source: Caselaw Access Project

author: ALVORD, J.

license: Public Domain

text:
    STATE OF CONNECTICUT v. EDWARD JEVARJIAN
    (AC 30485)
    DiPentima, C. J., and Beach and Alvord, Js.

      Argued June 3
    officially released October 5, 2010

      Frank J. Riccio, with whom was Frank J. Riccio II, for the appellant (defendant).

      Laurie N. Feldman, special deputy assistant state’s attorney, with whom, on the brief, were Michael Dearington, state’s attorney, and John Waddock, supervisory assistant state’s attorney, for the appellee (state).
   Opinion

ALVORD, J.

The defendant, Edward Jevarjian, appeals from the judgment of conviction following his conditional plea of nolo contendere to one count of possession of marijuana with intent to sell by a person who is not drug-dependent in violation of General Statutes § 21a-278 (b). The plea followed the trial court’s denial of the defendant’s motions to suppress the evidence that law enforcement officials had seized from his residence and garage and from a recreational vehicle that belonged to Dennis Earl Thompson that had been parked on the defendant’s property. On appeal, the defendant claims that the court improperly (1) denied his first motion to suppress because law enforcement officials commenced the search prior to the time authorized in the search warrant, (2) denied his second motion to suppress that had been filed pursuant to Franks v. Delaware, 438 U.S. 154, 98 S. Ct. 2674, 57 L. Ed. 2d 667 (1978), and (3) denied his motion to disclose the identity of a confidential informant. We affirm the judgment of the trial court.

The record reveals the following facts and procedural history. During the late evening hours of May 17, and into the early morning hours of May 18, 2007, law enforcement officials seized approximately 600 pounds of marijuana from the defendant’s house and garage and from a recreational vehicle on the property that belonged to and was occupied by Thompson. The defendant and Thompson were arrested at that time. The defendant was charged with possession of marijuana with intent to sell by a person who is not drug-dependent in violation of § 21a-278 (b) and conspiracy to possess marijuana with intent to sell by a person who is not drug-dependent in violation of General Statutes §§ 53a-48 and 21a-278 (b). Except for sentencing, the cases of the defendant and Thompson were prosecuted simultaneously.

On August 13, 2007, the defendant filed a motion to suppress the evidence that had been seized, claiming that the search had commenced prior to the time the judge signed the search warrant. After a four day evidentiary hearing, the court denied the motion in a memorandum of decision filed May 13,2008. On May 22,2008, the defendant filed a second motion to suppress, seeking an evidentiary hearing pursuant to Franks v. Delaware, supra, 438 U.S. 154, claiming that the application for the search and seizure warrant contained either a deliberate falsehood or a statement made in reckless disregard for the truth. Specifically, the defendant claimed that the search warrant affidavit contained uncorroborated assertions of an unreliable informant and, as such, did not provide a substantial basis to establish probable cause to conduct the search. The defendant also filed at that time a motion for disclosure of the name and location of the confidential informant who provided information contained in the affidavit. The court orally denied both motions on June 18, 2008. On July 16, 2008, the defendant entered a conditional plea of nolo contendere to one count of possession of marijuana with intent to sell in violation of § 2 la-278 (b) and was sentenced to eighteen years incarceration, suspended after eleven years, and three years probation. This appeal followed.

I

The defendant claims that the court improperly denied his first motion to suppress the evidence seized from the house, garage and recreational vehicle because the search was commenced prior to the time noted on the warrant by the judge who signed the warrant. Before addressing that claim, however, we first address the issue of the right of the defendant to challenge the search of Thompson’s recreational vehicle. The state argued, and the trial court agreed, that the defendant did not have standing to contest the search of Thompson’s recreational vehicle. The defendant challenges that determination on appeal.

A

“The touchstone to determining whether a person has standing to contest an allegedly illegal search is whether that person has a reasonable expectation of privacy in the invaded place. . . . Absent such an expectation, the subsequent police action has no constitutional ramifications. ... In order to meet this rule of standing ... a two-part subjective/objective test must be satisfied: (1) whether the [person contesting the search] manifested a subjective expectation of privacy with respect to [the invaded premises]; and (2) whether that expectation [is] one that society would consider reasonable. . . . This determination is made on a case-by-case basis. . . . Whether a defendant’s actual expectation of privacy ... is one that society is prepared to recognize as reasonable involves a fact specific inquiry into all the relevant circumstances. . . . Furthermore, [t]he defendant bears the burden of establishing the facts necessary to demonstrate a basis for standing .... [T]he trial court’s finding [on the question of standing] will not be overturned unless it is legally or logically inconsistent with the facts found or involves an erroneous rule of law.” (Citation omitted; internal quotation marks omitted.) State v. Jones, 113 Conn. App. 250, 266, 966 A.2d 277, cert. denied, 292 Conn. 901, 971 A.2d 40 (2009).

At the suppression hearing, the defendant testified as follows: Thompson, driving his recreational vehicle, arrived at the defendant’s house on May 17, 2007, and parked his vehicle on the defendant’s property; Thompson and the defendant went out to dinner; after dinner, Thompson and the defendant hooked up electric power and water from the defendant’s house to the recreational vehicle in order that Thompson could use the washer, dryer, oven, dishwasher and air conditioning in his recreational vehicle; the defendant then left Thompson, went into his garage and did not see Thompson again until the search was conducted; the search occurred approximately four horns after Thompson’s arrival at the defendant’s property; when law enforcement officials arrived to search the premises, Thompson was asleep in his recreational vehicle and the defendant was in his garage; Thompson had been to the defendant’s property on three or four prior occasions and always slept in his recreational vehicle under the same arrangement with respect to utilities hookup; the defendant never slept or traveled in Thompson’s recreational vehicle; and the defendant did not have keys to the recreational vehicle. On the basis of that testimony, the defendant argued that he had a reasonable expectation of privacy in Thompson’s recreational vehicle, particularly because it was “attached” to his house and was part of his property’s curtilage.

The concept of curtilage refers to those areas immediately surrounding the house in which expectations of privacy are normally the greatest. “At common law, the curtilage is the area to which extends the intimate activity associated with the sanctity of a man’s home and the privacies of life . . . and therefore has been considered part of the home itself for Fourth Amendment purposes.” (Citation omitted; internal quotation marks omitted.) Oliver v. United States, 466 U.S. 170, 180, 104 S. Ct. 1735, 80 L. Ed. 2d 214 (1984). “Curtilage has been defined by reference to the factors that determine whether an individual reasonably may expect that an area immediately adjacent to the home will remain private.” (Internal quotation marks omitted.) State v. Brown, 198 Conn. 348, 359 n.9, 503 A.2d 566 (1986).

In the present case, the court found that the defendant’s testimony failed to establish that the defendant was Thompson’s overnight guest or social invitee with respect to Thompson’s recreational vehicle. The court further found that the defendant’s argument that Thompson’s recreational vehicle was an auxiliary building that should be considered part of the curtilage of the defendant’s home was without legal support. As noted by the court, no evidence had been presented to show that the defendant even had the means of accessing the recreational vehicle. The court therefore concluded that the defendant did not have standing to challenge the search of Thompson’s recreational vehicle.

The trial court clearly articulated the facts and the law that formed the basis of its conclusion that the defendant did not meet the burden of establishing a reasonable expectation of privacy in Thompson’s recreational vehicle and, accordingly, held that he did not have standing to invoke his constitutional rights as to the evidence seized from that recreational vehicle. On the basis of our plenary review of this question of law, which we conduct in light of the court’s factual findings, we do not find that the court’s decision was clearly erroneous. See State v. Mitchell, 56 Conn. App. 561, 567-68, 744 A.2d 927, cert. denied, 253 Conn. 910, 754 A.2d 162 (2000).

B

As we previously noted, the defendant does have the right to challenge the search of his home and garage, and we therefore address his claim that the evidence was illegally seized because the search commenced prior to the time authorized by the judge who signed the warrant. In support of that claim, the defendant indicates that the judge noted the time as 10:51 p.m. when he signed each page of the search warrant. The search of the defendant’s premises, however, commenced before 10:00 p.m. The defendant claims that the search was, therefore, premature and unlawful under the federal and state constitutions. The trial court, after testimony from several witnesses at the suppression hearing, determined that the time noted by the judge was a scrivener’s error and that the search had commenced after the judge signed the warrant. Accordingly, the court denied the defendant’s motion to suppress the evidence seized from his home and garage.

“Our standard of review of a trial court’s findings and conclusions in connection with a motion to suppress is well defined. A finding of fact will not be disturbed unless it is clearly erroneous in view of the evidence and pleadings in the whole record .... [W]here the legal conclusions of the court are challenged, we must determine whether they are legally and logically correct and whether they find support in the facts set out in the memorandum of decision .... We undertake a more probing factual review when a constitutional question hangs in the balance.” (Citation omitted; internal quotation marks omitted.) State v. Clark, 297 Conn. 1, 7, 997 A.2d 461 (2010).

The following additional facts are necessary for the resolution of the defendant’s claim. At the suppression hearing, Bruce J. Lovallo, an officer with the Wood-bridge police department, provided the following testimony. The application for the search warrant was prepared at the Woodbridge police department during the late afternoon and evening of May 17, 2007. At approximately 9:25 p.m., he and Robert Criscuolo, an officer with the New Haven police department assigned to the Statewide Narcotics Task Force, left the Wood-bridge police department and drove to the residence of the Honorable Elpedio N. Vitale, a judge of the Superior Court, to obtain his signature on the warrant. They arrived at Judge Vitale’s house within five minutes. As they sat at the kitchen table, Judge Vitale reviewed the application and gave it back to the officers. Criscuolo and Lovallo then each took an oath as to the representations in the affidavit and signed and dated it. Both officers also noted the time as 21:50 in military time, or 9:50 p.m. in civilian time, on the first page of the warrant. Judge Vitale then signed, dated and noted the time as 10:51 p.m. on each page of the warrant. Lovallo did not notice the discrepancy in the notation of the hour.

Judge Vitale handed the signed warrant to Lovallo, and the officers went back to their police vehicle. After Lovallo entered the vehicle, he called Gene Marcucci, the chief of the Woodbridge police department, from his police radio and notified him that the warrant had been signed. Marcucci testified that he received that call on his police radio sometime between 9:50 p.m. and 9:55 p.m. An exhibit submitted by the state confirmed that the call was placed at 9:55:22 p.m. and concluded at 9:56:22 p.m. Joseph B. Marchio, a sergeant employed by the Statewide Narcotics Task Force, testified that he received a call from Criscuolo that the warrant had been signed and that he then notified law enforcement officials waiting at the defendant’s premises that the search could begin. Additionally, Marc Grandpre, a detective with the Connecticut state police, testified that he was the evidence officer involved in the collection of evidence at the defendant’s premises. He testified that the seizure of the evidence on May 17, 2007, commenced shortly after 10 p.m.

On the basis of the testimony at the suppression hearing, the court found: “[F]rom the facts, it is clear that the search was conducted subsequent to Judge Vitale signing the warrant. The time placed by Judge Vitale of 10:51 p.m. was in error and that the correct time was 9:51 p.m.” The defendant claims that the court’s determination was improper because (1) there was evidence that Judge Vitale did not make a mistake when he wrote 10:51 p.m. on the warrant or (2) if Judge Vitale was mistaken, law enforcement officials either had to correct the mistake or they had to wait until 10:51 p.m. to execute the warrant. We disagree.

With respect to the argument that the defendant had submitted evidence that corroborated the time of 10:51 p.m., it is apparent that the court chose instead to believe the testimony of Lovallo, Marcucci, Marchio and Grandpre. “[T]he determination of a witness’ credibility is the special function of the trial court. This court cannot sift and weigh evidence.” (Internal quotation marks omitted.) State v. Jones, supra, 113 Conn. App. 261 n.6. The record reveals that there was substantial evidence to support the court’s finding that the search occurred after Judge Vitale signed the warrant and that the 10:51 p.m. notation of time was a scrivener’s error.

The defendant next argues that the court could not reasonably conclude that the time notation was a scrivener’s error because, in order to do so, the court had to rely on the improper admission of parol evidence that contradicted the terms of the warrant. He claims that the court was bound by the “four comers” of the search warrant. Specifically, he argues that (1) an act performed by a judge in his or her role as a judge cannot be characterized as a scrivener’s error, (2) Judge Vitale’s conduct in signing the warrant and noting the time of its issuance, as required by General Statutes § 54-33a (c), was a judicial act and therefore could not be considered a scrivener’s error and (3) the failure of the two officers to notice the discrepancy in time constituted police misconduct. For those reasons, the defendant argues that parol evidence could not be used to contradict Judge Vitale’s notation of time and that any incorrect information in the warrant would have invalidated the warrant.

The defendant’s argument is unpersuasive. We first note that he has provided no credible authority to support his contention that a judge cannot make a scrivener’s error. Next, “although probable cause must be determined from the four comers of the warrant, we are not confined to the four comers of the warrant in determining whether the affidavit in support of probable cause has been validly executed.” State v. Colon, 230 Conn. 24, 34, 644 A.2d 877 (1994). The defendant’s claim is that Judge Vitale’s notation of time, if incorrect, invalidates the warrant because it was not properly executed. Technical errors in warrants, however, including clerical errors, do not automatically invalidate warrants. Errors must be evaluated by a court to determine whether they are of sufficient constitutional magnitude to require invalidation of the warrant and exclusion of the evidence obtained. See State v. Browne, 291 Conn. 720, 743-44, 970 A.2d 81 (2009). It follows, then, that an evidentiary hearing with testimony relative to the execution of the warrant is necessary and proper in order for the court to make the determination as to whether the notation of time was a scrivener’s error or whether the search was premature.

The defendant’s reliance on the statutory provisions of § 54-33a (c) is unavailing. The defendant claims that the statute’s requirement that the warrant “shall state the date and time of its issuance” compels the conclusion that the failure to follow that procedure flawlessly results in a “powerless document.” According to the defendant, an error in the statutorily required notation of time could not be considered a ministerial mistake or scrivener’s error, but must be considered a fatal flaw that necessarily invalidated the warrant.

Because this claim of the defendant involves a question of statutory interpretation, it is well established that our review is plenary. State v. McCahill, 265 Conn. 437, 446, 828 A.2d 1235 (2003). Section 54-33a (c) provides in relevant part that “[t]he warrant shall state the date and time of its issuance . . . .” (Emphasis added.) The word “shall” in statutes is generally mandatory “[u]nless the text indicates otherwise . . . .” State v. Cook, 183 Conn. 520, 522, 441 A.2d 41 (1981). When the language of the statute was amended by the legislature in 2000 to include the requirement of stating the date and time of the issuance of the warrant, the following language also was added: “The inadvertent failure of the issuing judge or judge trial referee to state on the warrant the time of its issuance shall not in and of itself invalidate the warrant.” Public Acts 2000, No. 00-31. If, as the legislature has indicated, the failure to include the time does not invalidate a warrant, we see no logical reason whatsoever to conclude that this search warrant was invalidated when the time noted by Judge Vitale was proved to be a scrivener’s error.

For these reasons, we conclude that the court properly admitted parol evidence regarding the signing and dating of the search warrant and its determination that the time noted by Judge Vitale as 10:51 p.m. was a scrivener’s error was not clearly erroneous. We further conclude that the scrivener’s error did not invalidate the search warrant and, therefore, the court’s denial of the defendant’s motion to suppress the evidence seized from his home and garage was not improper.

II

The defendant next claims that the court improperly denied his second motion to suppress filed May 22, 2008, in which he requested an evidentiary hearing pursuant to Franks v. Delaware, supra, 438 U.S. 154. The defendant alleged that the warrant application contained either a deliberate falsehood or a statement made in reckless disregard for the truth. He specifically claimed that a conversation recorded on May 17, 2007, in which the officer who prepared the affidavit for the search warrant was speaking with an officer familiar with the confidential informant who had supplied information about the defendant, clearly indicated that the affidavit contained false or misleading statements about the reliability of the confidential informant.

The court permitted a preliminary showing by allowing the defendant to play that recording, which was contained on a compact disc, in the courtroom. The court then orally denied the motion for a full evidentiary hearing, finding that there was “no evidence of any type of deliberate falsehood or a reckless disregard for the truth.” The court also denied the motion to suppress evidence, determining that the information found within the four comers of the affidavit established probable cause under the totality of the circumstances test. See State v. Barton, 219 Conn. 529, 544, 594 A.2d 917 (1991).

“In order for a defendant to challenge the truthfulness of an affidavit underlying a warrant at a Franks hearing, he must: (1) make a substantial preliminary showing that a false statement knowingly and intentionally, or with reckless disregard for the truth, was included by the affiant in the warrant affidavit; and (2) show that the allegedly false statement is necessary to a finding of probable cause. ... If the allegedly false statement is set aside, however, and there remains sufficient evidence to establish probable cause, a Franks hearing is not necessary. . . . Although the Franks decision referred only to false statements in the affidavit, we have held that material omissions from such an affidavit also fall within the rule .... As the Supreme Court noted in Franks, [t]here is, of course, a presumption of validity with respect to the affidavit supporting the search warrant. To mandate an evidentiary hearing, the challenger’s attack must be more than conclusory .... There must be allegations of deliberate falsehood or of reckless disregard for the tmth . . . .” (Citation omitted; internal quotation marks omitted.) State v. Ferguson, 260 Conn. 339, 363-64, 796 A.2d 1118 (2002).

In the present case, the defendant challenges the affiants’ statements as to the reliability of the confidential informant who provided certain information used by them in the search warrant application. Those portions of the affidavit provide: “That on April 27, 2007, Affiant Lovallo was contacted by a Statewide Narcotics Officer Criscuolo, who advised him that he had received information from Detective Bill Haas of the Milford Police Department that a person by the name of Ed Jevarjian, who is an approximately fifty year old male who lives at 244 Peck Hill Road in the town of Wood-bridge, Connecticut receives periodic shipments of large quantities of marijuana at his Woodbridge residence. Further information was that every few months a R.V. type vehicle with [o]ut-of-[s]tate registration plates comes to [the defendant’s] house and drops off approximately one hundred to two hundred pounds of marijuana, which [the defendant] stores in fifty gallon drums inside his garage next to an older style vintage Corvette. This information was that [the defendant] then breaks down the marijuana into either ten or twenty-five pound quantities, sells it to only a few select people and that this is [the defendant’s] main source of income and he ([the defendant]) has been doing this for several years. The Statewide Narcotics Officer told Affiant Lovallo that he would contact him (Affiant Lovallo) with any further information concerning the next delivery of marijuana to [the defendant’s] residence. Milford Police Department Officer Haas stated that he received the information concerning the illicit narcotics operation at this address from a confidential informant. This confidential informant has provided Officer Haas with information on previous occasions that has proven to be both accurate and rehable and corroborated by brother and sister police officers. Officer Haas stated that this confidential informant has provided information that has led to seizures and arrests. . . .

“That on May 17, 2007 this Affiant Lovallo was contacted by Detective Bill Haas of the Milford Police Department who stated that his rehable informant, who has provided him with accurate and credible information on past occasions, informed him today that a shipment of a large quantity of marijuana was being delivered to [the defendant’s] residence sometime on the evening of May 17, 2007. Detective Haas told Affiant Lovallo that the marijuana was enroute to [the defendant’s] residence from North Carolina in a motor vehicle which he described to [Detective] Haas as being an R.V. type camper vehicle which may be towing a Chevrolet Avalanche or GMC Yukon vehicle. Additional information provided by the rehable informant to [Detective] Haas was that the R.V. camper vehicle was being driven by a man named Earl who was bragging that his shipment contained 300 lbs. of marijuana that was being concealed in the floorboards of this R.V. camper vehicle.” (Internal quotation marks omitted.)

The defendant claims that it is apparent from the conversation between the officers on the compact disc that the informant was not reliable and that the assertions were uncorroborated. The defendant argues that the “glaring inconsistency between the affidavit and the recorded conversation clearly demonstrates that the omission of the information as to the quality of the informant’s past performance and ‘track record’ was not merely accidental.” According to the defendant, as forcefully argued by counsel for the defendant and Thompson during the hearing on the motion before the trial court, the inflection of the voices and the pauses in the conversation heard in the recording virtually compel the conclusion that the officers were attempting to create a false impression of reliability when the informant clearly was unreliable.

The court, after noting that it read the affidavit several times, read the transcript of the recorded conversation and listened to the compact disc with everyone present in open court, made the following ruling: “These police officers were trying to do the right thing in my opinion. I find no evidence of any type of deliberate falsehood or a reckless disregard for the truth. Even if I took out the word ‘reliable’ and just said, an informant, the detailed information with the corroboration supports that informant’s reliability and knowledge.” The court then denied the request for a Franks evidentiary hearing and, for the same reasons as it previously articulated, denied the motion to suppress.

The court’s findings are amply supported by the record. The court, as requested by defense counsel, assessed the credibility of the officers, in part, by the tone of their voices and the flow of their recorded conversation. “[T]he determination of a witness’ credibility is the special function of the trial court. This court cannot sift and weigh evidence.” (Internal quotation marks omitted.) State v. Jones, supra, 113 Conn. App. 261 n.6. The trial court found no evidence of a deliberate falsehood or reckless disregard for the truth. The defendant therefore failed to make the preliminary showing that was necessary to be entitled to a Franks hearing.

Moreover, as indicated by the court, even if the affidavit had omitted the characterization of the informant as rehable, other facts existed that were sufficient to sustain a finding of probable cause. “[I]f, despite a violation of Franks v. Delaware, supra, 438 U.S. 154, the affidavit’s remaining content independently establishes probable cause, the warrant is valid and the evidence seized pursuant to it need not be suppressed.” (Internal quotation marks omitted.) State v. Mordowanec, 259 Conn. 94, 107-108, 788 A.2d 48, cert. denied, 536 U.S. 910, 122 S. Ct. 2369, 153 L. Ed. 2d 189 (2002).

In addition to the portion of the affidavit that recited the information that had been given to Detective Haas by the informant, the affidavit contained the following corroborating information. Lovallo confirmed that a fifty-four year old male with the defendant’s name resided at the address given by the informant. He also confirmed that one of the motor vehicles registered to the defendant was a vintage 1963 Chevrolet Corvette. Lovallo farther indicated in the affidavit that he recalled that the Woodbridge police department had received a complaint from a Woodbridge resident years ago about the smell of burnt marijuana in the area. The complainant told responding officers that she had smelled the burnt marijuana approximately three to four times a week since December, 2001. A check of the Woodbridge police records confirmed that the complaint had been made on March 9, 2002, and the record of that incident indicated that the officers were unable to locate the source of the smell at that time. Lovallo indicated that on April 27, 2007, he and another officer determined that the complainant’s residence was in close proximity to the defendant’s residence.

The affidavit further provides that, after Haas contacted Lovallo on May 17, 2007, law enforcement officials set up surveillance in the vicinity of the defendant’s residence that same day at approximately 5:30 p.m. At approximately 7:45 p.m., an officer observed an R.V. type camper vehicle towing a Chevrolet Avalanche approach the defendant’s residence and park next to the defendant’s detached garage.

The court reasonably concluded that the police investigation confirmed the informant’s report and established that the informant had obtained the information in a reliable way. “[Statements made by an informant are entitled to greater weight if corroborated by evidence independently gathered by the police.” State v. Rodriguez, 223 Conn. 127, 136, 613 A.2d 211 (1992). “The theory of corroboration is that a statement which has been shown true in some respects is reasonably likely to be true in the remaining respects.” State v. Jackson, 162 Conn. 440, 447, 294 A.2d 517, cert. denied, 409 U.S. 870, 93 S. Ct. 198, 34 L. Ed. 2d 121 (1972). As determined by the court, the informant’s statements, as corroborated by other extrinsic evidence, provided a substantial basis for the issuing judge to conclude that such information was rehable. The court, therefore, properly denied the defendant’s second motion to suppress evidence.

Ill

The defendant’s final claim is that the court improperly denied his motion to disclose the name and location of the confidential informant who supplied the information to Haas. The defendant argues that he was entitled to learn the identity of the informant in order to assist him in the preparation of his defense. We conclude that this issue is not reviewable.

Immediately after the denial of the defendant’s second motion to suppress on June 18, 2008, the court addressed the defendant’s motion to disclose the informant’s identity. When the court asked counsel for the defendant to proceed with his argument, counsel indicated that he had purposely requested that the motion for disclosure be heard subsequent to his motion to suppress evidence because the identity would have been important if the court had granted his request for a Franks hearing. Counsel indicated: “That’s the only basis upon which—that I filed the motion. . . . Obviously I recognize that, I’m not entitled to know who he is, I will—as you can see why I dovetailed the two motions.” The court denied the motion.

Furthermore, the claim is not reviewable because the defendant filed a conditional plea of nolo contendere in accordance with General Statutes § 54-94a. That statute provides in relevant part: “When a defendant, prior to the commencement of trial, enters a plea of nolo contendere conditional on the right to take an appeal from the court’s denial of the defendant’s motion to suppress or motion to dismiss, the defendant after the imposition of sentence may file an appeal within the time prescribed by law provided a trial court has determined that a ruling on such motion to suppress or motion to dismiss would be dispositive of the case. The issue to be considered in such an appeal shall be limited to whether it was proper for the court to have denied the motion to suppress or the motion to dismiss. . . .” (Emphasis added.) General Statutes § 54-94a. Denial of the motion for disclosure is not reviewable because it is not one of the grounds set forth in § 54-94a for appeal from a judgment on a plea of nolo contendere; State v. Greene, 81 Conn. App. 492, 501-502, 839 A.2d 1284, cert. denied, 268 Conn. 923, 848 A.2d 472 (2004); and the trial court did not determine that the ruling on that motion was dispositive of the case. See State v. Munoz, 104 Conn. App. 85, 92, 932 A.2d 443 (2007).

The judgment is affirmed.

In this opinion the other judges concurred.

       The defendant’s plea was conditioned on his right to appeal the denial of his motions to suppress evidence in accordance with General Statutes § 54-94a.

       The conspiracy charge against the defendant is still pending in the trial court. Nevertheless, the defendant’s conviction on the possession with intent to sell count is a final judgment. See Practice Book § 61-6 (a), which provides in relevant part: “(1) ... In cases where a final judgment has been rendered on fewer than all counts in the information or complaint, the defendant may appeal from that judgment at the time it is rendered. . .

       The state conceded that the defendant had standing to challenge the search of his home and garage.

       It does not appear that the court addressed a state constitutional claim in its ruling, and, on appeal, the defendant does not analyze his claim independently under our state constitution. Accordingly, we will confine our analysis to the right against unreasonable search and seizure guaranteed by the federal constitution. See State v. Payne, 121 Conn. App. 308, 311 n.2, 996 A.2d 302 (2010).

       Some of the police photographs taken during the search were timestamped 9:50 p.m. by the police camera. The state presented testimony, however, that the camera’s internal clock was off by one hour because it had not been recalibrated to reflect daylight saving time. The other claimed inconsistent evidence was a police photograph of a SpongeBob SquarePants clock in a bedroom in the defendant’s residence that showed the time as 9:45 p.m. Testimony indicated that the clock was operated by batteries and required manual setting.

       The defendant has cited no persuasive authority in support of his contention that the failure of law enforcement officials to notice a discrepancy in the time noted by the judge on a search warrant constitutes police misconduct. Additionally, there is nothing in the record to suggest that the officers intentionally disregarded the discrepancy or had any other improper motive. We therefore decline to afford this claim any further discussion.

       General Statutes § 54-33a (c) provides in relevant part: “A warrant may issue only on affidavit sworn to by the complainant or complainants before the judge or judge trial referee and establishing the grounds for issuing the warrant, which affidavit shall be part of the arrest file. . . . The warrant shall state the date and time of its issuance and the grounds or probable cause for its issuance and shall command the officer to search within a reasonable time the person, place or thing named, for the property specified. The inadvertent failure of the issuing judge or judge trial referee to state on the warrant the time of its issuance shall not in and of itself invalidate the warrant.”

       Representative Michael P. Lawlor, who moved for the acceptance of the favorable report of the joint committee on the judiciary and for the passage of the bill, made the following comment in the House of Representatives: “There was a concern in the committee that referring to having a time in the search warrant might give another technical argument to a defense attorney following the issuance of a search warrant, that if the time wasn’t there, that would invalidate the whole thing on a technicality. When the amendment was adopted in the Judiciary Committee it said both date and time. I think it’s fair to say that current case law says that a search warrant has to have a date on it, although the statute didn’t say that and so this would restore the statute to what the current state law is, although not specific in the statute. But it would retain the portion of the bill which says that the inadvertent failure to include the time on the search warrant would not, in any way, invalidate the search warrant itself. I think this clarifies the intent of the bill, conforms with existing law and I urge its adoption.” 43 H.R. Proc,, Pt. 4, 2000 Sess., pp. 983-84.

       The transcript of the recorded conversation provides:
      “[Marchio]: Hey Bill, how are you?
      “[Haas]: Not too bad.
      “[Marchio]: Bill, just to make this a little stronger, I just want to know some stuff about the [confidential informant]. Okay, I don’t care anything about the name or anything like that, but . . . Did you ever get any search warrants with the [confidential informant]?
      “[Haas]: No. Never. Not any stuff like that. He gave me [unintelligible] some information [unintelligible] to make an arrest or something like that, but never any stuff like that. No, no search warrants.
      “[Marchio]: So, so . . . How many arrests have you made with this guy, based on his information?
      “[Haas]: [Unintelligible] A couple.
      “[Marchio]: Can I put . . . what could . . . approximately . . . you know, several arrests?
      “[Haas]: Yeah, several is good, yeah.

        “[Marchio]: Based on his information?
      “[Haas]: [Unintelligible]
      “[Marchio]: Okay. And, uh, what else can I put, that you corroborated, oh . . .
      “[Haas]: Yeah, that I corroborated some of the stuff that he told me. Definitely. [Unintelligible]
      “[Marchio]: Accurate and true, and all that?
      “[Haas]: Yes.
      “[Marchio]: Okay, and did you ever seize anything [unintelligible] besides an arrest? Like, on those [unintelligible] did any of them ever have any kind of pot or coke or crack or anything like that on them?
      “[Haas]: No, but he gave me information about other stuff that, I mean, I knew was true. Like, he gave me information and I arrested people that had drugs, not based on what he told me, but he had told me these people were doing stuff and I, you know . . .
      “[Marchio]: . . . But it corroborated, you cor . . .
      “[Haas]: . . . Yeah.
      “[Marchio]: You corroborated what they said and after the arrest you found it to be true.
      “[Haas]: Yes.
      “[Marchio]: So, so his information has helped you [unintelligible] . . .
      “[Haas]: . . . His information was corroborated, yeah . . . [unintelligible]
      “[Marchio]: ... I just want to make sure . . . [unintelligible] . . . put down something like he, you know, he, urn, gave you information that led to the arrest of you know, uh, several persons, uh, which had narcotics on their person or in the area of, you know. Is that okay, or no?
      “[Haas]: [Unintelligible] That sounds good. That will do.
      “[Marchio]: I don’t want to lie [unintelligible] either . . . [unintelligible] . . . right, right, but because of what he told you, you corroborated it, and it helped you make that arrest.
      “[Haas]: Yep. But that stuff, I corroborated. The info he gave me, you know what I mean.
      “[Marchio]: But like he said this: ‘This guy’s doing narcotics . . . .’
      “[Haas]: Exactly. He might not have gotten arrested immediately, but down the road that person might have got arrested a couple of weeks later.
      “[Marchio]: Right, right. But because of what he told you, you corroborated it, and it helped you make that arrest.
      “[Haas]: Yes.
      “[Marchio]: As long as we can have that conversation, that’s good and that will help with this, okay?
      “[Haas]: Yes.
      “[Marchio]: Now is this guy your [confidential informant]?
      “[Haas]: He’s not . . . not really, I will say, we never [unintelligible] . . . We never, uh . . .

        “[Marchio]: So he’s not signed up with your department?
      “[Haas]: No, he’s not. [Unintelligible] He hasn’t signed up with our nares, narcotics division, no.
      “[Marchio]: Does your department require you to sign up all of your [confidential informants]?
      “[Haas]: Uh, well, for our narcotics, for our narcotics division [unintelligible] yeah, they do.
      “[Marchio]: How about other [confidential informants]?
      “[Haas]: No.
      “[Marchio]: Has he ever led you, has he ever led you to, uh, any other information besides [unintelligible]?
      “[Haas]: No. I would say no.
      “[Marchio]: Okay. All right.
      “[Haas]: I mean [unintelligible] I know he’s telling me the truth. He’s right on.
      “[Marchio]: I’d sign him up as soon as possible.
      “[Haas]: I couldn’t hear what you said.
      “[Marchio]: I’d sign him up as soon as possible.
      “[Haas]: Yeah, but he won’t, he won’t. He’s just set against it. He knows this guy’s a friend of his, and he just won’t do it. I’ve tried several times and he just won’t do it.
      “[Marchio]: He just won’t sign up to be a [confidential informant] . . . [unintelligible]
      “[Haas]: Okay. If you need me, you can talk to me anytime during the night.”


text:
    STATE OF CONNECTICUT v. DENNIS EARL THOMPSON
    (AC 30531)
    DiPentima, C. J., and Beach and Alvord, Js.

      Argued June 3
    officially released October 5, 2010

      Stephan E. Seeger, with whom was Igor G. Kuperman, for the appellant (defendant).

      Laurie N. Feldman, special deputy assistant state’s attorney, with whom, on the brief, were Michael Dearington, state’s attorney, and John Waddock, supervisory assistant state’s attorney, for the appellee (state).
   Opinion

ALVORD, J.

The defendant, Dennis Earl Thompson, appeals from the judgment of conviction following his conditional plea of nolo contendere to one count of possession of marijuana with intent to sell by a person who is not drug-dependent in violation of General Statutes § 2 la-278 (b). The plea followed the trial court’s denial of the defendant’s motions to suppress the evidence that law enforcement officials had seized from a house and garage owned by Edward Jevarjian and from the defendant’s recreational vehicle that had been parked on Jevarjian’s property. On appeal, the defendant claims that the court improperly (1) denied his first motion to suppress because law enforcement officials commenced the search prior to the time authorized in the search warrant and (2) denied his second motion to suppress that had been filed pursuant to Franks v. Delaware, 438 U.S. 154, 98 S. Ct. 2674, 57 L. Ed. 2d 667 (1978). We affirm the judgment of the trial court.

The record reveals the following facts and procedural history. During the late evening hours of May 17, and into the early morning hours of May 18, 2007, law enforcement officials seized approximately 600 pounds of marijuana from Jevarjian’s house and garage and from the defendant’s recreational vehicle that was parked on Jevarjian’s property. The defendant was sleeping in his recreational vehicle when the officials commenced the search. He and Jevarjian were arrested at that time. See the companion case of State v. Jevarjian, 124 Conn. App. 331, 4 A.3d 1231 (2010), which was released on the same date as this opinion. The defendant was charged with possession of marijuana with intent to sell by a person who is not drug-dependent in violation of § 21a-278 (b) and conspiracy to possess marijuana with intent to sell by a person who is not drug-dependent in violation of General Statutes §§ 53a-48 and 21a-278 (b). Except for sentencing, the cases of the defendant and Jevarjian were prosecuted simultaneously.

On August 13, 2007, Jevarjian filed a motion to suppress the evidence that had been seized, claiming that the search had commenced prior to the time the judge signed the search warrant. The defendant orally requested permission to join in that motion on the second day of a four day evidentiary hearing, and the court granted the defendant’s request. The court denied the motion to suppress in a memorandum of decision filed May 13, 2008. On May 22, 2008, Jevarjian filed a second motion to suppress, seeking an evidentiary hearing pursuant to Franks v. Delaware, supra, 438 U.S. 154, claiming that the application for the search and seizure warrant contained either a deliberate falsehood or a statement made in reckless disregard for the truth. Specifically, Jevarjian claimed that the search warrant affidavit contained uncorroborated assertions of an unreliable informant and, as such, did not provide a substantial basis to establish probable cause to conduct the search. The defendant also joined in Jevarjian’s second motion to suppress evidence. The court orally denied the motion on June 18, 2008. On July 16, 2008, the defendant entered a conditional plea of nolo contendere to one count of possession of marijuana with intent to sell in violation of § 2 la-278 (b) and was sentenced to eighteen years incarceration, suspended after nine and one-half years, and three years probation. This appeal followed.

I

The defendant claims that the court improperly denied his first motion to suppress the evidence seized from the house, garage and recreational vehicle because the search was commenced prior to the time noted on the warrant by the judge who signed the warrant. Before addressing that claim, however, we first address the issue of the right of the defendant to challenge the search of Jevarjian’s house and garage. The state argued, and the trial court agreed, that the defendant did not have standing to contest the search of the house and garage. The defendant challenges that determination on appeal.

A

“The touchstone to determining whether a person has standing to contest an allegedly illegal search is whether that person has a reasonable expectation of privacy in the invaded place. . . . Absent such an expectation, the subsequent police action has no constitutional ramifications. ... In order to meet this rule of standing ... a two-part subjective/objective test must be satisfied: (1) whether the [person contesting the search] manifested a subjective expectation of privacy with respect to [the invaded premises]; and (2) whether that expectation [is] one that society would consider reasonable. . . . This determination is made on a case-by-case basis. . . . Whether a defendant’s actual expectation of privacy ... is one that society is prepared to recognize as reasonable involves a fact specific inquiry into all the relevant circumstances. . . . Furthermore, [t]he defendant bears the burden of establishing the facts necessary to demonstrate a basis for standing .... [T]he trial court’s finding [on the question of standing] will not be overturned unless it is legally or logically inconsistent with the facts found or involves an erroneous rule of law.” (Citation omitted; internal quotation marks omitted.) State v. Jones, 113 Conn. App. 250, 266, 966 A.2d 277, cert. denied, 292 Conn. 901, 971 A.2d 40 (2009).

At the suppression hearing, Jevarjian was the only witness to testify with respect to the issue of standing to challenge the seizure of evidence from the house, garage and recreational vehicle. On the basis of Jevarjian’s testimony; see State v. Jevarjian, supra, 124 Conn. App. 336-37; the court found that the defendant failed to establish that he was Jevarjian’s overnight guest or social invitee with respect to the house and garage. As noted by the court, the testimony indicated that the defendant had no ownership interest in Jevarjian’s property, had never made any mortgage payments on that property, had visited only on three or four occasions for very brief periods of time, had never stayed overnight in Jevarjian’s house and was sleeping in his own recreational vehicle at the time the search commenced on May 17, 2007. Additionally, as stated by the court in its memorandum of decision, no evidence had been presented to show that the defendant even had the means of accessing Jevarjian’s home.

The trial court clearly articulated the facts and the law that formed the basis of its conclusion that the defendant did not meet the burden of establishing a reasonable expectation of privacy in Jevarjian’s house and garage and, accordingly, held that he did not have standing to invoke his constitutional rights as to the evidence seized from Jevarjian’s house and garage. On the basis of our plenary review of this question of law, which we conduct in light of the court’s factual findings, we do not find that the court’s decision was clearly erroneous. See State v. Mitchell, 56 Conn. App. 561, 567-68, 744 A.2d 927, cert. denied, 253 Conn. 910, 754 A.2d 162 (2000).

B

Because it is not disputed that the defendant does have the right to challenge the search of his recreational vehicle, we address his claim that the evidence was illegally seized because the search commenced prior to the time authorized by the judge who signed the warrant. In support of that claim, the defendant indicates that the judge noted the time as 10:51 p.m. when he signed each page of the search warrant. The search of the defendant’s premises, however, commenced before 10:00 p.m. The defendant claims that the search was, therefore, premature and unlawful under the federal and state constitutions. The trial court, after testimony from several witnesses at the suppression hearing, determined that the time noted by the judge was a scrivener’s error and that the search had commenced after the judge signed the warrant. Accordingly, the court denied the defendant’s motion to suppress the evidence seized from his recreational vehicle.

The defendant’s arguments on appeal with respect to this claim are identical to the arguments presented by Jevarjian in his appeal, and we have fully addressed them in that opinion. See State v. Jevarjian, supra, 124 Conn. App. 338-44. For the same reasons stated in that opinion, the defendant in this case cannot prevail on this claim.

II

The defendant next claims that the court improperly denied his second motion to suppress filed May 22, 2008, in which he requested an evidentiary hearing pursuant to Franks v. Delaware, supra, 438 U.S. 154. The defendant alleged that the warrant application contained either a deliberate falsehood or a statement made in reckless disregard for the truth. He specifically claimed that a conversation recorded on May 17, 2007, in which the officer who prepared the affidavit for the search warrant was speaking with an officer familiar with the confidential informant who had supplied information about the defendant, clearly indicated that the affidavit contained false or misleading statements about the reliability of the confidential informant. The court denied the request for a full evidentiary hearing and denied the motion to suppress evidence.

In claiming that the court improperly denied his motion, the defendant has raised the same arguments presented by Jevarjian in his appeal. We have fully addressed the defendant’s claim in that opinion. See State v. Jevarjian, supra, 124 Conn. App. 344-52. For the same reasons stated in that opinion, the defendant in this case cannot prevail on this claim.

The judgment is affirmed.

In this opinion the other judges concurred.

       The defendant’s plea was conditioned on his right to appeal the denial of his motions to suppress evidence in accordance with General Statutes § 54-94a.

       The conspiracy charge against the defendant is still pending in the trial court. Nevertheless, the defendant’s conviction on the possession with intent to sell count is a final judgment. See Practice Book § 61-6 (a), which provides in relevant part: “(1) . . . In cases where a final judgment has been rendered on fewer than all counts in the information or complaint, the defendant may appeal from that judgment at the time it is rendered. . . .”

       The state does not contest the court’s finding that the defendant had standing to challenge the search of his recreational vehicle.

       It does not appear that the court addressed a state constitutional claim in its ruling, and, on appeal, the defendant does not analyze his claim independently under our state constitution. Accordingly, we will confine our analysis to the right against unreasonable search and seizure guaranteed by the federal constitution. See State v. Payne, 121 Conn. App. 308, 311 n.2, 996 A.2d 302 (2010).


author: ROBINSON, J.

text:
    STATE OF CONNECTICUT v. BRIDGET M.

    (AC 30350)
    Harper, Robinson and Borden, Js.
    Argued April 7
    officially released October 5, 2010

      Stephanie L. Evans, special public defender, for the appellant (defendant).

      Raheem L. Mullins, assistant state’s attorney, with whom, on the brief, were John C. Smriga, state’s attorney, and Amy L. Bepko-Mazzocchi, deputy assistant state’s attorney, for the appellee (state).

       In accordance with our policy of protecting the privacy interests of the victims of the crime of risk of injury to a child, we decline to use the defendant’s full name or to identify the victims or others through whom the victims’ identities may be ascertained. See General Statutes § 54-86e.

   Opinion

ROBINSON, J.

The defendant, Bridget M., appeals from the judgment of conviction, rendered after a jury trial, of assault of an elderly person in the third degree in violation of General Statutes § 53a-61a (a) (1), two counts of risk of injury to a child in violation of General Statutes § 53-21 (a) (1), breach of the peace in the second degree in violation of General Statutes § 53a-181 (a) (2) and disorderly conduct in violation of General Statutes § 53a-182 (a) (1). On appeal, the defendant claims that the trial court improperly denied in part and granted in part her motion for a judgment of acquittal and instructed the state to strike only portions of the two counts of risk of injury to a child from the information. We conclude that the defendant’s claim is not reviewable and, accordingly, affirm the judgment of the trial court.

The following facts and procedural history are relevant to our resolution of the defendant’s appeal. The defendant has a son, M, who, at the time of the incident, was six years old. M has sickle-cell anemia, for which he receives hospital treatments, and asthma that causes attacks and requires medication. M is unable to take his medication himself and requires that his father administer it to him. The defendant also has a daughter, D, who, at the time of the incident, was thirteen years old.

Currently, M’s father has custody of M, and the defendant has visitation rights. One of the victims, E, lives with M’s father and M. On June 24, 2007, the defendant went with D to the home of M’s father to pick up M for a visit. The defendant returned to the residence at about 6 or 7 p.m. and went into the house, upstairs and into the bathroom to give M a bath. D went into the room that M shared with his father, which was also upstairs. The only other person home at that point was E.

The defendant testified that while she was in the bathroom, she heard yelling outside the door. E was telling D to get off of the bed. E testified that the defendant stepped out of the bathroom to yell at her for speaking to D like that and then came forward and punched her in the face, saying, “you fucking witch, take that. I’m going to call the police.” E testified that at that point the defendant took D and left the house, leaving E alone with M until E’s daughter came by to check on her.

The state charged the defendant with assault of an elderly person in the third degree in violation of § 53a-61a (a) (1), two counts of risk of injury to a child in violation of § 53-21 (a) (l), breach of the peace in the second degree in violation of § 53a-181 (a) (2), and two counts of disorderly conduct in violation of § 53a-182 (a) (1) and (2), respectively. In the information, the state wrote the charges of violation of § 53-21 (a) (1) in the conjunctive.

After the presentation of the state’s case-in-chief, the defendant orally moved for a judgment of acquittal. The defendant argued, with respect to count two, which charged her with risk of injury to and impairing the morals of a child as to M, that M was not present during the altercation between the defendant and E and was in another room with no view of the defendant and E. The state, in response, argued that the charge referred to M’s health problems and the fact that he was left alone with the injured victim, E, unable to take care of himself had his health declined. With respect to count three, which charged the defendant with risk of injury to and impairing the morals of a child as to D, the defendant argued that there was no act toward D that would violate the statute because the conflict started with E’s approaching D and ended in an altercation between the defendant and E. The state responded that the charge referred to the defendant’s placement of D in a situation in which her morals were likely to be impaired because she witnessed the altercation.

With respect to both the second and third counts, the court granted the motion for a judgment of acquittal as to the act portion of § 53-21 (a) (1), which is violated when a defendant does “an act likely to impair the health and morals of such child.” Also, in count two, because of M’s young age and inability to appreciate the situation, the court granted the motion for a judgment of acquittal as to the part of the situational portion of § 53-21 (a) (1), which is violated when a defendant places a child in a situation in which his “morals [are] likely to be impaired.” The court ordered the state to strike such portions from the charge and to revise the information accordingly before presenting it to the jury. The defendant objected on the ground that, with respect to the situational portion of count two, the state’s argument was speculative because “much worse could have happened to [E] but it didn’t.” Thus, E was not so incapacitated that she could not tend to M had he suffered any health problems.

On September 24, 2009, the court rendered judgment in accordance with the jury verdict of guilty as to counts one through five of the amended information. The court then sentenced the defendant to a total effective term of five years imprisonment, execution suspended after eighteen months, with three years probation. This appeal followed.

The defendant claims that the trial court violated her right to a fair trial under the sixth and fourteenth amendments to the United States constitution by granting in part her motion for a judgment of acquittal because Practice Book § 42-41 states in relevant part that the “judicial authority shall either grant or deny the motion [for a judgment of acquittal] . . . .” The defendant argues that Practice Book § 42-41 only allows the court to grant or deny a motion for a judgment of acquittal in its entirety and does not allow the court to grant a motion for a judgment of acquittal as to one statutory alternative and not another, if the two alternatives are contained within the same count. The defendant argues that her claim is of constitutional magnitude because, by dismissing only portions of the subject counts instead of the entire counts, the court reduced the state’s burden with respect to the elements required to convict her under the counts as originally written. The defendant argues that “because impartiality and fairness are both essential elements of due process and a fair trial, the prejudicial impact on a defendant when the court acts as an arm of the prosecution to amend charges to which the defendant had already pleaded not guilty to, and to which the state had already presented its theory and case in chief to the jury, and had failed to meet its burden of proof as to all elements within counts two and three, the integrity and fairness of the proceedings are compromised to the detriment of the defendant.”

The defendant’s claim is unpreserved, and she seeks review under State v. Golding, 213 Conn. 233, 239-40, 567 A.2d 823 (1989). Golding's first two prongs relate to whether a defendant’s claim is reviewable, and the last two relate to the substance of the actual review. State v. Jarrett, 82 Conn. App. 489, 492 n.1, 845 A.2d 476, cert. denied, 269 Conn. 911, 852 A.2d 741 (2004).

Because the first two prongs of the Golding standard must be met for the defendant’s claim to be reviewed, a determination that one is not satisfied makes the claim unreviewable. State v. Golding, supra, 213 Conn. 239. In order for the defendant’s constitutional argument to prevail, she must show that the granting of a motion for a judgment of acquittal, made pursuant to Practice Book § 42-41, as to portions of individual counts, instead of the entire counts, implicates her constitutional rights. The defendant’s “right,” as argued, is based on an alleged violation of Practice Book § 42-41. An allegation of a violation of a rule of practice does not necessarily rise to the level of a violation of a constitutional right. See State v. Rosario, 113 Conn. App. 79, 97-98, 966 A.2d 249, cert. denied, 291 Conn. 912, 969 A.2d 176 (2009); State v. Marcisz, 99 Conn. App. 31, 38, 913 A.2d 436 (“[w]e decline to review this claim under Golding because the defendant’s right to an information in two parts is based on [the rules of practice], and as such, is not a constitutional right”), cert. denied, 281 Conn. 922, 918 A.2d 273 (2007); State v. Sewell, 95 Conn. App. 815, 822, 898 A.2d 828 (“the defendant’s procedural right to disclosure of inculpatory materials under our rules of practice does not give rise in and of itself to a constitutional right”), cert. denied, 280 Conn. 905, 907 A.2d 94 (2006). The defendant has not demonstrated that the procedural right upon which she bases her claim, arising out of Practice Book § 42-41, is constitutional in nature and, thus, that the claim on appeal is of constitutional magnitude. We conclude that the defendant has failed to satisfy the second prong of Golding. The defendant’s claim, therefore, is not reviewable.

The judgment is affirmed.

In this opinion the other judges concurred.

       At the time of the incident, E was eighty years old.

       General Statutes § 53-21 (a) provides in relevant part: “Any person who (1) wilfully or unlawfully causes or permits any child under the age of sixteen years to be placed in such a situation that the life or limb of such child is endangered, the health of such child is likely to be ipjured or the morals of such child are likely to be impaired, or does any act likely to impair the health or morals of any such child . . . shall be guilty of a class C felony . . . .” (Emphasis added.)

       Because the jury found the defendant guilty of disorderly conduct in violation of § 53a-182 (a) (1), as alleged in the information’s fifth count, the jury did not consider the information’s sixth count, which charged her with disorderly conduct in violation of § 53a-182 (a) (2). The court had stated during its jury charge that if the defendant were found guilty under the fifth count, the jury need not consider the sixth count because the state had alleged the sixth count as an alternative way to commit disorderly conduct. Thereafter, during the sentencing proceeding, the court dismissed the sixth count

       Count two of the information reads: “[The defendant] . . . wilfully and unlawfully caused a child under the age of sixteen years, To wit: [M] . . . to be placed in such a situation that the life and limb of such child was endangered and the health of such child was likely to be injured, in violation of [§] 53a-21 (a) (1) . . . .”
      Count three of the information, as to D, reads: “[The defendant] . . . wilfully and unlawfully caused a child under the age of sixteen years, To wit: [D] . . . to be placed in such a situation that the morals of such child were likely to be impaired, in violation of [§] 53a-21 (a) (1) . . . .”

        State v. Wohler, 231 Conn. 411, 415, 650 A.2d 168 (1994), explains that the state is required to charge in the conjunctive as to multiple statutory alternatives contained within one count. Therefore, though difficult to decipher, we understand the defendant’s argument to be that the alleged violation of Practice Book § 42-41 equated to a violation of the defendant’s constitutional right to a fair trial.

       Though the defendant objected to the court’s denial in part of the motion for a judgment of acquittal, she did so on the ground that there was no evidence that she violated the situational prong of § 53-21 (a) (1) as to M. Although an appellant does not have to articulate every theory to the trial court that she presents on appeal, those not articulated must be intertwined with those specifically stated and related to a single legal claim. See Rowe v. Superior Court, 289 Conn. 649, 662-63, 960 A.2d 256 (2008). At trial, the defendant’s objection was based on insufficiency of the evidence, whereas on appeal she claims that her constitutional due process right to a fair trial was violated. Therefore, the claim was not preserved.

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

       The defendant also sought review under the plain error doctrine. See Practice Book § 60-5. We decline to afford the claim plain error review because the issue presented is not one of those truly extraordinary situations that the doctrine is intended to remedy. See State v. Gamble, 119 Conn. App. 287, 292 n.2, 987 A.2d 1049, cert. denied, 295 Conn. 915, 990 A.2d 867 (2010).

       We, therefore, need not address whether Practice Book § 42-41 is to be interpreted as requiring that a motion for a judgment of acquittal be granted or denied as to the entire count containing the statutory alternative for which there is insufficient evidence because we decline to review the claim.


author: PER CURIAM.

text:
    IN RE SUELAKA G.

    (AC 32100)
    Bishop, Lavine and Foti, Js.

      Argued September 1
    officially released October 5, 2010

      Kathryn Steadman, for the appellant (respondent mother).

      Tammy Nguy en-O’Dowd, 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

PER CURIAM.

The respondent mother appeals from the judgment of the trial court terminating her parental rights with respect to her minor child, Suelaka. The respondent claims that the court improperly found that she had failed to achieve such a 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. See General Statutes § 17a-112 (j) (3) (B). We affirm the judgment of the trial court.

Our standard of review on appeal from a judgment terminating parental rights is well settled. The trial court’s findings must stand unless they are clearly erroneous. In re Sole S., 119 Conn. App. 187, 191, 986 A.2d 351 (2010). “A finding is clearly erroneous when either there is no evidence in the record to support it, or the reviewing court is left with the definite and firm conviction that a mistake has been made.” (Internal quotation marks omitted.) Id.

The respondent claims that the trial court improperly found by clear and convincing evidence that she had failed to achieve a sufficient degree of personal rehabilitation to assume a responsible position in the life of the child pursuant to § 17a-112 (j) (3) (B). She argues that in making its determination, the court did not consider her efforts toward personal rehabilitation made between the filing of the petition for termination of parental rights on January 16, 2009, and the trial on January 25 and 29,2010. In its memorandum of decision, however, the trial court noted that the respondent had made some progress in her personal life during that interval but observed that she still lacked the skills and consistency to take responsibility for a toddler within a reasonable time. “[I]n assessing rehabilitation, the critical issue is not whether the parent has improved her ability to manage her own life, but rather whether she has gained the ability to care for the particular needs of the child at issue.” (Internal quotation marks omitted.) In re Keyashia C., 120 Conn. App. 452, 457, 991 A.2d 1113, cert. denied, 297 Conn. 909, 995 A.2d 637 (2010).

We see no useful purpose in repeating the facts or reciting the applicable law, as the trial court thoroughly set forth the relevant facts and the applicable law in its thoughtful and well reasoned memorandum of decision. See In re Alexander C., 262 Conn. 308, 311, 813 A.2d 87 (2003). Based on our careful review, we conclude that the record amply supports the factual determinations made by the court, and we conclude that the court correctly applied the law to the facts it properly found.

The judgment is affirmed.

       The court also terminated the parental rights of the child’s father. Because he has not appealed, we refer in this opinion to the respondent mother as the respondent.

       It is noteworthy that the respondent herself was committed to the custody of the petitioner, the commissioner of children and families, as a neglected child at the time of Suelaka’s birth and never had custody of Suelaka.


author: BEAR, J.

text:
    ANN FOLLACCHIO v. LUCILLE FOLLACCHIO ET AL.
    (AC 31688)
    Robinson, Bear and Mihalakos, Js.
    Argued June 4
    officially released October 12, 2010

      Veronica Halpine, with whom, on the brief, was Ann Follacchio, pro se, for the appellant (plaintiff).

      Edward F. Czepiga, with whom was Paul T. Czepiga, for the appellee (defendant Paul T. Czepiga).
   Opinion

BEAR, J.

This appeal requires us to determine whether a party in a probate proceeding who made unsuccessful challenges pursuant to General Statutes §§ 45a-175 and 45a-656 to a conservator’s decision to maintain his ward in a certain health care facility and to the Probate Court’s award of fees and expenses pursuant to the conservator’s final accounting is entitled to a trial de novo on appeal to the Superior Court. The plaintiff, Ann Follacchio, appeals from the judgment rendered by the Superior Court that affirmed the judgment of the Probate Court in favor of the defendants, Lucille Follacchio (the ward), Mary Wright, Thomas Follacchio, Madeline Follacchio, Keith Mangene, Paul T. Czepiga and the Honorable Norman E. Rogers, Jr., acting judge of the Probate Court for the district of Berlin. On appeal, the plaintiff claims that the Superior Court improperly (1) refused to hear de novo her appeal from the judgment of the Probate Court, (2) conducted an “on the record” review of the Probate Court’s judgment without the benefit of the official record, which was not transmitted by the Probate Court, (3) used the reasonable compensation analysis articulated in Hayward v. Plant, 98 Conn. 374, 385, 119 A. 341 (1923), to determine the compensation due to Czepiga, the former conservator, and (4) upheld the Probate Court’s award of fees and expenses to Czepiga, which were not documented properly. We agree with the plaintiffs first claim on appeal. Accordingly, we reverse the judgment of the Superior Court and remand the case for a trial de novo.

The record reveals the following relevant facts, as found by the Probate Court, and procedural history. The ward was conserved voluntarily on July 16, 2002. The conservatorship subsequently was converted to an involuntary conservatorship. The ward’s family, including her daughters Wright, Madeline Follacchio, Donna Mangene and the plaintiff, and her grandson, Keith Mangene, have been closely involved in her care. There were many disagreements about the ward’s needs and finances, management of her household and caregiving methods. These disagreements led to conflicts that resulted in numerous Probate Court hearings generally involving the plaintiff on one side of an issue and the rest of the ward’s family on the other side.

The plaintiff served as the ward’s initial conservator, but, subsequently, because of the family conflicts, Judge Rogers appointed Huguet Pameijer as conservator in an effort to resolve the disputes. The conflicts continued, however, and, on May 4, 2004, the court replaced Pameijer as conservator with Czepiga. Although he did not always have the support of the entire family, Czepiga generally brought stability to the situation.

Czepiga eventually resigned as conservator as a result of a disagreement between the plaintiff and the rest of the family regarding the transfer of the ward from Hughes Health and Rehabilitation, Inc., the facility in which she was residing in West Hartford, to Jerome Home, a facility in New Britain. A hearing was held before the Probate Court to consider Czepiga’s final accounting and also to consider the plaintiffs request to transfer the ward to Jerome Home. On September 4, 2008, Judge Rogers approved Czepiga’s final accounting after reducing the requested fiduciary fees, and he denied the plaintiffs request to transfer the ward to Jerome Home.

The plaintiff appealed the decision to the Superior Court claiming that the ward was entitled to be placed in the least restrictive setting pursuant to General Statutes §§ 45a-644,45a-650 and 45a-656, that Jerome Home was a less restrictive setting and that the Probate Court improperly failed to apply certain published rates to determine Czepiga’s fees. She requested that the trial court (1) grant a trial de novo pursuant to General Statutes § 45a-186, (2) reverse the judgment of the Probate Court, (3) order the immediate transfer of the ward to Jerome Home, (4) reduce Czepiga’s fiduciary fees and (5) deny approval of some of the expenses paid or incurred by Czepiga.

On December 23, 2008, Czepiga filed an objection to the plaintiffs prayer for relief for a trial de novo. On February 26, 2009, the court sustained Czepiga’s objection, concluding that General Statutes § 45a-186a governed the appeal, and it declined to hear the case de novo. Specifically, the court held that it “disagree [d] with the plaintiffs argument that [General Statutes §§ 45a-186a and 45a-186b] do not apply. There is no dispute that the proceedings before the Probate Court were recorded and can be transcribed for this court’s review. Accordingly ... § 45a-186a (c) applies, so that ‘[t]he appeal shall be confined to the record.’ ” Pursuant to § 45a-186a (a), the court then ordered the plaintiff to pay the expense for a transcript of the tape-recorded Probate Court hearing, which was to be provided to the trial court. On October 29, 2009, the court issued its memorandum of decision concluding that the plaintiff had failed to demonstrate that the Probate Court had committed any error, and it denied the plaintiffs appeal. This appeal followed.

The plaintiff claims that the Superior Court improperly limited her appeal to an on the record review instead of a trial de novo. Specifically, she contends that she was entitled to a trial de novo because §§ 45a-175 and 45a-656 axe not set foxth in § 45a-186 as a basis to xestrict the couxt to an “on the record” review and the requirements of General Statutes §§ 51-72 and 51-73 were not satisfied to require an “on the record” review. We agree.

The application of a statute to a particular set of facts is a question of law, over which we exercise plenary review. Maturo v. Maturo, 296 Conn. 80, 88, 995 A.2d 1 (2010). Section 45a-186 (a) provides in relevant part: “Any person aggrieved by any order, denial or decree of a court of probate in any matter, unless otherwise specially provided by law, may . . . appeal therefrom to the Superior Court. . . . Appeals from any decision rendered in any case after a recording is made of the proceedings under section 17a-498, 17a-685,45a-650, 51-72 or 51-73 shall be on the record and shall not be a trial de novo." (Emphasis added.)

“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. If, after examining such text and considering such relationship, the meaning of such text is plain and unambiguous and does not yield absurd or unworkable results, extratextual evidence of the meaning of the statute shall not be considered. . . . When a statute is not plain and unambiguous, we also look for inteipretive guidance to the legislative history and circumstances surrounding its enactment, to the legislative policy it was designed to implement, and to its relationship to existing legislation and common law principles governing the same general subject matter . . . .” (Internal quotation marks omitted.) Bender v. Bender, 292 Conn. 696, 708, 975 A.2d 636 (2009).

The language of § 45a-186 is plain and unambiguous. It specifies that if proceedings are initiated pursuant to General Statutes §§ 17a-498, 17a-685 or 45a-650, or if a stenographic record is created in other probate proceedings pursuant to §§ 51-72 or 51-73, then an appeal from the Probate Court to the Superior Court must be considered on the record of such probate proceedings. Thus, we must determine whether the probate proceeding in the present case was initiated pursuant to §§ 17a-498,17a-685, 45a-650, or, in the alternative, whether the requirements of §§ 51-72 or 51-73 were satisfied.

Section 17a-498 pertains to hearings on involuntary commitment proceedings and the rights of persons who are the subject of those proceedings. Section 17a-685 pertains to applications for involuntary commitment, termination of commitment, recommitment and discharge from commitment. Section 45a-650 concerns standards for hearings on the appointment of conservators in involuntary representation proceedings, the rights of respondents, application of the rules of evidence used in civil actions, the required elements of a hearing including certain required and other permitted evidence, orders for medical information, the permitted locations for a hearing, the appointment of a conservator and possible duties of a conservator. The probate proceeding at issue in the present case was commenced to determine whether the continued placement of the ward at Hughes Health and Rehabilitation, Inc., was the least restrictive setting pursuant to § 45a-656, whether Jerome Home was a more suitable alternative for the ward and to approve Czepiga’s final accounting. We conclude that the proceeding before the Probate Court did not implicate any of the statutes set forth in § 45a-186 (a) placing restrictions on de novo trials. Therefore, we next must consider whether the Probate Court hearing satisfied the requirements of §§ 51-72 or 51-73.

The parties do not dispute that the proceedings before the Probate Court were tape-recorded and the recording did not comply with the requirements of §§ 51-72 and 51-73. For §§ 51-72 and 51-73 to apply in this case, the parties would have had to agree in writing to the presence of a competent and disinterested person to be selected by the probate judge to act as the official stenographer at the hearing, and to pay for the stenographer’s services as determined by the probate judge. The stenographer would have had to be sworn in prior to the hearing. Because the Probate Court hearing did not satisfy the requirements of §§ 51-72 or 51-73, and was initiated pursuant to §§ 45a-175 and 45a-656, and not pursuant to one of the sections enumerated in § 45a-186 (a), we conclude that the plaintiff was entitled to a trial de novo in the Superior Court. See Andrews v. Gorby, 237 Conn. 12, 16-17, 675 A.2d 449 (1996) (appeal from Probate Court proceedings without record in compliance with § 45a-186 requires trial de novo).

The judgment is reversed and the case is remanded to the Superior Court for a trial de novo.

In this opinion the other judges concurred.

       Following the death of the ward during the pendency of this appeal, the plaintiff did not substitute the executor or administrator of her estate as a defendant. Nevertheless, we conclude that the action was not abated upon the ward’s death because it continued as to the remaining codefendants; accordingly, a substitution was not necessary. See Rocque v. DeMilo & Co., 85 Conn. App. 512, 521-22, 857 A.2d 976 (2004) (applying General Statutes § 52-600 in concluding that upon death of defendant, action not abated but continued as to remaining codefendants).

       Because our conclusion as to the first issue is dispositive, we do not address the plaintiffs additional claims.

       The ward died on December 29, 2008, during the pendency of the plaintiffs appeal to the trial court. The trial court, thereafter, deemed moot the portion of the appeal challenging the approval of the decision not to transfer her to Jerome Home.

       General Statutes § 45a-186a provides: “(a) In an appeal from an order, denial or decree of a court of probate made after a hearing that is on the record, not later than thirty days after service is made of an appeal under section 45a-186, or within such further time as may be allowed by the Superior Court, the Court of Probate shall transcribe any portion of the recording of the proceedings that has not been transcribed. The expense for such transcript shall be charged against the person who filed the appeal, except that if the person who filed the appeal is unable to pay such expense and files an affidavit with the court demonstrating the inability to pay, the expense of the transcript shall be paid by the Probate Court Administrator and paid from the Probate Court Administration Fund.
      “(b) The Court of Probate shall transmit to the Superior Court the original or a certified copy of the entire record of the proceeding from which the appeal was taken. The record shall include, but not be limited to, the findings of fact and conclusions of law, separately stated, of the Court of Probate.
      “(c) An appeal from an order, denial or decree made after a hearing on the record shall be heard by the Superior Court without a jury, and may be referred to a state referee appointed under section 51-501. The appeal shall be confined to the record. If alleged irregularities in procedure before the court of probate are not shown in the record or if facts necessary to establish such alleged irregularities in procedure are not shown in the record, proof limited to such alleged irregularities may be taken in the Superior Court. The Superior Court, on request of any party, shall hear oral argument and receive written briefs.”

       Despite the court’s holding, it does not appear that the Probate Court transmitted the official record, i.e., the documentary evidence that was before it, in compliance with § 45a-186a (b). Nor does it appear that the Superior Court requested the official record when it was not forthcoming from the Probate Court. Despite the lack of any portion of the official record, other than a transcript, the court rendered a decision on the appeal.

       References to §§ 17a-498, 17a-685 and 45a-650 were added to § 45a-186 when it was amended by Public Acts 2007, No. 07-116, § 2.

       General Statutes § 51-72 provides: “Whenever, in any court of probate, the parties or their attorneys so agree in writing, the judge of the court may call in a competent and disinterested person who is capable to act as a stenographer to act as the official stenographer in the whole or in such portion of the cause or matter as may be agreed upon. The compensation of the stenographer shall be paid by the parties in such proportion as the judge of the court decides, except that the compensation shall not exceed that of the official court reporter of the Superior Court.”

       General Statutes § 51-73 provides: “Each stenographer called in and acting under the provisions of section 51-72 shall be sworn and shall have the powers and be subject to the duties prescribed by law for the official court reporter of the Superior Court. Evidence taken by any such stenographer shall have the same effect and be evidence to the same extent as evidence taken by the official court reporter of the Superior Court. Appeals from any decision rendered in any case after a record is made under this section and section 51-72, shall be on such record and shall not be a trial de novo.”

       Although the plaintiff cited this provision in her appeal to the Superior Court, it was not applicable to the proceedings in the Probate Court concerning the residence of the ward and the conservator’s final accounting.