text:
    NADIA NASHID v. RAMEZ ANDRAWIS
    (AC 20916)
    Schaller, DiPentima and Hennessy, Js.
    Argued February 24
    officially released May 25, 2004

      Campbell D. Barrett, with whom were Jonathan P. Budlong and, on the brief, C. Michael Budlong, for the appellant (defendant).

      James Wu, for the appellee (plaintiff).

      Jacqueline A. Wilson, for the minor children.
   Opinion

DiPENTIMA, J.

In this appeal from the judgment in the parties’ marital dissolution action, the defendant, Ramez Andrawis, claims that the trial court improperly (1) considered his in-court behavior at trial as a factor when determining the cause of the marital breakdown, (2) delegated its judicial authority to the attorney for the minor child and (3) entered a time limited alimony order that was unsupported by the evidence. We affirm in part and reverse in part the judgment of the trial court.

The parties, both physicians, were married in 1985. They have two children. Between 1988 and 1990, the defendant completed two years of a preliminary surgical residency program at New Britain General Hospital. He spent the next three years in a residency program in the Bronx, New York. While the defendant was working in the Bronx, the plaintiff, Nadia Nashid, resided in Connecticut. During that time, she established herself in the local medical community of northeastern Connecticut, becoming a partner at Pathology Associates of Windham, P.C., where she earned a base salary of $217,000. From the summer of 1993 through 1995, the plaintiff and the defendant resided together in Connecticut. In 1995, the defendant commenced a residency in urology at George Washington Medical Center in Washington, D.C. He completed the residency in July, 1999, and began working full-time at George Washington University Hospital at an annual salary of $118,000. Over the course of the summer of 1995, the plaintiff and the defendant quarreled over whether the family should relocate to Washington, D.C. The plaintiff also testified that she was the victim of the defendant’s verbal and physical abuse.

At trial, the plaintiff called John Felber, a physician, to testify regarding the board certification of urologists and the range of income of a board certified urologist. After the trial, the court issued a memorandum of decision. The decision established financial orders and contained orders dissolving the marriage and establishing a parenting plan. The defendant was ordered to pay $148 per week in child support while the plaintiff was ordered to pay nonmodifiable alimony in the amount of $2500 per month for a period of four years. Additional relevant facts will be set forth as necessary.

I

The defendant first claims that the court improperly considered his demeanor at trial as a factor when determining the cause of the marital breakdown. We disagree.

Our standard of review in domestic relations cases is well settled. “We will generally not disturb an order unless the court has abused its legal discretion or its findings have no reasonable basis in the facts. ... In determining whether there has been an abuse of discretion, the unquestioned rule is that great weight is due to the action of the trial court and every reasonable presumption should be given in favor of its correctness. . . . [W]e do not review the evidence to determine whether a conclusion different from the one reached could have been reached. . . . Further, we must accept the factual findings of the court unless they are clearly erroneous in light of the evidence presented in the record as a whole.” (Citations omitted; internal quotation marks omitted.) Syragakis v. Syragakis, 79 Conn. App. 170, 173, 829 A.2d 885 (2003).

The defendant relies on Roach v. Roach, 20 Conn. App. 500, 568 A.2d 1037 (1990). His reliance is misplaced. As the defendant correctly states, Roach stands for the proposition that the demeanor of a party testifying at trial cannot be the basis of the breakdown of the marriage because the cause of the dissolution, by necessity, must have occurred prior to trial. Id., 507. That is not the case here, where the court observed the defendant’s in-corut behavior and used it to make a conclusion regarding the defendant’s credibility. That assessment of credibility at trial is proper because “it was the sole province of the court to determine the credibility of the witnesses and the weight to be given to the evidence. The trial court, as the finder of fact, is in the best position to assess the credibility of the witnesses testifying before it.” (Internal quotation marks omitted.) Petronella v. Venture Partners, Ltd., 60 Conn. App. 205, 212-13, 758 A.2d 869 (2000), appeal dismissed, 258 Conn. 453, 782 A.2d 97 (2001).

In its articulation of decision filed May 14, 2003, the court stated that “the plaintiff is the more credible witness with regard to issues financial and custodial. The testimony of Dr. Laura Gunther is persuasive with regard to custodial issues, and the testimony of [Felber] is persuasive regarding the defendant’s financial potential. Coupled with the court’s observations of the behavior of the defendant and the plaintiffs credibility regarding finances, the economic history and the parental history of the marriage, the court found that the defendant’s behavior was the cause of the breakdown of the marriage and entered orders regarding visitation, alimony, the qualified domestic relations order and the property distribution.” (Emphasis added.) In a second articulation, the court stated that “after observing each party’s behavior at the trial and assessing their credibility as witnesses when each dealt with issues of fault and causality, the court assigned the defendant husband a meaningful role in the breakdown of the marriage.” In its final articulation, the court stated that the “defendant’s behavior, his speech, his body language, his testimony, were all bases for the court’s conclusion that the defendant lacked credibility.” (Emphasis added.) In this case, the court’s articulations make it clear that the court considered, as it may, the defendant’s behavior in reaching the conclusion that the defendant lacked credibility. It did not, as the defendant claims, base its decision regarding the cause of the dissolution on the defendant’s behavior at txial. Moreover, “a trial court enjoys a wide latitude in the type of finding it may make as to the cause of the dissolution.” Henin v. Henin, 26 Conn. App. 386, 390, 601 A.2d 550 (1992). We conclude, therefore, that the court did not abuse its discretion.

II

The defendant next claims that the court improperly delegated its judicial authority. Specifically, the defendant cites Masters v. Masters, 201 Conn. 50, 64-65, 513 A.2d 104 (1986), for the proposition that only a Superior Court judge can make binding decisions regarding substantive parenting issues. We agree with the defendant.

The issue was not raised at trial. In fact, the parties agreed to the specific provisions delegating the judicial authority. Accordingly, the defendant requests that we review the issue under the plain error doctrine. See Practice Book § 60-5. “Review under the plain error doctrine ... is reserved for truly extraordinary sitúations 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.) Grayson v. Wofsey, Rosen, Kweskin & Kuriansky, 231 Conn. 168, 194, 646 A.2d 195 (1994).

It is well settled authority that “[n]o court in this state can delegate its judicial authority to any person serving the court in a non-judicial function. The court may seek the advice and heed the recommendation contained in the reports of persons engaged by the court to assist it, but in no event may such a nonjudicial entity bind the judicial authority to enter any order or judgment so advised or recommended.” Cotton v. Cotton, 11 Conn. App. 189, 194-95, 526 A.2d 547 (1987).

In this case, the parties agreed to proposed orders that were filed by counsel for the minor children. The trial court incorporated those orders into its dissolution decree. The orders required both parties to give detailed notice of a number of facets of the parenting access schedule. The agreement stated in relevant part that “[t]he parents are encouraged to exchange the required information directly to each other, in writing, via fax. Should there be a controversy, the parents shall submit the issue to the Attorney for the minor children for binding arbitration. ...” “Arbitration is a creature of contract and the parties themselves, by the terms of their submission, define the powers of the arbitrators. . . . The authority of an arbitrator to adjudicate the controversy is limited only if the agreement contains express language restricting the breadth of issues, reserving explicit rights, or conditioning the award on court review. In the absence of any such qualifications, an agreement is unrestricted.” (Citations omitted; internal quotation marks omitted.) Industrial Risk Insurers v. Hartford Steam Boiler Inspection & Ins. Co., 258 Conn. 101, 109, 779 A.2d 737 (2001). There is no express language restricting the breadth of issues, no reservation of explicit rights and no contingency for court review. Therefore, the agreement is unrestricted, and where, as here, the authority of the arbitrator has not been restricted, the court’s review is strictly limited. See Schoonmaker v. Cummings & Lockwood of Connecticut, P.C., 252 Conn. 416, 427, 747 A.2d 1017 (2000) (“ ‘resulting award is not subject to de novo review even for errors of law so long as the award conforms to the submission’ ”). Because the parties agreed to submit to arbitration and set forth the powers of the arbitrator, the scope of judicial review is determined by the terms of the parties’ agreements and the provisions of General Statutes § 52-418 (a). See American Universal Ins. Co. v. DelGreco, 205 Conn. 178, 185, 530 A.2d 171 (1987). That limited review circumvents the court’s role in implementing its judgment. The level of review, therefore, runs afoul of the mandate of General Statutes § 46b-56, which requires that “[a] court exercising its equitable jurisdiction with regard to custody has the duty to assure itself that its judgment will be implemented equitably to serve the best interests of the children . . . .” (Internal quotation marks omitted.) Bouchard v. Sundberg, 80 Conn. App. 180, 189, 834 A.2d 744 (2003). Although we recognize that both parties agreed to those conditions, we conclude that submitting those issues to the attorney for the minor children for binding arbitration was an improper delegation of judicial authority. Insofar as the proposed orders directed that those child related matters be resolved through binding arbitration, there was plain error, and the orders must be modified to delete the delegation of judicial authority to the attorney for the minor children.

Ill

The defendant’s final claim is that there was insufficient evidence to allow the court to enter a time limited alimony order requiring the plaintiff to pay him alimony of $2500 per month for a period of four years. Although not explicitly stated by the defendant, we note that what is at issue is the term of the alimony and not its amount. Specifically, the defendant argues that the testimony of the plaintiffs witness, Felber, provided no factual support for the four year alimony order.

The standard of review “of a trial court’s exercise of its broad discretion in domestic relations cases is limited to whether that court correctly applied the law and whether it could reasonably conclude as it did. . . . The trial court must consider all relevant statutory criteria in a marital dissolution action but it does not have to make express findings as to the applicability of each criteria. . . . The trial court may place varying degrees of importance on each criterion according to the factual circumstances of each case. . . .

“[Our Supreme Court] has dealt with challenges to an award of time limited alimony on numerous occasions. . . . The trial court does not have to make a detailed finding justifying its award of time limited alimony. . . . Although a specific finding for an award of time limited alimony is not required, the record must indicate the basis for the trial court’s award. . . . There must be sufficient evidence to support the trial court’s finding that the spouse should receive time limited alimony for the particular duration established. If the time period for the periodic alimony is logically inconsistent with the facts found or the evidence, it cannot stand.” (Citations omitted; internal quotation marks omitted.) Ippolito v. Ippolito, 28 Conn. App. 745, 751-52, 612 A.2d 131, cert. denied, 224 Conn. 905, 615 A.2d 1047 (1992).

The defendant argues that it was entirely speculative for the court to find that the “four year period will give [the defendant] sufficient opportunity to rise to the substantial income available to medical specialists in the field he chose.” There is sufficient evidence in the record to support the court’s award of a time limited alimony. The defendant himself testified that to become a board certified urologist, he would have to pass a two part exam. Moreover, he testified that he already had passed the first part of the exam. Felber testified that it would take the defendant approximately three to four years to become a board certified urologist. Thus, the four year period of alimony should be a sufficient amount of time for the defendant to attain the status of a board certified urologist. Felber also provided testimony as to the range of salaries for board certified urologists who were partners in specialty groups on the East Coast, including Connecticut and Washington, D.C. Felber did not testify as to the salary range of an employee of a specialty group. The defendant claims that in light of that failure, there was no evidence justifying the cessation of alimony after four years. We disagree with the defendant.

On the basis of Felber’s testimony, the court reasonably could have inferred that after four years, the defendant’s salary would “rise to the substantial income available to medical specialists in the field he chose.” The court found that the certification process would take three to four years to complete and that after the defendant became board certified, his salary would increase. As a result, we conclude that the four year period of alimony was logically consistent with the evidence. Consequently, the defendant’s argument fails.

The judgment is reversed only as to the submission of matters pertaining to parenting issues to the attorney for the minor children for binding arbitration and the case is remanded with direction to delete that provision and to render judgment as on file except as modified in accordance with this opinion.

In this opinion the other judges concurred.

       General Statutes § 52-418 (a) provides: “Upon the application of any party to an arbitration, the superior court for the judicial district in which one of the parties resides or, in a controversy concerning land, for the judicial district in which the land is situated or, when the court is not in session, any judge thereof, shall make an order vacating the award if it finds any of the following defects: (1) If the award has been procured by corruption, fraud or undue means; (2) if there has been evident partiality or corruption on the part of any arbitrator; (3) if the arbitrators have been guilty of misconduct in refusing to postpone the hearing upon sufficient cause shown or in refusing to hear1 evidence pertinent and material to the controversy or of any other action by which the rights of any party have been prejudiced; or (4) if the arbitrators have exceeded their powers or so imperfectly executed them that a mutual, final and definite award upon the subject matter submitted was not made.”

       Both the amount and term of the alimony were nonmodifiable.


source: Caselaw Access Project

author: PETERS, J.

license: Public Domain

text:
    PROMOTING ENDURING PEACE, INC. v. CITY OF MILFORD
    (AC 24600)
    Dranginis, DiPentima and Peters, Js.

      Argued March 23
    officially released May 25, 2004

      Matthew B. Woods, with whom, on the brief, was Cynthia C. Anger, assistant city attorney, for the appellant (defendant).

      Richard L. Gross, for the appellee (plaintiff).
   Opinion

PETERS, J.

In this tax appeal, a charitable organization claims that it is entitled to an exemption from a local property tax for property that it uses as its headquarters and as the residence of its executive director. Charitable organizations, although exempt from federal and state income taxes, must pay local property taxes unless their property is used “exclusively for scientific, educational, literary, historical or charitable purposes . . . General Statutes § 12-81 (7). The trial court held that the executive director’s duties in the service of the charitable organization were so interwoven with the organization’s needs that her residence at the property did not disqualify the property from being tax exempt. We disagree and reverse the judgment of the court.

On September 24, 2001, the plaintiff, Promoting Enduring Peace, Inc., a charitable organization, applied for a tax exemption for its property located at 112 Beach Avenue in Milford. It claimed that the property was used exclusively to carry out the plaintiffs charitable purposes. This claim was rejected by the Milford tax assessor and its board of assessment appeals. Pursuant to General Statutes § 12-89, the plaintiff then appealed to the trial court. The defendant is the city of Milford.

After a de novo evidentiary hearing, the trial court rendered a judgment in favor of the plaintiff. It held that the plaintiff had met its burden of establishing that its property was used exclusively for charitable proposes and therefore was entitled to a tax exemption. Accordingly, the court ordered the defendant to reimburse the plaintiff in the amount of $9076.75.

In its appeal, the defendant asks us to reverse the judgment of the trial court on two grounds. It claims that the court misconstrued the exclusivity requirement in § 12-81 (7) and that it misapplied the exclusivity requirement under the circumstances of this case. The plaintiff asks us to affirm the judgment. Although we disagree with the defendant’s first claim, we agree with its second claim and therefore reverse the judgment of the trial court.

The underlying facts are undisputed. The plaintiff is a not-for-profit charitable organization that, since its incorporation in 1958, has been engaged in promoting worldwide peace and justice. It conducts overseas tours, hosts conferences and speaking tours and presents its Ghandi award to luminaries around the world.

With the exception of a brief interlude from 1998 to 1999, the plaintiff has used its Milford property as its main office for many years. Since February 1, 2001, its executive director, Yael Martin, and her husband, Bruce Martin, have resided there. The property is so configured that no floor is devoted exclusively either to professional or to personal use.

On a daily basis, the property is used as a planning center for the plaintiffs many activities, including fund-raising, but the plaintiffs programs are conducted elsewhere. The executive director carries out her duties on behalf of the plaintiff by making arrangements for the plaintiffs numerous off-site activities and maintaining office equipment and supplies at the site. The executive director largely manages her planning responsibilities through the use of the telephone or the plaintiffs Internet web site.

The plaintiffs physical use of the property is limited. The board of directors convenes at the property four to six times a year. Subcommittees and planning groups sometimes meet there, but not on a regular basis. Only one member of the board visits the property weekly. On rare occasions, the president of the board and invited speakers stay overnight in a third floor bedroom. A library located on the premises attracts a visitor or two from time to time, but most people access the library through the plaintiffs web site.

The plaintiff benefits from the fact that the executive director and her husband are in residence. The executive director can respond to inquiries even when they are made at odd hours or on a weekend day. Her husband, Bruce Martin, maintains the grounds. As a result, the plaintiff is saved the cost of a caretaker to look after the premises at night.

I

GOVERNING LEGAL STANDARDS

The first issue raised by the defendant on appeal is whether the judgment of the trial court should be reversed because the court misconstrued § 12-81 (7) as a matter of law. Pursuant to that statute, real property is eligible for a tax exemption (1) if its owner is “organized exclusively for scientific, educational, literary, historical or charitable purposes” and (2) if its property is used “exclusively for carrying out one or more of such purposes . . . .” There is no dispute in this case about the first condition. The defendant maintains, however, that the court adopted an improper standard in deciding that the plaintiffs use of its charitable property satisfied the requirement of exclusivity.

According to the defendant, the statutory tax exemption afforded to charitable organizations is unavailable to an organization that uses its property “more than incidentally” for any purpose that is not scientific, educational, literary, historical or charitable. If that were the right standard, it would follow, as the defendant maintains, that any significant use of charitable property as a private residence would make the property ineligible for property tax relief. The defendant has raised a claim of statutory interpretation that warrants our plenary review. See Nastro v. D’Onofrio, 76 Conn. App. 814, 818, 822 A.2d 286 (2003).

The plaintiff properly rejoins that our Supreme Court has rejected the defendant’s interpretation of § 12-81 (7). Instead of adopting a bright line rule, our Supreme Court has held that “whether property is used exclusively for carrying out an educational purpose is necessarily governed by the specific facts in the individual case.” (Internal quotation marks omitted.) Loomis Institute v. Windsor, 234 Conn. 169, 177, 661 A.2d 1001 (1995). The fact bound standard that governs the exclusivity of use of property for educational purposes also governs the exclusivity of use of property for charitable purposes. See H.O.R.S.E. of Connecticut, Inc. v. Washington, 258 Conn. 553, 563, 783 A.2d 993 (2001).

In this case, therefore, the trial court properly examined the facts of the plaintiff’s operation of its Milford property without first articulating a specific standard by which the extent of the plaintiffs charitable use would be measured. The defendant’s argument of law is unpersuasive.

II

FACTUAL FINDING OF EXCLUSIVITY

The defendant is on firmer ground in its challenge to the validity of the trial court’s factual finding that the plaintiffs use of its property was exclusively charitable. We review a trial court’s finding of fact to ascertain whether its finding was “clearly erroneous in view of the evidence and pleadings in the whole record . . . .” Practice Book § 60-5; see also Pandolphe’s Auto Parts, Inc. v. Manchester, 181 Conn. 217, 221-22, 435 A.2d 24 (1980).

The trial court recognized that the plaintiff had the burden of establishing its right to an exemption. “Exemptions, no matter how meritorious, are of grace, and must be strictly construed. They embrace only what is strictly within their terms.” (Internal quotation marks omitted.) H.O.R.S.E. of Connecticut, Inc. v. Washington, supra, 258 Conn. 560; United Church of Christ v. West Hartford, 206 Conn. 711, 718, 539 A.2d 573 (1988). “[T]he burden of proving entitlement to a claimed tax exemption rests upon the party claiming the exemption.” (Internal quotation marks omitted.) H.O.R.S.E. of Connecticut, Inc. v. Washington, supra, 560.

The court also recognized that, to determine whether the plaintiff had met its burden of proof, the court had to examine “the manner and means [that the charity has adopted] for the accomplishment of [its charitable] purposes”; (internal quotation marks omitted); as our Supreme Court held in H.O.R.S.E. of Connecticut, Inc. v. Washington, supra, 258 Conn. 563. It further cited that case for its holding that “[t]he extent to which an organization uses its property for purposes not directly related to its charitable purpose ... is relevant to the determination of whether the organization is entitled to tax-exempt status under § 12-81 (7).” Id., 563-64.

Applying these principles, the trial court concluded that the plaintiff had satisfied its burden of proof because the presence of the executive director on the premises carried out the objectives of the plaintiff, which were to promote peace and social justice. The court found that “[t]he position of [the executive director] is not a nine to five position, but rather one that calls for a great deal of flexibility, her workday having no specific hours or number of days per week. It calls for her being available evenings as well as weekends. Guests are accommodated there. Meetings are held at various hours of the day and evening, all of which require the presence of the executive director. The only benefit derived by the organization as a result of her residing there is her continued presence on the property, enabling her to efficiently carry out the purposes of the organization. There is no pecuniary benefit.”

The defendant maintains that the court’s finding is clearly erroneous because anything more than a de minimis residential use of charitable property disqualifies a charitable organization from receiving a property tax exemption. This argument mirrors, on a factual basis, the defendant’s similar argument of law, which we have already found unpersuasive earlier in this opinion. Even significant residential use of charitable property does not invariably preclude a tax exemption. See Loomis Institute v. Windsor, supra, 234 Conn. 176-79.

The defendant also argues, more persuasively, that the underlying facts found by the trial court are insufficient to support its ultimate factual finding about the use of the plaintiffs property. The court, having described the broad range of the executive director’s responsibilities, found that it was efficient for her to reside on the premises to fulfil these responsibilities. Significantly, the court did not find that her continuous presence on the premises was essential to the plaintiffs achievement of its mission.

We must decide, therefore, whether a charitable organization seeking a tax exemption satisfies its burden of proof of exclusive use by demonstrating that a resident employee performs his or her duties more efficiently than a nonresident employee. The taxpayer has not cited, and we have not found, any case that so holds.

There have been, of course, a number of cases that have found an eleemosynary institution to be eligible for a tax exemption for property that was used for residential purposes. What distinguishes those cases. from this one is that, in each of them, the resident who occupied the premises was required to be on call twenty-four hours a day.

In Loomis Institute v. Windsor, supra, 234 Conn. 169, an educational institution owned residential property on its campus that was used to house some of its faculty. The school established the fact that the faculty residences were used exclusively for educational purposes by presenting proof that the faculty members residing therein were required to act in loco parentis and to provide counseling for the school’s boarding students. They were on call, twenty-four hours a day, to take care of any problems that might arise at the school. Id., 172-73. Because their immediate presence was essential to the education of the school’s boarding students, the school was held to be entitled to a tax exemption. Id., 177-79; see also Woodhall School, Inc. v. Bethlehem, Superior Court, judicial district of Litchfield, Docket No. 74492 (January 11, 2000).

In Hartford Hospital v. Hartford, 160 Conn. 370, 279 A.2d 561 (1971), a hospital sought and received a tax exemption for an apartment building in the immediate vicinity of the hospital that housed residents and interns. The Supreme Court held that this property served the hospital’s educational and charitable purposes because the hospital needed to have house staff available at all hours in order to fulfil the hospital’s duty to its patients. Id., 371-72, 377-78. We may take judicial notice of the fact that residencies and internships are important parts of physicians’ professional training.

It may be that, even if the trial court had found that the executive director was required to reside at the plaintiffs property, the plaintiff would not have been entitled to a tax exemption because the cited cases pertain to tax exemptions for educational institutions. As a matter of law, such organizations have an affirmative right to tax exemptions that other charitable organizations do not enjoy. See Loomis Institute v. Windsor, supra, 234 Conn. 176. Indeed, some educational institutions such as the Wadsworth Atheneum in Hartford, by virtue of a special act of the legislature, are entitled to a tax exemption for activities that are reasonably related to charitable and educational activities. See WadsworthAtheneum v. Hartford, Superior Court, judicial district of Hartford at Hartford, Docket No. 538328 (October 25, 1995) (16 Conn. L. Rptr. 25).

For today, it is sufficient to observe that the plaintiff has not cited, and we have not found, any case holding that efficiency is a defining characteristic of an exclusively charitable use of property that serves as the residence of the charity’s employee. On the other hand, the defendant has not cited, and we have not found, any case supporting the defendant’s view that § 12-81 (7) defines exclusivity to permit only incidental noncharitable use of property owned by a charity.

In the absence of precedential support for the plaintiffs claimed entitlement to tax relief, we return to the underlying principle that the plaintiff bore the burden of establishing the fact that its property was used exclusively for charitable purposes. The record does not support the finding of the trial court that the plaintiff proved the existence of a compelling linkage between its charitable purposes and the use of its property as the residence of its executive director. We conclude that, because this subsidiary finding was clearly erroneous, the trial court’s ultimate conclusion that the plaintiff was entitled to a property tax exemption under the circumstances of this case was likewise improper. Accordingly, the court’s judgment in favor of the plaintiff cannot be sustained.

The judgment is reversed and the case is remanded with direction to dismiss the plaintiffs appeal.

In this opinion the other judges concurred.

       General Statutes § 12-81 provides in relevant part: “The following-described property shall be exempt from taxation ... (7) Property used for scientific, educational, literary, historical or charitable purposes. . . . Subject to the provisions of sections 12-87 and 12-88, the real property of, or held in trust for, a corporation organized exclusively for scientific, educational, literary, historical or charitable purposes or for two or more such purposes and used exclusively for carrying out one or more of such purposes and the personal property of, or held in trust for, any such corporation, provided (A) any officer, member or employee thereof does not receive or at any future time shall not receive any pecuniary profit from the operations thereof, except reasonable compensation for services in effecting one or more of such purposes or as proper beneficiary of its strictly charitable purposes . . . .”

       Although the appeal originally was for the 2001 tax year, it subsequently was amended to include the 2002 tax year. The plaintiff paid taxes for the 2001 tax year and sought a refund of this payment. The plaintiff did not pay the taxes for the 2002 tax year.

       The plaintiffs executive director is paid $5000 a year less than her predecessor, Janet Cuevas, because she lives on the premises.

       The plaintiff asserts, and the trial court found, that the plaintiff conducted seminars at the Milford property. The transcript pages cited by the plaintiff do not support this assertion.

       The trial court found that the residence of the plaintiffs executive director at the property enabled her to carry out the purposes of the organization efficiently.


author: DiPENTIMA, J.

text:
    NANCY BURTON v. AMERICAN LAWYER MEDIA, INC., ET AL.
    (AC 23759)
    Dranginis, DiPentima and Stoughton, Js.
    Argued February 26
    officially released May 25, 2004

      Nancy Burton, pro se, the appellant (plaintiff).

      Lorin L. Reisner, pro hac vice, with whom were John B. Nolan and, on the brief, Erik C. Bierbauer, pro hac vice, for the appellees (defendants).
   Opinion

DiPENTIMA, J.

In this appeal from the judgment rendered in a defamation action, we address the privilege of fair reporting. The plaintiff, Nancy Burton, appeals from the judgment of the trial court rendered on the granting of the motion for summary judgment filed by the defendants, American Lawyer Media, Inc., its affiliates, the New York Law Journal and the Connecticut Law Tribune, LLC, and a reporter, Mark Hamblett. On appeal, the plaintiff claims that it was improper for the court to grant the defendants’ motion for summary judgment. We affirm the judgment of the trial court.

The following facts and procedural histoiy are relevant to the resolution of the plaintiffs appeal. On December 26, 2001, the plaintiff filed a five count amended complaint against the defendants. The complaint alleged defamation, invasion of privacy, intentional and negligent infliction of emotional distress, and a violation of the Connecticut Unfair Trade Practices Act, General Statutes § 42-110a et seq. The action finds its basis in an article written by Hamblett while reporting on a judicial decision from the United States District Court for the Southern District of New York that imposed sanctions against the plaintiff. The plaintiff claimed that the article contained a number of falsehoods and misrepresentations, all of which resulted in injury to both her practice of law and her reputation.

In January, 2002, the defendants filed a motion for summary judgment on the ground that the article and all of the challenged statements were fairly derived from the decision of the District Court and were, therefore, not actionable as a matter of law. On August 16, 2002, the court rendered summary judgment in favor of the defendants. The court found that a “careful reading of the defendants’ article about [the federal judge’s] decision when compared to the decision itself indicates that each and every statement challenged by the plaintiff reports a statement in the decision itself with substantial accuracy .... The defendants have merely reported on a judicial decision which may not have been complimentary to the plaintiff, and no statement in the article has been found which is not fairly derived from the decision.” The court continued, stating that “[additional claims by the plaintiff that the headlines used in the story were false and defamatory, or that the defendants had a duty to include exculpatory statements in the article or to examine the record in the case before writing the article, either have no foundation in law or are without merit.” The plaintiff filed a motion for reargument that was denied by the court. This appeal followed.

The plaintiff claims that the court improperly granted the defendants’ motion for summary judgment. Specifically, she argues that the fair reporting privilege does not protect the defendants’ article because the privilege does not extend to the reporting of libelous per se defamatory matter. We disagree.

Our review of a trial court’s decision to grant a motion for summary judgment is well settled. “Summary judgment shall be rendered forthwith if the pleadings, affidavits and any other proof submitted show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. ... In deciding a motion for summary judgment, the trial court must view the evidence in the light most favorable to .the nonmoving party. . . . Although the party seeking summary judgment has the burden of showing the nonexistence of any material fact ... a party opposing summary judgment must substantiate its adverse claim by showing that there is a genuine issue of material fact together with the evidence disclosing the existence of such an issue. ... It is not enough, however, for the opposing party merely to assert the existence of such a disputed issue. Mere assertions of fact . . . are insufficient to establish the existence of a material fact and, therefore, cannot refute evidence properly presented to the court [in support of a motion for summary judgment].” (Citation omitted; internal quotation marks omitted.) Home Ins. Co. v. Aetna Life & Casualty Co., 235 Conn. 185, 202, 663 A.2d 1001 (1995). “Our review of the trial court’s decision to grant [a] motion for summary judgment is plenary.” (Internal quotation marks omitted.) Barry v. Quality Steel Products, Inc., 263 Conn. 424, 450, 820 A.2d 258 (2003).

The existence of a false and defamatory statement is a prerequisite to a party’s prevailing in a case for libel. Strada v. Connecticut Newspapers, Inc., 193 Conn. 313, 316, 477 A.2d 1005 (1984). At oral argument, the defendants conceded that defamatory matter was published. They assert that as a matter of law, the published matter is not actionable because it is protected by the fair reporting privilege.

Even when there is a defamatory statement, “[t]he publication of defamatoiy matter concerning another in a report of an official action or proceeding or of a meeting open to the public that deals with a matter of public concern is privileged if the report is accurate and complete or a fair abridgement of the occurrence reported.” 3 Restatement (Second), Torts, Report of Official Proceeding or Public Meeting, § 611, p. 297 (1977); see also Wang v. Frankl, Superior Court, judicial district of New Haven, Docket No. 391493 (October 18, 1999) (publication of public proceeding, record thereof privileged as long as report is fair, accurate representation of event). According to the comments to § 611, the basis of the privilege is the public’s “interest ... in having information made available to it as to what occurs in official proceedings and public meetings. ...” 3 Restatement (Second), supra, § 611, comment (a), p. 297.

If the report is accurate or a fair abridgment of the proceeding, an action cannot constitutionally be maintained for defamation. Id., comment (b), p. 298. The fair reporting privilege, however, is a conditional privilege. It protects parties from defamation claims when they publish information that is based on governmental proceedings. The privilege exists even though the publisher himself does not believe the defamatory words he reports to be true, and even when he knows them to be false and even if they are libel per se. Abuse of the privilege takes place, therefore, when the publisher does not give a fair and accurate report of the proceeding. Id., comment (a), p. 298. In Connecticut, a conditional privilege, such as fair reporting, will be defeated if the defendant acted with malice. Bleich v. Ortiz, 196 Conn. 498, 504, 493 A.2d 236 (1985). There was no allegation or showing of malice in the present case. Generally, the determination of whether the contents of a newspaper article are privileged as fair reporting is an issue of law. Cf. Goodrich v. Waterbury Republic-American, Inc., 188 Conn. 107, 110-11, 448 A.2d 1317 (1982) (determination of whether contents of article are privileged as fair comment is question of law). Whether the privilege has been lost because of abuse is a question normally for the jury. Hogan v. New York Times Co., 313 F.2d 354, 356-57 (2d Cir. 1963).

The plaintiff raises three interrelated issues to challenge the court’s judgment. She argues that the judgment was improper because (1) the court failed to undertake the requisite analysis of the proceedings, (2) the report itself was inaccurate, one-sided, incomplete and unfair, and (3) the reporter failed to conduct an investigation before writing the article. We address each issue in turn.

I

The plaintiff argues that the court failed to consider all of the circumstances surrounding the statements. Specifically, she claims that the court acted improperly by comparing only the articles in question with the judicial decision. We disagree.

In this case, after comparing the articles in question to the judicial decision, the court concluded that the articles were substantially accurate reports of the decision. We agree that the articles were substantially accurate reports of the decisions. We also conclude as a matter of law that the headline was a fair representation of the article. As such, the articles were privileged and not actionable as a matter of law. The plaintiff argues that the court should have considered all of the factors surrounding the articles. The application of the fair reporting privilege, however, requires only that the articles be substantially accurate reports on a governmental action. Because the court concluded, and we agree, that the articles were substantially accurate, the plaintiffs argument fails. There was no need for the court to go beyond the words of the articles and the judicial decision.

II

The plaintiff next argues that the fair reporting privilege does not protect the defendants because the article was inaccurate, unfair, incomplete and one-sided. We disagree. Comment (f) to § 611 of the Restatement (Second) of Torts clarifies that the fair reporting privilege “requires the report to be accurate. It is not necessary that it be exact in every immaterial detail or that it conform to that precision demanded in technical or scientific reporting. It is enough that it conveys to the persons who read it a substantially correct account of the proceedings.” 3 Restatement (Second), supra, § 611, comment (f), p. 300; see also Schiavone Construction Co. v. Time, Inc., 847 F.2d 1069, 1087-88 (3d Cir. 1988). Although it is unnecessary that the report be exhaustive and complete, it is necessary that nothing be omitted or misplaced in such a manner as to convey an erroneous impression. 3 Restatement (Second), supra, § 611, comment (f), p. 300. The accuracy required is to the proceedings, not to the objective truth of the defamatory charges. Mathis v. Philadelphia Newspapers, Inc., 455 F. Sup. 406, 417 (E.D. Pa. 1978).

Here, a review of the articles in question, the judicial decision and the citations claimed by the plaintiff leads this court to conclude that the trial court correctly found that the articles are protected by the fair reporting privilege. The majority of the statements complained of by the plaintiff were direct quotations from the decision. As to statements that were not direct quotations, a passage from our Supreme Court in Strada v. Connecticut Newspapers, Inc., supra, 193 Conn. 313, is instructive. The Strada court stated that “[a]ny deviations from or embellishments upon the information obtained from the primary sources relied upon were minuscule and can be attributed to the leeway afforded an author who attempts to recount and popularize an . . . event. . . . The author’s job is not simply to copy statements verbatim, but to interpret and rework them into the whole. ... A fussy insistence upon literal accuracy would condemn the press to an arid, desiccated recital of bare facts.” (Citations omitted; internal quotation marks omitted.) Id., 320-21. The pertinent issue in this case is whether the articles represented a substantially accurate account of the judicial decision. Because we conclude that they did, the plaintiffs argument fails.

Ill

The plaintiff finally argues that the reporter failed to conduct an impartial investigation before writing the article. In particular, she claims that the reporter improperly failed to review the court file or to contact her directly before writing the article. The reporter had no duty to do so.

The plaintiff cites Naantaanbuu v. Abernathy, 816 F. Sup. 218 (S.D.N.Y. 1993), in support of her argument that Hamblett should have conducted an investigation prior to writing the article. Naantaanbuu lends no support to that assertion. In Naantaanbuu, after determining that the defendants did not have to conduct further investigation into the facts relied on for a book, the court rendered summary judgment in favor of the defendants. Id., 227. Furthermore, in Goodrich v. Waterbury Republican-American, Inc., supra, 188 Conn. 107, our Supreme Court found that a reporter’s “failure to interview the plaintiff personally” did not support a claim for defamation. Id., 124. Again, under the fair reporting privilege, the only question for the court was whether the particular articles at issue represented substantially accurate reports of the decision of the District Court. See, e.g., Ortega v. Post-Newsweek Stations, Florida, Inc., 510 So. 2d 972, 976-77 (Fla. App.) (rendering summary judgment in favor of television station on fair reporting grounds and holding press has no duty to go behind statements made at official proceedings to determine accuracy before releasing them), review denied, 518 So. 2d 1277 (Fla. 1987). As a consequence, the plaintiffs final argument fails.

The judgment is affirmed.

In this opinion the other judges concurred.

       “Libel per se ... is a libel the defamatory meaning of which is apparent on the face of the statement and is actionable without proof of actual damages.” (Internal quotation marks omitted.) Lega Siciliana Social Club, Inc. v. St. Germaine, 77 Conn. App. 846, 852, 825 A.2d 827, cert. denied, 267 Conn. 901, 838 A.2d 210 (2003).


author: FLYNN, J.

text:
    STATE OF CONNECTICUT v. LUIS ORTIZ
    (AC 23831)
    Foti, Flynn and West, Js.

      Argued February 23
    officially released June 1, 2004

      Pamela S. Nagy, special public defender, for the appellant (defendant).

      Denise B. Smoker, assistant state’s attorney, with whom, on the brief, were James E. Thomas, state’s attorney, and Vicki Melchiorre, senior assistant state’s attorney, for the appellee (state).
   Opinion

FLYNN, J.

The defendant, Luis Ortiz, appeals from the judgment of conviction, rendered after a trial to the court, of assault in the first degree with intent to cause serious physical injury in violation of General Statutes § 53a-59 (a) (1), kidnapping in the second degree in violation of General Statutes § 53a-94, threatening in violation of General Statutes § 53a-62 (a) (1), carrying a dangerous weapon in violation of General Statutes § 53-206 (a) and criminal violation of a protective order in violation of General Statutes § 53a-223 (a). The defendant received a total effective sentence of thirty years of incarceration, execution suspended after twenty years, and five years of probation. Among the several conditions of probation it imposed, the court prohibited the defendant from having any contact with the victim and their three children. On appeal, the defendant contends that (1) the trial judge was required to recuse himself from presiding over the trial to the court because of admissions made in front of him by the defendant prior to trial, (2) the kidnapping statute is void for vagueness under the facts of this case, (3) the condition of probation mandating “no contact” with the defendant’s minor children is illegal and (4) the defendant’s sentence for carrying a dangerous weapon is illegal.

The court reasonably could have found the following facts. The victim, Lourdes Suarez, was a woman with whom the defendant has lived and conceived three children. The defendant and the victim both worked for a West Hartford toy store and were required to work late. On the evening of November 14, 2000, the victim and the defendant were on their way home from work when the victim became frightened that the defendant might inflict harm on her because he was angry about missing a meeting with his drug dealer. Seeking help, she stopped at a police substation on Affleck Street in Hartford. After the victim rang the outside doorbell and no one answered, the defendant put his arms around her waist, and picked her up off of the ground and carried her out of the substation’s doorway. The defendant showed her an open box cutter and then grabbed her by her jacket as she attempted to run away. He held her wrists together with one hand while he used his other hand to cut her face numerous times. The victim then fell to the ground, and the defendant again held her wrists with one hand while he used his other hand to cut her deeply on her hand and leg. Two individuals arrived at the scene, and the defendant fled. The victim was required to spend four days in a hospital, including two days in intensive care. She received multiple stitches and required surgery on her face to repair the nerves that had been damaged by the attack. She has since suffered from posttraumatic stress disorder and has attempted suicide on five occasions.

The defendant elected to testify at trial. When asked whether he denied injuring the victim, he replied: “[N]o .... From the beginning I’ve been saying . . . that I did it. . . . It’s not that I’m proud of what I’ve done because I feel like I was a coward for what I did .... I did it, you know.” The defendant also testified that after he left the scene of the attack, he saw a police car drive past him, and he beckoned the officer to stop. At this point, the defendant testified, he told the officer, “I did it,” and the officer drew his weapon. The defendant further testified that when he was placed in the police car, he told the officer “that I did what I did,” and that he was not proud of it and deserved to be punished. Although the testimony of the arresting officer, David Dufault, disputed the manner in which the defendant claimed that he was apprehended, it nonetheless corroborated the defendant’s testimony regarding his admission of guilt. Dufault testified that the defendant “threw his hands up in the air and started saying, I did it. I did it. I did it. I deserve what I get. Tell [the victim] I’m sorry.”

The following procedural history is pertinent. The defendant had first elected a jury trial on the charges that are now the subject of this appeal and one additional charge of attempt to commit assault in the first degree on which he was found not guilty. The court, Miaño, J., expressed its concern that the defendant’s chosen manner of dress might affect his right to a fair trial. While the case was still to be heard by a jury, the defendant appeared dressed in a red prison jumpsuit and expressed his reluctance to change out of it. In addressing the defendant on this subject, the court stated, “I had a brief discussion with the lawyers this morning, and they said — really, I think this is — it’s good if you have any — if somebody admits their involvement, I think that should be factored into any kind of sentence or penalty if they’re involved. However, now, when we have a panel, I don’t want you to say anything that might be an admission or a confession or anything concerning, admitting to your commission of the crime. Because right now, it’s our job, it’s my job to convince them what the law is. And the law is that you’re presumed to be innocent unless and until the state can prove you guilty. If you’re in the red outfit and you said, hey, I did it, but the time is too much or whatever, their job is going to be done for them. They’re going to come back in eight seconds and say guilty. Now . . . that reflects on me and this court because I have to guarantee you, as much as I humanly can, a fair trial.”

Although at that juncture the court had not invited the defendant to say anything about the case, the defendant responded: “I’m not saying I’m not guilty, and it’s not because I’m proud of it. Like I told the judges before, just because I’m saying that I’m guilty doesn’t mean that I’m proud of it. Because I’m not proud of hurting my — the woman that I thought I was going to marry for the rest of my life, the mother of my kids. . . . You know, but I just said the truth. I tell the truth, maybe the judge will have some consideration and maybe give me less time. I know that what I did is something serious. I’m not denying that. You know. I could have done something worse . . . .”

The court again cautioned the defendant not to say anything incriminatory in front of the jury, stating, “[w]hatever negotiations there were, I don’t want to know, but apparently, there was no meeting of the minds. Apparently, my guess is, the state was looking for more time than you are, but that’s their call. I can’t force the state to accommodate you or any defendant in what the offer is going to be. So, now we’re past that juncture about the negotiation of the case, on what you’re going to get, what you’re not going to get. Are you going to get more, are you going to get less; we’re past that. You have a right to a trial. So, this is your trial. . . . What I am doing is asking you, I’m begging you not to say anything in front of the jury about whether or not you’re involved. You have a right to a trial. You have a right not to offer evidence. You have a right not to say anything. If, down the road, when it’s your turn, you want to take the [witness] stand and say something, that’s up to you and your lawyer. But if it’s going to be done, if you want to communicate with the jury, it’s got to be done in the orderly process of the case, and I would strongly urge you not to say anything in front of the jury that might hurt you.”

The defendant later waived his right to a jury trial and elected to be tried by the court, which convicted him on all charges but attempt to commit assault in the first degree. The defendant now appeals from his conviction.

I

We first address the defendant’s claim that the convictions must be reversed because, although the defendant never moved to recuse the trial judge, the judge had an obligation to recuse himself, sua sponte, where he had heard the defendant, prior to trial, make admissions on the record relating to his guilt. We disagree.

The defendant concedes that this issue is unpreserved but urges us that it is nonetheless reviewable under the plain error doctrine. See Practice Book § 60-5. Alternatively, the defendant claims we should review this claim under State v. Golding, 213 Conn. 233, 239-40, 567 A.2d 823 (1989), because the sixth and fourteenth amendments to the United States constitution and the constitution of Connecticut, article first, § 8, guarantee a criminal defendant a fair trial.

Although the defendant’s claim meets Golding’s first two prongs because the record is adequate for review and the claim is of constitutional magnitude; id., 239; we conclude that the defendant’s claim fails because he cannot satisfy Golding’s third prong, which requires him to show that a constitutional violation clearly exists and clearly deprived him of a fair trial.

We first observe that the record before us indicates that the defendant had made admissions to several other judges before appearing before Judge Miaño. The defendant also advised the court that he had been offered by the state, but had not accepted, a twelve year sentence in exchange for his guilty plea. The trial judge declined to recuse himself when that information was made known to him because he observed that the defendant serially had made this known to other judges to a degree of frequency he described as “ad saturatum.” The court further advised that either party could request the court’s disqualification, but stated that “if a defendant goes [to] one judge after another and advises him of that ... it could be inferred that it’s intentional to disqualify the court and to avoid trial time.” Neither the state nor the defendant made a motion to disqualify the judge.

The defendant argues that principles of fairness and justice require a trial judge to recuse himself from a trial when he knows of inculpatory admissions made by the defendant and when the judge is the person responsible for deciding the defendant’s guilt or innocence. The defendant first directs us to Practice Book § 1-22 (a), which provides in relevant part that a judicial authority shall be disqualified from acting in a matter “if such judicial authority is disqualified from acting therein pursuant to Canon 3 (c) of the Code of Judicial Conduct . . . .” Canon 3 (c) (1) (A) of the Code of Judicial Conduct requires a judge to recuse himself where “the judge has . . . personal knowledge of disputed evidentiary facts concerning the proceeding

In reviewing these issues, we employ our long accepted reasonable person standard. “Canon 3C (1) of the Code of Judicial Conduct requires a judge to disqualify himself or herself in a proceeding in which the judge’s impartiality might reasonably be questioned. The reasonableness standard is an objective one. Thus, the question is not only whether the particular judge is, in fact, impartial but whether a reasonable person would question the judge’s impartiality on the basis of all the circumstances. Papa v. New Haven Federation of Teachers, 186 Conn. 725, 746, 444 A.2d 196 (1982); E. Thode, Reporter’s Notes to Code of Judicial Conduct (1973) p. 60 (standard is whether a reasonable [person] knowing all the circumstances would conclude that the judge’s impartiality might reasonably be questioned).” (Internal quotation marks omitted.) Tessmann v. Tiger Lee Construction Co., 228 Conn. 42, 57-58, 634 A.2d 870 (1993).

“Even in the absence of actual bias, a judge must disqualify himself in any proceeding in which his impartiality might reasonably be questioned, because the appearance and the existence of impartiality are both essential elements of a fair exercise of judicial authority.” (Internal quotation marks omitted.) State v. Webb, 238 Conn. 389, 460-61, 680 A.2d 147 (1996). “A factual basis is necessary to determine whether a reasonable person, knowing all of the circumstances, might reasonably question the trial judge’s impartiality. . . . It is a fundamental principle that to demonstrate bias sufficient to support a claim of judicial disqualification, the due administration of justice requires that such a demonstration be based on more than opinion or conclusion.” (Citation omitted; internal quotation marks omitted.) Advanced Financial Services, Inc. v. Associated Appraisal Services, Inc., 79 Conn. App. 22, 50, 830 A.2d 240 (2003).

We must first determine whether the judge’s knowledge of the particular facts in this case would require recusal under canon 3 (c) of the Code of Judicial Conduct. Preliminarily, we observe that the defendant’s admissions were part of a pattern that preceded Judge Miano’s involvement with the case and continued after he presided, in which the defendant wanted to admit that he assaulted the victim and to express contrition in the hope that this would be considered in imposing his punishment. The defendant was intent on telling his story and expressing contrition to the arresting officer, several judges before whom he had appeared prior to his trial, and to the same trial judge, both pretrial and during his trial by the court. In determining whether recusal was required, we first look to the text of canon 3 (c), which states that a judge should disqualify himself or herself in a proceeding in which the judge’s impartiality reasonably might be questioned, including but not limited to, situations in which the judge possesses “personal knowledge of disputed evidentiary facts concerning the proceeding . . . .” (Emphasis added.) Code of Judicial Conduct, canon 3 (c) (1) (A). In interpreting statutory language, no word is to be regarded as surplus-age. See State v. Walton, 41 Conn. App. 831, 842-43, 678 A.2d 986 (1996). We find that this doctrine applies equally to the interpretation of rules such as canon 3 (c). The rule uses the adjective “disputed” to describe the disqualifying personal knowledge of facts. This means that the judge’s knowledge of factual assertions that axe not disputed or debatable, and which are conceded by the defendant, do not serve to disqualify the judge. The defendant’s pretrial admissions, which he now argues should have disqualified the judge, were consistent with his actual admissions made to the police at the time of his arrest and at trial during his testimony. Therefore, under the actual text of canon 3 (c), because the facts were not “disputed,” the judge was not required to disqualify himself.

We also note that the judge’s conduct in the present case conforms to the extrajudicial source rule, adopted by the United States Supreme Court, which provides that claimed bias or prejudice caused by knowledge of occurrences during a court proceeding is not grounds for disqualification. See United States v. Grinnell Corp., 384 U.S. 563, 583, 86 S. Ct. 1698, 16 L. Ed. 2d 778 (1966) (“[t]he alleged bias and prejudice to be disqualifying must stem from an extrajudicial source and result in an opinion on the merits on some basis other than what the judge learned from his participation in the case”); see also J. Shaman, S. Lubet & J. Alfini, Judicial Conduct and Ethics (3d Ed. 2000) § 4.05, pp. 116-17. The extrajudicial source rule was expanded in Liteky v. United States, 510 U.S. 540, 548, 114 S. Ct. 1147, 127 L. Ed. 2d 474 (1994), to apply to disqualification based on alleged partiality as well as alleged bias or prejudice. We find Liteky persuasive because although the Supreme Court was interpreting 28 U.S.C. § 455 (b) (1), its provisions are substantially similar to canon 3 (c) (1) (A) of the Code of Judicial Conduct. Here, the trial judge’s knowledge of the defendant’s admissions did not stem from an extrajudicial source, and, therefore, the court did not have an obligation to recuse itself under this doctrine.

The defendant contends that a line of cases in which a judge has engaged in prior plea bargaining are most analogous to the factual scenario presented here and require recusal. We disagree. The defendant cites State v. Falcon, 68 Conn. App. 884, 888, 793 A.2d 274, cert. denied, 260 Conn. 924, 797 A.2d 521 (2002), and State v. Revelo, 256 Conn. 494, 506 n.23, 775 A.2d 260, cert. denied, 534 U.S. 1052, 122 S. Ct. 639, 151 L. Ed. 2d 558 (2001). In Revelo, our Supreme Court noted that the dangers of a judge hearing such a case include compromise of the judge’s impartiality by his own perception of having a personal stake in the proposed plea agreement, and resentment toward a defendant who does not accept it and the danger that the judge may become an advocate or perceived advocate for his suggested resolution. State v. Revelo, supra, 506 n.23. Neither of these two rationales applies to the record before us. Judge Miaño did not invite the defendant to discuss prior plea offers. Judge Miaño made it very clear that he would not engage in plea bargaining with him and struck from the record the statement the defendant made about a prior sentence offer. The court therefore had no stake in any proposed, unaccepted plea resolution because it had not engaged in any plea bargaining or offers of plea. It is also plain that not only did the court not display any animus toward the defendant for rejecting a plea offer, but conscious of its role as a minister of justice, it actually extended itself to assure his fair treatment.

The Revelo court also recognized the danger that a defendant may make incriminating concessions during the course of plea negotiations. Id. We acknowledge that the record before us contains incrimihating statements made by the defendant concerning his attack on the victim, but the record as a whole indicates that the defendant insisted on stating these things despite the judge’s admonitions. Falcon was also a plea bargain case, whereas the factual scenario before us is not. In light of the entire record, the key to our inquiry must remain our standard of review, namely, whether a reasonable person would question the judge’s integrity and fairness under the circumstances. We conclude that a reasonable person would not do so.

We next address the state’s argument that the defendant, through his words and his conduct, waived any right to claim on appeal that the judge should have disqualified himself. After a thorough canvass of the defendant’s decision during jury selection to give up his right to a jury trial and to elect a court trial, the judge told the defendant: “I’ve heard some comments that you made yesterday, and I’m saying that I’m not going to consider them at all, and I certainly will not.” The court then told the defendant that he could not later claim, “Well, judge, you heard these comments, you’re prejudiced against me.” To this, the defendant responded, “I will not say that.” The court further stated to the defendant, “I want the record to be 100 percent clear. You understand that.” The defendant replied that he understood. Judge Miaño then asked the defendant whether he understood that he likely would be the judge presiding over the nonjury trial, and the defendant replied that he did. The court further inquired whether he still wanted to waive his right to a jury trial, to which the defendant responded that he did. At that time, the defendant was represented by counsel. We agree with the state that the effect of the verbal exchange between the defendant and the judge, coupled with the defendant’s conduct in failing to make a motion to disqualify him, was a waiver of the defendant’s right to disqualify the judge on grounds of bias or lack of impartiality. Under such circumstances, to permit the defendant to fail to make an objection to the judge hearing the case at trial and thereafter to make his first such objection on appeal, after the outcome of the case has been determined and the sentence imposed, would not only be an ambuscade of the trial judge, but would impermissibly permit a defendant to manipulate the judicial process. See State v. DeGennaro, 147 Conn. 296, 303, 160 A.2d 480 (defendants waived disqualification of trial judge by consenting in open court to judge), cert. denied, 364 U.S. 873, 81 S. Ct. 116, 5 L. Ed. 2d 95 (1960).

Our conclusion is also in harmony with General Statutes § 51-39 (c), which provides in relevant part that “[w]hen any judge ... is disqualified to act in any proceeding before him, he may act if the parties thereto consent in open court.” Although the defendant argues that the trial judge was required to disqualify himself sua sponte, he has provided us with no authority that would require us to find such an action to be necessary when both parties have consented in open court to allow the judge to hear the case. In fact, we conclude that our precedent actually precludes us from so finding: “A judge should not hesitate to disqualify himself sua sponte where his participation in a matter would violate Canon 3 (C) of the Code of Judicial Conduct or General Statutes § 51-39 unless he obtains the parties’ consent to his participation in open court pursuant to General Statutes § 51-39 (c).” (Emphasis added.) State v. Maluk, 10 Conn. App. 422, 427, 523 A.2d 928 (1987). We therefore reject the defendant’s argument. Further, where a trial corut states on the record that it will not consider certain evidence, “[t]here is no reason to believe [it] could not do so, or that a reasonable person would have cause to question [its] ability to do so.” (Internal quotation marks omitted.) State v. Cobb, 251 Conn. 285, 378, 743 A.2d 1 (1999), cert. denied, 531 U.S. 841, 121 S. Ct. 106, 148 L. Ed. 2d 64 (2000). The defendant has not established that a constitutional violation clearly existed that deprived him of his right to a fair trial, as required under Golding's third prong.

Finally, when a defendant claims that a judicial error is of constitutional magnitude, if he establishes that such error constituted a clear constitutional violation, it becomes the state’s burden to prove that the error was harmless beyond a reasonable doubt. State v. Golding, supra, 213 Conn. 240. We conclude that even if we were to decide that such a clear violation existed, the state satisfied this burden of showing harmlessness in directing us to the record of the defendant’s trial testimony. At trial, the defendant elected to testify and did so on the record in a manner consistent with the pretrial admissions he made to Judge Miaño. The defendant’s claim therefore fails under both Golding's third and fourth prongs.

II

We next turn to the defendant’s claim that our statute proscribing kidnapping in the second degree, § 53a-94 (a), is unconstitutionally vague under the fifth and fourteenth amendments to the United States constitution and the constitution of Connecticut, article first, § 8, as applied to this defendant. Again, this issue is unpreserved, and the defendant seeks review under State v. Golding, supra, 213 Conn. 239-40. The record is adequate for review, and the claim is of constitutional magnitude. We therefore afford the defendant review under Golding to determine whether a constitutional violation clearly existed and, if so, whether it caused harm to the defendant. Our review of this claim is plenary because the claim involves the interpretation of a statute. See State v. Swain, 245 Conn. 442, 451, 718 A.2d 1 (1998).

“[T]he void-for-vagueness doctrine requires that a penal statute define the criminal offense with sufficient definiteness that ordinary people can understand what conduct is prohibited and in a manner that does not encourage arbitrary and discriminatory enforcement. Kolender v. Lawson, 461 U.S. 352, 357, 103 S. Ct. 1855, 75 L. Ed. 2d 903 (1983) .... [The doctrine] embodies two central precepts: the right to fair warning of the effect of a governing statute or regulation and the guarantee against standardless law enforcement. . . . The United States Supreme Court has emphasized that the more important aspect of the vagueness doctrine is not actual notice, but . . . the requirement that a legislature establish minimal guidelines to govern law enforcement. . . . Thus, [i]n order to surmount a vagueness challenge, a statute [must] afford a person of ordinary intelligence a reasonable opportunity to know what is permitted or prohibited . . . and must not impermissibly [delegate] basic policy matters to policemen, judges, and juries for resolution on an ad hoc and subjective basis, with the attendant dangers of arbitrary and discriminatory application. . . . Finally, [i]f the meaning of a statute can be fairly ascertained a statute will not be void for vagueness ... for [i]n most English words and phrases there lurk uncertainties. . . . [T]he statute must contain some core meaning within which the defendant’s actions clearly fall. . . . References to judicial opinions involving the statute, the common law, legal dictionaries, or treatises may be necessary to ascertain a statute’s meaning to determine if it gives fair warning.” (Citations omitted; internal quotation marks omitted.)State v. McMahon, 257 Conn. 544, 551-53, 778 A.2d 847 (2001), cert. denied, 534 U.S. 1130, 122 S. Ct. 1069, 151 L. Ed. 2d 972 (2002). “For statutes that do not implicate the especially sensitive concerns embodied in the first amendment, we determine the constitutionality of a statute under attack for vagueness by considering its applicability to the particular facts at issue.” (Internal quotation marks omitted.) State v. Jones, 215 Conn. 173, 180, 575 A.2d 216 (1990).

We apply these principles to the particular statutory language in light of the facts of this case. General Statutes § 53a-94 (a) provides: “A person is guilty of kidnapping in the second degree when he abducts another person.” The statute, thus, by its plain terms, gives fair warning to the public that if a person abducts another, he is guilty of that offense. The particular facts in the record before us do not convince us that application of the statute was arbitrary or discriminatory, and we conclude that its prohibitions could be understood by a person of ordinary intelligence.

Our kidnapping statutes do not require proof of restraint for any length of time or asportation for any distance to establish an “abduction.” State v. Green, 55 Conn. App. 706, 716, 740 A.2d 450 (1999), cert. denied, 252 Conn. 920, 744 A.2d 438, cert. denied, 529 U.S. 1136, 120 S. Ct. 2019, 146 L. Ed. 2d 966 (2000). Our Supreme Court has stated: “We recognize that common notions regarding the crime of kidnapping envisage the carrying away of a person under coercion and restraint. Although this type of movement undoubtedly can serve as the basis for kidnapping, our kidnapping statute does not require such movement. Rather, all that is required under the statute is that the defendant have abducted the victim and restrained her with the requisite intent. . . . [T]he abduction requirement is satisfied when the defendant restrains the victim with the intent to prevent her liberation through the use of physical force. Further, the victim is restrained when the defendant, acting with the intent to inflict physical injury upon her . . . moves her from one place to another or restricts her movement by confining her in the place where the restriction commenced.” (Citation omitted; emphasis in original.) State v. Luurtsema, 262 Conn. 179, 201, 811 A.2d 223 (2002).

Although we can conceive of factual situations in which overcharging a defendant with kidnapping based on “the most minuscule movement would result in an absurd and unconscionable result”; (internal quotation marks omitted) State v. Jones, supra, 215 Conn. 180; we do not conclude, on the basis of the record before us, that such a result has occurred. Testimony from the victim established that the defendant physically lifted her off of the ground to move her out of the police substation in which she had sought help, and when the victim attempted to flee, he grabbed her by her coat to prevent her from escaping. The victim also testified that the defendant twice grabbed her wrists with one hand as he cut her repeatedly with the other, once while she was standing and then again when she fell to the ground. The testimony elicited at trial established that the defendant intended to abduct the victim in that he restrained her by both moving her from one place to another and also by preventing her liberation through the use of physical force. The facts do not support the defendant’s contention that these actions comprised a “minuscule movement . . . .” (Internal quotation marks omitted.) Id.

We next address the defendant’s argument that because the assault could not have been accomplished without confinement, an absurd or unconscionable result is reached by finding the defendant guilty of kidnapping. We disagree. Although we are aware that other jurisdictions have determined that the crime of kidnapping must be found to be severable from, and not incidental to, an underlying crime for a defendant to be found guilty; see, e.g., People v. Levy, 15 N.Y.2d 159, 164-65, 204 N.E.2d 842, 256 N.Y.S.2d 793, cert. denied, 381 U.S. 938, 85 S. Ct. 1770, 14 L. Ed. 2d 701 (1965); State v. Goodhue, 175 Vt. 461, 833 A.2d 861 (2003); the fact that the defendant committed the crime of kidnapping in the course of committing another crime is not determinative under our law. We are constrained by precedent from our Supreme Court, which has held that “ [w]here the requisite intent is present, the fact that the perpetrator’s underlying motive for the detention is the consummation of another crime . . . does not preclude a conviction for kidnapping.” State v. Lee, 177 Conn. 335, 344, 417 A.2d 354 (1979). Furthermore, our legislature “[has] not seen fit to merge the offense of kidnapping with other felonies, nor impose any time requirements for restraint, nor distance requirements for asportation, to the crime of kidnapping. . . . [A]ny argument that attempts to reject the propriety of a kidnapping charge on the basis of the fact that the underlying conduct was integral or incidental to the crime [with which the defendant was charged] . . . must fail. . . . It is axiomatic that the court itself cannot rewrite a statute to accomplish a particular result. That is the function of the legislature.” (Citations omitted; internal quotation marks omitted.) State v. Luurtsema, supra, 262 Conn. 202.

Because we conclude that the defendant’s actions were clearly proscribed by § 53a-94, as interpreted by our Supreme Court, we hold that, as applied to the facts of this case, the statute is not unconstitutionally vague, and the defendant has not established a clear violation of his constitutional rights., We therefore reject the defendant’s argument.

Ill

We next turn to the defendant’s challenge to the condition of his probation prohibiting him from contacting his children until they reach age eighteen. The defendant claims that this “no contact” condition is illegal.

The state has raised a threshold issue as to whether this claim is reviewable. It maintains that the defendant’s claim is wholly speculative because the condition he challenges may never come into effect because the children probably will have reached the age of majority by the time the defendant is released from incarceration. The defendant counters that this issue is ripe for review and points out that this court has in fact reviewed a condition of probation consisting of restitution to be completed by the end of a third year of probation despite the fact that the defendant was still incarcerated. See State v. Thornton, 55 Conn. App. 28, 30-31, 739 A.2d 271 (1999). He also argues that the state’s ripeness argument would render superfluous Practice Book §§ 43-32 and 61-13, which permit a defendant to file a motion to stay the inception of probation while an appeal is taken. We agree with the defendant that the existence of these rules of practice is persuasive in determining whether a condition of probation may be challenged prior to the commencement of probation because, if the challenge is possible only after probation commences, then there would be no need to stay the provision of probation until after the defendant is released and the appeal has been decided.

The state also argues that the defendant is not deprived of a remedy because he can challenge probation conditions in a probation revocation proceeding after he is arrested for violating this condition. We agree with the defendant that the matter is ripe. “[I]t is not necessary that [a] petitioner first expose himself to actual arrest or prosecution to be entitled to challenge a statute that he claims deters the exercise of his constitutional rights.” Steffel v. Thompson, 415 U.S. 452, 459, 94 S. Ct. 1209, 39 L. Ed. 2d 505 (1974).

Finally, the defendant makes a strong argument that failure to appeal directly from a judgment containing probation conditions could result in a waiver of his right to challenge such conditions at a later time. See United States v. Johnson, 138 F.3d 115, 117-18 (4th Cir. 1998); State v. Austin, 165 Vt. 389, 401-402, 685 A.2d 1076 (1996). We conclude that the defendant should have access to the courts for judicial review now rather than risk loss of parental rights. We thus reject the claim that the matter is not ripe for review.

The defendant did not preserve this issue by inteiposing any objection to the no contact provision at the time he was sentenced. The defendant claims it is reviewable under State v. Golding, supra, 213 Conn. 239-40. We agree. The record is adequate for review, and the claim is of constitutional magnitude, as it alleges a violation of a fundamental right, namely, the right to family integrity, which “includes the most essential and basic aspect of familial privacy — the right of the family to remain together without the coercive interference of the awesome power of the state.” (Internal quotation marks omitted.) Castagno v. Wholean, 239 Conn. 336, 343, 684 A.2d 1181 (1996). Consequently, we review the claim under Golding’s third prong to determine whether the alleged constitutional violation clearly exists. State v. Golding, supra, 240. Total deprivation of the defendant’s right of contact with his children is harmful. Because we conclude that there was a constitutional violation, but only in the breadth of the order, which occurred at sentencing, we remand this matter to the trial court to amend the condition of probation, and we do not further analyze whether the violation was harmless in accord with Golding’s fourth prong.

The defendant first argues that there is no authority under General Statutes § 53a-30 to impose such a condition. Section 53a-30 (a) of the General Statutes, entitled “Conditions of probation and conditional discharge,” lists sixteen separate conditions which might be imposed by the court. The defendant indicates that subdivision sixteen is the only part of the statute that could relate to the conditions imposed. Section 53a-30 (a) (16) provides that the court may require a probationer to “satisfy any other conditions reasonably related to the defendant’s rehabilitation,” and, the defendant contends, this condition does not so reasonably relate. We disagree. The comment of the commission to revise criminal statutes, which first proposed adoption by the legislature of our present criminal code over thirty years ago, as to § 53a-30 provides in relevant part: “This section sets out, as a kind of guideline, the general conditions that the court may impose on the sentence of probation .... The list is not intended to be exhaustive . . . .” Commission to Revise the Criminal Statutes, Penal Code comments, Connecticut General Statutes Annotated § 53a-30 (West 2001), commission comment. Because we also conclude that the list set forth in § 53a-30 was meant to be illustrative, and not exhaustive, we reject outright the defendant’s argument that the probation condition imposed was improper on the basis of a lack of the necessary statutory nexus between the condition and the desire to rehabilitate the defendant expressed in § 53a-30 (a) (16). Our view is consistent with our Supreme Court’s statements in State v. Pieger, 240 Conn. 639, 647, 692 A.2d 1273 (1997), that probation’s objectives are not just to foster the offender’s reformation, but also “to preserve the public’s safety,” and that “a sentencing court must have the discretion to fashion those conditions of probation it deems necessary to ensure that the individual successfully completes the terms of probation.” (Internal quotation marks omitted.) The court was confronted with the particular situation of the defendant and was in the best position to evaluate the type of probation condition that would best effectuate the dual goals of rehabilitation and preservation of the public’s safety. The court found that the defendant had engaged in an unprovoked, violent attack on the woman with whom he had lived and who was also the mother of three of his children.

At the sentencing hearing, the prosecutor told the court that the victim had relayed to him detailed accounts of the defendant’s abuse of the children, including one instance when he had put a sock in the mouth of his one year old child and put tape over it to stop the baby from crying. In addition, the state alerted the court that the department of children and families in another state had dealt with an incident involving one of the defendant’s other children, whose mother was someone other than the victim, in which he allegedly shook a small baby and caused the child to suffer brain damage. The defendant did not contest or deny either of these allegations at the sentencing hearing.

Although there was no evidentiary hearing conducted with regard to these allegations, “due process does not require that information considered by the trial judge prior to sentencing meet the same high procedural standard as evidence introduced at trial. Rather, judges may consider a wide variety of information. . . . [T]he trial court may consider responsible unsworn or out-of-court information relative to the circumstances of the crime and to the convicted person’s life and circumstance. . . . It is a fundamental sentencing principle that a sentencing judge may appropriately conduct an inquiry broad in scope, and largely unlimited either as to the kind of information he may consider or the source from which it may come. United States v. Tucker, 404 U.S. 443, 446, 92 S. Ct. 589, 30 L. Ed. 2d 592 (1972).” (Citations omitted; internal quotation marks omitted.) State v. Pereira, 72 Conn. App. 545, 586, 805 A.2d 787 (2002), cert. denied, 262 Conn. 931, 815 A.2d 135 (2003). In light of the information the court had before it at sentencing, the court was warranted in its concern of not just protecting the victim, but also her offspring.

However, the defendant also attacks the breadth of the order, which proscribes all contact with his children. We acknowledge that “[cjhoices about marriage, family life, and the upbringing of children are among associational rights [the United States Supreme Court] has ranked as of basic importance in our society . . . rights sheltered by the Fourteenth Amendment against the State’s unwarranted usurpation, disregard, or disrespect.” (Citation omitted; internal quotation marks omitted.) M.L.B. v. S.L.J., 519 U.S. 102, 116, 117 S. Ct. 555, 136 L. Ed. 2d 473 (1996). A prohibition on contact with one’s children affects the defendant’s associational rights. Although we hold that the court was warranted in severely restricting the defendant’s contact with his children in furtherance of the goal of probation to protect them as members of the public, that restriction should not reach further than is reasonably necessary for the preservation of the children’s safety. A strict application of the court’s order appears to prohibit the defendant from sending even a birthday card to his children. Yet, it is difficult to imagine how such mail contact could jeopardize their safety. We conclude that a blanket prohibition of all such contact with the children is violative of the defendant’s constitutional rights. We therefore reverse the order only insofar as it prohibits mail contact and remand the case to the court with an instruction to tailor the “no contact” provision to allow the defendant to have at least reasonable mail contact with his children, conditioned in the court’s discretion so that it will be conducted in such a manner as the court determines would not endanger their safety.

IV

The defendant’s final claim is that the court’s sentence of five years of incarceration for the crime of carrying a dangerous weapon in violation of § 53-206 (a) is illegal. We agree.

The state concedes that the defendant’s claim of illegality is well founded. Section 53-206 (a) provides in relevant part that, a defendant “shall be fined ... or imprisoned not more than three years or both . . . .” A sentence that exceeds statutory limits is illegal. Cobham v. Commissioner of Correction, 258 Conn. 30, 38, 779 A.2d 80 (2001). It is reviewable on direct appeal, even when the defendant did not object when it was imposed or move to correct it. State v. Constantopolous, 68 Conn. App. 879, 882, 793 A.2d 278 (“ ‘[b]oth the trial court and this court, on appeal, have the power, at any time, to correct a sentence that is illegal’ ”), cert. denied, 260 Conn. 927, 798 A.2d 971 (2002). The sentence of five years is ordered vacated because it exceeds the three year maximum penalty the law provides. The case is remanded for resentencing to a term that does not exceed the statutory maximum.

The judgment is reversed as to the defendant’s condition of probation ordering no contact with his children until they reach the age of majority and the case is remanded with instructions upon resentencing to appropriately tailor the condition in a manner consistent with this opinion and in accord with the defendant’s constitutional rights. The judgment is also reversed as to the sentence on the conviction of carrying a dangerous weapon in violation of § 53-206 (a) and the case is remanded for resentencing in accordance with law. The judgment is affirmed in all other respects.

In this opinion the other judges concurred.

       The defendant also was charged with attempt to commit assault in the first degree in violation of General Statutes §§ 53a-49 and 53a-59 (a) (1), of which the court found him not guilty.

       The sentence was as follows: Count one, assault in the first degree, fifteen years, execution suspended after ten years, five years of probation with special conditions; count two, kidnapping in the second degree, fifteen years, execution suspended after ten years, five years of probation consecutive to count one; count four, threatening, one year to run concurrent with counts one and two; count five, carrying a dangerous weapon, five years to run concurrent with count one and two; and count six, violation of a protective order, one year concurrent with counts one and two.

       “To prevail under the plain error doctrine, the defendant must demonstrate that the claimed error is both so clear and so harmful that a failure to reverse the judgment would result in manifest injustice. . . . This doctrine is not implicated and review of the claimed error is not undertaken unless 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. Hooks, 80 Conn. App. 75, 86, 832 A.2d 690, cert. denied, 267 Conn. 908, 840 A.2d 1171 (2003). We conclude that the defendant has not met that rigorous standard for obtaining plain error review.

       We include this history because it is pertinent to the defendant’s penchant for making statements of this nature on the record to judges before whom he had appeared. The defendant has not claimed on appeal that the court should have disqualified itself because the defendant disclosed to the court his earlier plea negotiations, but rather confines his claim to the court’s knowledge of the defendant’s prior statements of guilt.

       Canon 3 (c) (1) provides in relevant part: “A judge should disqualify himself or herself in a proceeding in which the judge’s impartiality might reasonably be questioned, including but not limited to instances where: (A) the judge has a personal bias or prejudice concerning a party, or personal knowledge of disputed evidentiary facts concerning the proceeding . . . .” The language of the analogous portion of the federal disqualification statute, 28 U.S.C. § 455, provides in relevant part: “(a) Any justice, judge, or magistrate judge of the United States shall disqualify himself in any proceeding in which his impartiality might reasonably be questioned, (b) He shall also disqualify himself in the following circumstances: (1) Where he has a personal bias or prejudice concerning a party, or personal knowledge of disputed evidentiary facts concerning the proceeding . . . .”

       General Statutes § 54-33f prohibits a,judge who signed a search warrant from hearing a motion to suppress arising out of the execution of that warrant. General Statutes § 51-183c prohibits a judge who presided over a court trial from retrying a case where a new trial is granted or the judgment is reversed. That statute also carries a similar prohibition against the same judge presiding where a new trial is granted in a jury case. No statute prohibits a judge from acting under the circumstances of this case.

       General Statutes § 53a-91 (2) defines “abduct” as “[restraining] a person with intent to prevent his liberation by either (A) secreting or holding him in a place where he is not likely to be found, or (B) using or threatening to use physical force or intimidation.” Further, “restrain” is defined by General Statutes § 53a-91 (1) as “restrictfing] a person’s movements intentionally and unlawfully in such a manner as to interfere substantially with his liberty by moving him from one place to another, or by confining him either in the place where the restriction commences or in a place to which he has been moved, without consent . . . .”

       See, for example, the Illinois Appellate Court’s adoption of the following standard to determine whether an asportation or detention rises to the level of kidnapping as a separate offense: “(1) the duration of the asportation or detention; (2) whether the asportation or detention occurred during the commission of a separate offense; (3) whether the asportation or detention that occurred is inherent in the separate offense; and (4) whether the asportation or detention created a significant danger to the victim independent of that posed by the separate offense.” People v. Jackson, 281 Ill. App. 3d 759, 768, 666 N.E.2d 854 (1996).

       See also Stanley v. Illinois, 405 U.S. 645, 651, 92 S. Ct. 1208, 31 L. Ed. 2d 551 (1972) (interest of person in his children “undeniably warrants deference and, absent a powerful countervailing interest, protection”).

       Although Golding’s third prong also normally requires a determination of whether the violation deprived the defendant of a fair trial, the challenged violation occurred during the posttrial sentencing phase. Therefore, we need not analyze whether the defendant’s right to a fair trial was violated by the imposition of the condition of probation.

       See also Practice Book § 43-22, which provides that “[t]he judicial authority may at any time correct an illegal sentence or other illegal disposition, or it may correct a sentence imposed in an illegal manner or any other disposition made in an illegal manner.”