text:
    TOWN OF REDDING v. ELFIRE, LLC, ET AL.
    (AC 21912)
    Lavery, C. X, and Mihalalcos and Bishop, Js.
    Argued September 20, 2002
    officially released January 14, 2003

      James A. Curran, for the appellant (named defendant).

      Adam J. Cohen, for the appellee (plaintiff).
   Opinion

LAVERY, C. J.

In this tax foreclosure action, the defendant Elfire, LLC, appeals from the judgment rendered by the trial court ordering foreclosure by sale. On appeal, the defendant claims that the court improperly rendered summary judgment as to liability in favor of the plaintiff town of Redding. Specifically, the defendant claims that the court improperly determined that (1) there existed no genuine issue of material fact, (2) the defendant’s special defense of invalid tax assessment was time barred and (3) Special Acts 1999, No. 99-7, § 1, validated any defect in the assessment. We agree with the defendant’s first claim and, therefore, reverse the judgment of the trial court.

The following facts and procedural history are relevant to our resolution of the defendant’s appeal. On October 26,1999, the plaintiff commenced this tax foreclosure action against the defendant for unpaid property taxes that had been assessed for the year's 1994 through 1998 on certain real property at 8 Packer Brook Road. The defendant acquired the subject property by quitclaim deed dated September 15,1995, and recorded in the land records on September 18,1995. The plaintiff sought a judgment of strict foreclosure to satisfy the tax liens that it held on the property.

In its amended complaint, dated January 3, 2000, the plaintiff indicated that the property that it sought to foreclose was the property described in “Exhibit A.” Exhibit A, which the plaintiff attached to the amended complaint, described the property in relevant part as follows: “All that certain piece or parcel of land situated in the Town of Redding . . . shown and designated as Lot No. 4 on a certain map . . . which map is filed in the Redding Town Clerk’s Office as Map No. 2009.” (Emphasis added.) The certificates of continuing tax lien filed by the plaintiff also referred to map no. 2009 in describing the liened property.

On February 7, 2000, the plaintiff filed a motion for summary judgment on the ground that it had established the prerequisites for tax foreclosure set forth in Practice Book § 10-70.* * At the hearing on the plaintiff’s motion, the defendant contended that there was a discrepancy between the description of the property being foreclosed and the property that was assessed for taxation and that plaintiffs assessment was invalid because it was assessed on an illegal map. Specifically, the defendant argued that in assessing the property, the plaintiffs tax assessor had relied on map no. 3752, which is a map of a proposed subdivision that was never approved by the plaintiffs planning commission. The description of the subject property in map no. 3752 is different from the description in map no. 2009.* **

On March 6, 2000, the court denied the plaintiffs motion for summary judgment on the ground that the defendant had raised a genuine issue of material fact with respect to the property’s description. The court denied the motion without prejudice to its renewal after the plaintiff amended its complaint to rectify the discrepancy between the maps. On April 7, 2000, the plaintiff filed its fourth amended complaint, which is identical to the January 3, 2000 amended complaint except that it changes the description of the property in the attached exhibit A. The amended exhibit A describes the property being foreclosed in relevant part as follows: “All that certain piece or parcel of land situated in the Town of Redding . . . shown and designated as Revised Lot 4 on a certain map . . . which map is on file in the Redding Town Clerk’s Office as Map 3752.” (Emphasis added.)

The plaintiff filed a “renewed” motion for summary judgment on its fourth amended complaint. At the hearing on the plaintiffs motion, the defendant again contended that the plaintiffs assessment was invalid because it was done on an illegal map. The defendant also argued that the fourth amended complaint failed to rectify the factual discrepancy concerning the description of the property and, in fact, made matters worse by purporting to foreclose on property the description of which is at variance with the description in the certificates of tax lien. In response, the plaintiff argued that the defendant’s challenges to the validity of the assessment were time barred pursuant to General Statutes §§ 12-111 and 12-119, and that Special Acts 1999, No. 99-7, § 1, validated any alleged defect in the assessment. The plaintiff also argued that the defendant’s tax liability was not affected by the discrepancy between the maps with respect to the property’s description.

On June 12, 2000, the court granted the plaintiffs motion for summary judgment. In its oral decision, the court stated that “there is no genuine issue as to any material fact in light of the filing of the amended complaint.” On February 26,2001, the court ordered foreclosure by sale and set the sale date of June 16, 2001. On May 16, 2001, the defendant filed the present appeal.

I

The defendant first claims that the court improperly granted the plaintiffs motion for summary judgment because there exists a genuine issue of material fact as to the proper description of the property that is the subject of the foreclosure. We agree.

“Our standard of review of a court’s decision to grant a motion for summary judgment is well established. Practice Book [§ 17-49] provides that summary judgment shall be rendered forthwith if the pleadings, affidavits and any other proof submitted show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. ... In deciding a motion for summary judgment, the trial court must view the evidence in the light most favorable to the nonmoving party. . . .

“On appeal, [w]e must decide whether the trial court erred in determining that there was no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. . . . Because the court rendered judgment for the [plaintiff] as a matter of law, our review is plenary and we must decide whether [the trial court’s] conclusions are legally and logically correct and find support in the facts that appear in the record. ... On appeal, however, the burden is on the opposing party to demonstrate that the trial court’s decision to grant the movant’s summary judgment motion was clearly erroneous.” (Citation omitted; internal quotation marks omitted.) Mulla v. Maguire, 65 Conn. App. 525, 530-31, 783 A.2d 93, cert. denied, 258 Conn. 934, 785 A.2d 229 (2001).

“To defeat a motion for summary judgment, a nonmovant must recite specific facts that contradict those stated in the movant’s documents to show there exists a genuine issue of fact for trial.” (Internal quotation marks omitted.) Forte v. Citicorp Mortgage, Inc., 66 Conn. App. 475, 485, 784 A.2d 1024 (2001). In the present case, the defendant submitted considerable evidence that supports its contention that the description of the property being foreclosed, as described in the fourth amended complaint, is at variance with that of the property that actually was liened by the plaintiff, as described in the certificates of tax hen. Moreover, the defendant offered evidence that the fourth amended complaint purports to foreclose on the property as it is described in an illegal map that never was approved by the defendant’s planning commission.

The evidence submitted by the defendant in opposition to the plaintiffs motion for summary judgment provides an evidentiary foundation that demonstrates that a genuine issue of material fact exists as to the proper description of the property that is the subject of the foreclosure. Although it is undisputed that the defendant’s tax liability is not affected by the discrepancy between the maps with respect to the property’s description, this court declines to affirm the foreclosure judgment because it is based on what appears to be an incorrect description of the subject property in an illegal map. Accordingly, we conclude that the court improperly granted the plaintiffs motion for summary judgment.

II

The defendant also claims that the court improperly determined that its special defense of invalid tax assessment was time barred. We disagree.

It is well settled that if the defendant wanted to challenge the validity of the assessments, it was required to follow the appropriate statutory procedures, either by (1) timely appealing from the assessments to the board of assessment appeals pursuant to General Statutes §§ 12-111 and 12-112, and from there by timely appealing to the court pursuant to General Statutes § 12-117a, or (2) timely bringing a direct action pursuant to § 12-119. See Danbury v. Dana Investment Corp., 249 Conn. 1, 12-14, 730 A.2d 1128 (1999).

“[A] taxpayer who has failed to utilize the available statutory remedies [may not] assert, in an action to collect a tax . . . that the tax has not been properly assessed. . . . The rationale for this rule is the need on the part of the government for fiscal certainty. A municipality, like any governmental entity, needs to know with reasonable certainty what its tax base is for each fiscal year, so that it responsibly can prepare a budget for that year. . . . Public policy requires, therefore, that taxes that have not been challenged timely cannot be the subject of perpetual litigation, at any time, to suit the convenience of the taxpayer. ... A taxpayer who has not sought redress in an appropriate manner is foreclosed from continuing litigation outside [those] statutes.” (Citations omitted; internal quotation marks omitted.) Id., 14-15.

In the present case, the tax assessments at issue were assessed for the years 1994 through 1998. The defendant concedes that it has not challenged the validity of those assessments pursuant to appropriate statutoiy procedures previously stated, and the statutoiy time limits for doing so have long since expired. Accordingly, the court properly determined that the defendant’s special defense of invalid tax assessment was time barred.

The judgment is reversed and the case is remanded for further proceedings consistent with this opinion.

In this opinion the other judges concurred.

       The plaintiff also named Walter G. Spilsbury, doing business as Victoria Investment Fund, as a defendant in this action. Spilsbury, however, was defaulted for failure to appear and is not involved in this appeal. In this opinion, therefore, we refer to Elfire, LLC, as the defendant.

       Although our disposition of the defendant’s first claim disposes of this appeal, we will address its second claim because it is likely to arise on remand. Further, on the basis of our resolution of the second claim, we need not address the defendant’s third claim.

       Practice Book§ 10-70 provides: “(a)In any action to foreclose a municipal tax or assessment lien the plaintiff need only allege and prove: (1) The ownership of the liened premises on the date when the same went into the tax list, or when said assessment was made; (2) that thereafter a tax in the amount specified in the list, or such assessment in the amount made, was duly and properly assessed upon the property and became due and payable; (3) (to be used only in cases where the lien has been continued by certificate) that thereafter a certificate of lien for the amount thereof was duly and properly filed and recorded in the land records of the said town on the date stated; (4) that no part of the same has been paid; and (5) other encumbrances as required by the preceding section.
      “(b) When the lien has been continued by certificate, the production in court of the certificate of lien, or a certified copy thereof, shall be prima facie evidence that all requirements of law for the assessment and collection of the tax or assessment secured by it, and for the malting and filing of the certificate, have been duly and properly complied with. Any claimed informality, irregularity or invalidity in the assessment or attempted collection of the tax, or in the lien filed, shall be matter of affirmative defense to be alleged and proved by the defendant.”

       Map no. 3752 revised the subject property’s lot line, increasing slightly the property’s total acreage. The additional property came from an adjoining parcel that is now owned by the defendant.

       In support of its objection to the plaintiffs motion for summary judgment, the defendant submitted, inter alia, an updated survey map certified to A-2 accuracy (map no. 4002), an affidavit of a licensed surveyor, map nos. 2009 and 3752, and the certificates of continuing tax lien.

       If we were to affirm the judgment, we would be validating an illegal map and permitting an incorrect description of the subject property to be placed in the land records. That likely would mislead title searchers and create title problems. Despite the plaintiffs urging, we decline to compromise the sanctity of title by clouding the marketable title of the property in that manner. See Second National Bank of New Haven v. Dyer, 121 Conn. 263, 268, 184 A. 386 (1936) (“policy of this State [is] that purchasers of interests in real estate are entitled to rely upon the land records as disclosing the true title”); Hodge v. Hodge, 178 Conn. 308, 322, 422 A.2d 280 (1979) (“[a] state has ‘strong interests in assuring the marketability of property within its borders’ ”).

       As previously stated, we address the defendant’s claim because the issue is likely to arise on remand. See footnote 2.

       General Statutes § 12-111 provides in relevant part: “Any person . . . claiming to be aggrieved by the doings of the assessors of such town may appeal therefrom to the board of assessment appeals. Such appeal shall be filed, in writing, on or before February twentieth. . . .”
      General Statutes § 12-112 provides in relevant part: “No appeal from the doings of the assessors in any town shall be heard or entertained by the board of assessment appeals . . . unless written appeal is made on or before February twentieth in accordance with the provisions of section 12-111.”

       General Statutes § 12-117a provides in relevant part: “Any person . . . claiming to be aggrieved by the action of the board of tax review or the board of assessment appeals, as the case may be, in any town or city may, within two months from the date of the mailing of notice of such action, make application, in the nature of an appeal therefrom, with respect to the assessment list for the assessment year commencing October 1, 1989, October 1, 1990, October 1, 1991, October 1,1992, October 1,1993, October 1, 1994, or October 1, 1995, and with respect to the assessment list for assessment years thereafter, to the superior court for the judicial district in which such town or city is situated, which shall be accompanied by a citation to such town or city to appear before said court. . . .”

       General Statutes § 12-119 provides in relevant part: “When it is claimed that a tax has been laid on property not taxable in the town or city in whose tax list such property was set, or that a tax laid on property was computed on an assessment which, under all the circumstances, was manifestly excessive and could not have been arrived at except by disregarding the provisions of the statutes for determining the valuation of such property, the owner thereof . . . prior to the payment of such tax, may, in addition to the other remedies provided by law, make application for relief to the superior court for the judicial district in which such town or ci1y is situated. Such application may be made within one year from the date as of which the property was last evaluated for purposes of taxation and shall be served and returned in the same manner as is required in the case of a summons in a civil action, and the pendency of such application shall not suspend action upon the tax against the applicant. . . .”

       As previously stated, on the basis of our resolution of the defendant’s first and second claims, we need not address the defendant’s third claim. See footnote 2.


source: Caselaw Access Project

author: BISHOP, J.

license: Public Domain

text:
    TODD BOLMER v. CHRISTOPHER MCKULSKY ET AL.
    (AC 22435)
    Lavery, C. X, and Bishop and Dupont, Js.

      Argued October 31, 2002
    officially released January 14, 2003

      Richard L. Newman, for the appellant (plaintiff).

      Lawrence L. Connelli, for the appellees (named defendant et al.).

      Patty G. Swan, with whom, on the brief, were Jon S. Berk and Michael C. Conroy, for the appellee (defendant Travelers Property and Casualty Company).
   Opinion

BISHOP, J.

The plaintiff, Todd Bolmer, appeals from the judgment of the trial court, rendered after the jury’s verdict for the defendants, Christopher McKulsky, John McKulsky and Aetna Casualty and Surety Company, now Travelers Property and Casualty Company (Travelers), on a claim of negligence arising out of an automobile accident. The plaintiff claims that the court improperly (1) directed a verdict for the defendant on the plaintiffs claims of statutory and common-law recklessness, (2) excluded a portion of the deposition testimony of Abby Uszakiewicz, a passenger in the defendant’s vehicle, (3) accepted a jury verdict form that was unintelligible and confusing, and (4) denied the plaintiffs motion to set aside the verdict. The plaintiff also claims that the jury could not have reasonably and legally found that the defendant was not negligent. We affirm the judgment of the trial court.

Count one of the complaint alleged negligence on the part of the defendant. Count two alleged that John McKulsky was the owner of the defendant’s vehicle and, hence, liable under the family car provision of General Statutes § 52-182. Counts three and four alleged recklessness on the part of the defendant, statutory pursuant to General Statutes § 14-222 and under a common-law theory. Count five alleged liability on the part of Travelers as the provider of the defendant’s underin-sured motorists benefits.

The jury reasonably could have found the following facts. On June 18, 1997, the plaintiff was driving north along Route 188 in Oxford while the defendant, accompanied by three others, was driving south. At the location of the incident, Route 188 takes a very sharp turn. As the defendant approached the curve, there was a sign indicating that the speed limit was twenty miles per hour and an arrow showing the severity of the curve. Prior to the incident, rain had begun to fall lightly. The plaintiffs and the defendant’s vehicles collided while both vehicles were in the curved portion of the highway.

At the close of the plaintiffs case, the court directed a verdict for the defendant on the third and fourth counts of the complaint, i.e., the statutory and common-law recklessness claims. The jury returned a verdict for the defendant on the negligence count of the complaint, and for the other defendants on counts two and five. This appeal followed. Additional facts will be set forth as necessary.

I

The plaintiffs first claim is that the court improperly directed a verdict for the defendant on the third and fourth counts of the complaint, i.e., the common-law and statutory recklessness claims. We are not persuaded.

“A directed verdict is justified if, on the evidence the jury reasonably and legally could not have reached any other conclusion. ... In reviewing the trial court’s decision to direct a verdict in favor of a defendant we must consider the evidence in the light most favorable to the plaintiff. . . . While it is the jury’s right to draw logical deductions and make reasonable inferences from the facts proven ... it may not resort to mere conjecture and speculation.” (Citations omitted; internal quotation marks omitted.) Gagne v. Vaccaro, 255 Conn. 390, 400, 766 A.2d 416 (2001).

The only evidence of causation the plaintiff offered during his case-in-chief was the testimony of Trooper Edward Anuszewski of the state police, who testified that the defendant, after the accident, informed him that he had been traveling on Route 188 at about thirty-five miles per hour, that his vehicle drifted over the center line of the road and collided with the plaintiffs vehicle. Anuszewski also testified that the road, at the site of the collision, took a sharp turn and that there was, on the defendant’s side of the road, a yellow sign with an arrow indicating the extent of the curve along with a twenty mile per hour posted speed limit. The plaintiff did not testily as to causation. He did not call the defendant to testify concerning the accident, nor did he offer any accident reconstruction testimony. Following the completion of the plaintiffs evidence, the court directed a verdict for the defendant on the recklessness claims.

To establish recklessness by the defendant, “the plaintiff must prove, on the part of the defendants, the existence of a state of consciousness with reference to the consequences of one’s acts .... [Such conduct] is more than negligence, more than gross negligence. . . . [I]n order to infer it, there must be something more than a failure to exercise a reasonable degree of watchfulness to avoid danger to others or to take reasonable precautions to avoid injury to them. ... It is such conduct as indicates a reckless disregard of the just rights or safety of others or of the consequences of the action. ... [In sum, such] conduct tends to take on the aspect of highly unreasonable conduct, involving an extreme departure from ordinary care, in a situation where a high degree of danger is apparent.” (Internal quotation marks omitted.) Shay v. Rossi, 253 Conn. 134, 181, 749 A.2d 1147 (2000).

After considering the evidence in the light most favorable to the plaintiff, we agree that there was insufficient evidence for a reasonable jury to conclude that the defendant acted recklessly. The evidence presented by the plaintiff did not tend to show that the defendant took “reckless disregard of the just rights or safety of others or of the consequences of [his] action”; (internal quotation marks omitted) id.; or that the defendant had engaged in “highly unreasonable conduct, involving an extreme departure from ordinary care, in a situation where a high degree of danger is apparent.” (Internal quotation marks omitted.) Id. Therefore, the court properly ordered directed a verdict in the defendant’s favor on the recklessness claims.

II

The plaintiffs next claim is that the court improperly excluded from evidence a portion of the deposition testimony of Uszakiewicz pertaining to her receipt of funds from a representative of the defendant. We disagree.

“Trial courts have broad discretion in determining the relevancy and admissibility of evidence. ... In order to establish reversible error, the [plaintiff] must prove both an abuse of discretion and a harm that resulted from such abuse.” (Citations omitted.) Bovat v. Waterbury, 258 Conn. 574, 594, 783 A.2d 1001 (2001). We find no abuse of discretion in this case.

Uszakiewicz was a passenger in the defendant’s vehicle at the time of the accident and, according to her deposition, witnessed the plaintiffs vehicle partially over the center line ol! the road moments before the collision. She was subpoenaed to testify at trial, but explained that she could not attend because her infant child was ill. Counsel for all parties agreed, as did the court, that her deposition, less any objectionable portions, would be used in substitution for her oral testimony.

The defendant objected to the introduction of a portion of Uszakiewicz’ deposition testimony regarding the receipt of funds from the defendant’s insurance carrier as being overly prejudicial. The plaintiff argued that the acceptance of funds from the defendant’s insurance carrier was inconsistent with her testimony that she believed it was the plaintiffs vehicle that was partially in the defendant’s lane. The court agreed with the defendant and excluded the portion of the deposition testimony regarding Uszakiewicz’ receipt of funds.

The plaintiff claims that the proffered testimony was admissible to impeach or to weaken the import of Usza-kiewicz’ testimony. He argues that the acceptance of funds from the defendant’s insurance carrier by Usza-kiewicz served to refute the implication from her testimony that the collision was due to the plaintiffs acts.

We agree with the defendant that the proffered testimony would have been confusing to a jury and was not inconsistent with the balance of her testimony. At her deposition, Uszakiewicz testified that she received funds from the defendant’s insurance carrier, but she was unsure on what basis it had been paid to her because her mother had handled the matter. It is unclear, therefore, whether Uszakiewicz’ receipt of funds was in response to a third party claim made to the defendant’s insurance carrier or was simply the result of a medical payments claim. Also, even if her receipt of funds could have been construed as the fruits of such a claim, her testimony was not inconsistent with having sought a settlement with the defendant. In her deposition, Uszakiewicz indicated not only that she witnessed the plaintiffs vehicle over the center line of the road, but also that she had no knowledge of where the defendant’s vehicle was in relation to the center line. In sum, she did not testify that she believed it was the plaintiff who was at fault for the accident. Under these circumstances, the introduction of the fact that Uszakiewicz had received sums from a representative of the defendant would not have contradicted her testimony and would have been unduly prejudicial to the defendant where the plaintiff made no offer of proof and did not offer any evidence that she, in fact, had made a claim premised on the defendant’s liability. We conclude that the court did not abuse its discretion in excluding that portion of Uszakiewicz’ deposition testimony.

Ill

The plaintiffs next claim is that the jury could not reasonably and legally have found that the defendant was not negligent in light of the weight of the testimony and the uncontroverted physical evidence. We disagree.

The plaintiff claims that the overwhelming weight of the evidence supports his claim that the collision was due to the defendant’s negligence. The plaintiff directs our attention to evidence that there was a sign marking the speed limit as twenty miles per hour, a sign showing the sharpness of the curve, and Anuszewski’s testimony that the defendant stated that he had been traveling at thirty-five miles per hour and that his vehicle drifted into the plaintiffs lane. At trial, however, the defendant testified that Anuszewski’s report was inaccurate and that it was the plaintiff who was speeding around the curve and had drifted into the defendant’s lane. The plaintiff disparages the defendant’s trial testimony as inconsistent with the statement to Anuszewski at the accident scene. Additionally, the plaintiff contends that Uszakiewicz’ testimony that the plaintiffs vehicle was over the center line was of limited reliability because she was unable to state in which lane the defendant’s vehicle was located.

“A party challenging the validity of the jury’s verdict on grounds that there was insufficient evidence to support such a result carries a difficult burden. In reviewing the soundness of a juiy’s verdict, we construe the evidence in the light most favorable to sustaining the verdict. . . . We do not ask whether we would have reached the same result. [Rjather, we must determine . . . whether the totality of the evidence, including reasonable inferences therefrom, supports the jury’s verdict .... If the jury could reasonably have reached its conclusion, the verdict must stand.” (Citations omitted; internal quotation marks omitted.) Pestey v. Cushman, 259 Conn. 345, 369-70, 788 A.2d 496 (2002).

The testimony of the defendant and Uszakiewicz was sufficient to contradict the plaintiffs claim that the defendant was at fault. We conclude, therefore, that there was a reasonable evidentiary basis for the jury’s conclusion that the defendant was not negligent.

IV

The plaintiffs next claim is that the court improperly accepted the jury verdict based on jury verdict forms that were unintelligible and confusing, and were filled out inconsistently. We disagree.

The court submitted a plaintiff’s verdict form and defendant’s verdict form to the jury. The plaintiff objected to the plaintiffs verdict form on the grounds that the order of the questions was confusing and misleading. He claims that it was misleading to ask the jury to consider whether the plaintiff was negligent before considering whether the defendant was negligent. Also, the court charged the jury that it would not need to reach the plaintiffs verdict form at all if it found that the plaintiff was more than 50 percent negligent; the jury only would need to sign the defendant’s verdict form. The plaintiff argues that because the jury partially completed the plaintiffs verdict form, that implies that the jury found that the defendant was negligent because the jury is presumed to follow the charge it receives from the court.

“[0]ur cases recognize that a trial court has broad discretion to regulate the manner in which interrogatories are presented to the jury, as well as their form and content. . . . Interrogatories should generally be few in number, and never so numerous as to confuse or perplex the jury in rendering their verdict. They should be so clear and concise as to be readily understood and answered by the jury. Each question should call for a finding of but a single fact. When practicable each question should be so framed as to call for a categorical answer. Each question should ask for the finding of a fact and never for a conclusion of law. No question should ask for the finding of a purely evidential fact nor an uncontroverted fact. Although not wholly covering, nor necessarily controlling, the determination of any issue framed, the fact sought to be elicited must be pertinent to some issue, and one which may be of material weight in deciding it. No interrogatory should be permitted, the response to which cannot serve either to limit or explain a general verdict, or aid in proceedings for a subsequent review of the verdict or judgment which may be rendered.” (Citations omitted; internal quotation marks omitted.) Hammer v. Mount Sinai Hospital, 25 Conn. App. 702, 708-709, 596 A.2d 1318, cert. denied, 220 Conn. 933, 599 A.2d 384 (1991). We therefore review the matter to determine if the court abused its discretion in employing the verdict forms in question.

After examining the plaintiffs verdict form, we conclude that the order of the questions was neither misleading nor confusing. The form asks, quite clearly, for the findings of fact the court sought to elicit from the jury. The fact that the form asked whether the plaintiff was negligent before asking whether the defendant was negligent was of no legal consequence. Aso, the jury did not, as the plaintiff contends, inconsistently complete the forms. The jury, on the plaintiffs verdict form, indicated that it found the plaintiff to be 100 percent negligent, and the foreperson signed the defendant’s verdict form. The jury’s finding that the plaintiff was wholly at fault is entirely consistent with a verdict for the defendant. On that basis, we cannot conclude that the court abused in discretion in utilizing the jury verdict forms in question because the language they contained was neither unintelligible nor confusing. Finally, the manner in which the jury forms were completed does not reflect any confusion on the jury’s part.

V

The plaintiffs final claim is that the court improperly denied his motion to set aside the verdict on the basis of his four previous claims. We disagree.

“[T]he proper appellate standard of review when considering the action of a trial court granting or denying a motion to set aside a verdict and motion for a new trial . . . [is] the abuse of discretion standard. ... In determining whether there has been an abuse of discretion, every reasonable presumption should be given in favor of the correctness of the court’s ruling. . . . Reversal is required only where an abuse of discretion is manifest or where injustice appears to have been done. . . . We do not . . . determine whether a conclusion different from the one reached could have been reached. ... A verdict must stand if it is one that a jury reasonably could have returned and the trial court has accepted.” (Citation omitted; internal quotation marks omitted.) White v. Westport, 72 Conn. App. 169, 176-77, 804 A.2d 1011 (2002).

Our resolution of the plaintiffs preceding claims is determinative of this claim. We have concluded that the jury reasonably could have found in favor of the defendant on the negligence claim and that the court did not improperly direct a verdict for the defendant on the recklessness claims. We also have found that the court did not improperly exclude the testimony of Uszakiewicz or submit misleading verdict forms to the jury. The evidence fairly before the jury was adequate to sustain its verdict. We therefore conclude that the court’s denial of the plaintiffs motion to set aside the verdict was proper.

The judgment is affirmed.

In this opinion the other judges concurred.

       Christopher McKulsky was the driver of one of the vehicles involved in the automobile collision that gave rise to this action. Also named as defendants are John McKulsky, Christopher McKulsky’s father and the owner of the car Christopher McKulsky was driving, and Travelers. For convenience, only Christopher McKulsky will be referred to as the defendant.

       The plaintiffs claims will be discussed out of turn.

       Travelers has asked this court to sever the claim against it from the claims against the defendants John McKulsky and Christopher McKulsky in the event that we order a new trial. Because we find that no new trial is warranted, we need not reach that matter.

       The portion of the deposition to which the defendant objected is as follows:
      “Q. Did you receive any compensation from any party involved in the collision?
      “A. What’s that; money?
      •‘Q. Did anybody give you money?
      “A. Yeah, I got $6000.
      “Q. From who?
      “A. An insurance company.
      “Q. Which one?
      “A. I think [the defendant’s]; it’s USAA or something like that, or USSA.
      “Q. Did you negotiate that settlement by yourself or did you have representation?
      “A. They offered a settlement. My mom handled that; I don’t know. They offered us a settlement, and the next thing I know, I have $6000.”

       Specifically, the plaintiffs jury form stated and was answered in relevant part:
      “1. As to the plaintiff:
      “A. NON-ECONOMIC DAMAGES:
      “(Compensation for all non-pecuniary losses, including, but not limited to, physical pain and suffering, mental and emotional pain and suffering, permanent injury, disability or impairment, and the ability to participate in and epjoy life’s activities.)
      $ 0.00
      “2. Total Damages (same as 1(A)) $ 0.00
      “3. Was the plaintiff, Todd Bolmer, negligent? [Yes]
      “4. If your answer to Question #3 is ‘YES,’ what percentage of negligence is attributable to Todd Bolmer? 100%
      “(If your answer to Question #4 is greater than 50 percent, sign the Defendants’ Verdict form, and do not complete any portion of this form. If your answer is 50 percent, or less than 50 percent, go on to Question #5.)
      “5. Was the defendant, Christopher McKulsky, negligent? [Unanswered]
      “(If your answer is ‘NO,’ sign the Defendant’s Verdict form. If your answer is ‘YES,’ go on to Question #6.)
      “6. What percentage of negligence is attributable to the defendant, Christopher McKulsky? [Unanswered] . . . .”


author: SCHALLER, J.

text:
    STATE OF CONNECTICUT v. CARLOS ASHE
    (AC 22784)
    Schaller, West and Dupont, Js.
    Argued September 18, 2002
    officially released January 14, 2003

      William B. Westcott, special public defender, for the appellant (defendant).

      Robert J. Scheinblum, assistant state’s attorney, with whom, on the brief, were Michael Dearington, state’s attorney, and James G. Clark, senior assistant state’s attorney, for the appellee (state).
   Opinion

SCHALLER, J.

The defendant, Carlos Ashe, appeals from the judgment of conviction, rendered after a jury trial, of murder in violation of General Statutes §§ 53a-54a (a) and 53a-8 (a), 3conspiracy to commit murder in violation of General Statutes §§ 53a-54a (a) and 53a-48 (a), and two counts of assault in the first degree in violation of General Statutes §§ 53a-59 (a) (5) ***and 53a-8 (a). The defendant claims (1) that the evidence was insufficient to sustain his conviction of murder and assault in the first degree, and (2) that the prosecutor committed misconduct in closing argument. We affirm the judgment of the trial court.

The jury reasonably could have found the following facts. On December 14, 1996, at approximately 2 a.m., Sean Adams, Darcus Henry, Johnny Johnson and the defendant, all of whom were members of a gang known as the Island Brothers, went to a housing project (project) in New Haven. All four were armed, and as they entered a courtyard in the project, they fired on the three victims, Andre Clark, Marvin Ogman and Jason Smith. Smith died, and Clark and Ogman were seriously injured as a result of the attack.

Adams, Henry, Johnson and the defendant were arrested and, in a four count substitute information, charged with murder, conspiracy to commit murder and two counts of assault in the first degree. The four cases were consolidated and tried together. With regard to the defendant, the jury was unable to reach a unanimous verdict, and the court declared a mistrial. In a second trial, the defendant was found guilty on all four counts, and the court imposed a total effective sentence of ninety years imprisonment. This appeal followed. Additional facts will be set forth as necessary to resolve the defendant’s claims.

I

The defendant first claims that the evidence at trial was insufficient to sustain his conviction of murder and assault in the first degree. Specifically, the defendant argues that the evidence was insufficient to support his conviction under a theory of accessorial liability because the state failed to present evidence that he aided another person to commit murder and assault in the first degree. We disagree.

As a preliminary matter, we note that the defendant’s claim of evidentiary insufficiency is reviewable even if it may not have been properly preserved at trial. “Unpreserved sufficiency claims are reviewable on appeal because such claims implicate a defendant’s federal constitutional right not to be convicted of a crime upon insufficient proof. . . . Our Supreme Court has stated that Jackson v. Virginia, [443 U.S. 307, 99 S. Ct. 2781, 61 L. Ed. 2d 560 (1979)], compels the conclusion that any defendant found guilty on the basis of insufficient evidence has been deprived of a constitutional right, and would therefore necessarily meet the four prongs of [State v. Golding, 213 Conn. 233, 239-40, 567 A.2d 823 (1989)]. . . . Thus . . . there is no practical reason for engaging in a Golding analysis of a claim based on the sufficiency of the evidence . . . .” (Citation omitted; internal quotation marks omitted.) State v. Estrada, 71 Conn. App. 344, 349-50, 802 A.2d 873, cert. denied, 261 Conn. 934, 806 A.2d 1068 (2002). We will review the defendant’s challenge to the sufficiency of the evidence as we do any properly preserved claim.

The following additional facts are relevant to the defendant’s claim. At trial, the state called Ogman, who testified that as he and the other victims stood in the courtyard at the project around 2 a.m. on December 14,1996, four individuals emerged from a nearby tunnel. Ogman stated that he recognized them as Adams, Henry, Johnson and the defendant, and that they all were firing guns. Clark also testified that he saw the defendant carrying a gun.

The state also called Richard Pelletier, a detective with the New Haven police department who was assigned to the state police gang unit at the time of the shooting. Pelletier testified as follows. Adams, Henry, Johnson and the defendant all were members of the Island Brothers gang. In late 1996, the Island Brothers were upset about the recent killing of one of their members, sixteen year old Tyrese Jenkins. Charles Green and Duane Clark, who were members of a loosely knit rival group known as the Ghetto or the Ghetto Brothers, had been arrested in connection with Jenkins’ death. The Island Brothers vowed to avenge Jenkins’ death by killing sixteen of the Ghetto Brothers. The victims in the present case, Andre Clark, Ogman and Smith, all were associated with the Ghetto Brothers. Pelletier also testified that after the December 14, 1996 shooting, he was sent to locate Adams, Johnson and the defendant. He found them together at Johnson’s house at approximately 11 a.m.

Edmond Comfort, a photographer, testified that he was working at the Melebus Club, a New Haven nightclub, on the night of December 13 and in the early morning of December 14, 1996. He identified several photographs that he took that night, and the photographs were admitted into evidence. Comfort identified three of the individuals in the photographs as Adams, Henry and the defendant. Raymond Johannes, an officer with the New Haven police department, testified that the Melebus Club is in close proximity to the project where the victims were shot.

“The standard of review we apply to a claim of insufficient evidence is well established. In reviewing the sufficiency of the evidence to support a criminal conviction we apply a two-part test. First, we construe the evidence in the light most favorable to sustaining the verdict. Second, we determine whether upon the facts so construed and the inferences reasonably drawn therefrom the [finder of fact] reasonably could have concluded that the cumulative force of the evidence established guilt beyond a reasonable doubt.” (Internal quotation marks omitted.) State v. Meehan, 260 Conn. 372, 377-78, 796 A.2d 1191 (2002).

General Statutes § 53a-8 (a) provides that “[a] person, acting with the mental state required for commission of an offense, who solicits, requests, commands, importunes or intentionally aids another person to engage in conduct which constitutes an offense shall be criminally liable for such conduct and may be prosecuted and punished as if he were the principal offender.” “[T]here is no such crime as being an accessory .... The accessory statute merely provides alternate means by which a substantive crime may be committed. . . . This state . . . long ago adopted the rule that there is no practical significance in being labeled an accessory or a principal for the purpose of determining criminal responsibility. . . . The modem approach is to abandon completely the old common law terminology and simply provide that a person is legally accountable for the conduct of another when he is an accomplice of the other person in the commission of the crime. . . . [The] labels [of accessory and principal] are hollow . . . .” (Citations omitted; internal quotation marks omitted.) State v. Solek, 242 Conn. 409, 421-22, 699 A.2d 931 (1997).

“Since under our law both principals and accessories are treated as principals ... if the evidence, taken in the light most favorable to sustaining the verdict, establishes that [the defendant] committed the [crime] charged or did some act which forms ... a part thereof, or directly or indirectly counseled or procured any persons to commit the offenses or do any act forming a part thereof, then the convictions must stand. ... To prove guilt as a principal, the state must prove each element of the offense charged beyond a reasonable doubt. To be guilty as an accessory one must share the criminal intent and community of unlawful purpose with the perpetrator of the crime and one must knowingly and wilfully assist the perpetrator in the acts which prepare for, facilitate or consummate it.” (Internal quotation marks omitted.) State v. Diaz, 237 Conn. 518, 543, 679 A.2d 902 (1996). “Whether a person who is present at the commission of a crime aids or abets its commission depends on the circumstances surrounding his presence there and his conduct while there.” (Internal quotation marks omitted.) State v. Delgado, 247 Conn. 616, 622, 725 A.2d 306 (1999).

The defendant does not dispute that the evidence is sufficient to support a finding that he and his fellow gang members traveled to the project on December 14, 1996, with the intention of killing members of the Ghetto Brothers and that upon arrival they shot at the victims, killing Smith and injuring Andre Clark and Ogman. The defendant argues, however, that this evidence is insufficient to establish that the defendant “intentionally [aided] another person to engage in conduct which constitutes an offense” under § 53a-8 (a). Specifically, the defendant argues that to obtain a conviction under § 53a-8 (a), the state must prove more than that he acted in concert with another pursuant to a common design. According to the defendant, the state must prove that but for his conduct, the principal offender would not have succeeded in completing the crime.

This is not a case of first impression. Contrary to the defendant’s assertion, previous cases with facts similar to those presented here indicate that a showing of concert of action between a defendant and another person can provide a sufficient basis for accessorial liability. For example, the defendant in State v. Delgado, supra, 247 Corrn. 619-20, fired thirteen shots at a member of a rival gang. While the defendant was shooting, one of his fellow gang members, known by the nickname “Cheesecake,” also began shooting at the victim, and the two of them continued to shoot as the victim fled. Id. The defendant and Cheesecake left the scene separately, and the victim later died from gunshot wounds. Id., 620. The defendant thereafter made a statement to police in which he indicated that he was aware that he and Cheesecake were shooting at the same time. Id., 622. The court concluded: “Although the evidence did not reveal whether it was the defendant or Cheesecake who had fired the shot that fatally injured the victim, the jury reasonably could have determined that there was sufficient concert of action between the defendant and Cheesecake to support the accessory allegation.” (Emphasis added.) Id., 623.

Similarly, in State v. Diaz, supra, 237 Conn. 522-23, the defendant and four companions fired approximately thirty-five to forty gunshots at a passing vehicle, killing one of the occupants. The defendant claimed that the evidence was insufficient to support his conviction of murder under an accessory theory of liability. Id., 541. The Supreme Court disagreed, stating: “Although the evidence did not clearly demonstrate which of the perpetrators actually fired the shot that fatally injured [the victim], the evidence did establish that the defendant and his companions together prepared and readied themselves for the ambush by retrieving their weapons and hiding to avoid notice. As the [vehicle] approached, the men took aim at it and its occupants, firing repeatedly into the vehicle with the intent to kill one or more of the passengers. If the state’s version of the facts is credited, the evidence shows sufficient concert of action between the defendant and his companion[s] to support . . . the accessory allegation .... Accordingly, the defendant’s claims of evidentiary insufficiency are without merit.” (Citation omitted; emphasis added; internal quotation marks omitted.) Id., 544; see also State v. Orta, 66 Conn. App. 783, 790-91, 786 A.2d 504 (2001), cert. denied, 259 Conn. 907, 789 A.2d 997 (2002); State v. Bond, 49 Conn. App. 183, 197-98, 713 A.2d 906, cert. denied, 247 Conn. 915, 722 A.2d 808 (1998).

In the present case, the evidence adduced at trial, construed in the light most favorable to sustaining the verdict, reasonably could have supported the following findings: That the defendant and his fellow gang members had a shared motive for shooting the victims, namely, revenge for the death of Jenkins; that they met and traveled together to the project in the early morning of December 14, 1996, with the intent to kill members of the Ghetto Brothers; that upon reaching the project, the defendant and his companions all fired their weapons at the victims; and that three of the assailants, including the defendant, were found together several hours after the shooting. We conclude that those facts, like those in the cases previously discussed, demonstrate sufficient concert of action to support a conviction under the accessory theory of liability. The jury reasonably could have found beyond a reasonable doubt that the defendant committed the crimes of murder and assault in the first degree. The defendant’s claim of evidentiary insufficiency therefore is without merit.

II

We next address the defendant’s claim that the prosecutor committed misconduct during rebuttal argument. The defendant argues that the prosecutor violated his right to due process under the federal and state constitutions by arguing during rebuttal that the defendant personally may have shot Smith in the head and that the defendant used a revolver. The defendant argues in the alternative that should we find no constitutional violation, we should invoke our supervisory authority to reverse the judgment of conviction. We are not persuaded.

The following additional facts underlie the defendant’s claim of prosecutorial misconduct. At trial, Ogman testified as follows. During the attack, Ogman was shot in the left leg, causing him to fall to the pavement. As he lay on the ground, he looked up and saw Henry and Johnson standing over him. At the same time, he heard more shooting coming from the direction of the location of Smith.

The jury also heard the following testimony from Charles Clark, the brother of Andre Clark and cousin of Smith. Charles Clark was at the project looking for his brother on the morning of December 14,1996, when he heard gunfire and saw two people on the ground. He later discovered that they were Ogman and Smith. A third person, who was standing over Smith, told Smith that he was going to kill him and also said something about “the island.” More shooting followed, after which Charles Clark saw someone in a yellow and black jacket running away. The person in the yellow and black jacket was not the same person who had been standing over Smith.

The state presented the following additional testimony regarding the yellow and black jacket. Pelletier testified that when he arrested Adams on the morning of December 14,1996, Adams was wearing a yellow and black jacket. Pelletier identified, and the court admitted into evidence, a photograph of the jacket Adams was wearing. Charles Clark identified the jacket in the photograph as the same one he saw on the person running away after the shooting.

Edward McPhillips of the department of public safety forensics laboratoiy testified regarding the ballistics evidence recovered from the crime scene and from the victims’ bodies. McPhillips opined that all of the bullets recovered, with the exception of bullet fragments recovered from Smith’s brain, were fired from two weapons. He testified that the fragments recovered from Smith’s brain were too damaged to be identified. He testified further that in his opinion, the shell casings recovered from the crime scene were fired from two weapons. He also explained that a semiautomatic weapon ejects a shell casing each time it is fired, while a revolver does not because the casing remains in the cylinder of the revolver.

During closing argument, defense counsel argued that the jury could conclude that there were only two shooters, that the defendant was not present at the scene of the shooting and that “this may well be simply a case of guilt by association.” During rebuttal, the prosecutor argued: “I told you I wasn’t going to do this and now I am. We don’t have to prove who pulled what trigger. But you know what? There are very, very good reasons to believe that the person who shot Jason Smith in the head as he was lying crippled on the ground is that man sitting over there, and I’ll tell you why. Right here, at the time that shooting occurs, there are two people standing next to Marvin Ogman, who is this blood spot. Who are they? Darcus Henry and Johnny Johnson. Their feet are right there. ‘I looked and I saw their feet, and I looked up.’ They’re not back over here tapping Jason Smith. And Sean Adams is the last guy to go and has the bright orange jacket. And, therefore, according to Charles Clark, it’s a different guy than the one who was standing over him saying, ‘I’m from the Island; you’re going to die.’ Right? That guy wasn’t wearing the bright orange. The guy who ran — the other guy did it, and it’s not the same person. So, we’ve eliminated Darcus Henry and Johnny Johnson and by Charles Clark’s testimony, not the guy in the orange — in the bright yellow coat. We’ve eliminated him. Who’s left to pull that trigger into the head of Jason Smith? Now, it doesn’t matter from the proof that we haven’t proved, but it matters morally. It’s not an uninvited fact when you look at the man over there and hear arguments that tell you to ignore reality, to ignore common sense, to ignore what actually you had heard and seen, experienced in this courtroom. That’s what matters. It’s all in there. If he shot with a revolver, leaves nothing behind, and with the exception of this one shell here, there are no other shells here. There’s no shells near that body. That’s another reason why we could easily have had revolvers there without having any ballistic evidence . . . because somebody shot Jason Smith in the head, and there’s no ejected shells very close to where he is.”

The defendant argues that the comments of the prosecutor during rebuttal were improper because they were not reasonably supported by the evidence and that this claim implicates the right to due process. Specifically, the defendant asserts that the argument that he may have shot Smith in the head was improper because it was based on a complex process of elimination, rather than direct evidence that the person standing near Smith was the defendant. He further argues that the state could not properly argue that the defendant used a revolver because there was no direct evidence indicating the presence or use of a revolver.

The defendant did not properly preserve his claim of prosecutorial misconduct in violation of his right to due process by objecting at trial to the prosecutor’s comments. He therefore seeks review of his claim pursuant to State v. Golding, supra, 213 Conn. 239-40. “We will not afford Golding review to [unpreserved] claims of prosecutorial misconduct where the record does not disclose a pattern of misconduct pervasive throughout the trial or conduct that was so blatantly egregious that it infringed on the defendant’s right to a fair trial. . . . [I]n addressing the jury, [c]ounsel must be allowed a generous latitude in argument, as the limits of legitimate argument and fair comment cannot be determined precisely by rule and line, and something must be allowed for the zeal of counsel in the heat of the argument. . . . [M]oreover . . . [Golding] review of such a claim is unavailable where the claimed misconduct was not blatantly egregious and merely consisted of isolated and brief episodes that did not reveal a pattern of conduct repeated throughout the trial . . . .” (Citation omitted; internal quotation marks omitted.) State v. Bonsu, 54 Conn. App. 229, 238, 734 A.2d 596, cert. denied, 251 Conn. 909, 739 A.2d 1249 (1999). The defendant does not claim that there was a pattern of misconduct repeated throughout the trial. Accordingly, our analysis under Golding is limited to determining whether the remarks during rebuttal argument were so blatantly egregious that they infringed on the defendant’s right to a fair trial.

“Counsel may comment upon facts properly in evidence and upon reasonable inferences to be drawn from them. . . . Counsel may not, however, comment on or suggest an inference from facts not in evidence.” (Citation omitted; internal quotation marks omitted.) State v. Prioleau, 235 Conn. 274, 320, 664 A.2d 743 (1995). “It is within the province of the jury to draw reasonable and logical inferences from the facts proven. . . . We note that the probative force of the evidence is not diminished because it consists, in whole or in part, of circumstantial evidence rather than direct evidence. ... It has been repeatedly stated that there is no legal distinction between direct and circumstantial evidence so far as probative force is concerned.” (Internal quotation marks omitted.) State v. Orta, supra, 66 Conn. App. 788-89.

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

“[P]roof of a material fact by inference from circumstantial evidence need not be so conclusive as to exclude every other hypothesis. It is sufficient if the evidence produces in the mind of the trier a reasonable belief in the probability of the existence of the material fact. . . . Thus, in determining whether the evidence supports a particular inference, we ask whether that inference is so unreasonable as to be unjustifiable. . . . In other words, an inference need not be compelled by the evidence; rather, the evidence need only be reasonably susceptible of such an inference. Equally well established is our holding that a jury may draw factual inference on the basis of already inferred facts. . . . Moreover, [i]n viewing evidence which could yield contrary inferences, the jury is not barred from drawing those inferences consistent with guilt and is not required to draw only those inferences consistent with innocence.” (Citations omitted; internal quotation marks omitted.) State v. Copas, 252 Conn. 318, 338-40, 746 A.2d 761 (2000).

We are not persuaded that the prosecutor’s argument that the defendant may have shot Smith in the head was improper, let alone so blatantly egregious that it infringed on the defendant’s right to a fair trial. The defendant characterizes the state’s rebuttal argument as “a convoluted patchwork of reasons why it was not other assailants . . . despite no direct evidence of [the defendant’s] proximity to Smith at any time . ...” As the authorities previously cited indicate, however, we do not distinguish between direct and circumstantial evidence. The prosecutor’s argument was based on facts properly in evidence and inferences that the jury could reasonably have drawn from those facts. Although the jury, to arrive at the conclusion that the defendant shot Smith in the head, was required to apply a process of elimination based on multiple inferences, such a process is permissible.

The state’s argument that the defendant used a revolver to shoot Smith presents a closer question. Although that argument was based on facts in evidence, the prosecutor, by arguing to the jurors that they could infer from those facts that the defendant had used a revolver, ventured close to “ ‘[t]he line between permissible inference and impermissible speculation . . . Id., 339. The argument was not, however, so blatantly egregious that it infringed on the defendant’s right to a fair trial. The defendant’s claim of prosecutorial misconduct therefore fails under Golding.

We next consider the defendant’s argument that we should exercise our supervisory authority to reverse his conviction. “Appellate courts possess an inherent supervisory authority over the administration of justice. . . . The standards that [are] set under this supervisory authority are not satisfied by observance of those minimal historic safeguards for securing trial by reasons which are summarized as due process of law .... Rather, the standards are flexible and are to be determined in the interests of justice. . . . [0]ur supervisory authority [however] is not a form of free-floating justice, untethered to legal principle. . . . Rather, the integrity of the judicial system serves as a unifying principle behind the seemingly disparate use of our supervisory powers. . . . [0]ur supervisory powers are invoked only in the rare circumstance where [the] traditional protections are inadequate to ensure the fair and just administration of the courts . . . .” (Internal quotation marks omitted.) State v. Mukhtaar, 253 Conn. 280, 290 n.11, 750 A.2d 1059 (2000).

We can see no reason to exercise our supervisory powers in the present case. The prosecutor’s argument that the defendant used a revolver to shoot Smith was an isolated occurrence during rebuttal argument. It also concerned a matter, namely, what kind of gun the defendant used, which was not at issue in the case. As we indicated in part I, the evidence was sufficient to support the defendant’s conviction under an accessory theory of liability, and the state relied solely on that theory of liability in its initial closing argument to the jury. In sum, this case does not present the rare circumstance in which we must reverse a conviction to ensure the integrity of the judicial system.

The judgment is affirmed.

In this opinion the other judges concurred.

       General Statutes § 53a-54a (a) provides in relevant part: “A person is guilty of murder when, with intent to cause the death of another person, he causes the death of such person or of a third person . . . .”

       General Statutes § 53a-8 (a) provides: “A person, acting with the mental state required for commission of an offense, who solicits, requests, commands, importunes or intentionally aids another person to engage in conduct which constitutes an offense shall be criminally liable for such conduct and may be prosecuted and punished as if he were the principal offender.”

       General Statutes § 53a-48 (a) provides: “A person is guilty of conspiracy when, with intent that conduct constituting a crime be performed, he agrees with one or more persons to engage in or cause the performance of such conduct, and any one of them commits an overt act in pursuance of such conspiracy.”

       General Statutes § 53a-59 (a) provides in relevant part: “A person is guilty of assault in the first degree when ... (5) with intent to cause physical injury to another person, he causes such irqury to such person or to a third person by means of the discharge of a firearm.”

       Adams and Henry were convicted on all charges at the first trial. We affirmed their convictions on appeal. See State v. Henry, 72 Conn. App. 640, 805 A.2d 823, cert. denied, 262 Conn. 917, 811 A.2d 1293 (2002); State v. Adams, 72 Conn. App. 734, 806 A.2d 111, cert. denied, 262 Conn. 916, 811 A.2d 1292 (2002). The court in the first trial also declared a mistrial with regard to Johnson, who subsequently was retried and convicted of murder, conspiracy and assault. See State v. Henry, supra, 644 n.4.

       The defendant also argues that the evidence was insufficient to support his conviction under a theory of principal liability. Because we conclude that the evidence was sufficient to support his conviction as an accessory, we need not address his additional argument.

       Green subsequently was convicted of Jenkins’ murder. See. State v. Green, 62 Conn. App. 217, 774 A.2d 157 (2001), aff'd, 261 Conn. 653, 804 A.2d 810 (2002). Duane Clark was convicted of criminal possession of a pistol or revolver. State v. Clark, 62 Conn. App. 182, 774 A.2d 183 (2001), aff'd, 260 Conn. 813, 801 A.2d 718 (2002).

       The defendant also argues that he cannot be convicted under General Statutes § 53a-8 because his liability, if any, would have been under the theory expressed in Pinkerton v. United States, 328 U.S. 640, 647-48, 66 S. Ct. 1180,90 L. Ed. 1489 (1946). The defendant has not provided any authority for the proposition that Pinkerton liability precludes liability under § 53a-8, and we are unaware of any such authority. We therefore find the defendant’s argument to be without merit.

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


author: LAVERY, C. J.

text:
    STATE OF CONNECTICUT v. THOMAS W. GASSER
    (AC 22492)
    Lavery, C. J., and Foti and Dranginis, Js.
    Argued October 24, 2002
    officially released January 14, 2003

      John R. Williams, for the appellant (defendant).

      Margaret Gaffney Radionovas, senior assistant state’s attorney, with whom, on the brief, were Timothy J. Liston, state’s attorney, and George Ferko, senior assistant state’s attorney, for the appellee (state).
   Opinion

LAVERY, C. J.

The defendant, Thomas W. Gasser, appeals from the judgment of conviction rendered by the trial court subsequent to his plea of guilty to the charge of manslaughter in the second degree with a motor vehicle in violation of General Statutes § 53a-56b. On appeal, the defendant claims that the court improperly denied his motion to withdraw his guilty plea because he was denied the effective assistance of counsel during the plea process. We affirm the judgment of the trial court.

The following facts and procedural history are relevant to our disposition of the defendant’s appeal. The defendant was charged with manslaughter in the second degree with a motor vehicle and failure to drive on the right in violation of General Statutes § 14-230 (a). 3On December 10, 1999, the defendant withdrew his not guilty plea and pleaded guilty to the charge of manslaughter in the second degree with a motor vehicle. At that time, the defendant was represented by attorney David Lenefsky, a member of the New York bar who had been admitted pro hac vice for the purpose of representing the defendant in the criminal matter. The plea bargain that the state disclosed to the court contemplated a sentence of ten years, execution suspended after seven years, a period of probation, and the right for the defendant to argue for a lesser sentence on behalf of the defense.

Prior to accepting the defendant’s plea, the court engaged in a lengthy canvass of the defendant pursuant to Practice Book §§ 39-19 through 39-21. The court read a recital of the facts of the case, and the defendant conceded that he generally knew what the evidence would have been had there been a trial. *The defendant acknowledged that at the time of his canvass, he was not under the influence of any alcohol, drugs or medication. Additionally, the court reviewed the elements of manslaughter in the second degree with a motor vehicle, as well as the rights that the defendant waived by pleading guilty. The court informed the defendant that he would not be able to withdraw his plea without permission. The defendant acknowledged that he was pleading guilty of his own volition and that no one had forced him to do so. The court accepted the plea after concluding that it was entered into knowingly and voluntarily, and was made with the assistance of competent counsel.

On March 3, 2000, prior to the sentencing hearing, attorney John R. Williams, a member of the Connecticut bar, filed an appearance on behalf of the defendant. On the same day, the defendant filed a motion to withdraw the plea and claimed that he had been denied the effective assistance of counsel.

After conducting an evidentiary hearing, the court denied the defendant’s motion. Specifically, the court found that Lenefsky’s representation did not fall below an objective standard of reasonableness and that the defendant voluntarily had pleaded guilty. The court thereafter rendered judgment of guilty and sentenced the defendant to a period of incarceration of ten years, suspended after five years, with five years of probation with special conditions. This appeal followed. Additional facts will be set forth as necessary.

On appeal, the defendant renews his claims that the court improperly denied his motion to withdraw his guilty plea, which motion he made pursuant to Practice Book § 39-27 and in which he asserted that he had been denied the effective assistance of counsel. The defendant claims that Lenefsky’s representation fell below the range of competence of a lawyer with ordinary training in the field of criminal law. Specifically, the defendant argues that Lenefsky (1) failed to conduct an adequate investigation of the facts of the case, (2) failed to obtain a full accident reconstruction by an independent expert, (3) failed to communicate to him the availability of an expert who would testily that the accident was not caused by the defendant and (4) excessively pressured him into pleading guilty. We disagree.

At the outset, we must identify the applicable standard of review and set forth the legal framework that guides our resolution of the defendant’s appeal. “[0]nce entered, a guilty plea cannot be withdrawn except by leave of the court, within its sound discretion, and a denial thereof is reversible only if it appears that there has been an abuse of discretion. . . . The burden is always on the defendant to show a plausible reason for the withdrawal of a plea of guilty.” (Citation omitted; internal quotation marks omitted.) State v. Andrews, 253 Conn. 497, 505-506, 752 A.2d 49 (2000). “We further note the pertinent case law applicable to ineffective assistance of counsel claims brought under Practice Book § 39-27 (4). Our case law holds that [a] claim of ineffective assistance of counsel is generally made pursuant to a petition for a writ of habeas coipus rather than in a direct appeal. . . . Section 39-27 of the Practice Book, however, provides an exception to that general rule when ineffective assistance of counsel results in a guilty plea. A defendant must satisfy two requirements ... to prevail on a claim that his guilty plea resulted from ineffective assistance of counsel. . . . First, he must prove that the assistance was not within the range of competence displayed by lawyers with ordinary training and skill in criminal law .... Second, there must exist such an interrelationship between the ineffective assistance of counsel and the guilty plea that it can be said that the plea was not voluntary and intelligent because of the ineffective assistance.” (Internal quotation marks omitted.) State v. Nelson, 67 Conn. App. 168, 177, 786 A.2d 1171 (2001); State v. Gray, 63 Conn. App. 151, 161-62, 772 A.2d 747, cert. denied, 256 Conn. 934, 776 A.2d 1151 (2001).

“In choosing to plead guilty, the defendant is waiving several constitutional rights, including his privilege against self-incrimination, his right to trial by jury, and his right to confront his accusers. . . . These considerations demand the utmost solicitude of which courts are capable in canvassing the matter with the accused to make sure he has a full understanding of what the plea connotes and its consequences. . . . We therefore require the record affirmatively to disclose that the defendant’s choice was made intelligently and voluntarily.” (Citations omitted; internal quotation marks omitted.) State v. Andrews, supra, 253 Conn. 503. With those principles in mind, we now address the defendant’s arguments.

A

The defendant first argues that Lenefsky failed to conduct an adequate investigation into the facts of the case. The defendant claims an adequate investigation by Lenefsky was of particular importance in this case because the defendant had no recollection of the accident. We have previously noted the United States Supreme Court’s cautionary advice in Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984), that “[¡judicial scrutiny of counsel’s performance must be highly deferential. It is all too tempting for a [defendant] to second-guess counsel’s assistance after conviction or adverse sentence, and it is all too easy for a court, examining counsel’s defense after it has proved unsuccessful, to conclude that a particular act or omission of counsel was unreasonable. ... A fair assessment of attorney performance requires that every effort be made to eliminate the distorting effects of hindsight, to reconstruct the circumstances of counsel’s challenged conduct, and to evaluate the conduct from counsel’s perspective at the time. Because of the difficulties inherent in making the evaluation, a court must indulge a strong presumption that counsel’s conduct falls within the wide range of reasonable professional assistance; that is, the [defendant] must overcome the presumption that, under the circumstances, the challenged action might be considered sound trial strategy. . . . [C]ounsel is strongly presumed to have rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment.” (Internal quotation marks omitted.) Fuller v. Commissioner of Correction, 66 Conn. App. 598, 601, 785 A.2d 1143 (2001).

At the evidentiary hearing, Lenefsky testified that he had numerous discussions with the defendant and his family. He stated that he reviewed the materials that he obtained during pretrial discovery, including various police and medical reports, as well as statements from witnesses. Lenefsky discussed the case with medical experts and engineers. As part of his investigation, Len-efsky went to and examined the accident scene and obtained a psychiatric evaluation for the defendant. He utilized local counsel to assist with Connecticut procedure and reviewed the relevant statutes. On the basis of that conduct, we agree with the court that Lenefsky’s actions in investigating the accident involving the defendant did not fall below an objective standard of reasonableness.

B

The defendant next argues that Lenefsky failed to obtain an independent accident reconstruction expert. Lenefsky, however, utilized an expert witness to review the state’s report detailing the accident, although he did not want the expert to produce a written report. After reviewing the information with the expert, Lenef-sky concluded that although he would be able to attack the state’s accident report at trial, ultimately, that was, on the basis of his experience, not a triable issue. On the basis of that evidence, we conclude that the court properly found that Lenefsky’s actions did not fall below an objective standard of reasonableness.

C

The defendant next argues that Lenefsky failed to communicate to him the availability of an expert who would testify that the defendant did not cause the accident. The defendant initially testified that Lenefsky never informed him that it would be possible to obtain an accident reconstruction expert who would testify that the accident was not the defendant’s fault. Later, the defendant stated that he and Lenefsky did in fact discuss the possibility of hiring such an expert. The court, in its memorandum of decision, did not address whether the defendant and Lenefsky discussed the possibility of using an expert witness to testify. The state asserts that the record, therefore, is inadequate for review of the defendant’s argument. We agree with the state and do not address the claim.

It is the duty of the defendant in this case to provide us with an adequate record to review his claims. Practice Book §§ 60-5 and 61-10. “A lack of pertinent factual findings and legal conclusions will render a record inadequate. . . . Similarly, ambiguity in a record can render it inadequate.” (Citation omitted.) State v. Salerno, 36 Conn. App. 161, 165, 649 A.2d 801 (1994), appeal dismissed, 235 Conn. 405, 666 A.2d 821 (1995). We cannot speculate as to the factual determination of whether Lenefsky failed to communicate to the defendant the possibility of obtaining an accident reconstruction expert. We therefore decline to review the claim because the defendant has not presented an adequate record for its review.

D

The defendant’s final argument is that Lenefsky excessively pressured him into entering a plea of guilty. At the plea hearing, the following colloquy occurred between the court and the defendant:

“The Court: No one’s forcing you to plead guilty by use of a threat or intimidation or anything like that?

“[Defendant]: No.

“The Court: This is your choice to resolve the case in this way?

“[Defendant]: Yes.

^ ^

“The Court: . . . But do you have any reason to disbelieve the advice of your attorney, which, obviously—

“[Defendant]: No.

“The Court: — is to resolve this case, on the best terms you can, by agreement.

“[Defendant]: I have no question about it.”

“It is well established that [a] trial court may properly rely on .... the responses of the [defendant] at the time [he] responded to the trial court’s plea canvass . . . .” (Internal quotation marks omitted.) State v. Silva, 65 Conn. App. 234, 252, 783 A.2d 7, cert. denied, 258 Conn. 929, 783 A.2d 1031 (2001). Moreover, during the evidentiary hearing, the defendant testified that Lenefsky did not intimidate him into pleading guilty. We conclude, therefore, that the court did not abuse its discretion when it found that Lenefsky did not excessively pressure the defendant into pleading guilty.

On the basis of the record before us, including the testimony from the evidentiary hearing, we are unable to conclude that the court abused its discretion when it found that Lenefsky’s actions did not fall below an objective standard of reasonableness.

The judgment is affirmed.

In this opinion the other judges concurred.

       General Statutes § 53a-56b (a) provides: “A person is guilty of manslaughter in the second degree with a motor vehicle when, while operating a motor vehicle under the influence of intoxicating liquor or any drug or both, he causes the death of another person as a consequence of the effect of such liquor or drug.”

       In its memorandum of decision denying the defendant’s motion to withdraw the guilty plea, the court found the following facts underlying the plea. “This case involves a two car motor vehicle accident in East Haddam which resulted in the death of the driver of the other vehicle. The defendant, operator of his vehicle, was removed from his truck by a witness who told police that the vehicle ‘reeked’ of alcohol. The defendant was flown by Life Star helicopter to Hartford Hospital for treatment. A treating physician at the hospital noticed a distinct odor of alcohol on the defendant’s breath. Records later obtained from the hospital showed that the defendant had a blood alcohol level of 0.18 [percent]. The state’s investigation determined that the vehicle operated by the defendant had veered into the opposite lane, striking the victim’s vehicle head on.”

       The court subsequently dismissed the charge of failure to drive on the right.

       Practice Book § 2-16 provides in relevant part: “An attorney who is in good standing at the bar of another state . . . may, upon special and infrequent occasion and for good cause shown upon written application presented by a member of the bar of this state, be permitted in the discretion of the court, to participate to such extent as the court may prescribe in the presentation of a cause or appeal in any court of this state . . . .”

       The defendant stated that he had no memory of the accident and that he had heard rumors that the victim suffered a heart attack while driving. Both the court and attorney Lenefsky told him that this rumor was “wishful” thinking on the defendant’s part. The office of the chief medical examiner issued an autopsy report that concluded that multiple blunt force trauma caused the death of the victim. The defendant conceded that if there had been a trial, he would have been convicted.

       Practice Book § 39-27 provides in relevant part: “The grounds for allowing the defendant to withdraw his or her plea after acceptance are . . .
      “(4) The plea resulted from the denial of effective assistance of counsel .. . .”

       The defendant’s legal expert testified that he would not have unfavorable findings from an expert reduced to writing because they “would have to be disclosed to the opposing party.”

       The following colloquy occurred between the defendant and defense counsel during the evidentiary hearing on the motion to withdraw the defendant’s guilty plea:
      “Q. Did attorney Lenefsky ever tell you that it would be possible or might be possible that even it might be possible to find an expert who would say, like, the accident happened in your lane of travel, not the [victim’s] lane? Did he ever tell you that?
      “A. No, he never did.
      “Q. Did he ever discuss that either such a thing could be done?
      “A. No, he didn’t. When he discussed it ... I brought it up. That’s the only time we ever talked about [an] investigation team.”


text:
    STATE OF CONNECTICUT v. TRACY VARGAS
    (AC 22236)
    Schaller, West and Bishop, Js.

      Argued September 13, 2002
    officially released January 14, 2003

      Dennis P. McDonough, special public defender, for the appellant (defendant).

      Melissa L. Streeto, special deputy assistant state’s attorney, with whom, on the brief, were Walter D. Flanagan, state’s attorney, and David R. Shannon, assistant state’s attorney, for the appellee (state).
   Opinion

SCHALLER, J.

The defendant, Tracy Vargas, appeals from the judgment of conviction, rendered after a jury trial, of burglary in the third degree in violation of General Statutes § 53a-103 (a), conspiracy to commit burglary in the third degree in violation of General Statutes §§ 53a-48 (a) and 53a-103 (a), and larceny in the third degree in violation of General Statutes § 53a-124 (a). On appeal, the defendant claims that the court (1) improperly denied his motion for a judgment of acquittal because there was insufficient evidence to support a conviction of conspiracy to commit burglary in the third degree and (2) abused its discretion in denying his request for a one day continuance at trial on defense counsel's change in status from standby counsel to full counsel. We affirm the judgment of the trial court.

The jury reasonably could have found the following facts. On the evening of July 18, 2000, the defendant, John Sherwood and Ivy Sailer drove to a private residence in New Fairfield. Once they reached the house, the defendant and Sherwood knocked on the front door to see if anyone was home. When there was no answer, the defendant suggested that they go to the rear of the house because he suspected that there was an open window. When they reached the back of the house, the defendant entered the house through a partially open window. Once inside the house, the defendant unlocked the back door so that Sherwood could enter. After the defendant and Sherwood had both entered the house, they opened drawers In the bedroom and took jewelry, a credit card and a cellular- phone. After about five minutes, the defendant and Sherwood left the house and went to their vehicle. Later, all three individuals were apprehended by the Newtown police.

The state charged the defendant with burglary in the third degree, conspiracy to commit burglary in the third degree, larceny in the third degree and conspiracy to commit lar ceny in the third degree. The court thereafter granted the defendant’s motion for a judgment of acquittal of conspiracy to commit larceny in the third degree, and the jury subsequently returned a guilty verdict on the remaining three counts. The court sentenced the defendant to a total effective term of twelve years in prison with three years of special parole. This appeal followed. Additional facts will be set forth as necessary.

I

The defendant first claims that the court improperly denied his motion for a judgment of acquittal because the evidence was insufficient to support the conviction of conspiracy to commit burglary in the third degree. Specifically, the defendant argues that there was not enough evidence produced at trial for the jury to have found that he and Sherwood had agreed to engage in any conduct, as required for a conviction under § 53a-48 (a). We find that argument unpersuasive.

The following additional facts are relevant to the defendant’s claim. During direct examination, the following colloquy took place between the prosecutor and Sherwood:

“Q. When you decided to get in the house that way, whose idea was that? Is that both of yours idea to go into the house?

“A. [The defendant] had mentioned it, and I just agreed with it, you know. I went along with it.

* * *

“Q. And what did you want to do once you got in the house? Were you there to steal things at that point?

“A. Yeah. We were there to go through some things, I guess. [The defendant] said that he knew the [homeowner] had money and some nice jewelry and stuff.

“Q. [The defendant] said that?

“A. Yes.”

We first set forth our well settled standard of review concerning the defendant’s sufficiency of the evidence claim. “[W]e apply a two part test. First, we construe the evidence in the light most favorable to sustaining the verdict. Second, we determine whether upon the facts so construed and the inferences reasonably drawn therefrom the [finder of fact] reasonably could have concluded that the cumulative force of the evidence established guilt beyond a reasonable doubt.” (Internal quotation marks omitted.) State v. Senquiz, 68 Conn. App. 571, 575-76, 793 A.2d 1095, cert. denied, 260 Conn. 923, 797 A.2d 519 (2002).

Section 53a-48 (a) provides: “A person is guilty of conspiracy when, with intent that conduct constituting a crime be performed, he agrees with one or more persons to engage in or cause the performance of such conduct, and any one of them commits an overt act in pursuance of such conspiracy.” (Emphasis added.) General Statutes § 53a-103 (a) provides: “A person is guilty of burglary in the third degree when he enters or remains unlawfully in a building with intent to commit a crime therein.”

Therefore, “[t]o establish the crime of conspiracy under § 53a-48 of the General Statutes, the state must show that there was an agreement between two or more persons to engage in conduct constituting a crime and that the agreement was followed by an overt act in furtherance of the conspiracy by any one of the conspirators.” State v. Ortiz, 169 Conn. 642, 645, 363 A.2d 1091 (1975). “Further, [conspiracy can seldom be proved by direct evidence. It may be inferred from the activities of the accused persons.” (Internal quotation marks omitted.) State v. Liebowitz, 65 Conn. App. 788, 797, 783 A.2d 1108, cert. denied, 259 Conn. 901, 789 A.2d 992 (2001). Also, “[t]hat the evidence is circumstantial rather than direct does not diminish the force of that evidence.” State v. Williams, 58 Conn. App. 125, 131, 752 A.2d 1120, cert. denied, 254 Conn. 915, 759 A.2d 509 (2000).

Although the defendant argues that the evidence was insufficient to conclude that he and Sherwood expressly agreed to commit burglary “[i]t is not necessary to establish that the defendant and his coconspirators signed papers, shook hands, or uttered the words ‘we have an agreement.’ ” State v. Stellato, 10 Conn. App. 447, 453, 523 A.2d 1345 (1987). “The existence of a formal agreement between the parties need not be proved; it is sufficient to show that they are knowingly engaged in a mutual plan to do a forbidden act. . . . Because of the secret nature of conspiracies, a conviction is usually based on circumstantial evidence.” (Citation omitted; internal quotation marks omitted.) State v. Caprilozzi, 45 Conn. App. 455, 465, 696 A.2d 380, cert. denied, 243 Conn. 937, 702 A.2d 644 (1997).

Furthermore, “[a] jury can infer from a defendant’s actions that activities were planned in advance to facilitate the crime. . . . Participation in the act itself may be sufficient to allow the jury to infer the conspiracy from that conduct.” (Citation omitted.) State v. Elijah, 42 Conn. App. 687, 696, 682 A.2d 506, cert. denied, 239 Conn. 936, 684 A.2d 709 (1996). At trial, when the prosecutor asked Sherwood why he and the defendant were at the home, Sherwood replied that they “were there to go through some things.” The state offered direct evidence, through Sherwood’s testimony, that he and the defendant had agreed to enter the residence. When asked by the prosecutor whether he and the defendant had intended to “steal things” once they were inside the house, Sherwood answered in the affirmative.

Given all of the evidence, the jury reasonably could have concluded that the defendant and Sherwood had agreed to engage in the conduct that constituted the crime of burglary. Therefore, the jury could have reasonably concluded that the defendant and Sherwood conspired to commit burglary. The court therefore properly denied the defendant’s motion for a judgment of acquittal.

II

The defendant’s second claim is that the court improperly denied his request for a one day continuance. Specifically, the defendant argues that a continuance was warranted because defense counsel’s change in status from standby counsel to full counsel left defense counsel unprepared to handle the case. We disagree.

The following additional facts are necessary to a discussion of the defendant’s claim. The special public defender who represented the defendant at trial (defense counsel) filed his appearance in the case on or about January 22, 2001. Jury selection began on May 22, 2001, and continued through the opening of trial on May 23, 2001. During the first day of jury selection, the defendant sought to represent himself pro se because he was unhappy with defense counsel's performance. The court canvassed the defendant and determined that he was competent to defend himself during trial. The court then notified defense counsel that his status had changed from full counsel to standby counsel. The defendant represented himself until the morning of May 24,2001, when he requested defense counsel’s reinstatement as full counsel. The court changed defense counsel’s status back to full counsel. Defense counsel immediately requested a one day continuance to enable him to prepare fully for trial. The court stated that defense counsel was a knowledgeable and experienced attorney who had been full counsel until the beginning of jury selection less than two days earlier, and that the jury and witnesses were present and ready to proceed with the trial. The court therefore denied the defendant’s motion for a continuance.

To determine whether the denial of a request for a continuance was improper, we must first set forth the relevant standard of review. “A motion for continuance is addressed to the discretion of the trial court and its ruling will not be overturned absent a showing of clear abuse of that discretion.” (Internal quotation marks omitted.) State v. Wegman, 70 Conn. App. 171, 174-75, 798 A.2d 454, cert. denied, 261 Conn. 918, 806 A.2d 1058 (2002). “To prove an abuse of discretion, the appellant must demonstrate that the denial of the continuance was unreasonable or arbitrary.” State v. Breckenridge, 66 Conn. App. 490, 495, 784 A.2d 1034, cert. denied, 259 Conn. 904, 789 A.2d 991 (2001).

“Our assessment of the reasonableness of the trial court’s exercise of discretion is limited to a consideration of those factors on the record known to the court at the time it rendered a decision. . . . The factors include the likely length of the delay; the age and complexity of the case; the granting of other continuances in the past; the impact of delay on the litigants, witnesses, opposing counsel and the court; the perceived legitimacy of the reasons proffered in support of the request; the defendant’s personal responsibility for the timing of the request; the likelihood that the denial would substantially impair the defendant’s ability to defend himself; the availability of other, adequately equipped and prepared counsel to try the case; and the adequacy of the representation already being afforded to the defendant. . . . Another set of factors has included, as part of the inquiry into a possible abuse of discretion, a consideration of the prejudice that the defendant actually suffered by reason of the denial of the motion for continuance.” (Citations omitted; internal quotation marks omitted.) State v. Wegman, supra, 70 Conn. App. 175-76.

The defendant argues that defense counsel's change in status, from standby counsel to full counsel, necessitated at least a one day continuance to prepare for trial. Specifically, the defendant argues that because the role of standby counsel is essentially passive, defense counsel was unprepared to conduct cross-examination upon reinstatement as full counsel. The defendant claims that being unprepared for trial ultimately prejudiced his case. We are not persuaded.

In support of his position, the defendant states that unlike the role of full counsel, the role of standby counsel is passive, allowing intervention, on request, in a pro se defendant’s presentation of the case. That argument is inconsistent with Practice Book § 44-5, which provides: “If requested to do so by the defendant, the standby counsel shall advise the defendant as to legal and procedural matters. If there is no objection by the defendant, such counsel may also call the judicial authority’s attention to matters favorable to the defendant. Such counsel shall not interfere with the defendant’s presentation of the case and may give advice only upon request.” See also State v. Fernandez, 254 Conn. 637, 642 n.8, 758 A.2d 842 (2000), cert. denied, 532 U.S. 913, 121 S. Ct. 1247, 149 L. Ed. 2d 153 (2001).

The first sentence of Practice Book § 44-5 clearly defines the scope of the duties of standby counsel. Under the plain language of the section’s first sentence, standby counsel is required to be prepared to advise the defendant at any time that the defendant may so request. The unambiguous language therefore supports the court’s conclusion that standby counsel was required to be prepared to advise the defendant with regard to cross-examination. Furthermore, as the court stated, defense counsel’s status as standby counsel lasted for only one and one-half days, whereas he had acted as full counsel, preparing for trial, for at least four months prior to the status change. In light of those factors, the court reasonably determined that defense counsel had adequate time to prepare for trial. In addition, the court properly considered the impact of the requested continuance on the witnesses and jurors. Accordingly, we conclude that the court did not abuse its discretion in denying the defendant’s request for a one day continuance.

The judgment is affirmed.

In this opinion the other judges concurred.

       General Statutes § 53a-103 (a) provides: “A person is guilty of burglary in the third degree when he enters or remains unlawfully in a building with intent to commit a crime therein.”

       General Statutes § 53a-48 (a) provides: “A person is guilty of conspiracy when, with intent that conduct constituting a crime be performed, he agrees with one or more persons to engage in or cause the performance of such conduct, and any one of them commits an overt act in pursuance of such conspiracy.”

       General Statutes § 53a-124 (a) provides in relevant part: “A person is guilty of larceny in the third degree when he commits larceny, as defined in section 53a-119 . . . .”
      General Statutes § 53a-119 provides in relevant part: “A person commits larceny when, with intent to deprive another of property or to appropriate the same to himself or a third person, he wrongfully takes, obtains or withholds such property from an owner. . . .”

       Although wo recognize that intent is a required element in proving conspiracy under General Statutes § 53a-48 (a) and that the state addresses that point in its brief, the defendant does not claim on appeal that the evidence was insufficient to establish intent. We therefore decline to consider that issue.