author: SCHALLER, J.

text:
    STATE OF CONNECTICUT v. BIPIN SHAH
    (AC 32704)
    Gruendel, Robinson and Schaller, Js.

      Argued October 14, 2011
    officially released April 3, 2012

      Richard S. Cramer, for the appellant (defendant).

      John A. East III, senior assistant state’s attorney, with whom, on the brief, were John A. Connelly, former state’s attorney, and Terence D. Mariani, senior assistant state’s attorney, for the appellee (state).
   Opinion

SCHALLER, J.

The defendant, Bipin Shah, appeals from the judgment of conviction, rendered after a trial to the court, on two counts of attempt to commit risk of injury to a child in violation of General Statutes §§ 53a-49 (a) (2) and 53-21 (a), and one count of attempt to entice a minor in violation of General Statutes §§ 53a-49 (a) (2) and 53a-90a (a). On appeal, the defendant claims that the court (1) concluded without sufficient evidence that he had taken a substantial step toward the commission of these crimes, (2) concluded without sufficient evidence that he possessed the requisite level of intent and (3) abused its discretion by admitting copies of certain Internet chat transcripts into evidence. We affirm the judgment of the trial court.

The following facts, as found by the trial court, and procedural history are relevant to the present appeal. On January 23, 2008, Ron Blanchard, a detective in the Naugatuck police department, entered into an Internet chat room using the screen name “Samantha_Millerl3.” On that date, the defendant engaged Miller in conversation using the screen name “Look It’s Me.” From January 23, 2008, to the date of his arrest on April 5, 2008, the defendant contacted Miller in this manner on more than one dozen occasions.

At the outset of the first conversation, the defendant asked Miller where she lived and how old she was. Miller responded that she was living near Waterbury and was fourteen years old. After a brief discussion regarding Miller’s previous sexual encounters, the defendant expressed a desire to kiss Miller. A few minutes later the defendant asked, “so if [you] decide to meet up . . . when [are you] available?” Miller asked, “[you aren’t] freaked out of my age?” The defendant replied, “no ... in fact I would love to meet [you].” The defendant then inquired as to the size of Miller’s brassiere and expressed a desire to touch Miller’s breasts.

On January 24, 2008, the defendant contacted Miller regarding the possibility of meeting the following day. When Miller asked what the two would do, the defendant stated that he would like to kiss her genitals. Shortly thereafter, the defendant stated, “[I] guess [you are] not ready yet,” and ceased sending messages.

On January 28, 2008, the defendant initiated another chat. After Miller renewed the question of why he wanted to meet, the defendant said, “to [have] fun what else.” When Miller asked the defendant to explain what he meant by that, the defendant stated, “I guess that[’s] why we didn’t meet,” and ended the conversation.

On February 12, 2008, the defendant started another chat. During this conversation, the defendant asked Miller if she had a boyfriend and then stated that if they ever met in person he would want to kiss her. Shortly after making this statement, the defendant ceased sending messages.

On February 21,2008, the defendant contacted Miller and again expressed a desire to meet. After a brief discussion about the possibility of going to a movie theater, the following colloquy occurred:

“Look It’s Me: would [you] come with me to a motel room?
“Samantha Miller: really
“Samantha Miller: [you] would want [to]
“Look It’s Me: why not if [you are] willing
“Samantha Miller: sounds fun
“Look It’s Me: then tell me where and when we meet
“Samantha Miller: [you] serious
“Look It’s Me: yes I am
“Samantha Miller: [you know] I never did anything
“Look It’s Me: yes I know . . . there is a [first] time for everything”

The defendant indicated that he would be willing to drive from his home in White Plains, New York, to Naugatuck to meet Miller. The defendant told Miller that “if we meet up and go to a motel” he would “kiss [her and squeeze her] and [a] lot more.” The defendant then said that he was concerned that someone at a local motel could recognize Miller and suggested that they go to Danbury instead. The defendant also expressed an interest in taking photographs of Miller without clothing on. Shortly thereafter, the conversation ended.

More than one month later, on the afternoon of March 28, 2008, the defendant contacted Miller and expressed an interest in meeting with her the following day. Although the defendant initially suggested they go to a mall, he eventually asked Miller if she would like to go to a motel. Miller agreed to this proposition, and the two made plans to meet the following day at 12 p.m. at a store located at 727 Rubber Avenue in Naugatuck. Miller told the defendant that she would be wearing jeans and a blue coat. The defendant told Miller that he would be driving a white truck. Later in the conversation, the defendant again asked Miller about her previous sexual encounters and inquired whether she ever touched her own genitals. That evening, the defendant contacted Miller again. After a brief conversation, the defendant indicated that he would like to purchase a microphone and speakers for Miller’s computer. The defendant told Miller that they might not be able to go to a motel because it was “too risky.” The defendant then told Miller that he had to leave and ended the conversation.

The defendant did not appear at the prearranged meeting place on March 29, 2008. The defendant sent a message to Miller that afternoon stating that he did not come because he was busy with errands. The following day, March 30, 2008, the defendant apologized to Miller for not meeting with her as planned and stated that he was “scared . . . .’’On the afternoon of Tuesday, April 1, 2008, the defendant suggested that the two meet the following Saturday. Miller agreed. Later that evening, the defendant reiterated his desire to “kiss” and “squeezfe]” Miller and suggested that the two shower together at a motel.

On Friday, April 4, 2008, the defendant contacted Miller again. During this conversation, he asked Miller to call him “uncle” when they met. The two then confirmed their plans to meet the next day at 11 a.m. at 727 Rubber Avenue. Miller told the defendant that she would be wearing jeans and a blue coat. The following morning, the defendant sent a message to Miller, stating, “[Ij’ll see [you] in a few minutes . . . .” Soon thereafter, the defendant arrived at the prearranged meeting place and was arrested by police.

The substitute information filed by the state on June 18, 2010, charged the defendant with one count of attempt to commit sexual assault in the second degree in violation of General Statutes §§ 53a-49 (a) (2) and 53a-71 (a) (1), two counts of attempt to commit risk of injury to a child in violation of §§ 53a-49 (a) (2) and 53-21 (a), and one count of attempt to entice a minor in violation of §§ 53a-49 (a) (2) and 53a-90a (a). After a trial to the court, the defendant was found not guilty of attempted sexual assault in the second degree, but was convicted on each of the remaining charges. On September 15, 2010, the court imposed a total effective sentence of five years imprisonment, execution suspended after six months, ten years of probation and a fine of $5000. This appeal followed.

I

The defendant first claims that traveling to the prearranged meeting place in Naugatuck does not constitute a substantial step toward the commission of risk of injury to a child or enticing a minor and, therefore, there is insufficient evidence to support his conviction of having attempted to commit those crimes pursuant to § 53a-49 (a) (2). We disagree.

We begin our analysis by setting forth the applicable standard of review. “In reviewing a sufficiency of the evidence claim, we apply a two-part test. First, we construe the evidence in the light most favorable to sustaining the verdict. Second, we determine whether upon the facts so construed and the inferences reasonably drawn therefrom the [trier of fact] reasonably could have concluded that the cumulative force of the evidence established guilt beyond a reasonable doubt. ... In evaluating evidence, the trier of fact is not required to accept as dispositive those inferences that are consistent with the defendant’s innocence. . . . The trier may draw whatever inferences from the evidence or facts established by the evidence it deems to be reasonable and logical. . . . This does not require that each subordinate conclusion established by or inferred from the evidence, or even from other inferences, be proved beyond a reasonable doubt . . . because this court has held that a [trier’s] factual inferences that support a guilty verdict need only be reasonable. . . .

“[A]s we have often noted, proof beyond a reasonable doubt does not mean proof beyond all possible doubt . . . nor does proof beyond a reasonable doubt require acceptance of every hypothesis of innocence posed by the defendant that, had it been found credible by the trier, would have resulted in an acquittal. ... On appeal, we do not ask whether there is a reasonable view of the evidence that would support a reasonable hypothesis of innocence. We ask, instead, whether there is a reasonable view of the evidence that supports the [trier’s] verdict of guilty. . . . Furthermore, [i]n [our] process of review, it does not diminish the probative force of the evidence that it consists, in whole or in part, of evidence that is circumstantial rather than direct. ... It is not one fact, but the cumulative impact of a multitude of facts which establishes guilt in a case involving substantial circumstantial evidence.” (Internal quotation marks omitted.) State v. Butler, 296 Conn. 62, 76-77, 993 A.2d 970 (2010).

In the present case, the defendant was charged with two counts of attempt to commit risk of injury to a child in violation of §§ 53a-49 (a) (2) and 53-21 (a) and one count of attempt to entice a minor in violation of §§ 53a-49 (a) (2) and 53a-90a (a). Section 53a-49 (a) states in relevant part: “A person is guilty of an attempt to commit a crime if, acting with the kind of mental state required for commission of the crime, he . . . (2) intentionally does or omits to do anything which, under the circumstances as he believes them to be, is an act or omission constituting a substantial step in a course of conduct planned to culminate in his commission of the crime.” Section 53a-49 (b) states in relevant part: “Conduct shall not be held to constitute a substantial step . . . unless it is strongly corroborative of the actor’s criminal purpose. . . .”

“[A] substantial step must be something more than mere preparation, yet may be less than the last act necessary before the actual commission of the substantive crime, and thus the finder of fact may give weight to that which has already been done as well as that which remains to be accomplished before commission of the substantive crime. ... In order for behavior to be punishable as an attempt, it need not be incompatible with innocence, yet it must be necessary to the consummation of the crime and be of such a nature that a reasonable observer, viewing it in context could conclude beyond a reasonable doubt that it was undertaken in accordance with a design to violate the statute.” (Internal quotation marks omitted.) State v. Sorabella, 277 Conn. 155, 180-81, 891 A.2d 897, cert. denied, 549 U.S. 821, 127 S. Ct. 131, 166 L. Ed. 2d 36 (2006).

In State v. Nero, 122 Conn. App. 763, 766-73, 1 A.3d 184 (2010), the defendant had engaged in various online conversations of a sexual nature with an undercover police officer posing as a fifteen year old girl. The defendant subsequently traveled to a prearranged meeting place where he was arrested by police. Id., 773. In that case, the defendant argued that the “sexual talk on the Internet and driving to meet [the child] at the [prearranged place]” did not constitute a substantial step toward the commission of sexual assault in the second degree. Id., 781. The court in Nero, citing our Supreme Court’s holding in State v. Sorabella, supra, 277 Conn. 182, held that “the conduct of a suspect who, for the purpose ultimately of having sex with a person whom the suspect believes to be a child, travels to a prearranged location to meet that child, is sufficient to constitute a substantial step in furtherance of the planned sex crime.” (Internal quotation marks omitted.) State v. Nero, supra, 782.

In the present case, the defendant engaged in a series of illicit Internet chats with a person whom he believed to be a fourteen year old girl. During the course of these conversations, the defendant sought to persuade the child to engage in various types of sexual behavior with him at a motel. Specifically, the defendant expressed a desire to fondle the child’s breasts, kiss her genitalia, shower with her and take photographs of her without her clothing on. After having engaged in these conversations, the defendant traveled to a prearranged place with the intent of meeting that child. We conclude, based on Nero, that when these facts are viewed in the light most favorable to sustaining the court’s finding of guilty, a reasonable finder of fact could determine that the defendant had taken a “substantial step” toward violating both §§ 53-21 (a) and 53a-90a (a).

II

The defendant next claims that the record contains insufficient evidence to support the court’s conclusion that he possessed the intent required for conviction of attempt to commit risk of injury to a child and attempt to entice a minor. We disagree.

In order to be convicted of having attempted to commit a crime, “[t]he defendant . . . must have possessed the specific intent to commit the underlying crime. . . . [T]he attempt is complete and punishable, when an act is done with intent to commit the crime, which is adapted to the perpetration of it, whether the purpose fails by reason of interruption ... or for other extrinsic cause.” (Internal quotation marks omitted.) State v. Fauntleroy, 101 Conn. App. 144, 149-50, 921 A.2d 622 (2007). “It is well established that [t]he question of intent is purely a question of fact. . . . The state of mind of one accused of a crime is often the most significant and, at the same time, the most elusive element of the crime charged. . . . Because it is practically impossible to know what someone is thinking or intending at any given moment, absent an outright declaration of intent, a person’s state of mind is usually proven by circumstantial evidence. . . . Intent may be and usually is inferred from conduct. . . . [W]hether such an inference should be drawn is properly a question for the [finder of fact] to decide.” (Internal quotation marks omitted.) State v. Smith, 99 Conn. App. 116, 133, 912 A.2d 1080, cert. denied, 281 Conn. 917, 917 A.2d 1000 (2007).

The defendant argues that this court should distinguish between mere expressions of the defendant’s sexual interests and more direct statements of actual intent. As previously stated, however, an outright declaration of intent is not required in order to sustain the defendant’s conviction. Id. The defendant also argues that the evidence contained in the record indicates that, on the date of his arrest, he merely wanted to go shopping with Miller and that he had no intent to take the child to a motel. In support of this assertion, the defendant points to (1) the message sent to Miller on March 28, 2008, which states that going to a motel might be “too risky” and (2) the absence of any physical evidence indicating that he had tried to procure such lodging. These arguments are unpersuasive. First, on April 1, 2008, four days after he had told Miller that going to a motel might be “too risky,” the defendant suggested that the two should “take a shower together in the motel.” Second, although the defendant is correct to note that there was no physical evidence indicating that he had reserved a motel room, the absence of such evidence does not foreclose the possibility that he intended to engage in acts of a sexual nature with Miller. See State v. Nero, supra, 122 Conn. App. 783 n.15 (affirming defendant’s conviction of attempt to commit sexual assault in second degree despite absence of incriminating physical evidence in his possession). The evidence contained within the record, when viewed in the light most favorable to sustaining the court’s finding of guilty, was sufficient to allow a reasonable finder of fact to conclude that the defendant intended to violate both §§ 53-21 (a) and 53a-90a (a).

Ill

Finally, the defendant claims that the court abused its discretion by admitting into evidence chat transcripts without authenticating them as computer generated evidence pursuant to State v. Swinton, 268 Conn. 781, 847 A.2d 921 (2004). We disagree.

We begin by setting forth the applicable standard of review. “The trial court’s ruling on evidentiary matters will be overturned only upon a showing of a clear abuse of the court’s discretion. . . . We will make every reasonable presumption in favor of upholding the trial court’s ruling, and only upset it for a manifest abuse of discretion. . . . [Thus, our] review of such rulings is limited to the questions of whether the trial court correctly applied the law and reasonably could have reached the conclusion that it did.” (Internal quotation marks omitted.) State v. Coccomo, 302 Conn. 664, 670-71, 31 A.3d 1012 (2011).

The following additional facts are relevant to this claim. At trial, the state sought to admit printed transcripts of approximately fifteen separate online chat sessions between Miller and the defendant. Blanchard, the law enforcement officer who posed as Miller, testified that the information contained within the transcripts was consistent with the conversations he had previously had with the defendant. Blanchard also testified that these transcripts were created by transferring data from an online archive maintained by the host of the Internet chat room to a word processing document on his computer.

Section 9-1 (a) of the Connecticut Code of Evidence states: “The requirement of authentication as a condition precedent to admissibility is satisfied by evidence sufficient to support a finding that the offered evidence is what its proponent claims it to be.” This provision “requires only a prima facie showing of genuineness and leaves it to the fact finder to decide the true authenticity and probative value of the evidence.” State v. John L., 85 Conn. App. 291, 301, 856 A.2d 1032, cert. denied, 272 Conn. 903, 863 A.2d 695 (2004). Generally, this showing may be made by obtaining testimony from “[a] witness with personal knowledge . . . that the offered evidence is what its proponent claims it to be.” Conn. Code Evid. § 9-1 (a), commentary.

In Swinton, our Supreme Court stated that “in order to lay a proper foundation for computer generated evidence, there must be testimony by a person with some degree of computer expertise, who has sufficient knowledge to be examined and cross-examined about the functioning of the computer.” (Internal quotation marks omitted.) State v. Swinton, supra, 268 Conn. 813. “This standard can generally be satisfied by evidence that (1) the computer equipment is accepted in the field as standard and competent and was in good working order, (2) qualified computer operators were employed, (3) proper procedures were followed in connection with the input and output of information, (4) a rehable software program was utilized, (5) the equipment was programmed and operated correctly, and (6) the exhibit is properly identified as the output in question.” (Internal quotation marks omitted.) Id., 811-12. In Swinton, the court concluded that certain digitally enhanced photographs of bite marks on a murder victim constituted “computer generated evidence” after noting that the enhancement process “reveai[ed] parts of [the] image that previously were unviewable.” Id., 804.

In State v. Melendez, 291 Conn. 693, 707-708, 970 A.2d 64 (2009), our Supreme Court addressed a case in which the defendant argued that the more rigorous standard set forth in Swinton governed the admission of a digital video disc (DVD) containing unenhanced copies of eight millimeter videotape depicting his involvement in multiple narcotics transactions. In Melendez, our Supreme Court noted that “[it has drawn] a distinction between technologies that may be characterized as merely presenting evidence and those that are more accurately described as creating evidence.” (Emphasis in original.) Id., 709-10. The court continued: “Although it is true . . . that generating [the DVD] required the use of technology, that technology, which is widely used and readily available, involves nothing more than the reproduction of video footage from one medium to another. . . . We conclude, therefore, that compliance with Swinton was not a prerequisite for admission of the unmodified video clips contained on the DVD.” Id., 710.

In the present case, Blanchard testified that the transcripts offered by the state accurately represent the online conversations he had with the defendant. These documents, like the DVD admitted by the trial court in Melendez, represent a mere unaltered reproduction of those communications. These documents do not, therefore, constitute “computer generated evidence” as that term has been defined by our Supreme Court. Consequently, the admission of these exhibits did not require the trial court to apply the heightened authentication requirements set forth in Swinton. Absent the application of this heightened standard, Blanchard’s testimony that the information contained within the transcripts accurately represented the conversations he had with the defendant is sufficient to satisfy the authentication requirements of § 9-1. Accordingly, the trial court did not abuse its discretion in admitting these transcripts into evidence.

The judgment is affirmed.

In this opinion the other judges concurred.

       Specifically, the defendant was charged with one count of attempting to do an act likely to impair the health or morals of a child under the age of sixteen years in violation of § 53-21 (a) (1) and one count of attempting to have sexual contact with a child under the age of sixteen years in violation of § 53-21 (a) (2).

       Although “Samantha Miller” is a purely fictional character, for simplicity, we use the name “Miller” to refer to Blanchard when using this persona. See State v. Nero, 122 Conn. App. 763, 766 n.3, 1 A.3d 184 (2010).

       The state submitted transcripts of these online chats into evidence at trial. The court explicitly found that these transcripts contained the conversations that occurred between Miller and “Look It’s Me.” The court also found that the state had proven beyond a reasonable doubt that the defendant was “Look It’s Me.” These findings are not contested in the present appeal.

       The defendant had previously attempted to communicate vocally with Miller over the Internet. Miller informed the defendant that her computer was not equipped with a microphone or speakers.

       After the defendant had driven through the parking lot and stopped in front of the store multiple times, Blanchard approached the defendant’s vehicle and asked if he was lost. The defendant responded that he was looking for Samantha Miller.

       General Statutes § 53-21 (a) provides in relevant part: “Any person who (1) wilfully or unlawfully causes or permits any child under the age of sixteen years to be placed in such a situation that the life or limb of such child is endangered, the health of such child is likely to be injured or the morals of such child are likely to be impaired, or does any act likely to impair the health or morals of any such child, or (2) has contact with the intimate parts, as defined in section 53a-65, of a child under the age of sixteen years or subjects a child under sixteen years of age to contact with the intimate parts of such person, in a sexual and indecent maimer likely to impair the health or morals of such child . . . shall be guilty of a class C felony for a violation of subdivision (1) . . . and a class B felony for a violation of subdivision (2) . . . .” The defendant was charged with one count of violating § 53-21 (a) (1) and with one count of violating § 53-21 (a) (2).

       General Statutes § 53a-90a (a) provides in relevant part: “A person is guilty of enticing a minor when such person uses an interactive computer service to knowingly persuade, induce, entice or coerce any person under sixteen years of age to engage in prostitution or sexual activity for which the actor may be charged with a criminal offense. . . .”

       In addressing the defendant’s second claim, we again apply the standard of review governing claims of insufficient evidence set forth by our Supreme Court in State v. Butler, supra, 296 Conn. 76-77.

       On the date of the defendant’s arrest, police conducted a search of his vehicle. Affixed to the windshield of the vehicle was a global positioning system that indicated that the defendant’s destination was 727 Rubber Avenue in Naugatuck. In the backseat of the vehicle police also found a computer microphone and headphones. Finally, in a compartment between the front two seats, police found a digital camera. No other physical evidence was discovered.

       In the context of digitally enhanced photographs, the court stated that “an image may be deemed to have been creat[ed] . . . when the technology used reveals details or parts of an image that were not visible prior to the technological enhancement or modification. ... As a general matter, an image is merely presented] . . . when the technology used to generate it does not reveal any new or previously unviewable details.” (Citations omitted; internal quotation marks omitted.) State v. Melendez, supra, 291 Conn. 710 n.21.


source: Caselaw Access Project

author: BORDEN, J.

license: Public Domain

text:
    STATE OF CONNECTICUT v. PAUL R. DUCHARME
    (AC 33216)
    Gruendel, Robinson and Borden, Js.

      Argued January 11
    officially released April 3, 2012

      Jeremiah Donovan, for the appellant (defendant).

      Peter A. McShane, supervisory assistant state’s attorney, with whom were Daniel E. Cummings, certified legal intern, and, on the brief, Michael L. Regan, state’s attorney, and Kyle Zrenda, certified legal intern, for the appellee (state).
   Opinion

BORDEN, J.

The defendant, Paul R. Ducharme, appeals from the judgment of the trial court denying his motion to withdraw his guilty plea. On appeal, he claims that his plea was involuntarily and was taken without substantial compliance with the provisions of Practice Book § 39-19. We affirm the judgment of the trial court.

On December 12, 2000, the defendant appeared before the court for the purpose of entering a guilty plea in one of four files then pending against him. The defendant at that time pleaded guilty to the crime of sexual assault in the second degree in violation of General Statutes § 53a-71 (a) (1), under the Alford doctrine, and to the crime of employing a minor in an obscene performance in violation of General Statutes § 53a-196a (a) (1). Thus, while entering that portion of the guilty plea under the Alford doctrine, he did not admit that he had committed the crime of sexual assault to which he pleaded guilty. Thereafter, the court canvassed the defendant and, upon completion, inquired of counsel if anything further was necessary and if there were any reasons as to why the plea should not be accepted. Defense counsel was satisfied with the plea canvass and did not offer any reason why the plea should not be accepted.

On January 29, 2001, the defendant filed a written motion to vacate the guilty plea entered on December 12, 2000, on the explicit basis that he may have been incompetent to enter his plea on that date. In response, the court ordered a competency hearing and appointed special counsel to represent the defendant. At the hearing, Kenneth Selig, a psychiatrist requested by the defense to examine the defendant, testified that the defendant had not been competent to enter a plea. In response, the state called Molly Driscoll, a clinical social worker for the Connecticut department of mental health and addiction services who performs competency to stand trial evaluations. She testified that the defendant was examined by a team of medical professionals to determine the issue of competency. She stated that the defendant had told the team that he had “just withdrawn his plea because he felt he wasn’t competent” even though the defendant admitted that the only confusion he had during the December 12, 2000 court appearance was with the trial court’s questions on deportation. Despite the defendant’s claim, the team concluded that he was competent to stand trial. At the end of the hearing, the court concluded that the defendant was competent at the time of his December 12, 2000 plea and, therefore, denied the defendant’s motion to vacate. This appeal followed. Additional facts will be set forth as necessary.

The defendant frames the issue on appeal as whether his plea was involuntary and in violation of Practice Book § 39-19. It is clear, however, that the defendant has conflated the inquiry regarding a “knowing and voluntary” plea with the issue of his competency, despite these being two separate issues. The purpose of the “knowing and voluntary” inquiry is to determine whether the defendant actually understands “the significance and consequences of a particular decision and whether the decision is uncoerced.” (Internal quotation marks omitted.) State v. Connor, 292 Conn. 483, 512, 973 A.2d 627 (2009). The focus of a competency inquiry, by contrast, is the defendant’s mental capacity; the question is whether he has the ability to understand the proceedings. Id. Therefore, despite the defendant entangling these two issues in his argument, we will consider each one independently.

I

COMPETENCY

It is clear that at the hearing on the motion to withdraw the plea, the only issue before the trial court was whether the defendant had been competent to enter his guilty plea. Therefore, we begin our analysis by considering the issue of competency.

We review the court’s determination of competency under an abuse of discretion standard. See State v. DesLaurier, 230 Conn. 572, 586, 646 A.2d 108 (1994). “[A] defendant is not competent if the defendant is unable to understand the proceedings against him or her or to assist in his or her own defense.” General Statutes § 54-56d (a). “In determining whether the trial court [has] abused its discretion, this court must make every reasonable presumption in favor of [the correctness of] its action. . . . Our review of a trial court’s exercise of the legal discretion vested in it is limited to the questions of whether the trial court correctly applied the law and could reasonably have reached the conclusion that it did.” (Citations omitted; internal quotation marks omitted.) State v. Hernandez, 254 Conn. 659, 665-66, 759 A.2d 79 (2000). “Essentially, we examine the relevant record to determine whether the trial court reasonably could have concluded that the defendant was competent to plead guilty. In doing so, we give deference to the trial court’s findings of fact because the trial court has the benefit of firsthand review of the defendant’s demeanor and responses during the canvass.” State v. Johnson, 253 Conn. 1, 27 n.26, 751 A.2d 298 (2000).

The defendant claims that at the time he entered his guilty plea he was suffering from an emotional and intellectual meltdown. The defendant argues that his answers to the court’s inquiry into his competency as part of the plea canvass were “robotic” and did not demonstrate cognitive thought exceeding that of an “automaton.” He contends that the record illustrates that he would have responded affirmatively regardless of what the trial court asked, even if the court had informed him that he would face a death sentence. The state contends that the defendant’s responses to the court’s plea canvass, his attorney’s explicit and implied representations that he was competent and the court’s own observations all support the conclusion that the defendant was competent to plead guilty. We agree with the state.

The record reflects that the defendant affirmed to the court that he understood that he was pleading guilty and by doing so he was waiving specific rights. The defendant was subjected to an extensive plea canvass by the court. His answers to that canvass demonstrated that he understood the proceedings and was capable of assisting in his defense. Throughout the entire colloquy between the court and the defendant, the court repeatedly asked the defendant if he understood what the court was saying and in each instance the defendant affirmed that he did. The defendant also had the awareness to show deference to the court as he regularly finished his responses with “Your Honor.” The court also noted that the defendant had participated extensively in the preparation of his case with his attorney, a statement which neither the defendant nor his attorney contested. Furthermore, during the exchange the defendant had with the court he properly distinguished between questions calling for “yes” or “no” answers and even alerted the court when he had trouble hearing certain questions. Although some form of a meaningful dialogue is preferred, our Supreme Court has held that single word responses do not invalidate a plea. See State v. Torres, 182 Conn. 176, 179-80, 438 A.2d 46 (1980). Finally, the plea canvass indicates that the defendant understood the difference between entering a plea of guilty under the Alford doctrine and a straight guilty plea.

The defendant argues nevertheless that Selig’s testimony established that he was not competent to plead. A review of the record, however, reveals there was significant support for the trial court’s decision to discredit Selig’s testimony. Selig did not evaluate the defendant until January 22, 2001, which was approximately forty-one days after he pleaded guilty. Selig’s conclusion also was in sharp contrast with that of the trial judge who canvassed the defendant on December 12, 2000. “The trial judge is in a particularly advantageous position to observe a defendant’s conduct during a trial and has a unique opportunity to assess a defendant’s competency. A trial court’s opinion, therefore, of the competency of a defendant is highly significant.” State v. Murray, 28 Conn. App. 548, 553-54, 611 A.2d 916 (1992), appeal dismissed, 225 Conn. 524, 624 A.2d 377 (1993). In this case, the court was in a prime position to observe the defendant as it noted at the beginning of the ruling that the court had been “intimately involved” with the case since the defendant’s original appearance before the court in April, 1999. In fact, part of the reason the court stated that it did not credit Selig’s conclusion was that it conflicted so considerably with what the court had personally observed.

Furthermore, Selig’s investigation into the circumstances surrounding the plea was minimal. He interviewed only two witnesses, the defendant’s friend, Krista Duncan, and his defense counsel, Bruce McIntyre. Only McIntyre was present at the time the defendant pleaded, and he informed Selig that he believed the defendant to be competent. McIntyre also had been in the presence of the defendant throughout all of the proceedings.

Moreover, Selig’s final conclusion is legally inconsistent, namely, that the defendant was competent to stand trial throughout the entirety of the case, yet, somehow not competent to plead guilty on December 12, 2000. The distinction that one can be competent to stand trial but not competent to plead guilty was considered and rejected by the United States Supreme Court in Godinez v. Moran, 509 U.S. 389, 113 S. Ct. 2680, 125 L. Ed. 2d 321 (1993). The competency standard for pleading guilty or waiving the right to counsel is the same as the competency standard for standing trial: “whether the defendant has ‘sufficient present ability to consult with his lawyer with a reasonable degree of rational understanding’ and has ‘a rational as well as factual understanding of the proceedings against him.’ ” Id., 396. There is no reason for the competency standard for either of those decisions to be higher than that for standing trial. “ [T]he decision to plead guilty [though profound] is no more complicated than the sum total of decisions that a defendant may be called upon to make during the course of a trial.” Id., 398.

Finally, Selig concluded that the defendant’s past psychiatric history of anxiety and depression created a propensity for the defendant to decompensate under stress. That conclusion, however, does not control the inquiry faced by the court when trying to determine whether the defendant is competent. “[C]ompetence to stand trial... is not defined in terms of mental illness. ... An accused may be suffering from a mental illness and nonetheless be able to understand the charges against him and to assist in his own defense .... Therefore, the test for determining competence focuses not solely on a historical assessment of mental illness but on whether [the defendant] has sufficient present ability to consult with his lawyer with a reasonable degree of rational understanding — and whether he has a rational as well as factual understanding of the proceedings against him.” (Citations omitted; internal quotation marks omitted.) State v. Mordasky, 84 Conn. App. 436, 446, 853 A.2d 626 (2004). Thus, in order to support a claim of incompetence, the defendant needed to establish that he could neither comprehend the proceedings nor assist in his defense. A review of the record demonstrates that the court was justified in determining that the defendant understood the proceedings and had the ability to assist in his defense, notwithstanding any history of emotional illness.

II

KNOWING AND VOLUNTARY

The defendant also claims that his plea was involuntary and that the court did not substantially comply with the provisions of Practice Book § 39-19. The defendant claims that the court failed to comply with the requirements of Practice Book § 39-19 because the court’s canvass did not specifically address the defendant’s rights (1) to persist in his not guilty plea, (2) to the assistance of counsel and (3) to confront the witnesses against him. We reject this claim.

Despite the defendant’s contentions to the contrary, he did not raise this issue before the trial court. See footnote 3 of this opinion. Accordingly, the defendant seeks to prevail on this unpreserved claim pursuant to State v. Golding, 213 Conn. 233, 567 A.2d 823 (1989). Under Golding, “a defendant can prevail on a claim of constitutional error not preserved at trial only if all of the following conditions are met: (1) the record is adequate to review the alleged claim of error; (2) the claim is of constitutional magnitude alleging the violation of a fundamental right; (3) the alleged constitutional violation clearly exists and clearly deprived the defendant of a fair trial; and (4) if subject to harmless error analysis, the state has failed to demonstrate haxm-lessness of the alleged constitutional violation beyond a reasonable doubt.” Id., 239-40. “The first two prongs of Golding address the reviewability of the claim, and the last two involve the merits of the claim.” State v. Brown, 56 Conn. App. 26, 31, 741 A.2d 321 (1999), cert. denied, 252 Conn. 927, 746 A.2d 790 (2000).

The state concedes that the defendant has met the first two Golding requirements in that the record is adequate to permit review and the defendant’s claim is of constitutional magnitude. Nevertheless, the defendant’s claim must fail because no constitutional violations exist.

To the extent that the defendant’s claim implicates the failure of the trial court to apprise him of the constitutionally mandated requirements for a valid plea, as delineated in Boykin v. Alabama, 395 U.S. 238, 243, 89 S. Ct. 1709, 23 L. Ed. 2d 274 (1969), his claim is properly reviewable. Under Boykin, a defendant must be cognizant prior to entering a guilty plea of the following three constitutional rights: “(1) the privilege against compulsory self-incrimination; (2) the right to trial by jury; and (3) the right to confront one’s own accusers.” State v. Carter, 243 Conn. 392, 397, 703 A.2d 763 (1997). While the federal constitution requires that the record of the plea canvass indicate the voluntariness of any waiver of the three core constitutional rights delineated in Boykin, it does not require that the trial court go beyond these “ ‘constitutional minima’.” State v. Lugo, 61 Conn. App. 855, 862, 767 A.2d 1250, cert. denied, 255 Conn. 955, 772 A.2d 153 (2001); see also State v. Badgett, 200 Conn. 412, 418, 512 A.2d 160, cert. denied, 479 U.S. 940, 107 S. Ct. 423, 93 L. Ed. 2d 373 (1986). “A defendant can voluntarily and understandingly waive these rights without literal compliance with the prophylactic safeguards of Practice Book [§§ 39-19 and 39-20]. Therefore . . . precise compliance with the provisions [of the Practice Book] is not constitutionally required.” (Internal quotation marks omitted.) State v. Williams, 60 Conn. App. 575, 580, 760 A.2d 948, cert. denied, 255 Conn. 922, 763 A.2d 1043 (2000). Accordingly, this court’s analysis focuses on whether the federal constitutional principles were satisfied rather than on scrupulous compliance with the provisions of the rules of practice.

The defendant in this case does not claim that the trial court neglected to advise him concerning the right against compulsory self-incrimination or the right to a trial by jury, as the record expressly indicates that those conditions were satisfied. The defendant’s only constitutional claim is that the court did not inform him of his right to confront the witnesses against him.

The record in this case indicates that the defendant’s constitutionally protected rights have not been infringed. The defendant argues that the court’s statement that the defendant had the “right to question any witnesses the state might bring in here to testify against you,” was insufficient to advise the defendant of his right to confront and cross-examine these witnesses. We disagree. It is reasonable to conclude that the phrase “to question” sufficiently conveys the meaning of the word “confront” in this context. See State v. Suggs, 194 Conn. 223, 228, 478 A.2d 1008 (1984) (“[t]he trial court did not err in advising the defendant that he had the right to ‘face’ his accusers rather than ‘confront’ his accusers”). Indeed, a defendant unsophisticated in the law might be better informed of the right to confront witnesses by the use of the more commonly understood term, “question.” The court did not commit an impropriety in advising the defendant that he was giving up the right to “question” rather than “confront” his accusers.

The judgment is affirmed.

In this opinion the other judges concurred.

       Practice Book § 39-19 provides in relevant part: “The judicial authority shall not accept the plea without first addressing the defendant personally and determining that he or she fully understands: (1) The nature of the charge to which the plea is offered; (2) The mandatory minimum sentence, if any; (3) The fact that the statute for the particular offense does not permit the sentence to be suspended; (4) The maximum possible sentence on the charge . . . and (6) The fact that he or she has the right to plead not guilty or to persist in that plea if it has already been made . . . .”

       See North Carolina v. Alford, 400 U.S. 25, 37-39, 91 S. Ct. 160, 27 L. Ed. 2d 162 (1970).

       The following colloquy occurred during the hearing on the defendant’s motion to withdraw the plea:
      “[Assistant State’s Attorney]: Your Honor, if I could at this time just to be task specific, exactly today I thought we were on an issue of motion for competency. And I’m not aware of any, if there is at this time, of a motion pending for a motion to withdraw a plea Although, I understand it may be taken into a bigger context later on. But, if my argument astrays, I apologize but I’m going to—
      “The Court: It’s the court’s understanding—
      “[Assistant State’s Attorney]: —Yes, Your Honor—
      “The Court: —and I want to make sure, [defense counsel], that we are all on the same page. That the only issue before the court today is whether or not [the defendant] was competent at the time he pleaded on December 12, 2000. That’s the only issue.
      “[Defense Counsel]: That was the substance of my argument, Your Honor.
      “The Court: All right, thank you.”

       The following exchange occurred during the defendant’s plea canvass:
      “The Court: You pled guilty under the Alford doctrine to sexual assault in the second degree, the allegations were the same, a minor who was [fifteen] at the time, you engaged in sexual intercourse. I [am] assuming that you pled guilty under the Alford doctrine because you don’t necessarily agree with what the prosecutor just told me as to that situation, but you do believe the state may well have enough evidence to convict you if this case went to trial and you want to avoid a harsher sentence, is that true, sir?
      “[The Defendant]: Yes, Your Honor.”

       At oral argument before this court, defense counsel claimed that Selig was evaluating the defendant not for the purpose of determining whether he was competent but instead to determine whether he knowingly and voluntarily entered his plea. Such a claim is without merit and in contradiction to the facts of the record.

       The following colloquy occurred during the defendant’s plea canvass:
      “The Court: All right. Now, as to both of those pleas, you have given up the right to have your case tried by a judge or a jury. You have given up your right to remain silent, not to incriminate yourself. You have given up your right to question any witnesses the state might bring in here to testify against you. You have given up your right to call your own witnesses to testify for you. You have given up your right to put on any kind of a defense. You have given up your right if you chose to defend yourself, but most importantly ... as to both of these charges you have given up your right to make the state prove the case beyond a reasonable doubt at the time of trial. Do you understand, sir, that you have given up each and every one of those rights?
      “[The Defendant]: Yes, Your Honor.”

       The defendant’s other two claims, namely, that the court’s canvass did not specifically address the defendant’s rights to persist in his not guilty plea and the right to the assistance of counsel, are not part of the constitutional minima required by Boykin, but instead are additional safeguards of the rules of practice. Thus, to the extent that the defendant seeks to prevail on appeal on these nonconstitutional claims, we decline to consider them.


author: DiPENTIMA, C. J.

text:
    DENISE MOLLICA ET AL. v. EDWARD TOOHEY
    (AC 32536)
    DiPentima, C. J., and Alvord and Sheldon, Js.
    Submitted on briefs January 13
    officially released April 3, 2012

      Jeffrey M.- Cooper and Jeremy C. Virgil filed a brief for the appellants (plaintiffs).

      Patricia M. Shepard and Lawrence H. Adler filed a brief for the appellee (defendant).
   Opinion

DiPENTIMA, C. J.

The plaintiffs, Denise Mollica, individually and as the next friend of Alexa Mollica and Daniel Mollica, appeal from the summary judgment rendered in favor of the defendant, Edward Toohey. On appeal, the plaintiffs claim that the trial court improperly concluded that there was no genuine issue of material fact that their action was barred by the applicable statute of limitations. We disagree and, accordingly, affirm the summary judgment of the trial court.

The plaintiffs commenced the present action on December 21, 2006, by way of a one count complaint. The plaintiffs alleged that starting in September, 1999, they had resided at 108 Howe Street in Shelton, a premises owned by the defendant. The plaintiffs further alleged that the defendant allowed the presence and accumulation of water in numerous areas of the premises over a period of time and, as a result, bacteria and/ or toxic mold developed and contaminated the indoor air quality. They claimed that as a result of this negligent ownership and maintenance of the premises by the defendant, they suffered a variety of personal injuries.

On March 2, 2006, the defendant filed his answer and raised two special defenses. In the first special defense, he claimed that the plaintiffs’ injuries and damages, if any, were proximately caused by the negligence and carelessness of Denise Mollica. In the second special defense, the defendant alleged that the plaintiffs’ complaint was time barred by the two year statute of limitations set forth in General Statutes § 62-584. On July 2, 2007, the plaintiffs denied the allegations in the defendant’s special defenses.

After receiving permission from the court, the defendant moved for summary judgment on December 29, 2009. The basis for this motion was that the plaintiffs’ action was barred by the applicable statute of limitations. On February 18,2010, the plaintiffs filed an objection to the motion for summary judgment, arguing for the first time that the defendant’s failure to remedy the conditions at the premises constituted a continuing course of conduct that tolled the statute of limitations.

On June 7, 2010, the court issued a memorandum of decision granting the motion for summary judgment filed by the defendant. The court noted that the plaintiffs commenced the action on December 21, 2005, and that § 52-584 set forth the applicable statute of limitations for this negligence action. The court determined that the undisputed evidence demonstrated that the plaintiffs “knew that there was mold on the premises and that they had suffered physical injury as a result in 2001.” The court therefore concluded that the action was commenced outside the two year statute of limitations set forth in § 52-584. The court also concluded that the continuing course of conduct doctrine applies only to conduct occurring before the injury is discovered, and therefore the doctrine did not apply to toll the statute of limitations. This appeal followed.

“Practice Book § [17-49] requires that 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. A material fact is a fact that will make a difference in the result of the case. . . . The facts at issue are those alleged in the pleadings. . . . The party seeking summary judgment has the burden of showing the absence of any genuine issue as to all material facts, which, under applicable principles of substantive law, entitle him to a judgment as a matter of law. . . . The party opposing such a motion must provide an evidentiary foundation to demonstrate the existence of a genuine issue of material fact. See Practice Book §§ [17-44 and 17-45]. In deciding a motion for summary judgment, the trial court must view the evidence in the light most favorable to the nonmoving party. . . . The test is whether a party would be entitled to a directed verdict on the same facts. . . . Our review of the trial court’s decision to grant a motion for summary judgment is plenary.” (Internal quotation marks omitted.) Credit One, LLC v. Head, 117 Conn. App. 92, 97, 977 A.2d 767, cert. denied, 294 Conn. 907, 982 A.2d 1080 (2009). “ ‘Summary judgment may be granted where the claim is barred by the statute of limitations.’ Doty v. Mucci, 238 Conn. 800, 806, 679 A.2d 945 (1996).” Rosenfield v. I. David Marder & Associates, LLC, 110 Conn. App. 679, 684, 956 A.2d 581 (2008); see also Sinotte v. Waterbury, 121 Conn. App. 420, 440, 995 A.2d 131 (whether plaintiffs’ claims are barred by applicable statutes of limitation presents question of law to which we afford plenary review), cert. denied, 297 Conn. 921, 996 A.2d 1192 (2010).

On appeal, the plaintiffs argue that the court improperly granted summary judgment in favor of the defendant. Specifically, they claim that the continuing course of conduct doctrine tolled the applicable statute of limitations. We disagree.

We begin our analysis by setting forth the language of § 52-684, which provides in relevant part: “No action to recover damages for injury to the person . . . shall be brought but within two years from the date when the injury is first sustained or discovered or in the exercise of reasonable care should have been discovered, and except that no such action may be brought more than three years from the date of the act or omission complained of . . . .” We have concluded that this statute imposes two specific time requirements on plaintiffs. “The first requirement, referred to as the discovery portion . . . requires a plaintiff to bring an action within two years from the date when the injury is first sustained or discovered or in the exercise of reasonable care should have been discovered .... The second provides that in no event shall a plaintiff bring an action more than three years from the date of the act or omission complained of. . . . The three year period specifies the time beyond which an action under § 52-584 is absolutely barred, and the three year period is, therefore, a statute of repose.” (Citation omitted; emphasis in original; internal quotation marks omitted.) Rosato v. Mascardo, 82 Conn. App. 396, 401-402, 844 A.2d 893 (2004). We further have stated expressly that “the continuing course of conduct doctrine has no application after the plaintiff has discovered the harm.” Id., 406, citing Mountaindale Condominium Assn., Inc. v. Zappone, 59 Conn. App. 311, 327-32, 757 A.2d 608, cert. denied, 254 Conn. 947, 762 A.2d 903 (2000), and Rivera v. Fairbank Management Properties, Inc., 45 Conn. Sup. 154, 160, 703 A.2d 808 (1997).

The defendant attached portions of Denise Mollica’s deposition to his motion for summary judgment. During the deposition, she stated that in 2000 and the beginning 2001, she and her children were getting sick. Counsel asked when she “began to assume that the mold that was there was causing some illness?” Denise Mollica responded that this occurred at some point in 2001. She stated that during 2001, her physician asked her questions about mold and her blood tests and a biopsy of her sinus revealed a toxic mold count in her body. She also stated: “And the biopsy that they took was a toxic mold, and that mold is only contracted through indoors with sheetrock, and that is when we started thinking and talking about it.” Denise Mollica was unable to recall specifically when in 2001 this discussion occurred. She later stated, however, that in August, 2001, after her son was diagnosed with meningitis, she concluded that the mold “was causing medical problems for [her] and [her] family.”

“When applying § 52-584 to determine whether an action was timely commenced, this court has held that an injury occurs when a party suffers some form of actionable harm. . . . Actionable harm occurs when the plaintiff discovers . . . that he or she has been injured and that the defendant’s conduct caused such injury. . . . The statute begins to run when the plaintiff discovers some form of actionable harm, not the fullest manifestation thereof. . . . The focus is on the plaintiffs knowledge of facts, rather than on discovery of applicable legal theories.” (Internal quotation marks omitted.) Rosato v. Mascardo, supra, 82 Conn. App. 404-405. In the present case, the plaintiffs became aware of their injuries from the mold in 2001. To comply with the two year statute of limitations, they were required to commence their action no later than 2003. The plaintiffs’ action, however, was not commenced until the end of 2005, well outside of the statute of limitations. Additionally, as we have noted, “as a matter of law, [the continuing course of conduct doctrine applies] only to the repose portion of the statute and not to the discovery portion. The discovery portion addresses the plaintiffs knowledge of the injury and not the defendant’s act or omission. Once the plaintiff has discovered [the] injury, the statute begins to run. Moreover, after the discovery of actionable harm, the policy behind [the continuing course of conduct doctrine] is no longer served.” Id., 405. Accordingly, the continuing course of conduct doctrine does not apply, and the court properly concluded that the plaintiffs’ action was barred by the application of § 52-584. Summary judgment in favor of the defendant was properly rendered in this case.

The judgment is affirmed.

In this opinion the other judges concurred.

       Specifically, the plaintiffs’ complaint set forth the following: “As a direct and proximate result of the negligence and carelessness of the defendant, the plaintiffs suffered serious personal injuries including: (a) for the plaintiff Denise Mollica sinusitis, headaches, air flow obstruction, dizziness, shortness of breath, chronic cough, chest tightness, fatigue, sore throats, muscle and joint pain, anxiety and panic attacks, skin rashes and hives and nausea and vomiting; (b) for the plaintiff Alexa Mollica headaches, chronic strep throat, pinkeye, skin rashes, nose bleeds, congestion, and stomach pain; (c) for the plaintiff Daniel Mollica chronic strep throat, nose bleeds, congestion, and pinkeye, all of which injuries to each plaintiff caused them severe pain and suffering and is or likely will be permanent in nature.”

       “When the wrong sued upon consists of a continuing course of conduct, the statute does not begin to run until that course of conduct is completed. . . . [I]n order [tjo support a finding of a continuing course of conduct that may toll the statute of limitations there must be evidence of the breach of a duty that remained in existence after commission of the original wrong related thereto. That duty must not have terminated prior to commencement of the period allowed for bringing an action for such a wrong. . . . Where [our Supreme Court has] upheld a finding that a duty continued to exist after the cessation of the act or omission relied upon, there has been evidence of either a special relationship between the parties giving rise to such a continuing duty or some later wrongful conduct of a defendant related to the prior act.” (Internal quotation marks omitted.) Sinotte v. Waterbury, 121 Conn. App. 420, 440, 995 A.2d 131, cert. denied, 297 Conn. 921, 996 A.2d 1192 (2010).

       The defendant also argues that because the plaintiffs failed to plead the continuing course of conduct doctrine, we need not review their claim. He directs our attention to Beckenstein Enterprises-Prestige Park, LLC v. Keller, 115 Conn. App. 680, 688, 974 A.2d 764, cert. denied, 293 Conn. 916, 979 A.2d 488 (2009), where we stated that “the continuing course of conduct doctrine is a matter that must be pleaded in avoidance of a statute of limitations special defense. ” See also Bellemare v. Wachovia Mortgage Corp., 94 Conn. App. 593, 607 n.7, 894 A.2d 335 (2006), aff'd, 284 Conn. 193, 931 A.2d 916 (2007); Practice Book § 10-57.
      The defendant, however, failed to present this argument to the trial court. As stated previously, the plaintiffs first raised the issue of the continuing course of conduct doctrine in their objection to the defendant’s motion for summary judgment. Although the defendant disputed the applicability of the continuing course of conduct doctrine, he did not argue that this doctrine was foreclosed to the plaintiffs as a result of their failure to plead it pursuant to Practice Book § 10-57.
      Unlike the facts of the present case, the trial court in Beckenstein specifically had concluded that the continuing course of conduct doctrine was inapplicable because the plaintiffs had failed to plead it. See Beckenstein Enterprises-Prestige Park, LLC v. Keller, supra, 115 Conn. App. 689. Additionally, we noted that “our Supreme Court has previously . . . afforded trial courts discretion to overlook violations of the rules of practice and to review claims brought in violation of those rules as long as the opposing party has not raised a timely objection to the procedural deficiency. Schilberg Integrated Metals Corp. v. Continental Casualty Co., 263 Conn. 245, 273, 819 A.2d 773 (2003).” (Emphasis added; internal quotation marks omitted.) Beckenstein Enterprises-Prestige Park, LLC v. Keller, supra, 689. Further, this court in Bellemare reviewed the claim regarding the continuing course of conduct doctrine even though it had not been raised in the plaintiffs pleading. Bellemare v. Wachovia Mortgage Corp., supra, 94 Conn. App. 607. For these reasons, in the absence of a timely objection to the failure to plead the continuing course of conduct doctrine, we will review the merits of the plaintiffs’ appeal.

       The plaintiffs also argue that a genuine issue of material fact exists as to whether they suffered an actionable harm before 2003, when they discovered the mold and water damage that previously had been hidden. On the basis of the testimony of Denise Mollica at her deposition, and case law setting forth when a party suffers actionable harm, we conclude that no such genuine issue of material fact exists.


author: PER CURIAM.

text:
    GARY WARREN LAWSON v. COMMISSIONER OF MOTOR VEHICLES
    (AC 33321)
    DiPentima, C. X, and Alvord and Bear, Js.

      Argued January 19
    officially released April 3, 2012

      Gary Warren Lawson, pro se, the appellant (plaintiff).

      Eileen Meskill, assistant attorney general, with whom, on the brief, was George Jepsen, attorney general, for the appellee (defendant).
   Opinion

PER CURIAM.

The plaintiff, Gary Warren Lawson, appeals from the trial court’s judgment affirming the determination of the hearing officer of the defendant, the commissioner of motor vehicles, to suspend the plaintiffs motor vehicle license. On appeal, the plaintiff claims that the trial court erred when it determined that it lacked subject matter jurisdiction to hear his appeal because he faded to file his appeal before the expiration of the forty-five day period pursuant to General Statutes § 4-183 (c). We affirm the judgment of the trial court.

The following facts and procedural history are relevant to the plaintiffs appeal. The plaintiff was arrested by officers from the Derby police department for operating a motor vehicle while under the influence of intoxicating liquor or drugs in violation of General Statutes § 14-227a. Upon arrest, the plaintiff was transported to the Derby police station where he was advised of his Miranda rights and of the implied consent law. Pursuant to General Statutes § 14-227b (b), the plaintiff was informed that he could either submit to a breathalyzer test or other sobriety tests or his license would be suspended by the defendant for six months. The plaintiff refused to take the tests requested by the police.

Thereafter, the Derby police department forwarded a written report of the plaintiffs refusal to take the sobriety tests to the defendant. The defendant subsequently began the process of suspending the plaintiffs license. The plaintiff requested an administrative hearing. The hearing first was scheduled for August 11, 2009, but after the plaintiff requested additional time to subpoena witnesses, the hearing was continued. The hearing was rescheduled for August 28, 2009.

Following the hearing, the hearing officer found that the police had probable cause to arrest the plaintiff, that the plaintiff refused sobriety tests and that the plaintiff had been operating his motor vehicle when arrested. The hearing officer therefore suspended the plaintiffs license for six months. The plaintiff petitioned the defendant for reconsideration of the decision on September 16, 2009. The defendant denied the petition on September 29, 2009. On November 12, 2009, the plaintiff filed a recognizance bond in the clerk’s office of the Superior Court in the judicial district of Ansonia-Milford (clerk’s office), but he failed to file his administrative appeal. On November 24, 2009, the plaintiff moved for indigent status, which was granted. The plaintiff filed his appeal with the clerk’s office, as well as his appearance, on November 27, 2009.

At the hearing on the merits, the plaintiff did not dispute that his time to appeal the decision of the hearing officer expired pursuant to § 4-183 (c) (2) on November 12, 2009. The plaintiff claimed, however, that he had filed his appeal contemporaneously with his paying the recognizance bond on November 12, 2009. In support of this claim, the plaintiff argued that the clerk’s office would not accept a bond without his filing an appeal. In response, the court provided the plaintiff with an opportunity to present evidence as to the customary practices of the clerk’s office in accepting recognizance bonds and as to whether the clerk’s office had any information, such as a log book, that would provide support for the plaintiffs argument. The court provided the plaintiff with a deadline of February 14, 2011, by which to produce the evidence.

On February 28, 2011, two weeks after the deadline set by the court, the plaintiff provided the court with a personal affidavit. The affidavit stated that the plaintiff had spoken to the clerk who had provided him with the original receipt for his recognizance bond and that the clerk was unable to provide any log book, copy, or other evidence to support the plaintiffs allegation that he timely filed his appeal. The affidavit did not provide information regarding the usual protocol of the clerk’s office with regard to accepting recognizance bonds as requested by the court.

On March 16, 2011, the court issued a memorandum of decision in which it determined that it lacked subject matter jurisdiction over the plaintiffs appeal because the appeal was filed after the expiration of the forty-five day statutory appeal period pursuant to § 4-183 (c) (2). This appeal followed.

The plaintiff argues that the trial court erred when it concluded that it lacked subject matter jurisdiction to hear the plaintiffs appeal due to the plaintiffs failure to file his appeal before the expiration of the statutory period. We disagree.

We set forth the applicable standard of review. “Appeals to courts from administrative agencies exist only under statutory authority. ... A statutory right to appeal may be taken advantage of only by strict compliance with the statutory provisions by which it is created. . . . Such provisions are mandatory, and, if not complied with, the appeal is subject to dismissal. . . . The failure to file an appeal from an administrative decision within the time set by statute renders the appeal invalid and deprives the courts of jurisdiction to hear it.” (Emphasis in original; internal quotation marks omitted.) Hefti v. Commission on Human Rights & Opportunities, 61 Conn. App. 270, 273, 763 A.2d 688, cert. denied, 255 Conn. 948, 769 A.2d 62 (2001).

“In cases involving administrative appeals, even where appellants may have been misled by the actions or inactions of employees of the clerk’s office, our Supreme Court has not deviated from the established principles of strict compliance. . . . While the trial court can show some degree of leniency toward a party when there is evidence that it was misguided by court personnel, the court cannot disregard established and mandatory requirements which circumscribe jurisdiction in the first instance. . . . The forty-five day filing requirement of § 4-183 (c) is a mandatory jurisdictional requirement.” (Citations omitted; internal quotation marks omitted.) Id., 274.

The plaintiff argues that he filed his appeal by paying a recognizance bond and handing a copy of his appeal to the clerk of the court. The court, however, made a finding to the contrary. The court found that the filing of the bond did not constitute a “filing” with the clerk of the court and that the appeal was not filed until November 27,2009. “Questions of fact are subject to the clearly erroneous standard of review. ... A finding of fact is clearly erroneous when there is no evidence in the record to support it ... or when although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed. . . . Because it is the trial court’s function to weigh the evidence and determine credibility, we give great deference to its findings. ... In reviewing factual findings, [w]e do not examine the record to determine whether the [court] could have reached a conclusion other than the one reached. . . . Instead, we make every reasonable presumption ... in favor of the trial court’s ruling.” (Internal quotation marks omitted.) Murtha v. Hartford, 303 Conn. 1, 12-13, 35 A.3d 177 (2011). The plaintiff argues that the court ignored or misconstrued his personal affidavit, and thus the court erred in finding that the appeal was filed untimely. It was within the court’s discretion, however, to weigh the evidence or lack thereof. We therefore cannot conclude that the court’s finding that the plaintiff’s appeal was filed untimely was clearly erroneous. Accordingly, the court lacked subject matter jurisdiction to hear the plaintiffs appeal.

The judgment is affirmed.

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

       General Statutes § 14-227b provides in relevant part: “(a) Any person who operates a motor vehicle in this state shall be deemed to have given such person’s consent to a chemical analysis of such person’s blood, breath or urine and, if such person is a minor, such person’s parent or parents or guardian shall also be deemed to have given their consent.
      “(b) If any such person, having been placed under arrest for operating a motor vehicle while under the influence of intoxicating liquor or any drug or both, and thereafter, after being apprised of such person’s constitutional rights, having been requested to submit to a blood, breath or urine test at the option of the police officer, having been afforded a reasonable opportunity to telephone an attorney prior to the performance of such test and having been informed that such person’s license or nonresident operating privilege may be suspended in accordance with the provisions of this section if such person refuses to submit to such test, or if such person submits to such test and the results of such test indicate that such person has an elevated blood alcohol content, and that evidence of any such refusal shall be admissible in accordance with subsection (e) of section 14-227a and may be used against such person in any criminal prosecution, refuses to submit to the designated test, the test shall not be given; provided, if the person refuses or is unable to submit to a blood test, the police officer shall designate the breath or urine test as the test to be taken. The police officer shall make a notation upon the records of the police department that such officer informed the person that such person’s license or nonresident operating privilege may be suspended if such person refused to submit to such test or if such person submitted to such test and the results of such test indicated that such person had an elevated blood alcohol content.”

       General Statutes § 4-183 (c) provides in relevant part: “(1) Within forty-five days after mailing of the final decision under section 4-180 ... or (2) within forty-five days after the agency denies a petition for reconsideration of the final decision pursuant to subdivision (1) of subsection (a) of section 4-181a ... a person appealing as provided in this section shall serve a copy of the appeal on the agency that rendered the final decision at its office or at the office of the Attorney General in Hartford and file the appeal with the clerk of the superior court for the judicial district of New Britain or for the judicial district wherein the person appealing resides or, if that person is not a resident of this state, with the clerk of the court for the judicial district of New Britain. Within that time, the person appealing shall also serve a copy of the appeal on each party fisted in the final decision at the address shown in the decision, provided failure to make such service within forty-five days on parties other than the agency that rendered the final decision shall not deprive the court of jurisdiction over the appeal . . . .”

       The court proceeded to analyze the merits of the plaintiff’s claim, however, “[o]nce it becomes clear that the trial court lacked subject matter jurisdiction to hear the [action], any further discussion of the'merits is pure dicta. ” (Internal quotation marks omitted.) PHH Mortgage Corp. v. Cameron, 130 Conn. App. 238, 242, 22 A.3d 1282 (2011).


text:
    MTGLQ INVESTORS, L.P. v. LEMLEM EGZIABHER ET AL.
    (AC 33063)
    Beach, Robinson and Bear, Js.
    Submitted on briefs January 13
    officially released April 3, 2012

      Matthew G. Berger, filed a brief for the appellant (named defendant).

      Andrew P. Barsom, filed a brief for the appellee (plaintiff).
   Opinion

PER CURIAM.

The defendant Lemlem Egziabher appeals from the deficiency judgment rendered by the trial court in favor of the plaintiff, MTGLQ Investors, L.P., in the amount of $200,286.86. On appeal, the defendant claims that, although the court reduced the amount of the deficiency claimed by the plaintiff, the court erred by declining to reduce the deficiency judgment further. She claims that there was an inordinately long delay between the institution of the action and the deficiency judgment, and that during that time interest accumulated. The defendant claims, therefore, that the end result was inequitable. We affirm the judgment of the trial court.

On March 6, 2009, the plaintiff commenced a foreclosure action, alleging that the defendant was in default on a note for $401,475 secured by a mortgage on property located at 64-56 Broadway in Norwich, which note and mortgage were assigned to the plaintiff. On March 18, 2009, counsel for the defendant filed motions for an extension of time of thirty days to file a responsive pleading, which was granted on March 30, 2009, and for referral to the foreclosure mediation program, which was denied. On July 24, 2009, the plaintiff filed a motion for default for failure to plead, which was granted on July 31, 2009, and a demand for disclosure of defense. The defendant did not disclose a defense. The court subsequently granted the plaintiff’s motion for a judgment of strict foreclosure on April 5, 2010, to which motion the defendant did not object. The plaintiff then filed a motion for a deficiency judgment pursuant to General Statutes § 49-14 on June 26, 2010, to which motion the defendant filed an objection on July 7, 2010. The court held a hearing on December 20,2010, at which hearing it granted the plaintiffs motion, but reduced the amount of the requested deficiency judgment from $218,232.85 to $200,286.85. The defendant had requested that the deficiency be reduced more.

“[A] deficiency proceeding has a very limited purpose. . . . [T]he court, after hearing the party’s appraisers, determines the value of the property and calculates any deficiency. This deficiency judgment procedure presumes the amount of the debt as established by the foreclosure judgment and merely provides for a hearing on the value of the property. . . . The deficiency hearing concerns the fair market value of the subject property as of the date title vests in the foreclosing plaintiff under [General Statutes] § 49-14.” (Internal quotation marks omitted.) Brownstein v. Spilke, 117 Conn. App. 761, 765, 982 A.2d 198 (2009), cert. denied, 294 Conn. 927, 986 A.2d 1053 (2010).

“[A] trial court in foreclosure proceedings has discretion, on equitable considerations and principles, to withhold foreclosure or to reduce the amount of the stated indebtedness.” Hamm v. Taylor, 180 Conn. 491, 497, 429 A.2d 946 (1980). A request for a deficiency judgment is part of a foreclosure action. People’s Bank v. Bilmor Building Corp., 28 Conn. App. 809, 821-22, 614 A.2d 456 (1992). We review mortgage foreclosure appeals under the abuse of discretion standard. Franklin Credit Management Corp. v. Nicholas, 73 Conn. App. 830, 838, 812 A.2d 51 (2002), cert. denied, 262 Conn. 937, 815 A.2d 136 (2003). “The determination of what equity requires is a matter for the discretion of the trial court. ... In determining whether the trial court has abused its discretion, we must make every reasonable presumption in favor of the correctness of its action. . . . Our review of a trial court’s exercise of the legal discretion vested in it is limited to the questions of whether the trial court correctly applied the law and could reasonably have reached the conclusion that it did.” (Internal quotation marks omitted.) Id.

The defendant argues that she “deliberately did nothing to delay this case from reaching a judgment, filing no answer or defenses,” and that “[d]espite this lack of opposition it took the [pjlaintiff over one year to obtain a judgment, and nearly eight more months to obtain the deficiency judgment, while a per diem interest amount of $99.70 was running the entire time.” The plaintiffs counsel explained at the hearing that, because of the nature of the property, the appraiser took “a long time” to develop an appraisal. Additionally, the defendant’s counsel informed the court that the hearing on the deficiency judgment was marked off at his request due to his vacation plans.

The court exercised its equitable powers to modify the terms of the requested deficiency judgment, such that the court deducted 180 days of interest to reduce the judgment from $218,232.85 to $200,286.85. The court reasoned: “I’m not deducting anything on postjudgment interest in light of the fact that the [defendant’s] counsel requested a continuance of the hearing on the motion for a deficiency judgment. However . . . there was no reasonable explanation for the substantial period of time that it took [for the plaintiff to get judgment], and that’s based on the court’s equitable powers.”

Both parties agree that the standard of review on appeal is abuse of discretion. It was not unreasonable for the court to exercise its equitable powers to reduce the deficiency judgment by 180 days of interest, and it is clear that the court considered and balanced the equities. Accordingly, we conclude that the defendant has not demonstrated that the court abused its discretion by declining to reduce the judgment further.

The judgment is affirmed.

       Also named as a defendant in this action was 54-56 Broadway, LLC. Because it is not a party to this appeal, we refer in this opinion to Egziabher as the defendant.

       This amount was calculated by adding the judgment debt as of April 5, 2010, attorney’s fees at the time of judgment, interest from the date of judgment to the date title vested in the plaintiff, additional attorney’s fees on deficiency, costs on the original judgment and an additional appraiser’s fee, which calculation totaled $490,193.44. The established value of the property, $283,500, was then deducted from that total, and interest from the date title vested to the date of the deficiency judgment was added to establish a total proposed deficiency of $218,232.85.

       Neither party has claimed on appeal that the court did not have discretion to render judgment in a lesser amount than that claimed by the plaintiff.