author: BEAR, J.

text:
    STATE OF CONNECTICUT v. ANTHONY JOHNSON
    (AC 35657)
    Gruendel, Bear and West, Js.

      Argued February 10—
    officially released April 29, 2014

      Norman A. Pattis, with whom was Daniel M. Erwin, for the appellant (defendant).

      Laurie N. Feldman, special deputy assistant state’s attorney, with whom, on the brief, was Brian Preleski, state’s attorney, for the appellee (state).
   Opinion

BEAR, J.

The defendant, Anthony Johnson, appeals from the judgment of conviction of one count of murder in violation of General Statutes § 53a-54a. On appeal, the defendant claims that (1) the court improperly denied his motion to suppress two photographic array identifications, and (2) this case should be remanded to the trial court for an evidentiary hearing, where he can submit expert testimony on the fallibility of eyewitness testimony, so that the trial court can determine if he is entitled to a new trial in light of the Supreme Court’s decision in State v. Guilbert, 306 Conn. 218, 49 A. 3d 705 (2012), which was decided after the defendant’s trial. We affirm the judgment of the trial court.

The jury reasonably could have found the following facts on the basis of the evidence presented at trial. On October 31, 2009, several people, including the defendant and Iyshia Lamboy, attended a Halloween party at the Paris Bar in Bristol. Lamboy had known the defendant for three or four years. After the party broke up, Lamboy stopped at a Sunoco gas station, where the defendant, Freddy Felix (victim), and others were engaged in an argument. Lamboy noticed the red Acura automobile that the defendant was known to drive also at the Sunoco station. Lamboy later drove to Davis Drive in Bristol. When she arrived, the defendant’s red Acura already was parked in the area. Approximately twenty-five people were gathered around some men, who were arguing. Lamboy got out of her car and stood next to the victim, who was standing next to his car. The defendant was present and standing off to the side. Two of the men who were arguing got into a fistfight, but the situation defused after some people agreed to leave. Soon thereafter, however, the fighting resumed, and the defendant, after stating that he “had the heat,” walked over to his car, where Lamboy saw him place a mask over the bottom portion of his face, pull the hood of his sweatshirt over his head, and put on a dark nylon glove. Lamboy approached the defendant and began shouting at him. Other people then pulled her away from the defendant. The defendant approached the victim, pulled a gun from his chest area, and fired four shots, two of which hit the victim, killing him. The defendant ran from the area, leaving the red Acura behind.

Prior to the shooting, Ebony Shell, who lived in a second floor apartment on Davis Drive, was asleep in her bedroom when she was awoken by the sounds of people arguing outside. She looked out of her bedroom window and saw approximately thirty people gathered. She recognized the defendant, who was wearing a dark hooded sweatshirt. The defendant was arguing with a heavyset woman until two other people pulled her away from him. Shell saw the victim standing next to his car, arguing with another man whom she knew as Javi. The defendant then walked around a dumpster and reemerged with a mask covering part of his face and his hood raised over his head. He moved his arm toward his chest; Shell then saw flashes and heard gunfire, and she closed her curtain. Upon reopening the curtain, Shell saw a man lying on the ground, and the defendant was gone.

When the police conducted their investigation, they found, parked in the area, the red Acura that Lamboy had seen the defendant driving, which was registered to the defendant’s father. Inside the car, they found the defendant’s driver’s license and a photograph of the defendant and his friend, Javier, which had been taken and printed at the Halloween party at the Paris Bar.

Very late on October 31, 2009, Michael Bergin picked up his friend, Anthony Garcia. The two later picked up the defendant and another man named Lamar. While in Bergin’s vehicle, Lamar repeatedly asked the defendant why he shot the victim, and the defendant told Lamar not to discuss his business, but he later explained that there had been a fight at the Sunoco gas station, and, when the argument moved to Davis Drive, he went and got his gun. Bergin dropped off the defendant and Lamar at the Plymouth Motor Lodge, and the defendant paid him with cocaine for the ride. Bergin, fearing that he could be considered an accessory after the fact, went to a police station and told officers what he had heard. Two nights later, the police arrested the defendant at the Holiday Inn in Southington. On the defendant’s nightstand was a newspaper clipping about the murder.

The defendant was charged and, after a jury trial, convicted of one count of murder. The court sentenced him to forty-five years imprisonment. This appeal followed. Additional facts will be set forth as necessary.

I

The defendant claims that the court improperly denied his motion to suppress the photographic array identification made by Shell and that it improperly failed to suppress, sua sponte, a photographic array identification made by Lamboy after it heard testimony during the trial. Specifically, he argues that he “moved to suppress a photo array identification of the defendant by witness . . . Shell. . . . The court denied the motion based upon State v. Marquez, 291 Conn. 122, 967 A.2d 56 [cert. denied, 558 U.S. 895, 130 S. Ct. 237, 175 L. Ed. 2d 163] (2009). . . . [E]ven if the court correctly applied Marquez, this was error in light of the state Supreme Court’s ruling in State v. Guilbert, [supra, 306 Conn. 218]. Guilbert calls Marquez into question and requires reconsideration of the issue presented at trial. The defendant also contends that, now, based upon the trial testimony the court should have suppressed the photo array identification of . . . Lamboy as well and raises the claim as to her under State v. Golding, 213 Conn. 233, 567 A.2d 823 (1989), as it is a due process issue.” (Citation omitted; footnote added.) He farther contends that “[t]he absence of double blind, sequential arrays makes a photo array unduly suggestive in single perpetrator identifications.” (Emphasis omitted.) We are not persuaded.

“[A] claim of an unnecessarily suggestive pretrial identification procedure is a mixed question of law and fact.” State v. Marquez, supra, 291 Conn. 137. “[B]ecause the issue of the reliability of an identification involves the constitutional rights of an accused . . . we are obliged to examine the record scrupulously to determine whether the facts found are adequately supported by the evidence and whether the court’s ultimate inference of reliability was reasonable. . . . [T]he required inquiry ... is two-pronged: first, it must be determined whether the identification procedure was unnecessarily suggestive; and second, if it is found to have been so, it must be determined whether the identification was nevertheless reliable based on an examination of the totality of the circumstances. ... To prevail on his claim, [a] defendant has the burden of showing that the trial court’s determinations of suggestiveness and reliability both were incorrect. . . .

“Because the inquiry into whether evidence of pretrial identification should be suppressed contemplates a series of factbound determinations, which a trial court is far better equipped than this court to make, we will not disturb the findings of the trial court as to subordinate facts unless the record reveals clear and manifest error.” (Internal quotation marks omitted.) State v. Manson, 118 Conn. App. 538, 543, 984 A.2d 1099 (2009), cert. denied, 295 Conn. 902, 988 A.2d 878 (2010), quoting State v. Ledbetter, 275 Conn. 534, 547-48, 881 A.2d 290 (2005), cert. denied, 547 U.S. 1082, 126 S. Ct. 1798, 164 L. Ed. 2d 537 (2006).

The following additional facts are relevant to our discussion. On May 11, 2011, the defendant filed a motion to suppress Shell’s photographic array identification on the ground that the procedure employed by the police was unduly suggestive. At the May 18, 2011 hearing on the motion to suppress, two witnesses were presented, Shell and Detective Peter Dauphinais. Shell testified that she had “seen [the defendant] around and [had] heard talk of him,” that she knew what he looked like, and that she had seen him “several times,” but that she had never spoken to him. She testified about the shooting she had witnessed in the early morning hours of November 1,2009, and she identified the defendant as the shooter. She stated that she was certain that it was the defendant whom she saw. She also testified that the area was well fit and that she had no trouble seeing from her bedroom window.

Shell also explained that she voluntarily, on her own initiative, went to the police station on (November 5, 2009, where she was asked to view a photographic array. She testified that she neither was coached by the police nor directed in any way to pick the defendant’s photograph from the array, but that she picked the defendant’s photograph because he was the person whom she saw shoot the victim. Defense counsel asked Shell if that was the first time she had spoken to police about this case. Shell said that the police had knocked on her door the morning after the shooting and that she had spoken to them at that time. Counsel did not ask Shell about the content of that conversation.

Dauphinais testified that Shell previously had told police that she had not seen the shooting. He explained that she approached them later, however, and gave them information. Dauphinais also testified about the photographic array. He testified that the defendant was included in the array because he was a suspect and that the array procedure was blind, meaning that no names were listed, but that it was not a double-blind procedure, meaning that it was given by someone who knew which person in the array was a suspect. He also stated that no video was taken of the photographic array identification procedure.

After these two witnesses were presented, defense counsel argued that Shell initially told police she had not seen anything and that she then showed up at the police station several days later claiming to have seen the shooting from her bedroom window. Counsel argued that the procedure used in the identification process was not videotaped, that it was a nondouble-blind array, and that such procedures have “the danger of subtle influence and subtle bias and subtle suggestion . . . .” He argued that “my claim would be that it is inherently súggestive to show a person ... an array that contains a suspect in a nondouble-blind situation after he’s been arrested and the community has been canvassed on multiple occasions for information. I concede there are gaps in that theory, but that’s my claim, Judge.” Defense counsel did not file a motion to suppress Lamboy’s photographic array identification, nor object to its introduction, although he argues on appeal that the court should have suppressed it, sua sponte, nonetheless.

In opposition to the motion to suppress Shell’s photographic array identification, the state argued before the trial court that the law does not require double-blind procedures or videotaping. It further argued that in this case, Shell testified that she had familiarity with the defendant and that she was certain of her identification and, therefore, suppression was not warranted.

Following testimony and the arguments of counsel, the court specifically found: “On November 5, 2009, [Shell] went to the police station to view a photo array. Prior to viewing the array, she was given a witness instraction for photo identification form, which, among other things, said it was as important to clear innocent people as to identify the guilty. Persons in the photos may not look exactly as they did on the date of the incident because features like facial or head hair can change. The person you saw may or may not be in these photographs, and the police will continue and investigate this incident whether you identify someone or not.

“[Shell] was then shown a photo lineup with eight pictures, all of them African-American males, one of which included the defendant. She circled the [defendant’s] [photograph], stating that the guy in number four is the person I saw shooting. This is the guy I know to be AJ, and this is the guy who shot the man over by the dumpster. She then signed the form.

“The photo array was administered by . . . Detective Peter Dauphinais. Peter Dauphinais was aware that the defendant was the suspect in the shooting, so it was not a double-blind photo array .... [Shell] had previously given a . . . statement to officers prior to viewing the photo array, indicat[ing] that she had not seen anyone involved in the shooting.”

After finding these facts, the court explained to defense counsel: “[B]asicaily, what you’re asking for is something I cannot give. You’re asking that I find as a matter of law that a double-blind photo array is required; that’s not currently the law in Connecticut. . . . The law is governed by State v. Marquez, [supra, 291 Conn. 122], and, in determining whether a pretrial identification procedure violated a defendant’s due process rights, I have to find two things—that the particular identification procedure employed was unnecessarily suggestive, and, two, if the procedure was unnecessarily suggestive . . . [whether] the identification nevertheless [was] reliable in light of the totality of the surrounding circumstances.”

On the basis of the facts found and the relevant law, the court held: “I find that the photo array was not unnecessarily suggestive. There’s nothing in the composition of the photographic array that highlights the defendant in any way, he’s not unique in any way, there’s eight photos in the lineup. The witness was not either consciously or subconsciously—there’s no evidence that [Shell] was, through police conduct, [that] they pointed to the defendant as the person she should pick out of the lineup. There’s really nothing suggestive. . . . [F]or those reasons, I don’t even get to the reliability .... I don’t get to the reliability issue because I don’t find that the array procedure was unnecessarily suggestive. So, for those reasons, the motion to suppress is denied.” The court issued no ruling regarding Lamboy’s photographic array identification of the defendant because the defendant did not include her identification in his motion to suppress, nor did he offer an objection to the admission of this evidence at trial.

On appeal, the defendant contends that the court should have suppressed both photographic array identifications because his right to due process was violated by allowing them into evidence. The state contends that the issue concerning Lamboy’s identification is not reviewable because the defendant never offered an objection to this evidence, and, therefore, the record is not adequate for us to review the claim. Nevertheless, the state further contends that the introduction into evidence of either or both photographic array identifications was not improper because both Shell and Lamboy were familiar with the defendant before looking at the arrays, and the concerns raised by the defendant regarding suggestiveness and untrustworthiness in eyewitness identification procedures apply only to stranger identifications. We first conclude that there is no merit to the defendant’s claim that the court, sua sponte, should have suppressed evidence of Lamboy’s photographic array identification. The defendant offers no law that supports a holding that the trial court committed reversible error for failing to suppress evidence, “based upon trial testimony,” after that evidence had been offered and admitted without any objection at any time during the trial. Accordingly, we conclude that further discussion of this aspect of the defendant’s claim is unnecessary. As to the defendant’s claim that his due process rights were violated because the police failed to utilize a double-blind procedure during Shell’s photographic array identification and, therefore, that the array identification procedure was unduly suggestive, we agree with the trial court that the procedure employed in this case was not unduly suggestive.

Over the course of time, our Supreme Court has continued to maintain “a stem test for suggestiveness: An identification procedure is unnecessarily suggestive only if it gives rise to a very substantial likelihood of irreparable misidentification.” (Emphasis in original; internal quotation marks omitted.) State v. Marquez, supra, 291 Conn. 139. In Marquez, however, our Supreme Court revisited this test and determined that, over time, the court, essentially, had conflated the suggestiveness prong and the reliability prong. Id., 140-41. The court, then, redetermined “what makes a particular identification procedure ‘suggestive’ enough to require the court to proceed to the second prong and to consider the overall reliability of the identification” and set forth a new test for suggestiveness. Id., 142. The court explained that “a determination as to whether a particular identification procedure is ‘unnecessarily suggestive’ must focus on the [following] factors . . . .” Id., 144. “The first factor concerns the composition of the photographic array itself. In this regard, courts have analyzed whether the photographs used were selected or displayed in such a manner as to emphasize or highlight the individual whom the police believe is the suspect. . . . The second factor, which is related to the first but conceptually broader, requires the court to examine the actions of law enforcement personnel to determine whether the witness’ attention was directed to a suspect because of police conduct. ... In considering this [factor, the court should] look to the effects of the circumstances of the pretrial identification, not whether law enforcement officers intended to prejudice the defendant. ... It stands to reason that police officers administering a photographic identification procedure have the potential to taint the process by drawing the witness’ attention to a particular suspect. This could occur either through the construction of the array itself or through physical or verbal cues provided by an officer.” (Citations omitted; internal quotation marks omitted.) Id., 142-44.

The court further explained: “In evaluating the suggestiveness of a photographic array, a court should look to both the photographs themselves and the manner in which they were presented to the identifying witness. . . . We consider the following nonexhaustive factors in analyzing a photographic array for unnecessary suggestiveness: (1) the degree of likeness shared by the individuals pictured ... (2) the number of photographs included in the array ... (3) whether the suspect’s photograph prominently was displayed or otherwise was highlighted in an impermissible manner ... (4) whether the eyewitness had been told that the array includes a photograph of a known suspect . . . (5) whether the eyewitness had been presented with multiple arrays in which the photograph of one suspect recurred repeatedly . . . and (6) whether a second eyewitness was present during the presentation of the array.” (Citation omitted; internal quotation marks omitted.) Id., 161.

In the present case, the defendant essentially argues that a nondouble-blind photographic array procedure, per se, is unduly suggestive. We disagree. In Marquez, our Supreme Court disagreed with the trial court’s determination on this very issue, namely, that a nondou-ble-blind photographic array procedure, per se, is unduly suggestive. Id., 134-35. Our Supreme Court held that the factors previously set forth must be examined on a case-by-case basis and that a nondouble-blind procedure is not unduly suggestive, per se. Id., 156,164-65.

In the present case, the trial court specifically found that Shell was given a proper witness instruction before she examined the photographic array, that the police did not consciously or subconsciously point her toward the defendant’s photograph, and that she picked the defendant out of the array of eight photographs and stated that he was the shooter and that she knew him as AJ. The court then concluded that there was nothing unduly suggestive about the procedure employed during Shell’s photographic array identification. On the basis of the court’s findings, and the factors set forth in Marquez, we agree that the procedure was not unduly suggestive.

II

The defendant next claims that this case should be remanded to the trial court for an evidentiary hearing, where he can submit expert testimony on the fallibility of eyewitness testimony, so that the trial court can determine if he is entitled to a new trial in light of the Supreme Court’s decision in State v. Guilbert, supra, 306 Conn. 218, which was decided after the defendant’s conviction. He further argues that his claim should not fail on the ground that he never attempted to introduce expert testimony on this issue at trial, because, under the state of our law at that time, such testimony would have been inadmissible. He argues that the change in the law, essentially, is akin to newly discovered evidence or withheld evidence, and, therefore, he is entitled to an evidentiary hearing.

Citing Practice Book §§ 42-53, 42-54, and 42-55, along with General Statutes § 52-270, the state argues that this claim is not reviewable because the defendant did not file a motion or petition for a new trial after our Supreme Court released its decision in Guilbert. It also argues that the claim clearly fails to satisfy the standard for appellate review under the first prong of State v. Golding, supra, 213 Conn. 239-40, because the defendant never developed a record by attempting to offer expert testimony on eyewitness fallibility. In the alternative, the state argues that the claim is not entitled to Golding review because it is not of constitutional magnitude, it is an unpreserved evidentiary claim, and there is no record for review. We agree with the state that the record is inadequate for our review.

Although the defendant argues that it would have been futile for him to have attempted to offer expert testimony because such testimony clearly was inadmissible under our law prior to Guilbert, we conclude that such a motion, at a minimum, would have served to perfect the record for appellate review, and, without such a record, the defendant’s unpreserved claim is not reviewable on direct appeal. Cf. State v. Taft, 306 Conn. 749, 767-69, 51 A.3d 988 (2012) (because evidentiary hearing required, claim of ineffective assistance of counsel not appropriate for direct appeal because record inadequate).

The judgment is affirmed.

In this opinion the other judges concurred.

       In Ms appellate brief, the defendant sets forth Ms second claim as follows: “The Supreme Court’s reversal on the issue of expert testimony of eyewitness identifications generates potentially exculpatory evidence and requires a new trial . . . .” During oral argument before tMs court, he clarified, however, that he is seeking a conditional remand to the trial court for the holdmg of an evidentiary hearing to enable 1dm to present an expert on the issue of eyewitness identification fallibility, and that the trial court should determine whether he is entitled to a new trial after conducting the hearing.

       The defendant stipulated at trial that Lamboy was heavyset.

       The defendant does not specify what testimony should have triggered this sua sponte response from the court.
      We also note that the defendant does not challenge the in-court identifications of him made by either Shell or Lamboy.

       We disagree with the defendant’s contention that onr Supreme Court’s decision in Guilbert calls into question its decision in Marquez. We are unable to discern anything in Guilbert that would lead us to the conclusion that Marquez no longer is good law. See State v. Guilbert, supra, 306 Conn. 218; State v. Marquez, supra, 291 Conn. 122.

       To prevail under Golding, the defendant must establish all of the following conditions: “(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. ” (Footnote omitted.) State v. Golding, supra, 213 Conn. 239-40.

       The state argues that the defendant neither preserved nor properly briefed an issue regarding simultaneous rather than sequential photographs, and that we, therefore, should not consider this “passing” reference in the defendant’s appellate brief. We agree with the state that the issue was neither raised before the trial court nor properly briefed and analyzed on appeal. Accordingly, we do not consider it.

       We note that the prepared yellow record does not contain a written memorandum of decision or a signed transcript setting forth the court’s reasons for denying the motion to suppress. See Practice Book § 64-1 (a) (4). Although we frequently have declined to review claims on appeal due to an appellant’s failure to provide such information, we will review the present claim on the basis of the unsigned transcript filed in this matter. See In re Diamond J., 121 Conn. App. 392, 398-99, 996 A.2d 296, cert. denied, 297 Conn. 927, 998 A.2d 1193 (2010).

       We note that the defendant has not pursued in his appellate brief a claim regarding the failure of the police to videotape the identification procedure.

       The defendant also cites to the enactment, following his conviction, of General Statutes § 54-lp in further support of his claim. Section 54-lp (c) (2) provides: “The identification procedure shall be conducted in such a manner that the person conducting the procedure does not know which person in the photo lineup or live lineup is suspected as the perpetrator of the offense, except that, if it is not practicable to conduct a photo lineup in such a manner, the photo lineup shall be conducted by the use of a folder shuffle method, computer program or other comparable method so that the person conducting the procedure does not know which photograph the eyewitness is viewing during the procedure . . . .”
      We do not agree with the defendant’s contention that the enactment of § 54-lp elevated the best practice procedure of a double-blind array to the level of a constitutional requirement. As recently explained in C. Tait & E. Prescott, Connecticut Evidence (5th Ed. 2014) § 8.34, p. 618: “Out-of-court identifications may be inadmissible as a matter of federal or state constitutional law if they result from law enforcement procedures that violate due process because they are (1) unduly suggestive and (2) unreliable in light of the totality of the circumstances under which they were made. . . . [I]t is importantto note that in 2011, the Connecticut legislature enacted [General Statutes] § 54-lp, which mandates that law enforcement conduct certain identification procedures, such as photo lineups, under prescribed rules.
      “These rules, while not constitutionally mandated, are designed to increase the reliability of out-of-court identifications. The statute, however, is silent on whether violations by law enforcement of these provisions should affect the admissibility of an eyewitness’ identification. The authors believe that violations of this statute, except those of constitutional magnitude, should not affect the admissibility of the identification but would be relevant to the weight to be accorded the identification or require a cautionary instruction to the jury. See State v. Ledbetter, [supra, 275 Conn. 534].”

       Because we conclude that the defendant has failed to provide a record adequate for appellate review, we find it unnecessary to determine whether his claim is evidentiary, constitutional, or evidentiary but with constitutional implications. See generally State v. Crespo, 303 Conn. 589, 606, 35 A.3d 243 (2012) (“although the defendant’s unpreserved claim is evidentiary in nature, the issues implicated in this case are of constitutional magnitude”).


source: Caselaw Access Project

author: FLYNN, J.

license: Public Domain

text:
    ANNE E. WRIGHT v. MARTHA J. LEONARDI ET AL.
    (AC 35490)
    DiPentima, C. J., and Alvord and Flynn, Js.

      Submitted on briefs January 13—
    officially released April 14, 2014

      FredL. Baker, filed a brief for the appellant (plaintiff).

      Martha J. Leonardi, self-represented, filed a brief for the appellee (named defendant).

       April 14, 2014, the date that this decision was released as a slip opinion, is the operative date for all substantive and procedural purposes.

   Opinion

FLYNN, J.

The dispositive issue raised in this appeal by the plaintiff, Anne E. Wright, is whether the Superior Court properly dismissed her appeal of the Probate Court’s decree appointing Stephen B. Keogh conservator of her person and estate as moot, because Keogh resigned as conservator during the pendency of the appeal. We conclude that the plaintiffs appeal is moot but for different reasons. Accordingly, we dismiss the appeal.

The following facts and procedural history inform our analysis. On February 26, 2008, the plaintiff executed a series of estate planning documents including: a last will and testament, a general durable power of attorney, appointment of a health care representative, and a designation of conservator for future incapacity. The plaintiffs last will and testament recites that she had five children at the time that document was executed: Martha J. Leonardi, Christine Rooney, Elizabeth Wright, Laurie Wright, and William C. Wright. In her general durable power of attorney, the plaintiff named her daughter, Laurie Wright, as her attorney in fact, and gave her broad and expansive authority to manage the plaintiffs affairs. Likewise, the plaintiff executed a document naming Laurie Wright as her health care representative and future conservator should one need to be appointed.

On January 4, 2012, Martha Leonardi, a daughter of the plaintiff, filed an application for appointment of a conservator in the Probate Court. She requested that Elizabeth Wright, another daughter, be appointed conservator of the plaintiffs person and that Judith Heft & Associates be appointed conservator of the plaintiffs estate. A series of hearings and status conferences were held before the Probate Court between February and July of 2012.

Martha Leonardi sought to replace Laurie Wright as power of attorney and have an outside neutral person named as conservator of the plaintiffs person and estate because she believed that Laurie Wright was managing their mother’s financial affairs inadequately and was taking advantage of their mother for her own personal financial gain. The plaintiff, through counsel, argued against the appointment of a conservator, contending that her needs were being met adequately by Laurie Wright, and that the court should defer accordingly to the plaintiffs advanced directives.

The Probate Court issued its decree on September 28, 2012. It found that the plaintiffs personal and property needs were not being met adequately. Accordingly, that court appointed Keogh conservator of the estate and person of the plaintiff. Notice of that court’s decree was mailed to the parties on October 16, 2012. The plaintiff thereafter moved to stay the appointment of an independent conservator. On November 19, 2012, Keogh informed the Probate Court that he would resign his appointment as the plaintiffs conservator. Pursuant to General Statutes § 45a-186, the plaintiff filed her appeal from the order of the Probate Court in the Superior Court on November 27,2012. On February 21,2013, Hon. Kevin Tierney, judge trial referee, dismissed her appeal of the Probate Court’s decree appointing Keogh conservator of the plaintiffs person and estate. The court concluded that the appeal was moot because Keogh resigned as conservator during the pendency of the plaintiffs appeal, and, therefore, the court lacked subject matter jurisdiction to proceed.

During the pendency of the plaintiffs appeal to the Superior Court, Judge Fox of the Stamford Probate Court conducted a hearing on December 11, 2012, to select a new conservator. The court heard testimony and reviewed the statutory criteria for who is a “qualified person” to serve as conservator, pursuant to General Statutes § 45a-650 (h). In a decree dated December 13,2012, the Probate Court denied the plaintiffs motion for a stay of its decree appointing an independent conservator; accepted Keogh’s resignation; and appointed Cynthia W. Harmon as conservator of the person and estate of the plaintiff.

Judge Fox’s decree explained his reasoning for selecting Harmon as conservator. Harmon and the plaintiff were longtime friends and next door neighbors who had a close relationship; the two would often spend time together. Harmon had a working knowledge of the plaintiffs personal preferences and financial affairs. The Probate Court found that Harmon had the capability to manage the financial affairs and attend to the medical needs of the plaintiff. Furthermore, Harmon agreed to serve as conservator without any financial compensation. Harmon further testified that as conservator she would pursue the welfare and independence of the plaintiff and, to the extent possible, she would shield her from any internal familial conflict. Finally, Harmon testified that she presently did not have, and could not foresee, any conflicts between herself and either the plaintiff or the plaintiffs children. Based on the foregoing, Judge Fox concluded that: “Ms. Harmon meets the criteria set forth in the Connecticut General Statutes and would be an advantageous choice for [the plaintiff], particularly because of her past knowledge and relationship with [the plaintiff] and her willingness to provide her services without cost to [the plaintiffs] estate.”

Judge Fox further ordered Harmon to file an inventory of the plaintiffs assets within sixty days of the order and that no disbursements shall be made for any fiduciaries’ fees, attorney’s fees, and guardian ad litem fees without prior order of the court. Harmon further was ordered to prepare a budget for the plaintiff covering the next twelve months and to share that budget with the court and all interested parties within sixty days. Lastly, Harmon was ordered to modify the plaintiffs care plan, consistent with the recommendations of her physicians, so that the plan adequately would protect her safety and well-being.

Harmon accepted the appointment on December 21, 2012. No appeal was taken from that later judgment of the Probate Court. Consequently, she currently serves as both the conservator of the person and estate of the plaintiff.

“Probate appeals are not from the cause of action in toto, but only from some specific order, sentence, denial, or decree.” (Emphasis in original.) R. Folsom, Probate Litigation in Connecticut (2d Ed. 2014) § 7:3, pp. 7-13 through 7-14, citing Tillotson v. Tillotson, 34 Conn. 335, 362 (1867); Curtiss v. Beardsley, 15 Conn. 518, 523 (1843). The present appeal could not, however, review the action of the Probate Court by a consideration of circumstances which had arisen thereafter. Stevens Appeal from Probate, 157 Conn. 576, 582, 258 A.2d 632 (1969).

“Mootness implicates a court’s subject matter jurisdiction and, therefore, presents a question of law over which we exercise plenary review.” State v. T.D., 286 Conn. 353, 361, 944 A.2d 288 (2008). “It is a well-settled general rule that the existence of an actual controversy is an essential requisite to appellate jurisdiction; it is not the province of appellate courts to decide moot questions, disconnected from the granting of actual relief or from the determination of which no practical relief can follow. ... An actual controversy must exist not only at the time the appeal is taken, but also throughout the pendency of the appeal. . . . When . . . events have occurred that preclude an appellate court from granting any practical relief through its disposition of the merits, a case has become moot.” (Internal quotation marks omitted.) Brown v. Brown, 69 Conn. App. 209, 211-12, 794 A.2d 550 (2002). A case is moot “when the court can no longer grant any practical relief.” (Internal quotation marks omitted.) Wyatt Energy, Inc. v. Motiva Enterprises, LLC, 81 Conn. App. 659, 661, 841 A.2d 246 (2004).

In Stanley’s Appeal from Probate, 80 Conn. App. 264, 834 A.2d 773 (2003), two conservators were appointed over the estate and person of Ann Stanley. An appeal was taken, and during the pendency of that appeal, the appointments were terminated upon the conserved person’s motion. Id., 266. Subsequently, the Probate Court awarded fees to one of the conservators, to the conserved person’s attorney, and to the court appointed guardian ad litem. Id. The trial court concluded that its order terminating the conservatorships mooted the appeal of the appointment of conservators of the conserved person’s estate and person. Id. The question on appeal to this court was whether the termination of a conservatorship rendered moot the issue of whether a conservator should have been appointed in the first instance. Id. We held that it did not. Id., 268.

The subsequent appointment by the Probate Court on December 13, 2012, of Harmon as conservator of the person and estate of the plaintiff distinguishes the present case from Stanley’s Appeal from Probate because it settled the question of whether such an appointment should be made, and that it should be Harmon and not Laurie Wright. The appointment of Harmon as conservator was a subsequent event, a final judgment from which no appeal was taken that resolved the issues of whether a conservator should be appointed, and if so whom that person should be. Accordingly, no further relief could be granted to the plaintiff in this appeal.

The appeal is dismissed.

In this opinion the other judges concurred.

       We sua sponte ordered supplemental briefs from the parties addressing the following question: “Did the failure of the appellant to appeal Judge Fox’s decision of December 13, 2012, render the plaintiffs appeal of Judge Tierney’s decision of February 21, 2013 moot?”

       The application for appointment of a conservator refers to Elizabeth Wright as “Beth H. Wright.”

       In a memorandum of law addressed to the Probate Court, Keogh explained the reasons for his resignation as conservator. General Statutes § 45a-650 (h) provides that the court may not appoint a neutral, third party conservator without first taking evidence of the proposed conservator’s suitability and qualifications, and without giving interested parties an opportunity to present evidence. Keogh believed that because no hearing was held to consider his qualifications to serve as conservator, his appointment ultimately would be vacated on appeal to the Superior Court. He resigned his appointment, while expressing a willingness to serve as conservator following a proper appointment procedure.

       In its oral decision, the court expressed concern that the plaintiffs appeal may be untimely. The plaintiff appeals a matter heard by the Probate Court under General Statutes § 45a-650. General Statutes § 45a-186 (a) provides in pertinent part: “[A]ny person aggrieved by any order, denial or decree of a court of probate in any matter . . . may, not later than forty-five days after the mailing of an order, denial or decree for a matter heard under any provision of . . . [General Statutes §§] 45a-644 to 45a-677, inclusive . . . appeal therefrom to the Superior Court.” Notice of the Probate Court’s September 28, 2012 decree was mailed to the parties on October 16, 2012. Accordingly, the plaintiffs November 27, 2012 appeal to the Superior Court was timely filed within the forty-five day time limit.

       General Statutes § 45a-650 (h) provides in relevant part: “In considering whom to appoint as conservator, the court shall consider (1) the extent to which a proposed conservator has knowledge of the respondent’s or conserved person’s preferences regarding the care of his or her person or the management of his or her affairs, (2) the ability of the proposed conservator to carry out the duties, responsibilities and powers of a conservator, (3) the cost of the proposed conservatorship to the estate of the respondent or conserved person, (4) the proposed conservator’s commitment to promoting the respondent’s or conserved person’s welfare and independence, and (5) any existing or potential conflicts of interest of the proposed conservator.”

       A second rationale for our conclusion in Stanley’s Appeal from Probate, supra, 80 Conn. App. 268, that the appeal was not moot was that the appellant challenged the Probate Court’s award of fees. This rationale is not germane to the present case.

       In her supplemental brief, the plaintiff cites no legal authority to explain why her failure to appeal Judge Fox’s decision of December 13,2012, appointing Harmon as conservator, did not render moot her appeal of Judge Tier-ney’s judgment of February 21, 2013. Rather, she argues that, “It is incomprehensible to fathom why the Plaintiff-Appellant’s failure to appeal the subsequent decision of the Probate Court appointing her nominee as interim conservator, until the determination of whether there should even be a conservator in the first place, would somehow render moot the appeal of the real gravamen of the appeal.” The resignation of Keogh as conservator and the subsequent judgment appointing Harmon rendered an appeal from Keogh’s appointment moot. When the plaintiff did not appeal, that judgment became final. Thus, no further relief could be accorded to her. See Iacurci v. Wells, 108 Conn. App. 274, 276, 947 A.2d 1034 (2008).