author: BEACH, J.

text:
    SUNTECH OF CONNECTICUT, INC. v. LAWRENCE BRUNOLI, INC., ET AL.
    (AC 33485)
    DiPentima, C. J., and Beach and Robinson, Js.

      Argued March 11
    officially released June 25, 2013

      Jane I. Milas, with whom was Michael W. Lynch, for the appellant (plaintiff).

      John B. Farley, with whom was William S. Wilson II, for the appellees (defendants).
   Opinion

BEACH, J.

The plaintiff, Suntech of Connecticut, Inc. (Suntech), appeals from the judgment of the trial court rendered in favor of the defendants, Lawrence Brunoli, Inc. (Brunoli), and Safeco Insurance Company of America (Safeco). Suntech claims the court erred in concluding that Suntech had not proven that (1) Brunoli breached its subcontract with Suntech and (2) Safeco violated General Statutes § 49-42. We affirm the judgment of the trial court.

The following facts, as found by the trial court, and procedural history are relevant to this appeal. Brunoli was the general contractor on a project known as “Renovations to Terminal A at Bradley Airport” (project). Brunoli contracted directly with the owner of the project, the Connecticut Department of Transportation (department). In April, 2005, Suntech entered into a subcontract with Brunoli under which Suntech, in connection with the project, was to construct and to install a large glass wall, known as a curtain wall, which was to form a substantial portion of the airport terminal. Under the subcontract, Suntech was to provide glass doors, glass, glazing, an aluminum framing system and a metal panel system.

There was, however, a discrepancy in the plans that the department had prepared and submitted to prospective bidders. The curtain wall appeared fourteen inches shorter in height in the structural plan than it did in the architectural plan. Under the specifications of the structural plan, the curtain wall would not have reached the roof of the building. Suntech reviewed the plans prior to making its bid and prior to entering into the subcontract with Brunoli. The bids or estimates submitted by Suntech were based, in part, on those plans; however, the discrepancy regarding the height of the curtain wall was not noticed at that time.

After having been awarded the subcontract and having noticed the discrepancy, Suntech revised the plans for the glazed aluminum framing system (system) and provided a new shop drawing of the system to the department for its review and approval. Among other changes, the upper spans of the mullions—aluminum frames which support glass panels—were increased. The greater span of the curtain wall required a recalculation of the deflection criteria. The new deflection criteria, as reflected in the revised plans, required reinforced steel bars to be placed inside each mullion and required that the steel reinforcement be extended to a greater height within the mullions. This change added 44,000 pounds of steel to the mullions, and the deflection criteria were changed again after the steel reinforcement and new specifications were ultimately agreed upon.

Suntech submitted several revised cost estimates because of the changes in specifications. Brunoli approved two change orders that provided for an additional payment of $110,000. The department informed Suntech that the revised drawings for the system were not acceptable because they exceeded the maximum deflection criteria. After another series of discussions, Suntech submitted a request for a change order based on additional work and expenses. Brunoli transmitted Suntech’s request to the department, but the department rejected it.

Despite the fact that the department rejected Sun-tech’s request, Brunoli issued a change order (# 427) that authorized a payment by Brunoli itself—without payment by the department—to Suntech in the amount of $110,440. Brunoli claimed the payment was made under duress in that Suntech threatened to discontinue work on the project unless pending financial issues were satisfactorily resolved. After the issuance of change order # 427, Brunoli pursued an appeal through the department’s contract board of review. The appeal submitted Suntech’s claim for the charges brought about by the changes in the plans. The department again rejected the submission. The project was finished more than three years after the anticipated completion date.

Suntech brought an action against Brunoli and Safeco, an insurance company that had issued a payment bond to Brunoli for the project at issue. Suntech alleged breach of contract, unjust enrichment, delay, and an action under General Statutes § 49-41a against Brunoli. Suntech alleged a violation of § 49-42 against Safeco. The court found for the defendants on the complaint. This appeal followed.

I

Suntech claims that the court erred in concluding that Brunoli did not breach its subcontract with Suntech. We disagree.

“The elements of a breach of contract action are the formation of an agreement, performance by one party, breach of the agreement by the other party and damages.” (Internal quotation marks omitted.) Pelletier v. Galske, 105 Conn. App. 77, 81, 936 A.2d 689 (2007), cert. denied, 285 Conn. 921, 943 A.2d 1100 (2008).

Within the context of the claims presented to us, the contract provisions at issue are clear and unambiguous; accordingly, our review of the provisions is plenary. “If a contract is unambiguous within its four comers, intent of the parties is a question of law requiring plenary review. . . . [When] the language of the contract is clear and unambiguous, the contract is to be given effect according to its terms. . . . [T]he individual clauses of a contract . . . cannot be construed by taking them out of context and giving them an interpretation apart from the contract of which they are a part.” (Citation omitted; internal quotation marks omitted.) FCM Group, Inc. v. Miller, 300 Conn. 774, 811, 17 A.3d 40 (2011).

The subcontract provided in relevant part as follows. Suntech was to “[f]umish all materials, labor and equipment to perform work as described in the contract Drawings and special provisions, Connecticut D.O.T. standard specifications for Roads, Bridges and Incidental Construction Form 816, 2004 Addendums 1, 2, and 3. . . . Glass Doors . . . Glass & Glazing . . . Glazed Aluminum Framing System . . . Metal Panel Systems. . . . [A]s shown on Contract drawings; for the project entitled Bradley International Airport Terminal ‘A’ Renovations.”

The State of Connecticut Department of Transportation, Standard Specifications for Roads, Bridges and Incidental Construction, Form 816 (2004) (Form 816) was incorporated by reference into the subcontract. Section 1.05.01 of Form 816 provides in relevant part: “All work shall be subject to review by the Engineer. He shall decide all questions as to interpretation of the plans and specifications, and questions of mutual or respective rights of the Contractor and other Department contractors. The Engineer shall decide on an acceptable rate of progress, on the manner of performance, and what shall be deemed acceptable fulfillment of the contract.” Section 1.09.06 (1) regarding periodic payments provides in relevant part: “Once each month, the Engineer will make, in writing, current estimates of the value of work performed in accordance with the Contract, calculated at Contract unit prices, including but not limited to the value of materials complete in place and materials not yet incorporated into the Project, but approved by the Engineer for payment . . . .”

Paragraph III of the subcontract, which contained the “pay-when-paid” clause, provides in relevant part: “All billings must be approved by [Brunoli], and the Authority having jurisdiction [the department]; all billings must be submitted to this office no later than the 25th day of the month; all payments are subject to retainage and/or other applicable provisions as contained in the contract documents; payments will be made to the Subcontractor within 30 days of receipt of funds from the Owner provided the conditions as identified in Paragraphs I and II have been satisfied . . . .''

Suntech alleged in its complaint that Brunoli breached the subcontract in that it “failed to request payment from [the department] and has failed to remit payment to Suntech for certain completed and approved change order work by Suntech on the project.” It alleged that Brunoli paid Suntech only a portion of the amount owed and failed to pay Suntech in full for its performance under the agreement. It alleged that Brunoli left a balance owed on completed work of approximately $164,600 and unpaid change orders and damages in the amount of $657,675.

Referencing §§ 1.05.01 and 1.09.06 of Form 816, the court stated that under the subcontract, the department’s engineer had “discretion to determine . . . whether to accept or reject performance . . . what invoices were paid to both the general contractor and subcontractors, and to what extent they were paid. The authority of the [department] engineer was essentially the last word, short of the [department’s] internal appeal process. . . . [T]he ultimate decision for approval of any particular invoice and payment for such invoice rested with the [department].” The court found that the evidence did not support Suntech’s claim that Brunoli failed to submit Suntech’s invoices to the department. The court determined that there was no provision in the contract that made Brunoli directly responsible to Suntech for delay damages, unless Bru-noli was the cause of those delays and that the evidence did not support such a claim. The court concluded that, although “Suntech has undoubtedly incurred additional costs, expenses, and damages as a result of the delays of this project, they cannot be laid at the feet of [Brunoli].”

On appeal, Suntech claims that the court misapplied the “pay-when-paid” clause of paragraph III of the subcontract because that clause, according to case precedent, does not excuse payment by Brunoli, the contractor, but rather prescribes a reasonable time for payment to be made. Suntech further argues that the court erred by interpreting §§ 1.05.01 and 1.09.06 of Form 816 to provide the department’s engineer with “final and unfettered say as to whether or not a subcontractor will be paid the balance due under the contract, even when the project has been satisfactorily completed and the work has been accepted.” Suntech argues that those sections are irrelevant to a determination of the amount owed because once the job was complete, Sun-tech was owed the balance due under the contract. Suntech further argues that the court erred in making Brunoli “a mere conduit, simply passing information back and forth between Suntech and [the department].”

Suntech’s argument focuses on the “pay-when-paid” provision of paragraph III of the subcontract. As noted previously, this provision provides: “[A]ll billings must be submitted to this office no later than the 25th day of the month . . . payments will be made to the Subcontractor within 30 days of receipt of funds from the [department] . . . .” Suntech’s reliance on this provision is misplaced. It provided that Brunoli was to pay Suntech within a certain amount of time after the department had paid Brunoli for Suntech’s work. The provision does not provide that Brunoli was to pay Suntech amounts that the department did not approve or pay. Brunoli did not breach this provision. The court found that Suntech was unable to prove that Brunoli did not submit Suntech’s invoices to the department according to the terms of the contract or that Brunoli withheld funds from Suntech that were paid to Brunoli by the department.

In its memorandum of decision, the court described the billing process as follows. “The contract required Suntech to send monthly billings to [Brunoli] for work [it] had completed under a ‘schedule of values.’ The procedure followed consisted of [Brunoli] taking Sun-tech’s requisitions, those of other subcontactors, and their own, and submitting them to [the department] for review and payment. [The department] would pay the invoices according to their own inspection and their opinion as to the amount of work which had been completed. Payment was made from [the department] to [Brunoli], and then in turn to the subcontractors, including Suntech.”

The subcontract conferred exclusive authority to approve payment, including final payment, to the department engineer, subject to intra-department appeal. Paragraph III of the subcontract provides that: “All billings must be approved by Lawrence Brunoli Inc., and [by] the Authority having jurisdiction [the department] . . . .” Under the terms of the subcontract, the department engineer was responsible for approving and making payment. Form 816, which was incorporated by reference in the subcontract, provides in § 1.05.01 that: “All work shall be subject to review by the Engineer. . . . The Engineer shall decide on an acceptable rate of progress, on the manner of performance, and what shall be deemed acceptable fulfillment of the Contract.” The department engineer, then, had authority over all work performed, including Suntech’s work, and had authority to accept or reject performance. Form 816 also gave the department engineer discretion regarding payment. Section 1.09.06 (1) regarding partial payments provides: “Once each month, the Engineer will make, in writing, current estimates of the value of work performed in accordance with the Contract, calculated at Contract unit prices, including but not limited to the value of materials complete in place and materials not yet incorporated into the Project, but approved by the Engineer for payment . . . .” Section 1.09.07, regarding final payments, provides: “When the Commissioner has accepted the Project, the Engineer shall prepare a final payment estimate. It shall state the entire amount of each item of the Project work performed, the value thereof, and the amount of all payments made on prior estimates, all such estimated payments Being merely partial payments and subject to correction in the calculation of the final payment.” Under the terms of the subcontract, to which Sunteeh agreed, the department engineer was vested with authority to approve payments; Brunoli merely passed payment from the department to Sunteeh.

Furthermore, the subcontract clearly and unambiguously provided that Sunteeh waived any claims against Brunoli for damages due to delays caused by the department’s failure to accept responsibility. The court noted in its decision, and Sunteeh stated in its brief, that the increased costs and delays were a large part of the damages sought by Sunteeh. Paragraph V of the subcontract provides: “[T]he Subcontractor [Sunteeh] agrees not to assess any delay damages or claims against [Bru-noli] unless the Owner [the department] accepts responsibility, and payment.” The record does not reflect that the department accepted responsibility; in fact, the department rejected Suntech’s request for a change order based on additional work and expenses. Thus, under the terms of the subcontact, and the undisputed facts, Suntech cannot bring its claims against Brunoli for damages due to delays. In sum, the contractual arrangement clearly and unambiguously provided that Suntech had the ability to submit claims to Brunoli, who could submit Suntech’s claims to the department. Brunoli had no obligation to pay the claim, however, unless the department first paid Brunoli.

Suntech makes several additional arguments supporting its contention that the court erred in denying its claims for extra costs and delay damages. Each of these claims can be resolved with reference to paragraph V of the subcontract.

Suntech claims that the court failed to consider whether the Spearin doctrine gave rise to liability on the part of Brunoli. See United States v. Spearin, 248 U.S. 132, 136, 39 S. Ct. 59, 63 L. Ed. 166 (1918) (“if the contractor is bound to build according to plans and specifications prepared by the owner, the contractor will not be responsible for the consequences of defects in the plans and specifications”). Suntech cites cases, including Southern New England Contracting Co. v. State, 165 Conn. 644, 656, 345 A.2d 550 (1974) (contractor not responsible for loss or damage resulting from defective plans or specifications supplied by con-tractee), for the proposition that Connecticut has adopted the Spearin doctrine. Suntech argues that the court found that the plans and specifications prepared and distributed by the department were defective, but improperly put the burden on Suntech for extra costs, including delays, associated with the defective plans and specifications in contravention of the Spearin doctrine.

Regardless of whether the Spearin doctrine applies in this case, Suntech agreed in paragraph V of the subcontract “not to assess any delay damages or claims against [Brunoli] unless the Owner [the department] accepts responsibility, and payment.” As stated previously, because the department has not accepted responsibility, Suntech cannot obtain delay damages from Brunoli.

Second, Suntech argues that by virtue of its notice of claim filed with the department pursuant to § 4-61 for increased costs and a time extension relating to the system, Brunoli treated the claim relating to the system as its own claim, rather than as Suntech’s claim. Suntech seems to argue that Brunoli accepted responsibility for the claim simply by presenting it to the department, and that the trial court then erred in concluding that Brunoli was not hable to Suntech for the increased costs and in failing to analyze Suntech’s claims on the merits. In support of its argument, Suntech cites Federal Deposit Ins. Corp. v. Peabody, N.E., Inc., 239 Conn. 93, 105, 680 A.2d 1321 (1996), in which the court held that “a contactor cannot implead the state in an action against the contractor by a subcontractor unless the contractor admits liability to the subcontractor and incorporates the subcontractor’s claim into its own, so that the contractor then has a disputed claim under its own direct contract with the state.”

This case is different from Federal Deposit Ins. Corp. v. Peabody, N.E., Inc., supra, 239 Conn. 93. In Peabody, N.E., Inc., a subcontractor sought damages from Peabody, a general contractor, who in turn brought a common-law third-party indemnification complaint against the state. Id., 96. Peabody alleged, essentially, that if it was hable to the subcontractor, then the state was hable to it. Id., 100. Our Supreme Court held that ... § 4-61 (a) did not waive the state’s sovereign immunity, because the statute did not waive immunity for claims of contingent liability. Id., 102-105. A holding to the contrary would, in effect, allow claims to be brought against the state, albeit indirectly, by subcontractors, who did not have a contract with the state. See id., 104.

The present case is in a different procedural and substantive posture. First, of course, we are concerned with an action against the contractor, not against the state. If Suntech is otherwise correct in its analysis, a consequence might be that part of Brunoli’s action against the state would fail because its claim was contingent. Brunoli would not necessarily be deemed to have agreed to pay Suntech itself. More to the point, however, is the difference in contractual arrangements. The complex arrangement here apparently allowed Brunoli to include amounts claimed by Suntech in its claim—and Brunoli would be liable to Suntech for amounts recovered on its behalf.

Second, Brunoli’s filing of the notice of a claim under § 4-61, in itself, did not constitute an admission of liability. See Paragon Construction Co. v. Dept. of Public Works, 130 Conn. App. 211, 225-27, 23 A.3d 732 (2011) (question of fact existed as to whether general contractor had “disputed claim” under § 4-61 where general contractor filed notice of claim and brought suit against state for amount owed to subcontractor). That fact notwithstanding, under paragraph V of the subcontract, Suntech agreed not to assert any delay damages against Brunoli unless the department accepted responsibility.

Third, Suntech argues that the court erred in concluding that “there is no legal principle under which the court could make [Brunoli] responsible to Suntech for the delay caused ... by other subcontractors.” Sun-tech argues that “Connecticut courts have routinely found that the failure of a general contractor to coordinate the work of one or more of its subcontractors is a breach of contract subjecting the general contractor to liability for resulting damages incurred by another of its subcontractors. Wilson v. Kapetan, Inc., 25 Conn. App. 529, 531-32 [595 A.2d 369] (1991). The failure of the trial court to consider whether Brunoli breached its contract with Sunteeh as a result of delays to Suntech’s work caused by others of Brunoli’s subcontractors constitutes error . . . .”

The court noted that the parties introduced evidence regarding the difficulties in installing specific mullions due to other subcontractors not completing their work in a timely fashion, but made no finding that Brunoli, as general contractor, failed to coordinate the work of other subcontractors. Rather, the court found that the evidence did not support Suntech’s claim that Brunoli caused delays. Moreover, under paragraph V of the subcontract, Sunteeh agreed to limit its ability to assert delay claims against Brunoli to those in which the department accepts responsibility.

II

Sunteeh last claims that the court erred in rejecting its claim against Safeco for a violation of § 49-42. Sunteeh argues that because the trial court’s decision denying its claim against Safeco is wholly dependent on its decision with respect to the breach of contract claims against Brunoli, its decision in denying count five constitutes reversible error. Suntech’s argument depends on our deciding that the court erred in denying Suntech’s breach of contract claims against Brunoli. As previously stated in part I of this opinion, the court did not err in denying Suntech’s breach of contract claims. The court, then, properly found in favor of Safeco on the fifth count of the complaint.

The judgment is affirmed.

In this opinion the other judges concurred.

       The court stated that the “deflection criteria” is a calculation relative to the movement and stress bearing capacity of different materials.

       Brunoli brought a counterclaim against Suntech. The court found in favor of Suntech. The counterclaim is not at issue in this appeal.

       “[I]t is the trier’s exclusive province to weigh the conflicting evidence, determine the credibility of witnesses and determine whether to accept some, all or none of a witness’ testimony.” (Internal quotation marks omitted.) Greene v. Perry, 62 Conn. App. 338, 343, 771 A.2d 196, cert. denied, 256 Conn. 917, 773 A.2d 943 (2001). In its brief, Suntech has not pointed to any evidence to persuade us that these findings were clearly erroneous.

       Suntech argues that the court overlooked controlling Connecticut precedent regarding the legal effect and application of “pay-when-paid” provisions in construction contracts, citing Blakeslee Arpaia Chapman, Inc. v. El Constructors, Inc., 239 Conn. 708, 687 A.2d 506 (1997), and DeCarlo & Doll, Inc. v. Dilozir, 45 Conn. App. 633, 698 A.2d 318 (1997). In Blakeslee, the court expressly did not determine the enforceability of the “pay-when-paid” clause. Blakeslee Arpaia Chapman, Inc. v. El Constructors, Inc., supra, 720. In DeCarlo & Doll, Inc., the parties entered into a contract under which the plaintiff was to provide certain engineering and technical services for the development of the defendant’s self-storage facility. DeCarlo & Doll, Inc. v. Dilozir, supra, 635. The contract provided that payment was due thirty days after the defendant was billed on the first invoice. Id., 640. The parties agreed to amend the contract to further provide that payment was to be made by the defendant to the plaintiff “[sjubject to payment with all outstanding payments to be paid in full at time of financing of project.” Id., 637. The plaintiff performed the services mentioned in the proposal and billed the defendant, but the defendant never received financing and failed to pay the entire bill for the plaintiffs services. Id. This court held: “Viewing the contract as a whole, we conclude that the clause ‘subject to payment with all outstanding payments to be paid in full at time of financing’ is not a condition precedent but a date of payment set by the defendant. Because financing was never obtained by the defendant, the time of payment should have been within a reasonable time.” Id., 643. DeCarlo & Doll, Inc., however, simply did not involve a “pay-when-paid” provision. Although the court made a comparison to “pay-when-paid” provisions, that comparison was dicta; see id., 641 n.4; and, in DeCarlo & Doll, Inc., this court determined that the provision at issue did not establish an enforceable condition precedent for payment because the obligation to obtain financing was in the defendant’s control. Id., 642.
      The facts of this case differ significantly from DeCarlo & Doll, Inc. The contractual arrangement in that case was simply between two parties, and the defendant had inserted a handwritten sentence purporting to condition all payment on the defendant’s obtaining financing. In this case, Suntech knowingly entered into a contractual arrangement, avenues of appeal existed, the parties knowingly allocated risk in dealing with a sovereign and Brunoli had no control over the “condition.”

       Suntech argued in its motion to reargue that the court improperly overlooked the Spearin doctrine, which motion the court denied.

       General Statutes § 4-61 (a) provides in relevant part: “Any person, firm or corporation which has entered into a contract with the state . . . for the design, construction, construction management, repair or alteration of any highway, bridge, building or other public works of the state or any political subdivision of the state may, in the event of any disputed claims under such contract . . . bring an action against the state. ...”

       General Statutes § 49-42 (a) provides in relevant part: “Any person who . . . performed subcontracting work . . . who has not received full payment for such . . . work within sixty days after the date . . . such work was performed, may enforce such person’s right to payment under the bond. . . .”

       In count five of the complaint, Sunteeh alleged that Safeco, an insurance company which issued a payment bond to Brunoli for the project, violated § 49-42 by failing to make payment to Sunteeh after it made a claim under the bond. The court determined that the provision at issue in § 49-42 could be triggered only if the general contractor first received payment from the owner and then failed to pay the subcontractor. The court further determined that there was no authority supporting the conclusion that § 49-42 was meant to circumvent the provisions of the subcontract. The court found that Suntech failed to prove that Brunoli was in possession of any funds that the department paid on Suntech’s account or that Brunoli violated the terms of its contract with Suntech.


source: Caselaw Access Project

author: SCHALLER, J.

license: Public Domain

text:
    STATE OF CONNECTICUT v. RICHARD S.

    (AC 33173)
    Beach, Bear and SchaUer, Js.

      Argued November 15, 2012
    officially released June 25, 2013

      Sheila A. Huddleston, assigned counsel, with whom, on the brief, were Laurie A. Sullivan and Moira L. Buckley, for the appellant (defendant).

      James M. Ralls, assistant state’s attorney, with whom, on the brief, were David S. Shepack, state’s attorney, and Terri L. Sonnemann, assistant state’s attorney, for the appellee (state).

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

   Opinion

SCHALLER, J.

The defendant, Richard S., appeals from the judgment of conviction, rendered after a jury trial, of one count of sexual assault in the second degree in violation of General Statutes § 53a-71 (a) (4) and one count of sexual assault in the third degree in violation of General Statutes § 53a-72a (a) (2). On appeal, the defendant claims that the trial court improperly (1) denied his motion for a judgment of acquittal on the ground that there was insufficient evidence to reach a guilty verdict, (2) precluded the admission of evidence relevant to his defense, and (3) denied his motion to suppress his oral and written statements to the police. We affirm the judgment of the trial court.

The jury reasonably could have found the following facts. The sixteen year old victim, A, was residing in Florida apart from her mother due to a discordant relationship with her mother. While A was living independently, she received a message from the defendant, her father, with whom she had not had contact since she was approximately five years old. After hearing about her current living situation and relationship with her mother, the defendant invited A to come to Connecticut and live with him. The defendant paid for A’s transportation from Florida to his home in Connecticut because A could not afford to travel to Connecticut without the defendant’s financial assistance. A packed one or two boxes for her stay with the defendant. Although A intended to remain with the defendant for as long as she could to “make up for as much lost time as possible,” she did not know exactly how long that would be. A’s mother was unaware that A had left for Connecticut and had retained A’s social security card, but the defendant contacted A’s mother to inform her of A’s arrival. A was welcomed into the defendant’s home by the defendant and his family. The defendant supported A during her stay, providing her with food, shelter and transportation. A and her mother spoke periodically by telephone while she was in Connecticut.

Approximately one month after A began living with the defendant, two incidents occurred in which the defendant inappropriately kissed A on her neck. Shortly thereafter, A disclosed these incidents to her friends. A testified that she returned to her father’s home because she had nowhere else to go and believed that her only option was to wait until she could contact her mother. On or about May 20, 2007, A and the defendant began drinking alcohol together. After having several drinks, A became intoxicated and went to the bathroom because she felt ill. The defendant followed A and sexually assaulted her in the bathroom.

The next day, on May 21, 2007, A left the defendant’s house and went to a nearby store to contact her mother; A was unable to complete the telephone call to her mother because she could not recall the defendant’s PIN number used to make long-distance calls. An individual on the street offered a cell phone to A, and she contacted her mother to disclose the sexual assault. A then contacted the police to report the assault and was taken to a hospital where she was examined by a sexual assault nurse examiner who collected physical evidence. Analysis of the evidence revealed that the defendant was the source of the spermatozoa found in A’s vaginal smear samples, and further DNA testing confirmed that the defendant was A’s biological father. A’s mother arrived in Connecticut on May 21, 2007, and took A back to Florida shortly’thereafter.

The defendant was arrested and charged with one count of sexual assault in the second degree in violation of § 53a-71 (a) (4) and one count of sexual assault in the third degree in violation of § 53a-72a (a) (2). At the close of trial the defendant moved for a judgment of acquittal on the ground that the evidence was insufficient to establish that he was responsible for A’s general supervision and welfare as required by § 53a-71 (a) (4). The court denied the defendant’s motion, finding that the state had made aprima facie case and had produced sufficient evidence to submit the question of the defendant’s guilt to the jury. The jury found the defendant guilty of both counts. The court sentenced the defendant to a total effective term of fifteen years imprisonment, suspended after eight years, and twenty years probation. This appeal followed. Additional facts are set forth as necessary.

I

The defendant first asserts that the court erred in denying his motion for a judgment of acquittal because the evidence was insufficient to support his conviction pursuant to § 53a-71 (a) (4). Specifically, the defendant argues that the evidence demonstrates that he and A had been estranged for a significant portion of her life, and that A was living independently and only visiting the defendant temporarily. According to the defendant, this evidence is not sufficient to prove that he was responsible for A’s general supervision and welfare. We conclude that viewing the evidence and reasonable inferences drawn therefrom in the light most favorable to sustaining the verdict, the jury reasonably could have found that the defendant was responsible for A’s general supervision and welfare.

We set forth the standard of review and legal principles that guide our analysis. “In reviewing a sufficiency of the evidence claim, we apply a two-part test. First, we construe the evidence in the light most favorable to sustaining the verdict. Second, we determine whether upon the facts so construed and the inferences reasonably drawn therefrom the [trier of fact] reasonably could have concluded that the cumulative force of the evidence established guilt beyond a reasonable doubt. ... In evaluating evidence, the trier of fact is not required to accept as dispositive those inferences that are consistent with the defendant’s innocence. . . . The trier may draw whatever inferences from the evidence or facts established by the evidence it deems to be reasonable and logical. . . . This does not require that each subordinate conclusion established by or inferred from the evidence, or even from other inferences, be proved beyond a reasonable doubt . . . because this court has held that a [trier’s] factual inferences that support a guilty verdict need only be reasonable. . . .

“[A]swe have often noted, proof beyond a reasonable doubt does not mean proof beyond all possible doubt . . . nor does proof beyond a reasonable doubt require acceptance of every hypothesis of innocence posed by the defendant that, had it been found credible by the trier, would have resulted in an acquittal. ... On appeal, we do not ask whether there is a reasonable view of the evidence that would support a reasonable hypothesis of innocence. We ask, instead, whether there is a reasonable view of the evidence that supports the [trier’s] verdict of guilty. . . . Furthermore, [i]n [our] process of review, it does not diminish the probative force of the evidence that it consists, in whole or in part, of evidence that is circumstantial rather than direct. ... It is not one fact, but the cumulative impact of a multitude of facts which establishes guilt in a case involving substantial circumstantial evidence.” (Internal quotation marks omitted.) State v. Alberto M., 120 Conn. App. 104, 108-109, 991 A.2d 678 (2010).

Next, we turn to the essential elements of the offense at issue to determine whether there is a reasonable view of the evidence that supports the guilty verdict. Section 53a-71 (a) provides in relevant part that “[a] person is guilty of sexual assault in the second degree when such person engages in sexual intercourse with another person and ... (4) such other person is less than eighteen years old and the actor is such person’s guardian or otherwise responsible for the general supervision of such person’s welfare.” Our Supreme Court has previously construed subsection (a) (4) on two separate occasions, first in State v. Burney, 189 Conn. 321, 465 A.2d 1335 (1983), and again in State v. Snook, 210 Conn. 244, 555 A.2d 390, cert. denied, 492 U.S. 924, 109 S. Ct. 3258, 106 L. Ed. 2d 603 (1989).

In Burney, our Supreme Court determined that the statutory terms “responsible” and “general supervision” were ambiguous. State v. Burney, supra, 189 Conn. 325. In further construing these terms, the court concluded that “[w]hile it is clear that a judicial decree is not necessary in order to become responsible for the general supervision of a minor under [§ 53a-71 (a) (4)], neither is the mere assumption by a third person of the temporary care of a minor enough to bring that third party within the class of persons to whom the statute applies. . . . [T]o require something more than the performance of acts of a paternal nature by a third person out of the concern for the comfort, health or welfare of the child, would be consistent with the legislative intent to protect the helpless [as suggested by the statute’s other subsections]. . . . [T]he legislature intended the categories [‘otherwise responsible for’ and ‘guardian’] to be roughly equivalent, with the obligations and degree of control of the actor over the child . . . to be similar to those of legal guardianship.” (Citations omitted.) Id., 326-27.

In Burney, the victim had been staying at the defendant’s home for approximately one and one-half months before the sexual assault. The victim’s mother claimed that the defendant was the victim’s biological father, but his name was not Usted on the victim’s birth certificate. The victim’s mother further testified that the defendant treated the victim as his daughter, buying her presents and providing for her needs. Id., 323-24. In concluding that the evidence was insufficient to estabhsh that the defendant was responsible for the victim’s general supervision or welfare, the court observed that there was no evidence that the victim’s mother intended to relinquish responsibility to the defendant and, to the contrary, the victim’s mother called the defendant, leaving instructions for her daughter to return home. Id., 328.

In Snook, our Supreme Court again examined subsection (a) (4), holding that biological parents are not excluded from criminal liability under this subsection, but, like any other actor, they must be guardians or responsible for the victim’s general supervision or welfare. State v. Snook, supra, 210 Conn. 267. Finally, in State v. Martin, 38 Conn. App. 731, 744, 663 A.2d 1078 (1995), cert. denied, 237 Conn. 921, 676 A.2d 1376, cert. denied, 519 U.S. 1044, 117 S. Ct. 617, 136 L. Ed. 2d 541 (1996), a case in which the defendant was the victim’s biological father, this court considered the testimony as well as the defendant’s and victim’s relationship when concluding that there was sufficient evidence to find the defendant guilty of sexual assault under subsection (a) (4).

We are not persuaded by the defendant’s arguments that A was independent and temporarily visiting the defendant. At the outset, we note that neither the subjective intent of A nor of the defendant is dispositive in this case. First, the defendant was, in fact, A’s biological father, and contacted her after a lengthy period of estrangement in order to establish a relationship. Additionally, the defendant provided A with the necessary financial assistance in order for her to travel to Connecticut, opened his home to her, and provided her with food, lodging and transportation. Although A did not bring all of her belongings, she testified that she intended to stay with the defendant as long as possible to make up for lost time and further testified that she was welcomed into the defendant’s home by his family. Indeed, A had already been residing with the defendant for approximately one month at the time of the sexual assault.

Although A spoke with her mother regularly, and A’s mother retained her social security card, we are not persuaded by the defendant’s argument that these facts indicate that the defendant had not assumed responsibility for A’s care and supervision. Under the circumstances in this case, the jury reasonably could have inferred that, because A was geographically isolated from her mother and that her circumstances had changed significantly upon her arrival at the defendant’s home, she had become dependent upon the defendant to meet her needs. In fact, although A had disclosed the incidents of inappropriate kissing to her friends, she testified that she believed that she had no choice but to return to the defendant’s home until she could contact her mother. On the basis of the defendant’s conduct in inviting A to his home, paying for A’s travel expenses from Florida to Connecticut, and providing A with food, shelter and transportation, all while cultivating the parent-child relationship, the jury reasonably could have inferred that the defendant assumed a role sufficient to satisfy the requirements of subsection (a) (4). For the foregoing reasons we conclude that the court did not err in denying the defendant’s motion for a judgment of acquittal.

II

The defendant next claims that the court improperly precluded evidence that was relevant to his defense that he was not responsible for A’s general welfare. We are not persuaded.

“The standard of review we apply to a trial court’s evidentiary rulings is well settled. Such rulings are entitled to great deference. . . . The trial court is given broad latitude in ruling on the admissibility of evidence, and we will not disturb such a ruling unless it is shown that the ruling amounted to an abuse of discretion.” (Internal quotation marks omitted.) State v. Abreu, 106 Conn. App. 278, 282, 941 A.2d 974, cert. denied, 286 Conn. 919, 946 A.2d 1249 (2008).

We will address each of the defendant’s arguments in turn, beginning first with his argument that the court improperly redacted portions of one of his two written statements to the police that were relevant to his defense. Prior to trial, the state moved to redact a portion of the defendant’s May 21, 2007 statement on the grounds that it was irrelevant, contained inadmissible hearsay and contained inadmissible information regarding A’s prior misconduct. The court granted the state’s motion to redact the defendant’s statement without specifying the grounds upon which its ruling was based.

The defendant argues on appeal that, although the statement contained information regarding A’s prior misconduct, it was nonetheless admissible pursuant to Connecticut Code of Evidence § 4-5 (c) to challenge the state’s proof of an element of the crime. Specifically, the defendant contends that the redacted statements would have provided the jury with a basis for finding that A came to Connecticut to avoid legal problems and not because she intended the defendant to become her guardian, thereby establishing that the defendant was not A’s guardian or responsible for her general supervision as required by § 53a-71 (a) (4). We are not persuaded.

The court had before it several bases upon which it could have excluded the disputed portion of the defendant’s statement. When the court does not articulate a factual or legal basis for its ruling, as in the present case, it is appropriate to seek a motion for articulation. Orcutt v. Commissioner of Correction, 284 Conn. 724, 738, 937 A.2d 656 (2007) (“[i]t is . . . the responsibility of the appellant to move for an articulation ... of the record [when] the trial court has failed to state the basis of a decision” [internal quotation marks omitted]); see also Practice Book § 61-10. In the absence of an articulation, we read the record in a manner to support the judgment of the trial court. “[W]e do not presume error; the trial court’s ruling is entitled to the reasonable presumption that it is correct unless the party challenging the ruling has satisfied its burden demonstrating the contrary.” (Internal quotation marks omitted.) State v. Baker, 50 Conn. App. 268, 275 n.5, 718 A.2d 450, cert. denied, 247 Conn. 937, 722 A.2d 1216 (1998); see also State v. Reynolds, 264 Conn. 1, 29 n.21, 836 A.2d 224 (2003) (“[i]n the absence of any evidence to the contrary, [j]udges are presumed to know the law . . . and to apply it correctly” [internal quotation marks omitted]), cert. denied, 541 U.S. 908, 124 S. Ct. 1614, 158 L. Ed. 2d 254 (2004). The defendant has failed to meet this burden.

While factually distinguishable from the present case, the general principles set forth in State v. Crumpton, 202 Conn. 224, 520 A.2d 226 (1987), are instructive. In Crumpton, the defendant argued that the trial court applied the incorrect law when denying his motion to preclude the state from mentioning his prior conviction of robbery in the second degree, yet the record did not conclusively reveal the basis of the trial court’s decision. Id., 226-31. Our Supreme Court affirmed the trial court’s ruling and presumed that the court reflected upon the proper factors before issuing its ruling. Id., 231. Our Supreme Court noted that the record revealed that the appropriate considerations were before the trial court and that the state did not proffer another basis for the introduction of the evidence. Id.

Although the state argued several grounds in support of precluding the admission of the disputed statements and the record in this case does not reveal the basis of the court’s decision, we note that the court had before it the proper considerations to determine that the evidence was not admissible to challenge the state’s proof of an element of the crime pursuant to § 4-5 (c) of the Code of Evidence. In fact, in opposition to the state’s motion to redact, the defendant specifically argued to the court that the statements at issue were relevant to prove that A possessed self-seeking motives—namely, escaping potential criminal liability—when she moved to Connecticut to live with the defendant, and therefore did not place herself under his general supervision. See id., 231-32. Absent an articulation regarding the legal basis for the trial court’s decision, we will not speculate that the trial court failed to consider § 4-5 in reaching its conclusion. See State v. Elson, 125 Conn. App. 328, 365-66, 9 A.3d 731 (2010) (“speculation and conjecture . . . have no place in appellate review” [internal quotation marks omitted]), cert. granted on other grounds, 300 Conn. 904, 12 A.3d 572 (2011). Accordingly, we presume that the court did not err in granting the state’s motion to redact portions of the defendant’s statement. See State v. Crumpton, supra, 202 Conn. 232 (“a claim of error cannot be predicated on an assumption that the trial court acted erroneously” [internal quotation marks omitted]). For the foregoing reasons, we cannot conclude that the trial court abused its discretion in precluding the admission of the disputed portions of the defendant’s May 21, 2007 statement.

The defendant next argues that the court erroneously precluded evidence regarding how A supported herself financially while living apart from her mother in Florida and erroneously precluded the defendant from asking A’s mother whether A was trying to return to Florida prior to her allegations of sexual assault. The state objected to both questions on the ground of relevance, and the court sustained the state’s respective objections.

On appeal, the defendant asserts that this testimony was relevant to prove that A’s stay with him was temporary and that she was not subject to his supervision. We are not persuaded. “Section 4-1 of the Connecticut Code of Evidence provides in pertinent part that evidence is relevant if it has 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.” (Internal quotation marks omitted.) State v. Johnson, 107 Conn. App. 188, 193, 944 A.2d 416, cert. denied, 288 Conn. 905, 953 A.2d 650 (2008). We agree with the court that how A supported herself financially and whether A was trying to return to Florida when she alleged that the defendant sexually assaulted her does not make it more or less likely that the defendant was responsible for her general supervision at the time he assaulted her in Connecticut. Accordingly, we cannot conclude that the court abused its discretion by precluding inquiry into these matters.

Ill

The defendant finally claims that the court erred in denying his motion to suppress the statements he made to the police on May 21, 2007, and May 22, 2007. The defendant’s claim that the court improperly denied his motion to suppress is twofold. The defendant first contends that the court improperly concluded that he was not in custody at the time he gave the respective statements. He also argues that the court improperly determined that his statements were given voluntarily. We are not persuaded.

The following additional facts are necessary to our resolution of the defendant’s claims. At the hearing on the defendant’s motion to suppress, Richard Good, a Torrington police detective, testified that he was assigned to investigate A’s assault on May 21, 2007, and interviewed the defendant that same morning. Good and another officer went to the defendant’s home, dressed in plain clothes in an unmarked car, and explained to the defendant that they were investigating a complaint made by A. Good then asked the defendant to come to the police station to speak with him privately because the complaint was of a sensitive nature. Good explained that because the defendant did not drive, he gave the defendant a ride to the police station. The defendant rode in the backseat of the unmarked police car, which had no partition between the back and front seats.

Good testified that upon arriving at the police station, he placed the defendant in his office, leaving the door open for safety and so the defendant did not get the impression that he was not free to leave. Good stated that he also told the defendant that he was free to leave at any time. Good testified that the defendant appeared nervous and claimed to be tired because he had not slept, had been drinking alcohol and that his memory was unclear. According to Good, the defendant did not appear to be under the influence of alcohol at that time. During this first interview, the defendant admitted to drinking alcohol with A, but denied having sexual intercourse with her. Good explained that he took notes during the interview and then typed them into a statement, which the defendant was asked to proofread for accuracy. According to Good, the defendant “looked at the paper for a considerable amount of time,” indicated that he had read it and that he had no corrections. The defendant swore to the statement’s accuracy, initialed the bottom of each page and signed the document. Good stated that the entire interview lasted approximately one hour and fifteen minutes.

Good spoke with the defendant again the following day, on May 22, 2007, after he had interviewed A. Good once again drove the defendant to the police station, and Good testified that he again informed the defendant that he was not under arrest and was free to leave at any time. Good described the defendant’s demeanor as nervous yet cooperative and more at ease than the day before. Good stated that he disclosed to the defendant the additional details A had provided and that as the conversation progressed the defendant admitted that some of A’s allegations may be accurate. Good explained that he typed a written statement, dated May 22,2007, which the defendant signed after reading, making a correction and confirming its accuracy. According to Good, the second statement was completed in approximately half an hour.

The defendant testified at the hearing that he did not recall going to the police station with Good on May 21, 2007, but that he did remember going on May 22, 2007. The defendant could not clearly recall the substance of either of his typed statements, whether he was informed that he had a right to have an attorney present or whether he actually read the typed statements before he signed them. As to the May 22, 2007 interview, the defendant recalled that he felt nervous, scared and “bombarded . . . .” The defendant also argued that during the May 22, 2007 interview, an officer told him that the DNA results came back positive “and that there’s no way out . . . .” Good testified that he may have informed the defendant that the police were attempting to gather DNA evidence, but did not recall telling the defendant that the police already had DNA evidence that could be used against him.

The court issued a ruling from the bench denying the defendant’s motion to suppress. Based on the totality of circumstances, the court found that the defendant was not in custody on either day when he was questioned by the police and that Good drove the defendant to the station under the same conditions on both days. Specifically, Good was dressed in plain clothes and transported the defendant in an unmarked car, the defendant was not handcuffed, the defendant was free to leave at any time and was aware that he was free to leave, and the defendant indicated that he wanted to cooperate with the investigation. The court noted that although the defendant had been drinking the night before he gave his first statement, there was no indication that he was intoxicated at the time he gave the statement on May 21, 2007. Moreover, while Good’s testimony described the defendant as nervous, occasionally crying and scared, the court determined that these were normal reactions under the circumstances when considering the nature of A’s allegations.

The court further concluded that the defendant’s statements were voluntary and that his will was not overborne. In so concluding, the court observed that there was no medical testimony indicating that the defendant suffered from a condition affecting his will or ability to understand. Crediting Good’s testimony, the court also found that the defendant read and signed both statements. Specifically, the defendant made a correction to his May 22, 2007 statement, from which the court inferred that the defendant absolutely read the statements, knew what he was signing, was not forced to sign the statements, and that his will was not overcome by any of the actions of the officers or any condition on his behalf that would leave him incapable of making a knowing and voluntary statement. The statements were admitted as full exhibits at the defendant’s trial and read to the jury.

We first address the defendant’s argument that the court improperly determined that he was not in custody at the times that he gave his statements. The defendant contends that on both days the police made statements that created a police dominated atmosphere that would cause a reasonable person to believe that he was not free to leave. We disagree.

At the outset, we set forth the standard of review that will guide our analysis of these claims. “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 .... [Wjhere 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 will not overturn the trial court’s factual finding that the defendant was not in custody unless it was clearly erroneous . . . but [w]e will, however, carefully review the record to ascertain whether the trial court’s finding is supported by substantial evidence. . . .

“Two threshold conditions must be satisfied in order to invoice the warnings constitutionally required by Miranda [v. Arizona, 384 U.S. 436, 478-79, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966)]: (1) the defendant must have been in custody; and (2) the defendant must have been subjected to police interrogation. ... A person is in custody only if, in view of all of the surrounding circumstances, a reasonable person would have believed he was not free to leave. . . . The ultimate inquiry [therefore] is simply whether there is a formal arrest or restraint on freedom of movement of the degree associated with a formal arrest.” (Citations omitted; internal quotation marks omitted.) State v. Mucha, 137 Conn. App. 173, 188-89, 47 A.3d 931, cert. denied, 307 Conn. 912, 53 A.3d 998 (2012).

In concluding that the defendant was not in custody at the time he made either statement, we examine several relevant factors. First, the defendant voluntarily accompanied the police for questioning on both days and indicated that he wanted to cooperate with the investigation. See State v. Bridges, 125 Conn. App. 72, 80-81, 6 A.3d 223 (2010), cert. denied, 300 Conn. 931, 17 A.3d 68 (2011). Second, the defendant was informed that he was not under arrest and was free to leave at any time on both occasions. “[A] fact finder reasonably might find that a reasonable person would feel free to leave when that person was told repeatedly that he could do so.” (Internal quotation marks omitted.) Id., 81. Additionally, the record reveals testimony that the defendant was not subjected to exceedingly lengthy interviews. See id., 81-82. Finally, the defendant was not physically restrained or subjected to other formalities of an arrest. Specifically, for both interviews the defendant was not handcuffed, he was transported in an unmarked car without a partition, he was interviewed in the detective’s office while the door was left open, and there is no evidence that officers brandished their weapons. “Factors of this type strongly support a determination that a reasonable person in the defendant’s position would not have believed that he was in police custody.” Id., 82. Having reviewed the facts and evidence in the entire record, we conclude that a reasonable person in the defendant’s position would not have believed that he was in custody on either occasion. Accordingly, we agree with the court that the defendant did not demonstrate that he was entitled to Miranda warnings and conclude that the court properly denied the defendant’s motion to suppress evidence on that ground.

The defendant also argues that the court erred in admitting his May 21, 2007 and May 22, 2007 statements because both were involuntary. We disagree. “In order to be voluntary a confession must be the product of an essentially free and unconstrained choice by the maker. . . . [T]he test of voluntariness is whether an examination of all the circumstances discloses that the conduct of law enforcement officials was such as to overbear [the defendant’s] will to resist and bring about confessions not freely self-determined ....

“The ultimate question of whether a defendant’s will has been overborne, thus resulting in an involuntary statement in a particular case, involves ... an assessment of the totality of all the surrounding circumstances—both the characteristics of the accused and the details of the interrogation. . . . Furthermore, the scope of review is plenary on the ultimate question of voluntariness, but the trial court’s findings regarding the circumstances surrounding the defendant’s questioning and confession are findings of fact that will not be overturned unless they are clearly erroneous.” (Citations omitted; internal quotation marks omitted.) State v. Stephenson, 99 Conn. App. 591, 596-97, 915 A.2d 327, 282 Conn. 903, 919 A.2d 1037 (2007).

We are not persuaded that the circumstances under which the defendant provided his statements were coercive. First, the defendant has not pointed us to any evidence in the record indicating that he was particularly susceptible to coercion, and the court determined that there was no evidence indicating that the defendant was incapable of making a voluntary and knowing statement. The defendant maintains that his use of alcohol the evening prior to giving his first statement rendered his statement involuntary. “The use of drugs or the ingestion of alcoholic beverages does not, in and of itself, render a subsequent confession inadmissible, but it is one factor to be considered in judging the voluntariness of a statement.” (Internal quotation marks omitted.) State v. Abreu, supra, 106 Conn. App. 293. Good testified that the defendant did not appear to be intoxicated dming the May 21, 2007 interview, and indeed the court specifically found that the defendant was not intoxicated at the time he gave this statement. Furthermore, the record indicates that the defendant went to the station voluntarily, wanted to cooperate with the investigation and was not subjected to lengthy periods of grueling interrogation. See id., 293-94. We do not find persuasive the defendant’s argument that his fragile emotional state rendered his statements involuntary. To the contrary, the court concluded that the defendant’s emotional reactions were appropriate in light of the seriousness of A’s allegations, and “the fact that [a] defendant was . . . upset emotionally, [does not] necessarily render his statements inadmissible.” (Internal quotation marks omitted.) Id., 294.

Based on our scrupulous review of the record, we conclude that the court’s findings are supported by the record and, therefore, are not clearly erroneous. We further conclude that the court properly determined that the defendant’s statements were voluntary. Accordingly, we conclude that the court did not err in denying the defendant’s motion to suppress on that basis.

The judgment is affirmed.

In this opinion the other judges concurred.

       In count one of its long form information, the state charged the defendant with sexual assault in the second degree in violation of § 53a-71 (a) (4), alleging specifically that the defendant had engaged in sexual intercourse with A while she was under the age of eighteen and that “[the defendant] was responsible for the general supervision of [A’s] welfare . . . .” Because the state did not allege that the defendant violated § 53a-71 (a) (4) in his capacity as A’s guardian, we limit our analysis to the defendant’s claim that the evidence was insufficient to support a finding that he was generally responsible for A’s supervision.

       We observe that at the time our Supreme Court decided Burney, § 53a-71 (a) (4) was then designated as subsection (a) (3). See State v. Snook, 210 Conn. 244, 266, 555 A.2d 390, cert. denied, 492 U.S. 924, 109 S. Ct. 3258, 106 L. Ed. 2d 603 (1989). For consistency we refer to that provision as subsection (a) (4) throughout this opinion.

       The contested portion of the defendant’s May 21, 2007 statement provides: “[A] thought that her boyfriend was going to be able to come up to Connecticut too, I had told her that I would try to get him up here, but then I found out more about him. [A’s] mother told me he messes with little girls and that he deals drugs. [A’s mother] told me that [A] and her boyfriend were chased by the police. When they got pulled over, he was arrested on a warrant. And when [A] was chased, they found cocaine in her bra. I don’t know if [A] was arrested for that. [A] told me they were stopped for no reason and that the drugs were not hers, but she hid them. [A’s mother] told me that she believes [A] was sexually assaulted by one boyfriend but not the second time.”

       Section 4-5 (a) of the Connecticut Code of Evidence provides in relevant part that “[e]vidence of other crimes, wrongs or acts of a person is inadmissible to prove the bad character or criminal tendencies of that person.”
      Section 4-5 (b) of the Connecticut Code of Evidence provides in relevant part that “[e]vidence of other crimes, wrongs or acts of a person is admissible for purposes other than those specified in subsection (a), such as to prove ... an element of the crime . . . .”

       At the defendant’s trial, A had testified that she was not employed while she was living independently from her mother.

       The defendant argues that the court’s evidentiary rulings violated his constitutional rights to confrontation and to present a defense. Because we conclude that the court’s evidentiary rulings were proper, we further conclude that the defendant’s constitutional claims are without merit. State v. Abrrn, supra, 106 Conn. App. 282 (“As we [have] observed, [a] defendant’s right to present a defense does not include a right to present evidence that properly is excluded under the rules of evidence. . . . The defendant’s sixth amendment right . . . does not require the trial court to forgo completely restraints on the admissibility of evidence. . . . Generally, [a defendant] must comply with established rules of procedure and evidence in exercising his right to present a defense.” [Internal quotation marks omitted.]).

        The defendant also argues that the court erred in precluding testimony regarding with whom A was living. We decline to review this specific claim. The state objected to this line of questioning on the ground of relevance, and the defendant withdrew the question before the court ruled on the matter. Accordingly, there is no ruling for this court to review on appeal.

       Good explained that standard warnings pursuant to Miranda v. Arizona, 384 U.S. 436, 478-79, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966), were on the top of each page of the defendant’s respective statements, and that the defendant indicated that he had read the entire statement, including the Miranda warnings, but Good denied specifically discussing the warnings with the defendant.

       The court specifically observed that “[the defendant] was never put in handcuffs by the police. He was not taken in a marked car. [The car had] no . . . barrier placed between [the defendant] and the officer who drove him. [Good testified] that the defendant . . . didn’t have the ability to drive, so [he offered] to drive [the defendant] to the police station. . . . [B]y [the defendant’s] own testimony, he indicated he was trying to cooperate with the police. And [the defendant] was never told at any time that he could not leave the police station. He was not under arrest at any time.”


author: KELLER, J.

text:
    STATE OF CONNECTICUT v. TEEJAY M. JOHNSON
    (AC 32675)
    Robinson, Keller and Schaller, Js.

      Argued April 23
    Officially released June 25, 2013

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

      Denise B. Smoker, senior assistant state’s attorney, with whom, on the brief, were Michael Dearington, state’s attorney, and Michael A. Pepper, senior assistant state’s attorney, for the appellee (state).
   Opinion

KELLER, J.

The defendant, Teejay M. Johnson, appeals from the judgment of the trial court convicting him of criminal possession of a pistol or revolver in violation of General Statutes § 53a-217c (a) (l) and finding that he violated the terms of his probation. The defendant claims that the court was collaterally estopped from finding him guilty of criminal possession of a pistol or revolver because a jury found him not guilty of two charges arising from the same underlying facts. We affirm the judgment of the trial court.

The record discloses the following relevant facts. In 2009, under docket number CR-09-0090253, the defendant was charged with the crimes of murder in violation of General Statutes § 53a-54a, carrying a pistol without a permit in violation of General Statutes § 29-36 (a), and criminal possession of a pistol or revolver in violation of § 53a-217c (a) (1). All three criminal charges arose from conduct that allegedly occurred on February 20,2009, in New Haven. Also, under docket number CR-03-0021444, the defendant was charged with having violated the terms of his probation.

The defendant pleaded not guilty to all three counts and elected a jury trial for the counts of murder and carrying a pistol without a permit. Prior to trial, the defendant orally waived his right to a jury trial with regard to the count of criminal possession of a pistol or revolver, electing for that count to be tried to the court. The defendant’s attorney explained that this election was made so that the jury would not hear certain evidence relevant only to that count, namely, that the defendant was a convicted felon. Thereafter, the court canvassed the defendant with regard to this election. The defendant’s attorney agreed that the court would hear evidence related to the criminal possession of a pistol or revolver count as well as the violation of probation count “simultaneously” with the presentation of evidence before the jury with regard to the two remaining counts of the information and, upon the completion of the case, render its verdict.

During the defendant’s case-in-chief, but outside the presence of the jury, the court conducted an evidentiary hearing in which the parties stipulated that the defendant had been convicted of a prior felony, namely, aiding and abetting assault in the first degree, and had received a sentence of ten years imprisonment, suspended after four years, followed by a three year term of probation. Further, the parties stipulated that the defendant’s probation commenced on July 19,2007, and that one of the terms of his probation was that he was not to violate any criminal law of the state. Otherwise, the court and the jury heard all of the evidence concurrently. After hearing evidence, closing argument and jury instructions, the jury deliberated and found the defendant not guilty of murder and carrying a pistol without a permit. After the court accepted the verdict and ordered that it be recorded, it thanked the jury for its service and excused the jury. The court did not call a recess after it excused the jury, but immediately engaged in the following colloquy:

“The Court: Now, we have two other matters that still need to be addressed. One is count three of the information, which is criminal possession of a firearm, which was tried to the Court and the violation of probation, which also was tried to the Court.
“Does either counsel want to be heard before I address both of those matters?
“Mr. Pepper [Assistant State’s Attorney]: I just believe that there’s sufficient evidence to find the defendant guilty of . . . that third count, Judge, and also the [violation of probation].
“The Court: Mr. Kelly.
“Mr. Kelly [Defense Counsel]: I will address in the order, your Honor, it would be logically and legally inconsistent to find my client guilty of the third count in view of the jurors’ verdicts in this case where they found my client not guilty of committing a murder by a firearm and found him not to possess a pistol without a permit, so I would ask the Court to enter a not guilty finding on that third count.
“The Court: Okay. Please be seated. Well, obviously this case was primarily an issue of credibility. There were a number of witnesses who came into court and testified that they saw the defendant with a handgun in the parking lot of the Yale Bowl Wine and Liquor Store on February 20, 2009. Mr. Sherman Anderson so testified, as did . . . [Rasheeda] McKnight [who] also testified that she saw the defendant with a handgun and a firearm in the parking lot of the liquor store.
“Now, there was also testimony from Douglas Bethea and Rondsheba Ali that the defendant possessed a firearm inside the apartment at 69 1/2 Derby Avenue on February 20, 2009.
“The jury obviously did not believe those witnesses and found them incredible, but I’m not bound by their determination of credibility since both of these matters were tried to the Court. It’s for me to determine whether based upon the evidence I found those witnesses to be credible, and I did.
“I found all four of those witnesses to be credible with respect to their testimony that Mr. Johnson had in his possession a firearm on February 20, 2009, and I also find, since it was stipulated, that he was previously convicted of a felony, and I find that those facts were proved beyond a reasonable doubt. So, I do find Mr. Johnson guilty on the third count of criminal possession of a firearm.
“With respect to the violation of probation, since I have now found him guilty of criminal possession of a firearm, and it [was] previously stipulated that on July 30, 2004, he was convicted of a felony aiding and abetting assault in the first degree, that he was sentenced to a term of incarceration of ten years, suspended after four, with three years of probation. One of the conditions of that probation was that he not violate the criminal law of the state of Connecticut and that probation was commenced on July 19, 2007.
“I find that he was on probation at the time of this offense on February 20, 2009, and I find that the State has proved by a preponderance of the evidence that he violated probation, as a result of his criminal possession of a firearm on February 20, 2009.” On a later date, the court conducted the dispositional phase of the violation of probation hearing.

With regard to the criminal possession of a pistol or revolver count, the defendant filed a motion for a new trial or, in the alternative, a motion to vacate the judgment entered as to that count. The defendant asserted therein that the court’s finding of guilt “was inconsistent with the jury's verdicts” on the other criminal charges and that the state failed to prove guilt. Prior to imposing sentence, the court heard argument related to the motion. The defendant’s attorney argued that “the [court’s] verdict was inconsistent” with those of the jury. Essentially, the defendant argued that, for a variety of reasons, the court should reevaluate its decision to credit the testimony of the four witnesses that it expressly had credited when announcing its finding of guilt. Specifically, the defendant’s attorney asked the court to take judicial notice of the fact that one witness, Ali, was sentenced days after the court’s ruling for drug related crimes. The state argued that there was ample evidence to support the court’s finding. The defendant and the state acknowledged that the court was bound by relevant Supreme Court precedent, namely, State v. Knight, 266 Conn. 658, 835 A.2d 47 (2003). The court, clarifying its earlier ruling, stated that it had relied on evidence, including forensic evidence, when it decided to credit the testimony of these witnesses.

The court denied the defendant’s motion, stating: “[It’s] obviously very clear from State v. Knight that it is appropriate for atrial court to convict [the defendant] based on the evidence that I heard for criminal possession of a firearm, notwithstanding that a jury acquitted him of the charges of murder and carrying a pistol without a permit. [The verdicts] are not legally inconsistent because they contain different elements and they’re not necessarily factually inconsistent where there are separate finders of fact, as there were in this case. So, that motion is denied under the authority of State v. Knight. Thereafter, the court took up the matter of sentencing. This appeal followed.

Although, at trial, the defendant argued his claim in terms of an “inconsistency” between the verdict of the jury and that of the court, he now raises an issue under the double jeopardy clause of the federal constitution. He challenges whether, under the circumstances present at trial, the court was collaterally estopped from rendering a guilty verdict as to the criminal possession of a pistol or revolver count after the jury had rendered its not guilty verdict as to the murder and carrying a pistol without a permit counts. The defendant argues that the constitutional issue was litigated at trial and, in the alternative, argues that review is warranted pursuant to State v. Golding, 213 Conn. 233, 239-40, 667 A.2d 823 (1989). “A defendant can prevail on an unpre-served constitutional claim under Golding 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. . . . The first two [prongs of Golding] involve a determination of whether the claim is reviewable; the second two . . . involve a determination of whether the defendant may prevail.” (Citation omitted; emphasis in original, internal quotation marks omitted.) State v. Lavigne, 307 Conn. 692, 698-99, 67 A.3d 332 (2012). Because a constitutional issue was not distinctly raised below and addressed by the trial court, we will review the claim under Golding because the record is adequate for review and the issue is of constitutional magnitude.

We turn to an examination of Knight, because we conclude that it is controlling in this case. The defendant in Knight was charged with murder, carrying a pistol or revolver without a permit, and criminal possession of a firearm; all of the charges arose from a criminal incident that occurred on December 8, 1999, in Hartford. State v. Knight, supra, 266 Conn. 661. The defendant elected a jury trial for the counts of murder and carrying a pistol or revolver without a permit, but waived his right to a juiy trial on the criminal possession of a firearm count. Id., 661-62. “At trial, the jury and the trial court heard all of the evidence and arguments concurrently, with the exception of the defendant’s prior felonies, which were relevant only to the criminal possession count and thus were heard solely by the trial court outside of the presence of the jury. The jury returned its verdict, finding the defendant not guilty of both murder and carrying a pistol or revolver without a permit. Immediately thereafter, the trial court returned a verdict of guilty on the count of criminal possession of a firearm. The court explained that, in reaching its verdict of guilty on the count of criminal possession of a firearm, it had credited the testimony of Carl McQuillar, a witness for the state who had testified, in the presence of both the trial court and the jury, that he had seen the defendant carrying a pistol on the evening of December 8, 1999.” Id., 662.

On a direct appeal from the judgment of conviction, our Supreme Court in Knight rejected the defendant’s claim, brought under the double jeopardy clause of the federal constitution, that the trial court was collaterally estopped from finding guilt as to the criminal possession count because the jury already had found the facts related to that count in his favor in a separate proceeding before a jury, albeit one that occurred simultaneously with the proceeding that was tried before the court. Id., 663. In rejecting the claim, the court explicitly adopted the reasoning of a District of Columbia Court of Appeals decision, Copening v. United States, 353 A.2d 305 (D.C. App. 1976). State v. Knight, supra, 266 Conn. 665. Our Supreme Court reasoned: “[T]he proceeding in this case was a single, unified hearing. . . . The state was given only one opportunity to present its case against the defendant, and the defendant was required to present his case but a single time. Both the jury and the court simultaneously were presented with the arguments and the evidence, with the exception of the evidence of the defendant’s prior convictions that was withheld from the jury. Moreover, both triers reached their decisions in simultaneous deliberations, and those decisions were announced within the same proceeding, with the verdict of the trial court immediately following that of the jury. Accordingly, we conclude that the defendant’s criminal trial was a single proceeding, and therefore that the doctrine of collateral estoppel does not apply.” (Citation omitted; emphasis in original; internal quotation marks omitted.) Id., 665-66. In the present case, as in Knight, both the jury and the court simultaneously were presented with the evidence and the arguments of counsel, with the exception of the evidence of the defendant’s prior conviction and information relative to his probation status. Both the jury and the court deliberated simultaneously, and their decisions were rendered within the same proceeding, with the court’s verdict immediately following that of the jury.

As our Supreme Court noted, the principles of collateral estoppel enunciated in Ashe v. Swenson, 397 U.S. 436, 443-44, 90 S. Ct. 1189, 25 L. Ed. 2d 469 (1970), “clearly contemplate a relitigation of factual issues. . . . The existence of a prior judgment has been described as the linchpin of that decision, and subsequent case law has stressed the requirement of a previous trial. . . . [T]he doctrine of collateral estoppel does not apply to the procedurally unique situation in which several criminal charges against the same defendant have been allocated between two triers for concurrent adjudication upon virtually identical evidence.” (Citations omitted; internal quotation marks omitted.) State v. Knight, supra, 266 Conn. 664.

Here, the defendant recognizes Knight's preclusive effect on his claim. The defendant is unable to distinguish the present case from Knight. The defendant attempts to distinguish the present case from Knight by asserting a distinction without a difference. He argues that, in this case, the state delivered two closing arguments, one to the jury and, following the jury’s verdict, another to the court. On this ground, the defendant suggests that the verdicts at issue did not arise in a single proceeding, but in successive proceedings.

As a preliminary matter, the court did not afford the parties an opportunity to deliver closing arguments concerning the criminal possession count. Apparently, what the defendant asserts was “a closing argument” by the state occurred when the prosecutor, asked if he wished to be heard, stated, “I just believe that there’s sufficient evidence to find the defendant guilty of . . . that third count, Judge, and also the [violation of probation].” Even were we to conclude that this sentence constituted a closing argument, we are not persuaded that it gave rise to a separate proceeding in which the state had a second opportunity to retry an issue of ultimate fact and “hone its presentation on those issues which have already been decided against it.” United States v. Bailin, 977 F.2d 270, 277-78 (7th Cir. 1992). In addition, had the prosecutor mentioned the violation of probation before the jury, the defendant’s efforts to prevent the jury from hearing prejudicial information about his prior criminal conviction may have been undermined.

The defendant acknowledges that, insofar as he challenges Knight, such a challenge is raised before this court primarily for the purpose of preserving such claim for further appellate review. To the extent that he urges this court, in some form, to question the correctness of that ruling, we observe that, as an intermediate court of appeal, we are unable to overrule, reevaluate or reexamine controlling precedent of our Supreme Court. See Stuart v. Stuart, 297 Conn. 26, 46-46, 996 A.2d 259 (2010). In accordance with Knight, we conclude that the defendant has failed to demonstrate that a constitutional violation clearly exists and clearly deprived him of a fair trial. The claim fails under Golding's third prong.

The judgment is affirmed.

In this opinion the other judges concurred.

       To dispel any ambiguity, we observe that the defendant was charged with violating § 53a-217c, which prohibits criminal possession of a pistol or revolver, and the court’s judgment file reflects that he was convicted of violating § 53a-217c (a) (1). In argument before this court, the parties repeatedly refer to the offense of which the defendant was convicted as criminal possession of a. firearm. Likewise, in its decision, set forth below, the court found that the defendant criminally possessed a firearm. For purposes of § 53a-217c, “[t]he term ‘pistol’ and the term ‘revolver’ . . . mean any firearm having a barrel less than twelve inches in length.” General Statutes § 29-27; see also General Statutes § 53a-3 (18). A “ ‘[flirearm’ means any . . . pistol, revolver or other weapon, whether loaded or unloaded from which a shot may be discharged . . . .” General Statutes § 53a-3 (19). Thus, the trial court’s reference to criminal possession of a firearm is entirely consistent with its judgment of conviction under § 53a-217c (a) (1). The defendant has not raised any claim in this regard.

       As a result of its finding of guilt for criminal possession of a pistol or revolver, the court sentenced the defendant to a term of incarceration of five years. As a result of its finding that the defendant violated the terms of his probation, the court sentenced the defendant to a term of incarceration of six years. The court ordered that the sentences were to run consecutively, resulting in a total effective sentence of eleven years incarceration.

       In 2004, the defendant was convicted of aiding and abetting assault in the first degree and received a sentence of ten years imprisonment, execution suspended after four years, followed by three years of probation.

       On the basis of its ruling, the court denied the defendant’s motion to vacate its finding that the defendant had violated the terms of his probation.

       We observe that, in Knight, the court also rejected the defendant’s claim that the judgment should be reversed because the verdicts of the jury and the trial court were impermissibly inconsistent. State v. Knight, supra, 266 Conn. 674.


author: BEAR, J.

text:
    ANTHONY R. DELGOBBO ET AL. v. TOWN OF WATERTOWN ET AL.
    (AC 34347)
    Bear, Sheldon and Harper, Js.

      Argued March 19
    officially released June 25, 2013

      William J. Ward, for the appellants (plaintiffs).

      William L. Stevens, for the appellees (defendants).
   Opinion

BEAR, J.

The plaintiffs, Anthony R. DelGobbo and Helen DelGobbo, appeal from the judgment of the trial court rendered in favor of the defendants, the town of Watertown (town), and several of its employees and officials, in this action in which the plaintiffs sought a writ of mandamus. We conclude that the plaintiffs have faded to demonstrate that the court abused its discretion in denying their request for a writ of mandamus. Accordingly, we affirm the judgment of the trial court.

The relevant facts and procedural history, which are uncontested, were set fprth by the trial court: “This action, commenced as a [petition for a] writ of mandamus, arises out of the widening of Guemseytown Road in Watertown . . . (the [t]own), an event [that] necessitated the reconstruction of the plaintiffs’ driveway by the [t]own. The plaintiffs aver that the defendants violated the town zoning regulations in the reconstruction of their driveway and that they are entitled to have those regulations enforced. They seek an order requiring the town to enforce its zoning regulations, essentially against itself, so that their driveway will be reconstructed in such a fashion as to bring it into compliance with existing zoning regulations.” The court also explained that the plaintiffs later amended their claim for relief to request that “the court order the zoning enforcement officer to inspect and determine whether the existing driveway is in violation of the zoning ordinances, in contrast to an order that the [t]own reconstruct the driveway so as to bring it into compliance with the current zoning regulations.”

The court held an evidentiary hearing on December 6, 2011, briefs were submitted on December 23, 2011, and additional argument was heard on January 30,2012. The court issued its memorandum of decision on February 6, 2012, denying the plaintiffs’ mandamus request and rendering judgment in favor of all defendants. This appeal followed.

On appeal, the plaintiffs claim in relevant part that the court improperly denied their request for a writ of mandamus to require the zoning enforcement officer to inspect and to determine whether the plaintiffs’ driveway was in violation of the town’s zoning ordinances. We are not persuaded.

We begin by setting forth the applicable law and standard of review. “In deciding the propriety of a writ of mandamus, the trial court exercises discretion rooted in the principles of equity. ... In determining whether the trial court abused its discretion, [an appellate] court must make every reasonable presumption in favor of its action. . . . Nevertheless, [an appellate] court will overturn a lower court’s judgment if it has committed a clear error or if it has misconceived the law.” (Internal quotation marks omitted.) Garcia v. Hartford, 135 Conn. App. 248, 255, 42 A.3d 429 (2012).

“Mandamus is an extraordinary remedy, available in limited circumstances for limited purposes. ... It is fundamental that the issuance of the writ rests in the discretion of the court, not an arbitrary discretion exercised as a result of caprice but a sound discretion exercised in accordance with recognized principles of law. . . . That discretion will be exercised in favor of issuing the writ only where the plaintiff has a clear legal right to have done that which he seeks. . . . The writ is proper only when (1) the law imposes on the party against whom the writ would run a duty the performance of which is mandatory and not discretionary; (2) the party applying for the writ has a clear legal right to have the duty performed; and (3) there is no other specific adequate remedy.” (Internal quotation marks omitted.) Greenfield v. Reynolds, 122 Conn. App. 465, 469, 1 A.3d 125, cert. denied, 298 Conn. 922, 4 A.3d 1226 (2010).

The plaintiffs argue that the court improperly relied on Greenfield in concluding that the actions or inactions of the zoning enforcement officer were discretionary and that, therefore, they could not establish the first element necessary for the issuance of a writ of mandamus. Specifically, they argue: “In Greenfield, the plaintiff was attempting to tell the zoning enforcement officer the manner in which to do his job. Specifically, the plaintiff wanted the zoning enforcement office [r] to issue a cease and desist [order], start a civil action, hire an attorney [and] fine the neighbor. Clearly, these are all discretionary acts not subject to a writ of mandamus. In this case, the [plaintiffs] were not telling the zoning enforcement officer how to do her job, they were simply asking her to do her job in any manner she saw fit. Instead, the zoning enforcement office [r] did not do her job. She did not inspect the driveway. She did not enforce the regulations at all. In fact, she never even saw the subject driveway.” (Emphasis added.) The defendants argue in relevant part that the plaintiffs admit that they never complained to the zoning enforcement officer prior to filing this action and, furthermore, that the zoning enforcement officer’s power to enforce zoning regulations is discretionary, thereby making an action for mandamus improper in this case.

In Greenfield, the plaintiff had requested the issuance of a writ of mandamus ordering the zoning enforcement officer, inter alia, to issue a cease and desist order to the plaintiffs neighbor. Greenfield v. Reynolds, supra, 122 Conn. App. 467-68. In response to the plaintiffs complaint, the zoning enforcement officer filed a motion to strike the plaintiffs complaint on the ground that the plaintiff had not alleged any of the elements required for the issuance of a writ of mandamus. Id., 468. The trial court granted the motion to strike, and the plaintiff appealed. Id., 466. On appeal, this court affirmed the judgment of the trial court, holding that the enforcement of zoning regulations, which, logically, is “done for the direct benefit of the public,” is a discretionary act, “not amenable to mandamus relief.” Id., 472-73.

In the present case, the plaintiffs argue in part that Greenfield is distinguishable because the plaintiff in that case was seeking to have the court order the zoning enforcement officer to take specific action, rather than merely order him to perform his job. They argue that in the present case, after they amended their claim for relief, they were asking the court to issue a writ of mandamus that required the zoning enforcement officer to perform her job and honestly exercise her judgment by inspecting the driveway to ensure that it was in compliance with the zoning regulations. Essentially, the plaintiffs are arguing that, although the method employed or the decisions made by the zoning enforcement officer in performing her duties may be discretionary, it is not discretionary that she perform her job; the duty to perform her job is a ministerial one. For that argument to withstand scrutiny in this case, however, the plaintiffs needed to establish that the zoning enforcement officer had a mandatory duty to inspect the plaintiffs’ driveway, even in the absence of any prior request from them, to ensure that it complied with the zoning regulations; see, e.g., R. Fuller, 9A Connecticut Practice Series: Land Use Law and Practice (3d Ed. 2007) § 39:1, p. 406 (“[i]f a public official or public agency had a [ministerial] duty to perform a particular act and fail[ed] in the discharge of that duty, a writ of mandamus is the proper remedy for compelling performance of the act”); and that the trial court abused its discretion in denying their request for a writ of mandamus. Under the facts presented here, we are not persuaded that the plaintiffs met their burden.

When assessing the plaintiffs’ argument in its memorandum of decision, the trial court explained that it did not “see a distinction between the decision to inspect and opine and the decision to enforce .... Both are actions of the zoning enforcement officer which are left to her sound discretion and judgment. As such, the mandate of Greenfield would be equally applicable and a writ of mandamus for that purpose would not be appropriate.” The court also held that “[t]o issue a writ of mandamus against a zoning officer who was never asked, in the first instance, to assess a situation would be inequitable and would set an unwarranted and unwanted precedent.”

Although the plaintiffs argue that the court erred in concluding that the actions or inactions of the zoning enforcement officer were discretionary and further erred in concluding that this case is controlled by Greenfield, the plaintiffs fail to set forth any law that supports their argument that the zoning enforcement officer had a mandatory duty to inspect and to opine on whether the driveway was in compliance with the zoning regulations. Additionally, the plaintiffs admit that they requested a writ of mandamus without first having asked the zoning enforcement officer to inspect the driveway. They assert that the zoning enforcement officer was put on notice that there was a problem requiring that she inspect the driveway for compliance by virtue of this very action, which was filed before the towm actually reconstructed the driveway. The plaintiffs make no argument, however, concerning the court’s exercise of discretion in declining to issue a writ of mandamus, nor do they address the court’s holding that, in this case, it would be inequitable to issue such a writ when the zoning enforcement officer was never asked by the plaintiffs to inspect the driveway. Our law is quite clear: “Even where the three part test for mandamus is met, it does not automatically compel the issuance of the requested writ of mandamus, and the trial court exercises its discretion based upon the principles of equity.” R. Fuller, supra, § 39:1, p. 408; see Garcia v. Hartford, supra, 135 Conn. App. 255 (“the trial court exercises discretion rooted in the principles of equity” [internal quotation marks omitted]). On the basis of our review of the applicable facts and law, we conclude that the plaintiffs have failed to demonstrate that the court abused its discretion in denying their request for a writ of mandamus.

The judgment is affirmed.

In this opinion the other judges concurred.

       Specifically, the plaintiffs named in their complaint: Ruth Mulcahy, who was alleged to be the administrator of land use for the town; Moosa Rafey, who was alleged to be the assistant planning and zoning enforcement officer for the town; Roy Cavanaugh, who was alleged to be the director of public works for the town; Charles Berger, who also was alleged to be the director of public works for the town; Charles Frigon, who was alleged to be the town manager of the town; Gary Martin, Michael Masayda, Carl Mancini, Ronald Russ, David Minnich, Jim Blais, Glen Duplissie, Ray Rondeau, Ken Demirs, and Duane George, who were alleged to be members of the planning and zoning commission of the town; and Elaine Adams, Raymond Primini, Gary Bernier, David Demirs, Richard DiFederico, Richard Fusco, Carl Mancini, Thomas Winn and Paul Rinaldi, who were alleged to be members of the Watertown town council.
      We note that the plaintiffs named Carl Mancini as a defendant in his capacities as a member of the town council and as a member of the planning and zoning commission.
      Although Michael Masayda was named as a defendant and properly was served, his name does not appear on the Superior Court case detail sheet, nor did the court specifically mention him by name in its memorandum of decision, rendering judgment “in favor of all defendants . . . .” We conclude that these omissions were scrivener’s errors that do not affect the outcome of the case or this appeal. It is clear that the court rendered judgment in favor of all the defendants.
      Additionally, we note that the court found that the plaintiffs had introduced no evidence that any of these defendants, with the exception of the town and Ruth Mulcahy, who the evidence demonstrated had actual zoning enforcement duties, had any duty to act with respect to the plaintiffs’ driveway, and that judgment should enter in their favor on that basis. This ruling is not challenged on appeal.

       Despite this argument, we note that the plaintiffs’ requested relief on appeal is that we “reverse the holding of the trial court and remand this matter with instructions to issue a mandamus compelling the [defendants] to reconstruct the plaintiff[s’] driveway so that it complies with then-own regulations.”