author: McLACHLAN, J.

text:
    STATE OF CONNECTICUT v. ROBBIE TERELL SANTOS
    (AC 26700)
    Flynn, C. J., and McLachlan and Lavine, Js.

      Argued May 31
    officially released December 4, 2007

      Richard Emanuel, special public defender, with whom was Brian S. Carlow, deputy chief public defender, for the appellant (defendant).

      Timothy J. Sugrue, senior assistant state’s attorney, with whom were Russell C. Zentner, senior assistant state’s attorney, and, on the brief, Timothy J. Liston, state’s attorney, for the appellee (state).
   Opinion

McLACHLAN, J.

The defendant, Robbie Terell Santos, appeals from the judgment of conviction, following a trial to the court, of attempt to commit murder in violation of General Statutes §§ 53a-54a (a) and 53a-49 (a) (2). On appeal, the defendant claims that the court improperly (1) determined that there was sufficient evidence to support the conviction, (2) denied his motion to suppress three pretrial identifications and (3) rendered findings of guilt that were legally and factually inconsistent. We affirm the judgment of the trial court.

The court reasonably could have found the following relevant facts. On May 21, 2003, at 5:30 p.m., Derek Hopson, a clinical psychologist, finished his work for the day and left his office at the Middlesex Hospital Center for Behavioral Health (center) in Middletown. Hopson walked out of the rear door of the center with a coworker, Christine Brown, and they proceeded into the parking lot. Brown got into her car, which was in the first section of the parking lot, and drove alongside Hopson, continuing to chat with Hopson as he walked to the second section of the parking lot where his car was located. Hopson and Brown left the office together for their safety because approximately six or seven months prior, Hopson had been assaulted in the parking lot by three men.

Upon reaching Hopson’s car, they observed the defendant, who they both described as a black man wearing a dark hooded sweatshirt, walking toward them very quickly. When the defendant was approximately twenty feet away from them, he called out to Hopson, asking him for spare change. Hopson told the defendant that he did not have any change. The defendant continued to approach Hopson and when he was about ten feet away, the defendant asked Hopson again for change, pulled back his hood and began rushing toward Hopson’s car.

Hopson testified that upon the defendant’s second request for change, he “locked eyes” very intensely with the defendant and told the defendant again that he did not have any change, but the defendant continued toward him. Hopson unlocked his car door, leaped into his car and slammed the door shut as the defendant reached the driver’s side of his car. Hopson saw the defendant smirk as he stepped back with a silver or gray gun in his hand. The defendant fired one gunshot at Hopson through the front driver’s side window of Hopson’s car, shattering the window but missing Hop-son. Hopson, who thought he had been shot, pressed down on his car horn, hoping to attract attention, and the defendant turned and ran initially toward Brown’s car and then ran out through the parking lot entranceway from which he came.

According to Brown’s recounting of the events at trial, she could not hear what had transpired between the defendant and Hopson prior to the shooting because she had rolled up her car windows. The situation appeared strange to her, however, so she pulled her cellular telephone out as the defendant approached. After pulling out her telephone, Brown observed the defendant with a small silver or gray gun fire the gunshot at Hopson through the driver’s side window of Hopson’s car. As the defendant ran out of the parking lot onto Hubbard Street, Brown pursued him initially in her car, following him across Hubbard Street and turning about a car length onto the adjoining street, Goodyear Avenue. Deciding that such a course of action was unsafe for her, she then backed up into Hubbard Street and dialed 911 on her cellular telephone. Brown estimated that about ten to twenty seconds had elapsed between the time that the shooting occurred and when she dialed 911.

Middletown police department 911 dispatcher Maria Hanlon recorded that Brown’s 911 call was logged at 5:35:48 p.m. Brown explained to Hanlon what had happened and told her that this was not the first time that Hopson had been assaulted in the parking lot. While Brown was on the telephone with Hanlon, Hopson got out of his car and into Brown’s car and also called 911 on his cellular telephone. As they both were on the telephone, two witnesses, Michael Shepherd and his son, approached Brown’s car, indicating that they had seen the perpetrator flee the scene and assisted Brown in advising Hanlon about the defendant’s potential whereabouts.

Shepherd, who lived nearby on Goodyear Avenue, testified that just prior to the shooting, he had been at his house with his son and a couple, Todd Burke and April Francks. He was in the process of selling his truck to Burke and Francks. At that time, Shepherd observed a black male wearing a black hooded sweatshirt, white or gray sweatpants and white sneakers walk by his house heading toward the parking lot where the shooting occurred. Approximately fifteen to twenty minutes after observing this black male, Shepherd heard a gunshot and then saw the same black male running back up Goodyear Avenue with a handgun and attempting to conceal the handgun in his clothing. Shepherd’s account was corroborated by the testimony of Francks.

Another witness, Alissa Kindschi, testified that she saw the perpetrator both before and after the shooting. Kindschi was at her home, which is located on Hubbard Street adjacent to the center parking lot, with her daughter and her son. Kindschi and her daughter walked out to their driveway and observed a black man with a dark colored, hooded sweatshirt standing alongside the shrubs near the center parking lot. It appeared to Kindschi that the man was looking into the center parking lot. According to Kindschi, her daughter spoke, which caused the defendant to turn and look at them from a distance of approximately ten to twenty feet. Kindschi then went into her house and continued to watch the man for another five to ten minutes. During this time, she noted that the man was wearing black nylon wind pants and black Nike sneakers. At some point, Kindschi went to get her son a bottle and when she came back, she looked out the window and the man was no longer there. Kindschi testified that as she was watching the five o’clock news on television, she heard what sounded like a firecracker two or three times, followed by the sound of a car horn beeping. She looked out her window onto Hubbard Street and this time observed Brown outside of her car on the telephone and Hopson inside Brown’s car.

Emergency 911 dispatch records indicated that the first police officer to arrive on the scene was Biagio Vinci, who arrived at 5:37:29 p.m. A second officer, Vincent Mazzotta, a K-9 handler, arrived at 5:38 p.m., with his German shepherd, Dago. Upon arrival, Mazzotta assessed the situation and prepared Dago to track the suspect.

Consistent with witness testimony about the direction in which the suspect fled, Dago began tracking the scent across Hubbard Street and down Goodyear Avenue. During the tracking, Mazzotta was joined by another police officer, James Prokop, who arrived to provide backup. Although their tracking path was not linear, Dago tracked the scent eventually to a low-rise apartment building, which was part of Wesleyan University, where the officers saw the defendant, who was wearing a gray sweatshirt type of jersey with black wind pants. The officers ordered the defendant to the ground. In accordance with his training, Dago identified the defendant as the source of the scent by putting his paws on the defendant’s back. The defendant was apprehended approximately three-tenths of one mile from the parking lot where the shooting occurred.

Another witness, Stefan Wasilewski, testified that he had contact with the defendant just prior to the defendant’s apprehension. Wasilewski, who was a Wesleyan University student at the time, testified that sometime around 5:30 p.m., on the date of the shooting, he and a friend were leaving the low-rise apartment building where his apartment was located, when a thin black male, who appeared flustered, approached them and requested to use his telephone. Wasilewski went back into his apartment and retrieved his cellular telephone and permitted the defendant to use it. According to Wasilewski, the defendant made several telephone calls and Wasilewski heard the defendant requesting a ride. Wasilewski’s telephone records indicated that the defendant made his first call to Waterbury on Wasilewski’s telephone at 5:38 p.m. and his last call at 5:42 p.m. Upon completing the calls, the defendant began to walk down the street toward Guiseppe’s restaurant, at which time Wasilewski observed the police arrest the defendant.

After the defendant was arrested, the police took him to a location on Williams Street, which was just around the block from the center parking lot where the shooting occurred. The defendant was present with Dago and several officers, including Mazzotta. At this location, the police conducted a series of show-up identifications with three eyewitnesses, Hopson, Brown and Kindschi. Separately, each witness was driven slowly by the defendant as he stood on the side of the street. Each of the witnesses identified the defendant as the perpetrator.

After this process, the police arrested the defendant and took him to the police station for booking. The defendant was advised of his rights pursuant to Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966), and his hands were tested for gunshot residue using a kit. The laboratory results of the gunshot residue tests indicated the presence of a particle of lead on the defendant’s right hand.

For several hours after the defendant was apprehended, Dago and the police, including Mazzotta, conducted an extensive search of the neighborhood, looking for additional evidence such as a discarded handgun and clothing. Despite this extensive search, no gun was recovered at that time.

One week later, in the morning on May 28, 2003, a landscaper, Matthew Gilbert, was mowing a lawn near a rest home located on Church Street, which was between the place of the shooting and where the defendant was apprehended. Gilbert testified that the lawn was last mowed on May 21,2003, prior to the shooting. As Gilbert mowed a grass median, he observed a piece of cloth, which he had to move to continue mowing. Underneath the cloth, Gilbert found a .25 caliber handgun. Gilbert picked up the gun and observed a bullet lodged in its chamber. He alerted nearby maintenance workers and the police were contacted.

Middletown police Officers Scott Aresco and David Godwin arrived and recovered the gun. Upon inspection, they discovered that the gun had a round protruding from the magazine into the chamber, which would cause the gun to jam. The police removed the bullets from the gun to make it safe before securing it as evidence. At the scene, the police also recovered a small hat. A hooded sweatshirt was never recovered.

The state also presented testimony from Christopher Proctor, a correction officer from the Hartford Correctional Center. Proctor testified that while the defendant was being held in custody, the defendant confessed to Proctor that he had committed the crimes charged. Specifically, the defendant told Proctor that a man had approached him and offered him $8000 to kill a doctor in Middletown. The man gave the defendant a description of Hopson and the center, explained the time and location that Hopson would leave work and arranged a getaway car for the defendant.

According to Proctor, the defendant stated that on the date of the shooting, the man dropped the defendant off, and the defendant waited for Hopson to emerge from the center. As Hopson left the building, the defendant approached him and fired two to three gunshots at him before the gun jammed. The defendant then fled the scene, but there was no getaway vehicle, so he threw the gun between two buildings and started talking with numerous females before he was apprehended by the police. Proctor admitted that he did not report the defendant’s confession to anyone until months later when he mentioned it to a Middletown police detective.

At trial, the defense called the defendant to testify on his own behalf. The defendant testified that in May, 2003, he had a fifteen to sixteen year drug habit and that he used marijuana, cocaine, crack cocaine and pills. The defendant explained that he often sold drugs and engaged in “hustling on the street” in order to support his illegal drug habit. The defendant had a lengthy criminal history, with eleven prior felony convictions, including burglary, attempted larceny and assault on a police officer. The defendant testified that he has been asthmatic since he was a child, which makes it difficult for him to engage in physical activity without suffering an asthma attack.

According to the defendant, on May 21, 2003, he was out on the streets of Waterbury “getting high [on drugs], selling drugs [and] hanging out.” At some point, he was approached by two women whom he had known from previous drug transactions. The women produced $80 and requested that the defendant acquire some marijuana and crack cocaine for them, which the defendant did. After selling the drugs to them, the defendant requested that the women allow him to go with them so that they could “party together,” and the women agreed, allowing the defendant into the back of their car. After driving around and getting high for more than an hour, the defendant got into a dispute with the women because he had lied to them about having money to purchase more drugs and had retained some of the crack cocaine, which he had promised to them. The women ejected the defendant from the car.

The defendant, who was now in Middletown, waited for them to return. After approximately forty-five minutes, the defendant went into Giuseppe’s restaurant and asked to use the telephone. After being denied this request, the defendant left Giuseppe’s restaurant and walked down the street to the low-rise apartment buildings, where he encountered Wasilewski, who allowed the defendant to use his telephone. The defendant called his house and spoke to his stepfather, in an attempt to reach his cousin. After his efforts to reach his cousin by telephone were unsuccessful, the defendant observed the police coming toward him, and he was promptly arrested. The defendant denied any involvement in the attempted murder of Hopson.

On July 20,2005, the court rendered judgment finding the defendant guilty on the charge of attempt to commit murder and not guilty on the remaining charges. The court’s judgment of guilty was rendered on the basis of the witness identifications, including that made by Dago, and the statements of the defendant. This appeal followed.

I

The defendant first claims that the state failed to present sufficient evidence for the court to conclude beyond a reasonable doubt that he attempted to murder Hopson. Specifically, the defendant contends that the state presented unreliable identification evidence, including unreliable canine tracking evidence, and that there was insufficient forensic evidence linking the defendant to the crime. Further, the defendant contends that the state’s theory of the case, placing him approximately one third of one mile away from the crime scene just minutes after the shooting, belies logic and common sense.

“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. . . .

“We note that the [finder of fact] must find every element proven beyond a reasonable doubt in order to find the defendant guilty of the charged offense, [but] each of the basic and inferred facts underlying those conclusions need not be proved beyond a reasonable doubt. ... If it is reasonable and logical for the [fact finder] to conclude that a basic fact or an inferred fact is true, the [fact finder] is permitted to consider the fact proven and may consider it in combination with other proven facts in determining whether the cumulative effect of all the evidence proves the defendant guilty of all the elements of the crime charged beyond a reasonable doubt. . . .

“Moreover, it does not diminish the probative force of the evidence that it consists, in whole or in part, of evidence that is circumstantial rather than direct. . . . It is not one fact, but the cumulative impact of a multitude of facts which establishes guilt in a case involving substantial circumstantial evidence. ... In evaluating evidence, the [finder] of fact is not required to accept as dispositive those inferences that are consistent with the defendant’s innocence. . . . The [finder of fact] may draw whatever inferences from the evidence or facts established by the evidence it deems to be reasonable and logical. . . .

“Finally, [a]s we have often noted, proof beyond a reasonable doubt does not mean proof beyond all possible doubt . . . nor does proof beyond a reasonable doubt require acceptance of every hypothesis of innocence posed by the defendant that, had it been found credible by the [finder of fact], would have resulted in an acquittal. ... On appeal, we do not ask whether there is a reasonable view of the evidence that would support a reasonable hypothesis of innocence. We ask, instead, whether there is a reasonable view of the evidence that supports the [finder of fact’s] verdict of guilty.” (Internal quotation marks omitted.) State v. Ledbetter, 275 Conn. 534, 542-43, 881 A.2d 290 (2005), cert. denied, 547 U.S. 1082, 126 S. Ct. 1798, 164 L. Ed. 2d 537 (2006).

The defendant’s sufficiency claim is premised on his theory of the case that he was not the shooter and that the police jumped to conclusions, erroneously arresting the wrong man. Essentially, this claim comprises a three-pronged attack on (1) the reliability of the eyewitness identifications, (2) the reliability of the K-9 unit identification and the lack of physical evidence pointing to the defendant and (3) the state’s theory, which placed the defendant one third of one mile from the crime scene in the circumstances in which he was found, just a short time after the shooting.

With respect to the reliability of the pretrial eyewitness identifications made by Hopson, Brown and Kindschi, as we conclude in part II, this evidence was sufficiently reliable to support its admissibility at trial. In evaluating this evidence in the context of the defendant’s sufficiency claim, the court reasonably could have concluded that this evidence was a compelling component in the court’s determination that the defendant was the shooter. Each of the three witnesses had ample opportunity to view the defendant in daylight hours. Kindschi observed the defendant, from a distance of ten to twenty feet, turn and look at her as she stood in her driveway, and she then went into her house and continued to watch him for another five to ten minutes. Hopson, who positively identified the defendant in court, testified that just prior to the shooting, he “locked eyes” very intensely with the defendant and observed the defendant smirk as he fired the gunshot. Similarly, Brown was only a short distance away as she observed the defendant enter the parking lot and fire the gunshot. During the show-up identification, each of these witnesses unequivocally identified the defendant as the perpetrator.

With respect to the reliability of Dago’s identification and the lack of physical evidence pointing to the defendant, the defendant’s argument contains only the conclusory assertion that this case “presents unreliable dog tracking evidence” and notes that there was no forensic evidence linking the defendant to the crime, cursorily directing us to the facts presented at trial. While the facts presented by the defense, e.g., radio transmissions that support the inference that the K-9 unit was redirected toward the defendant and evidence of lead on the defendant’s hand that was arguably inconsistent with gunshot residue, bolster the defendant’s theory of innocence, it is not the province of this court to determine whether there is a reasonable view of the evidence that would support a reasonable hypothesis of innocence. Rather, we must determine whether there is a reasonable view of the evidence that supports the court’s judgment of guilty. See State v. Ledbetter, supra, 275 Conn. 543. On the basis of the evidence presented at trial, the court reasonably could have relied on Mazzotta’s testimony that Dago identified the defendant and the expert testimony that a component of gunshot residue had been detected on the defendant’s hand to support its conclusion.

Similarly, the defendant’s meticulous presentation of the chronology of the events between the time of the shooting and his apprehension merely supports the notion that there may be a reasonable view of the evidence that would support a reasonable hypothesis of innocence. We disagree with the defendant that the chronology evidence made it impossible or even unreasonable for the court to conclude that the defendant was the shooter. In construing the evidence presented at trial in the light most favorable to sustaining the judgment, it cannot be disputed that Brown’s 911 call, which was admitted as a full exhibit at trial, demonstrates that approximately six minutes elapsed between the time that Brown initiated the call and the time that she reported on the tape recording that the first officer arrived. Further, 911 dispatch records indicated that the first police officer to arrive on the scene was Vinci, who arrived at 5:37:29 p.m. Thus, the court reasonably could have drawn the inference that at least seven minutes elapsed between the time of the shooting and the time that the defendant made the first telephone call on Wasilewski’s telephone at 5:38 p.m., which would have given the defendant ample time to cover one third of one mile, enter Giuseppe’s restaurant and discard evidence along the way. The defense presented evidence at trial that a fifty-two year old, 230 pound male investigator was able to cover the distance at a “brisk jog” in less than two and one-half minutes.

The court indicated that in addition to the identification evidence, its finding of guilt was made on the basis of the defendant’s statements. We agree that the statements provide a compelling piece of evidence in support of the defendant’s guilt. In addition to the defendant’s admissions to Proctor, the defendant testified at trial that at the time of the shooting, he was a liar, a drug addict and a street hustler. This evidence, as well as the evidence of his prior convictions, including an assault conviction, supports a reasonable inference that the defendant had a motive and the capability to carry out the offense. On the basis of the evidence presented at trial, we cannot conclude that no reasonable view of the evidence exists that supports the court’s findings.

II

The defendant next claims that the court improperly denied his motion to suppress the pretrial identifications of him made by Hopson, Brown and Kindschi. The defendant argues that his state and federal constitutional rights to due process and a fair trial were violated because the identifications were unreliable. We disagree.

Prior to trial, the court conducted a six day suppression hearing on the defendant’s motion to suppress the three witness identifications of the defendant that occurred on Williams Street. The following additional facts, established at the suppression hearing, are relevant to our resolution of the defendant’s claim.

After his apprehension, the police placed the defendant in the back of a cruiser on Williams Street and had each of the three witnesses driven by individually in another cruiser to make the identification. Coordinating this show-up identification process by radio, the officers took the defendant out of the back of the cruiser and had him stand as a cruiser canying each witness drove by him.

Hopson testified that just prior to the identification, the police told him that they wanted him to identify someone, and he was transported to the location. As he was driven by the defendant, Hopson noticed that the defendant’s head was bowed down initially but that the defendant lifted his head, and Hopson was able to get a good look at the defendant’s face. Immediately upon viewing the defendant’s face, Hopson “knew emphatically” that the defendant was the person who shot at him. Hopson also positively identified the defendant in court as the perpetrator.

Similarly, Brown testified that as she drove by, she immediately knew that the man standing on Williams Street was the perpetrator. She also was able to get a good look at the defendant’s face to make the identification. With respect to the defendant’s clothing, Brown testified that her focus was on the defendant’s face and not his sweatshirt.

Kindschi testified that the police told her that they had apprehended someone who they believed was involved in the shooting and asked her to make an identification. Kindschi told the police that she could only identify the clothing and not the perpetrator’s face. As she drove by the defendant, Kindschi testified that the defendant was standing handcuffed with his back facing her, flanked by police officers on both sides. She testified that there probably were more than two officers present with the defendant during the show-up. Kindschi testified that the cruiser in which she was riding stopped near the defendant and that she focused on his black wind pants and black sneakers. Kindschi was confident that the defendant was the same person she had seen earlier because of his pants and sneakers.

At the conclusion of the hearing, the court determined that the identifications were unnecessarily suggestive. Nevertheless, the court determined that the identifications were reliable under the totality of the circumstances. Accordingly, the court denied the defendant’s motion to suppress.

“[BJecause the issue of the reliability of an identification involves the constitutional rights of an accused . . . we are obliged to examine the record scrupulously to determine whether the facts found are adequately supported by the evidence and whether the court’s ultimate inference of reliability was reasonable. . . . [T]he required inquiry is made on an ad hoc basis and is two-pronged: first, it must be determined whether the identification procedure was unnecessarily suggestive; and second, if it is found to have been so, it must be determined whether the identification was nevertheless reliable based on an examination of the totality of the circumstances. ... To prevail on his claim, the defendant has the burden of showing that the trial court’s determinations of suggestiveness and reliability both were incorrect. . . .

“Furthermore, [w]e will reverse the trial court’s ruling [on evidence] only where there is an abuse of discretion or where an injustice has occurred . . . and we will indulge in every reasonable presumption in favor of the trial court’s ruling. . . . Because the inquiry into whether evidence of pretrial identification should be suppressed contemplates a series of factbound determinations, which a trial court is far better equipped than this court to make, we will not disturb the findings of the trial court as to subordinate facts unless the record reveals clear and manifest error.” (Internal quotation marks omitted.) State v. St. John, 282 Conn. 260, 276-77, 919 A.2d 452 (2007).

“[Reliability is the linchpin in determining the admissibility of identification testimony .... To determine whether an identification that resulted from an unnecessarily suggestive procedure is reliable, the corruptive effect of the suggestive procedure is weighed against certain factors, such as the opportunity of the [witness] to view the criminal at the time of the crime, the [witness’] degree of attention, the accuracy of [the witness’] prior description of the criminal, the level of certainty demonstrated at the [identification] and the time between the crime and the [identification].” (Internal quotation marks omitted.) Id., 279.

In determining that the identifications were reliable under the totality of the circumstances, the court applied the relevant factors. First, the court found that each of the three witnesses had an ample and adequate opportunity to view the defendant at or near the time of the shooting. Second, the court found that all three witnesses paid a high degree of attention to the defendant. With respect to Hopson, the court noted that prior to the shooting, Hopson was approached closely by the defendant as the defendant requested money from him. Similarly, the court noted that prior to the shooting, Brown’s “antennae . . . were up” because upon seeing the defendant approach Hopson, she grew immediately concerned, fearing a replay of the prior assault on Hop-son in the parking lot. With respect to Kindschi, the court noted that her interest had been aroused and her attention was sufficient. Third, the court determined that, for the purposes of admissibility, the descriptions were sufficiently accurate to allow the identifications to be admitted. Although the court conceded that there were some inconsistencies, the court noted that the descriptions were all accurate as to the type and nature of the clothing and the description of the defendant as a black male. Fourth, the court found that each of the witnesses was very certain that the defendant was the perpetrator. The court noted, in particular, Hopson’s level of absolute certainty. Finally, the court found that the period between the shooting and the identifications, which was only thirty to thirty-five minutes, was a very brief period.

Our examination of the record reveals that the court’s findings with respect to the show-up pretrial identifications by Hopson, Brown and Kiñdschi are amply supported. We therefore conclude that the court did not abuse its discretion in determining that the identifications were reliable under the totality of the circumstances. See State v. St. John, supra, 282 Conn. 280-81.

Ill

The defendant’s final claim is that the court improperly denied his postjudgment motions for a new trial or a judgment of acquittal in which he claimed that the court’s judgment of conviction of attempt to commit murder was legally and factually inconsistent with the court’s judgment of acquittal on the remaining charges. The defendant claims that these inconsistent findings denied him his right to due process and to a valid finding under the state and federal constitutions. Alternatively, the defendant seeks relief under our supervisory authority. See Practice Book § 60-2.

On August 6, 2004, the defendant filed a motion for a judgment of acquittal and a motion for entiy of a judgment of not guilty or a new trial, in which he sought relief on the ground that the court, inter alia, rendered inconsistent findings. On February 8, 2005, the court issued a memorandum of decision denying these motions. In its decision, the court rejected both the claimed legal and factual inconsistency arguments set forth by the defendant. The defendant now raises both claims on appeal.

A

With respect to the claim of a legal inconsistency in the court’s judgment, the defendant claims that the court improperly rendered judgment of conviction on the charge of attempt to commit murder in violation of §§ 53a-54 (a) and 53a-49 (a) (2) while simultaneously rendering judgment of acquittal on the charge of attempt to commit assault in the first degree in violation of §§ 53a-59 (a) (1) and 53a-49 (a) (2). As such, the defendant argues that the court’s denial of his postverdict motions was improper. We disagree.

“[ W]here the inconsistent verdicts claim involves a simultaneous conviction and acquittal on different offenses, the court, in testing the verdict of guilty for inconsistency as a matter of law, is necessarily limited to an examination of the offense charged in the information and the verdict rendered thereon without regard to what evidence the [fact finder] had for consideration. ... If the offenses charged contain different elements, then a conviction of one offense is not inconsistent on its face with an acquittal of the other.” (Internal quotation marks omitted.) State v. Knight, 266 Conn. 658, 667, 835 A.2d 47 (2003). Because this claim presents a question of law, our review is plenary. See State v. Mooney, 61 Conn. App. 713, 719, 767 A.2d 770, cert. denied, 256 Conn. 905, 772 A.2d 598 (2001).

The second count of the information, which charged the defendant with attempt to commit murder, alleged in relevant part that the defendant, “with intent to cause the death of another person, namely: Derek Hopson, did attempt to cause death to such person by means of a deadly weapon, to wit: a .25 caliber pistol . . . .” The third count of the information, which charged the defendant with attempt to commit assault in the first degree, alleged in relevant part that the defendant, “with intent to cause serious physical injury of another person, namely: Derek Hopson, did attempt to cause serious physical injury to such person by means of a deadly weapon, to wit: a .25 caliber pistol . . . .”

In comparing the charged offenses for the purpose of determining the existence of a legal inconsistency, the defendant argues that although each offense requires a distinct conscious objective (i.e., a specific intent to commit murder versus a specific intent to commit serious bodily injury), our Supreme Court has stated that “one cannot intend to cause death without necessarily intending to cause physical injury.” State v. Murray, 254 Conn. 472, 483, 757 A.2d 578 (2000). Accordingly, the defendant argues that the charge of attempt to commit assault in the first degree, of which he was acquitted, was a lesser offense included within the charge of attempt to commit murder. Therefore, the defendant argues that the conviction is legally inconsistent with the acquittal and that it must be reversed.

Although we may not consider the evidence presented at trial, we must examine the offenses charged in the information and the judgment rendered by the court to determine whether an inconsistency exists as a matter of law. See State v. Knight, supra, 266 Conn. 667. In rendering its judgment, the court explained that “[o]n the charge of criminal attempt to commit murder, I find that the identifications ... by the witnesses, including that of Dago, were veiy strong and powerful, and the statements of [the defendant] himself, also, were persuasive. On the third [attempt to commit assault in the first degree], fourth and fifth counts, I will simply note that there was insufficient evidence in my judgment to connect [the defendant] to the gun, which was found on [May 29, 2003].”

Upon review of those findings, we conclude that in rendering its judgment on the charged offenses, the court improperly imposed an additional element with respect to the charges of which the defendant was acquitted. Specifically, the court imposed an additional proof requirement on the state to demonstrate that the gun alleged in those counts was the exact .25 caliber handgun that the police recovered one week after the shooting. The use of a handgun of any kind is not an element of the crime of murder. Therefore, as a matter of law, the judgment of conviction rendered by the court on the charge of attempt to commit murder was not inconsistent on its face with the judgment of acquittal on the charge of attempt to commit assault in the first degree.

B

With respect to the claim of a factual inconsistency in the court’s judgment, the defendant argues that the judgment of conviction on the charge of attempt to commit murder is factually and logically inconsistent with the judgment of acquittal on the charges of attempt to commit assault in the first degree, carrying a pistol without a permit and criminal possession of a firearm. Specifically, the defendant points out that each of these charged offenses in the information alleged the use or possession of a .25 caliber handgun. The defendant argues that because the court found him guilty of attempt to commit murder involving the use of a .25 caliber handgun, there is no reasonable explanation for the court’s conclusion that he was not guilty of carrying and possessing a .25 caliber pistol during the commission of this offense. The defendant urges us to adopt the view that unlike injury trials, factually inconsistent findings rendered by a trial court as the sole fact finder are impermissible.

With respect to criminal trials before a jury, “[t]he general rule to which we subscribe is that factual consistency in the verdict is not necessary. Each count in an indictment is regarded as if it [were] a separate indictment. ... [A] factually inconsistent verdict will not be overturned on appeal. On several occasions, [the Supreme Court] has refused to reverse a verdict of guilty on one count where that verdict appeared to be inconsistent with a verdict of acquittal on another count. . . . The law permits inconsistent verdicts because of the recognition that jury deliberations necessarily involve negotiation and compromise. . . . [IJnconsistency of the verdicts is immaterial. ... As Justice Holmes long ago observed in the case of Dunn v. United States, 284 U.S. 390, 393-94, 52 S. Ct. 189, 76 L. Ed. 356 (1932): The most that can be said in such cases ... is that the verdict shows that either in the acquittal or the conviction the jury did not speak their real conclusions, but that does not show that they were not convinced of the defendant’s guilt. We interpret the acquittal as no more than their assumption of a power which they had no right to exercise, but to which they were disposed through lenity. . . . That the verdict may have been the result of compromise, or a mistake on the part of the jury, is possible. But verdicts cannot be upset by speculation or inquiry into such matters.” (Citation omitted; internal quotation marks omitted.) State v. Knight, supra, 266 Conn. 669-70.

With respect to criminal matters tried to a court, there is a split of authority concerning the permissibility of inconsistent findings rendered by the trial court as the sole trier of fact, and the issue remains unresolved in our courts. See id., 671 n.11. “In [United States v. Maybury, 274 F.2d 899, 902 (2d Cir. I960)] the United States Court of Appeals for the Second Circuit reasoned that the rationale for permitting inconsistent verdicts from a jury does not exist in criminal cases before a judge. There is no arbitral element in ... a trial [to the court]. While the historic position of the jury affords ample ground for tolerating the jury’s assumption of the power to insure lenity, the judge is hardly the voice of the country, even when he sits in the jury’s place. If he deems an indictment multiplicious, he has only to say so, and the time for him to exercise any lenity that he deems warranted is on sentence. There is no need to permit inconsistency in the disposition of various counts so that the judge may reach unanimity with himself . . . .” (Emphasis in original; internal quotation marks omitted.) State v. Knight, supra, 266 Conn. 671.

As our Supreme Court has stated, “[i]t is clear that, in Maybury, the Second Circuit was concerned solely with the situation wherein a trial court, sitting as the sole trier of fact, has undermined the credibility of its own decision by rendering two or more verdicts that are inconsistent with each other. Indeed, the court explained that the reason for reversing an inconsistent verdict by a trial court is not because of any desire for elegantia juris but because we can have no confidence in a judgment convicting [the defendant] of one crime when the judge, by his acquittal of another, appears to have rejected the only evidence that would support the conviction here.” (Emphasis added; internal quotation marks omitted.) Id., 671-72.

In this opinion, we need not decide whether to extend the rule allowing inconsistent jury verdicts to cases tried solely to the court because even if we were to apply the law drawing a distinction, we would conclude that this is not a case that demands reversal of the judgment because of a lack of confidence in the trial court’s judgment of conviction on the charged offense of attempt to commit murder. With respect to the judgment of conviction, the court clearly stated the reasons underlying its decision, and those reasons are amply supported by the record. Rather, this case presents a situation in which the court, for reasons neither explained adequately by the court nor apparent from the record, improperly imposed an additional superfluous element to certain remaining charges in rendering its judgment of acquittal on those charges. Any error, therefore, served only to benefit the defendant, as the result of such error was the judgment of acquittal on several charges for which he should have been convicted and not an unlawful conviction.

The judgment is affirmed.

In this opinion the other judges concurred.

       The defendant was found not guilty of conspiracy to commit murder in violation of General Statutes § § 53a-54a (a) and 53a-48 (a), attempt to commit assault in the first degree in violation of General Statutes §§ 53a-5.9 (a) (1) and 53a-49 (a) (2), carrying a pistol without a permit in violation of General Statutes § 29-35 and criminal possession of a firearm in violation of General Statutes § 53a-217 (a) (1). OnMay23,2005, the court sentenced the defendant to thirteen years imprisonment on the attempt to commit murder conviction and to a five year consecutive term pursuant to the sentence enhancement provisions of General Statutes § 53-202k, for a total effective sentence of eighteen years imprisonment.

       Hopson described the hooded sweatshirt as dark charcoal gray or black in color, and Brown described it as gray.

       During their investigation, the police recovered a bullet fragment inside Hopson’s car on the floor mat in the driver’s side area. They also recovered a shell casing and a live round on the ground near the car.

       Hanlon testified that there could be a one or two minute discrepancy between when the call actually was made and this recorded time, depending on how the information is gathered. She was uncertain whether such a discrepancy existed in this case but guessed that such a delay might be about one minute.

       Mazzotta testified that he received specialized training and was certified as a K-9 handler through the state police in July, 2001. Dago went through this training and certification process with Mazzotta, and they both had been recertified on a biannual basis and performed successfully monthly in-service trainings since July, 2001. Part of Mazzotta’s responsibilities with Dago was tracking suspects who fled on foot.

       At trial, Mazzotta explained this process: “The dog is trained to have a harness during the tracking period and ... at the time of putting the harness on, the dog realizes it’s going to track and we entice the dog by getting him all excited . . . put him into a tracking mode. . . .
      “We ... get him excited by rubbing ... his head, rubbing his belly, telling him we’re going to go work, getting the . . . high-pitched voice, this way the dog gets motivated and . . . can jumble out of extra attention at that moment, prior to doing, doing the track. . . .
      “[After this process], I attach a fifteen foot leash to him, and then I bring him to the area that I was pointed to where the suspect was last seen, the person who had shot the gun was last seen, and I give him a ‘find him’ command. It’s a sharp, loud ‘find him’ and then I [do] . . . what we call casting, allow him to smell around and look for a strong scent of someone that would have the scent of apocrine or BASE would be falling from their skin and he’d pick up that odor and track that odor.”

       Mazzotta testified that Dago made a circle at the comer of Hotchkiss and Church Streets in order to pick up the scent, before heading in a northerly direction. At the suppression hearing, Prokop testified that Dago led them past Giuseppe’s restaurant on Church Street and then turned around, heading toward the defendant. Prokop testified that this about-face corresponded with radio broadcasts from another officer informing Mazzotta and Prokop that the suspect was straight ahead.

       Wasilewski estimated that three to five minutes elapsed between his initial contact with the defendant and when the defendant made his first telephone call.

       Virginia M. Maxwell, a criminalist with the state forensic science laboratory, testified that the three common elements of gunshot residue are lead, antimony and barium. She further testified that, like chalk dust, gunshot residue can be wiped away. Jack Hubball, a criminalist also with the state forensic science laboratory, testified that to the extent that there was neither antimony nor barium detected, the test results simply indicated that a component of gunshot residue had been detected. He further testified that there is an expectation that gunshot residue particles would be spherical and that in addition to the fact that neither antimony nor barium were found on the defendant’s hands, the detected lead particle was not spherical in shape.

       Laboratory tests revealed that the hat contained two Caucasian head hair fragments that were unsuitable for comparison.

       In addition, the state presented testimony from a jailhouse informant, Mason Marconi, who claimed that the defendant confessed to him while in jail. The veracity of Marconi’s testimony and his credibility at trial was called into question by the court in a later proceeding. Further, the state presented consciousness of guilt evidence that the defendant made purported inculpatory statements in a telephone call from the jail to his aunt. At the suppression hearing, however, the court noted that an ambiguity existed with respect to the meaning of these statements.

       Proctor explained that he did not report the confession earlier because he had dismissed the story initially as being far-fetched.

       Just prior to rendering its decision, the court stated, “I have to say that I struggled with this decision. I hope and pray that it is the correct one.” The court then found the defendant guilty of attempt to commit murder beyond a reasonable doubt and acquitted him on the remaining charges.

       See State v. Calabrese, 279 Conn. 393, 401-402, 902 A.2d 1044 (2006) (“[cjlaims of evidentiary insufficiency in criminal cases are always addressed independently of claims of evidentiary error” [internal quotation marks omitted]).

       The defendant neither objected to this testimony at trial nor raised on appeal the admissibility of this testimony for lack of foundation. See State v. Wilson, 180 Conn. 481, 488-90, 429 A.2d 931 (1980) (concluding that testimony of state trooper describing work with bloodhound to track and apprehend suspect admissible as expert testimony after proper foundation laid); see also State v. St. John, 282 Conn. 260, 272, 919 A.2d 452 (2007) (dog handler competent to present dog tracking evidence as expert in matter, provided proper foundation has been established).

       Although it is undisputed that Brown’s 911 call was logged by dispatch at 5:35:48 p.m., the 911 dispatcher testified that the call may have actually been made one to two minutes prior to this time. On the basis of the duration of the 911 call, it would not be unreasonable for the court to conclude that the call was actually made several minutes prior. Moreover, the defendant’s theory of the time line does not create an impossibility. In his theory, the defendant concedes that it would not be unreasonable for the court to conclude that the shooting occurred at 5:33:28 p.m. Further, it is undisputed that the defendant made the first call from Wasilewski’s telephone at 5:38 p.m., however, there was no evidence presented that would preclude the conclusion that the call was made at the tail end of 5:38 p.m. (i.e., 5:38:59 p.m.). Even if we assume arguendo that the defendant made contact with Wasilewski two minutes prior, this still would have allowed a three and one-half minute window for the defendant to cover the distance.

       We do not import a lack of confidence in the court’s statement that it struggled with its decision in rendering its finding of guilt; see footnote 13; as there is an equal inference that the court merely was reflecting on the gravity of its role as the trier of fact.

       Our courts have not distinguished the standard for admissibility of identification evidence under article first, § 8, of the constitution of Connecticut from the standard under the fourteenth amendment to the United States constitution. See State v. Ledbetter, supra, 275 Conn. 559. Thus, our courts have used the factors set forth in Neil v. Biggers, 409 U.S. 188, 93 S. Ct. 375, 34 L. Ed. 2d 401 (1972), to determine whether an identification was deemed reliable under the federal constitution. State v. Evans, 44 Conn. App. 307, 318, 689 A.2d 494, cert. denied, 240 Conn. 924, 692 A.2d 819 (1997). Because the defendant has claimed no greater protection under the Connecticut constitution, the claim is properly considered under the federal constitution. See, e.g., State v. Green, 261 Conn. 653, 656 n.7, 804 A.2d 810 (2002).

       At trial, Hopson testified that in his training and experience as a clinical psychologist, he is trained to focus on a person’s facial features, movement and gait. He testified that this training played a role in his positive identification of the defendant and that he was absolutely certain that the defendant was the perpetrator.

         Despite Kindschi’s testimony that the defendant was handcuffed and flanked by officers during the show-up and that the police had told her that they believed that he was the perpetrator, and although the court noted that the police were certain at the time that they had the sole culprit, which militated against a finding that exigencies prohibited a photographic array, the state argues, ostensibly as an alternate ground for affirmance, that the court improperly determined that identification procedures were unnecessarily suggestive. Compare State v. St. John, 282 Conn. 260, 278, 919 A.2d 452 (2007) (court properly determined identification procedure not unnecessarily suggestive where, inter alia, police presence not overwhelming, it was unclear defendant was handcuffed and police did not suggest defendant was person who committed crime). Because the reliability of the identifications is dispositive of the claim, we need not address the merits of this argument.

       The defendant raises the issue that because the court found that the show-up procedure was unnecessarily suggestive, the identifications should be invalid per se. The defendant concedes, however, that because this issue has been resolved by our Supreme Court; see State v. Ledbetter, supra, 275 Conn. 570; this court is not the proper forum to raise this issue. We agree and therefore decline to review this claim.

       The defendant seeks to draw our attention particularly to slight inaccuracies and inconsistencies in the witnesses’ description of the perpetrator’s clothing. The court acknowledged that there were some inconsistencies, and we fail to see, in considering the totality of the circumstances, how these minor inconsistencies, without more, would form the linchpin of the analysis, especially in light of Kindschi’s description that the perpetrator wore black wind pants and black sneakers, which the defendant was wearing upon his apprehension.

       The court also denied various other posttrial motions filed by the defendant.

       General Statutes § 53a-49 (a) provides in relevant part: “A person is guilty of an attempt to commit a crime if, acting with the kind of mental state required for commission of the crime, he . . . (2) intentionally does or omits to do anything which, under the circumstances as he believes them to be, is an act or omission constituting a substantial step in a coruse of conduct planned to culminate in his commission of the crime.”
      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 . . . .”
      General Statutes § 53a-59 (a) provides in relevant part: “A person is guilty of assault in the first degree when: (1) With intent to cause serious physical iqjury to another person, he causes such injury to such person or to a third person by means of a deadly weapon or a dangerous instrument . . . .”

       As discussed in part in B, the court’s imposition of this superfluous element served only to benefit the defendant.

       The fourth count of the information, which charged the defendant with carrying a pistol without a permit, alleged in relevant part that he “did carry a pistol, to wit: a .25 caliber pistol, upon his person without a permit to carry such pistol being issued to him in violation of § 29-35 of the Connecticut General Statutes.” The fifth count of the information, which charged the defendant with criminal possession of a firearm, alleged in relevant part that he “did possess a firearm, to wit: a .25 caliber pistol, and has been convicted of a felony . . . .”

       All parties to a litigation, including the state, should reasonably expect that if they prove to the court all of the elements of a cause of action or defense, an adjudication should enter in their favor. We do not believe that it is within the power of the trial judge to acquit a defendant on charges that are clearly supported beyond a reasonable doubt by the case presented by the prosecutor. See, e.g., People v. Ellis, 468 Mich. 25, 28, 658 N.W.2d 142 (2003).


source: Caselaw Access Project

author: LAVINE, J.

license: Public Domain

text:
    STATE OF CONNECTICUT v. KAREEM A. MCDANIEL
    (AC 27646)
    Flynn, C. J., and Lavine and West, Js.

      Argued September 4
    officially released December 4, 2007

      Christopher Y. Duby, special public defender, for the appellant (defendant).

      Russell C. Zentner, senior assistant state’s attorney, with whom, on the brief, was Timothy J. Liston, state’s attorney, for the appellee (state).
   Opinion

LAVINE, J.

The defendant, Kareem A. McDaniel, appeals from the judgment of conviction, rendered after the trial court, Holzberg, J., accepted his conditional plea of nolo contendere to one count each of possession of a narcotic substance with intent to sell by a person who is not drug-dependent in violation of General Statutes § 2 la-278 (b), possession of a narcotic substance with intent to sell within 1500 feet of a public housing project in violation of General Statutes § 21a-278a (b) and criminal trespass in the first degree in violation of General Statutes § 53a-107 (a) (1). The defendant’s plea was accepted after the court, Vitale, J., denied his motions to suppress tangible evidence and statements. On appeal, the defendant claims that Judge Vitale improperly denied his motion to suppress illegal drugs found by the police. We affirm the judgment of the trial court.

The following facts and procedural history are relevant to the claim on appeal. Prior to November 10, 2003, Middletown police officers received information that the defendant was selling crack cocaine from 48 Rogers Road, Middletown, a public housing project, where he resided with his daughter and girlfriend, Jennifer Gibbs, who rented the apartment. Middletown police Detectives Jorge Yepes and Michael Inglis met with a confidential informant for the purpose of arranging a controlled purchase of crack cocaine from the defendant. The confidential informant made two such purchases, which Yepes and Inglis observed. In addition to the foregoing facts, Inglis and Yepes attested in the affidavit for a search warrant that individuals involved in the sale of narcotics receive a large quantity of the substance that they cut into smaller quantities to sell. The court, Silbert, J., issued a search and seizure warrant for the residence of 48 Rogers Road and the defendant’s person.

Inglis, Yepes and other Middletown officers executed the search warrant on November 13, 2003. The police entered the premises after knocking on the door but receiving no response. They found the defendant in the kitchen and arrested him on the criminal trespass charge. On the defendant’s person the officers found $3216 and two plastic bags later determined to contain cocaine and marijuana. The defendant was advised of his rights pursuant to Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966). A canine officer searched the premises and the perimeter of the exterior with a trained canine. The canine gave a positive alert to a black, nylon case designed to hold compact discs, which was located near the front steps of 48 Rogers Road. Inside the case was a large quantity of what later tested positive for the presence of cocaine. When the defendant was shown the black case, he hung his head and stated that everything that the police had found was his and had nothing to do with his girlfriend. Shortly before executing the search warrant, Yepes had received information from a confidential source that the defendant kept illegal drugs outside 48 Rogers Road.

On February 8, 2005, the defendant filed a motion to suppress tangible evidence seized during the search of his person and 48 Rogers Road, including but “not limited to the area abutting the property sometimes referred to as the ‘curtilage.’ ” The defendant claimed that the property was not seized pursuant to a valid search warrant because the application and affidavits did not establish probable cause. A hearing was held on the motion to suppress on February 8 and March 4, 2005. Judge Vitale denied the motion to suppress pursuant to a memorandum of decision dated March 9, 2005, in which he determined that there was probable cause to issue the search warrant.

On appeal, the defendant claims that the court improperly denied the motion to suppress tangible evidence because the search of the curtilage was not within the parameters of the search warrant for 48 Rogers Road. The state argues in response that the defendant abandoned that issue during the hearing on the motion to suppress and that he, therefore, is not entitled to review of it on appeal. Although we agree that the defendant abandoned or waived this claim at the suppression hearing, the claim is reviewable, as the record is adequate for review and the claim is of constitutional magnitude. See State v. Golding, 213 Conn. 233, 239-40, 567 A.2d 823 (1989). The defendant cannot prevail, however, because a constitutional violation did not clearly exist, and he clearly was not deprived of his constitutional rights.

The following facts are relevant to the defendant’s claim on appeal. At the conclusion of the evidentiary portion of the hearing on the motion to suppress, the following colloquy took place between the court and defense counsel:

“The Court: Sir, are you claiming that the police, as a result of the authority in the search warrant, did not have the ability to search the curtilage of the house?

“Defense Counsel: No, Your Honor, I am suggesting that ... I am trying to back into a Franks argument .... I am trying to suggest that perhaps maybe the information that was received from the confidential informant was available to them in a timely enough manner that they probably could have included it. But, more importantly, I think that there is an issue as to whether or not there is a confidential informant here, and I would like to inquire more fully into that area.

“The Court: Okay. If I understand your claim correctly, you are specifically claiming in the first part of your argument, I should say you are not claiming, I should say, in the first part of your argument that the scope of the search warrant was [exceeded] because you are indicating that you are not claiming that the police did not have the ability to search the curtilage at 48 Rogers Road. Is that correct?

“Defense Counsel: I am not, I am not making that point, that is correct, Your Honor.”

Furthermore, at times later in the colloquy, defense counsel conceded that the perimeter of 48 Rogers Road is part of the curtilage.

In response to the state’s position that his claim is not reviewable, the defendant asks that we review it pursuant to State v. Golding, supra, 213 Conn. 239-40. A constitutional right that has been waived at trial cannot be resurrected successfully on appeal, however, by invoking the Golding doctrine. See State v. Fabricatore, 281 Conn. 469, 915 A.2d 872 (2007).

“Waiver is an intentional relinquishment or abandonment of a known right or privilege. ... It involves the idea of assent, and assent is an act of understanding. . . . The rule is applicable that no one shall be permitted to deny that he intended the natural consequences of his acts and conduct. ... In order to waive a claim of law it is not necessary . . . that a party be certain of the correctness of the claim and its legal efficacy. It is enough if he knows of the existence of the claim and of its reasonably possible efficacy. . . . Connecticut courts have consistently held that when a party fails to raise in the trial court the constitutional claim presented on appeal and affirmatively acquiesces to the trial court’s order, that party waives any such claim.” (Internal quotation marks omitted.) State v. Felder, 95 Conn. App. 248, 254-55, 897 A.2d 614, cert. denied, 279 Conn. 905, 901 A.2d 1226 (2006).

“Under [State v. Golding, supra, 213, Conn. 239-40], 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. The first two Golding requirements involve whether the claim is reviewable, and the second two involve whether there was constitutional error requiring a new trial.” (Internal quotation marks omitted.) State v. Fabricatore, supra, 281 Conn. 476-77.

“A defendant in a criminal prosecution may waive one or more of his or her fundamental rights. ... In the usual Golding situation, the defendant raises a claim on appeal which, while not preserved at trial, at least was not waived at trial.” (Citations omitted; internal quotation marks omitted.) Id., 478. In Fabricatore, our Supreme Court cited with approval opinions of this court holding that a defendant who has waived a constitutional right at trial cannot prevail on that claim on appeal. “[In State v. Cooper, 38 Conn. App. 661, 670, 664 A.2d 773, cert. denied, 235 Conn. 908, 665 A.2d 903 (1995), cert. denied, 517 U.S. 1214, 116 S. Ct. 1837, 134 L. Ed. 2d 940 (1996), the Appellate Court] held that a defendant could not satisfy the third prong of Golding where he had implicitly waived at trial a challenge to the alleged constitutional deprivation that was the basis of his claim on appeal. Therefore, a defendant cannot prevail under Golding on a claim that he implicitly waived at trial. . . . State v. Arluk, 75 Conn. App. 181, 192, 815 A.2d 694 (2003).” (Internal quotation marks omitted.) State v. Fabricatore, supra, 281 Conn. 479. “The Appellate Court determined that the defendant’s claim [in Cooper] was reviewable under the first two prongs of Golding, but concluded that, because he had waived his right to have the state prove all elements of his crime, he failed to demonstrate that the alleged constitutional violation clearly existed . . . .’’Id.

In Cooper, this court also “concluded that the defendant had waived any challenge to the alleged constitutional violation because the defendant not only failed to object to the court’s instruction, but also voiced satisfaction with it. . . . To allow [a] defendant to seek reversal now that his trial strategy has failed would amount to allowing him to induce potentially harmful error, and then ambush the state with that claim on appeal.” (Internal quotation marks omitted.) Id., 480-81. In this case, defense counsel not once, but twice, told the court that the defendant was not contesting the validity of the search of the curtilage. For that reason, we conclude that a constitutional violation did not clearly exist, and the defendant cannot prevail on appeal.

The judgment is affirmed.

In this opinion the other judges concurred.

       See General Statutes § 54-94a and Practice Book § 61-6 (a) (2) (i). Judge Holzberg found that the rulings on the defendant’s motions to suppress were dispositive of the case.

       The defendant expressly was prohibited from entering the housing project by the Middletown housing authority. The defendant had signed a prohibition form, informing him that he would be subjected to civil and criminal penalties if he trespassed on the property.

       More specifically, the defendant claimed that the warrant failed to include information the police received that day that he kept the illegal drugs outside the residence.

       See Franks v. Delaware, 438 U.S. 154, 98 S. Ct. 2674, 57 L. Ed. 2d 667 (1978).

       Defense counsel stated: “I understand, our case law says that the perimeter of the house is part of the curtilage ....
      “The Court: All right, [defense counsel], but . . . doesn’t the law permit the police to search the curtilage also?
      “Defense Counsel: There is case law to that effect, Your Honor . . . .”

       Although our Supreme Court decided Fabricatore pursuant to a Golding analysis, an argument has been made that a waiver analysis should be applied when an appellant waives a constitutional right at trial but attempts to undo the waiver by asserting a constitutional claim on appeal and requesting Golding review. See State v. Arluk, supra, 75 Conn. App. 192 (Landau, J., concurring). Although the Fabricatore court relied, in part, on Arluk, it did not distinguish a Golding analysis from a waiver analysis, although it implied that a waiver analysis equally would be valid by noting that a change in strategies would amount to induced error. See State v. Fabricatore, supra, 281 Conn. 480-81.


text:
    IN RE SELENA O.

    (AC 28131)
    Harper, Lavine and Mihalakos, Js.

      Argued September 20
    officially released December 4, 2007

      Michael J. Besso, assistant attorney general, with whom, on the brief, were Richard Blumenthal, attorney general, and Susan T. Pearlman, assistant attorney general, for the appellant (petitioner).

      Trudy Condio, for the appellee (respondent mother).

       In accordance with the spirit and intent of General Statutes § 46b-142 (b) and Practice Book § 79-3, the names of the parties involved in this appeal are not disclosed. The records and papers of this case shall be open for inspection only to persons having a proper interest therein and upon order of the Appellate Court.

   Opinion

LAVINE, J.

The petitioner, the commissioner of the department of children and families, appeals from the judgment of the trial court denying the petition to terminate the parental rights of the respondent mother pursuant to General Statutes § 17a-112 (j) (3) (B) (ii) and the permanency plan developed by the department of children and families (department). On appeal, the petitioner claims that the court improperly concluded that the petitioner failed to prove by clear and convincing evidence that the respondent had failed to achieve such degree of personal rehabilitation as would encourage the belief that, within a reasonable time considering the age and needs of the child, such parent could assume a responsible position in the life of the child. We agree with the petitioner and therefore reverse the judgment of the trial court.

The record discloses the following procedural history that is relevant to our review of the claim on appeal. On January 26, 2004, the petitioner invoked a ninety-six hour hold on the child and her two half-brothers. See General Statutes § 17a-101g. On Januaiy 30, 2004, pursuant to an order of the court, Taylor, J., the petitioner assumed temporary custody of the child. On that date, the petitioner also filed a petition alleging that the child was neglected and living under conditions that were injurious to her well-being. See General Statutes § 46b-129. On April 29, 2004, Judge Taylor adjudicated the child neglected subsequent to the respondent’s plea of nolo contendere. In October, 2004, the department filed a permanency plan with the goal of terminating the respondent’s parental rights and adoption of the child. On December 16, 2004, pursuant to General Statutes (Rev. to 2003) § 46b-129 (k) (2), the court, Graziani, J., found that the department needed to make no further efforts to reunite the respondent with the child.

On February 10, 2005, the petitioner filed a petition for the termination of the respondent’s parental rights, alleging, among other things, that the respondent had failed to achieve a sufficient degree of rehabilitation as to the issues that led to the removal of the child and had failed to demonstrate that it was likely, given the age and needs , of the child, that she would be able to achieve rehabilitation and assume a responsible position in the child’s life in the foreseeable future. See General Statutes § 17a-112 (j) (3) (B) (ii). On July 19, 2005, the petitioner filed an ex parte motion for emergency relief to suspend the respondent’s visitation with the child because she was under the influence of a substance that rendered her barely able to stand when she visited with the child on July 15, 2005. Judge Graziani granted the motion.

The trial on the petition commenced on December 13, 2005, and was continued on December 14, 2005, and January 17, March 21 and May 30, 2006. On June 28, 2006, the petitioner filed a motion to open the evidence, to which the respondent objected on July 7, 2006. The petitioner withdrew her motion to open the evidence on July 19, 2006. The court, Crawford, J., rendered judgment denying the petition for termination of the respondent’s parental rights on September 27,2006. The petitioner timely filed an appeal.

In her oral decision, Judge Crawford found the following facts. The respondent was bom on October 14, 1969, and married the father of her two sons on December 31, 1989. She was incarcerated for five months in 1994 for an incident of domestic violence. The respondent and her husband separated in 1998 and were divorced two years later. The court further found that the department was first involved with the respondent and her two sons in 1995 due to the respondent’s substance abuse, emotional neglect and physical neglect of her sons and domestic violence. Her sons were removed from her home in 1997 and placed with their paternal grandmother. The sons were returned to the respondent’s custody in 1999.

The respondent became involved with the father of the child who is the subject of this appeal in 1996. They were together for approximately six years until the department removed all three of the respondent’s children from her care. The child at issue was bom on February 24, 2000. Eleven days later, the respondent suffered a heart attack and a stroke. Due to partial paralysis of her left side, the respondent received extensive therapy from Easter Seals for eight months to one year.

The department became involved with the family again in December, 2003, when the child’s Head Start teacher contacted the department and alleged that the child was emotionally neglected. The child was unhappy, aggressive and poorly behaved in school. The teacher also reported that on December 18, 2003, when the respondent brought the child to school, the respondent had a swollen black eye. The respondent stated that the child had caused the black eye by head butting her. After the respondent left, the child reported that her father had hit the respondent, causing the black eye. The respondent subsequently admitted that the father had hit her.

On December 18,2003, the respondent and the child’s father entered into a service agreement that required the child’s father to leave the home. The respondent and the child’s father entered into another service agreement on December 23, 2003.

Lindy Melendez, a department social worker assigned to the case, submitted an affidavit in support of the petitioner’s motion for an order of temporary custody in which she attested to the following. On January 22, 2004, the child’s maternal grandmother reported to the department that the respondent had been drinking, smoking marijuana and possibly using cocaine. The grandmother had not witnessed those activities firsthand but learned of them from her grandchildren. Melendez made an unannounced visit to the respondent’s home that day and observed a gauze bandage on the respondent’s left wrist, scratches above the bandage and a large blue and green bruise on the back of the respondent’s neck that extended over her left shoulder. The respondent asserted that her injuries were the result of her tripping over a toy and falling on a coffee table.

On January 26,2004, the respondent contacted Melendez at approximately 9:30 a.m. to report that the child’s father had spent the night because he was ill and had nowhere to go. The respondent asked Melendez to meet with the father. Melendez informed the respondent that the father was in violation of the service agreement. The respondent said that she would try to find the father a place to stay, and Melendez informed her that it was not her responsibility to do so. That afternoon, the petitioner invoked a ninety-six hour hold on the children. See General Statutes § 17a-101g. Melendez identified the issues affecting the respondent as substance abuse, emotional and physical neglect of the child and domestic violence. The court found that the respondent was the victim of domestic violence first at the hand of her former husband and later at the hand of the child’s father.

The court also found that the respondent reported being drug and alcohol free for seven years preceding the petitioner’s removing her children from her home. The respondent relapsed when the petitioner took the children into custody because the child’s father was present, in violation of the service agreement. After the children were removed, the department referred the respondent for domestic violence counseling, individual counseling, substance abuse evaluation and any recommended treatment. The respondent twice referred herself for substance abuse treatment but failed to complete any program successfully. The respondent completed an anger management program and, according to Melendez, tried to achieve rehabilitation.

During 2004 and 2005, the respondent continued to test positive for cocaine and marijuana. She was arrested in October, 2005, for her involvement in an incident of domestic violence. She lost her apartment and was transient between November, 2005, and February, 2006. The respondent’s probation officer applied for an arrest warrant for a violation of probation, but the respondent arranged to turn herself in.

The court concluded that “something gave [the respondent] a wake-up call” while the trial was in progress in January, 2006. The court did not know whether the “wake-up call” was due to the prospect of losing the child permanently or becoming a mother again. In January, 2006, the respondent voluntarily entered a twenty-eight day detoxification program and then a residential program at Coventry House. The respondent’s drug tests during the time she was in Coventry House were negative for alcohol, cocaine, heroin, Oxy-Contin and amphetamines. The program at Coventry House addressed coping skills, patterns of abuse, identification of triggers and the ability to heal past trauma. The respondent was in compliance with the program at the time of trial. The court also found that, subsequent to trial, the respondent transitioned into another placement in connection with Coventry House.

In summarizing the respondent’s relevant behavioral history, the court stated that the respondent had a substance abuse problem prior to 1999 but had been “clean” for seven years. The court speculated that “[t]he removal of the children may have been a trigger for her relapse.” The respondent had been given opportunities to address her challenges with respect to substance abuse and domestic violence, but she failed to comply until January, 2006. The court stated the relevant question as whether the respondent “can ... be rehabilitated in a reasonable time so as to resume her parenting role

In reaching its conclusion, the court found that the department had removed the respondent’s children from her care because she violated a service agreement. The respondent had been a victim of extreme domestic violence at the hand of her daughter’s father, who was no longer a part of the respondent’s life. The program at Coventry House in part addressed issues of domestic violence. On September 27, 2006, the court concluded in light of the respondent’s parenting abilities prior to the removal of her children, her participation in a treatment program and sobriety since January, 2006, and her expected completion of the Coventry House program in three months, followed by a year of monitoring, that “within a reasonable period of time, [the respondent] can resume her role as a parent to [the child].”

On appeal, the petitioner claims that the court based its conclusion that the respondent could achieve rehabilitation in a reasonable time “principally, centrally and decisively” on facts that were not in evidence, namely, that the respondent continued successful participation in the program at Coventry House and would complete the program in three months. We agree with the petitioner that the factual predicate for the court’s conclusion was not in evidence.

“Our standard of review on appeal from a termination of parental rights is whether the challenged findings are clearly erroneous. . . . The determinations reached by the trial court that the evidence is clear and convincing will be disturbed only if [any challenged] finding is not supported by the evidence and [is], in light .of the evidence in the whole record, clearly erroneous. . . . On appeal, our function is to determine whether the trial court’s conclusion was legally correct and factually supported. . . . We do not examine the record to determine whether the trier of fact could have reached a conclusion other than the one reached . . . nor do we retry the case or pass upon the credibility of the witnesses. . . . Rather, on review by this court every reasonable presumption is made in favor of the trial court’s ruling.” (Internal quotation marks omitted.) In re Brittany J., 100 Conn. App. 329, 334, 917 A.2d 1024 (2007).

“A finding is clearly erroneous when although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed. In applying the clearly erroneous standard to the findings of a trial court, we keep constantly in mind that our function is not to decide factual issues de novo. Our authority, when reviewing the findings of a judge, is circumscribed by the deference we must give to decisions of the trier of fact, who is usually in a superior position to appraise and weigh the evidence. . . . The question for the court ... is not whether it would have made the findings the trial court did, but whether in view of the evidence and pleadings in the whole record it is left with the definite and firm conviction that a mistake has been committed.” (Internal quotation marks omitted.) In re Ebony H., 68 Conn. App. 342, 348-49 n.4, 789 A.2d 1158 (2002). If the court’s conclusions or findings of fact rest on speculation rather than on sufficient evidence, they are clearly erroneous. See Echavarria v. National Grange Mutual Ins. Co., 275 Conn. 408, 419, 880 A.2d 882 (2005); State v. Smith, 40 Conn. App. 789, 801, 673 A.2d 1149, cert. denied, 237 Conn. 915, 675 A.2d 886, cert. denied, 519 U.S. 873, 117 S. Ct. 191, 136 L. Ed. 2d 128 (1996); Williams v. Campanaro Construction Co., 20 Conn. App. 709, 711-13, 570 A.2d 228 (1990).

“Where . . . some of the facts found [by the trial court] are clearly erroneous and others are supported by the evidence, we must examine the clearly erroneous findings to see whether they were harmless, not only in isolation, but also taken as a whole. ... If, when taken as a whole, they undermine appellate confidence in the court’s fact finding process, a new hearing is required.” (Internal quotation marks omitted.) New Haven v. Tuchmann, 93 Conn. App. 787, 795, 890 A.2d 664, cert. denied, 278 Conn. 903, 896 A.2d 104 (2006).

General Statutes § 17a-112 (j) provides in relevant part that “[t]he Superior Court . . . may grant a petition filed pursuant to this section if it finds by clear and convincing evidence that . . . (B) the child . . . (ii) is found to be neglected or uncared for . . . and [the parent] has failed to achieve such degree of personal rehabilitation as would encourage the belief that within a reasonable time, considering the age and needs of the child, such parent could assume a responsible position in the life of the child . . . .”

“Personal rehabilitation . . . refers to the restoration of a parent to his or her former constructive and useful role as a parent [and] requires the trial court to analyze the [parent’s] rehabilitative status as it relates to the needs of the particular child, and further that such rehabilitation must be foreseeable within a reasonable time. . . . The statute does not require [a parent] to prove precisely when she will be able to assume a responsible position in her child’s life. Nor does it require her to prove that she will be able to assume full responsibility for her child, unaided by available support systems. It requires the court to find, by clear and convincing evidence, that the level of rehabilitation she has achieved, if any, falls short of that which would reasonably encourage a belief that at some future date she can assume a responsible position in her child’s life.” (Citations omitted; internal quotation marks omitted.) In re Eden F., 250 Conn. 674, 706, 741 A.2d 873, reargument denied, 251 Conn. 924, 742 A.2d 364 (1999).

“In the adjudicatory phase, the judicial authority is limited to evidence of events preceding the filing of the petition or the latest amendment, except where the judicial authority must consider subsequent events as part of its determination as to the existence of a ground for termination of parental rights.” Practice Book § 35a-7 (a). “In the adjudicatory phase, the court may rely on events occurring after the date of the filing of the petition to terminate parental rights when considering the issue of whether the degree of rehabilitation is sufficient to foresee that the parent may resume a useful role in the child’s life within a reasonable time.” (Emphasis in original; internal quotation marks omitted.) In re Jennifer W., 75 Conn. App. 485, 495, 816 A.2d 697, cert. denied, 263 Conn. 917, 821 A.2d 770 (2003).

We have reviewed the record, including the evidence at trial, and the briefs and arguments of the parties. The parties agree on the following facts, which find support in the record. The petitioner filed a petition for termination of the respondent’s parental rights in February, 2005. The trial was held on December 13 and 14, 2005, and January 17, March 21 and May 30, 2006. On the last day of trial, the court heard evidence from David M. Mantell, a clinical psychologist, concerning the best interest of the child, and final arguments of the parties. The parties also agree that in reaching its conclusion, the court relied on the “fact” that the respondent completed nine months of the program at Coventry House and would complete the program in three months.

In her brief, the petitioner set forth the dates of certain events supported by references to the appropriate portions of the transcript. See Practice Book § 67-4 (c). The respondent entered a detoxification program at Alcohol and Drug Recovery Centers in January, 2006. The respondent entered Coventry House on February 2, 2006. Gloria Cooper, a counselor trainee with Coventry House, described the program’s duration as being nine to twelve months. All of the evidence concerning the respondent’s participation in the program at Coventry House was presented at trial on March 21, 2006. Critically, the record of evidence presented at trial demonstrates that the court heard no evidence of the respondent’s participation in the Coventry House program beyond March, 2006.

In its oral decision, the court found on September 27, 2006, that the respondent had completed nine months of the Coventry House program, from January to September, 2006. On the basis of our review of the evidence, we conclude that there is no evidence to support a finding that the respondent entered the program in January, 2006. She therefore could not have completed nine months of the program in September, 2006. Furthermore, without evidence that the respondent continued to comply with the Coventry House program beyond March, 2006, the court’s conclusion that the respondent was still participating in the program in September, 2006, and would complete the program in three months was based on pure speculation. This clearly erroneous finding was central to the court’s conclusion that the respondent could achieve rehabilitation.

The petitioner argues that not only did the court rely on facts that were not in evidence, but it also relied on a nonexistent fact. In support of this argument, the petitioner asks this court to take judicial notice of In re Dante N., Superior Court, judicial district of Tolland, Juvenile Matters at Rockville, Docket No. T11-CP06012605-A. “Judicial notice may ... be taken at any stage of the proceedings including on appeal.” (Internal quotation marks omitted.) Drabik v. East Lyme, 234 Conn. 390, 398, 662 A.2d 118 (1995). We take judicial notice as requested by the petitioner. See Karp v. Urban Redevelopment Commission, 162 Conn. 525, 527, 294 A.2d 623 (1972) (“[t]here is no question . . . concerning our power to take judicial notice of files of the Superior Court, whether the file is from the case at bar or otherwise”). In re Dante N. reveals that the respondent gave birth to a child (newborn) on August 8, 2006. We take judicial notice that on September 7, 2006, Judge Graziani granted the petitioner’s motion for an order of temporary custody of the newborn, who was in immediate physical danger from his surroundings. The respondent subsequently agreed, in In re Dante N., to confirm the order of temporary custody.

We conclude therefore that the court’s finding that the respondent could achieve rehabilitation within a reasonable period of time to resume her role as a parent to the child is speculation founded on clearly erroneous subordinate factual determinations that the respondent had been in a treatment program at Coventry House and sober since January, 2006, and that she was near completion of the program at the time of judgment. We further conclude that the court’s finding on this important issue was central to its decision and “undermine[s] appellate confidence in the court’s fact finding process . . . .” (Internal quotation marks omitted.) New Haven v. Tuchmann, supra, 93 Conn. App. 795. Neither this court nor the trial court may speculate, or make a finding with respect to a termination of parental rights petition, on the basis of evidence that is not in the record. See In re Shane P., 58 Conn. App. 234, 243, 753 A.2d 409 (2000) (respondent cannot argue possibility of release on probation and bootstrap that possibility into matter of such importance that without its consideration court commits reversible error).

The judgment is reversed and the case is remanded for further proceedings in accordance with law.

In this opinion the other judges concurred.

       The petitioner also filed a petition to terminate the parental rights of the child’s father, which has been withdrawn. In this opinion, we refer to the child’s mother as the respondent.

       Counsel for the child filed a statement adopting the brief of the petitioner.

       The respondent’s sons are not the subject of this appeal.

       In her motion to open the evidence, the petitioner represented, in part, that Coventry House, the program in which the respondent was participating, reported that the respondent was no longer a resident as of mid-June, 2006.

       In the petitioner’s notice of withdrawal of the motion to open the evidence, she represented, and the respondent agreed, that at the time the motion to open the evidence was filed, the respondent was no longer residing at Coventry House and her whereabouts were unknown.

       In her affidavit, Melendez described the child as defiant and clingy, one who yelled and acted out when she did not want to do what she was told. Immediately after the child was removed from the respondent’s home, she was placed in a safe house until February 20,2004. Thereafter, she was placed with her paternal grandparents. The grandmother asked the department to remove the child because she and the paternal grandparent were old and not in the best of health. She also wanted the child removed because the child was out of control, having bitten, punched and kicked her grandparents.
      The petitioner removed the child from her paternal grandparents’ home on May 19, 2004, and placed her in a foster home where she remained until March, 2005. The child was disruptive of the placement as she often had temper tantrums and screaming spells. She stole things from members of the household and hid them in or around her bed and backpack. At the request of the foster parent, the petitioner removed the child from the foster home on March 3, 2005, and placed her in another foster home. The first foster parent believed that the child could benefit from being in a home where she was the only child.
      Most of the child’s bad behavior in the foster home or her grandparents’ home occurred at bedtime. At school, she had temper tantrums that usually occurred around nap time. She refused to take naps, stood on tables and used toys inappropriately. On one occasion, after the child had visited with her father, she took the chain links in her classroom and wrapped them around her ankles, stood on a table and said, “Look at me, I’m daddy.”
      On March 18,2005, the child was diagnosed with attention deficit hyperactivity disorder and prescribed Ritalin. In late November, 2005, the child was removed from the second foster home, again due to behavioral problems. She was placed in a third foster home where she resided at the time of trial.

       The respondent had reported to her probation officer that she was pregnant.

       The petitioner pointed out that the respondent conceded in her brief that the court based its conclusion that she could rehabilitate herself within a reasonable period of time on facts that were not in evidence regarding her participation and progress in the Coventry House program. The respondent also made that concession at oral argument before us. The respondent nonetheless claims that there are other factors that support the court’s conclusion. For example, the respondent contends that the court based its decision in part on the petitioner’s decision to withdraw the termination of parental rights petition against the child’s father and on the child’s psychological needs.
      We agree that the respondent conceded that the court based its conclusion on a fact that was not in evidence. As to the respondent’s arguments concerning the withdrawal of the petition to terminate the parental rights of the child’s lather and the child’s psychological needs, neither of those issues is relevant to whether the respondent achieved such degree of personal rehabilitation as would encourage the belief that within a reasonable time, considering the age and needs of the child, she could assume a responsible position in the life of the child. There is no nexus between the petitioner’s withdrawing the petition to terminate the parental rights of the child’s father and the respondent’s ability to achieve sufficient rehabilitation. The child’s psychological needs concern the dispositional phase of a termination of parental rights proceeding, not the adjudicatory phase. See, e.g., In re Shaun B., 97 Conn. App. 203, 206-207, 903 A.2d 246 (2006) (hearing on petition to terminate parental rights consists of two phases: in adjudicatory phase, court determines whether one of statutory grounds for termination exists by clear and convincing evidence; if court determines statutory ground exists, it proceeds to dispositional phase).

       In support of the motion for temporary custody, a department social worker, Adam Liebowitz, submitted an affidavit under oath, attesting that the respondent was discharged unsuccessfully from Coventry House after four months in June, 2006, for lack of compliance. She took up residency at the Tri Town Shelter (shelter) and gave birth at the University of Connecticut Medical Center. The child’s meconium screening tested positive for cocaine, and the department was contacted. The respondent was uncertain of the newborn’s father. She denied using drugs but submitted to a hair toxicology screening, which was positive for cocaine. The shelter has a strict policy of no drug use. On the basis of the positive drug screening, the shelter discharged the respondent and the newborn. The respondent had no place to live. The petitioner took custody of the newborn pursuant to a ninety-six hour administrative hold. See General Statutes § 17a-101g.

       Because we reverse the judgment with respect to the court’s finding in the acljudicatory phase of the proceeding, we need not address the petitioner’s second claim concerning the department’s permanency plan.