author: PETERS, J.

text:
    RMM CONSULTING, LLC v. MICHAEL J. RIORDAN
    (AC 31529)
    Bishop, Lavine and Peters, Js.
    Argued March 14 —
    officially released May 17, 2011

      Brendon P. Levesque, with whom were Karen L. Dowd and, on the brief, Michael S. Taylor and Dana M. Hrelic, for the appellant (plaintiff).

      Kenneth B. Walton, with whom was Leslie P. King, for the appellee (named defendant).
   Opinion

PETERS, J.

“The essential elements of a cause of action in negligence are well established: duty; breach of that duty; causation; and actual injury.” (Internal quotation marks omitted.) Mazurek v. Great American Ins. Co., 284 Conn. 16, 29, 930 A.2d 682 (2007). In this case, in response to interrogatories, a jury found that the plaintiff had proven that the defendant, a professional surveyor, negligently had prepared a certified map that was not an accurate depiction of the boundaries of two adjoining properties in which the plaintiff had an interest. The jury also found, however, that the defendant’s negligence was not a substantial factor in causing the plaintiffs alleged harms or losses and, for that reason, rendered a verdict in favor of the defendant. The plaintiff has appealed from the trial court’s denial of its motion to set aside the verdict of the jury. We affirm the judgment of the court.

On May 12, 2009, the plaintiff, RMM Consulting, LLC, filed an amended complaint charging the defendant, Michael J. Riordan, with negligence in failing to inform the plaintiff of a potential conflict concerning the ownership of property in Warren that the plaintiff was planning to purchase for development purposes. The defendant denied his liability and filed several special defenses.

With the consent of the parties, the court bifurcated the trial. At the conclusion of the liability phase of the trial, the jury was asked to respond to special interrogatories. The jury found that the defendant had breached his duty of care to the plaintiff and had violated state regulations or the common law of negligence relating to land surveyor standards. It also found, however, that the defendant’s misconduct was not a substantial factor in causing the plaintiffs alleged harms or losses and, for that reason, rendered a verdict in favor of the defendant. The plaintiff has appealed from the court’s denial of its motion to set aside this adverse jury verdict.

The jury reasonably could have found the following facts. As the court noted in its memorandum of decision, the plaintiff, a land developer, hired the defendant, a land surveyor, to provide land surveying services in connection with the plaintiffs plan to purchase and to develop lots 9A and 9B, two adjoining pieces of real property on Sheehan Road in Warren. In accordance with this contract, the defendant staked out the boundary lines of the properties and generated a certified map of the properties that did not indicate any uncertainty about the location of the boundary lines for either lot. In addition, as a result of his investigation, the defendant warned the plaintiff, prior to its closing on the purchase of the properties, that there was “a potential issue” because there was no deed for the existing lot 9B and that it would be advisable to get a warranty deed for the purchase of that property.

There was conflicting evidence at trial about the extent of the plaintiffs reliance on the defendant’s map. Maureen Morrill, the plaintiffs sole proprietor, testified that she had relied on the map produced by the defendant and that, if she had been aware of a competing title claim to any part of lot 9B, she would not have purchased the property. The defendant testified, however, that, on more than one occasion, Morrill had informed him that she had brought the title issue to the attention of the plaintiffs attorney, Thomas McDermott, and that “it had been taken care of.” It is undisputed that McDermott did not obtain title insurance for the plaintiff to ensure the plaintiffs interest in lots 9A and 9B.

The “potential issue” to which the defendant had alerted the plaintiff came to light when, in the course of reconfiguration of lots 9A and 9B to take better advantage of their proximity to Lake Waramaug, the plaintiff engaged in extensive cutting of trees on property that the plaintiff thought it had acquired in its purchase of lot 9B. In the plaintiffs subsequent action to quiet title to this disputed property, this court affirmed a trial court judgment adverse to the plaintiff. Porter v. Morrill, 108 Conn. App. 652, 949 A.2d 526, cert. denied, 289 Conn. 921, 958 A.2d 152 (2008).

Thereafter, the plaintiff filed separate actions against the defendant and McDermott that were consolidated for trial. The plaintiff settled with McDermott before trial. In accordance with General Statutes § 52-216a, in a pretrial order, the court directed counsel not to inform the jury of the resolution of the McDermott case. Nonetheless, at trial, over the defendant’s objection, the plaintiffs counsel asked Morrill about the McDermott case, and she testified that the case had been “withdrawn.” At the defendant’s request, the court then instructed the jury “not to consider or speculate about anything further involving that matter unless counsel inquires further of witnesses.”

Our standard of review of a trial court’s denial of a motion to set aside a jury verdict is well settled. Although a trial court has inherent power to set aside a jury verdict that is against the law or the evidence, it “should not set aside a verdict where it is apparent that there was some evidence upon which the jury might reasonably reach [its] conclusion .... Ultimately, [t]he decision to set aside a verdict entails the exercise of a broad legal discretion . . . that, in the absence of clear abuse, we shall not disturb.” (Internal quotation marks omitted.) Greci v. Parks, 117 Conn. App. 658, 667, 980 A.2d 948 (2009).

Our review of the record in this case persuades us to affirm the judgment of the court. The record contains ample evidence to support the jury’s finding that the plaintiff failed to prove causation, a necessary element of its negligence claim. The plaintiff has not alleged that, in the proceedings that led to the submission of the case to the jury, the court committed either evidentiary or instructional error. Notably, it was the plaintiff that, in violation of the court’s order, informed the jury that it had withdrawn the case against McDermott. Viewing the proceedings in their entirety, we concur in the court’s denial of the plaintiffs motion to set aside the verdict of the jury. Indeed, a contrary ruling would have been an abuse of the court’s discretion.

The judgment is affirmed.

In this opinion the other judges concurred.

       Although the amended complaint also cited Riordan Surveying as a codefendant, the substantive allegations of the complaint relate solely to the conduct of Riordan. Accordingly, in this opinion, we refer to him as the defendant.


source: Caselaw Access Project

author: BISHOP, J. ALVORD, J.,

license: Public Domain

text:
    MARIE E. SIC v. MICHAEL E. NUNAN
    (AC 32196)
    Bishop, Alvord and Bear, Js.

      Argued March 11 —
    officially released May 17, 2011

      M. Hatcher Norris, with whom, on the brief, was J. Anthony Doran, for the appellant (plaintiff).

      Thomas A. Kyzivat, for the appellee (defendant).
   Opinion

BISHOP, J.

In this action arising from a motor vehicle accident, the plaintiff, Marie E. Sic, appeals from the summary judgment rendered by the trial court in favor of the defendant, Michael E. Nunan. On appeal, the plaintiff claims that the court improperly determined as a matter of law that the defendant did not owe her a legal duty of care. We agree with the plaintiff and, accordingly, reverse the judgment of the trial court.

On September 24, 2008, the plaintiff filed this negligence action seeking to recover damages for personal injuries that she sustained as a result of a motor vehicle accident that occurred between herself and the defendant. The defendant filed a motion for summary judgment claiming that he was entitled to judgment as a matter of law because he did not owe the plaintiff a legal duty. For the purposes of the defendant’s motion for summary judgment, the following facts are undisputed. On September 21,2007, the defendant was traveling on Route 66 in Hebron. He stopped at an intersection to wait for a break in oncoming traffic so that he could turn left. While he was stopped, his vehicle was struck in the rear by a vehicle operated by Jessica Thoma, and his vehicle was propelled into the lane of oncoming traffic, where it collided with the plaintiffs vehicle.

In her complaint, the plaintiff alleged that the defendant was negligent in that he, inter alia, “had stopped his vehicle in such a position that he was not facing directly ahead” and that he “had stopped [his vehicle with] his wheels turned to the left, in such a manner that were he to be impacted from the rear ... his vehicle would move into the lane of travel of any oncoming vehicle rather than straight ahead.”

In support of his motion for summary judgment, the defendant provided an affidavit in which he stated that, when his vehicle was struck by Thoma’s, he was stopped at the intersection preparing to turn left and he was in his own travel lane until he was hit. In opposition to the motion, the plaintiff submitted an affidavit of John C. Swanson, Jr., an accident reconstructionist, who opined that the defendant’s vehicle was pushed ahead and to the left, rather than straight forward, because the front tires of the defendant’s vehicle were turned to the left at the time the defendant was stopped at the intersection and struck by Thoma. The defendant did not dispute Swanson’s opinion. The plaintiff also submitted the transcript of the deposition testimony of James MacPherson, a master driving instructor. MacPherson testified that, although there is no statute or regulation requiring a driver to keep the wheels of his or her vehicle straight when waiting to turn, proper and safe driving practice requires that they be kept straight.

The court granted the defendant’s motion for summary judgment, emphasizing that drivers are entitled to assume that other drivers are operating their vehicles safely. The court determined that a driver who is stopped while preparing to make a left turn does not owe a duty of care to oncoming drivers to “foresee and defend against the general possibility that a third driver will violate the law, or otherwise operate unsafely, and smash into the rear of his or her stopped vehicle and thrust it into the path of oncoming traffic.” The court, therefore, concluded that the defendant was “under no duty to defend the plaintiff against such an eventuality by having his wheels positioned in a particular direction.” This appeal followed.

“Practice Book § 17-49 provides that summary judgment shall be rendered forthwith if the pleadings, affidavits and any other proof submitted show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. In deciding a motion for summary judgment, the trial court must view the evidence in the light most favorable to the nonmoving party. . . . The party moving for summary judgment has the burden of showing the absence of any genuine issue of material fact and that the party is, therefore, entitled to judgment as a matter of law. ... On appeal, we must determine whether the legal conclusions reached by the trial court are legally and logically correct and whether they find support in the facts set out in the memorandum of decision of the trial court. . . . Our review of the trial court’s decision to grant [a party’s] motion for summary judgment is plenary.” (Internal quotation marks omitted.) Brooks v. Sweeney, 299 Conn. 196, 210, 9 A.3d 347 (2010).

Negligence “is the breach of a legal duty owed by one person to another, and such legal duty is the exercise of reasonable care.” (Internal quotation marks omitted.) Phaneuf v. Berselli, 119 Conn. App. 330, 336, 988 A.2d 344 (2010). “A duty, in negligence cases, may be defined as an obligation, to which the law will give recognition and effect, to conform to a particular standard of conduct toward another.” W. Prosser & W. Keeton, Torts (5th Ed. 1984) § 53, p. 356. The issue of whether a duty exists is a question of law that is subject to plenary review. LePage v. Horne, 262 Conn. 116, 123, 809 A.2d 505 (2002).

Our Supreme Court has defined duty as “a legal conclusion about relationships between individuals, made after the fact, and imperative to a negligence cause of action. . . . The ultimate test of the existence of the duty to use care is found in the foreseeability that harm may result if it is not exercised. ... [In other words], would the ordinary [person] in the defendant’s position, knowing what he knew or should have known, anticipate that harm of the general nature of that suffered was likely to result?” (Internal quotation marks omitted.) Monk v. Temple George Associates, LLC, 273 Conn. 108, 115, 869 A.2d 179 (2005); Borsoi v. Sparico, 141 Conn. 366, 369-70, 106 A.2d 170 (1954).

“An operator of a motor vehicle is always under a duty to exercise reasonable care . . . and to keep a reasonable lookout for persons or traffic that he or she is likely to encounter.” (Citation omitted.) State v. Carter, 64 Conn. App. 631, 642, 781 A.2d 376, cert. denied, 258 Conn. 914, 782 A.2d 1247 (2001). Thus, generally, as an operator of a motor vehicle, the defendant was under a duty to use reasonable care and to keep a reasonable lookout for persons or traffic that he was likely to encounter. More specifically, as a motorist waiting for a break in oncoming traffic to make a turn, the defendant had a duty to the plaintiff to exercise reasonable care not to cross his vehicle into her lane of traffic and strike her vehicle. In granting the defendant’s motion for summary judgment on this issue, we believe that the court incorrectly focused on whether the defendant had a specific duty to the plaintiff to keep the wheels of his vehicle in a forward alignment rather than the more general duty that the defendant had to the plaintiff to exercise reasonable care to avoid traveling into her lane of traffic. The specific issue regarding the angle of the defendant’s vehicle or the positioning of his wheels toward oncoming traffic goes to the question of whether the defendant was negligent, an inherently factual determination. Because the question of whether the defendant breached his duty of care to the plaintiff in the negligent manner alleged by the plaintiff is a question of fact for the jury, the issue should not have been determined by summary judgment.

The judgment is reversed and the case is remanded for further proceedings according to law.

In this opinion BEAR, J., concurred.

ALVORD, J.,

dissenting. In hindsight, virtually all harms are literally foreseeable. RK Constructors, Inc. v. Fusco Corp., 231 Conn. 381, 386, 650 A.2d 153 (1994). For that reason, “[i]n every case in which a defendant’s negligent conduct may be remotely related to a plaintiffs harm, the courts must draw a line, beyond which the law will not impose legal liability.” Lodge v. Arett Sales Corp., 246 Conn. 563, 578, 717 A.2d 215 (1998). Otherwise, the imperfect vision of reasonable foreseeability would be converted into the perfect vision of hindsight. Id. I respectfully dissent because I conclude that the defendant, Michael E. Nunan, who had stopped his vehicle in his travel lane and was waiting to make a left turn, had no duty to the drivers traveling in the opposite direction to keep his wheels positioned in a particular manner to avoid being pushed into their path in the event he was rear-ended.

The majority opinion correctly states that the only allegation of negligence being addressed on appeal concerns the direction of the defendant’s vehicle and its tires. See footnote 2 of the majority opinion. Basically, the plaintiff, Marie E. Sic, claims that the defendant owed her the duty to anticipate that he would be struck from behind by another vehicle as he was stopped in his proper travel lane, waiting for a safe opportunity to make a left turn, and, therefore, he should have kept the wheels of his vehicle straight so that he would have been pushed forward rather than into the path of her vehicle. The trial court succinctly and properly framed the dispositive issue as “whether a driver, who is stopped while preparing to make a left turn, owes a duty of care to oncoming drivers to foresee and defend against the general possibility that a third driver will violate the law, or otherwise operate unsafely, and smash into the rear of his or her stopped vehicle and thrust it into the path of oncoming traffic.” The court concluded that, under the circumstances of this case, no such duty existed. I agree.

The existence of a duty is a question of law. Leon v. DeJesus, 123 Conn. App. 574, 576,2 A.3d 956 (2010). If a court determines, as a matter of law, that the defendant owes no duty to the plaintiff, the plaintiff cannot recover in negligence from the defendant. Lachowicz v. Rugens, 119 Conn. App. 866, 868, 989 A.2d 651, cert. denied, 297 Conn. 901, 994 A.2d 1287 (2010). “[T]he issue of whether a defendant owes a duty of care is an appropriate matter for summary judgment because the question is one of law.” (Internal quotation marks omitted.) Mozeleski v. Thomas, 76 Conn. App. 287, 290, 818 A.2d 893, cert. denied, 264 Conn. 904, 823 A.2d 1221 (2003).

“The essential elements of a cause of action in negligence are well established: duty; breach of that duty; causation; and actual injury. . . . Duty is a legal conclusion about relationships between individuals, made after the fact, and [is] imperative to a negligence cause of action. . . . Thus, [t]here can be no actionable negligence . . . unless there exists a cognizable duty of care. . . . [T]he test for the existence of a legal duty entails (1) a determination of whether an ordinary person in the defendant’s position, knowing what the defendant knew or should have known, would anticipate that harm of the general nature of that suffered was likely to result, and (2) a determination, on the basis of a public policy analysis, of whether the defendant’s responsibility for its negligent conduct should extend to the particular consequences or particular plaintiff in the case. . . .

“A simple conclusion that the harm to the plaintiff was foreseeable . . . cannot by itself mandate a determination that a legal duty exists. Many harms are quite literally foreseeable, yet for pragmatic reasons, no recovery is allowed. . . . [D]uty is not sacrosanct in itself, but is only an expression of the sum total of those considerations of policy which lead the law to say that the plaintiff is entitled to protection. . . . While it may seem that there should be a remedy for every wrong, this is an ideal limited perforce by the realities of this world. Every injury has ramifying consequences, like the rippling of the waters, without end. The problem for the law is to limit the legal consequences of wrongs to a controllable degree. . . . The final step in the duty inquiry, then, is to make a determination of the fundamental policy of the law, as to whether the defendant’s responsibility should extend to such results.” (Citation omitted; emphasis added; internal quotation marks omitted.) Mazurek v. Great American Ins. Co., 284 Conn. 16, 29-30, 930 A.2d 682 (2007).

With respect to the test of foreseeability, “due care does not require that one guard against eventualities which at best are too remote to be reasonably foreseeable. See Palsgraf v. Long Island R. Co., 248 N.Y. 339, 345, 162 N.E. 99 [1928] .... Due care is always predicated on the existing circumstances.” (Citations omitted; internal quotation marks omitted.) Lodge v. Arett Sales Corp., supra, 246 Conn. 575. “Liability may not be imposed merely because it might have been foreseeable that some accident could have occurred; rather, liability attaches only for reasonably foreseeable consequences.” (Emphasis in original.) Id., 577.

In the present case, I would conclude that the plaintiffs injury was not a foreseeable consequence of the defendant’s conduct. It is undisputed that the defendant’s vehicle was stopped and in its proper travel lane. His vehicle was then rear-ended by another driver’s vehicle. The defendant was “entitled to assume that other users of the highway will obey the law, including lawful traffic regulations, and observe reasonable care, until he knows or in the exercise of reasonable care should have known that the assumption has become unwarranted.” Gross v. Boston, W. & N. Y. St. Ry. Co., 117 Conn. 589, 596, 169 A. 613 (1933). As noted by the trial court in its memorandum of decision, “[n]o evidence was proffered . . . that the defendant possessed any specific information that would have caused an ordinarily vigilant driver to know that another vehicle was about to collide violently into the rear of his properly stopped car.” Further, as acknowledged by the plaintiffs expert in his deposition testimony, there is no statute or regulation requiring a driver to keep his vehicle’s wheels straight when waiting to turn. Finally, it was not the position of the defendant’s wheels that caused the plaintiffs injury, but, rather, it was Jessica Thoma’s vehicle pushing the defendant’s vehicle into the plaintiffs vehicle that caused the injury. Under these circumstances, I believe it was appropriate for the trial court to render summary judgment on the ground that the defendant did not owe the plaintiff a legal duty of care.

Because I would conclude that the plaintiff fails to meet the foreseeability prong of the test for a duty of care, it is not necessary to address the public policy prong of that test. See footnote 2 of this dissenting opinion. Nevertheless, I fail to see any public policy reason for extending the duty of care to the plaintiff in this case. In considering whether public policy suggests the imposition of a duty, “[a court is to] consider the following four factors: (1) the normal expectations of the participants in the activity under review; (2) the public policy of encouraging participation in the activity, while weighing the safety of the participants; (3) the avoidance of increased litigation; and (4) the decisions of other jurisdictions.” (Internal quotation marks omitted.) Monk v. Temple George Associates, LLC, 273 Conn. 108, 118, 869 A.2d 179 (2005). Not one of the four factors leads me to the conclusion that public policy would favor imposing liability on the driver of a stopped vehicle who, without any evidence that he knew or should have known that he was about to be rear-ended, is pushed into the path of an oncoming vehicle.

I therefore conclude that, under the particular circumstances of this case, the defendant cannot be held liable to the plaintiff for her injury caused by his vehicle when it was rear-ended and pushed into her vehicle. The law should not countenance the extension of legal responsibility to such an attenuated result. I would affirm the judgment of the trial court and, accordingly, I respectfully dissent.

       Jessica Thoma is not a party to this action.

       The plaintiff also alleged in her complaint that the defendant failed to brake or to turn to avoid colliding with the plaintiff, failed to keep a proper lookout “for traffic approaching from behind” and “failed to drive in [his] established lane in violation of . . . General Statutes § 14-236.” In an affidavit provided in support of his motion for summary judgment, the defendant indicated that he did not have time to avoid colliding with the plaintiffs car once he was struck by Thoma. The court concluded that there was no evidence submitted that the defendant had violated § 14-236 and that “an ordinarily prudent driver in the defendant’s situation [would have] lacked sufficient time to brake or turn after being rear-ended to escape colliding with the plaintiffs vehicle.” The court’s conclusions in this regard are not challenged on appeal. Thus, the only remaining allegations of negligence concern the direction of the defendant’s vehicle and its tires.

       The trial court did not focus on the direction of the tires of the defendant’s vehicle when it was rear-ended by the vehicle driven by Jessica Thoma. The defendant has not conceded that his wheels were turned to the left, as alleged by the plaintiff. That factual determination, however, is not material to the issue on appeal. The issue is whether an individual in the defendant’s position should have anticipated being hit from behind and have taken precautionary measures to avoid hitting any other vehicles when his vehicle was propelled by the collision.
      Query if the defendant had stopped to make the left turn and a motorcycle, also waiting to make aleft turn, had been in front of him. Would the defendant then have had the duty to turn his wheels to the left to avoid hitting the motorcycle when he was rear-ended, or would the defendant have had the duty to keep his wheels straight to avoid hitting the plaintiffs vehicle in the oncoming traffic? To whom would the defendant have owed the duty of care? Does the duty to one driver supersede the duty to the other?

       To establish the existence of a legal duty, the plaintiff must satisfy both prongs of the two part test. The absence of foreseeability, which is a necessary component of duty, forecloses the existence of a duty of care. There is no need to perform an analysis under the foreseeability prong, however, if a duty is not found to exist under the public policy prong of the test. Ryan Transportation, Inc. v. M & G Associates, 266 Conn. 520, 528-29, 832 A.2d 1180 (2003).

       With respect to the fourth factor, courts in New York and the District Court in New Jersey have concluded that no legal duty exists under similar circumstances. See Ross v. Szoke, 196 Misc. 2d 588, 763 N.Y.S.2d 389 (2003); Stretch v. Tedesco, 263 App. Div. 2d 538, 693 N.Y.S.2d 203 (1999); Fiscella v. Gibbs, 261 App. Div. 2d 572, 690 N.Y.S.2d 713 (1999); Lipski v. Vanselous, United States District Court, Docket No. 04-6009, 2006 U.S. Dist. LEXIS 2334 (D. N.J. January 18, 2006).


author: LAV1NE, J.

text:
    STATE OF CONNECTICUT v. CHADWICK ST. LOUIS
    (AC 32594)
    Lavine, Alvord and Peters, Js.

      Argued March 10 —
    officially released May 17, 2011

      Deborah G. Stevenson, special public defender, for the appellant (defendant).

      Leon F. Dalbec, Jr., senior assistant state’s attorney, with whom, on the brief, were Gail P. Hardy, state’s attorney, and David L. Zagaja, senior assistant state’s attorney, for the appellee (state).
   Opinion

LAV1NE, J.

The defendant, Chadwick St. Louis, appeals from the judgment of conviction, rendered after atrial before a three judge court, of one count of murder in violation of General Statutes § 53a-54a. On appeal, the defendant claims that the court improperly denied his motions (1) for a hearing pursuant to Franks v. Delaware, 438 U.S. 154, 98 S. Ct. 2674, 57 L. Ed. 2d 667 (1978), because the police, either knowingly and intentionally or with reckless disregard for the truth, made a false statement and omitted exculpatoiy information in their affidavits in support of their applications for the search and arrest warrants, (2) to dismiss because the search and arrest warrants were deficient as to probable cause and the search warrant was executed improperly, (3) to suppress statements he made to the police because the police failed to provide him with Miranda warnings, failed to arrange for counsel upon his request and continued to interrogate him after he had requested counsel, (4) to suppress physical evidence obtained as a result of an unlawful search warrant, (5) for acquittal because the state failed to prove beyond a reasonable doubt the exact time or location when and where the offense took place and (6) for a new trial. We reject all of the defendant’s claims and affirm the judgment of the trial court.

The following facts and procedural history are relevant to the defendant’s appeal. Christopher Petrozza worked for the defendant in his landscaping business. Petrozza and the defendant also socialized together outside of the workplace, and the defendant became financially indebted to Petrozza.

On September 14, 2006, Petrozza purchased a 1998 Audi for $5789 in cash. After purchasing the vehicle, Petrozza was short on funds and on September 29,2006, Petrozza’s mother, with whom he resided, advised him to collect the money that was owed to him by the defendant. On this date, Petrozza went to the defendant’s home in Manchester. While Petrozza was at the defendant’s home, the defendant intentionally caused Petrozza’s death by striking him with a skid-steer loader, commonly known as a “Bobcat.” After killing Petrozza, the defendant took Petrozza’s driver’s license and buried Petrozza’s body in the rear yard of his residence, covering the grave with large ornamental rocks.

After killing Petrozza, the defendant broke into a vehicle parked at his daughter’s day care center and took a purse that contained a checkbook. The defendant went to a credit union and attempted to use Petrozza’s license to cash a check from the stolen checkbook that he had forged and made payable to Petrozza.

On February 19, 2007, the Manchester police arrested the defendant on charges unrelated to the disappearance of Petrozza. The defendant indicated during the booking process that he had information relevant to the individual who was responsible for recent car break-ins. Several days later, the defendant told the police that Petrozza was responsible for the burglaries. In response, the police prepared a warrant for the arrest of Petrozza.

At his own initiative, the defendant continued to communicate with the Manchester police, the state police and the office of the state’s attorney while he was incarcerated. Despite having provided police with information about criminal activity perpetrated by third parties, the defendant was not offered a reduced sentence for the crimes related to his February 19, 2007 arrest. The defendant then began to tell the police about the existence of a dead body in an effort to receive leniency for the February 19, 2007 arrest. After he met with the Manchester police several times, on June 5, 2007, the defendant admitted to having caused the death of Petrozza and described the circumstances of Petrozza’s death as an “accident.” On June 19, 2007, the police recovered Petrozza’s body from the yard of the defendant’s residence.

The defendant was charged with one count of murder and on March 3, 2009, elected to be tried by a panel of three judges. On May 27, 2009, the defendant was convicted and sentenced to fifty years imprisonment. This appeal followed. Additional facts will be set forth as necessary.

I

The defendant first claims that the court erred in denying his motion for a hearing pursuant to Franks v. Delaware, supra, 438 U.S. 154, because the police, either knowingly and intentionally or with reckless disregard for the truth, provided false information in the separate search and arrest warrant affidavits and omitted exculpatory information. We disagree.

The following facts are relevant to the defendant’s claim. On June 15, 2007, members of the Manchester police department submitted an application for a search warrant to enter upon and search the exterior premises of the defendant’s property for Petrozza’s body. In the affidavit in support of their application, the affiants stated that they had met with Matthew Palermo. The affiants alleged that Palermo told them that he purchased an Audi from the defendant for $4000 and that as he was signing the bill of sale and other paperwork, he saw Petrozza’s name as the listed owner. They also alleged that when Palmero attempted to register the Audi with the department of motor vehicles (department), he learned that he needed to get the Audi’s paperwork notarized by Petrozza because he was the title owner. Palermo asked the defendant several times to put him in contact with Petrozza so he could have the paperwork notarized but the defendant stated that he could not get in touch with Petrozza. Finally, the affiants alleged that Palermo never signed Petrozza’s name to any of the paperwork. On August 10, 2007, the police submitted a separate application for a warrant to arrest the defendant for murder. The affidavit in support of the arrest warrant contained the information concerning the sale of the Audi and Palermo’s efforts to register it with the department, but it did not include anything about Palermo stating that he never signed Petrozza’s name to any of the paperwork.

On December 11, 2008, the defendant filed a motion for a Franks hearing and corresponding motion to dismiss. The defendant claimed that, in their separate applications for the search and arrest warrants, the police did not include all of the information they received from their interview with Palermo. The defendant further claimed that the police included a false statement in the affidavit for the search warrant. This false statement, according to the defendant, led the court to conclude that there was probable cause to believe that the defendant killed Petrozza and then forged Petrozza’s name to the bill of sale for the Audi so he could transfer the vehicle to Palermo for financial gain. Specifically, the defendant argued that the police omitted the portion of Palermo’s statement in which he told the police that out of frustration, he was able to get the Audi’s paperwork notarized so he could register the vehicle with the department without Petrozza being present and, instead, the police included a false statement in the affidavit that Palmero never forged Petrozza’s name on any of the paperwork. This omission, the defendant claimed, entitled him to a Franks hearing because it falsely led the judge to believe that he had committed murder.

On March 11, 2009, the court held a hearing on the defendant’s motion. The court concluded: “[T]he sentence, the Palermo sentence, omitted, is not material to the determination of probable cause. Whether or not Palermo had to forge documents to register the vehicle does not bear on the financial motive of the defendant. . . . [T]he simple fact is, the inclusion of this sentence by Palermo in the affidavit in support of the search warrant would not have defeated probable cause.” The court went on to conclude that the defendant had not carried his burden of making the required threshold showing in order to be accorded a Franks hearing. The issue for us to determine is whether the facts regarding who forged the department documents were relevant to the issue of probable cause to search the defendant’s property and arrest him for murder.

We begin our review of the defendant’s claim by detailing the requirements the defendant must satisfy to obtain a Franks hearing. “In order for a defendant to challenge the truthfulness of an affidavit underlying a warrant at a Franks hearing, he must: (1) make a substantial preliminary showing that a false statement knowingly and intentionally, or with reckless disregard for the truth, was included by the affiant in the warrant affidavit; and (2) show that the allegedly false statement is necessary to a finding of probable cause. ... If the allegedly false statement is set aside, however, and there remains sufficient evidence to establish probable cause, a Franks hearing is not necessary.” (Internal quotation marks omitted.) State v. Pappas, 256 Conn. 854, 863, 776 A.2d 1091 (2001).

“Not all omissions . . . even if intentional, will invalidate an affidavit. ... In fact, an affiant may omit facts that he believes to be either immaterial or unsubstantiated. . . . Thus, before a defendant is entitled to a Franks hearing for an alleged omission, he must make a substantial preliminary showing that the information was (1) omitted with the intent to make, or in reckless disregard of whether it made, the affidavit misleading to the issuing judge, and (2) material to the determination of probable cause. . . . Even if the affiant picks and chooses the information that he includes in the affidavit, there is no Franks violation if, had the magistrate been so advised, he still would have been justified in issuing the warrant. . . . When reviewing whether a Franks hearing is warranted, we recognize that there is a longstanding rule that there is an underlying presumption of validity with respect to the affidavit supporting a warrant. ... In summary, there can be no Franks violation when the omissions, if included in the . . . warrant affidavit, would not defeat probable cause.” (Citations omitted; internal quotation marks omitted.) State v. Grant, 286 Conn. 499, 520, 944 A.2d 947, cert. denied, 555 U.S. 916, 129 S. Ct. 271, 172 L. Ed. 2d 200 (2008).

The defendant claims that the court erred in denying his motion for a Franks hearing because the police knowingly and intentionally, or with reckless disregard for the truth, omitted Palermo’s full statement regarding registration of the Audi with the department, namely, that Palermo forged Petrozza’s signature on the Audi’s paperwork. He also claims that the police knowingly and intentionally, or with reckless disregard for the truth, included a false statement in the affidavit, namely, that Palermo did not forge Petrozza’s name on any of the Audi’s paperwork. The defendant further claims that the police only included portions of Palermo’s statements that supported their theory that the defendant, not Palermo, likely committed the murder. In other words, the defendant claims that the omitted and false statements were relevant to the finding of probable cause because they undermined and negated the police theory that the defendant had a financial motive for killing Petrozza.

Assuming, arguendo, that the defendant has established that the police omitted the allegedly exculpatory information and included the allegedly false statement either intentionally or with reckless disregard for the truth — something that we note has not been proven— we conclude that the defendant’s claim still fails. Even with the alleged omitted statements and without the alleged false statement, we conclude that there is still a basis to find probable cause. “Whether the trial court properly found that the facts submitted were enough to support a finding of probable cause is a question of law. . . . The trial court’s determination on [that] issue, therefore, is subject to plenary review on appeal. . . . Probable cause to search exists if: (1) there is probable cause to believe that the particular items sought to be seized are connected with criminal activity or will assist in a particular apprehension or conviction . . . and (2) there is probable cause to believe that the items sought to be seized will be found in the place to be searched. . . . Probable cause, broadly defined, [comprises] such facts as would reasonably persuade an impartial and reasonable mind not merely to suspect or conjecture, but to believe that criminal activity has occurred. . . . Reasonable minds may disagree as to whether a particular affidavit establishes probable cause. . . .

“In determining the existence of probable cause to search, the magistrate should make a practical, commonsense decision whether, given all of the circumstances set forth in the affidavit . . . there is a fair probability that contraband or evidence of a crime will be found in a particular place. ... In making this determination [of probable cause], the magistrate is entitled to draw reasonable inferences from the facts presented. When a magistrate has determined that the warrant affidavit presents sufficient objective indicia of reliability to justify a search and has issued a warrant, a court reviewing that warrant at a subsequent suppression hearing should defer to the reasonable inferences drawn by the magistrate.” (Citations omitted; internal quotation marks omitted.) State v. Pappas, supra, 256 Conn. 864-65.

“The police may lawfully seek and obtain a search warrant for an investigatory search for which it has been established that there is probable cause to believe that the objects sought constitute evidence of a crime and are located at the site to be searched.” State v. Vincent, 229 Conn. 164, 171, 640 A.2d 94 (1994). “When reviewing an application [for a warrant], courts must also bear in mind that search warrants are directed . . . not at persons, but at property where there is probable cause to believe that instrumentalities or evidence of [a] crime will be found. . . . The affidavit in support of a warrant need not present information that would justify the arrest of the individual in possession of or in control of the property. Nor is it required that the owner be suspected of having committed a crime. Property owned by a person absolutely innocent of any wrongdoing may nevertheless be searched under a valid warrant.” (Internal quotation marks omitted.) State v. Buddhu, 264 Conn. 449, 463-64, 825 A.2d 48 (2003), cert. denied, 541 U.S. 1030, 124 S. Ct. 2106, 158 L. Ed. 2d 712 (2004).

In the affidavit in support of the application for the search warrant, the police represented that the defendant had stated that he was prepared to disclose information about a corpse and that an accident had occurred in Manchester. The affiants stated that when the police asked the defendant if the accident involved Petrozza, the defendant stated that “Chris was my friend” and that Petrozza had been “crushed” with a piece of construction equipment. The defendant was asked later if the body, presumably Petrozza’s, was buried, and the defendant said that “you’re going to need a jackhammer.” The affidavit also included statements made by one of the defendant’s neighbors. The neighbor told the police that he remembered seeing a “big hole” in the backyard of the defendant’s residence that could fit “a small car.”

These statements by the defendant and his neighbor were more than sufficient to establish probable cause that Petrozza was dead and that evidence concerning that death was located on the defendant’s property. The allegedly false statement concerning who had signed the Audi’s paperwork was not essential for the court to find probable cause to search the defendant’s property, and the omitted information similarly was not material to the determination of probable cause. Nor does it defeat the finding of probable cause. The defendant, therefore, is not entitled to a Franks hearing concerning the search warrant.

As noted, the affidavit in support of the arrest warrant contained much of the same information included in the affidavit for the search warrant. The arrest warrant affidavit also details that the police discovered Petrozza’s body in the defendant’s backyard after a search of the premises pursuant to a search warrant.

Additionally, the affidavit establishes that the police discovered that on September 29,2006, the last day that Petrozza was seen alive, the defendant stole a checkbook from a vehicle parked at his daughter’s day care, drove Petrozza’s Audi to a credit union and used Petrozza’s license to attempt to cash a check from the stolen checkbook that he made payable to Petrozza.

Finally, the affidavit included details of a meeting the affiant had with John Fantasia. According to the affidavit, Fantasia shared a holding cell with the defendant at the Manchester Superior Court on June 21,2007, and the defendant began to tell Fantasia about the body the police found in his backyard. The defendant told Fantasia that “it was an accident” and that he “got paranoid” and buried the body. In a separate interview, Fantasia told the affiants that the defendant stated that, in reference to Petrozza, “I told him I was gonna fucking bury him,” and, “fuck him, he shouldn’t have played me."

“The validity of an arrest warrant depends upon whether the application for the warrant and the accompanying affidavit establish probable cause to believe that: (1) a crime has been committed; and (2) the person to be arrested committed the crime. . . . The affidavit must recite sufficient facts so that the judicial officer who issues the warrant can, relying solely on the information thus brought to his or her attention, make an independent determination that probable cause exists as to each element of every crime charged.” (Citations omitted.) State v. Heinz, 193 Conn. 612, 616-17, 480 A.2d 452 (1984).

Viewing the information included in the affidavit in support of the arrest warrant as a whole, we conclude that there was overwhelming evidence to support a finding of probable cause to arrest the defendant for murder. As with the search warrant, the inclusion of the omitted information and the exclusion of the allegedly false statement would not have defeated probable cause. Accordingly, the court properly denied the defendant’s motion for a Franks hearing on the arrest warrant.

II

The defendant next claims that the court improperly denied his motion to dismiss because (1) the search and arrest warrants were deficient in that their supporting affidavits contained insufficient evidence to establish that the defendant intentionally killed Petrozza and (2) the search warrant was improperly executed. Again, we disagree with the defendant.

As noted, on December 11, 2008, the defendant filed a motion for a Franks hearing and a corresponding motion to dismiss. After denying the motion for a Franks hearing, the court also denied the defendant’s motion to dismiss. Specifically, the court concluded that there was sufficient evidence to find probable cause to support the search warrant, the arrest warrant contained sufficient evidence to establish probable cause that the defendant had specific intent to cause the death of Petrozza and that the search warrant was executed properly.

“A motion to dismiss . . . properly attacks the jurisdiction of the court, essentially asserting that the [state] cannot as a matter of law and fact state a cause of action that should be heard by the court. . . . [0]ur review of the trial court’s ultimate legal conclusion and resulting [denial] of the motion to dismiss will be de novo. . . . Factual findings underlying the court’s decision, however, will not be disturbed unless they are clearly erroneous. . . . The applicable standard of review for the denial of a motion to dismiss, therefore, generally turns on whether the appellant seeks to challenge the legal conclusions of the trial corut or its factual determinations.” (Internal quotation marks omitted.) State v. Winter, 117 Conn. App. 493, 500, 979 A.2d 608 (2009), cert. denied, 295 Conn. 922, 991 A.2d 569 (2010).

A

The defendant first claims that the search and arrest warrants were deficient because their supporting affidavits did not contain sufficient evidence that the defendant intended to kill Petrozza. We conclude that the defendant’s claim concerning the search warrant is without merit because the affiants were not required to establish probable cause that the defendant intentionally killed Petrozza but only that evidence of a crime would be found on the defendant’s property. Furthermore, we rely on our earlier discussion of the affidavit in support of the arrest warrant and conclude that it was sufficient to establish probable cause to arrest the defendant for murder. See part I of this opinion.

Evidence supporting a finding that the defendant intentionally killed Petrozza is not required in an affidavit for a search warrant. See State v. Buddhu, supra, 264 Conn. 463-64. As noted, it is sufficient that the affiants present evidence that “(1) there is probable cause to believe that the particular items sought to be seized are connected with criminal activity or will assist in a particular apprehension or conviction . . . and (2) there is probable cause to believe that the items sought to be seized will be found in the place to be searched.” (Internal quotation marks omitted.) State v. Pappas, supra, 256 Conn. 864. Because we already have concluded that there was probable cause to believe that Petrozza was dead and that there was evidence concerning his death located on the defendant’s property, we need not address this claim further.

In denying the defendant’s motion to dismiss concerning the arrest warrant, the court thoroughly discussed the affidavit in support of the warrant and concluded that the evidence was sufficient to establish that there was probable cause that the defendant not only caused Petrozza’s death but that he did it intentionally. We agree with the court’s conclusion and for the same reasons stated in part I of this opinion, we conclude that there was probable cause to arrest the defendant for murder.

B

The defendant claims that the court also erred in denying his motion to dismiss because the police exceeded the scope of the search warrant and the search warrant was executed improperly. Specifically, the defendant claims that his rights under the fourth amendment to the United States constitution were violated because the search warrant did not authorize excavation of the defendant’s property and did not permit members of the Manchester highway department to participate in the execution of the warrant. We disagree and conclude that the court properly denied the defendant’s motion to dismiss.

“The [fourth [a]mendment to the United States constitution protects the right of the people to be secure in their persons, houses, papers, and effects, against unreasonable search and seizures. Ordinarily, police may not conduct a search unless they first obtain a search warrant from a neutral magistrate after establishing probable cause.” (Internal quotation marks omitted.) State v. Duffus, 125 Conn. App. 17, 25, 6 A.3d 167 (2010), cert. denied, 300 Conn. 903, 12 A.3d 572 (2011). “A lawful search of fixed premises generally extends to the entire area in which the object of the search may be found and is not limited by the possibility that separate acts of entry or opening may be required to complete the search.” United States v. Ross, 456 U.S. 798, 820-21, 102 S. Ct. 2157, 72 L. Ed. 2d 572 (1982).

The defendant first claims that his rights pursuant to the fourth amendment were violated because the warrant did not authorize the police to excavate the land surrounding his residence. In support of his claim, the defendant points to the portion of the warrant that provides that the police were authorized to “enter into or upon and search . . . [t]he exterior premises” of the defendant’s property. Given the reality that dead bodies frequently are buried under the ground, we find the defendant’s argument less than persuasive.

The application for the search warrant clearly established that the police were looking for Petrozza’s body and that the defendant may have buried the body on his property. The affidavit included statements from the defendant in which he claimed that he knew the whereabouts of a body and that the police would need a “jackhammer” to find it. We agree with the court that, given the circumstances of this case, it was implicit in the warrant application that the police would need to excavate part of the defendant’s property to fully execute the search. We note that federal courts of appeal adjudicating this same issue also have concluded that the excavation of land is within the scope of a warrant that authorizes the search of an exterior premises. See, e.g., United States v. Becker, 929 F.2d 442, 446 (9th Cir. 1991) (“concrete slab was located within and was part of the yard and, thus, searching beneath it was clearly within the scope of the warrant”).

The defendant also claims that his fourth amendments rights were violated because members of the Manchester highway department assisted the police in executing the warrant. The defendant has not cited any authority from this jurisdiction, nor can we find any, that dictates that civilians are prohibited from assisting the police in executing a search warrant. Again, the federal courts of appeal assist us in this matter. They have held, contrary to the defendant’s argument, that, pursuant to the fourth amendment, the police may utilize private citizens in executing a search warrant if their assistance is legitimate. See, e.g., Bills v. Aseltine, 958 F.2d 697, 706 (6th Cir. 1992) (“[p]olice may constitutionally call upon private citizens to assist them, and where assistance is rendered in aid of a warrant . . . the bounds of reasonableness have not been overstepped”).

It certainly was legitimate for the police to utilize the Manchester highway department in searching the exterior of the defendant’s residence because in this case, as noted, there was evidence that the defendant had buried Petrozza’s body and that the police would need a “jackhammer” to reach it. Accordingly, we conclude that the court properly denied the defendant’s motion to dismiss.

Ill

The defendant’s third claim is that the court improperly denied his motion to suppress statements he made to the police because the police, in violation of his federal and state constitutional rights, failed to provide him with Miranda warnings, failed to arrange for counsel upon his request and continued to interrogate him after he had requested counsel. We conclude that the court properly denied the defendant’s motion to suppress.

The following additional facts are relevant to the defendant’s claim. The defendant made an oral motion to suppress statements he made to the police from February 19 to May 25, 2007. On March 11, 2008, he filed a motion to suppress statements he made to the police on June 1, 2007, and from June 4 to 7, 2007. The court heard testimony from Jeffrey Lampson, a detective for the Manchester police, Richard Grimaldi, an officer with the Manchester police, and Richard Cousins and Stephen Kumnick, both inspectors from the office of the Hartford state’s attorney, concerning these motions.

On February 19, 2007, the defendant was arrested on charges unrelated to this appeal. Grimaldi read the defendant his Miranda rights. Then Lampson, as was his standard practice, asked the defendant if he had any knowledge or information regarding any recent crimes in order to assist the defendant with his pending charges. On February 22, 2007, at the defendant’s request, Lampson met with the defendant, who provided him with information concerning two thefts from motor vehicles that had occurred and identified Petrozza as the offender. Lampson did not consider the defendant a suspect in any additional crimes at this point and did not advise the defendant of his rights under Miranda.

On March 30, April 12 and May 25,2007, Lampson met with the defendant again, each time at the defendant’s request. Lampson did not provide the defendant with Miranda warnings at any of these meetings. During these meetings, the defendant provided Lampson with information concerning the motor vehicle break-ins and Petrozza’s alleged role in the offenses. The defendant also told Lampson that Petrozza had contacted him while he was incarcerated and that he had been using an alias supported by a stolen driver’s license. During the May 25,2007 meeting, the defendant first told Lamp-son that he was being represented by his attorney, Brian Woolf, for the pending charges.

On May 31, 2007, Cousins called the defendant to speak to him about his status as a victim in another unrelated case. During the conversation, the defendant asked Cousins if he had received a letter the defendant sent to him and to a prosecutor. Cousins said that he had not seen the letter but later went to the mail room and retrieved the letter. On June 1, 2007, Lampson received a telephone call from Kumnick. Kumnick told Lampson that he recently received a letter from the defendant in which he indicated that he knew the whereabouts of a body. Lampson met with the defendant that day and did not provide him with any Miranda warnings, and the defendant indicated that he was aware of the location of a buried female body. Although Lampson was aware on this date that Petrozza was missing, the defendant still was not considered a suspect in Petrozza’s disappearance.

On June 4, 2007, the defendant met with Cousins, Lampson and Kumnick at the office of the Hartford state’s attorney. He was advised of his rights under Miranda, waived his rights and specifically told the police that he did not want Woolf present at the meeting. On this date, Lampson considered the defendant a suspect in the disappearance of Petrozza. The defendant requested to speak with Kumnick alone and indicated that he wanted guarantees relevant to his pending cases before he would provide further information, and he also requested that a public defender make the agreement on his behalf. Cousins responded that he was not in a position to respond to the defendant’s demands. No guarantees were given at this time.

In a written statement to the police on June 5, 2007, the defendant, after being advised of his rights under Miranda, admitted to causing the death of Petrozza and described the circumstances of Petrozza’s death as an “accident.” On June 6, 2007, the defendant asked Kumnick to contact Woolf, and Kumnick advised the defendant to put his request in writing and assured the defendant that the correspondence would be forwarded to counsel.

The court denied the defendant’s motion to suppress his statements to police, finding that the defendant had failed to prove that the police interrogated him between February 19 and May 25, 2007, because he was not a suspect in the disappearance of Petrozza. The court further found that a Miranda warning was not required on June 1, 2007, because the defendant was not then a suspect in Petrozza’s disappearance, and, that from June 4 through 6, 2007, the defendant received proper Miranda warnings and made a valid waiver. Finally, the court concluded that although the defendant did make references to an attorney, regardless of whether the references were unequivocal, the police ceased all questioning after the references were made.

“As a general matter, the standard of review for a motion to suppress is well settled. A finding of fact will not be disturbed unless it is clearly erroneous in view of the evidence and pleadings in the whole record .... As we have noted previously, however, when a question of facts is essential to the outcome of a particular legal determination that implicates a defendant’s constitutional rights, and the credibility of witnesses is not the primary issue, our customary deference to the trial court’s factual findings is tempered by a scrupulous examination of the record to ascertain that the trial court’s factual findings are supported by substantial evidence. . . . [W]here the legal conclusions of the court are challenged, [our review is plenary and] we must determine whether they are legally and logically correct and whether they find support in the facts set out in the memorandum of decision . . . .” (Internal quotation marks omitted.) State v. Silver, 126 Conn. App. 522, 528-29, 12 A.3d 1014, cert. denied, 300 Conn. 931, 17 A.3d 68 (2011).

“It is well established that the prosecution may not use statements, whether exculpatory or inculpatory, stemming from custodial interrogation of the defendant unless it demonstrates the use of procedural safeguards effective to secure the privilege against self-incrimination. . . . Two threshold conditions must be satisfied in order to invoke the warnings constitutionally required by Miranda: (1) the defendant must have been in custody; and (2) the defendant must have been subjected to police interrogation. . . . The defendant bears the burden of proving that he was in custody for Miranda purposes. . . .

“A defendant in custody is subject to interrogation not only in the face of express questioning by police but also when subjected to any words or actions on the part of the police (other than those normally attendant to arrest and custody) that the police should know are reasonably likely to elicit an incriminating response from the suspect. . . . Whether a defendant in custody is subject to interrogation necessarily involves determining first, the factual circumstances of the police conduct in question, and second, whether such conduct is normally attendant to arrest and custody or whether the police should know that such conduct is reasonably likely to elicit an incriminating response. . . . The ultimate determination of whether a defendant was subjected to a custodial interrogation, therefore, presents a mixed question of law and fact, over which our review is de novo.” (Internal quotation marks omitted.) State v. Bridges, 125 Conn. App. 72, 78-79, 6 A.3d 223 (2010), cert. denied, 300 Conn. 931, 17 A.3d 68 (2011).

“In Miranda, the court held that when an accused person indicates in any manner at any stage of the process that he wishes to consult with an attorney before speaking there can be no questioning, and the police must stop the interrogation. . . . The court has since narrowed this aspect of the Miranda decision by emphasizing that the right to the presence of counsel during custodial interrogation is a prophylactic rule, rather than a per se constitutional requirement . . . and by holding that an accused’s request for counsel under Miranda must be objectively unequivocal.” (Citations omitted; internal quotation marks omitted.) State v. Anonymous, 240 Conn. 708, 720-21, 694 A.2d 766 (1997).

We conclude that the court properly denied the defendant’s motion to suppress. As the court noted, although the defendant was in custody at all times from February 19 through June 6, 2007, he was not a suspect in the disappearance of Petrozza until June 4,2007. The police, therefore, were not required to provide him with a Miranda warning prior to this date because the questions posed were not reasonably likely to elicit an incriminating response. Once the defendant became a suspect on June 4, 2007, the police provided the defendant with proper Miranda warnings before each conversation and the defendant provided valid waivers. Also, although the defendant made references to Woolf and a public defender, he never unequivocally invoked his right to counsel, and the record supports the court’s finding that the police ceased all questioning after these references to counsel.

We also note that the meetings between the police and the defendant were initiated by the defendant and that he prompted inquiries by the police through letters concerning the whereabouts of a corpse. As recognized by the court, “[t]he defendant’s conduct at all times demonstrates his earnest desire to talk to the police in order to provide the authorities with information in order to assist him, the defendant, in his predicament.” See State v. Smith, 42 Conn. App. 41, 46, 680 A.2d 1340 (1996) (defendant’s statement voluntary where, inter alia, he went to police station by own means and cooperated with police).

The defendant argues that the promises and assurances given to him by Lampson that he would support a more lenient sentence for the defendant if he provided the police with useful information about other crimes rendered the waiver of his Miranda rights involuntary. We disagree and conclude that the waivers were voluntary.

“Our Supreme Court has . . . clarified the proper scope of appellate review of a trial court’s determination of voluntariness. [The proper scope of review regarding] the ultimate issue of voluntariness requires us, not to ascertain whether the trial court’s finding is supported by substantial evidence, but to conduct a plenary review of the record in order to make an independent determination of voluntariness. . . .

“In order to be voluntary a confession must be the product of an essentially free and unconstrained choice by the maker. ... If it is not, if his will has been overborne and his capacity for self-determination critically impaired, the use of the confession offends due process. . . . The determination of whether a confession is voluntary must be based on a consideration of the totality of circumstances surrounding it ... . Factors that may be taken into account . . . include: the youth of the accused; his lack of education; his intelligence; the lack of any advice as to his constitutional rights; the length of detention; the repeated and prolonged nature of the questioning; and the use of physical punishment, such as the deprivation of food and sleep.” (Citations omitted; internal quotation marks omitted.) State v. Banks, 58 Conn. App. 603, 612-14, 755 A.2d 279, cert. denied, 254 Conn. 923, 761 A.2d 755 (2000).

We agree with the trial court that the defendant’s waivers were voluntary. Lampson’s requests for information about other crimes in return for leniency regarding the defendant’s pending charges did not overbear the defendant’s will. The defendant made a conscious choice, without any other pressure or influence, to waive his rights and provide the police with information in the hope that he would receive favorable treatment regarding the unrelated charges resulting from his February, 2007 arrest. There is nothing in the record to suggest that the defendant’s will was overborne by any other factors. The defendant’s waiver of his rights pursuant to Miranda, therefore, was voluntary.

IV

The defendant further claims that the court abused its discretion in denying his motion for a judgment of acquittal. Specifically, he argues that the court should have granted his motion because the state failed to prove the exact time when or the location where the murder took place. We conclude that the court properly denied the motion for acquittal.

“The standard of appellate review of a denial of a motion for a judgment of acquittal has been settled by judicial decision. . . . The issue to be determined is whether the [trier of fact] could have reasonably concluded, from the facts established and the reasonable inferences which could be drawn from those facts, that the cumulative effect was to establish guilt beyond a reasonable doubt .... [W]e have consistently employed a two-part analysis in appellate review of the sufficiency of the evidence to sustain a criminal conviction. . . . First, we construe the evidence in the light most favorable to sustaining the verdict. Second, we determine whether upon the facts so construed and the inferences reasonably drawn therefrom the [trier] reasonably could have concluded that the cumulative force of the evidence established guilt beyond a reasonable doubt.” (Citations omitted; internal quotation marks omitted.) State v. Taylor, 126 Conn. App. 52, 57, 10 A.3d 1062, cert. granted on other grounds, 300 Conn. 925, 15 A.3d 629 (2011).

Section 53a-54a 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 . . . .” The time or location of a killing is not an element of § 53a-54a, and, therefore, the state was not obligated to prove the time or location of the killing in order to convict the defendant of murder.

The defendant claims that the location of the killing is an essential element of the offense because it forms the basis of the court’s jurisdiction. This claim is without merit. The amended information filed on March 10, 2009, specifically indicated that the defendant was charged with the crime of murder “in or near the town of Manchester . . . .” There was evidence presented at trial that the crime took place at the defendant’s residence, and the court concluded that on September 29, 2006, the defendant killed Petrozza at the defendant’s residence in Manchester. The defendant has not challenged this factual finding by the court and has only now raised, for the first time, this jurisdictional challenge in his appeal of the court’s denial of his motion for acquittal. We conclude, therefore, that there was sufficient evidence presented at trial to sustain the defendant’s conviction and that the court properly denied the motion for acquittal.

V

In his final claim, the defendant argues that the court improperly denied his motion for a new trial. “[W]e review the trial court’s decision on a motion for a new trial for abuse of discretion.” State v. Tomas D., 296 Conn. 476, 488, 995 A.2d 583 (2010).

In the defendant’s motion for a new trial, he claimed that he was materially injured by the denial of his (1) motion to suppress statements he gave to the police, (2) motion to suppress evidence recovered from his premises and (3) motion for a Franks hearing. We already have concluded that the court properly denied these three motions and, therefore, we conclude that the court properly denied the defendant’s motion for a new trial.

The judgment is affirmed.

In this opinion the other judges concurred.

       See Miranda v. Arizona, 384 U.S. 436, 478-79, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).

       On September 30, 2006, the defendant called Petrozza’s mother and told her that Petrozza had been arrested and was jailed under an assumed name. The defendant told her that he was attempting to post bail for Petrozza and that if she would provide him with $1200, he would contribute the same amount to secure Petrozza’s release.

       “In Franks v. Delaware, supra, [438 U.S.] 155-56, the United States Supreme Court held that where the defendant makes a substantial preliminary showing that a false statement knowingly and intentionally, or with reckless disregard for the truth, was included by the affiant in the warrant affidavit, and if the allegedly false statement is necessary to the finding of probable cause, the [fjourth [ajmendment requires that a hearing be held at the defendant’s request. . . . The court in Franks mentioned only a false statement . . . included ... in the warrant affidavit; subsequent cases, however, have extended Franks to include material omissions from such an affidavit. ... If the ensuing Franks hearing discloses either an intentional or reckless falsehood, the court must excise that material from the affidavit and judge the probable cause of the affidavit shorn of that material.” (Citation omitted; internal quotation marks omitted.) State v. Therrien, 117 Conn. App. 256, 262, 978 A.2d 556, cert. denied, 294 Conn. 913, 983 A.2d 275 (2009).

       According to the affidavit, the defendant told Palermo that Petrozza turned the car over to him to satisfy a loan.

       Palermo later testified at the defendant’s trial concerning the sale of the Audi. He stated that he signed the vehicle’s paperwork because Petrozza could not be located and he needed to get the car registered. He also stated that he was able to get the paperwork notarized after he signed Petrozza’s name.

       The defendant also claims that the police discovered that there were two distinctly different signatures on the Audi’s paperwork and failed to give the court the department documents showing two different signatures. The defendant argues that the police should have presented the court with the paperwork and that expert handwriting analysis of the different signatures was necessary for the determination of probable cause.

       The defendant claims that the court improperly determined that Fantasia was reliable because Fantasia originally told the police that the defendant had told him that “it was an accident” but later stated that the defendant said, “I told him I was gonna fucking bury him . . . .” The court concluded that Fantasia was reliable for three reasons: (1) he is named, (2) he spoke to the police officers directly during the investigation and (3) much of what he related to the police authority was corroborated elsewhere in the warrant. The court also considered the seemingly conflicting statements made by Fantasia and concluded that “[e]ven assuming his comments are attributably unreliable and removed from the four comers of the arrest warrant affidavit, we are of the opinion that it does not and would not affect probable cause.”
      In the context of a challenge to a search warrant, our Supreme Court has concluded that an informant with whom the police had met face-to-face is more reliable than an anonymous informant because the police can observe the informant’s demeanor to determine his or her credibility, and the informant runs the greater risk that he may be held accountable if his information proves false. See State v. Batts, 281 Conn. 682, 704, 916 A.2d 788, cert. denied, 552 U.S. 1047, 128 S. Ct. 667, 169 L. Ed. 2d 524 (2007). We find that the same situation exists here and that the court properly found that Fantasia was reliable. We also agree with the court that, even if the affidavit did not include ail of Fantasia’s statements, there was still enough evidence to support a finding of probable cause.

       Because we conclude that the warrant authorizing the police to search the exterior of the defendant’s residence was valid, and that the police properly executed the warrant, we also conclude that the court properly denied the defendant’s March 13, 2008 motion to suppress evidence as fruit of an improper search.

       The defendant’s motion to dismiss included, inter alia, the same claims now raised on appeal.

       The court rejected this argument by the defendant in denying his motion to dismiss, finding that “[i]t is noteworthy that a careful view of the title page of the search warrant identifies a document as not just a search warrant but a search and seizure warrant. Also, on the left-hand lower comer of the title page, the document provides the authority to search, quote, within or upon a certain person, place or thing, to wit: the exterior premises of [the defendant’s property and] the ensuing, more particularized, description. That, within, I think, certainly authorizes a digging.
      “It is clear, implicit in this language is the authority to dig on the particularly described premises. In the body of the search warrant, it is made clear that the authorities are searching for a body that may be buried on the particular premises described. It was certainly made known to the issuing magistrate that the court is authorizing a digging for the item sought on the particularly described property.”

       As noted, in the affidavit in support of the search warrant, the affiants described a conversation with the defendant in which he was asked if he buried the body, and the defendant responded that “you’re going to need a jackhammer.”

       During oral argument on the defendant’s motion, the parties stipulated that members of the Manchester highway department assisted the police in the search of the defendant’s property.

       The defendant claims that on this date, he told Lampson that Woolf advised him not to talk to anyone. Specifically, the defendant claims that “[o]n June 1, 2007, the defendant told Detective Lampson that attorney Woolf advised him not to talk to anyone, yet Detective Lampson, who had not advised the defendant as to his rights pursuant to Miranda v. Arizona, 384 U.S. 436, 478-79, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966), continued to question the defendant.” We are unable to find evidence in the record or at the specific page in the trial transcript that the defendant cites to in his brief that Woolf advised him not to talk to anyone. The defendant cites to page 101 of the transcript from March 11, 2009, for this proposition. The only reference made to Woolf on this page was by Lampson during his cross-examination by defense counsel: “And I thought that during one of those times he had mentioned attorney Woolf was his attorney or, you know, it was. I’m not sure which meeting, exactly.”

       The court concluded that all of the waivers of the defendant’s rights pursuant to Miranda v. Arizona, 384 U.S. 436, 478-79, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966), were knowing, voluntary and intelligent.

       Although the defendant was represented by counsel on other charges, the police did not violate his rights under the sixth amendment to the United States constitution by questioning him about Petrozza. “[T]he sixth amendment right to counsel is offense-specific and commences only at or after the initiation of adversary judicial criminal proceedings — whether by way of formal charge, preliminary hearing, indictment, information, or arraignment.” (Internal quotation marks omitted.) State v. Birch, 219 Conn. 743, 748, 594 A.2d 972 (1991).


author: STOUGHTON, J.

text:
    STATE OF CONNECTICUT v. ALIKA MCFARLANE
    (AC 31808)
    Lavine, Alvord and Stoughton, Js.

      Argued February 9 —
    officially released May 17, 2011

      David J. Reich, special public defender, for the appellant (defendant).

      Melissa Patterson, assistant state’s attorney, with whom, on the brief, were John A. Connelly, former state’s attorney, and Cynthia S. Serafini, senior assistant state’s attorney, for the appellee (state).
   Opinion

STOUGHTON, J.

The defendant, Alika McFarlane, appeals from the judgment of conviction, rendered following a jury trial, of assault in the first degree in violation of General Statutes § 53a-59 (a) (5), reckless endangerment in the first degree in violation of General Statutes § 53a-63 (a) and carrying a pistol without a permit in violation of General Statutes § 29-35. On appeal, the defendant claims that: (1) the court’s instructions permitted the jury to return legally inconsistent verdicts on the assault and reckless endangerment charges; and (2) the evidence was insufficient to support his conviction of carrying a pistol without a permit. We affirm the judgment of the trial court.

On the basis of the evidence presented at trial, the jury reasonably could have found the following facts. On May 20, 2008, as a result of a confrontation the prior day between Dennis Rolan and members of a gang known as the “Triple Bs,” the defendant, Rolan and five others went to Bronson Street in Waterbury, where the Triple Bs were known to be located, in order to fight the individuals who had confronted Rolan. When the defendant and his group arrived, they parked their vehicles and ran toward several members of the Triple Bs, including Glenn Jamison, who were located on Bronson Street in front of a convenience store. As the two groups converged, Jamison punched the defendant in the face. He and the defendant separated, and each began fighting other group members. The defendant then pulled a handgun from his waist and fired five shots into the crowd of participants in the fight, one of which struck Jamison in his left arm and abdomen. The crowd then dispersed, and the defendant fired another shot as he ran back toward his car.

The state charged the defendant in a three count substitute information with assault in the first degree in violation of § 53a-59 (a) (5), reckless endangermentin the first degree in violation of § 53a-63 (a) and carrying a pistol without a permit in violation of § 29-35. Following a jury trial, the jury returned a verdict of guilty on each count, and the court rendered judgment accordingly. This appeal followed. Additional facts, which the jury reasonably could have found, will be set forth as necessary.

I

The defendant first claims that the court’s jury instructions allowed the jury to return legally inconsistent guilty verdicts on the assault and reckless endangerment charges. The defendant concedes on appeal that this claim was not preserved at trial but nevertheless seeks to prevail under State v. Golding, 213 Conn. 233, 239-40,567 A.2d 823 (1989). Although we conclude that the record is adequate for review and the claim is of constitutional magnitude; see State v. Mooney, 61 Conn. App. 713, 719, 767 A.2d 770 (claim that guilty verdicts legally inconsistent constitutional in nature), cert. denied, 256 Conn. 905, 772 A.2d 598 (2001); the defendant has failed to demonstrate that a constitutional violation clearly exists.

The following additional facts and procedural history are relevant to our resolution of this claim. In the first count of the substitute information, in which the defendant was charged with assault in the first degree, the state alleged specifically that the defendant, “with intent to cause physical injury to another person, caused such injury ... by means of the discharge of a firearm, to wit: he shot Glenn Jamison in the arm and stomach.” The court, in defining the elements of this crime, instructed the jury, inter aha, that the state was required to prove beyond a reasonable doubt that the defendant “caused physical injury to . . . Jamison by means of the discharge of a firearm,” and that “when [he] did so he had the intent to cause physical injury to . . . Jamison or to a third person.” In the second count, the state’s attorney charged the defendant with reckless endangerment in the first degree, and alleged specifically that, “with extreme indifference to human life,” the defendant “recklessly engaged in conduct which created a risk of serious physical injury to another person.” After defining the elements of this crime to the jury, the court instructed as follows: “The state claims that the defendant acted recklessly and with extreme indifference to human life by pulling out a handgun on Bronson Street and firing the gun six times. The state further claims that this conduct created a risk of serious physical injury to . . . Jamison and the other individuals on Bronson Street at the time the defendant fired the handgun.” It also instructed the jury that the defendant, by pleading not guilty, placed all the essential elements of the crimes at issue.

The defendant contends that the court’s instructions permitted the jury to return a verdict of guilty on both the assault and reckless endangerment counts, which was improper because each crime contains a mutually exclusive mental state, namely, those of intentionality and recklessness. Specifically, he argues that it would be inconsistent for the jury to find that the defendant both intended to cause physical injury and simultaneously acted recklessly because an individual cannot act intentionally and recklessly with regard to the same act and the same result. See State v. Hinton, 227 Conn. 301, 315, 630 A.2d 593 (1993); State v. King, 216 Conn. 585, 593-94, 583 A.2d 896 (1990), on appeal after remand, 218 Conn. 747, 591 A.2d 813 (1991). We are not persuaded that the court’s instructions permitted this result.

“The issue of legal inconsistency typically arises when a defendant is convicted of two offenses that contain contradictory elements.” (Internal quotation marks omitted.) State v. Hazel, 106 Conn. App. 213, 222, 941 A.2d 378, cert. denied, 287 Conn. 903, 947 A.2d 343 (2008). “To determine whether a jury verdict is legally inconsistent, we look carefully to determine whether the existence of the essential elements for one offense negates the existence of the essential elements for another offense of which the defendant also stands convicted. If that is the case, the verdicts are legally inconsistent and cannot withstand challenge. . . . Put more simply, we determine if there is a rational theory by which the jury could have found the defendant guilty of both crimes. ... It is not inconsistent ... to find that a criminal defendant possesses two different mental states, as long as [the] different mental states relate to different results.” (Citation omitted; internal quotation marks omitted.) State v. Kuranko, 71 Conn. App. 703, 714, 803 A.2d 383 (2002). Because the resolution of a claim of inconsistent guilty verdicts presents a question of law, our review is plenaiy. State v. Hazel, supra, 223.

It seems evident that one who deliberately shoots at another person acts intentionally, while one who shoots into a crowd acts recklessly. Indeed, the defendant does not suggest to the contrary. In order to establish his claim that the verdicts in this case were legally inconsistent, he asserts, in essence, that the court defined the reckless act to the jury as firing the handgun six times into the crowd. He argues that, on the basis of such instruction, the six shots constituted one unified physical act, with one such shot necessarily being the one that struck Jamison. According to the defendant, therefore, both the assault charge and the reckless endangerment charge, as defined by the court, involved the same unified act.

The defendant’s assertion fails, however, because the court never instructed the jury that the defendant’s firing the handgun six times was a single act. Instead, after instructing the jury on the elements of the crime of reckless endangerment, the court remarked that it was the state’s position that the defendant acted recklessly by firing the handgun six times into the crowd on Bronson Street. Contrary to the defendant’s argument, our review of the instructions reveals that the court’s recitation of the state’s allegations did not instruct the jury in a manner that required it to find that the crimes were committed by the same physical act.

Furthermore, even if we assume, arguendo, that the defendant’s firing of the handgun six times constituted the same physical act, rather than separate acts, the defendant cannot prevail on his claim. On the basis of the evidence presented in this case, the jury reasonably could have found that when the defendant fired the handgun into the crowd, it was his intent to strike and to injure Jamison physically, as evidenced by the fact that Jamison was the member of the Triple Bs who first punched the defendant. That is certainly a permissible and perhaps the most reasonable inference the jury could have drawn. At the same time, the jury reasonably could have found that it was reckless and extremely indifferent to human life to fire a gun several times into a nearby crowd. Under the circumstances of this case, it was not inconsistent to find that the defendant acted intentionally when he shot Jamison and at the same time acted recklessly when he fired several other shots into a crowd, as the jury reasonably could have concluded that the defendant’s actions constituted different crimes that arose from the same continuum of events. See State v. Mooney, supra, 61 Conn. App. 722; see also State v. Bjorklund, 79 Conn. App. 535, 567-68, 830 A.2d 1141 (2003) (reasonable for jury to conclude that defendant’s kicking victim in torso in attempt to steal wallet exhibited intent to cause serious injury while subsequent kicking of head after victim resisted was reckless), cert. denied, 268 Conn. 920, 846 A.2d 882 (2004); State v. Flynn, 14 Conn. App. 10, 27, 539 A.2d 1005 (single act of throwing beer bottle at police officers in crowded bar simultaneously demonstrated intent to assault peace officer and reckless endangerment toward bar patrons), cert. denied, 488 U.S. 891, 109 S. Ct. 226,102 L. Ed. 2d 217 (1988). We therefore conclude that this claim fails under the third prong of Golding because the defendant has not shown that a constitutional violation clearly exists. See footnote 4 of this opinion.

II

The defendant next claims that the evidence was insufficient to support his conviction of carrying a pistol without a permit in violation of § 29-35. Specifically, the defendant contends that the state failed to prove that the handgun he fired had a barrel of less than twelve inches in length and met the statutory definition of a pistol. We disagree.

In reviewing whether the evidence was sufficient to sustain a 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 on 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. State v. Ledbetter, 275 Conn. 534, 542, 881 A.2d 290 (2005), cert. denied, 547 U.S. 1082, 126 S. Ct. 1798, 164 L. Ed. 2d 537 (2006). 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 guilty verdict. Id., 543

The following additional facts are relevant to the resolution of this claim. At trial, the handgun fired by the defendant was not introduced into evidence. The state, instead, presented certain forensic evidence and witness testimony to establish that the barrel length of the firearm was shorter than twelve inches. The state produced six .45 caliber cartridge casings recovered by the police at the crime scene and a .45 caliber bullet taken from Jamison’s body that had been fired from a .45 caliber gun. The state’s expert explained that such a gun generally has a barrel length of twelve inches or less, with most being between four and eight inches, and would not have a long barrel. In addition, Brian Greene, a witness called by the state, testified that he saw the defendant pull out the gun from his waist and that it was a handgun, not a long gun. When asked by the prosecutor how big the gun was, Greene demonstrated by holding up his hands. The prosecutor then requested that the record reflect that Greene indicated that the gun was approximately nine inches, to which defense counsel did not object but, instead, remarked that he could not “say one way or the other.” In its charge to the jury, the court instructed that in order to find the defendant guilty of carrying a pistol without a permit, the jury must find, inter alia, that the length of the barrel of the defendant’s firearm was less than twelve inches.

At the outset, we note that direct numerical evidence of barrel length is not required to obtain a conviction under § 29-35. State v. Fleming, 111 Conn. App. 337, 347, 958 A.2d 1271 (2008), cert. denied, 290 Conn. 903, 962 A.2d 794 (2009). Furthermore, the evidence presented in this case is similar to what we concluded was sufficient in State v. Williams, 48 Conn. App. 361, 372, 709 A.2d 43, cert. denied, 245 Conn. 907, 718 A.2d 16 (1998). In Williams, the defendant appealed from his conviction of carrying a pistol without a permit on the ground that the evidence presented at trial was insufficient to establish that the barrel length of the gun was less than twelve inches. Id., 370. The only evidence presented by the state with respect to the length of the gun barrel came from the state’s chief witness, who testified that he saw the defendant brandish a “ ‘long, big, thick gun’ ” that was “as much as a foot long.” Id., 371. The witness also demonstrated to the jury the size of the gun by spreading his hands apart. Id. Although the record did not reflect exactly how far apart his hands were, this court concluded that the cumulative effect of the witness’ testimony and demonstrative evidence was sufficient to permit the jury to infer reasonably that the barrel of the gun used in that case was less than twelve inches. Id., 372.

The jury in the present case saw the demonstration by Greene as to the size of the gun, and as the court observed in Williams, the jury reasonably could have inferred that the length of the barrel of the gun was less than the length of the entire gun. See id., 372. Greene also offered his testimony that the gun used by the defendant was a handgun rather than a long gun and was pulled from the defendant’s waist. In addition, the jury heard testimony from the state’s firearms expert that the barrel of a .45 caliber gun generally would be less than twelve inches and often between four and eight inches in length. We conclude that the state presented sufficient demonstrative and testimonial evidence, viewed in the light most favorable to sustaining the verdict, from which the jury reasonably could have found that the defendant’s handgun had a barrel of less than twelve inches in length and therefore was within our statutory definition of a pistol. See State v. Fleming, supra, 111 Conn. App. 347-49 (expert testimony suggesting majority of firearms that fire caliber of bullets and casings found at crime scene less than twelve inches coupled with description of handgun as “ ‘little bit big’ ” and pulled from jacket sufficient to support inference that barrel less than twelve inches).

The judgment is affirmed.

In this opinion the other judges concurred.

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

       General Statutes § 53a-63 (a) provides: “A person is guilty of reckless endangerment in the first degree when, with extreme indifference to human life, he recklessly engages in conduct which creates a risk of serious physical injury to another person.”

       General Statutes § 29-35 (a) provides in relevant part: “No person shall carry any pistol or revolver upon his or her person, except when such person is within the dwelling house or place of business of such person, without a permit to carry the same issued as provided in section 29-28. . . .”

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

       Although the defendant did not preserve his claim, we afford review because “any defendant found guilty on the basis of insufficient evidence has been deprived of a constitutional right, and would therefore necessarily meet the four prongs of Golding.” (Internal quotation marks omitted.) State
        v. Fagan, 280 Conn. 69, 76 n.7, 905 A.2d 1101 (2006), cert. denied, 549 U.S. 1269, 127 S. Ct. 1491, 167 L. Ed. 2d 236 (2007).

       General Statutes § 29-27 provides that the terms “ 'pistol’ ” and “ ‘revolver,’ ” as used in General Statutes §§ 29-28 to 29-38, inclusive, mean “any firearm having a barrel less than twelve inches in length.”