text:
    IN RE JEFFREY C.

    (AC 20767)
    Lavery, C. J., and Schaller and Flynn, Js.

      Argued March 20 —
    officially released June 26, 2001

      Sara R. Martin, for the appellant (respondent father).

      Mary K. Lenehan, assistant attorney general, with whom, on the brief, were Richard Blumenthal, attorney general, and Susan T. Pearlman, assistant attorney general, for the appellee (petitioner).

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

   Opinion

SCHALLER, J.

The respondent father appeals from the judgment of the trial court finding him in civil contempt, granting attorney’s fees for the preparation of a contempt motion by the office of the attorney general and issuing a temporary restraining order against him in this Juvenile Court proceeding. On appeal, the respondent claims that the court improperly (1) held him in contempt for failing to comply with the specific steps in the protective supervision order with respect to his son, Jeffrey C., (2) ordered him to pay attorney’s fees in the contempt proceeding and (3) issued a temporary restraining order prohibiting contact with the mother or the couple’s children. We conclude that the court exceeded its authority in issuing the contempt order and reverse the judgment.

The following facts and procedural history are relevant to this appeal. The commissioner of children and families (commissioner) filed a petition alleging neglect by the respondent and the mother of Jeffrey C. in failing to attend to his special medical needs as an asthmatic. The respondent and the mother entered pleas of nolo contendere to the neglect petition, and the court ordered that Jeffrey C. be placed in protective supervision for one year subject to the respondent’s family following a series of specific steps. The steps required the respondent to attend all appointments with the department of children and families (department), to participate in family counseling, to submit to substance abuse counseling and adhere to recommendations of treatment, to submit to random drug testing, and to avoid substance abuse and other criminal activities.

The commissioner thereafter moved to modify the protective supervision order, and sought custody of Jeffrey C. and his sister because the respondent and the mother had failed to comply with the court-ordered specific steps. The court found that the respondent had not complied with the specific steps in that he had not attended family counseling sessions, had engaged in criminal activities, specifically, assault and driving under the influence of alcohol, and had failed to participate in substance abuse evaluation or treatment. The court subsequently extended the protective supervision order for an additional six months rather than committing the children to the custody of the commissioner. The court issued a supplemental order requiring the mother and the respondent to comply with the specific steps and to submit to a drug test within two weeks. The police arrested the respondent two days later for assault on the mother, criminal mischief and disorderly conduct.

As a result of the arrest, the commissioner filed a motion for contempt for the respondent’s failure to comply with the court’s protective supervision order. The commissioner also filed an application for an ex parte temporary restraining order. The court issued the temporary restraining order, which prohibited the respondent from entering the family residence or contacting the mother or children, except for visits at a rehabilitation center. The court scheduled a hearing for February 28, 2000.

At the hearing, the respondent stipulated that he had not complied with steps requiring participation in substance abuse treatment and prohibiting criminal activity. The court found him in civil contempt of the order and ordered that he pay attorney’s fees. The court further extended the temporary restraining order to May 26, 2000, and added the requirement that any visits with the children be under the mother’s supervision. The court granted the respondent’s motion for articulation on the three orders that issued as a result of the February 28, 2000 hearing. The court stated that the respondent’s noncompliance with any one of the specific steps could lead to a finding of contempt and that any one violation found to be a basis for the finding of contempt, under the appropriate facts, would support such a finding. The court characterized the contempt as civil contempt against the rights of the department and the award of attorney’s fees as compensatory. The respondent now appeals from the judgment finding him in contempt, granting attorney’s fees and issuing a temporary restraining order.

I

The respondent first claims that the court improperly held him in civil contempt for failure to comply with the specific steps set forth in the protective supervision order. The respondent claims that the specific steps described in General Statutes § 46b-129 (b) may not be characterized as orders from which a finding of contempt may issue. We agree.

“[0]ur review [of a finding of civil contempt] is technically limited to questions of jurisdiction such as whether the court had authority to impose the punishment inflicted and whether the act or acts for which the penalty was imposed could constitute a contempt. . . . This limitation originates because by its very nature the court’s contempt power . . . must be balanced against the contemnor’s fundamental rights and, for this reason, there exists the present mechanism for the eventual review of errors which allegedly infringe on these rights. . . . We have found a civil contempt to be improper or erroneous because: the injunction on which it was based was vague and indefinite . . . the findings on which it was based were ambiguous and irreconcilable . . . the contemnor’s constitutional rights were not properly safeguarded . . . the penalties imposed were criminal rather than civil in nature . . . and the contemnor, through no fault of his own, was unable to obey the court’s order. . . .

“Although . . . plenary review of civil contempt orders extends to some issues that are not truly jurisdictional, its emphasis on fundamental rights underscores the proposition that the grounds for any appeal from a contempt order are more restricted than would be the case in an ordinary plenary appeal from a civil judgment.” (Citations omitted; internal quotation marks omitted.) Eldridge v. Eldridge, 244 Conn. 523, 527-28, 710 A.2d 757 (1998).

The respondent contends that a violation of the “specific steps” in the order is not a violation of an order and, therefore, noncompliance with one or more of the specific steps does not constitute contempt of a court order. We agree with the respondent.

Under our limited review, we conclude that a trial court unquestionably has the power pursuant to General Statutes (Rev. to 1999) § 46b-121 (b) to find in contempt those persons who violate orders pertaining to juvenile matters. The relevant question, therefore, is “whether the act or acts for which the penalty was imposed could constitute a contempt.” (Internal quotation marks omitted.) Eldridge v. Eldridge, supra, 244 Conn. 527.

The respondent argues that § 46b-129 does not contemplate a finding of contempt for failure to comply with the specific steps prescribed pursuant to a neglect proceeding. Section 46b-129 (b) provides that “[u]pon issuance of an ex parte order, the court shall provide to the commissioner and the parent or guardian specific steps necessary for each to take to address the ex parte order for the parent or guardian to retain or regain custody of the child or youth.” (Emphasis added.) The court, in proceedings to terminate parental rights pursuant to General Statutes § 17a-112, considers the specific steps issued in the order as a measure of the degree of “personal rehabilitation.” In re Shyliesh H., 56 Conn. App. 167, 179-80, 743 A.2d 165 (1999). If the specific steps in an ex parte order were to be construed as a series of individual orders, such a logical progression to § 17a-112 would not be possible, as § 46b-129 would itself end the process.

The specific steps are also considered “fair warning” of the potential termination of parental rights in subsequent proceedings pursuant to § 17a-112. Id., 179. The import of § 46b-129 (b) and our decision in In re Shyliesh H. is that the specific steps contained in the ex parte order are not themselves orders, but rather serve as criteria by which to measure personal rehabilitation and notice of impending termination of parental rights. We have stated that “[o]ur review of the relevant statutes leads us to conclude that an adjudication of neglect relates to the status of the child and is not necessarily premised on parental fault. A finding that the child is neglected is different from finding who is responsible for the child’s condition of neglect. Although § 46b-129 requires both parents to be named in the petition, the adjudication of neglect is not a judgment that runs against a person or persons so named in the petition; [i\t is not directed against them as parents, but rather is a finding that the children are neglected . . . .” (Emphasis added; internal quotation marks omitted.) In re David L., 54 Conn. App. 185, 191-92, 733 A.2d 897 (1999).

We conclude, therefore, that the specific steps prescribed by a court, pursuant to § 46b-129 (b), may not be interpreted as orders unto themselves from which the court may issue a contempt order. The court in the present case, therefore, improperly held the respondent in contempt of the ex parte order.

II

The respondent further claims that the court improperly ordered him to pay attorney’s fees in the contempt proceeding. We agree.

An award of attorney’s fees pursuant to General Statutes § 52-256b or Practice Book § 1-21A first requires a finding of contempt. Because we concluded in part I that such finding was improper, we also conclude that the award of attorney’s fees was improper.

III

The respondent finally claims that the court improperly issued a temporary restraining order prohibiting contact with the mother or children. We decline to address the respondent’s claim because it is moot.

The following additional facts are relevant to our disposition of the respondent’s claim. During the hearing on the motions for contempt and for attorney’s fees, the court asked counsel for the plaintiff, “So, are you suggesting that continuing the [temporary restraining order] would be part of the remedy for a finding of civil contempt?” Counsel responded, “I think that would be appropriate and proper . . . .” The court concluded the hearing, stating, “As to the continuation of the temporary restraining order, I’m going to take that under advisement. I want to think about that a little more, but I’m going to resolve it with these two things in mind. First, that it appears that [the respondent] does have the use of alcohol or for other reasons does present a danger to everyone in the household and, second, my main objective here is to protect the children.” The court granted the motions for contempt and for attorney’s fees, and the temporary restraining order, which it stated was “entered separately this day,” and annotated all of its orders on the state’s motion for contempt. The temporary restraining order expired on May 26, 2000.

The previously mentioned colloquy raises concerns as to whether the temporary restraining order was an inseparable part of the contempt order and, thus, a final judgment, or a separate order that, as a temporary injunction, “generally is not a final judgment for purposes of appeal . . . .” (Citation omitted.) Waterbury Teachers Assn. v. Freedom of Information Commission, 230 Conn. 441, 451, 645 A.2d 978 (1994). We do not reach the question of whether the appeal was taken from a final judgment, however, because we conclude that the respondent’s claim as to the temporary restraining order is moot. See In re Alex M., 59 Conn. App. 389, 391 n.2, 757 A.2d 66 (2000).

The order expired, by its own terms, on May 26, 2000. As the order expired, we are unable to afford any practical relief to the respondent even if we were to conclude that the order was improper. “When, during the pendency of an appeal, events have occurred that preclude an appellate court from granting any practical relief through its disposition of the merits, a case has become moot. ... It is a well-settled general rule that the existence of an actual controversy is an essential requisite to appellate jurisdiction; it is not the province of appellate courts to decide moot questions, disconnected from the granting of actual relief or from the determination of which no practical relief can follow.” (Citation omitted; internal quotation marks omitted.) State v. Bostwick, 251 Conn. 117, 118-19, 740 A.2d 381 (1999). “[E]ven if the factual issues to be determined lead to the conclusion that the appeal is moot because no practical relief is available, the appeal may nevertheless be heard under an exception that the issues on appeal are capable of repetition, yet evading review. See Loisel v. Rowe, 233 Conn. 370, 388, 660 A.2d 323 (1995).” Karp v. New Britain, 57 Conn. App. 312, 316 n.8, 748 A.2d 372 (2000).

“Our cases reveal that for an otherwise moot question to qualify for review under the ‘capable of repetition, yet evading review’ exception, it must meet three requirements. First, the challenged action, or the effect of the challenged action, by its very nature must be of a limited duration so that there is a strong likelihood that the substantial majority of cases raising a question about its validity will become moot before appellate litigation can be concluded. Second, there must be a reasonable likelihood that the question presented in the pending case will arise again in the future, and that it will affect either the same complaining party or a reasonably identifiable group for whom that party can be said to act as surrogate. Third, the question must have some public importance. Unless all three requirements are met, the appeal must be dismissed as moot.” Loisel v. Rowe, supra, 233 Conn. 382-83.

The respondent argues that the issue of the temporary restraining order is capable of repetition while evading review. First, the respondent claims that the court improperly applied General Statutes §§ 46b-121 (b) and 52-473 as a basis for issuing the order, and may do so again in the future in contravention of other parties’ procedural due process rights. Next, the respondent claims that he could be subject to a future temporary restraining order at any time. Finally, he asserts that the matter is of public importance given its constitutional ramifications in subjecting individuals to arbitrary and discriminatory laws. We disagree.

A temporary restraining order, by its very nature, is of limited duration subject to expiration prior to any appellate litigation that ensues. The respondent also has shown that he could be subject to future restraining orders, considering the two orders in this case. The respondent has not established, however, that the matter involved herein rises to the level of public importance contemplated by Loisel.

Although we agree with the respondent that the arbitrary and discriminatory application of laws would be a matter of public importance, we are not persuaded that the court in this case applied the law in an arbitrary and discriminatory manner. The respondent’s contention is that the Juvenile Court exceeded its authority by issuing a temporary restraining order pursuant to § 46b-121 (b) and Practice Book § 1-21A. Because Practice Book § 1-21A specifically applies to contempt proceedings and § 46b-121 constituted a separate basis for the court proceeding in the contempt matter, it is clear that the court issued the temporary restraining order using its civil contempt power. Our discussion in part I as to the impropriety of such a contempt decree limits this occurrence to the case at hand and precludes any far reaching impact in future Juvenile Court proceedings. Because the matter as presented is not capable of repetition, the respondent has failed to satisfy the exceptions of Loisel and the issue is moot.

The judgment of civil contempt and the order awarding attorney’s fees are reversed and the case is remanded for further proceedings consistent with this opinion.

In this opinion the other judges concurred.

       We refer in this opinion to the respondent father as the respondent.

       The contempt order is properly characterized as a civil contempt order because, inter alia, the court relied on Practice Book § 1-21A, which is entitled “Civil Contempt,” and the court articulated that the contempt was against the rights of the commissioner rather than the court.

       General Statutes § 46b-129 (b) provides in relevant part: “Upon issuance of an ex parte order, the court shall provide to the commissioner and the parent or guardian specific steps necessary for each to take to address the ex parte order for the parent or guardian to retain or regain custody of the child or youth.”

       Because we conclude that the court, improperly found the respondent in contempt for failure to comply with the specific steps, we need not decide whether the finding was also violative of the respondent’s constitutional rights under the constitutions of the United States and Connecticut. We adhere to “the recognized policy of self-restraint and the basic judicial duty to eschew unnecessary determinations of constitutional questions. . . . Indeed, wherever possible, it is incumbent upon a court to consider statutory issues before reaching constitutional questions.” (Citations omitted; internal quotation marks omitted.) DeBeradinis v. Zoning Commission, 228 Conn. 187, 195, 635 A.2d 1220 (1994).

       General Statutes (Rev. to 1999) § 46b-121 (b) provides in relevant part: “In juvenile matters, the Superior Court shall have authority to make and enforce such orders directed to parents, including any person who acknowledges before said court paternity of a child bom out of wedlock, guardians, custodians or other adult persons owing some legal duty to a child or youth therein, as it deems necessary or appropriate to secure the welfare, protection, proper care and suitable support of a child or youth subject to its jurisdiction or otherwise committed to or in the custody of the Commissioner of Children and Families. . . . Said court shall also have authority to grant and enforce injunctive relief, temporary or permanent in all proceedings concerning juvenile matters. . . . Any judge hearing a juvenile matter may make any other order in connection therewith within his authority to grant as a judge of the Superior Court and such order shall have the same force and effect as any other order of the Superior Court. In the enforcement of its orders, in connection with any juvenile matter, the court may issue process for the arrest of any person, compel attendance of witnesses and punish for contempt by a fine not exceeding one hundred dollars or imprisonment not exceeding six months. . .

       General Statutes § 17a-112 provides in relevant part: “(a) In respect to any child in the custody of the Commissioner of Children and Families in accordance with section 46b-129, either the commissioner, or the attorney who represented such child in a pending or prior proceeding, or an attorney appointed by the Superior Court on its own motion, or an attorney retained by such child after attaining the age of fourteen, may petition the court for the termination of parental rights with reference to such child. . . .
      * ** *
      “Q) The Superior Court . . . may grant a petition filed pursuant to this section if it finds by clear and convincing evidence . . . that . . . the child (i) has been found by the Superior Court or the Probate Court to have been neglected or uncared for in aprior proceeding, or (ii) is found to be neglected or uncared for and has been in the custody of the commissioner for at least fifteen months and the parent of such child has been provided specific steps to take to facilitate the return of the child to the parent pursuant to section 46b-129 and has failed to achieve such degree of personal rehabilitation as would encourage the belief that within a reasonable time, considering the age and needs of the child, such parent could assume a responsible position in the life of the child . . . .”

       General Statutes § 52-256b (a) provides: “When any person is found in contempt of any order or judgment of the Superior Court, the court may award to the petitioner a reasonable attorney’s fee and the fees of the officer serving the contempt citation, such sums to be paid by the person found in contempt.”

       Practice Book § 1-21A provides in relevant part: “Where . . . the dispute is between private litigants and the purpose for judicial intervention is remedial, then the contempt is civil, and any sanctions imposed by the judicial authority shall be coercive and nonpunitive, including fines, to ensure compliance and compensate the complainant for losses. . . .”

       General Statutes § 52-473 provides: “(a) An injunction may be granted immediately, if the circumstances of the case demand it, or the court or judge may cause immediate notice of the application to be given to the adverse party, that he may show cause why the injunction should not be granted.
      “(b) No temporary injunction may be granted without notice to the adverse party unless it clearly appears from the specific facts shown by affidavit or by verified complaint that irreparable loss or damage will result to the plaintiff before the matter can be heard on notice. It shall be sufficient, on such application for a temporary injunction, to present to the court or judge the original complaint containing the demand for an injunction, duly verified, without further complaint, application or motion in writing.”


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    CHARLIE SANTIAGO v. STATE OF CONNECTICUT
    (AC 20127)
    Spear, Flynn and Daly, Js.
    Argued April 3 —
    officially released June 26, 2001

      Frederick W. Fawcett, supervisory assistant state’s attorney, with whom, on the brief, was Jonathan C. Benedict, state’s attorney, for the appellant (state).

      Suzanne Zitser, assistant public defender, for the appellee (petitioner).
   Opinion

PER CURIAM.

The state appeals from the judgment of the trial court granting the amended petition of the petitioner, Charlie Santiago, for a new trial on the ground of newly discovered evidence. The state claims that the court improperly granted the petition because the evidence was (1) readily available at trial and (2) merely cumulative. We affirm the judgment of the trial court.

On May 12, 1995, the petitioner was found guilty of murder in violation of General Statutes § 53a-54a (a). On July 14, 1995, the petitioner was sentenced to the custody of the commissioner of correction for a term of twenty-five years. This court affirmed the judgment of conviction. State v. Santiago, 45 Conn. App. 297, 696 A.2d 344, cert. denied, 241 Conn. 927, 697 A.2d 362 (1997). On December 2,1997, the petitioner filed a petition for a new trial on the basis of newly discovered evidence. A hearing on the petition was held on September 15 and 21, 1999. On the first day of the hearing, the court allowed the petitioner to amend the petition. On October 5, 1999, the court issued a memorandum of decision granting the amended petition and ordering a new trial. This appeal followed.

Our examination of the record and briefs and our consideration of the arguments of the parties persuade us that the judgment of the trial court should be affirmed. The issues presented were resolved properly in the trial court’s thoughtful and comprehensive memorandum of decision. See Santiago v. State, 47 Conn. Sup. 130, 779 A.2d 868 (1999). Because that memorandum of decision fully addresses the arguments raised in this appeal, we adopt it as a proper statement of the facts and the applicable law on those issues. It would serve no useful purpose for us to repeat the discussion contained therein. See Sivek v. Baljevic, 60 Conn. App. 19, 20, 758 A.2d 441 (2000).

The judgment is affirmed.

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

       In its reply brief, the state improperly attempts to raise a new claim that the court wrongly applied the standard for the granting of a new trial to the evidence produced at the hearing on the petition by acting as a finder of fact and a “thirteenth juror.” That claim was not raised in the state’s original brief and violates the well established principle that “issues may not be raised for the first time in a reply brief.” State v. Marrero, 59 Conn. App. 189, 194 n.3, 757 A.2d 594, cert. denied, 254 Conn. 934, 761 A.2d 756 (2000); Benedetto v. Benedetto, 55 Conn. App. 350, 355 n.2, 738 A.2d 745 (1999), cert. denied, 252 Conn. 917, 744 A.2d 437 (2000). We therefore decline to review it.


author: FLYNN, J.

text:
    CADLE COMPANY v. NORMAN S. DRUBNER
    (AC 20854)
    Foti, Flynn and Hennessy, Js.
    Argued May 3 —
    officially released June 26, 2001

      Edward P. Jurkiewicz, for the appellant (plaintiff).

      Richard P. Weinstein, with whom was Nathan A. Schatz, for the appellee (defendant).
   Opinion

FLYNN, J.

The plaintiff, Cadle Company, appeals from the judgment of the trial court denying its petition for a bill of discovery that it had sought against the defendant, Norman S. Drubner. The dispositive issue in this appeal is whether the court, in denying the petition, abused its discretion when it concluded that the plaintiff failed to demonstrate that it (1) had probable cause to bring a potential cause of action against the defendant and (2) had no other adequate means of obtaining the desired material. We affirm the judgment of the trial court.

The following facts and procedural history are relevant to our resolution of this appeal. In its complaint, the plaintiff alleges, inter alia, that it had obtained an assignment of a promissory note and mortgage from Restruck-Two, Inc., and the defendant, individually, as trustee of Restruck-Two, Inc. The note was in the principal amount of $19,324,669 to Centerbank, a bank that the complaint describes as a defunct institution. The mortgage deed required forbearance by the lender from exercising certain rights in the case of particular defaults so long as the defendant and the corporate borrower were not in default of their obligations under a separate restructuring agreement to which the mortgage deed itself referred. The complaint further alleges that the plaintiff did not receive the separate restructuring agreement with the other loan documentation, but that a few pages of it refer to an agreement in which Centerbank agreed to a conditional release of the defendant from further liability arising out of the note and mortgage, provided that the defendant, in the event of foreclosure, cooperated with the bank in realizing its security and collateral. The release in return for the defendant’s cooperation was triggered by a “termination event” as defined by the restructuring agreement. The plaintiff claims to be handicapped because if the defendant’s deposition testimony is not perpetuated and the entire restructuring agreement is not produced, it “will be unable to bring an action which it may otherwise be entitled to bring.”

The plaintiff was then heard on its complaint at a hearing in which the parties were represented by counsel and presented no evidence. At the hearing, the plaintiff admitted that it was “unsure” whether it had attempted to obtain the desired documents from Centerbank or its successors. The parties agreed that General Statutes § 52-156a and Berger v. Cuomo, 230 Conn. 1, 644 A.2d 333 (1994), governed the resolution of this matter. Thereafter, in a memorandum of decision, the court for two reasons denied the plaintiffs petition for a bill of discovery. It first held that the petition, even when considered in the light most favorable to the plaintiff, failed “to set forth sufficient facts to permit the required finding that there is probable cause to bring a potential cause of action.” Second, it ruled that the plaintiff had failed to establish that it had “no other adequate means of enforcing discovery of the desired material.” The court stated that the plaintiff had given no adequate explanation for failing to obtain the desired documentation as part of its purchase of the note or by requesting a copy from Centerbank or its successors. On that basis, the court ruled that the plaintiff had failed to satisfy its burden of demonstrating that it had no other adequate means of enforcing discovery of the desired material.

Thereafter, the plaintiff filed a motion to reargue to which it attached a document that allegedly had been appended to the original note and purported to assign the note directly to BCS Acquisition, L.P. (BCS). That information had not been introduced as evidence in the original hearing. Nor had an affidavit from a BCS official, which the plaintiff also attached to its motion to reargue, been introduced as evidence. The affidavit specifically indicates that the plaintiff did not receive a copy of the restructuring agreement from BCS upon obtaining the assignment and that all of the documents in BCS’ possession in connection with the assignment had been turned over to the plaintiff. The plaintiffs memorandum of law in support of the motion to reargue also included a representation by the plaintiff that it had talked with an attorney for BCS who indicated that the plaintiff could have a part of the restructuring agreement, provided that BCS agreed. The court denied the motion to reargue. This appeal followed.

At the outset, we note that our standard of review is whether the court abused its discretion in denying the petition for a bill of discovery. See id., 7, 9-10.

We begin our discussion by examining the operative statute. General Statutes § 52-156a (a) (1) and (2) provides that a person who desires to perpetuate testimony regarding any matter that may be cognizable in the Superior Court may file a verified petition that is then served on the party sought to be deposed if he is an expected adverse party, and a hearing is then held on the petition before a judge. The court may order the taking of depositions if it is satisfied that “the perpetuation of the testimony may prevent a failure or delay of justice . . . .” General Statutes § 52-156a (a) (3).

The history, extent and limitations of the use of the bill of discovery recently were examined by our Supreme Court in Berger v. Cuomo, supra, 230 Conn. 5-7. Although it is not necessary to restate all of the principles so well detailed in that case, we mention those that are of particular significance to this appeal. Berger informs us that the plaintiff who brings a petition for a bill of discovery must demonstrate by detailed facts that there is probable cause to bring a potential cause of action; he must show more than a mere suspicion. Id., 7. He also must show that there is some describable sense of wrong. Id., 7-8. The plaintiff must demonstrate good faith that the information sought is material and necessary to his action. Id., 6. Just what is reasonably necessary is within the trial court’s broad discretion. Id., 7. Falco v. Institute of Living, 254 Conn. 321, 332, 757 A.2d 571 (2000), emphasizes the need to present evidence regarding the dearth of alternative means of obtaining the desired information other than disclosure by the defendant. Lack of such evidence lends credence to the conclusion that the petition is being employed as an alternative to diligent investigation. Id. Falco further informs us that merely alleging that there are “no other adequate means of enforcing discovery of the desired material” is not sufficient to satisfy the burden. Berger v. Cuomo, supra, 6.

Against that legal backdrop, we address the plaintiff’s failure to support its petition for a bill of discovery with any evidence. Section 52-156a (a) (1) provides that an action must be commenced by a verified petition. The verification requirement does not excuse the need to offer supportive evidence any more than it does in injunction or other proceedings that similarly require a verified complaint. Statutory verification requirements condition how the action is commenced but do not govern how it is proved. The record reveals that the allegations of the plaintiffs complaint about whether the entire equitable proceeding was necessary were in fact contested at the hearing. The defendant told the court that he believed evidence was necessary. The plaintiff contends on appeal that this court in Nestor v. Travelers Indemnity Co., 41 Conn. App. 625, 631, 677 A.2d 475, cert. denied, 239 Conn. 903, 682 A.2d 1004 (1996), implicitly countenanced establishment of probable cause by pleadings. That argument disregards the significance of the effect of the procedural device that the defendant in Nestor used to attack the petition for the taking of depositions. The defendant in that case used a motion to strike. Such a motion admits all facts as true and well pleaded. Notwithstanding that admission, the defendant maintained that even if the allegations of fact were proven, they would not give rise to a cause of action. Id., 628-29. When this court in Nestor stated that “[t]he plaintiff did not establish through his pleadings that he had probable cause to bring a potential cause of action,” it was holding that the allegations of the complaint, even if accepted as true, did not sufficiently set out probable cause to bring a potential cause of action. Id., 631. The Nestor court found that in a motion to strike addressed to the legal sufficiency of the pleadings, those pleadings did not suffice. That is not the same as the plaintiffs assertion in the present case that a mere pleading suffices. See id. Furthermore, the representations and arguments of the plaintiffs counsel are not evidence. Cologne v. Westfarms Associates, 197 Conn. 141, 153, 496 A.2d 476 (1985). Because the plaintiff put no testimony or other admissible evidence before the court to establish probable cause to bring a potential cause of action and also failed to show that it had no other adequate means of securing the information other than by subjecting the defendant to an equitable petition in the trial court, the court was well within its discretion in denying the petition. Our resolution of this issue is dispositive of the appeal, and we therefore do not address the plaintiffs other claims.

The judgment is affirmed.

In this opinion the other judges concurred.


text:
    JOSEPH AUGER v. TOWN OF STRATFORD
    (AC 20468)
    Foti, Mihalakos and Hennessy, Js.
    Argued February 26 —
    officially released June 26, 2001

      Matthew Iiirsch, with whom, on the brief, was George W. Booth, Jr., special assistant town attorney, for the appellant (defendant).

      William L. Cotter, for the appellee (plaintiff).
   Opinion

PER CURIAM.

The defendant, the town of Stratford (town), appeals from the decision of the workers’ compensation review board (board) affirming the decision of the workers’ compensation commissioner (commissioner) that the plaintiff, Joseph Auger, was entitled to receive insurance benefits under General Statutes (Rev. to 1989) § 31-284b despite the fact that, as stated by the board in its decision, he “is no longer receiving workers’ compensation benefits of any kind.”

On' appeal, the defendant claims that (1) the board improperly affirmed the commissioner’s finding and award, (2) there must be an entitlement to some type of weekly indemnity benefit under the Workers’ Compensation Act, General Statutes § 31-275 et seq., to trigger § 31-284b benefits and that those benefits are not triggered by occasional medical treatment, (3) the board improperly determined sua sponte that it was clear from the plaintiffs testimony that the plaintiff had continued treatment with a physician for his compensable condition and, therefore, still needed medical treatment, when the commissioner never made such a determination, nor made it part of his finding and award, and (4) the board improperly concluded that the town’s failure to file a form 36 in conjunction with its discontinuance of the plaintiffs insurance benefits automatically entitled the plaintiff to § 31-284b coverage through the date of the formal hearing. We agree with the town on the second issue, which we find to be dispositive and, accordingly, we reverse the decision of the board without addressing the remaining claims.

The commissioner found the following facts. The plaintiff, a former police officer for the town, suffered a compensable back injury on August 7,1990. The town and the plaintiff entered into two voluntary agreements regarding that injury in which the parties agreed that the plaintiff had a 20 percent permanent partial impairment of his back entitling him to 104 weeks of specific indemnity benefits. At the time of his injury, as a benefit of employment, the plaintiff, his spouse and dependents were receiving health, dental and life insurance coverage without cost to him.

On July 14,1995, the plaintiff was awarded a disability pension as a result of his back injury and the fact that he was unable to perform the duties of a police officer. When the plaintiff began receiving his disability pension, the town discontinued his dental insurance coverage and began deducting health insurance premiums from his paychecks. The plaintiff then instituted a claim against the town seeking reimbursement of all premiums deducted and reinstatement of the same health, dental and life insurance coverage for himself and his defendants that was in place on the date of his injury, August 7, 1990. The plaintiff also sought interest and attorney’s fees.

The commissioner ruled that the plaintiff was entitled to § 31-284b benefits, even though he no longer was receiving workers’ compensation benefits of any kind. The commissioner found that the plaintiffs case remained open and active, a fact that made him eligible to receive workers’ compensation benefits. The commissioner thus concluded that the plaintiff was expressly entitled to § 31-284b benefits. The commissioner directed the town to reinstate the plaintiff and his group medical benefits that were in effect on the date of the plaintiffs injury without cost to him. Additionally, the commissioner ordered the town to reimburse the plaintiff for all of the health insurance premiums that were improperly deducted from his paychecks. Because attorney’s fees were not awarded, the plaintiff joined the town in petitioning the board for review of the commissioner’s decision. The board affirmed the commissioner’s decision. This appeal ensued.

The second issue raised by the defendant is identical to that addressed by this court recently in Kelly v. Bridgeport, 61 Conn. App. 9, 762 A.2d 480 (2000), cert. denied, 255 Conn. 933, 767 A.2d 104 (2001). In Kelly, this court held that “[c]onstruing the statutes as they existed at the time of the plaintiffs injury, we conclude that the term ‘compensation payments’ as used in § 31-284b (a) does not include payments for medical care after the indemnity compensation period has ceased. The statute mandates that an employer is required to continue insurance benefits only while an employee is receiving ‘compensation payments’ for disability under the Workers’ Compensation Act.” Id., 16-17. For the reasons set out in that opinion, we reverse the decision of the board and remand this case to it with direction to reverse the decision of the commissioner.

The decision of the workers’ compensation review board is reversed and the case is remanded to the board with direction to reverse the decision of the commissioner.

       General Statutes (Rev. to 1989) § 31-284b (a) provides: “In order to maintain, as nearly as possible, the income of employees who suffer employment-related injuries, any employer, as defined in section 31-275, who provides accident and health insurance or life insurance coverage for any employee or makes payments or contributions at the regular hourly or weekly rate for full-time employees to an employee welfare fund, as defined in section 31-53, shall provide to such employee equivalent insurance coverage or welfare fund payments or contributions while the employee is eligible to receive or is receiving workers’ compensation payments pursuant to this chapter, or while the employee is receiving wages under a provision for sick leave payments for time lost due to an employment-related injury.”

       A form 36 notifies the workers’ compensation commissioner and the person claiming benefits that the employer and its insurer intend to discontinue compensation payments. Cummings v. Twin Tool Mfg. Co., 40 Conn. App. 36, 38 n.1, 668 A.2d 1346 (1996).


text:
    IN RE SHANICE P.

    (AC 20896)
    Landau, Flynn and Peters, Js.
    Argued June 8 —
    officially released June 12, 2001

      Donald Brown, pro se, the appellant (respondent father), filed a brief.

      Maureen Regula, assistant attorney general, with whom, on the brief, were Richard Blumenthal, attorney general, and Susan T. Pearlman, assistant attorney general, for the appellee (petitioner).

      David P. Gaccione, for the minor child.

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

       June 12,2001, the date that this decision was released as a slip opinion, is the operative date for all substantive and procedural purposes.

   Opinion

PER CURIAM.

The respondent father appeals from the judgment of the trial court terminating his parental rights with respect to his minor child. We dismiss the appeal because the respondent failed to appear for oral argument.

The appeal is dismissed.

       Trial counsel for the respondent father, who had been appointed by the court for purposes of trial, moved to withdraw from the case following the judgment rendered by the trial court upon granting the termination petition. The court appointed an attorney to review the record to determine if an appeal was warranted. Substitute counsel concluded that no nonfrivolous issues for appeal existed and declined to pursue an appeal.
      The minor child’s biological mother consented to the termination of her parental rights conditioned on the court’s granting the termination petition against the father.

       Members of the court’s staff placed telephone calls to the number provided by the respondent father but were unable to communicate with him. The respondent father failed to appear as of the conclusion of this court’s docket.
      The petitioner, the commissioner of children and families, has consented not to begin adoption proceedings until July 7, 2001.


author: DRANGINIS, J.

text:
    STATE OF CONNECTICUT v. SHAWN HOLMES
    (AC 19329)
    Mihalakos, Dranginis and Shea, Js.
    Argued February 23 —
    officially released June 26, 2001

      Richard E. Condon, Jr., special deputy assistant public defender, for the appellant (defendant).

      Marjorie Allen Dauster, assistant state’s attorney, with whom, on the brief, were Mary M. Galvin, state’s attorney, and Kevin Lawlor, assistant state’s attorney, for the appellee (state).
   Opinion

DRANGINIS, J.

The defendant, Shawn Holmes, appeals from the judgment of conviction, rendered following a jury trial, of sexual assault in the second degree in violation of General Statutes § 53a-71 (a) (1) and risk of injury to a child in violation of General Statutes § 53-21 (a) (1). On appeal, the defendant claims that (1) the trial court improperly admitted evidence of flight and instructed the jury on consciousness of guilt, and (2) prosecutorial misconduct deprived him of a fair trial. We affirm the judgment of the trial court.

The jury reasonably could have found the following facts. On April 16, 1997, B, a fourteen year old eighth grader, attended a Bible study class in Bridgeport with her two friends, K and S. The class ended around 9 p.m. After waiting some time for the person who was to pick them up, the three girls walked a few blocks to the home of K’s uncle. No one was at the house, and the girls walked back toward the building where the Bible study class was held. During the walk back, the girls encountered three men who had exited a car to talk to them. B did not know any of the men, but S knew one of them. During the conversation, a fourth man came out of a nearby house. The men were later determined to be the defendant, his brother, Maurice Holmes, and Milton Martinez and Jack Martinez, who were also brothers.

The men asked the girls if they wanted to go to a party, and the girls replied, “No.” When asked by the men, the girls were dishonest about their ages. The men offered to give the girls a ride home, and Milton Martinez gave S his driver’s license as a “guarantee” that he would drive them home. S and B got into the backseat of the car, but K refused to get into the car and started to walk back to her uncle’s house. The four men, S and B drove to the Milford Motel. Milton Martinez, who was driving, parked and went into the office to rent a motel room. He returned with a key and drove to the door of room 106.

All six people exited the car and entered the motel room. S went to the bathroom with Maurice Holmes, and B sat on the bed closest to the bathroom. The other men in the room smoked marijuana and watched television. The defendant then went and sat next to B on the bed. He then got up and said, “Come on,” indicating that he wanted B to take off her clothes. B said no. The defendant pulled down her pants and pushed her back onto the bed. One of the other men held B’s legs while the defendant put on a condom and proceeded to penetrate B’s vagina. After about five minutes, the defendant stopped, and Milton Martinez approached the bed. Jack Martinez and the defendant held B’s legs and Milton Martinez pulled down his pants and, after putting on a condom, penetrated B’s vagina. While Milton Martinez was penetrating B, Jack Martinez was touching her body and the defendant was trying to put his penis in her mouth. Jack Martinez also tried to have sex with her but did not.

After S and Maurice Holmes exited the bathroom, the group stayed in the motel room for fifteen or twenty minutes longer. S then returned Milton Martinez’ license, and the group left the motel. B and S were dropped off a few blocks from their homes, and the four men drove off. S and B began walking home, and S heard her mother calling and ran to meet her. B continued home where her cousin, uncle and brothers were waiting for her. K had told B’s family that she had seen B and S get into a car with some men after Bible class. B’s family asked where she had been, and B told them what had happened. B was then taken to a hospital.

Following his arrest, the defendant was charged in a three count information with sexual assault in the first degree in violation of General Statutes § 53a-70 (a) (1) and (3), and risk of injury to a child in violation of General Statutes § 53-21 (a) (1). The court declared a mistrial on count one. On count two, the defendant was found guilty of the lesser included offense of sexual assault in the second degree. The defendant was found guilty as charged on the third count. The defendant received a total effective sentence of ten years, execution suspended after four and one-half years, and ten years probation. This appeal followed. Additional facts will be provided as necessary.

I

The defendant first claims that the court improperly admitted evidence of flight. Specifically, the defendant argues that the court improperly admitted evidence of police efforts to locate him as relevant to flight and improperly instructed the jury on consciousness of guilt. The defendant argues that the prejudicial effect of the evidence of flight outweighed its probative value.

The following additional facts are relevant to our review of this claim. Sergeant Philip Maloney of the Milford police department was the lead investigator in this case. According to Maloney, one of the other men alleged to have been in the motel room told him that he could find the defendant at 231 Grove Street. Maloney went to the address, but received no answer. He left a card with his name, address, number and a note stating that he was conducting an investigation and wanted the defendant and his brother to contact him. After several days, he had not heard from the defendant or his brother, and he returned to 231 Grove Street and left his card again. He then sought a warrant for the defendant’s arrest, which was issued. He again returned to 231 Grove Street after the warrant had been issued and left a card. He went several more times after the warrant had been issued. On July 4, 1997, Maloney spoke with Darlene Holmes, the mother of the defendant and Maurice Holmes. Maloney advised her that there were arrest warrants out for her sons. She told Maloney that she would inform her sons and have them contact him. They never contacted Maloney. Maloney made several more attempts to contact the defendant at 231 Grove Street.

On July 30,1997, the arrest warrants for the defendant and Maurice Holmes were referred to the Connecticut fugitive task force. Agent Art Hamilton Jarvis was assigned to investigate and serve a warrant on the defendant. On September 10, 1997, Jarvis discovered that the defendant and his family had moved to 94 Denver Avenue. On September 19,1997, the police arrested the defendant and Maurice Holmes after surveillance at the new address.

The defendant filed a motion in limine to require that the state’s offer of evidence of other crimes or acts of misconduct occur outside the presence of the jury. At trial, the defendant stated that the motion applied to evidence of police attempts to locate him after April, 1997. In an offer of proof outside the presence of the jury, the state presented the testimony of Maloney and Jarvis concerning their efforts to locate the defendant. The defendant objected to the admission of the testimony on four grounds. The court ruled that the state did not have to prove the defendant’s knowledge of efforts to locate him prior to the issuance of the arrest warrant for that evidence to be relevant and thereby admissible. The court also concluded that the law did not require the state to present evidence that the defendant had actual knowledge that a warrant had been issued for his arrest to introduce evidence of flight.

A trial court may “entertain a motion in limine made by either party regarding the admission or exclusion of anticipated evidence. . . . The judicial authority may grant the relief sought in the motion or such other relief as it may deem appropriate, may deny the motion with or without prejudice to its later renewal, or may reserve decision thereon until a later time in the proceeding.” Practice Book § 42-15. “This court has said that ‘[t]he motion in limine . . . has generally been used in Connecticut courts to invoke a trial judge’s inherent discretionary powers to control proceedings, exclude evidence, and prevent occurrences that might unnecessarily prejudice the right of any party to a fair trial.’ Richmond v. Longo, 27 Conn. App. 30, 36, 604 A.2d 374, cert. denied, 222 Conn. 902, 606 A.2d 1328 (1992).” State v. Pharr, 44 Conn. App. 561, 581, 691 A.2d 1081 (1997).

“Generally, ‘ [tJrial courts have wide discretion with regard to evidentiary issues and their rulings will be reversed only if there has been an abuse of discretion or a manifest injustice appears to have occurred. State v. Robinson, 227 Conn. 711, 732, 631 A.2d 288 (1993). Every reasonable presumption will be made in favor of upholding the trial court’s ruling, and it will be overturned only for a manifest abuse of discretion. State v. Kulmac, 230 Conn. 43, 61, 644 A.2d 887 (1994).’ State v. Gracia, 51 Conn. App. 4, 15-16, 719 A.2d 1196 (1998).” Olson v. Accessory Controls & Equipment Corp., 54 Conn. App. 506, 526, 735 A.2d 881 (1999), aff'd, 254 Conn. 145, 757 A.2d 14 (2000).

Our Supreme Court has stated: “Flight, when unexplained, tends to prove a consciousness of guilt. . . . Flight is a form of circumstantial evidence. Generally speaking, all that is required is that the evidence have relevance, and the fact that ambiguities or explanations may exist which tend to rebut an inference of guilt does not render evidence of flight inadmissible but simply constitutes a factor for the jury’s consideration. . . . The probative value of evidence of flight depends upon all the facts and circumstances and is a question of fact for the jury.” (Citations omitted; internal quotation marks omitted.) State v. Holloway, 209 Conn. 636, 651-52, 553 A.2d 166, cert. denied, 490 U.S. 1071, 109 S. Ct. 2078, 104 L. Ed. 2d 643 (1989). “ ‘The fact that the evidence might support an innocent explanation as well as an inference of a consciousness of guilt does not make an instruction on flight erroneous.’ State v. Wright, 198 Conn. 273, 281, 502 A.2d 911 (1986).” State v. Freeney, 228 Conn. 582, 594, 637 A.2d 1088 (1994).

“It is relevant to show the conduct of an accused, as well as any statement made by him subsequent to an alleged criminal act, which may be inferred to have been influenced by the criminal act. State v. Reid, 193 Conn. 646, 655, 480 A.2d 463 (1984).....The court must weigh the probative value against any prejudicial effect on the defendant.” (Citations omitted; internal quotation marks omitted.) State v. Burak, 201 Conn. 517, 533, 518 A.2d 639 (1986). “Because of the difficulties inherent in [the probative-prejudicial] balancing process, the trial court’s decision will be reversed only where abuse of discretion is manifest or where an injustice appears to have been done.” (Internal quotation marks omitted.) State v. Perry, 48 Conn. App. 193, 201, 709 A.2d 564, cert. denied, 244 Conn. 931, 711 A.2d 729 (1998).

On appeal, the defendant argues that the state’s offer failed to support an inference of flight because there was no evidence showing that the defendant was aware that he was wanted by the police. The defendant argues that the court improperly based its ruling solely on State v. Nemeth, 182 Conn. 403, 438 A.2d 120 (1980), and State v. Hyslop, 10 Conn. App. 457, 523 A.2d 1350 (1987), and failed to consider the lack of immediacy between the incident and the police efforts to locate him. The defendant also argues that the failure to consider an absence of immediacy shows that the court did not undertake properly its responsibility of balancing the probative value of the evidence against its prejudicial effect. We disagree.

The defendant’s criticism of the court’s reliance on Nemeth is unfounded. Nemeth and Hyslop articulate the principle that the state is not required, as a matter of law, to establish that the defendant had actual knowledge that he was being charged with a criminal offense before introducing evidence of his flight. State v. Nemeth, supra, 182 Conn. 407-408; State v. Hyslop, supra, 10 Conn. App. 461-62. In this case, the state was not required to show that the defendant had knowledge that the police were actively looking for him for the evidence of flight to be introduced to the jury to infer consciousness of guilt. The court properly relied on Nemeth and Hyslop in allowing the state to present evidence of the defendant’s flight even if the state failed to introduce direct or inferential evidence that the defendant knew that he was wanted by the police.

The record discloses many facts from which the jury reasonably could infer that the defendant was avoiding contact with the police. On the basis of our review of the transcripts and evidence, we cannot say that the court abused its discretion in determining that the evidence of flight should be admitted. In this case, it was not a manifest abuse of discretion to allow into evidence the efforts of police to locate the defendant.

The defendant further claims that the court’s jury instruction concerning consciousness of guilt was improper because the prejudicial effect of the evidence outweighed its probative value. “Evidence that an accused has taken some kind of evasive action to avoid detection for a crime, such as flight ... is ordinarily the basis for a charge on the inference of consciousness of guilt.” State v. Williams, 27 Conn. App. 654, 663, 610 A.2d 672, cert. denied, 223 Conn. 914, 614 A.2d 829 (1992). “The fact that the evidence might support an innocent explanation as well as an inference of a consciousness of guilt does not make an instruction on flight erroneous.” (Internal quotation marks omitted.) State v. Groomes, 232 Conn. 455, 472-73, 656 A.2d 646 (1995).

We cannot say that the court abused its discretion in determining that the evidence of flight was more probative than prejudicial or that it appears that an injustice has been done. The admitted evidence was sufficient to support the consciousness of guilt instruction. The court properly instructed the jury on the factors to consider in determining whether to infer a consciousness of guilt from the evidence before it. The court also properly explained that it was for the jury to determine the weight to be accorded to such evidence in making its determination. Having determined that the court properly admitted the evidence of flight, we further conclude that the court properly charged the jury concerning consciousness of guilt. See State v. Cox, 50 Conn. App. 175, 186-87, 718 A.2d 60 (1998), aff'd, 251 Conn. 54, 738 A.2d 652 (1999).

II

The defendant next claims that prosecutorial misconduct during the closing argument denied him due process and violated his right to a fair trial. Specifically, the defendant claims that the prejudicial effect of the prosecutor’s improper remarks requires this court to reverse the judgment of conviction and to order a new trial. The defendant raises several claims of prosecutorial misconduct. The defendant properly preserved some of the claims for review because defense counsel objected at trial. One of his claims, however, was not properly preserved, and the defendant now seeks review of that unpreserved claim under State v. Golding, 213 Conn. 233, 239-40, 567 A.2d 823 (1989).

We often have stated our standard of review of a claim of prosecutorial misconduct that allegedly results in an unfair trial. “[T]o deprive a defendant of his constitutional right to a fair trial . . . the prosecutor’s conduct must have so infected the trial with unfairness as to make the resulting conviction a denial of due process. . . . We do not focus alone, however, on the conduct of the prosecutor. The fairness of the trial and not the culpability of the prosecutor is the standard for analyzing the constitutional due process claims of criminal defendants alleging prosecutorial misconduct. . . . [M]oreover . . . [Golding] review of such a claim is unavailable where the claimed misconduct was not blatantly egregious and merely consisted of isolated and brief episodes that did not reveal a pattern of conduct repeated throughout the trial ....

“In determining whether this claim of prosecutorial misconduct deprived the defendant of his due process right to a fair trial, we must first decide whether the prosecutor’s remarks were, in fact, improper, and, if so, whether they substantially prejudiced the defendant. ... In doing so, we have focused on several factors, [i]ncluded among those factors are the extent to which the misconduct was invited by defense conduct or argument; State v. Falcone, 191 Conn. 12, 23, 463 A.2d 558 (1983); the severity of the misconduct; see United States v. Modica, 663 F.2d 1173, 1181 (2d Cir. 1981) [cert. denied, 456 U.S. 989, 102 S. Ct. 2269, 73 L. Ed. 2d 1284 (1982)]; the frequency of the misconduct; State v. Couture, 194 Conn. 530, 562-63, 482 A.2d 300 (1984), cert. denied, 469 U.S. 1192, 105 S. Ct. 967, 83 L. Ed. 2d 971 (1985); see State v. Doehrer, [200 Conn. 642, 654, 513 A.2d 58 (1986)]; State v. Palmer, [196 Conn. 157, 164, 491 A.2d 1075 (1985)]; the centrality of the misconduct to the critical issues in the case; Hawthorne v. United States, 476 A.2d 164, 172 (D.C. App. 1984); the strength of the curative measures adopted; United States v. Modica, supra, 1181; Harris v. United States, 402 F.2d 656, 657 n.1 (D.C. Cir. 1968); State v. Doehrer, supra, 654; and the strength of the state’s case. See United States v. Modica, supra, 1181; State v. Couture, supra, 564; see also State v. Glenn, 194 Conn. 483, 492, 481 A.2d 741 (1984). . . . State v. Alexander, 50 Conn. App. 242, 255-56, 718 A.2d 66 (1998) [aff'd on prosecutorial misconduct claim, 254 Conn. 290, 755 A.2d 868 (2000)].

“We do not scrutinize each individual comment in a vacuum, but rather we must review the comments complained of in the context of the entire trial. ... It is in that context that the burden [falls] on the defendant to demonstrate that the remarks were so prejudicial that he was deprived of a fair trial and the entire proceedings were tainted.” (Citations omitted; internal quotation marks omitted.) State v. Chasse, 51 Conn. App. 345, 355-56, 721 A.2d 1212 (1998), cert. denied, 247 Conn. 960, 723 A.2d 816 (1999).

Prosecutorial misconduct can occur in the course of closing argument. State v. Atkinson, 235 Conn. 748, 768-69, 670 A.2d 276 (1996). Counsel, in addressing the jury, must be allowed a generous latitude in argument, including the zeal of counsel in the heat of argument. State v. Andrews, 248 Conn. 1, 19, 726 A.2d 104 (1999). Ultimately, the determination of the proper scope of closing argument lies within the sound discretion of the trial court. State v. Copas, 252 Conn. 318, 337, 746 A.2d 761 (2000). We review the allegedly improper comments in the context of the entire trial. State v. Andrews, supra, 19.

We first address the prosecutor’s comments to which the defendant did not object. This claim was not preserved, and the defendant seeks Golding review. The defendant satisfies the first two prongs of Golding because an adequate record exists to review his claim and he alleges a constitutional violation. The defendant, however, cannot satisfy the third prong because he cannot demonstrate that a constitutional violation clearly exists and clearly deprived him of a fair trial.

During closing argument the prosecutor stated, “I think what was shown through all the witnesses, especially through [B], is that she was raped on April 16, 1997, in Milford Motel at 1015 Boston Post Road,” and, “I think that the state has proven through [B’s] testimony once again that this defendant engaged in sexual intercourse, which is sexual actions which impaired her morals, impaired her physical well-being.” The defendant claims that with those remarks the prosecutor improperly appealed to the jury’s emotions, passions and prejudices. The record discloses that those comments were isolated and that the prosecutor did not engage in a pattern of egregious conduct. The comments do not rise to the level of misconduct; they do not vouch for the truthfulness or veracity of the witness and they do not appeal to the passions, emotions or prejudices of the jurors. The defendant cannot establish the third prong of the Golding test that a constitutional violation clearly exists that deprived him of a fair trial. Consequently, the defendant cannot prevail on his unpreserved claim.

We next address the preserved claims. The defendant objected on two occasions, first, when the prosecutor said that B had told the truth and was not lying, and second, to the comment that the defendant and the other men were driving around looking for young girls leaving catechism. In one of the objections, the defendant claimed that the comments were not based on facts in evidence. At trial, the prosecutor stated, “If nothing else, what she said on the stand, if, if you can’t believe her [B], I don’t know who, I mean, the girl got up here and told you the truth,” and, “[t]hat’s how she fought back. She fought back by . . . coming in here and testifying. . . . She was not lying.”

The prosecutor’s remarks in this case were not so prejudicial that they deprived the defendant of a fair trial, nor did the comments taint the entire proceedings. “[A] prosecutor may properly comment on the credibility of a witness where . . . the comment reflects reasonable inferences from the evidence adduced at trial.” (Internal quotation marks omitted.) State v. Hicks, 56 Conn. App. 384, 392, 743 A.2d 640 (2000). In this case, in the context of the entire argument, the prosecutor did not express his opinion as to the victim’s credibility. Instead, he argued to the jury that in light of the evidence before it of the victim’s age, the circumstances of the sexual contact and the testimony of those who had observed the victim that night, the jury could and should believe her. The jury was free to believe her despite the defendant’s argument that she was lying to avoid getting into trouble for going to a party with the men. We conclude, therefore, that the prosecutor’s argument did not infringe on the defendant’s constitutional right to a fair trial.

The judgment is affirmed.

In this opinion the other judges concurred.

       To comply with General Statutes § 54-86e, the court will not use the names of the victim or her friends.

       The court charged the jury concerning consciousness of guilt as follows: “Now, the attorneys, during final argument, made some references to a concept which we refer to as consciousness of guilt. The law recognizes a principle known as consciousness of guilt. . . . When a person is on trial for a criminal offense, it is proper to show conduct subsequent to the alleged criminal offense which may fairly have been influenced by that act. The state has introduced evidence from which you are being asked to infer that [the defendant] fled subsequent to the events of April 16, 1997. Flight can be one type of conduct which would show consciousness of guilt. Whether you draw such an inference from the facts as you find them to be is completely up to you. You should consider all of the evidence in this regard in deciding whether to draw an inference, such an inference. While you are permitted to draw an inference of consciousness of guilt from such conduct, you are not required to do so. It is up to you to decide what, if any, weight you will give to such evidence in determining whether the defendant has been proven guilty of the crimes charged.”

       The defendant alternatively argues that his unpreserved claim is entitled to review under the plain error doctrine. Practice Book § 60-5. “[R]eview under the plain error doctrine is reserved for truly extraordinary situations where the existence of the error is so obvious that it affects the fairness and integrity of and public confidence in the judicial proceedings.” (Internal quotation marks omitted.) State v. Stephens, 249 Conn. 288, 291, 734 A.2d 533 (1999). This claim does not meet that standard.

       “[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.” (Emphasis in original.) State v. Golding, supra, 213 Conn. 239-40.

       An unpreserved claim that the defendant was denied due process by prosecutorial misconduct can be reviewed on appeal. “It is well settled, however, that a defendant may not prevail under Golding or the plain error doctrine unless the prosecutorial impropriety was so pervasive or egregious as to constitute an infringement of the defendant’s right to a fair trial, nor will we invoke our supervisory authority to reverse an otherwise lawful criminal conviction absent a showing that the conduct of the prosecutor was so offensive to the judicial process that a new trial is necessary to deter such misconduct in the future.” State v. Satchwell, 244 Conn. 547, 564, 710 A.2d 1348 (1998).


text:
    STATE OF CONNECTICUT v. ANTHONY J. BROCUGLIO
    (AC 18520)
    Pellegrino, Dranginis and Hennessy, Js.

      Argued December 7, 2000 —
    officially released July 3, 2001

      Jon L. Schoenhom, special public defender, for the appellant (defendant).

      Mitchell S. Brody, assistant state’s attorney, with whom were Adam B. Scott, assistant state’s attorney, and, on the brief, James E. Thomas, state’s attorney, for the appellee (state).
   Opinion

DRANGINIS, J.

The defendant, Anthony J. Brocuglio, appeals from the judgment of conviction, rendered after a jury trial, of two counts of interfering with an officer in violation of General Statutes § 53a-167a (a). On appeal, the defendant claims that the trial court improperly (1) denied his motion to suppress certain evidence obtained as a result of a warrantless search and seizure, (2) violated his right to confront and to cross-examine a witness by restricting impeachment of the witness, (3) restricted the admission of evidence concerning the propensity of a police officer and his dog for violence, thereby undermining the defendant’s right to present a defense, (4) failed to instruct the jury that it must unanimously agree on the factual basis for the offense before voting to convict the defendant, (5) refused to instruct the jury (a) on the right to resist an illegal entry into the curtilage of one’s home and (b) that the officers’ warrantless entry was unlawful, and (6) imposed vague and overbroad conditions of probation that were unrelated to the offense for which he was convicted and failed to apprise the defendant of the conduct he must avoid. We reverse the judgment of the trial court and order a new trial because we agree with the defendant’s first claim, which is that the court improperly denied his motion to suppress evidence obtained from a warrantless search and seizure.

The jury reasonably could have found the following relevant facts. On September 27, 1996, two officers of the East Hartford police department went to the defendant’s house at 59 Church Street, at the request of the East Hartford mayor’s office, to ticket abandoned and unregistered vehicles. While they were issuing citations, the officers went to areas contiguous to the defendant’s residence. The areas consisted of the rear yard, which was protected by a fence, and an unprotected area near the front of the defendant’s residence. The ticketing was done pursuant to East Hartford’s Code of Ordinances, § 21-1 et seq. The officers had no search warrant, either administrative or otherwise.

The officers first began to ticket vehicles located in the driveway of the defendant’s front yard. While the police were in the front of the house, the defendant’s wife came outside and ordered the officers off her property. The officers responded that they had been sent by the town and were acting pursuant to one of its ordinances. The defendant’s wife went back inside to call the officers’ watch commander, and the defendant came outside. The defendant also ordered the officers off the property. The officers repeated that they were sent by the town and instructed the defendant to call the watch commander.

In response to the officers’ comments, the defendant cursed about the mayor and threatened to bring his dog outside if the officers did not leave. The defendant also claimed that his dog would eat one of the police dogs present at the scene. One officer responded that he would shoot the defendant’s dog if he let it come outside. The defendant went inside and returned to the front of the house holding his dog by the collar. One of the officers drew his gun, upon seeing the dog, and ordered the defendant to keep his dog away. The defendant and his dog went back inside the house.

The officers finished ticketing the vehicles in the front of the house and proceeded to the backyard of 59 Church Street to continue ticketing. To get to the backyard and driveway of the house, the officers had to bypass a six foot tall stockade fence that displayed “no trespassing” and “keep out” signs. That fence ran on both sides of the defendant’s house. It blocked the back driveway and yard from sight from the street in front of the house. The officers entered through the portion of the fence that extended from the side of the house across the driveway to another home.

The officers then began ticketing vehicles in the backyard. The defendant and his dog again came outside, this time onto the back porch near where the officers were ticketing. He again threatened to release his dog if the officers did not leave. At that point, according to one of the officers, the defendant took his dog down the back steps and moved toward the two officers, as he yelled profanities and threatened to let his dog go. In response, one officer informed the defendant that he was under arrest. An altercation then ensued between the officers and the defendant. After the altercation, the defendant was arrested, driven to the police station and then taken by ambulance to a hospital.

The defendant was charged in a substitute information with two counts of assault of a peace officer in violation of General Statutes § 53a-167c (a) (1) and three counts of interfering with an officer. He was convicted of two counts of interfering with an officer. The jury acquitted the defendant of one count of interfering with an officer and one count of assault of a peace officer, and the court granted the defendant’s motion for a judgment of acquittal, made at the conclusion of the state’s case-in-chief, on the second count of assault of a peace officer. The defendant received a sentence of one year of incarceration and a penal fine of $1500 on one count of interfering with an officer, and one year of incarceration, execution suspended, and two consecutive years of probation, on another count of interfering with an officer. This appeal followed.

The defendant first claims that the court improperly denied his motion to suppress evidence derived from a warrantless entry onto his property. The defendant argues that the motion to suppress the evidence should have been granted because the search conducted by the police violated the fourth amendment to the United States constitution and article first, § 7, of the constitution of Connecticut. We agree in part.

“Our standard of review of a trial court’s findings and conclusions in connection with a motion to suppress is well defined. A finding of fact will not be disturbed unless it is clearly erroneous in view of the evidence and pleadings in the whole record .... Practice Book § 4061 [now § 60-5]; State v. Oquendo, 223 Conn. 635, 645, 613 A.2d 1300 (1992); State v. Kyles, 221 Conn. 643, 660, 607 A.2d 355 (1992). [W]here the legal conclusions of the court are challenged, we must determine whether they are legally and logically correct and whether they find support in the facts set out in the memorandum of decision . . . .” (Internal quotation marks omitted.) State v. Colvin, 241 Conn. 650, 656, 697 A.2d 1122 (1997).

In its memorandum of decision on the motion to suppress, the court found that “[a]ny evidence that the state may seek to introduce was yielded voluntarily by the defendant. Any utterances were clearly of the accused’s free will. . . . The accused was not in custody when he made his voluntary utterances. The evidence of utterances that the state may seek to introduce are not the product of an illegal search or seizure. . . . The dispositive issue is whether, even if the search was illegal, the evidence sought to be suppressed was gathered by exploitation of that illegality or instead by means sufficiently distinguishable to be purged of the primary taint.” (Citations omitted; internal quotation marks omitted.) The court found that the defendant’s “independent and intervening actions broke the chain of causation and dissipated the taint of any alleged prior illegality.”

“Subject to a few well defined exceptions, a warrantless search and seizure is per se unreasonable. . . . The state bears the burden of proving that an exception to the warrant requirement applies when a warrantless search has been conducted.” (Citations omitted; internal quotation marks omitted.) State v. Clark, 255 Conn. 268, 291, 764 A.2d 1251 (2001). “Under both the federal and the state constitutions, the police must first obtain a warrant before conducting a search, unless an exception to the warrant requirement applies.” State v. Longo, 243 Conn. 732, 737, 708 A.2d 1354 (1998); see Katz v. United States, 389 U.S. 347, 357, 88 S. Ct. 507, 19 L. Ed. 2d 576 (1967) (warrant required before every search or seizure “subject only to a few specifically established and well-delineated exceptions”); State v. Badgett, 200 Conn. 412, 423, 512 A.2d 160, cert. denied, 479 U.S. 940, 107 S. Ct. 423, 93 L. Ed. 2d 373 (1986).

“Well known federal and state constitutional principles govern the exclusion of evidence derived from a warrantless entry into a home. . . . Entry by the government into a person’s home ... is the chief evil against which the wording of the Fourth Amendment is directed. ... [Wjarrantless searches and seizures inside a home . . . are presumptively unreasonable . . . and the state bears the burden of showing that an exception to the warrant requirement exists. ... To discourage unreasonable searches and seizures, the evidence obtained as a direct result of that illegal search or seizure, as well as the fruits, or evidence derived therefrom, are excluded from evidence, unless the connection between the fruits and the illegal search has been sufficiently attenuated to be purged of its primary taint.” (Citations omitted; internal quotation marks omitted.) State v. Geisler, 222 Conn. 672, 681-82, 610 A.2d 1225 (1992).

“Under the exclusionary rule, evidence must be suppressed if it is found to be the fruit of prior police illegality. ... All evidence is not, however, a fruit of the poisonous tree simply because it would not have been discovered but for the illegal action of law enforcement officials. . . . Rather, the more apt question in such a case is whether, granting establishment of the primary illegality, the evidence to which instant objection is made has been come at by exploitation of that illegality or instead by means sufficiently distinguishable to be purged of the primary taint.” (Citations omitted; internal quotation marks omitted.) State v. Colvin, supra, 241 Conn. 656-57. “[T]he [exclusionary] rule’s prime purpose is to deter future unlawful police conduct and thereby effectuate the guarantee of the Fourth Amendment against unreasonable searches and seizures .... Application of the rule is thus appropriate in circumstances in which this purpose is likely to be furthered.” (Internal quotation marks omitted.) Payne v. Robinson, 207 Conn. 565, 570, 541 A.2d 504, cert. denied, 488 U.S. 898, 109 S. Ct. 242, 102 L. Ed. 2d 230 (1988).

Article first, § 7, of the constitution of Connecticut affords even greater protection to Connecticut citizens than does the fourth amendment to the United States constitution. State v. Geisler, supra, 222 Conn. 684. “It is well established that federal constitutional and statutory law establishes a minimum national standard for the exercise of individual rights and does not inhibit state governments from affording higher levels of protection for such rights. . . . We have also, however, determined in some instances that the protections afforded to the citizens of this state by our constitution go beyond those provided by the federal constitution, as that document has been interpreted by the United States Supreme Court.” (Citations omitted; internal quotation marks omitted.) Id. “[T]he exclusionary rule under article first, § 7 requires that evidence derived from an unlawful warrantless entry into the home be excluded unless the taint of the illegal entry is attenuated by the passage of time or intervening circumstances.” Id., 690.

As a preliminary matter, we must first consider whether the defendant has a reasonable expectation of privacy in his rear yard and driveway such' that a warrant is required. We conclude that the defendant’s fenced báckyard and driveway of his single-family, private home constitutes constitutionally protected curtilage of the house. The defendant therefore had an expectation of privacy in the fenced area equal to that of the house itself. “The question of whether a warrantless search of an area adjacent to a house is constitutionally forbidden turns on whether the search constitutes an intrusion upon what the resident seeks to preserve as private even in an area which, although adjacent to his home, is accessible to the public. ... If one has a reasonable expectation that various members of society may enter the property in their personal or business pursuits, he should find it equally likely that the police will do so.” (Citation omitted; internal quotation marks omitted.) State v. Liptak, 21 Conn. App. 248, 255, 573 A.2d 323, cert. denied, 215 Conn. 809, 576 A.2d 540 (1990).

The United States Supreme Court has determined that the curtilage question “should be resolved with particular reference to four factors: the proximity of the area claimed to be curtilage to the home, whether the area is included within an enclosure surrounding the home, the nature of the uses to which the area is put, and the steps taken by the resident to protect the area from observation by people passing by.” United States v. Dunn, 480 U.S. 294, 301, 107 S. Ct. 1134, 94 L. Ed. 2d 326 (1987); State v. Liptak, supra, 21 Conn. App. 256.

Our review of the facts and record in the present case establishes that the four factors identified in Dunn are satisfied. The area at issue is curtilage for the following reasons: (1) it is immediately adjacent to and closely behind the house; (2) the back driveway and yard are gated by a six foot tall, opaque stockade fence displaying numerous “no trespassing” and “keep out” signs; and (3) the fence across the back driveway was shut, and nothing could be observed from the street in front of the house by people passing by except the crane of a tow truck in the backyard. We conclude therefore, that the defendant had an expectation of privacy in the area in question equivalent to that of the house itself.

The warrantless entry by the officers into the fenced backyard and driveway of the defendant’s house violated article first, § 7, of the constitution of Connecticut and the fourth amendment to the United States constitution. The warrantless search of the back portion of the driveway and yard was constitutionally forbidden because the defendant manifested an objective intent that the area be preserved as private. The officers came to the defendant’s house to ticket abandoned and unregistered vehicles. Although two of the vehicles ticketed were in the front section of the driveway, an area of the property with a low expectation of privacy, the rest of the vehicles the officers ticketed were behind a fenced driveway with “no trespassing” and “keep out” signs affixed. The two vehicles in the front section of the driveway, which could be seen from the street by the public and were not behind a fence, could be ticketed without a warrant because the defendant’s privacy expectation in those vehicles was diminished. The record discloses little attempt by the defendant to make the front driveway a private area.

The record, however, discloses ample evidence that the defendant manifested an objective intent to keep his back driveway and yard area private. That is evidenced by his placement of a six foot tall fence in the middle of the driveway and the numerous “no trespassing”, “keep out” and “beware of the dog” signs on both the fences and the front porch facing the public street. The areas in question here were curtilage of the house and thus the privacy expectation in the areas was the same as that inside the house. To enter those areas, for the purpose of checking vehicle identification numbers and ticketing vehicles, without a warrant was a violation of the defendant’s rights under both article first, § 7, of the constitution of Connecticut and the fourth amendment to the United States constitution.

By contrast, we conclude that the defendant had a lesser expectation of privacy in the area in front of the house. That area includes the open, unfenced driveway that can be seen from the street and sidewalk. The court therefore properly denied the motion to suppress the evidence with respect to the two vehicles in that area.

We now consider whether the exclusionary rule requires the evidence derived from the illegal entry into the backyard to be suppressed or whether the illegal search has been purged of its primary taint. “[T]he factors to be considered in determining whether the taint [of an illegal warrantless search] has been dissipated include the temporal proximity of the illegal police action and the discovery of the evidence, the presence of intervening circumstances, and the purpose and flagrancy of the official misconduct.” (Internal quotation marks omitted.) State v. Blackman, 246 Conn. 547, 557, 716 A.2d 101 (1998). “These factors focus upon the causal relationship between the primary illegality, in this case the illegal [entry], and the evidence allegedly derived from this illegal conduct, and the actual purpose and flagrancy of the police conduct.” State v. Ostroski, 201 Conn. 534, 547, 518 A.2d 915 (1986).

On appeal, the defendant argues that the condition of the vehicles in the backyard, their vehicle identification numbers, the officers’ description of the backyard, and the verbal utterances the defendant directed at the officers, in the backyard, including the defendant’s alleged threats, must be suppressed as the fruit of an illegal, warrantless search. The state claims however, that “assuming, without conceding, that the warrantless entry into the defendant’s backyard was unlawful and that the recording of the [vehicle identification] numbers of cars there was the product either of a search or plain view tainted by the unlawful entry, none of the evidence connected with the defendant’s subsequent [conviction of interfering with an officer] resulted from any police exploitation of the primary illegality. Instead, it was the product of a new, distinct crime that independently intervened to break the chain of causation and dissipate any taint.” The state cites federal cases to support the claim that a new, distinct crime can intervene to break the chain of causation and to dissipate any taint of the officers’ warrantless illegal entry. The parties cite no controlling Connecticut authority or United States Supreme Court precedent on that issue, and our review reveals none.

If a suspect’s response to an illegal search “is itself a new, distinct crime, then the police constitutionally may arrest the [suspect] for that crime. . . . There is a strong policy reason for holding that a new and distinct crime, even if triggered by an illegal stop, is a sufficient intervening event to provide independent grounds for arrest. As the [United States v. Bailey, 691 F.2d 1009, 1017 (11th Cir. 1982), cert. denied, 461 U.S. 933, 103 S. Ct. 2098, 77 L. Ed. 2d 306 (1983)] court recognized, [a] contrary rule would virtually immunize a defendant from prosecution for all crimes he might commit that have a sufficient causal connection to the police misconduct.” (Internal quotation marks omitted.) United States v. Sprinkle, 106 F.3d 613, 619 (4th Cir. 1997).

In this case, the defendant’s verbal utterances to the officers requesting that they leave his property or he would let his dog loose do not constitute a new, distinct crime. We conclude that the legal conclusions of the court as contained in its memorandum of decision on the motion to suppress do not find support in the facts. The evidence sought to be suppressed in this case was obtained as a direct result of the officers, illegal, warrantless search of the defendant’s fenced backyard and driveway. The evidence sought to be suppressed was acquired by exploitation of the officers’ primary illegality, the warrantless search within the curtilage of the house. The evidence here was not acquired by means sufficiently distinguishable to purge the primary taint of the officers’ initial illegality. No intervening factors occurred that sufficiently purged the primary taint of the officers’ warrantless search. Consequently, the evidence obtained from the time the officers bypassed the fence and entered the back driveway and yard until the time of the defendant’s arrest should have been suppressed.

The defendant moved that the observations made by the officers from the time of their entry onto the property until the time of the his arrest be suppressed. The court declined, however, to exclude that evidence on the ground that the exclusionary rule should not be extended to suppress evidence of independent crimes occurring in response to an unlawful search or arrest. The defendant made verbal utterances to the police, who were illegally on his property, to leave his property or he would let his dog loose. The officers should have left until and unless they secured a warrant to check for vehicle identification numbers to legally ticket vehicles stored on private property in violation of a town ordinance. No exception to the warrant requirement existed here.

The chain of causation was not broken during the incident at issue. The defendant and his wife, who was the property owner, had put the officers on notice that they objected to the warrantless search. The defendant’s wife followed the instructions of the officers to call the watch commander to voice her objections. That attempt was futile. The history of legal entanglements between the town and the defendant exacerbated the conflict and may have impaired a more peaceful resolution of this attempt by the town to perfect its civil agreement for the removal of the offending vehicles.

The resistance to the search in this case took the form of verbal utterances, which at least one officer took as threat. That resistance is the act that the state claims is the “independent circumstance” that would purge the taint of the police illegality. The response by the defendant was ongoing, without intervening circumstances, pertaining to a minor violation of a town ordinance. The public safety purpose of the police intervention simply was not important enough to outweigh the constitutional protection of article first, § 7, of the constitution of Connecticut and the fourth amendment to the United States constitution.

The judgment is reversed and the case is remanded for a new trial.

In this opinion the other judges concurred.

       General Statutes § 53a-167a (a) provides: “Aperson is guilty of interfering with an officer when he obstructs, resists, hinders or endangers any peace officer or fireman in the performance of his duties.”

       We conclude that the defendant’s first claim is dispositive in this matter. The remaining claims are not likely to arise in a new trial. We therefore need not address claims two through six.

       On July 11,1995, in the Superior Court for the judicial district of Hartford, the town of East Hartford moved to enjoin Ruth Healt, the defendant’s wife and the owner of 59 Church Street, from violating the town’s zoning ordinances by keeping certain vehicles on her property. On September 2G, 1996, as a result of pretrial discussions, the town reached an oral agreement with Healt on the zoning matter, and on the presence of registered and unregistered vehicles on her property that were owned by the defendant. The agreement required that six vehicles on Healt’s property be brought into compliance with zoning ordinances within fourteen days and that two vehicles be removed or registered within thirty days or be subject to impoundment by the town. The attorney for the town discovered, after the pretrial agreement was made, that a town ordinance required that abandoned or unregistered vehicles be ticketed thirty days before impoundment by the town. Thus, the attorney realized that the town could not enforce its agreement with Healt unless it was able to ticket the vehicles that may be subject to impoundment. To effectuate the task of getting the vehicles ticketed, the attorney enlisted the help of the mayor of East Hartford.

       Section 21-1 (b), titled, “Abandoned Vehicles Prohibited,” provides in relevant part: “No person shall park, store, leave or permit the parking, storing or leaving of any motor vehicle of any land which is in an abandoned condition whether attended to or not, upon any public or private property within the town. ...”

       It is unclear from the record whether the defendant in fact made threatening advances toward the officers. The other officer at the scene testified that the defendant remained on the porch. The defendant testified that he remained in the doorway with one foot inside his house and the other on the rear porch landing as he made those comments to the officers. The defendant testified that he was struck from behind by one of the officers when he turned to go back inside.

       Toward the end of the altercation between the two officers and the defendant, another officer arrived at 59 Church Street. That officer assisted the others in “wrestling” the defendant and putting handcuffs on him.

       The defendant argues that the officers’ warrantless entry onto the entire property was unconstitutional. We find, however, that the entry and ticketing in the front yard and driveway was constitutional. See State v. Liptak, 21 Conn. App. 248, 257, 573 A.2d 323, cert. denied, 215 Conn. 809, 576 A.2d 540 (1990). The warrantless entry into the backyard and rear driveway that was located behind a six foot fence with “keep out” and “no trespassing” signs was unconstitutional.

       The state argues that the defendant failed to offer an independent and adequate analysis of his state constitutional claim and therefore, we should confine our review to the federal constitutional claim. We disagree and note that on pages thirteen and fourteen of the defendant’s principal brief, he offers both an independent and adequate analysis of his state constitutional claim.

       “At common law, the curtilage is the area to which extends the intimate activity associated with the ‘sanctity of a man’s home and the privacies of life’ . . . and therefore has been considered part of the home itself for Fourth Amendment purposes. Thus, courts have extended Fourth Amendment protection to the curtilage; and they have defined the curtilage, as did the common law, by reference to the factors that determine whether an individual reasonably may expect that an area immediately acjjacent to the home will remain private.” (Citation omitted.) Oliver v. United States, 466 U.S. 170, 180, 104 S. Ct. 1735, 80 L. Ed. 2d 214 (1984).

       The state cites the following cases and others in support of its claim that a new, distinct crime independently intervened to break the chain of causation and dissipate any taint: United States v. Sprinkle, 106 F.3d 613, 616 (4th Cir. 1997) (illegal stop followed by unlawful pointing of gun at officer); United States v. Waupekenay, 973 F.2d 1533, 1537 (10th Cir. 1992) (illegal entry into house trailer followed by suspect aiming rifle at police); United States v. Udey, 748 F.2d 1231, 1240 (8th Cir. 1984) (invalid search warrant for house followed by someone in house shooting), cert. denied, 472 U.S. 1017, 105 S. Ct. 3477, 87 L. Ed. 2d 613 (1985); United States v. King, 724 F.2d 253, 256 (1st Cir. 1984) (illegal attempted search of passenger followed by driver’s shooting at police).
      We do not find those cases relevant to our decision in this case. The cases cited differ from this case because they involve heightened, armed aggression toward police officers or assaults on them that constituted new, distinct crimes. This case involves only verbal utterances made to the officers, requesting that they leave the defendant’s property or he would let his dog loose on them.