynn, C. J., and Robinson and Lavery, Js.

      Argued April 30
    officially released September 1, 2009

      KentDrager, senior assistant public defender, for the appellant (defendant).

      James M. Ralls, senior assistant state’s attorney, with whom, on the brief, were John A. Connelly, state’s attorney, and David A. Gulick, assistant state’s attorney, for the appellee (state).
   Opinion

LAVERY, J.

The defendant, Ontario I. Gainey, appeals from the judgment of conviction, rendered after a jury trial, of possession of narcotics in violation of General Statutes § 21a-279 (a). On appeal, the defendant claims that (1) the trial court improperly responded to a jury question regarding nonexclusive possession and (2) the evidence adduced at trial was insufficient to prove that he constructively possessed the heroin found hidden in a car. We agree with the defendant on both claims and reverse the judgment of the trial court.

The jury reasonably could have found the following facts. On November 10, 2005, the Waterbury police department served a search warrant for the defendant, his residence and a Chevrolet Blazer (Blazer) in the yard. Upon the police officers' entry into the house where the defendant resided, they detained the defendant and a female individual inside. One of the officers found a set of keys in one of the bedrooms on the first floor, which unlocked the Blazer in the yard. Also found in that bedroom was an eviction notice addressed to the defendant and a Jane Doe. The search then moved to the kitchen where a scale and a plastic bag with rice were found. There were no drugs, money or needles found in the house. The search then continued inside the Blazer. The search yielded atwo month old Connecticut Light and Power Company shut off notice in the defendant’s name, a screwdriver that was being used to start the ignition, as well as a cellular telephone instruction manual with the defendant’s nickname written on it with “several hearts and designs on it” found under the rear seat. But the search did not yield any insurance or registration cards, and the last registered owner of the vehicle was not the defendant. Hidden in the ashtray area in the rear passenger compartment, the officers found a plastic bag with several ounces of rice and fifteen blue glassine bags with a brown substance in it that was later confirmed as heroin.

During deliberation, the jury sent seven notes to the court. The first note requested that the testimony regarding the plastic bag in which the heroin was stored be read back. The court complied with this request. The second note requested that the court repeat its charge to the jury on the charged offense and the lesser included offense. The court in response reread a portion of its instructions and provided the jury with a three page handout of its instructions. The third note requested that the court “define further: ‘knowingly possessed or had under his control’? More specific what does under control mean?” The court responded by rereading the instructions it previously had given on constructive possession. The fourth note requested that the jurors have the response to their third note in writing. The court responded by providing the jury with a two page handout containing the instructions requested. The fifth note indicated that the jury had reached a verdict on the first count but had reached a stalemate as to the lesser charge. The court responded by giving a “Chip Smith” charge. The sixth note had four separate questions: (1) “[w]ith regards to ‘constructive possession’ in court exhibit [six], it is stated that constructive possession requires two things, control and knowledge. Can we find constructive possession with only knowledge or only control. Because in court exhibit [three] it states or not and(2) “If we find joint possession do we have to find exclusive control?”; (3) “Can you define exclusive control?”; and (4) “If we find the defendant is not the exclusive owner of the vehicle, can we still infer that he contro [l]led the vehicle?” (Emphasis in original.) The court responded to the note by saying, “I cannot answer specific questions that you ask under our law, but I am going to send you back into the jury room with court’s exhibit nine, which is a chronological portion or an orderly portion of more of the instruction. It includes the portions that you previously had, and those were provided to you separately to answer or to assist you in answering your earlier questions.” The jury’s final note indicated that the jury had reached a decision on both counts. The jury found the defendant not guilty of possession of narcotics with intent to sell by a person who is not drug-dependent and guilty of possession of narcotics. The court sentenced the defendant to a term of four and one-half years imprisonment. This appeal followed. Additional facts will be set forth as necessary.

I

The defendant claims that the court improperly addressed the sixth jury note that specifically asked for direction on exclusive control and whether an inference of control of the vehicle could be made if the defendant was not the exclusive owner. The state argues that the court fairly informed the jury of the law and gave it sufficient guidance. We agree with the defendant.

The defendant did not preserve his claim and seeks review under State v. Golding, 213 Conn. 233, 239-40, 567 A.2d 823 (1989). We conclude that the first prong of Golding is satisfied because we were presented with a full transcript of the hearings and the jury notes so that the record is adequate for review. We conclude that because the jury clearly alerted the court about its confusion as a result of the instructions regarding the element of possession, the claim is of constitutional magnitude. See State v. Leroy, 232 Conn. 1, 7, 653 A.2d 161 (1995). Accordingly, we conclude that the defendant’s claim is reviewable.

Because we conclude that the defendant’s claim is reviewable, we identify the applicable standard of review and set forth the legal principles that govern our resolution of the defendant’s instructional claims, “[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 the 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. ... In other words, we must consider whether the instructions [in totality] are sufficiently correct in law, adapted to the issues and ample for the guidance of the jury.” (Citation omitted; internal quotation marks omitted.) State v. Peeler, 271 Conn. 338, 360-61, 857 A.2d 808 (2004), cert. denied, 546 U.S. 845, 126 S. Ct. 94, 163 L. Ed. 2d 110 (2005). “[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. Smith, 70 Conn. App. 393, 398, 797 A.2d 1190, cert. denied, 261 Conn. 924, 806 A.2d 1063 (2002).

“[A] jury instruction that improperly omits an essential element from the charge constitutes harmless error if a reviewing court concludes beyond a reasonable doubt that the omitted element was uncontested and supported by overwhelming evidence, such that the jury verdict would have been the same absent the error . . . .” (Emphasis in original; internal quotation marks omitted.) State v. Montgomery, 254 Conn. 694, 738, 759 A.2d 995 (2000), quoting Neder v. United States, 527 U.S. 1, 17, 119 S. Ct. 1827, 144 L. Ed. 2d 35 (1999).

In its instructions to the jury, the court discussed that there may be either actual or constructive possession, and it explained what is needed to establish either. There was no instruction or guidance from the court, however, on nonexclusive possession. The defendant does not claim that this omission in the original instruction was improper, only that it was improper not to address it once the jury explicitly raised the issue. The state argues that this claim has been considered and rejected by this court in State v. Crawley, 93 Conn. App. 548, 567, 889 A.2d 930, cert. denied, 277 Conn. 925, 895 A.2d 799 (2006). We conclude that this case is readily distinguishable from Crawley. To start, in Crawley, the defendant claimed impropriety in the original jury charge in that the court failed to address nonexclusive possession. Id., 565. Further, this court held that “with regard to the doctrine of nonexclusive possession, the court’s failure to deliver such an instruction on its own initiative, absent a request to charge, would constitute a constitutional violation only if the court was obligated to deliver such an instruction when it is warranted by the evidence in a case before it.” Id., 568. Most importantly, the jury in Crawley did not itself request instruction on nonexclusive possession. Id. Here, when the jury itself requested instruction on this doctrine, and having evidence that warranted such an instruction, not providing the jury with what it needed to decide this case was a constitutional violation.

There was testimony in this case that there was another person in the house when the police served the search warrant and testimony that an officer found an eviction notice addressed to the defendant and a Jane Doe. There was no police testimony that it was clear that the bedroom in which the keys to the Blazer were found belonged to the defendant. In fact, the testimony made it clear that the officers did not know whose room it was. Further, it was unclear to whom the Blazer belonged. Because there was no written request to charge from the defendant, we do not consider whether there should have been an instruction on nonexclusive possession in the original charge. We conclude, however, that once the jury itself raised the concern of nonexclusive possession, and because there was adequate evidence to put nonexclusive possession in issue, the court should have instructed the jury on the relevant law. This failure to instruct affected the jury’s deliberation on the essential element of control, which the state had to prove in this case beyond a reasonable doubt.

On the basis of our review of the record and relevant case law, we conclude that it is reasonably possible that the jury was misled by the court’s instruction, and, therefore, the defendant has satisfied the third prong of Golding. Cf. State v. Tate, 59 Conn. App. 282, 286, 755 A.2d 984, cert. denied, 254 Conn. 935, 761 A.2d 757 (2000).

“[A] jury instruction that improperly omits an essential element from the charge constitutes harmless error if a reviewing court concludes beyond a reasonable doubt that the omitted element was uncontested and supported by overwhelming evidence, such that the jury verdict would have been the same absent the error . . . .” (Internal quotation marks omitted.) State v. Montgomery, supra, 254 Conn. 738, quoting Neder v. United States, supra, 527 U.S. 17. On the basis of our review of the record, we conclude that the court’s omission of this instruction was harmful to the defendant, as the evidence of his control of the heroin was minimal. The presence of a two month old utility bill in the glove compartment and a cellular telephone instruction booklet found under the rear seat with the defendant’s nickname written on it surrounded by handwritten hearts and designs on it is not overwhelming evidence that the defendant had exclusive possession over the Blazer. 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 their presence and had control of them, unless there are other incriminating statements or circumstances tending to buttress such an inference. See State v. Williams, 258 Conn. 1, 7, 778 A.2d 186 (2001).

Accordingly, after reviewing the record, we conclude that the omitted element of control of the narcotics was contested and not supported by incriminating statements or other buttressing evidence of any substance; absent the error, the jury verdict may not have been the same. See State v. Montgomery, supra, 254 Conn. 738. The defendant’s claim satisfies the fourth prong of Golding because the state has failed to demonstrate harmlessness of the alleged constitutional violation beyond a reasonable doubt, and the error may have resulted in the defendant’s conviction.

II

The defendant also claims that the evidence was insufficient to prove the element of control necessary for a conviction of possession of narcotics. The state argues that there was a reasonable basis for the jury to infer that the defendant constructively possessed the heroin. We agree with the defendant.

“In reviewing the sufficiency of the evidence to support a criminal conviction we apply a two-part test. First, we construe the evidence in the light most favorable to sustaining the verdict. Second, we determine whether upon the facts so construed and the inferences reasonably drawn therefrom the [finder of fact] reasonably could have concluded that the cumulative force of the evidence established guilt beyond a reasonable doubt. . . . We note that the jury must find every element proven beyond a reasonable doubt in order to find the defendant guilty of the charged offense, [but] each of the basic and inferred facts underlying those conclusions need not be proved beyond a reasonable doubt. ... If it is reasonable and logical for the jury to conclude that a basic fact or an inferred fact is true, the jury is permitted to consider the fact proven and may consider it in combination with other proven facts in determining whether the cumulative effect of all the evidence proves the defendant guilty of all the elements of the crime charged beyond a reasonable doubt.” (Internal quotation marks omitted.) State v. Davis, 283 Conn. 280, 329-30, 929 A.2d 278 (2007).

“[I]t is a function of the jury to draw whatever inferences from the evidence or facts established by the evidence it deems to be reasonable and logical. . . . Because [t]he only kind of an inference recognized by the law is a reasonable one . . . any such inference cannot be based on possibilities, surmise or conjecture. ... It is axiomatic, therefore, that [a]ny [inference] drawn must be rational and founded upon the evidence. . . . However, [t]he line between permissible inference and impermissible speculation is not always easy to discern. When we infer, we derive a conclusion from proven facts because such considerations as experience, or history, or science have demonstrated that there is a likely correlation between those facts and the conclusion. If that correlation is sufficiently compelling, the inference is reasonable. But if the correlation between the facts and the conclusion is slight, or if a different conclusion is more closely correlated with the facts than the chosen conclusion, the inference is less reasonable. At some point, the link between the facts and the conclusion becomes so tenuous that we call it speculation. When that point is reached is, frankly, a matter of judgment.” (Internal quotation marks omitted.) State v. Niemeyer, 258 Conn. 510, 518, 782 A.2d 658 (2001).

We construe the elements of § 21a-279a and apply them to the facts as reasonably could be found by the jury. “When construing a statute, [o]ur fundamental objective is to ascertain and give effect to the apparent intent of the legislature. ... In other words, we seek to determine, in a reasoned manner, the meaning of the statutory language as applied to the facts of [the] case, including the question of whether the language actually does apply. ... In seeking to determine that meaning, General Statutes § l-2z directs us first to consider the text of the statute itself and its relationship to other statutes.” (Internal quotation marks omitted.) State v. Rios, 110 Conn. App. 442, 449, 954 A.2d 901 (2008).

Pursuant to our rules of law, § 21a-279 (a) requires that “the state . . . establish beyond a reasonable doubt that the accused knew of the character of the drag and its presence and exercised dominion and control over it. . . . Where . . . the contraband is not found on the defendant’s person, the state must proceed on the alternate theory of constructive possession, that is, possession without direct physical contact. . . . Where the defendant is not in exclusive possession of the [place] 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.” (Internal quotation marks omitted.) State v. Sanchez, 75 Conn. App. 223, 242, 815 A.2d 242, cert. denied, 263 Conn. 914, 821 A.2d 769 (2003). “To mitigate the possibility that innocent persons might be prosecuted for . . . possessory offenses ... it is essential that the state’s evidence include more than just a temporal and spatial nexus between the defendant and the contraband.” (Internal quotation marks omitted.) State v. Davis, 84 Conn. App. 505, 510-11, 854 A.2d 67, cert. denied, 271 Conn. 922, 859 A.2d 581 (2004).

The only element that the defendant contests is control. The state was required to prove beyond a reasonable doubt that the defendant possessed the heroin seized by the police. See General Statutes § 21a-279 (a). Such possession may be actual or constructive. State v. Williams, 110 Conn. App. 778, 785, 956 A.2d 1176, cert. denied, 289 Conn. 957, 961 A.2d 424 (2008). Both actual and constructive possession require a person to exercise dominion and control over the controlled substance and to have knowledge of its presence and character. State v. Hernandez, 254 Conn. 659, 669, 759 A.2d 79 (2000). Actual possession requires the defendant to have had “ ‘direct physical contact’ ” with the narcotics. State v. Williams, supra, 787. Typically, the state will proceed under a theory of constructive possession when the narcotics are not found on the defendant’s person at the time of arrest but the accused still exercises dominion and control. See, e.g., State v. Fasano, 88 Conn. App. 17, 25, 868 A.2d 79, cert. denied, 274 Conn. 904, 876 A.2d 15 (2005), cert. denied, 546 U.S. 1101, 126 S. Ct. 1037, 163 L. Ed. 2d 873 (2006).

The heroin was not found on the defendant’s person. He was not in control of the Blazer at the time the heroin was found. The record is devoid of any incriminating statements made by the defendant. To infer that the defendant had control of the narcotics, there must be circumstances tending to buttress such an inference.

The state argues that the eviction notice in the bedroom supported an inference that the room was the defendant’s, as there was no evidence to show that the woman detained during the search was the Jane Doe named in the notice or that she even lived at the house. The state then argues that an inference can then be made that because the keys to the Blazer were found in what can be inferred as the defendant’s bedroom, the keys belonged to the defendant. Further, the state argues that the two items with the defendant’s name, and the lack of any other items that seemed to belong to another in the car, support the inference that the defendant exercised dominion and control over the vehicle.

There is no more than a temporal and spatial nexus between the defendant and the contraband, which is insufficient proof of control. The eviction notice, without more, was insufficient to show that the room in which it was found was the defendant’s bedroom, and, further, it could not be used to show that the room was exclusively for the use of the defendant. Presumably, an eviction notice that was addressed to both the defendant and a Jane Doe would concern any inhabitant of the house. There was also testimony about a woman being inside the house when the warrant was served. The items found inside the vehicle do not buttress the inference of exclusive control, either. Again, paperwork regarding the house, even in the defendant’s name, does not evince control, especially if the jury had to consider that the house was inhabited by at least two persons. Additionally, the testimony regarding the cellular telephone instruction book was that the defendant’s name was decorated “with hearts and designs” and does not overwhelm us that there is more than a temporal or spatial nexus between the defendant and the drugs that were found in the backseat ashtray. There was insufficient evidence to conclude that the defendant exercised dominion and control over the heroin, and, therefore, the state did not meet its burden of proof necessary to convict the defendant of possession of narcotics.

The judgment is reversed and the case is remanded with direction to render judgment of not guilty.

In this opinion the other judges concurred.

       The substitute information in this case charged the defendant with the crime of possession of narcotics with intent to sell by a person who is not drug-dependent in violation of General Statutes § 21a-278 (b). The defendant was acquitted of this charge but convicted of the lesser included offense of possession of narcotics in violation of § 21a-279 (a).

       The defendant also alleges that the original jury instruction on constructive possession was inaccurate as a matter of law and that the prosecutor committed impropriety in his arguments to the jury. Because die first two claims are dispositive of this case, we decline to review these claims.

       The testimony was clear that the officers did not know in whose bedroom the keys were found or to whom the keys belonged.

       “The purpose of the [Chip Smith] instruction is to prevent a hung jury by urging the jurors to attempt to reach agreement. It is a settled part of Connecticut jurisprudence . . . . D. Borden & L. Orland, 5 Connecticut Practice Series: Connecticut Criminal Jury Instructions Criminal Jury Instructions (2d Ed. 1997) § 4.4, p. 245.” (Internal quotation marks omitted.) Monti v. Wenkert, 287 Conn. 101, 112 n.4, 947 A.2d 261 (2008).

       In Golding, our Supreme Court concluded that “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.” (Internal quotation marks omitted.) State v. Knybel, 281 Conn. 707, 712-13, 916 A.2d 816 (2007). “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. Brown, 279 Conn. 493, 500, 903 A.2d 169 (2006).

       In the model charge on possession, the following is the language set out for nonexclusive possession: “[i]f you find that the defendant was not in exclusive possession of the premises where the narcotics were found, in order to infer that [the defendant] knew of their presence, and that [the defendant] was in control of them, you must also find that he made an incriminating statement or that there are other circumstances which tend to support that inference.” (Emphasis in original.) D. Borden & L. Orland, 5A Connecticut Practice Series: Connecticut Criminal Jury Instructions (4th Ed. 2007) § 15.2, p. 405.


author: LAVINE, J.

text:
    IN RE ZION R.

    (AC 29907)
    Harper, Lavine and Beach, Js.

      Argued May 26
    officially released September 1, 2009

      Karen Oliver Damboise, for the appellant (respondent mother).

      Stephen G. Vitelli, assistant attorney general, with whom, on the brief, were Richard Blumenthal, attorney general, and Susan T. Pearlman, assistant attorney general, for the appellee (petitioner).

       In accordance with the spirit and intent of General Statutes § 46b-142 (b) and Practice Book § 79-3, the names of the parties involved in this appeal are not disclosed. The records and papers of this case shall be open for inspection only to persons having a proper interest therein and upon order of the Appellate Court.

   Opinion

LAVINE, J.

The respondent mother appeals from the judgment of the trial court terminating her parental rights with respect to her minor child, Zion. On appeal, the respondent claims that the court improperly (1) concluded that she had failed to achieve such degree of rehabilitation as would encourage the belief that within a reasonable time, considering the age and needs of the child, she could assume a responsible position in the child’s life and (2) considered the best interest of the child during the adjudication phase of the petition. We affirm the judgment of the trial court.

The following procedural history and facts, found by the court, Foley, J., are relevant for our review of the respondent’s claim. The child was bom on August 30, 2006, and the petitioner, the commissioner of children and families, placed a ninety-six hour hold on her behalf on September 1, 2006. See General Statutes § 17a-101g. On that same day, the petitioner filed a motion for an order of temporary custody and a petition alleging that the child was neglected. The court, Boland, J., issued an order of temporary custody, placing the child in the care of the petitioner on September 1, 2006. The child was adjudicated neglected on March 19, 2007. See footnote 2.

The respondent has had an extensive history with the department of children and families (department) since 1999. Four of her six children already had been removed by the department, and her parental rights have been terminated with respect to at least two of them. The department had ongoing concerns regarding the respondent’s inadequate living conditions, substance abuse issues, domestic violence issues, inadequate supervision of children, lack of parenting skills and unaddressed mental health issues. The respondent has a history of alcohol and substance abuse, including abuse of cocaine and metamphetamine, that started when she was twelve years old. She admitted to last using cocaine sometime in January, 2007. The respondent had suicidal tendencies at a young age. She was placed in juvenile detention after threatening to kill her mother. She escaped after assaulting a staff member with a baseball bat. The respondent is diagnosed with borderline personality disorder and possible post-traumatic stress disorder.

The respondent had a long history of engaging in relationships with men who were controlling and physically abusive toward her and her children. In 2005, the respondent left her eldest daughter in the care of the respondent’s father, who allegedly sexually abused the daughter. The respondent later stated that her father also had sexually abused her when she was younger. In November, 2005, the department received a report of a domestic violence incident between the respondent and J, the father of one of her children. In May, 2006, the respondent reported that R, the child’s father, had pushed her against a wall. On May 13, 2006, R was arrested after hitting his then fifteen year old son in the face with a socket wrench. The respondent instructed her children not to give statements to the police in connection with that incident. On March 28, 2006, the department learned that another son of R, who also resided with the respondent and her children, reportedly abused his six year old half-sister in 2003. The respondent indicated that she was aware of that report but did not think that he was a threat to her children. On May 9, 2006, the respondent left the family home because R had physically and verbally abused her. Also in May, 2006, the department received reports that R sexually abused the respondent’s eldest daughter. Between June and August, 2006, the respondent regularly visited R in prison and received letters from him, in one of which he called her a dog and wrote that he was going to walk her to a dog park.

The department had concerns regarding the respondent’s housing. On December 8, 2005, she obtained housing through a housing authority but was evicted in January, 2006, after she allowed R and his two sons to reside there. During the summer of 2006, while pregnant with the child, she missed numerous prenatal doctor appointments, including stress tests. In the summer of 2006, she went through a period of homelessness and briefly stayed at a domestic violence shelter. She was asked to leave the shelter in August, 2006, after receiving warnings for noncompliance with curfew and noncooperation with domestic violence counseling. During the summer and until December, 2006, the respondent rejected housing options in programs that would have allowed her to have her children with her. In about December, 2006, the respondent’s whereabouts were unknown to the department, and she later said that she was temporarily living in her car. After she resumed contact with the department and informed it that she was living with a female friend, she failed to comprehend why the friend’s significant criminal history made that residence inappropriate for the purposes of reunification with her children, stating that the friend “accidentally murdered someone when they were teenagers and ‘gang bangers.’ ”

Prior to the child’s birth, the department provided numerous services to the respondent, including an intensive family preservation program, from which the respondent was discharged upon the removal of her children from the home. The department also offered domestic violence counseling, which the respondent failed to complete successfully. She similarly refused individual therapy services, as well as offers to enter into a domestic violence shelter while she resided with R. In January, 2007, the respondent entered into Youth Challenge Mission for Women (Youth Challenge), a twelve to eighteen month program with a religious focus, primarily directed at substance abuse. In February and March, 2007, the department informed the respondent that Youth Challenge did not meet the needs of reunifying her with the child because of the length of the program and the fact that the child could not reside and bond with her. Tammy Bailey, a social worker for the department, sent a letter to the respondent in March, 2007, listing four programs in which she could have children with her. The respondent stated that she wanted to remain at Youth Challenge. Bailey testified that the department was unable to evaluate the respondent’s progress at Youth Challenge because her progress reports offered no indication of how the respondent would function in the general community.

On September 19, 2007, the petitioner filed a petition for termination of parental rights. A trial before Judge Foley took place on April 1 and 3, 2008. The court heard testimony from the respondent; Bailey; Melissa Bair, a social worker for the department; Stephen M. Humphrey, a licensed clinical psychologist; Barbara Wagenbrenner, a developmental therapist; and Shari Jennings, the intake supervisor at Youth Challenge. On April 8, 2008, the court granted the petition and ordered the termination of parental rights. The court found that the department had made reasonable efforts to reunify the child with the respondent, that the respondent had failed to achieve such degree of personal rehabilitation as would encourage the belief that within a reasonable time, considering the age and needs of the child, she could assume a responsible position in the child’s life, and that the termination of parental rights was in the child’s best interest. The respondent filed an appeal from the court’s judgment on May 19, 2008. Further facts will be set forth as necessary.

I

The respondent’s first claim is that the court improperly found that she had failed to achieve such degree of rehabilitation as would encourage the belief that within a reasonable time, considering the child’s age and needs, she could assume a responsible position in the child’s life. The respondent argues that the court disregarded evidence of her progress at Youth Challenge, especially in light of the fact that participation in the program was included in the court-ordered specific steps. She also argues that the court improperly found that her rehabilitation was not foreseeable within a reasonable time. We disagree with the respondent.

The following additional facts are necessary for our consideration of the respondent’s claim. The court heard the testimony of the respondent and Jennings regarding Youth Challenge. The respondent testified that the participants at Youth Challenge are strictly supervised during their first year at the program. Jennings stated that the participants are chaperoned twenty-four hours a day for the first twelve months of the program. The respondent described in detail her highly structured and monitored schedule at the program and contrasted it with her previous lifestyle. She testified about personal changes she had undergone. The evidence shows that, although the respondent was frustrated during the first six months at the program, she had made significant progress at the time of the trial in April, 2008. She no longer required strict supervision and had assumed certain duties within the program. The respondent also testified that she was looking for employment and pursuing a spot on the Hartford housing authority list.

The petitioner introduced testimony and a psychological evaluation report from Humphrey, who observed and interviewed the respondent and her children in May and June, 2007. In addition to diagnosing the respondent with borderline personality disorder, Humphrey determined that she has a history of cocaine and alcohol abuse, problematic attachment, sexual abuse, suicidal ideation and gestures and self-injurious behavior. She has minimal formal education and employment history, significant problems with independent living unrelated to her intellectual ability, difficulties with interpersonal boundaries and a history of arrest and incarceration. Humphrey noted the progress that the respondent had achieved but expressed skepticism about markedly increased contact between her and her children within the next one to two years. He stated that he did not recommend reunification, or even consideration of reunification in the near future, due to the fact that the respondent’s problems were deep seated and ingrained. At the trial, Humphrey explained that the respondent should be reassessed six months after her reentry into the general community. Humphrey also testified that, given the respondent’s history, the likelihood of her relapse to drugs, alcohol or abusive relationships was very high.

The court, in its memorandum of decision, made the following findings. Although the respondent had made significant personal progress, she had not established the ability to maintain herself in the community. She had not completed a recognized program in domestic violence prevention or parenting education. She was not employed, and she lacked any significant employment history. It was unclear whether and how the respondent’s mental health problems identified by Humphrey were addressed and resolved at the program. The respondent was living within the “protective womb” of the program and, twenty months after the child’s removal, was perhaps on a track toward self-sufficiency, but she was not yet self-sufficient or capable of living in the community. On the date the petition was filed, the respondent completed eight months of an eighteen month program and, therefore, was more than one year away from possible reunification with the child. The transformation that occurred through her participation and partial completion of the program did not translate into rehabilitation sufficient to render her capable of caring for the child because the program she was undergoing focused on personal, as opposed to parental, rehabilitation. The respondent had not demonstrated that she could live in an unstructured environment on her own or cope with the burdens of child rearing. The court also found that placing a child with her could cause her to relapse.

“Our standard of review on appeal from a termination of parental rights is whether the challenged findings are clearly erroneous. . . . The determinations reached by the trial court that the evidence is clear and convincing will be disturbed only if [any challenged] finding is not supported by the evidence and [is], in light of the evidence in the whole record, clearly erroneous. . . . On appeal, our function is to determine whether the trial court’s conclusion was legally correct and factually supported. . . . We do not examine the record to determine whether the trier of fact could have reached a conclusion other than the one reached . . . nor do we retry the case or pass upon the credibility of the witnesses. . . . Rather, on review by this court every reasonable presumption is made in favor of the trial court’s ruling. . . .

“A finding is clearly erroneous when although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed. In applying the clearly erroneous standard to the findings of the trial court, we keep constantly in mind that our function is not to decide factual issues de novo. Our authority when reviewing the findings of a judge, is circumscribed by the deference we must give to decisions of the trier of fact, who is usually in a superior position to appraise and weigh the evidence. . . . The question for this court ... is not whether it would have made the findings the trial court did, but whether in view of the evidence and pleadings in the whole record it is left with the definite and firm conviction that a mistake has been committed. . . .

“A hearing on a petition to terminate parental rights consists of two phases, adjudication and disposition. ... In the adjudicatory phase, the trial court determines whether one of the statutory grounds for termination of parental rights [under § 17a-112 (j)] exists by clear and convincing evidence. If the trial court determines that a statutory ground for termination exists, it proceeds to the dispositional phase. In the dispositional phase, the trial court determines whether termination is in the best interests of the child. . . .

“Personal rehabilitation . . . refers to the restoration of a parent to his or her former constructive and useful role as a parent [and] requires the trial court to analyze the [parent’s] rehabilitative status as it relates to the needs of the particular child, and further, that such rehabilitation must be foreseeable within a reasonable time. . . . The statute does not require [a parent] to prove precisely when she will be able to assume a responsible position in her child’s life. Nor does it require her to prove that she will be able to assume full responsibility for her child, unaided by available support systems. It requires the court to find, by clear and convincing evidence, that the level of rehabilitation she has achieved, if any, falls short of that which would reasonably encourage a belief that at some future date she can assume a responsible position in her child’s life.” (Citation omitted; internal quotation marks omitted.) In re Cheila R., 112 Conn. App. 582, 589-91, 963 A.2d 1014 (2009).

We reject the argument that the court disregarded evidence of the respondent’s progress. To the contrary, the court discussed her progress in its decision. Evidence of the respondent’s personal progress alone, however, does not lead us to conclude that the court’s finding that she had failed to achieve the required degree of rehabilitation was clearly erroneous. See, e.g., In re Jennifer W., 75 Conn. App. 485, 499, 816 A.2d 697 (court makes inquiry into full history of respondent’s parenting abilities although respondent made significant strides in drug rehabilitation in year preceding termination proceedings), cert. denied, 263 Conn. 917, 821 A.2d 770 (2003). The respondent is also correct that, at her request, Youth Challenge was listed as a recommended service provider in the specific steps ordered by the court. Our Supreme Court, however, has recently held that “[i]n determining whether a parent has achieved sufficient personal rehabilitation, a court may consider whether the parent has corrected the factors that led to the initial commitment, regardless of whether those factors were included in specific expectations ordered by the court or imposed by the department. . . . Accordingly, successful completion of expressly articulated expectations is not sufficient to defeat a department claim that the parent has not achieved sufficient rehabilitation.” (Internal quotation marks omitted.) In re Melody L., 290 Conn. 131, 150-51, 962 A.2d 81 (2009).

The court in the present case acknowledged the respondent’s progress but accorded greater weight to the following findings, which are clearly supported by the record. The court found that the respondent had a long history of parental failure and mental health and behavioral issues, that she did not demonstrate self-sufficiency or the ability to function outside of the confines of the program, that her chances of relapsing were high and that it was unclear how many of her mental and behavioral issues were addressed and resolved at the program. “Our function as an appellate court is to review and not retry the proceeding of the trial court. . . . The probative force of conflicting evidence is for the trier to determine.” (Internal quotation marks omitted.) In re Janazia S., 112 Conn. App. 69, 99, 961 A.2d 1036 (2009).

We next address the respondent’s argument that the court improperly found that her rehabilitation was not foreseeable within a reasonable time. The statute requires that the court analyze the respondent’s rehabilitative status as it relates to the needs of a particular child. See, e.g., In re Trevon G., 109 Conn. App. 782, 789, 952 A.2d 1280 (2008). “What constitutes a reasonable time is a factual determination that must be made on a case-by-case basis.” (Internal quotation marks omitted.) In re Halle T., 96 Conn. App. 815, 838, 902 A.2d 670, cert. denied, 280 Conn. 924, 908 A.2d 1087 (2006). The record shows that the court relied on Humphrey’s determination that the respondent, subsequent to completing the program, would have to maintain herself outside of the program for a minimum period of six months before her situation could be reassessed. In addition to considering the respondent’s personal and parental history, the court considered the child’s young age, the bond the child had developed with her foster parents, and the child’s emotional, physical and developmental needs. Under the present circumstances, the child would be required to spend the first few years of her life at a foster home, waiting for the respondent possibly to assume parental responsibilities and building a bond with the foster family, which could be disrupted when the child is a toddler. We cannot conclude that the court’s finding that, considering the child’s age and need for permanency, the respondent’s rehabilitation was not foreseeable within a reasonable time is clearly erroneous. See In re Janazia S., supra, 112 Conn. App. 96 (court considered properly that in light of child’s emotional problems and need for permanency, respondent’s ongoing work toward independent living was not far enough along for reunification to be possible).

We therefore conclude that the court did not improperly find that the respondent had failed to achieve such degree of personal rehabilitation that would encourage the belief that within a reasonable time, considering the age and needs of the child, she could assume a responsible position in the child’s life.

II

The respondent’s second and final claim is that the court improperly considered the best interest of the child, a factor properly considered only in the dispositional phase of termination proceedings, when it found that she had failed to achieve a sufficient degree of rehabilitation. The gist of the respondent’s argument is that there is no evidence that the respondent was incapable of caring for the child and that the court, in finding that she had not achieved a required degree of rehabilitation, improperly considered the child’s interest in permanency and stability with the foster parents. We are not persuaded.

The following additional facts are necessary for our consideration of the respondent’s claim. The court made findings in its memorandum of decision regarding the amount of care required to raise a child. It extensively discussed the elements of physical care, such as feeding, bathing and changing. It also credited Humphrey’s testimony regarding an infant’s psychological needs and described the importance of emotional aspects of child development, such as hearing soothing and comforting familiar voices. The court addressed adjudication and disposition in separate sections of its memorandum. In the adjudication section, the court found that “given the age and needs of the child, further delay is unacceptable. The past twenty months have been, in fact, a lifetime for this child. The child requires permanency now, not when she is nearly three years old. [The child] should not be required to wait for nine more months on the chance that [the respondent] will survive in the community, and then absorb the possible horror of horrors caused by disruption from the people she knows as parents, displacement from the only home she has ever known, to be placed with a person whose demonstrated parenting has been historically very neglectful and whose mental health issues have not been appropriately addressed.” In the dispositional phase, which the respondent does not challenge on appeal, the court considered whether the termination of parental rights was in the child’s best interest.

We agree with the respondent that “a judicial termination of parental rights may not be premised on a determination that it would be in the child’s best interests to terminate the parent’s rights in order to substitute another, more suitable set of adoptive parents. Our statutes and caselaw make it crystal clear that the determination of the child’s best interests comes into play only after statutory grounds for termination of parental rights have been established by clear and convincing evidence. ... [A] parent cannot be displaced because someone else could do a better job of raising the child.” (Citations omitted; internal quotation marks omitted.) In re Baby Girl B., 224 Conn. 263, 280, 618 A.2d 1 (1992). The court, however, is statutorily required to determine whether the parent has achieved “such degree of personal rehabilitation as would encourage the belief that within a reasonable time, considering the age and needs of the child, such parent could assume a responsible position in the life of the child . . . .” (Emphasis added.) General Statutes § 17a-112 (j) (3) (b) (ii).

It is clear from the court’s memorandum that the court placed great emphasis on the child’s young age and the fact that she had resided with the same foster parents since birth. The court stated in the adjudication section of its memorandum that “given the age and needs of the child, further delay is unacceptable.” Evidence demonstrates that the child, who had resided with the foster parents who have wanted to adopt her since her birth, would be two or three years old before the respondent’s situation could even be reevaluated. The child would develop an even stronger bond with the foster parents, making the severance of that bond more difficult for the child. We conclude that the court did not improperly consider the child’s best interest during the adjudication phase but that it properly considered the child’s young age and need for permanency in finding that the respondent’s rehabilitation was not foreseeable within a reasonable time. See In re Janazia S., supra, 112 Conn. App. 96 (court properly considered child’s emotional problems and need for permanency in adjudication phase); In re Samantha C., 268 Conn. 614, 629, 847 A.2d 883 (2004) (sufficient evidence supported court’s finding that respondent failed to achieve rehabilitation in light of amount of time child spent in temporary care and its need for permanency). We therefore conclude that the court did not improperly consider the best interest of the child in the adjudication phase of the proceeding.

The judgment is affirmed.

In this opinion the other judges concurred.

       The court also terminated the parental rights of the child’s father, who has not appealed from the judgment. We therefore refer to the mother as the respondent in this opinion. The counsel for the child filed a statement adopting the brief of the petitioner, the commissioner of children and families.

       General Statutes § 17a-112 (j) provides in relevant part: “The Superior Court . . . may grant a petition filed pursuant to this section if it finds by clear and convincing evidence that . . . (B) the child (i) has been found by the Superior Court ... to have been neglected or uncared for in a prior proceeding . . . and the parent of such child has been provided specific steps to take to facilitate the return of the child to the parent pursuant to section 46b-129 and has failed to achieve such degree of personal reha,Mutation as would encourage the belief that within a reasonable time, considering the age and needs of the child, such parent could assume a responsible position in the life of the child . . . .” (Emphasis added.)
      The child was adjudicated neglected in a prior proceeding on March 19, 2007, and the court, Boland, J., ordered that the specific steps to facilitate the return of the child to the respondent, entered on September 1, 2006, remain in effect.

       In her appellate brief, the respondent additionally claims that the court improperly interpreted General Statutes § 17a-112 (j) by placing a burden on her to show that she had a former constructive and useful parental role. The respondent bases this claim on the court’s finding in its memorandum of decision that neither the respondent nor the child’s father “has ever had a ‘former constructive and useful’ parental role.” We decline to address this claim because the court’s language in the memorandum does not lead us to conclude that it interpreted § 17a-112 (j) as containing a requirement that the respondent show that she had a former constructive and useful parental role. We therefore conclude that the respondent’s claim is without merit.

       Although the precise legal status of all of the respondent’s children was unclear at the time of the trial, the file indicates that the respondent has given birth to six children. Two of them were adopted by paternal grandparents, and neither of those children were in her custody at the time of the filing of the petition for termination of parental rights or at the time of the trial. The two children who remained living with the respondent prior to Zion’s birth were removed by the order of temporary custody on May 15, 2006.

       The child’s father, who has an extensive criminal record, remains incarcerated following this incident, with a minimum release date of August 12, 2011.

       The respondent also challenges the court’s finding that she “released” her children by entering into the program. This finding is not critical to the court’s determination that the respondent had failed to achieve a sufficient degree of rehabilitation, but it deserves to be addressed. Although the court’s observation that the respondent “knew she was letting her children go” or “released them” is not entirely clear, we conclude that the evidence clearly shows that the respondent was aware that her participation in Youth Challenge jeopardized her reunification efforts. Throughout the respondent’s pregnancy, and between the child’s birth in August, 2006, and the respondent’s enrollment in Youth Challenge in January, 2007, she refused the department’s offers to enroll in programs in which she could reside with at least one child.
      It is undisputed that when the respondent entered Youth Challenge in January, 2007, she knew that she would not be able to reside with the child, who was then an infant, for the next twelve to eighteen months. The evidence shows that the respondent was informed in February and March, 2007, that Youth Challenge was not appropriate for the purposes of her reunification with the child because she and the child were not bonding. In March, 2007, six months prior to the filing of the petition, the department provided the respondent with the names, addresses and telephone numbers of four programs in which she could have her children with her, but the respondent stated that she believed in Youth Challenge and wanted to remain in it.

       The respondent’s arguments challenging this particular finding are primarily directed at the reasoning the court outlined in the articulation of its denial of the respondent’s motion to stay execution filed on August 11,2008, four months after the court issued the memorandum of decision. We do not reach the merits of the respondent’s arguments that challenge the court’s findings and reasoning in the articulation. It is not our role to speculate that the court’s views and legal analysis expressed in the articulation of its denial of a motion to stay informed its findings in the memorandum of decision, specifically its finding that the respondent had failed to achieve sufficient personal rehabilitation. See Seligson v. Brower, 109 Conn. App. 749, 757, 952 A.2d 1274 (2008) (“[w]here the factual basis of the court’s decision is challenged 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” [emphasis added; internal quotation marks omitted]). Furthermore, the respondent moved this court for a review of the court’s order denying her motion to stay execution, and this court granted her motion but denied the requested relief on September 17, 2008.

       As we noted previously: “A hearing on a petition to terminate parental rights consists of two phases, adjudication and disposition. ... In the adjudicatory phase, the trial court determines whether one of the statutory grounds for termination of parental rights [under § 17a-112 (j)] exists by clear and convincing evidence. If the trial court determines that a statutory ground for termination exists, it proceeds to the dispositional phase. In the dispositional phase, the trial court determines whether termination is in the best interests of the child.” (Internal quotation marks omitted.) In re Anthony A., 112 Conn. App. 643, 648, 963 A.2d 1057 (2009).