author: SHELDON, J.

text:
    STATE OF CONNECTICUT v. VINCENT SANTIAGO
    (AC 33217)
    Lavine, Sheldon and Pellegrino, Js.

      Argued January 3
    officially released May 14, 2013

      Richard E. Condon, Jr., senior assistant public defender, for the appellant (defendant).

      Timothy J. Sugrue, assistant state’s attorney, with whom, on the brief were Brian W. Preleski, state’s attorney, and Brett J. Salafia, senior assistant state’s attorney, for the appellee (state).
   Opinion

SHELDON, J.

The defendant, Vincent Santiago, appeals from the judgment of conviction rendered against him following a court trial on three counts of criminal possession of a firearm in violation of General Statutes § 53a-217 (a) (l) and one count of possession of a sawed-off shotgun in violation of General Statutes § 53a-211 (a). On appeal, the defendant contends that the trial court erred in (1) failing to hold a hearing on and make a finding as to his competency to stand trial after ordering that he be evaluated for that purpose under General Statutes § 54-56d, and (2) denying his motion to suppress certain physical evidence seized in the course of a warrantless search of his apartment. We reject the defendant’s claims and, accordingly, affirm the judgment of the trial court.

At the conclusion of trial, the court made the following oral findings of fact. On May 14, 2008, New Britain police Officer Jerry Chrostowski received a tip from a confidential informant that the defendant, with whom Chrostowski had previously interacted in an unrelated police investigation, was willing to sell him firearms out of a garage on John Street in New Britain. The confidential informant further informed Chrostowski that he already had scheduled a meeting with the defendant for that purpose. On the basis of the tip, Chrostow-ski and Officer Adam Rembicz, also of the New Britain police department, drove together to a parking lot near 39 Whiting Street in New Britain, where they parked their unmarked police vehicle to observe the rendezvous between the defendant and the confidential informant. While at that location, the officers saw the confidential informant enter the defendant’s car, then followed the car to 30 John Street in New Britain, where it stopped near a bank of garages. The officers next saw the confidential informant and the defendant enter one of the garages (garage), where they remained for approximately ten to fifteen minutes before exiting the garage, reentering the defendant’s car and driving away. The officers followed the defendant and the confidential informant back to Whiting Street, where they parted ways.

The officers then returned to 30 John Street, where Chrostowski began to prepare a search warrant for the garage and the defendant’s person based upon his recent observations and the information he had received from the confidential informant. The officers arranged for police surveillance of the garage while they left to obtain the warrant.

After procuring the warrant, Chrostowski and Rembicz drove to the defendant’s residence at 55 Trem-ont Street in New Britain, where they parked in the southern parking lot. Thereafter, when the officers observed the defendant walking through the parking lot toward his car, they parked their unmarked police vehicle near the defendant’s car, promptly exited it and approached the defendant while wearing football style jerseys with the words “New Britain Police” printed on the front and back. The officers told the defendant that they had a search warrant for him and his guns. In response, the defendant stated immediately that he had “some guns” in his apartment and spontaneously offered to show them to the officers.

Rembicz performed a patdown search of the defendant, which did not reveal any weapons. The defendant then led the officers into his apartment building, where he conducted them to the door of his studio apartment, which he opened using his personal key. Once he and the officers entered the apartment, the defendant gestured with his hand toward the guns, stating simply, without prompting: “[T]here they are.” Chrostowski then noticed the stocks of two rifles protruding from the large assortment of motor vehicle parts that were scattered across the floor of the apartment. While Rembicz and the defendant stood in the kitchenette area of the apartment, Chrostowski first confirmed that the stocks were parts of two muzzleloader rifles, then found a Marlin .22 caliber rifle. Because the officers knew that the defendant was a convicted felon who was prohibited from possessing firearms, they arrested him on site.

Following his arrest, the defendant orally consented to a search of his entire apartment by the officers, which he later confirmed by signing a written consent to search form. The officers’ ensuing search of the apartment led to the discovery of ammunition for a twelve gauge shotgun and a set of keys.

After Chrostowski and Rembicz secured the previously described weapons and ammunition at the defendant’s apartment, they drove to the garage to execute the search warrant, while two other officers transported the defendant to that location. Upon arriving at the garage, the officers unlocked a padlock on the garage door using one of the keys they had found in the defendant’s apartment. Inside the garage, the officers found a Chevrolet Corvette surrounded by another large assortment of motor vehicle parts scattered across the floor. Rembicz, while searching the garage floor on one side of the Corvette, found a Smith and Wesson .38 caliber revolver and a sawed-off Savage Arms twelve gauge shotgun. Subsequent inspections of and tests performed on the weapons at the New Britain police outdoor range revealed that the .22 caliber rifle seized from the defendant’s apartment and the twelve gauge shotgun and .38 caliber revolver seized from his garage were operable.

By way of a substitute long form information, the state charged the defendant with five counts of criminal possession of a firearm in violation of § 53a-217 (a) (1) and one count of possession of a sawed-off shotgun in violation of § 53a-211 (a) in connection with the seizures of the previously described weapons from his house and garage. Prior to trial, the defendant filed a motion to suppress, inter alia, all firearms and ammunition that Chrostowski and Rembicz had seized during their war-rantless search of the defendant’s apartment. The defendant argued that his statements regarding the presence of guns in his apartment had been made during a custodial interrogation, which was conducted before he was given his Miranda warnings. See Miranda v. Arizona, 384 U.S. 436, 474, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966). Accordingly, claimed the defendant, his purported consent to the search of his apartment was the product of “illegal, non-Mirandized admissions.”

After an evidentiary hearing on the motion to suppress, where the defendant, defense witness Luis Ocasio and the two arresting officers testified, the trial court denied the defendant’s motion. The trial court found that the ammunition and firearms were lawfully seized from the defendant’s apartment because he voluntarily had consented to both the initial entry of the apartment and the ensuing search thereof, during which the three rifles lawfully had been discovered in plain view.

At the end of trial, during which all of the seized firearms were introduced as evidence, the court found the defendant guilty of three counts of criminal possession of a firearm—in connection with the .22 caliber rifle (count one), the .38 caliber revolver (count four) and the twelve gauge shotgun (count five)—and one count of possession of a sawed-off shotgun (count seven). The trial court thereafter imposed a total effective sentence of fifteen years imprisonment, with the execution suspended after seven years, four of which are mandatory, followed by five years of probation. This appeal followed. Additional facts and procedural history will be set forth as necessary.

I

The defendant’s first claim on appeal is that the trial court committed reversible error by ordering a competency evaluation of him, but then failing to hold a hearing or to render a finding on the record as to his competency to stand trial. In response, the state argues that the trial court’s failure to take such action was not improper in light of the defendant’s waiver, through his counsel, of his rights to a full competency hearing and finding on the record as to his competency. Because the defendant did not raise this claim at trial, he asks this court to review it under State v. Golding, 213 Conn. 233, 239-40, 567 A.2d 823 (1989), and/or the plain error doctrine. Practice Book § 60-5. Concluding that the defendant effectively waived this claim, we decline to decide it on the merits.

At the outset, we recognize that, when a right has been affirmatively waived at trial, we generally do not afford review of its claimed denial on appeal, under either Golding or the plain error doctrine. State v. Bharrat, 129 Conn. App. 1, 17, 20 A.3d 9, cert. denied, 302 Conn. 905, 23 A.3d 1243 (2011). Thus, in State v. Fabricatore, 281 Conn. 469, 482, 915 A.2d 872 (2007), our Supreme Court held that “unpreserved, waived claims, fail under the third prong of Golding . . . .” Similarly, in State v. Corona, 69 Conn. App. 267, 794 A.2d 565, cert. denied, 260 Conn. 935, 802 A.2d 88 (2002), this court held that, “[j]ust as a valid waiver calls into question the existence of a constitutional violation depriving the defendant of a fair trial for the purpose of Golding review, a valid waiver also thwarts plain error review of a claim. [The] [p]lain [e]rror [r]ule may only be invoked in instances of forfeited-but-reversible error . . . and cannot be used for the purpose of revoking an otherwise valid waiver. This is so because if there has been a valid waiver, there is no error for us to correct. . . . The distinction between a forfeiture of a right (to which the [p]lain [e]rror [r]ule may be applied) and a waiver of that right (to which the [p]lain [e]rror [r]ule cannot be applied) is that [w]hereas forfeiture is the failure to make the timely assertion of a right, waiver is the intentional relinquishment or abandonment of a known right.” (Internal quotation marks omitted.) Id., 274-75. Under the foregoing authorities, and on the basis of the record before this court, we decline to review the defendant’s claim under either Golding or the plain error doctrine because we conclude that he waived his claim.

The record reveals the following additional facts, which are relevant to our resolution of the defendant’s claim. On September 3, 2009, shortly before the scheduled start of trial, the defendant’s attorney, Richard S. Cramer, made an oral motion for a competency examination of the defendant, pursuant to § 54-56d (c). After canvassing the defendant regarding his competency, the court, Strackbein, J., granted counsel’s motion, and thus ordered a competency examination of the defendant pursuant to § 54-56d (d). Thereafter, in a written report dated September 29,2009 (report), the evaluation team unanimously determined, without qualification, that the defendant was competent to stand trial.

At the next proceeding on October 1, 2009, two days after the report was issued, the court, Vacchelli, J., asked Cramer whether he would be stipulating to the defendant’s competency, as stated in the report. Although Cramer indicated that he probably would waive a competency hearing, he stated that he would prefer to review the report, which he had just received, before he made his final decision on that issue. Consistent with that preference, before the conclusion of the October 1, 2009 proceeding, Cramer expressly waived the ten day statutory deadline for holding a competency hearing prescribed by § 54-56d (e).

The parties next appeared before the court, Strackb-ein, J., on the October 19, 2009 pretrial docket. At that proceeding, the defendant rejected, against the advice of Cramer, the state’s final plea offer and elected to go to trial, but neither the parties nor the court raised the unresolved issue of the defendant’s competency to stand trial.

In fact, the issue of the defendant’s competency to stand trial was not addressed again until more than one year later, at the very end of the defendant’s sentencing hearing on January 5, 2011. At that time, during a brief postsentencing discussion between the court, Kahn, J., and counsel regarding the defendant’s appeal bond, Cramer opined that the failure of the court, Strackbein, J., to comply with the procedural requirements of § 54-56d created a viable issue for appeal. The following colloquy then took place between the trial court, Kahn, J., and Cramer:

“[The Court]: As to this issue that you raise, the competency evaluation, I know that I inquired whether he had been found competent, and no one raised with me the issue of he didn’t waive a hearing or didn’t have a hearing. I don’t know if that creates a waiver for [the defendant] not having raised it, but that’s an issue . . . the Appellate Court will take up and the issue of the appellate bond, I want more of your argument on that before I’m prepared to find that there is a meritorious issue on appeal.

“[Defense Counsel]: Yeah, I’ll file a motion sometime this week, Your Honor. Let me clarify it. There’s no question [the defendant] was evaluated, there’s no question there’s a report, there’s no question it said that he’s competent, there’s no question Judge Strackbein, [I] and the state’s attorney had it.”

The court, Kahn, J., concluded the discussion of the defendant’s competency to stand trial by stating that it would order various transcripts to determine what precisely had transpired at the prior proceedings. Based on our review of the record, no further action was ever taken regarding the issue of the defendant’s competency to stand trial.

“As a matter of constitutional law, it is undisputed that the guilty plea and subsequent conviction of an accused person who is not legally competent to stand trial violates the due process of law guaranteed by the state and federal constitutions. . . . This constitutional mandate is codified in our state law by [General Statutes] § 54-56d (a), which provides that [a] defendant shall not be tried, convicted or sentenced while he is not competent. For the purposes of this section, a defendant is not competent if he is unable to understand the proceedings against him or to assist in his own defense. . . . General Statutes § 54-56d (b), however, posits a presumption in favor of a defendant’s competence. . . . Every criminal defendant is presumed to be competent. General Statutes § 54-56d (b). During the course of the criminal proceedings, however, if it appears that the defendant is not competent, either party or the court may request an examination to determine the defendant’s competency. General Statutes § 54-56d (c).” (Internal quotation marks omitted.) State v. Crawley, 138 Conn. App. 124, 139-40, 50 A.3d 349, cert. denied, 307 Conn. 925, 55 A.3d 565 (2012).

The defendant argues that the failure of the court to hold a § 54-56d (e) competency hearing and render an explicit finding on the record as to the issue of his competency constitutes reversible error. We disagree.

Under § 54-56d (e), “[a] defendant and the defendant’s counsel may waive the court hearing ... if the examiners, in the written report, determine without qualification that the defendant is competent . . . .” “[W]aiver is [t]he voluntary relinquishment or abandonment—express or implied—of a legal right or notice. ... In determining waiver, the conduct of the parties is of great importance. . . . [W]aiver may be effected by action of counsel. . . . When a party consents to or expresses satisfaction with an issue at trial, claims arising from that issue are deemed waived and may not be reviewed on appeal. . . . Thus, [w]aiver . . . involves the idea of assent, and assent is an act of understanding.” (Emphasis added; internal quotation marks omitted.) State v. McLaughlin, 135 Conn. App. 193, 198, 41 A.3d 694, cert. denied, 307 Conn. 904, 53 A.3d 219 (2012).

“It is well established that implied waiver, as alleged in this case, arises from an inference that the defendant kuowingly and voluntarily relinquished the right in question. . . . Waiver does not have to be express . . . but may consist of acts or conduct from which waiver may be implied. ... In other words, waiver may be inferred from the circumstances if it is reasonable to do so. . . . It also is well established that any such inference must be based on a coruse of conduct.” (Citations omitted; emphasis in original; internal quotation marks omitted.) State v. Kitchens, 299 Conn. 447, 483-84, 10 A.3d 942 (2011). Relevant cases inform us that a criminal defendant may implicitly waive one or more of his or her fundamental rights. State v. Crawley, supra, 138 Conn. App. 132. “In some circumstances, a waiver of rights must be knowing, voluntary and intelligent, and it must be expressly made. ... In other circumstances, waiver can be implied . . . [and] [t]he waiver can be made by counsel . . . State v. Santiago, 245 Conn. 301, 315-16, 715 A.2d 1 (1998).

Our application of the foregoing principles to the facts of the present case leads us to conclude that, based upon Cramer’s course of conduct, the defendant waived his right to a full competency hearing and to a finding on the record regarding his competency to stand trial. On October 1, 2009, following the receipt of the evaluation team’s unanimous and unqualified report, the court convened a hearing to determine the competency of the defendant. At this hearing, Cramer indicated that, after he reviewed the report, which he had in his possession, he probably would waive any competency hearing. Cramer also waived the time requirements of § 54-56d (e). Thereafter, Cramer failed to raise the issue of competency again until after the conclusion of the defendant’s trial, more than one year later. In the interim, Cramer represented the defendant in all remaining pretrial and trial proceedings without ever raising the issue of competency or disputing the examiners’ determination. Cramer demonstrated his knowledge of the defendant’s right to a hearing as to his competency when he sought the initial competency evaluation pursuant to § 54-56d. As the defendant’s attorney, Cramer had an obligation, which he understood, to provide input to the court if his observations of the defendant contradicted the findings of the competency report. See State v. Mitchell, 54 Conn. App. 361, 368, 738 A.2d 188 (“American Bar Association’s [c]rimi-nal [j]ustice [m]entai [h]eaith [standards . . . advise defense counsel to move for an evaluation of the defendant’s competence to stand trial whenever he in good faith doubts his client’s competence”), cert. denied, 251 Conn. 910, 739 A.2d 1250 (1999), cert. denied, 528 U.S. 1171, 120 S. Ct. 1197, 145 L. Ed. 2d 1101 (2000). Cramer’s silence and inaction regarding the resumption of the defendant’s competency hearing only can be understood to constitute the voluntary abandonment of a known right of his client. We therefore decline to review it under either Golding or the plain error doctrine.

II

The defendant also claims that the trial court improperly denied his motion to suppress the .22 caliber rifle obtained during the police search of his apartment. On that score, the defendant now contends that the court improperly found that he freely and voluntarily consented to the search and, therefore, that the war-rantless search of his apartment violated his constitutional rights. The defendant now argues, more specifically, that the searching officers acted in a deceptive manner when they approached him in the parking lot of his apartment building and stated that they had “a search warrant for [him] and for guns,” clearly implying that they had a warrant authorizing the search of his apartment. Accordingly, the defendant contends, his consent was not voluntary because it was the product of unlawful deception, and thus the .22 caliber rifle should have been suppressed and his conviction of criminal possession of that rifle, under count one of the information, should be reversed. We disagree.

“It is axiomatic that searches and seizures inside a home without a warrant are presumptively unreasonable. ... A warrantless search or entry into a house is not unreasonable, however, under the fourth amendment to the United States constitution or article first, § 7, of the Connecticut constitution when a person with authority to do so has freely consented. . . . The question of whether a defendant has given voluntary consent to enter or search his or her premises is a question of fact to be determined by the trial court by considering the totality of the circumstances surrounding the entry or search. . . .

“The voluntariness of the consent is normally decided by the trial court based on the evidence it deems credible along with reasonable inferences that can be drawn therefrom. . . . Whether there was a valid consent to search is a factual question that will not be lightly overturned on appeal. . . . The ultimate question is whether the will of the consenting individual was overborne, or whether the consent was his unconstrained choice. . . .

“On appeal, we apply a familiar standard of review to a trial court’s findings and conclusions in connection with a motion to suppress. A finding of fact will not be disturbed unless it is clearly erroneous in view of the evidence and pleadings in the whole record .... The conclusions drawn by the trial court will be upheld unless they axe legally and logically inconsistent with the evidence.” (Citation omitted; internal quotation marks omitted.) State v. Mullien, 140 Conn. App. 299, 305-306, 58 A.3d 383 (2013).

“In determining whether a defendant’s will was overborne in a particular case, the [c]ourt has assessed the totality of all the surrounding circumstances—both the characteristics of the accused and the details of the interrogation.” (Internal quotation marks omitted.) State v. Jenkins, 298 Conn. 209, 250-51, 3 A.3d 806 (2010). “In evaluating the voluntariness of the defendant’s consent, we note that, while the subject’s knowledge of a right to refuse is a factor to be taken into account, the prosecution is not required to demonstrate such knowledge as a prerequisite to establishing a voluntary consent.” (Internal quotation marks omitted.) Id., 251.

In determining whether consent was voluntarily given, the ultimate question is whether the will of the defendant was overcome by unlawful coercion. State v. Mullien, supra, 140 Conn. App. 306. The focus of the trial court’s inquiry was, therefore, on the defendant’s state of mind at the time of his purported consent. This determination is reserved for the trial court based on the evidence it deems credible. Id. It is axiomatic that “the weighing of the evidence is the province of the trial court, and we will disturb the trial court’s findings of fact only if they are clearly erroneous on the record as a whole. . . . The determination of a witness’credibility is the special function of the trial court. This court cannot sift and weigh evidence.” (Citation omitted; emphasis added; internal quotation marks omitted.) State v. Thompson, 307 Conn. 567, 575, 57 A.3d 323 (2012).

The following additional facts are relevant to our resolution of this claim. At the suppression hearing, the defendant presented testimony that is diametrically opposed to the theory that he now argues on appeal. Whereas he now claims on appeal that his purported consent was the product of a misleading claim of lawful authority, he claimed before the trial court that his “consent” was the product of the officers’ impermissible use of coercive tactics and physical force. On that score, at the hearing on his suppression motion, the defendant testified that when the officers confronted him in the parking lot of his apartment building, they immediately placed him in handcuffs and then asked him whether he had any firearms. After he told the officers he had guns in his apartment, they assertedly demanded to see them, grasped him by the arms and forcibly led him to the apartment building door. The officers then reached into his pocket to locate his key and used it to open the door. After entering the building, the officers escorted him to his apartment, where, with their hands on him, they used his key to open the door and enter his apartment without his consent.

In contrast, Chrostowski testified at the suppression hearing, as he later did at trial, that he and Rembicz approached the defendant and advised him that they had a search warrant, at which point the defendant asked: “What’s it about?” Chrostowski responded: “It’s a search warrant for you and for guns.” The defendant then spontaneously revealed that he had guns in his apartment and invited the officers into his apartment to see them, at which point the defendant, Chrostowski and Rembicz entered the defendant’s apartment. Once inside, the officers found three rifles—one of which was the .22 caliber rifle here at issue—-in plain view on the floor of the apartment.

Our application of the foregoing principles to the facts of the present case leads us to conclude that the defendant voluntarily consented to the search of his apartment. We reach this conclusion by examining the totality of the circumstances. State v. Jenkins, supra, 298 Conn. 250. Here, the state presented evidence from which the trial court reasonably could conclude that the defendant consented freely and voluntarily to the officers’ entry into and ensuing search of his apartment. Testimony was adduced at the suppression hearing that the officers approached the defendant, attempting to execute a valid search warrant. Chrostowski testified that he and Rembicz informed the defendant that they had a search warrant for his person and for guns, and the defendant immediately volunteered that he had guns in his apartment. The defendant freely invited the officers into his apartment and, once inside, gestured to the floor, indicating the firearms, which were scattered among various automotive parts. On the basis of our review of the record, we conclude that the court’s findings that the defendant voluntarily made the statements at issue and freely consented to the search of his apartment were not clearly erroneous and that its denial of the defendant’s motion to suppress was supported by the facts.

On appeal, the defendant argues, nevertheless, that his purported voluntary consent amounted to nothing more than mere acquiescence to an implied claim of legal authority to search his apartment for guns. See Bumper v. North Carolina, 391 U.S. 543, 548-49, 88 S. Ct. 1788, 20 L. Ed. 2d 797 (1968). The defendant argues that when Chrostowski told him that he and Rembicz had a search warrant for the defendant and his guns, Chrostowski impliedly represented that the warrant authorized a search of the defendant’s apartment, constituting an unlawful claim of authority. We disagree.

Here, the trial court found that the officers were voluntarily invited into the defendant’s apartment, and that finding is supported by the record. There was no mere acquiescence to a false claim of lawful authority, like the nonexistent search warrant in Bumper. See id. Chrostowski and Rembicz did not claim to have a warrant to search the defendant’s apartment. Rather, they were attempting to execute a valid search warrant when the defendant voluntarily stated that he had guns in his apartment and spontaneously offered to show them to the officers. While Chrostowski’s statement that he had a search warrant for the defendant and his guns was ambiguous as to the location of the guns to be searched for, there was no unreasonable deception that vitiated the voluntary nature of the defendant’s consent. Furthermore, although the defendant was not advised that he need not allow the officers into his home, and knowledge of the right to refuse consent to entry is relevant to the determination of voluntariness, such advice is not a prerequisite to voluntary consent. State v. Jenkins, supra, 298 Conn. 261; see also Schneckloth v. Bustamonte, 412 U.S. 218, 227, 93 S. Ct. 2041, 36 L. Ed. 2d 854 (1973) (“[w]Me knowledge of the right to refuse consent is one factor to be taken into account, the government need not establish such knowledge as the sine qua non of an effective consent”). Indeed, “[t]he spontaneous nature of [the defendant’s] invitation [to the officers to show them his firearms], which was not given in response to a specific request for consent to search, renders inapposite the officers’ failure to advise the defendant of his right to refuse to consent to the search.” (Internal quotation marks omitted.) State v. Jenkins, supra, 252-63. Because “it is uniquely the function of the trier of facts to weigh the evidence and assess the credibility of witnesses [when there is conflicting testimony]”; (internal quotation marks omitted) State v. Mullien, supra, 140 Conn. App. 307; we cannot conclude that the trial court’s finding that the defendant voluntarily consented to the officers’ search of his apartment is clearly erroneous.

The judgment is affirmed.

In this opinion the other judges concurred.

       General Statutes § 53a-217 (a) provides in relevant part: “A person is guilty of criminal possession of a firearm . . . when such person possesses a firearm . . . and (1) has been convicted of a felony . . . .”

       General Statutes § 53a-211 (a) provides in relevant part: “A person is guilty of possession of a sawed-off shotgun . . . when he owns, controls or possesses any sawed-off shotgun that has a barrel of less than eighteen inches or an overall length of less than twenty-six inches . . .

       The officers did not inform the defendant that the search warrant did not authorize the search of his Tremont Street apartment.

       The defendant previously was convicted of a felony on July 19, 2002.

       At trial, the owner of the garage testified that, at the time of the defendant’s arrest, the defendant was renting the garage. The defendant personally delivered to the owner monthly rental payments.

       The state presented evidence that the shotgun had a barrel of fifteen inches in length.

       Finding that the state failed to prove that the muzzleloaders were operable, the court acquitted the defendant on counts two and three of criminal possession of a firearm. The defendant also was charged with but not convicted of theft of a firearm in violation of General Statutes § 53a-212 (a). Although the officers’ check of the revolver’s serial number in the National Crime Information Center database revealed that it had been reported stolen on two occasions, the trial court found that the state had failed to sustain its burden of proof that the defendant knew or should have known that it was stolen.

       The defendant’s sentence is broken down as follows: On counts one and four, charging criminal possession of a firearm with respect to the .22 caliber rifle and the .38 caliber revolver, respectively, the court imposed consecutive sentences offive years imprisonment, execution suspended afterthree years, two years of which on each count are mandatory, followed by five years probation. On count seven, charging criminal possession of a sawed-off shotgun in connection with the twelve gauge shotgun, the court imposed a sentence of five years imprisonment, execution suspended after one year, followed by five years of probation, to be served consecutively with the sentences imposed on counts one and four. Finally, on count five, charging criminal possession of a firearm in connection with the twelve gauge shotgun, the court imposed a sentence of five years imprisonment, execution suspended after two years, which are mandatory, followed by five years of probation, to be served concurrently with the sentences imposed on counts one, four and seven, for a total effective sentence of fifteen years imprisonment, execution suspended after seven years, four of which are mandatory, followed by five years of probation.

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

       General Statutes § 54-56d (c) provides: “If, at any tíme during a criminal proceeding, it appears that the defendant is not competent, counsel for the defendant or for the state, or the court, on its own motion, may request an examination to determine the defendant’s competency.”

       General Statutes § 54-56d (d) provides in relevant part: “If the court finds that the request for an examination is justified and that, in accordance with procedures established by the judges of the Superior Court, there is probable cause to believe that the defendant has committed the crime for which the defendant is charged, the court shall order an examination of the defendant as to his or her competency. . . . The examination shall be completed within fifteen business days from the date it was ordered and the examiners shall prepare and sign, without notarization, a written report and file such report with the court within twenty-one business days of the date of the order. On receipt of the written report, the clerk of the court shall cause copies to be delivered immediately to the state’s attorney and to counsel for the defendant.”

        Although § 54-56d (d) was amended after the date of the crimes at issue here, the changes are not relevant to this appeal. For convenience, we refer to the current revision of the statute.

       Although the report was not admitted into evidence, the report was filed with the trial court pursuant to § 54-56d (d). “It is well established that this court can take judicial notice of facts contained in the files of the Superior Court.” (Internal quotation marks omitted.) Ajadi v. Commissioner of Correction, 280 Conn. 514, 522 n.13, 911 A.2d 712 (2006). Accordingly, we take judicial notice of the report.

       Indeed, at the January 5, 2011 sentencing hearing, the court explained the general procedure employed in such circumstances: “[TJypically, when there’s a finding of competency, both sides stipulate, the report is admitted into evidence by agreement and there’s a finding of competency. Usually, the only time there’s a hearing is when one side challenges that, and I was never told there was such a challenge.” See General Statutes § 54-56d (e); State v. Mish, 110 Conn. App. 245, 250-51, 954 A.2d 854, cert. denied, 289 Conn. 941, 959 A.2d 1008 (2008).

       The following colloquy occurred during the October 1, 2009 proceeding:
      “The Court: [Defense counsel], are you stipulating to competency as to the report dated September 29?
      “[Defense Counsel]: Not at this time, Your Honor. I haven’t really had a chance to review the report. It just apparently came in today. I tried yesterday to get a copy of the report. In [excess] of caution I’d like a brief continuance so I can review the report and determine where I go from here. [In all] [probability I’ll waive any competency hearing, but I just want to go over the report real carefully before I make that decision.
      “[The Prosecutor]: Waive any time constraints, [defense] counsel?
      “[Defense Counsel]: Yes. . . .
      “The Court: Okay, continue it to October 19, on the pretrial docket.”

       General Statutes § 54-56d (e) provides in relevant part: “The court shall hold a hearing as to the competency of the defendant not later than ten days after the court receives the written report. ...”
      Although § 54-56d (d) was amended after the date of the crimes at issue here, the changes are not relevant to this appeal. For convenience, we refer to the current revision of the statute.

       The defendant’s motion to suppress concerned only the firearms seized from his apartment. Because the defendant was not convicted under counts two and three of violations of § 53a-217 (a) (1) for possession of the two muzzleloader rifles, the defendant’s second claim on appeal concerns only count one, under which he was convicted of possessing the .22 caliber rifle in violation of § 53a-217 (a) (1).

       In further support of his claim that he did not voluntarily consent to the officers’ search of his apartment, the defendant argues that he has a low intelligence quotient and other mental infirmities, which, considered in conjunction with Chrostowski’s statement that he had a warrant to search for the defendant’s guns, further demonstrates that the defendant merely acquiesced to an implied claim of authority. The defendant, however, did not present any evidence to the trial court regarding these issues and raised them for the first time at his posttrial sentencing hearing. Accordingly, we decline to address this claim on appeal. See State v. Brunetti, 279 Conn. 39, 55, 901 A.2d 1 (2006), cert. denied, 549 U.S. 1212, 127 S. Ct. 1328, 167 L. Ed. 2d 85 (2007).


source: Caselaw Access Project

author: GRUENDEL, J.

license: Public Domain

text:
    MICHELLE GUARINO, ADMINISTRATRIX (ESTATE OF GEORGETTE DUFRESNE) v. ALLSTATE PROPERTY AND CASUALTY INSURANCE COMPANY
    (AC 33540)
    Gruendel, Sheldon and Schaller, Js.
    Argued November 29, 2012—
    officially released May 14, 2013

      Gerald S. Sack, with whom, on the brief, was Jonathan Cantor, for the appellant (plaintiff).

      Maria A. Cahill, for the appellee (defendant).
   Opinion

GRUENDEL, J.

The plaintiff, Michelle Guarino, administratrix of the estate of Georgette Dufresne, appeals from the summary judgment rendered in favor of the defendant, Allstate Property and Casualty Insurance Company. She claims that the court improperly found that the defendant was entitled to judgment as a matter of law because the plaintiff was barred from recovering under the underinsured motorist policy issued by the defendant, as she had already recovered from the two tortfeasors an amount in excess of the policy limit. We disagree, and accordingly, affirm the judgment of the trial court.

The following facts and procedural history are relevant to our resolution of this claim. On June 27,2007, the plaintiffs decedent, Georgette Dufresne, was driving along Hidden Lake Road in Haddam and approached a stop sign at the intersection with Route 81. Dufresne did not stop at this intersection because two large motor vehicles or trailers, owned by Anton Paving, LLC (Anton), and Lombardi Tire and Auto Repair, LLC (Lombardi), respectively, obstructed the view of the stop sign placed there. While proceeding through the intersection, Dufresne’s car collided with that of Alexander Sokolow. As a result of the collision, Dufresne sustained severe bodily injuries that resulted in her death. At the time of the collision, Dufresne carried automobile insurance issued by the defendant that included coverage for bodily injuries caused by underinsured motorists. Dufresne’s policy contained a coverage limit of $100,000 per person per accident, with a total limit of $300,000 of coverage for any one accident. The portion of that policy dealing with the coverage limits on under-insured motorists states in relevant part:

“Limits of Liability

“The coverage limit shown on the declarations page for:

“1. ‘[E]ach person’ is the maximum that we will pay for damages arising out of bodily injury to one person in any one motor vehicle accident, including damages sustained by anyone else as a result of that bodily injury.

“2. ‘[E]ach accident’ is the maximum that we will pay for damages arising out of bodily injury to two or more persons in any one motor vehicle accident. This limit is subject to the limit for ‘each person.’ ”

* * ⅜

“The limits of this coverage will be reduced by:

“1. [A]ll amounts paid by or on behalf of the owner or operator of the uninsured auto or underinsured auto or anyone else responsible. This includes all sums paid under the bodily injury liability coverage of this or any other policy.

“2. [Ajll amounts paid or payable under any worker’s compensation law, disability benefits law, or similar law.”

The plaintiff filed complaints, sounding in negligence, against Anton on April 14, 2008, and Lombardi on January 20, 2009. Thereafter, the plaintiff commenced the present action against the defendant and filed a complaint dated October 21, 2009, alleging that the plaintiff was entitled to recover damages from the defendant under the terms of Dufresne’s policy. On April 15, 2010, the actions against Lombardi and the defendant were consolidated.

On July 8, 2009, the plaintiff settled all of her claims against Anton in return for a payment of $20,000. She signed a release, as a component of the settlement, which stated in relevant part: “It is understood and agreed that this settlement is in full compromise of a doubtful claim . . . and that neither this release, nor the payment pursuant thereto shall be construed as an admission of liability, such being denied.” Thereafter, on June 20, 2010, the plaintiff settled all of her claims against Lombardi in return for a payment of $225,000 and signed a release similar to that signed as part of her settlement with Anton.

The defendant then, on June 28, 2010, filed a motion for summary judgment, on the ground that the plaintiff was not entitled to recover any damages from the defendant because she had already recovered from the tort-feasors, Anton and Lombardi, $245,000, which was in excess of Dufresne’s $100,000 policy limit for underin-sured motorist coverage. The court granted the defendant’s motion and rendered judgment in its favor on May 25, 2011. The court did not issue a memorandum of decision; instead it set forth its reasoning in its order, stating in relevant part: “[I]t is hereby found that no genuine issue of material fact exists regarding the fact that [the] plaintiff is barred from recovery under the underinsured motorist policy issued by [the] defendant as a matter of law because [the] plaintiff settled the underlying actions against all possible tortfeasors for a total amount that exceeds the limits of the policy at issue. ... In applying Savoie [v. Prudential Property & Casualty Ins. Co., 84 Conn. App. 594, 854 A.2d 786, cert. denied, 271 Conn. 932, 859 A.2d 930 (2004)] rather than Garcia v. ITT Hartford Ins. Co., 72 Conn. App. 588, 805 A.2d 779 (2002), as raged by the plaintiff, the court adopts the reasoning employed by the court in Laderoute v. Cullen, [Superior Court, judicial district of New Britain, Docket No. CV-03-0523027 (August 10, 2006) (41 Conn. L. Rptr. 810)].” On May 27, 2011, the plaintiff moved for reconsideration of the court’s granting of summary judgment and to reargue the matter. The court, on June 3, 2011, denied her motions. The plaintiff thereafter initiated the present appeal.

“We begin by setting forth the appropriate standard of review of a trial court’s decision to grant a motion for summary judgment. On appeal, [w]e must decide whether the trial court erred in determining that there was no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. . . . Because the trial court rendered judgment for the [defendant] as a matter of law, ora review is plenary and we must decide whether [the trial court’s] conclusions are legally and logically correct and find support in the facts that appear in the record.” (Citations omitted; internal quotation marks omitted.) Yancey v. Connecticut Life & Casualty Ins. Co., 68 Conn. App. 556, 558, 791 A.2d 719 (2002).

Practice Book § 17-49 “provides that summary judgment shall be rendered forthwith if the pleadings, affidavits and any other proof submitted show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. ” (Internal quotation marks omitted.) Id. “For purposes of summary judgment and this appeal, the court views the evidence in the fight most favorable to the plaintiff.” Rosato v. Mascardo, 82 Conn. App. 396, 400, 844 A.2d 893 (2004).

“General Statutes § [38a-334] require [s] the insurance commissioner to adopt regulations with respect to automobile liability insurance policies and . . . such regulations have the force of statute.” (Internal quotation marks omitted.) Lane v. Metropolitan Property & Casualty Ins. Co., 125 Conn. App. 424, 438, 7 A.3d 950 (2010). “[We have repeatedly held] that an insurer may not, by contract, reduce its liability for . . . uninsured or underinsured motorist coverage except as [§ 38a-334-6] of the Regulations of ' Connecticut State Agencies expressly authorizes.” Allstate Ins. Co. v. Ferrante, 201 Conn. 478, 483, 518 A.2d 373 (1986). “In order for a policy exclusion to be expressly authorized by [a] statute [or regulation], there must be substantial congruence between the statutory [or regulatory] provision and the policy provision. . . . Substantial congruence exists when [t]he terms in the policy . . . and [the regulation] correspond in all material respects.” (Citation omitted; internal quotation marks omitted.) Anastasia v. General Casualty Co. of Wisconsin, 307 Conn. 706, 714, 59 A.3d 207 (2013).

In determining whether the policy provision at issue is substantially congruent with the regulation, we compare the text of the regulation with that of the relevant policy provision, mindful that “[a]n insurance policy is to be interpreted by the same general rules that govern the construction of any written contract and enforced in accordance with the real intent of the parties as expressed in the language employed in the policy. . . . The policy words must be accorded their natural and ordinary meaning.” (Internal quotation marks omitted.) Pacific Indemnity Ins. Co. v. Aetna Casualty & Surety Co., 240 Conn. 26, 29-30, 688 A.2d 319 (1997).

Dufresne’s policy contains a provision that reduces the $100,000 limit of coverage for each person in each accident by “all amounts paid by or on behalf of the owner or operator ... of the underinsured auto or anyone else responsible.” Section 38a-334-6 (d) (1) of the Regulations of Connecticut State Agencies, which enumerates the exclusive permitted reductions to underinsured motorist coverage, provides in relevant part: “The limit of the insurer’s liability may not be less than the applicable limits for bodily injury liability specified in subsection (a) of section 14-112 of the General Statutes, except that the policy may provide for the reduction of limits to the extent that damages have been (A) paid by or on behalf of any person responsible for the injury . . . .” After examining the text of both the regulation and the policy provision, we conclude that the policy provision is “substantially congruent” with the regulation, and, therefore, is “expressly authorized” by § 38a-334-6 (d) (1) (A). See Anastasia v. General Casualty Co. of Wisconsin, supra, 307 Conn. 714-15.

In Jacaruso v. Lebski, 118 Conn. App. 216, 983 A.2d 45 (2009), this court considered whether a similar underinsured policy limit reduction provision was expressly authorized by § 38a-334-6 (d) (1) (A) and (C) of the regulations. Id., 222. The policy provision in Jacaruso stated in relevant part: “The limits of this [uninsured-underinsured motorist] coverage and/or any amounts payable under this coverage, whichever are less, will be reduced by . . . any amount paid by or for any liable parties.” Id. After noting that “[t]here is no requirement that the policy provision must be identical to the regulation for it to be expressly provided for by [the regulation],” this court determined that this policy provision corresponded in all material respects with § 38a-334-6 (d) (1) (A) and (C) and, accordingly, concluded that the reduction set forth in the policy provision was expressly authorized by the regulation. Id., 226. As we see no meaningful difference between the term “any liable parties,” as used in the policy provision in Jacaruso, and the term “anyone else responsible,” as used in Dufresne’s policy, we conclude that the reduction is authorized by § 38a-334-6 (d) (1) (A).

Having determined that the policy reduction comports with § 38a-334-6 (d) (1) (A) of the regulations, we turn next to the question of whether the court properly rendered summary judgment in favor of the defendant after it found that the defendant’s obligation under Dufresne’s policy had been eliminated as a result of the plaintiffs settling with both tortfeasors for an amount exceeding the $100,000 policy limit. The plaintiff contends that the court could not properly grant the defendant’s motion for summary judgment because, without a fact finder’s determination of liability, there exists a genuine issue of material fact as to who is “responsible for the injury” under the policy, and accordingly, summary judgment was improper. We disagree.

Our Supreme Court’s holding in Buell v. American Universal Ins. Co., 224 Conn. 766, 621 A.2d 262 (1993), is dispositive of this issue. “[I]n Buell. . . the plaintiff, Debra Buell, sustained injuries when the car that she was operating was struck by a second vehicle as a result of another collision between the second vehicle and a third vehicle. An arbitration panel found that the operator of the third vehicle, but not the operator of the second vehicle, was responsible for Buell’s injuries. . . . Because the operator of the third vehicle was underinsured, Buell sought underinsured motorist benefits under a liability insurance policy that she had purchased from the defendant, American Universal Insurance Company (American Universal). . . . American Universal also insured the operator of the second vehicle and paid $2600 to Buell under the policy issued to the operator of the second vehicle. . . . The arbitration panel awarded Buell underinsured motorist benefits but allowed American Universal to reduce the amount of benefits by, inter alia, the $2500 payment that Buell had received under the policy issued to the operator of the second vehicle. . . . The trial court determined, contrary to the conclusion of the arbitration panel, that American Universal was not entitled to reduce the amount of benefits by the $2600 payment. . . . American Universal cross appealed, claiming, inter alia, that the trial court improperly had precluded it from deducting the $2600 payment from the total amount that it was obligated to pay Buell under her policy. . . .

“On appeal, [our Supreme Court] concluded that § 38-175a-6 (d) (1) [of the Regulations of Connecticut State Agencies, now § 38a-334-6 (d) (l)], which permits an insurer to limit its liability by deducting amounts paid by or on behalf of any party responsible for the injury, allows an insurer to deduct a settlement payment from the damages owed to its insured. . . . [Our Supreme Court] predicated [its] conclusion on the dual legislative intent of providing a certain minimum level of protection [to underinsured motorists and of] . . . preventing] double recovery on the part of the insured . . . . [It] further observed that [t]o hold otherwise would provide the insured a windfall by permitting duplicate payments for the same injury.” (Citations omitted; internal quotation marks omitted.) Hartford Casualty Ins. Co. v. Farrish-LeDuc, 275 Conn. 748, 761-62, 882 A.2d 44 (2005). Our Supreme Court determined that, despite the operator of the second vehicle not having been found “responsible for the injury,” the reduction of the $2500 payment made on behalf of that operator was permitted because the payment, “which was made in settlement of Buell’s suit against [the operator of the second vehicle], served two purposes—to avoid litigation of the claim against [that operator] and to compensate Buell for her bodily injuries.” Buell v. American Universal Ins. Co., supra, 224 Conn. 773. Moreover, in the multiple tortfeasor context, our Supreme Court has categorically held that “in accordance with the public policy underlying underinsured motorist coverage . . . the plaintiff . . . must be compensated from all available sources, in the amount that would have been available if the tortfeasor had carried a policy limit . . . equal to the plaintiffs coverage.” (Emphasis in original.) Anastasia v. General Casualty Co. of Wisconsin, supra, 307 Conn. 726-27.

In light of our Supreme Court’s determination in Buell that where there has been no finding of liability, pursuant to the language of § 38a-334-6 (d) (1) of the regulations providing for reduction of policy limits for amounts paid “by or on behalf of any party responsible for the injury,” an insurer may nonetheless reduce the insured’s underinsured motorist coverage limits by amounts made in settlement of the insured’s claims against other tortfeasors, we conclude that the trial court in the present case did not err in determining that, under the language of Dufresne’s policy, which comports with § 38a-334-6 (d) (1), the defendant may similarly reduce Dufresne’s policy limit by the amounts received in settlement from Anton and Lombardi. We note that allowing for the defendant to make such a reduction is in keeping with the principle that underin-sured motorist policies “provide a minimum level of uninsured [and underinsured] motorist coverage for the protection of persons insured thereunder. [Our underinsured motorist statute] does not require that [underinsured] motorist coverage be made available when an insured has been otherwise protected .... Nor does the statute provide that the [underinsured] motorist coverage shall stand as an independent source of recovery for the insured . . . .” (Emphasis in original; internal quotation marks omitted.) Anastasia v. General Casualty Co. of Wisconsin, supra, 307 Conn. 724.

This court having determined that the defendant’s reduction in Dufresne’s policy limit by the amount paid to her estate in settlement of her claims was a proper reduction under the terms of the policy and relevant regulation, there exists no genuine issue of material fact regarding the defendant’s obligation to the plaintiff under the terms of the insurance contract. We, accordingly, conclude that the court did not err in rendering judgment for the defendant as a matter of law.

The judgment is affirmed.

In this opinion the other judges concurred.

       On June 27, 2011, the plaintiff filed a motion for articulation, which the trial court denied on July 21, 2011. The plaintiff then, on August 2, 2011, filed a motion to review with this court. We granted the plaintiffs motion, but denied the relief requested therein.

       The plaintiff also argues that the court improperly granted the defendant’s motion for summary judgment because it erroneously relied on the reasoning set forth in Savoie v. Prudential Property & Casualty Ins. Co., supra, 84 Conn. App. 594, rather than following the reasoning in Carda v. ITT Hartford Ins. Co., supra, 72 Conn. App. 588. She contends that this court’s holding in Carda requires that a factfinder apportion liability among multiple tortfea-sors in the uninsured and underinsured motorist contexts, which precludes the granting of summary judgment. We, however, need not reach that question because we have determined that the issue presented in this case is resolved by other case law.

       Section 38-175a-6 of the Regulations of Connecticut State Agencies was transferred to § 38a-334-6 of the Regulations of Connecticut State Agencies in 1992. See Hartford Casualty Ins. Co. v. Farrish-LeDuc, 275 Conn. 748, 758 n.9, 882 A.2d 44 (2005).


author: LAVINE, J.

text:
    KRISTEN S. NWEEIA v. MARTIN T. NWEEIA
    (AC 33690)
    Lavine, Beach and Bear, Js.

      Argued February 21—
    officially released May 14, 2013

      Campbell D. Barrett, with whom, on the brief, was Jon T. Kukucka, for the appellant (plaintiff).

      Steven D. Ecker, with whom, on the brief, were M. Caitlin S. Anderson and Rosemary E. Giuliano, for the appellee (defendant).
   Opinion

LAVINE, J.

The plaintiff, Kristen S. Nweeia, appeals from the judgment of the trial court rendered when it granted the postdissolution motions filed by the defendant, Martin T. Nweeia. In granting the subject motions, the court awarded the defendant sole legal custody of the parties’ minor child and modified the parties’ parenting plan. On appeal, the plaintiff claims that the court (1) erred by concluding that her relocation within the state constituted a material change of circumstances and (2) improperly precluded her from calling the child as a rebuttal witness. We affirm the judgment of the trial court.

The following facts are pertinent to our resolution of the plaintiffs claims. The plaintiff and the defendant were married on July 29, 2000. In 2004, the parties had a child, a daughter, who has special educational needs. The court, Maraño, J., rendered a judgment of dissolution of the parties’ marriage on January 15, 2008, that incorporated their separation agreement and stipulated parenting plan dated October 23, 2007. Pursuant to the parenting plan, the parties were granted “joint custody” of the child. Paragraph 17 of the parenting plan stated: “For any registration purposes and when only one address can be used and/or is permitted for [the child], the [plaintiffs] address shall be used.” At the time the parties entered into the parenting plan, the plaintiff was residing in Kent, and the child was enrolled in preschool in the Kent school system.

On January 20,2010, the plaintiff filed a postjudgment motion for modification of the parties’ parenting plan and for permission to relocate with the child to Irvington, New York. No action was ever taken on the motion, but in August, 2010, the plaintiff unilaterally enrolled the child in the Glenville Elementary School in Greenwich. The defendant filed a motion to have the child reenrolled in the Kent school system. Following a hearing held on September 1, 2010, the court, Danaher, J., found that the plaintiffs relocation to Greenwich was based primarily on her employment needs and without regard for the defendant’s parenting rights. Moreover, changing the child’s residence to Greenwich would have had an adverse effect on the child by limiting significantly her contact with the defendant and creating a situation inconsistent with the parenting plan agreed on by the parties and ordered by Judge Maraño at the time of dissolution. Judge Danaher granted the defendant’s motion to have the child reen-rolled in the Kent school system.

The plaintiff, however, continued to reside in Greenwich, which increased the child’s travel time when she was transported from Greenwich to Sharon, where the defendant resides. Judge Danaher invited the parties “to file any appropriate motion regarding revisions to the existing custodial arrangement.” The defendant accepted the court’s invitation and filed motions to modify the parenting plan and for sole legal custody of the child. On October 13, 2010, the plaintiff filed a “motion in regard to joint custody” seeking an order that she have final decision-making authority with respect to the child’s medical and special needs. A guardian ad litem was appointed for the child.

The court held a hearing on the defendant’s motion to modify the parenting plan on November 16 and 17, 2010. During the hearing, the child’s guardian ad litem reported that the increased travel time occasioned by the plaintiffs new residence did not appear to adversely affect the child in a significant way. The court denied the defendant’s motion to modify the parenting plan without prejudice. In doing so, the court stated that it “cast” the guardian’s report against the desirability of maintaining the child’s relationship with both parents and considered the fact that the family services unit study was ongoing.

The court held twelve days of hearings on the parties’ motions to change custody and modify the parenting plan in February and March, 2011. Following the parties’ submission of proposed orders, they appeared before Judge Danaher for argument. In a thorough, detailed, and thoughtful memorandum of decision dated June 14, 2011, the court denied the plaintiffs motion to relocate and her motion to modify the parenting plan to give her final decision-making authority regarding the child’s medical and special needs, and granted the defendant’s motion to modify the parenting plan and awarded him sole legal custody of the child and ordered that the child’s primary residence be with the defendant. The court denied the plaintiffs subsequent motion to reargue and reconsider.

After the plaintiff appealed from the judgment rendered on the postdissolution motions, she filed a motion for articulation dated January 3, 2012, that included eight numbered paragraphs. The court issued a lengthy articulation decision on February 1, 2012. Thereafter the plaintiff filed a request for further articulation, including a request that the court “[a]rticulate the complete legal basis underlying the corut’s conclusion that it possessed the discretion to prohibit the plaintiff from calling the minor child as a rebuttal witness during trial on March 15, 2011.” The court denied the plaintiffs motion for further articulation with regard to its evidentiary ruling. The plaintiff then filed a motion for review in this court in which she sought to have this court order the trial court to further articulate its reasons for precluding the child from testifying. This court granted the plaintiffs motion for review but denied the relief requested. Additional facts will be set forth as necessary.

I

The plaintiffs first claim is that a parent’s in-state relocation cannot constitute a material change in circumstances warranting the modification of legal custody. We decline to review this claim as it was not preserved for appeal during trial.

“The court shall not be bound to consider a claim unless it was distinctly raised at trial or arose subsequent to the trial.” Practice Book § 60-6. “[Bjecause our review is limited to matters in the record, we . . . will not address issues not decided by the trial court.” (Internal quotation marks omitted.) Burnham v. Karl & Gelb, P.C., 262 Conn. 163, 171, 746 A.2d 178 (2000). “The requirement that [a] claim be raised distinctly means that it must be so stated as to bring to the attention of the court the precise matter on which its decision is being asked.” (Emphasis in original; internal quotation marks omitted.) State v. Colon, 82 Conn. App. 658, 669, 847 A.2d 316, cert. denied, 269 Conn. 916, 852 A.2d 745 (2004). “The reason for the rule is obvious: to permit a party to raise a claim on appeal that has not been raised at trial—after it is too late for the trial court ... to address the claim—would encourage trial by ambuscade, which is unfair to both the trial court and the opposing party.” (Internal quotation marks omitted.) State v. Dalzell, 282 Conn. 709, 720, 924 A.2d 809 (2007).

The following facts are relevant to our determination that the plaintiff failed to raise this issue in the trial court. On April 21, 2009, the plaintiff filed a motion entitled postjudgment motion for modification of parenting plan and visitation and for relocation of minor child. In her motion, the plaintiff represented that she was “relocating her residence to Irvington, New York and seeks to relocate the residence of the minor child with her while she is in her physical custody. . . . The relocation to Irvington is a substantial change in circumstances and would have a significant impact on the Parenting Schedule . . . .” (Emphasis added.) On January 20, 2010, the plaintiff amended the subject motion for modification of parenting plan and relocation of the child. In her amended motion, the plaintiff represented that she “is seeking to relocate her residence to Irvington, New York or Greenwich, CT and seeks to relocate the residence of the minor child with her while she is in her physical custody. . . . The relocation is a substantial change in circumstances and would have a significant impact on the Parenting Schedule . . . .” (Emphasis added.) Moreover, on October 13, 2010, the plaintiff filed a motion entitled “postjudgment motion in regard to joint custody” in which she sought to continue joint legal custody of the child and that she be granted “the ability to make the final decisions in regard to the special needs of the child . . . .”

In both the original motion to modify the parenting plan and the amended motion, the plaintiff stated that her relocation, whether to Irvington, New York, or Greenwich, constituted a substantial change in circumstances and, therefore, was a sufficient reason to alter the parenting plan. During the hearing on the parties’ motions, the parties did not dispute that the plaintiffs relocation to Greenwich constituted a substantial change in circumstances. For the plaintiff to claim on appeal that the court erred by finding a substantial change of circumstances due to the plaintiffs relocating from Kent to Greenwich, an in-state relocation, is trial by ambuscade. “[0]rdinarily appellate review is not available to a party who follows one strategic path at trial and another on appeal, when the original strategy does not produce the desired result. ... To allow the [party] to seek reversal now that his trial strategy has failed would amount to allowing him to induce potentially harmful error, and then ambush the [opposing party and the court] with that claim on appeal.” (Internal quotation marks omitted.) Glenn v. Glenn, 133 Conn. App. 397, 403 n.6, 35 A.3d 376 (2012).

We therefore decline to review the plaintiff’s claim that her in-state relocation does not constitute legal grounds for a substantial change of circumstances warranting a change in custody and the parenting plan. In this instance, the plaintiff herself admitted that her relocation to Greenwich constituted a substantial change. “[T]he theory upon which a case is tried in the trial court cannot be changed on review .... Moreover, an appellate court should not consider different theories or new questions if proof might have been offered to refute or overcome them had they been presented at trial. . . . Our rules of procedure do not allow a [party] to pursue one course of action at trial and later, on appeal, argue that a path he rejected should now be open to him. ... To rule otherwise would permit trial by ambuscade.” (Citation omitted; internal quotation marks omitted.) Dockter v. Slowik, 91 Conn. App. 448, 462, 881 A.2d 479, cert. denied, 276 Conn. 919, 888 A.2d 87 (2005). The plaintiffs claim is not reviewable as it is not consistent with her theory at trial.

II

The plaintiffs second claim is that the court erred by precluding her from calling the parties’ child as a rebuttal witness. We disagree.

The following facts, as found by the court, axe relevant to this claim. During the hearing on the parties’ motions to change the parenting plan and custody orders, the parties vigorously disputed whether the Kent public schools or the Greenwich public schools could better meet the child’s educational needs. There was no dispute that the child has special educational needs, although the parties dispute the degree to which she is disabled and the type of educational support she requires.

The court found that the plaintiffs expert witness, Edward Dragan, conducted an investigation that was so superficial and simplistic that it could not be relied upon for the purpose of determining whether the Glen-ville School in Greenwich offers better, or even meaningfully different, opportunities for the child than those available and being provided by the Kent Center School. The plaintiff also called Steven Boksenbaum, a neurop-sychologist, who had never met the child and only had reviewed the child’s records.

The defendant called several witnesses, including educational specialists. Rebecca LaFontan was the child’s first grade teacher. She testified that the child was one of three special needs children in her class and addressed the child’s particular needs and the resources available. She also discussed the parties’ parenting styles and attitudes toward her recommendations and requests. LaFontan believed that the child frequently is tired and has observed dark circles under her eyes. Mary Himelstein has more than thirty years of experience dealing with special needs children and their educational placements. To carry out her investigation, Himelstein obtained data from the school rather than the child’s parents. She reviewed school records, including the child’s individual education plan, behavior charts, transcripts, in-school assessments and visited Kent Center School, where she met with several school officials and special needs providers. Himelstein also observed the child in her classroom where the child “perform[ed] mathematically” and did some sight reading. Himelstein opined that the Kent Center School was providing an appropriate program for the child. Although the child is not performing at grade level, she is progressing.

In rebuttal, the plaintiff called John Marsicano, a school psychologist for Kent Center School and Region One School District. He helps the child with socialization issues. He testified that a school has not failed a child if she has not mastered a goal in her individual education plan. If the child progresses satisfactorily, the goal can remain the same the next year because the standards for the goal differ as the child moves along. The guardian ad litem also testified and recommended that the child continue to attend Kent Center School. Although the guardian ad litem testified in November, 2010, that she did not see concrete evidence that the commute between Greenwich and Kent had an adverse affect on the child, she was more concerned about the issue at the time of trial. She also testified that, if joint legal custody continued, neither parent should have final decision-making authority.

The plaintiffs position at trial was that the child should be enrolled in the Glenville Elementary School because it could better meet the child’s educational needs. She also was adamant that the child could not read, despite Himelstein’s testimony regarding her observations of the child. To rebut Himelstein’s testimony, counsel for the plaintiff requested that the plaintiff be permitted to call the child as a witness to read before the court, or if the court found that inappropriate, to have the child read to her guardian ad litem. The court refused the request, noting that the child’s ability to read was not the central issue in the case. The guardian ad litem agreed with the court’s reasoning and noted that she was not an educational expert. The defendant objected to having the child read to the court or the guardian ad litem.

After the plaintiff appealed, she filed a motion for articulation, asking the court, among other things, to “[a]rticulate the legal basis for precluding the plaintiff from calling the minor child as a rebuttal witness during trial on March 16, 2011.” In its articulation, the court responded to the plaintiffs request in a thoughtful, sensitive, and knowledgeable manner. We take particular note that, in its articulation, the court found that the proffered demonstrative evidence would not be probative of the central issue in the case.

On appeal, the plaintiff claims that the court misconstrued the law and violated the rules of practice; see Practice Book § 32a-4 (b); and her statutory and due process rights to call the child to testify. She therefore argues that our standard of review is plenary. The plaintiff relies on the readily distinguishable case of Gennarini v. Gennarini, 2 Conn. App. 132, 477 A.2d 674 (1984), which held that a court violated the due process rights of a party by interviewing a minor child in chambers in the absence of the parties and their counsel, except where the parties have consented. Id., 134-35. The issue in Gennarini concerned a postjudgment motion to modify custody, and the court sought to ascertain the preference of the parties’ seven year old child in private. Id., 133. There is no due process issue presented by the evidentiary question here.

The proffer of the child’s reading to the court did not present the court with a complicated legal decision, but was one basic to the admission of all evidence: was the evidence relevant. Our code of evidence provides: “ ‘Relevant evidence’ means evidence having any tendency to make the existence of any fact that is material to the determination of the proceeding more probable or less probable than it would be without the evidence.” Conn,. Code Evid. § 4-1. “Evidence that is not relevant is inadmissible.” Conn. Code Evid. § 4-2.

“Our standard of review for evidentiary matters allows the trial court great leeway in deciding the admissibility of evidence. The trial court has wide discretion in its rulings on evidence and its rulings will be reversed only if the court has abused its discretion or an injustice appears to have been done. . . . The exercise of such discretion is not to be disturbed unless it has been abused or the error is clear and involves a misconception of the law.” (Internal quotation marks omitted.) Bunting v. Bunting, 60 Conn. App. 666, 670, 760 A.2d 989 (2000).

One of the issues before the court was whether the child should attend the Glenville Elementary School or the Kent Center School. No witness disputed that the child has educational disabilities or that she did not read at grade level. The question for the court to determine was which of the two schools could better address the child’s educational needs. Both parties presented documentary and testimonial evidence from experts and fact witnesses to address that question. The court found that the child’s ability to read had little probative value as to which of the two schools could better meet her needs. Moreover, the guardian ad litem noted that she was not in a position to evaluate the child’s reading level. In light of the court’s conclusion that the proffered evidence would not aid it in deciding which school would better meet the child’s educational needs, we conclude that the court did not abuse its discretion by precluding the plaintiff from calling the child as a rebuttal witness.

The judgment is affirmed.

In this opinion the other judges concurred.

       The modified parenting plan is lengthy and complex. The parties are to have shared physical custody of the child, who will spend the first, second, and fourth weekends of every month with the plaintiff, as well as Wednesday afternoons from after school until 7 p.m.

       On appeal, the plaintiff seeks to have this court reverse the judgment of the trial court awarding the defendant sole legal custody of the child and direct the court to deny the defendant’s motion for sole legal custody of the child. The plaintiff also seeks to have this court reverse the judgment denying her motion to enroll the child in the Greenwich public schools and to modify the parenting plan granting her final decision-making authority regarding the child’s medical and special needs.

       Request 3 of the motion for articulation concerned the legal basis to preclude the plaintiff from calling the child as a witness. Requests 5 and 6 concerned the court’s finding a material change in circumstances.

       The defendant argued in his brief that the plaintiffs claim was barred by the appellate waiver doctrine.

       The defendant claims that the plaintiffs second claim also is not preserved because no offer of proof was made at trial. We disagree. The record demonstrates that the reason the plaintiff wanted to call the child as a rebuttal witness was to demonstrate to the court that the child could not read.

       With regard to the child’s reading to the court, counsel for the plaintiff stated: “I would like the court, if the court is available, to have an opportunity to have the child read to the court. And if the court feels that’s inappropriate, then, what I would like to do, is have the child read to the guardian ad litem to see, in fact, if she can read because there’s two experts: one says the child can’t read; the other says the child can read. There’s mom who says the child can’t read and there’s dad who says the child is reading.”

       In denying the plaintiffs request to have the child read to the court or the guardian ad litem, the court stated: “[B]oth parties have introduced documentary evidence. I don’t believe it’s been the subject of oral testimony, but within the documents, there has been evidence by a number of individuals, that indicate that those individuals who are either medical or educational experts, or witnesses—I think at least one of them is a plaintiffs expert, that I recall reading—making indications to the effect that it may well be that some of the issues affecting this child are the product of the stress visited on her, as a result of this litigation and the disagreement between the parties.
      “The last thing I’m going to do is exacerbate that situation or even take the risk of exacerbating that situation. I’m not putting this child under the microscope of the court. I refuse. ... I must disagree with that recommendation. I’m not going to observe this child reading or performing any other function. In terms of whether the guardian ad litem should do that, I don’t know if that’s any better. It’s a little better arguably, but it . . . smacks of putting her to the test.
      “I’m capable, I feel, of weighing the opinions of the various experts and deciding who should be credited and who should not. That’s part of what a fact finder has to do with any issue that comes before it. But I’d be interested in the thoughts of the guardian ad litem.”

       The guardian ad litem stated: “Your Honor, I couldn’t agree with you more. We’re asking [the child] to perform functions in front of parents and me. She’s met me a couple of times, but I just think it’s an awful situation for her. And I’m not an educational expert. I believe that there is some fluctuation in [the child’s] abilities at various times, both from the documentary evidence and the witnesses, as Your Honor has stated. And I’m not sure that Your Honor’s decision is going to revolve around whether [the child] can read or perform various functions. I mean, that’s a factor for Your Honor, but this is not a due process hearing or any other hearing under the educational process. And we have numerous witnesses, and I’ll leave it up to Your Honor.”

       Throughout its articulation, the court cited portions of the hearing transcript, which have been omitted from the text here. “The defendant presented expert testimony at trial. The defendant’s expert testified, inter alia, that the . . . child had some ability to read. . . . The plaintiff explored that issue in detail during cross-examination. . . . The plaintiff sought to further respond to the defendant’s expert’s testimony by calling the child as a witness, either before the court or before the guardian ad litem, for the purpose of demonstrating to the court that the minor child cannot read. . . .
      “The court declined to allow the plaintiff to bring the minor child to court or before the guardian ad litem for the purpose of testing the child’s reading abilities. The court’s decision had multiple bases, including the fact that the tactic proposed by the plaintiff was likely to expose the minor child, a special needs child who was six years of age at the time, to a variety of negative effects.
      “First, the child would be placed in the position of having to serve as a witness for one parent in opposition to her other parent. Second, if brought to court, the child would be placed under significant emotional and psychological pressure by having to ‘perform’ before a judge who would ultimately have to decide issues relating to her custody. Testing the child’s reading skills before the guardian ad litem would not have been much better. Such an action could have jeopardized the trust that exists between the minor child and the guardian ad litem. ‘[A]n effective guardian ad litem may have to gain the trust and confidence of his or her ward for the purposes of obtaining relevant information from the child, [because] it is ultimately the guardian ad litem’s responsibility to relay his or her findings and recommendations back to the court.’ Linnell v. Linnett, Superior Court, judicial district of Waterbury, Docket No. FA-06-4010515 (February 16, 2010) (Bozzuto, J.) (49 Conn. L. Rptr. 386). Third, the plaintiff did not make any offer of proof as to how a reading skill demonstration before either the court or the guardian ad litem would, or could, bear any relation to what the defendant’s expert had discreetly observed in the child’s classroom setting. Fourth, the theory of the plaintiffs presentation was that the Greenwich school system is preferable to the Kent school system with regard to addressing the child’s special needs. Whether the child has acquired some reading skills in the Kent school system would add little to the body of information presented to the court on the relative merits of the two school systems. Fifth, to the extent the plaintiff was offering the testimony to impeach the testimony of the defendant’s expert, such evidence would have constituted improper impeachment through the use of extrinsic evidence. State v. Adorno, 121 Conn. App. 534, 549, 996 A.2d 746, cert. denied, 297 Conn. 929, 998 A.2d 1196 (2010).
      “In view of the fact that the plaintiff had already cross-examined the defendant’s expert regarding the child’s ability to read, the marginal benefits associated with having the child testify, and considering the significant risk of causing emotional and psychological harm to this child—or any child— in the manner proposed by the plaintiff, the court exercised its discretion to decline to allow the plaintiff to examine the minor child in order to rebut the defendant’s expert. The proffered testimony would have been a waste of time, of little probative value and adverse to the best interests of the child. Motzer v. Haberli, 300 Conn. 733, 741-42, 15 A.3d 1084 (2011).” (Citations omitted.)

       Although we resolve the plaintiffs claim on the ground of relevance, we note the court’s finding that it was not in the child’s best interest to be called to read to the court or the guardian ad litem.