author: SCHALLER, J.

text:
    LEO BOMBALICKI v. NICHOLAS PASTORE ET AL.
    (AC 21719)
    Lavery, C. J., and Schaller and West, Js.

      Argued May 6 —
    officially released August 27, 2002

      John R. Williams, for the appellant (plaintiff).

      Thomas W. Ude, Jr., corporation counsel, for the appellees (defendants).
   Opinion

SCHALLER, J.

The plaintiff, Leo Bombalicki, appeals from the judgment of the trial court denying his request for injunctive relief as to the first count of his complaint and directing a verdict on the second count in favor of the defendants, Nicholas Pastore, the former chief of the police department of the city of New Haven, the city of New Haven (city) and the board of police commissioners of the city of New Haven (board). On appeal, the plaintiff claims that the court improperly (1) granted the defendants’ motion for a directed verdict and (2) denied injunctive relief. We affirm the judgment of the trial court.

The following facts are necessary for our resolution of the plaintiffs appeal. The plaintiff enrolled in the New Haven police department in 1978 and was promoted to the rank of sergeant in 1991. In 1993, the plaintiff took the civil service examination for promotion to lieutenant and was given a rank of nine on the list of the results of the examination. On September 27, 1994, the board promoted nineteen of the top twenty-five candidates on the basis of Pastore’s recommendation. The plaintiff was not among the nineteen promoted.

Thereafter, the plaintiff brought an action against the defendants to contest their failure to promote him. The amended complaint contained two counts. The first count alleged that the defendants’ failure to promote him violated the New Haven charter provision that governed the promotion system. The second count alleged intentional infliction of emotional distress. The allegation as to the charter violation was tried to the court, and the allegation of intentional infliction of emotional distress simultaneously was tried to the jury.

At the close of the plaintiffs case, the court granted the defendants’ motion for a directed verdict on the second count. The court then heard argument on the first count and concluded that the September, 1994 promotion list violated the city’s charter. The court, however, did not award the plaintiff injunctive relief. The court ruled that because the plaintiff in October, 2000, had been promoted to lieutenant, there no longer was any meaningful declaratory or injunctive relief that the court could award him. The court therefore rendered judgment for the defendants, and this appeal followed. Additional facts will be set forth as necessary.

I

The plaintiff first claims that the trial court improperly granted the defendants’ motion for a directed verdict on the second count, which alleged intentional infliction of emotional distress. Specifically, the plaintiff argues that the jury could have concluded that Pastore’s failure to recommend the plaintiff for promotion was “extreme and outrageous” conduct, as defined by the law regarding intentional infliction of emotional distress.

The following additional facts are necessary for our resolution of the plaintiff’s claim. After the plaintiff took the civil service examination and was assigned a rank of nine, the New Haven Register newspaper reported that Pastore planned on promoting nineteen officers and that the plaintiff was one of a number of officers who were on the list of those to be promoted. Subsequent to that report, however, Pastore passed over the plaintiff and failed to recommend him for promotion. Testimony during the trial revealed that the plaintiff and Pastore did not like one another. The source of strife between the parties was the plaintiffs criticism of Pastore’s leadership of the police department. One police officer testified that Pastore had stated, “ ‘[T]hat kid will never be a lieutenant as long as I’m chief.’ ” The plaintiff maintained that because Pastore did not like him, Pastore had blacklisted him and passed him over for promotion despite his qualifications.

At the close of the plaintiffs case, the defendants requested a directed verdict in their favor. In ruling on the motion, the court stated that the “law that is controlling requires that there be an extraordinary degree of humiliation and degradation before the tort . . . kicks in. And I do not believe that the evidence in this case, looked at in the light most favorable to the plaintiff, meets this threshold. Looking at . . . the evidence in this case in the light most favorable to the plaintiff, the jury could arguably, and I emphasize arguably, infer that [the plaintiff] was denied promotion in part because of criticisms he had made. . . . But even if the jury could make that inference, the failure to promote here was simply a failure to promote. There is testimony . . . that the chief said . . . ‘that kid will never be a lieutenant as long as I’m chief.’ But it is unaccompanied by—that statement by itself was unaccompanied by any derogatory language or any allegation of malfeasance or anything like that. . . . With respect to . . . Pastore ... I take it [the plaintiffs counsel’s] argument, of which I appreciated its force, is that assuming hypothetically that there was the forbidden motivation, that that motivation coupled perhaps with the remarks . . . that are in the evidence was sufficiently outrageous to pass the test. And reading the cases as carefully as I can, I do not see, using my best judgment, that that does pass the test.” The court therefore granted the defendants’ motion for a directed verdict.

At the outset, we note our standard of review. “The standard of review of directed verdicts is well settled. A directed verdict is justified if on the evidence the jury could not reasonably and legally have reached any other conclusion. ... In reviewing the trial court’s action in directing a verdict for [the defendants], we must consider the evidence in the light most favorable to the plaintiff.” (Citations omitted; internal quotation marks omitted.) Zanoni v. Hudon, 48 Conn. App. 32, 36, 708 A.2d 222, cert. denied, 244 Conn. 928, 711 A.2d 730 (1998).

We also note the law relevant to an allegation of intentional infliction of emotional distress. “In order for the plaintiff to prevail in a case for liability under . . . [intentional infliction of emotional distress], four elements must be established. It must be shown: (1) that the actor intended to inflict emotional distress or that he knew or should have known that emotional distress was the likely result of his conduct; (2) that the conduct was extreme and outrageous; (3) that the defendant’s conduct was the cause of the plaintiffs distress; and (4) that the emotional distress sustained by the plaintiff was severe. . . . Whether a defendant’s conduct is sufficient to satisfy the requirement that it be extreme and outrageous is initially a question for the court to determine. . . . Only where reasonable minds disagree does it become an issue for the jury.

“Liability for intentional infliction of emotional distress requires conduct that exceeds all bounds usually tolerated by decent society .... Liability has been found only where the conduct has been so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized community. Generally, the case is one in which the recitation of the facts to an average member of the community would arouse his resentment against the actor, and lead him to exclaim, Outrageous! . . . Conduct on the part of the defendant that is merely insulting or displays bad manners or results in hurt feelings is insufficient to form the basis for an action based upon intentional infliction of emotional distress.” (Citations omitted; internal quotation marks omitted.) Appleton v. Board of Education, 254 Conn. 205, 210-11, 757 A.2d 1059 (2000).

Viewing the evidence in the light most favorable to the plaintiff, we conclude that Pastore’s conduct did not constitute extreme and outrageous conduct. In so doing, we first summarize the relevant evidence adduced at trial and define Pastore’s conduct. First, it was clear that the plaintiff and Pastore did not like each other. Pastore had discussed his relationship with the plaintiff on occasion with fellow officers. The fact that the plaintiff and Pastore were at odds was known to some degree generally in the police department. The plaintiff had received a rank on the civil service examination that made him eligible for a promotion. The New Haven Register reported that Pastore had planned to recommend nineteen officers for promotion. The article also stated, in essence, that if Pastore followed the test results, which he had done in the past, the plaintiff was among those on the list of officers to be promoted. Pastore ultimately did not recommend the plaintiff for promotion. Furthermore, it is obvious that the discordant relationship played into Pastore’s decision to pass over the plaintiff and not recommend him for promotion. When taken in sum, the evidence indicates that Pastore’s conduct with respect to the plaintiff included expressing his dislike of the plaintiff, talking about the plaintiff unfavorably to other officers, opposition to the plaintiffs promotion and an ultimate decision not to recommend the plaintiff for promotion.

Viewing that evidence in a light in most favorable to the plaintiff, we cannot conclude that Pastore’s conduct was extreme and outrageous. Although the evidence revealed that Pastore did not hold the plaintiff in high regard, spoke ill of him and did not want to promote him, such conduct in this case does not go “beyond all possible bounds of decency,” cannot be regarded as “atrocious,” and is not “utterly intolerable in a civilized community.” (Internal quotation marks omitted.) Id., 211. Although the conduct was insulting and likely to result in hurt feelings, such conduct is insufficient to form the basis for an action in intentional infliction of emotional distress. As the court correctly stated, “[t]he failure to promote here was simply a failure to promote.” Moreover, as a practical matter, the plaintiffs own conduct contributed to the hostile relationship with Pastore because he was outspoken in his criticism of Pastore’s leadership of the police department. In that context, Pastore’s conduct, namely, his statements regarding the plaintiff and his failure to recommend the plaintiff for promotion, was hardly extreme and outrageous.

Additionally, the plaintiff argues that it was distressing for him to anticipate promotion on the basis of the newspaper report and then leam that he was not going to receive a promotion. The contents of the New Haven Register article, however, cannot be construed to be conduct by Pastore. The newspaper article did not include a quotation or confirmation from Pastore that the plaintiff was to receive a promotion. In fact, the article indicated that efforts to reach Pastore for comment were unsuccessful.

Because we conclude that the evidence, when viewed in the light most favorable to the plaintiff, established that the jury could not reasonably and legally have reached any other conclusion except that he had failed to prove extreme and outrageous conduct, we conclude that the court properly granted the defendants’ motion for a directed verdict as to the second count of the complaint.

II

The plaintiff also claims that the court improperly denied him injunctive relief.

The following additional facts are necessary for our resolution of the plaintiffs claim. After concluding that the defendants had violated the city charter by not promoting the plaintiff, the court did not order injunc-tive relief because the plaintiff in October, 2000, had been promoted to lieutenant. The court stated that “[i]n the case of an employee unfairly considered for a promotion, a judicial order of retroactive promotion would award more than the employee was entitled to before the wrong was committed.” (Emphasis in original.) The court further stated that the only remedy to which the plaintiff was entitled for the defect in the promotion process was an order for reconsideration after the defect has been corrected. The court concluded, however, that it could not offer the plaintiff any meaningful declaratory or injunctive relief because a prospective order to be fairly considered for the promotion would be meaningless in view of the fact that he already had been promoted.

We decline to review the plaintiffs claim that the failure to award any relief was improper because the plaintiff has failed to brief the issue adequately. The plaintiffs principal brief concerning his claim includes two paragraphs that contain no standard of review, no applicable law or authority and no analysis of the claim.

The plaintiffs brief merely asserts, in essence, that the court “suffered from an uncharacteristic failure of imagination” in ruling as it did. We fail to discern the legal argument in that statement. Additionally, although the brief states that equitable relief was available, it fails to provide any analysis or to request any specific relief. Instead, the plaintiff offers one example of what the court could have done and then concludes that other possible remedies could have been devised “with a modicum of thought.” Moreover, although the plaintiff states that the court “erroneously thought that no remedies were available” and therefore did not exercise its discretion, it is evident from the memorandum of decision that the court considered the equitable remedies and concluded that equity did not require further action.

As we have stated previously, “[w]e are not required to review issues that have been improperly presented to this court through an inadequate brief. . . . Anaiy-sis, rather than mere abstract assertion, is required in order to avoid abandoning an issue by failure to brief the issue properly. . . . We will not review claims absent law and analysis.” (Internal quotation marks omitted.) Legnos v. Legnos, 70 Conn. App. 349, 355, 797 A.2d 1184, cert. denied, 261 Conn. 911, 806 A.2d 48 (2002).

The judgment is affirmed.

In this opinion the other judges concurred.

       Although the city’s ranking and promotion system was relevant to the determination of the plaintiffs allegation that the defendants violated the charter by failing to promote him, we need not address the plaintiffs rank or the promotion system further because of our resolution of the plaintiffs second claim.

       The plaintiff subsequently was promoted to lieutenant in October, 2000.


source: Caselaw Access Project

author: FLYNN, J.

license: Public Domain

text:
    FRANCES SEGRETO v. CITY OF BRISTOL
    (AC 22081)
    Foti, Mihalakos and Flynn, Js.
    Argued May 6 —
    officially released August 27, 2002

      Donald R. Holtman, for the appellant (plaintiff).

      Daniel C. DeMerchant, for the appellee (defendant).
   Opinion

FLYNN, J.

In this negligence action, the plaintiff, Frances Segreto, appeals from the judgment of the trial court rendered following the granting of the motion for summary judgment filed by the defendant city of Bristol (city) on its special defense of governmental immunity. The sole issue on appeal is whether the trial court properly determined that the city was entitled to judgment as a matter of law because the plaintiffs complaint alleged that the city negligently had performed a discretionary act, rather than a ministerial act, and the city was, therefore, immune from liability pursuant to General Statutes § 52-557n (a) (2) (B). We answer that question in the affirmative and affirm the judgment of the trial court.

The following facts and procedural history are relevant to our resolution of this appeal. The plaintiff filed a one count complaint against the city, alleging that she had sustained injuries in a fall on a stairway located on the premises of a senior center that was owned and operated by the city. She further alleged that her fall and resulting injuries were due to the negligence of the city or its employees.

The city filed an answer, denying that it was negligent in any of the ways alleged by the plaintiff, and three special defenses, one of which was that the plaintiffs claim was barred by the doctrine of governmental immunity both at common law and pursuant to § 52-557n. Thereafter, the city filed a motion for summary judgment claiming that it was entitled to judgment as a matter of law on its special defense of governmental immunity. Along with its motion for summary judgment, the city submitted the affidavit of Steven Rybczyk, the city’s claims and loss coordinator, who attested that although the city was responsible for the inspection, maintenance and repair of the stairway, it did not have a policy or procedure in place for maintaining, inspecting or repairing the stairway, except for snow and ice removal. The court granted the city’s motion for summary judgment on the ground of governmental immunity after concluding as a matter of law that the plaintiffs complaint alleged that the city negligently had performed a discretionary act, rather than a ministerial act, and that her claim did not fit within the identifiable person-imminent harm exception to the qualified immunity from liability that a city enjoys for the discretionary acts of its employees. This appeal followed.

Before we turn to the issue raised by the plaintiff in this appeal, we first set forth the applicable standard of review. “[W]e note that [t]he standard of review of a trial court’s decision to grant a motion for summary judgment is well established. Practice Book [§ 17-49] provides that summary judgment shall be rendered forthwith if the pleadings, affidavits and any other proof submitted show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. In deciding a motion for summary judgment, the trial court must view the evidence in the light most favorable to the nonmoving party.” (Internal quotation marks omitted.) Elliott v. Waterbury, 245 Conn. 385, 391, 715 A.2d 27 (1998). “The party seeking summary judgment has the burden of showing the absence of any genuine issue [of] material facts which, under applicable principles of substantive law, entitle him to a judgment as a matter of law . . . and the party opposing such a motion must provide an evidentiary foundation to demonstrate the existence of a genuine issue of material fact.” (Citation omitted; internal quotation marks omitted.) Rivera v. Double A Transportation, Inc., 248 Conn. 21, 24, 727 A.2d 204 (1999).

“The scope of our appellate review depends upon the proper characterization of the rulings made by the trial court. . . . When . . . the trial court draws conclusions of law, our review is plenary and we must decide whether its conclusions are legally and logically correct and find support in the facts that appear in the record.” (Internal quotation marks omitted.) New Haven Savings Bank v. LaPlace, 66 Conn. App. 1, 6, 783 A.2d 1174, cert. denied, 258 Conn. 942, 786 A.2d 426 (2001). Because the court in the present case rendered judgment for the city as a matter of law after finding that the complaint alleged that the city had negligently failed to perform a discretionary function, our review is plenary.

We now turn to the merits of the plaintiffs claim that the court improperly determined that because her complaint alleged that the city negligently had failed to perform a discretionary act, the city was immune from liability pursuant to § 52-557n (a) (2) (B). She argues that the city’s failure to maintain its premises in a reasonably safe condition, as a matter of law, 6 constitutes the failure to perform a ministerial function and, therefore, that the city was hable pursuant to § 52-557n (a) (1) (A) for injuries resulting from its failure to do so. She further argues that although the decision to devote public property to recreational use is discretionary in nature, the duty to maintain the property so devoted in a reasonably safe condition is always ministerial. We disagree.

“A municipality itself was generally immune from liability for its tortious acts at common law .... Gordon v. Bridgeport Housing Authority, [208 Conn. 161, 165, 544 A.2d 1185 (1988)]. Governmental immunity may, however, be abrogated by statute. The state legislature possesses the authority to abrogate any governmental immunity that the common law gives to municipalities. Ryszkiewicz v. New Britain, 193 Conn. 589, 593, 479 A.2d 793 (1984). The general rule developed in the case law is that a municipality is immune from liability unless the legislature has enacted a statute abrogating that immunity. Williams v. New Haven, [243 Conn. 763, 766-67, 707 A.2d 1251 (1998)]. Statutes that abrogate or modify governmental immunity are to be strictly construed. . . . This rule of construction stems from the basic principle that when a statute is in derogation of common law or creates a liability where formerly none existed, it should receive a strict construction and is not to be extended, modified, repealed or enlarged in its scope by the mechanics of construction. . . . Rawling v. New Haven, 206 Conn. 100, 105, 537 A.2d 439 (1988). The court is to go no faster and no further than the legislature has gone. ... A legislative intention not expressed in some appropriate manner has no legal existence. Edmundson v. Rivera, 169 Conn. 630, 633, 363 A.2d 1031 (1975). ... The legislature . . . has set forth general principles of municipal liability and immunity in General Statutes § 52-557n. Williams v. New Haven, [supra, 767].

“Section 52-557n abrogates the common-law rule of governmental immunity and sets forth the circumstances in which a municipality is liable for damages to person and property. These circumstances include the negligent acts or omissions of the political subdivision or its employees or agents, negligence in the performance of functions from which the political subdivision derives a special corporate profit or pecuniary benefit and acts which constitute the creation or participation in the creation of a nuisance. General Statutes § 52-557n (a). The section goes on to exclude liability for acts or omissions of any employee or agent which constitute criminal conduct, fraud, actual malice or wilful misconduct and negligent acts that involve the exercise of judgment or discretion. General Statutes § 52-557n (a). The statute farther sets forth ten other circumstances in which a municipality shall not be liable for damages to person or property. General Statutes § 52-557n (b).” (Internal quotation marks omitted.) Tryon v. North Branford, 58 Conn. App. 702, 720-21, 755 A.2d 317 (2000).

“While [a] municipality itself was generally immune from liability for its tortious acts at common law . . . its employees faced the same personal tort liability as private individuals. . . . [Under § 52-557n, however, like the municipality itself, a] municipal employee . . . has a qualified immunity in the performance of a governmental duty, but he may be liable if he misperforms a ministerial act, as opposed to a discretionary act.” (Citations omitted; internal quotation marks omitted.) Colon v. Board of Education, 60 Conn. App. 178, 180, 758 A.2d 900, cert. denied, 255 Conn. 908, 763 A.2d 1034 (2000). “The hallmark of a discretionary act is that it requires the exercise of judgment. On the other hand, ministerial acts are performed in a prescribed manner without the exercise of judgment or discretion as to the propriety of the action.” (Internal quotation marks omitted.) Id., 181.

Although the plaintiff relies on § 52-557n as the statutory source abrogating the city’s governmental immunity, she cites no language within that statute that may be fairly interpreted to stand for the proposition that a municipality’s failure to maintain its property in a reasonably safe condition is, as a matter of law, ministerial, and our review of the text of that statute reveals no such language. We refuse to read a provision into the statute that the legislature itself has not expressed.

Nor does the plaintiff cite any case law interpreting § 52-557n that supports her position. She cites our Supreme Court’s decision in Elliott v. Waterbury, supra, 245 Conn. 385, and this court’s decision in Salaman v. Waterbury, 44 Conn. App. 211, 687 A.2d 1318 (1997), rev’d, 246 Conn. 298, 717 A.2d 161 (1998), and claims that those cases demonstrate that whenever a municipality acts as a landowner, the failure to maintain its property is the failure of a ministerial duty. We conclude that neither of those cases supports the position advanced by the plaintiff.

In Elliott v. Waterbury, supra, 245 Conn. 385, the plaintiff administratrix sought to recover from, inter alia, the city of Waterbury for the death of her decedent who had been shot and killed by a hunter while jogging on reservoir land that was owned by the city but located in another town. Id., 389. The trial court rendered summary judgment in favor of the city on the ground of governmental immunity and the plaintiff appealed. Id., 409. The plaintiff argued that the alleged conduct of Waterbury did not constitute governmental acts entitled to immunity because it concerned a proprietary, as opposed to a public activity, namely, the operation of a water utility. Id., 412-13. Our Supreme Court explained that Waterbury’s allegedly tortious conduct, namely, its decision to open the watershed land to hunting and the manner in which it regulated that activity, was unconnected to its operation of a water utility and that it was apparent that that activity consisted of a set of policy decisions concerning the use of city land for recreational purposes, which the plaintiff conceded required the exercise of judgment and discretion. Id., 413-14. Our Supreme Court noted that there was no indication that Waterbury had received any corporate gain or benefit from allowing hunting on its property. Id., 414. Accordingly, it concluded that, as a matter of law, the conduct of which the plaintiff complained constituted governmental, and not proprietary, acts, which were discretionary in nature and protected by governmental immunity. Id.

We fail to see how the court’s determination in Elliott, that the city’s conduct in opening its land for recreational purposes and the manner in which it chose to regulate that activity was discretionary and protected by governmental immunity supports the plaintiffs conclusion that when a municipality acts as a landowner, the manner in which it maintains its property concerns a ministerial duty.

The plaintiff also relies on Salaman v. Waterbury, supra, 44 Conn. App. 211. In Salaman, the plaintiff, the administrator of the decedent’s estate, relied on premises liability as one of his theories of negligence against the city of Waterbury, claiming that the city was liable for the decedent’s drowning in a city owned reservoir. Id., 212-13. At the close of trial, the court instructed the jury on the applicable principles of premises liability. Id., 213. In its charge, the court explained that if the jury found that the plaintiffs decedent was a licensee, then the city owed him a duty of care. Id., 213-14. The jury returned a verdict in favor of the plaintiff, and the court granted the city’s motion to set aside the verdict and for judgment notwithstanding the verdict after concluding that the evidence was insufficient to impose liability on the city even if the jury had concluded that the plaintiffs decedent was a licensee. Id., 214. This court reversed the judgment of the trial court, concluding that it was improper for the court to set aside the verdict because the evidence was sufficient to establish that the city had constructive knowledge of the decedent’s presence on its property and, consequently, that he was a licensee. Id., 217-18. The plaintiff asserts that this court’s holding in Salaman “affirms the correctness of the trial court’s instructions regarding the duty owed to trespassers and licensees in terms of the traditional duties owed by any landowner to such persons [and] [n]ever once does it assert that the municipality might have enjoyed some sort of governmental immunity.”

The plaintiff concedes in her brief, however, that in Salaman the city did not plead governmental immunity as an affirmative defense. Accordingly, this court did not even consider the question of whether the city’s duty to maintain its property in a reasonably safe condition was a ministerial act. Thus, Salaman provides no guidance on the question of whether the duty was ministerial. “It is the general rule that a case resolves only those issues explicitly decided in the case.” (Internal quotation marks omitted.) State v. Salmon, 250 Conn. 147, 161, 735 A.2d 333 (1999). In her brief, the plaintiff makes a bare conclusory statement, without providing any factual support for her argument, that, in Salaman, the failure on the part of counsel to plead governmental immunity as a special defense was not an oversight but an acknowledgement that governmental immunity did not apply where premises liability had been alleged against the city. We can only speculate as to why counsel did not affirmatively plead governmental immunity as a special defense. We refuse to engage in such speculation.

Contrary to the plaintiffs argument, we conclude that the relevant case law on governmental immunity does not demonstrate that a municipality’s failure to maintain its property in a reasonably safe condition is, as a matter of law, a ministerial function. Instead, we conclude that the case law demonstrates that the determination as to whether governmental immunity may successfully be invoked by a municipality to prevent liability for failure to maintain its property turns not on the plaintiffs theory of negligence but, rather, on the character of the act or omission complained of in the complaint. See Elliotts. Waterbury, supra, 245 Conn. 413-14 (summary judgment properly granted on city’s special defense of governmental immunity where alleged conduct consisted of set of policy decisions concerning use of land for recreational purposes, which required exercise of judgment and discretion); Evon v. Andrews, 211 Conn. 501, 506-507, 559 A.2d 1131 (1989) (city’s motion to strike properly granted where complaint alleged that city failed to act “reasonably,” which necessarily requires exercise of discretion and judgment); Beach v. Regional School District Number 13, 42 Conn. App. 542, 553-54, 682 A.2d 118 (verdict in favor of defendant school district supervisor proper where plaintiff cafeteria worker failed to prove supervisor had some procedure in place regarding removal of ice, snow so as to make supervisor’s duty ministerial), cert. denied, 239 Conn. 939, 684 A.2d 710 (1996). “The duty ... will be governmental [and therefore discretionary] if the nature and character of act or function be such.” Hannon v. Waterbury, 106 Conn. 13, 17, 136 A. 876 (1927). And although the general rule is that a determination as to whether the actions or omissions of a municipality are discretionary or ministerial is a question of fact for the jury, “there are cases where it is apparent from the complaint. See Evon v. Andrews, supra, [505-507]. . . . Lombard v. Edward J. Peters, Jr., P.C., 252 Conn. 623, 628, 749 A.2d 630 (2000).” (Internal quotation marks omitted.) Colon v. Board of Education, supra, 60 Conn. App. 181-82.

In the present case, the court relied on Colon v. Board of Education, supra, 60 Conn. App. 178, in determining that it was apparent from the plaintiffs complaint that the negligent acts of the city alleged in the complaint were discretionary in nature, rather than ministerial, because the complaint contained no allegation that the city or its employees were required to design or maintain the stairway where the plaintiff fell in a prescribed manner and failed to do so. In Colon, the plaintiffs sought to recover from the defendant board of education after the plaintiff student was struck by a door that allegedly was negligently opened by a teacher at her school. Id., 179-80. The complaint simply alleged that the teacher had acted negligently and that the defendant was liable for the negligence of its employees. Id., 180. The defendant raised a special defense of governmental immunity and then moved for summary judgment on that special defense. Id. The trial court rendered a summary judgment in favor of the defendant. Id. It held that the teacher’s action in opening the door was discretionary rather than ministerial and, therefore, the defendant was not liable unless the action fell within an exception to the rule that employees of a municipality are not be liable for their discretionary acts. Id. On appeal, the plaintiffs claimed that the trial court improperly determined that the teacher’s actions were discretionary rather than ministerial. Id., 181. This court disagreed. We explained that “[a]lthough the determination of whether official acts or omissions are ministerial or discretionary is normally a question of fact for the fact finder . . . there are cases where it is apparent from the complaint.” (Citation omitted; internal quotation marks omitted.) Id., 181, citing Evon v. Andrews, supra, 211 Conn. 505-507. We stated that because the plaintiffs’ complaint contained no allegation that the teacher was required to perform, i.e., open the door, in a prescribed manner and failed to do so, it was apparent from the complaint that the plaintiffs had not alleged that the teacher was performing a ministerial duty. Colon v. Board of Education, supra, 182-83.

Even stronger, in Evon v. Andrews, supra, 211 Conn. 501, the plaintiffs sought damages for the wrongful deaths of their decedents who were killed when fire destroyed their apartment. Id., 502. The trial court granted the motion of the defendant city and various of its officials to strike the count of the complaint alleging that they had been negligent in failing to take remedial action against the property’s owners to enforce various statutes, regulations and codes concerning the maintenance of the dwellings. Id., 503-504. Specifically, they had alleged in their complaint that the city and its officers had been negligent in failing to make reasonable and proper inspections of the premises. Id., 506. Our Supreme Court explained that “what constitutes a reasonable, proper or adequate inspection involves the exercise of judgment. ... It is axiomatic that ministerial acts [are those that] are performed in a prescribed manner without the exercise of judgment. . . . Since the acts alleged . . . required in some measure the exercise of judgment by a municipal employee . . . they were not ministerial and therefore the defendants were immune from liability.” (Citations omitted; internal quotation marks omitted.) Id., 506-507.

The allegations of negligence set forth in the complaint in the present case are very similar to those in Colon and Evon. Here, the plaintiff alleged as follows: “The Plaintiffs fall and her consequent injuries were proximately caused by the negligence of the Defendant ... in one or more of the following respects: a. They failed to maintain the exit door and stairway in a reasonably safe condition for persons using the same; b. They allowed the exterior stairway to consist of single step-downs or risers in conjunction with sets of multiple risers; c. They failed to paint or otherwise visually mark the edges of risers so as to make them more nearly visible; d. They failed to provide continuous handrails for use by persons using the exterior stairway; e. They failed to post warnings regarding the presence and configuration of the stairs.” (Emphasis added.) The complaint contained no allegation that the city had some policy or directive in place regarding those duties with which it or its employees had failed to comply. Additionally, although it was not expressly relied on by the court, the affidavit of the city’s claims and loss coordinator stated that the city had no such policy in place for the general maintenance and design of the stairway, and the plaintiff failed to offer an affidavit that would have tended to put that fact in dispute.

Moreover, the plaintiffs allegations all relate to whether the city’s design and maintenance of the stairway were reasonable and proper under the circumstances. Determinations as to what is reasonable or proper under a particular set of circumstances necessarily involve the exercise of judgment and are, therefore, discretionary in nature. Id., 506-507. Accordingly, we conclude that the court was correct in concluding, as a matter of law, that the complaint alleged that the city negligently failed to perform a discretionary duty.

The plaintiff further contends that if the general rule were that a municipality is never liable for injuries resulting from its failure to maintain premises it owns and operates, the legislature would have expressly provided as such in § 52-557n (b), which sets out exceptions to a municipality’s potential liability. Finally, she contends that those exceptions would be meaningless if the city’s failure to maintain its property is always discretionary.

The plaintiff misconstrues the holding of the trial court. The court did not hold that a municipality could never be subject to premises liability. It merely held that the city was immune in the present case because the plaintiffs complaint failed to allege that the city negligently failed to perform a ministerial duty and that the plaintiffs claim did not fit within the identifiable person-imminent harm exception to the qualified immunity enjoyed by the city for the discretionary acts of its employees. The court also did not hold that a municipality’s duty to maintain its property is always discretionary. The court simply held that a determination as to whether an act or omission is discretionary or ministerial turns on the facts alleged in the complaint, which we conclude is in accordance with the applicable case law. See Evon v. Andrews, supra, 211 Conn. 501; Colon v. Board of Education, supra, 60 Conn. App. 181-82. As we have previously noted, the court observed that the complaint also did not state that the city’s employees were ordered to maintain the stairway in any particular manner and failed to do so.

For all of the foregoing reasons, we conclude that the court correctly determined that there was no genuine issue as to any material fact and that the defendant was entitled to judgment as a matter of law on its special defense of governmental immunity.

The judgment is affirmed.

In this opinion the other judges concurred.

       The plaintiff did not expressly state in her complaint that this action was brought pursuant to General Statutes § 52-557n, which abrogates a municipality’s governmental immunity for certain acts of negligence. The trial court, nonetheless, treated the claim as one brought under that section after concluding that although the plaintiff did not expressly invoice that statutory provision, the city was “sufficiently apprised of the nature of the action” such that the complaint did not run afoul of Practice Book § 10-3 (a), which requires the pleader to identify by number the statute relied upon. See Colon v. Board of Education, 60 Conn. App. 178, 188 n.4, 758 A.2d 900, cert. denied, 255 Conn. 908, 763 A.2d 1034 (2000).

       In total, the city filed three special defenses alleging (1) that the plaintiffs complaint failed to state a claim on which relief could be granted because her sole remedy was the highway defect statute, General Statutes § 13a-149, (2) that the plaintiffs complaint was barred by the doctrine of governmental immunity and (3) that the plaintiffs injuries were caused by her own negligence. Only the second special defense is at issue here.

       General Statutes § 52-557n provides in relevant part: “(a) (1) Except as otherwise provided by law, a political subdivision of the state shall be liable for damages to person or property caused by: (A) The negligent acts or omissions of such political subdivision or any employee, officer or agent thereof acting within the scope of his employment or official duties; (B) negligence in the performance of functions from which the political subdivision derives a special corporate profit or pecuniary benefit; and (C) acts of the political subdivision which constitute the creation or participation in the creation of a nuisance; provided, no cause of action shall be maintained for damages resulting from injury to any person or property by means of a defective road or bridge except pursuant to section 13a-149. (2) Except as otherwise provided by law, a political subdivision of the state shall not be hable for damages to person or property caused by: (A) Acts or omissions of any employee, officer or agent which constitute criminal conduct, fraud, actual malice or wilful misconduct; or (B) negligent acts or omissions which require the exercise of judgment or discretion as an official function of the authority expressly or impliedly granted by law.
      “(b) Notwithstanding the provisions of subsection (a) of this section, a political subdivision of the state or any employee, officer or agent acting within the scope of his employment or official duties shall not be hable for damages to person or property resulting from: (1) The condition of natural land or unimproved property; (2) the condition of a reservoir, dam, canal, conduit, drain or similar structure when used by a person in a manner which is not reasonably foreseeable; (3) the temporary condition of a road or bridge which results from weather, if the political subdivision has not received notice and has not had a reasonable opportunity to malee the condition safe; (4) the condition of an unpaved road, trail or footpath, the purpose of which is to provide access to a recreational or scenic area, if the political subdivision has not received notice and has not had a reasonable opportunity to make the condition safe; (5) the initiation of a judicial or administrative proceeding, provided that such action is not determined to have been commenced or prosecuted without probable cause or with a malicious intent to vex or trouble, as provided in section 52-568; (6) the act or omission of someone other than an employee, officer or agent of the political subdivision; (7) the issuance, denial, suspension or revocation of, or failure or refusal to issue, deny, suspend or revoke any permit, license, certificate, approval, order or similar authorization, when such authority is a discretionary function by law, unless such issuance, denial, suspension or revocation or such failure or refusal constitutes a reckless disregard for health or safety; (8) failure to make an inspection or making an inadequate or negligent inspection of any property, other than property owned or leased by or leased to such political subdivision, to determine whether the property complies with or violates any law or contains a hazard to health or safety, unless the political subdivision had notice of such a violation of law or such a hazard or unless such failure to inspect or such inadequate or negligent inspection constitutes a reckless disregard for health or safety under all the relevant circumstances; (9) failure to detect or prevent pollution of the environment, including groundwater, watercourses and wells, by individuals or entities other than the political subdivision; or (10) conditions on land sold or transferred to the political subdivision by the state when such conditions existed at, the time the land was sold or transferred to the political subdivision.”

       In her reply brief, the plaintiff raised for the first time the claim that the trial court, improperly had determined that her claim did not fall within the identifiable person-imminent harm exception. This court granted the city’s motion to strike that claim. “It is a well established principle that arguments cannot be raised for the first time in a reply brief.” (Internal quotation marks omitted.) Kelley v. Tomas, 66 Conn. App. 146, 163, 783 A.2d 1226 (2001).

       The plaintiffs original argument was that a municipality’s duty to maintain its property is ministerial as a matter oflaw. In her reply brief, however, she argues for the first time that the determination as to whether an act is discretionary or ministerial is a question of fact.

       See footnote 3.


text:
    PAUL KARANTONIS v. TOWN OF EAST HARTFORD
    (AC 22222)
    Flynn, Bishop and West, Js.
    Argued May 30 —
    officially released August 27, 2002

      Thomas L. Kanasky, Jr., for the appellant (plaintiff).

      Richard M. Quinlan, assistant corporation counsel, with whom, on the brief, was Janis M. Small, corporation counsel, for the appellee (defendant).
   Opinion

FLYNN, J.

The plaintiff, Paul Karantonis, appeals from the judgment of the trial court in favor of the defendant, town of East Hartford (town), in this action for forcible entry and detainer brought pursuant to General Statutes § 47a-43. On appeal, Karantonis claims that the trial court improperly (1) found that he did not have possession of the property and (2) failed to find a forcible entry and detainer under § 47a-43. The town argues, inter alia, as an alternate ground for affirmance, that Karantonis’ action was barred by the statute of limitations. We affirm the judgment of the trial court on the town’s alternate ground, and, accordingly, we need not address the issues that Karantonis raises on appeal. See Delfino v. Planning & Zoning Commission, 30 Conn. App. 454, 463 n.5, 620 A.2d 836 (1993).

The following facts and procedural history are relevant to our resolution of this appeal. Karantonis was the sole member of Burnside Tolland LLC (Burnside), a real estate holding company. In 1996, Burnside obtained title to real property located at 168 Burnside Avenue in East Hartford. The town became the owner of the property by virtue of a foreclosure sale on December 1, 2000. On December 4, 2000, the town notified Bum-side that it had taken title to the real property and, after an inspection of the property, advised Burnside to remove its personal properly by December 18, 2000, or the town would consider it abandoned and dispose of it. In a letter dated December 14, 2000, Karantonis advised the town that the personal property on the premises belonged to him, personally, and not Burnside. In that letter, the town was informed that Karantonis would need a few weeks to arrange for the removal of his property. On December 22, 2000, the town changed the locks to the premises and on December 28, 2000, had some vehicles on the property towed away. The December 22, 2000 date has particular significance because when the locks were changed, Karantonis’ personal property was detained. On January 18, 19 and 20, 2001, the town removed the remaining personal property from the premises. In April, 2001, Karantonis discovered that his personal property had been removed from the premises. From the time that he was first notified on December 18, 2000, Karantonis did not remove any of his personal property.

The town was served by personal process and this action thus commenced on June 27, 2001. Following a trial to the court, judgment was rendered for the town. The court made no finding that Karantonis had a pos-sessory interest in the personal property and determined that the entry and detainer statute had not been violated.

“ ‘The purpose of the Connecticut entry and detainer statute, § 47a-43, which is part of the Landlord and Tenant Act, General Statutes § 47a-l et seq., is to prohibit a property owner from entering his or her property in the act of taking possession thereof from one not legally entitled to such possession but who, nonetheless, maintains actual possession of such property. An action in entry and detainer is one brought by an illegal possessor who was dispossessed by the owner of the property without the benefit of proper legal proceedings; it is not an action that can properly be maintained by a property owner against the illegal peaceful possessor. See Carrier v. Carrier, 85 Conn. 203, 206, 82 A. 187 (1912) (“[t]he statute against forcible entry and detainer . . . makes it unlawful for the owner, or one having the right of possession of land, to forcibly and with strong hand enter and dispossess a person who has the actual, peaceable possession of such land, although the latter has no right of possession”). As explained in Connecticut Real Property Law: “The tenants’ ” remedy for a “lock-out,” an illegal or self-help eviction by the landlord or others, is the remedy of entry and detainer.’ R. Burke, Connecticut Real Property Law (1994) § 47, p. 126.” Ashford v. Rogers, Superior Court, judicial district of Windham, Housing Session at Dan-ielson, Docket No. CV11-9212 (February 2, 2001) (29 Conn. L. Rptr. 333).

“The process of forcible entry and detainer, provided by our statutes, is in its nature an action by which one in the possession and enjoyment of any land, tenement or dwelling unit, and who has been forcibly deprived of it, may be restored to the possession and enjoyment of that property. This process is for the purpose of restoring one to a possession which has been kept from him by force. . . . For a plaintiff to prevail, it must be shown that he was in actual possession at the time of the defendant’s entry.” (Citation omitted.) Berlingo v. Sterling Ocean House, Inc., 203 Conn. 103, 108, 523 A.2d 888 (1987).

An action in entry and detainer is subject to a six month statute of limitations under General Statutes § 52-589. Section 52-589 provides: “No complaint for a forcible entry and detainer shall be brought but within six months after the entry complained of.”

In his complaint, Karantonis states that “[o]n or after January 2, 2001” the town unlawfully entered the premises and detained and removed his personal property. As the court noted, if January 2, 2001, was the first date of entry and detainer, July 2, 2001, would be the last day for service of process. The record reflects that the town was served on June 27, 2001. Our review of the record and Karantonis’ concession at trial and in his brief that the locks were changed on December 22,2000, however, reflect that the town entered the premises and detained Karantonis’ property before January, 2001.

On December 4, 2000, the town entered the property to inspect the interior of the building. On December 22, 2000, the town changed the locks on the premises, thereby preventing Karantonis from entering without the permission of the town. Although the court did not make a finding as to the date that the locks were changed, both parties testified that the locks were changed on December 22, 2000. In addition, Karantonis states in his brief that “[t]he town changed the locks on the building on December 22, 2000.” “Ordinarily it is not the function of . . . the Appellate Court to make factual findings, but rather to decide whether the decision of the trial court was clearly erroneous in light of the evidence and pleadings in the whole record. . . . Conclusions of fact may be drawn on appeal only where the subordinate facts found [by the trial court] make such a conclusion inevitable as a matter of law ... or where the undisputed facts or uncontroverted evidence and testimony in the record make the factual conclusion so obvious as to be inherent in the trial court’s decision.” (Internal quotation marks omitted.) State v. Shashaty, 251 Conn. 768, 783, 742 A.2d 786 (1999), cert. denied, 529 U.S. 1094, 120 S. Ct. 1734, 146 L. Ed. 2d 653 (2000). “There are times . . . when the undisputed facts or uncontroverted evidence and testimony in the record make a factual conclusion inevitable so that a remand to the trial court for a determination would be unnecessary.” Delfino v. Planning & Zoning Commission, supra, 30 Conn. App. 462. A thorough review of the briefs of the parties, including the concession by Karantonis that the locks were changed on December 22, 2000, the record and the transcript of the testimony before the trial court, makes it clear that the town changed the locks to the property on December 22, 2000. Therefore, by December 22, 2000, the town had both entered and detained Karantonis’ property.

We find the reasoning in two Superior Court cases persuasive on the application of the entry and detainer statute. In Gaylord v. Mosher, Superior Court, judicial district of Stamford-Norwalk, Housing Session at Norwalk, Docket No. 91052030 (September 26, 1991), the court stated: “General Statutes § 47a-43 provides, inter alia, that it is an actionable offense when one enters into a dwelling unit and causes removal of or detention of the personal property of the possessor of that dwelling unit, and where the person put out of possession would have to breach the peace in order to regain the leased premises.” In Leonardo Industrial Properties v. Maisano, Superior Court, judicial district of New Haven, Docket No. 0412038S (April 30, 2001), the court stated: “Locking premises in order to secure them is far different from, for example, changing locks and removing or destroying [or detaining] belongings. In the former situation, courts have concluded there has been no forcible entry and detainer . . . while in the latter a violation is clear.” (Citations omitted.)

In this case, it is clear from the record, the testimony of the parties and the concessions in the briefs that the town both entered the premises and detained Karan-tonis’ personal property by December 22,2000. To comply with the statute of limitations, Karantonis would have had to serve the town no later than June 22, 2001. Karantonis did not commence this action until June 27, 2001, five days after the statute of limitations had run. Because Karantonis failed to commence this action within the six month limitation under § 52-589, we conclude that the action is time barred as a matter of law.

The judgment is affirmed.

In this opinion the other judges concurred.

       General Statutes § 47a-43 (a) provides: “When any person (1) makes forcible entry into any land, tenement or dwelling unit and with a strong hand detains the same, or (2) having made a peaceable entry, without the consent of the actual possessor, holds and detains the same with force and strong hand, or (3) enters into any land, tenement or dwelling unit and causes damage to the premises or damage to or removal of or detention of the personal property of the possessor, or (4) when the party put out of possession would be required to cause damage to the premises or commit a breach of the peace in order to regain possession, the party thus ejected, held out of possession, or suffering damage may exhibit his complaint to any judge of the Superior Court.”


author: LAVERY, C. J. SCHALLER, J.

text:
    STATE OF CONNECTICUT v. OSWALDO ORTIZ, JR.
    (AC 21636)
    Lavery, C. J., and Schaller and Bishop, Js.
    Argued April 22 —
    officially released August 27, 2002

      Joaquina Borges King, special public defender, for the appellant (defendant).

      Frederick W. Fawcett, supervisory assistant state’s attorney, with whom, on the brief were, Jonathan C. Benedict, state’s attorney, and Robert M. Brennan, senior assistant state’s attorney, for the appellee (state).
   Opinion

LAVERY, C. J.

The defendant, Oswaldo Ortiz, Jr., appeals from the judgment of conviction, rendered after a jury trial, of robbery in the first degree in violation of General Statutes § 53a-134 (a) (4), robbery of an occupied motor vehicle in violation of General Statutes § 53a-136a and robbery in the second degree in violation of General Statutes § 53a-135 (a) (1). We conclude that it was plain error for the court to fail to instruct the jury on the affirmative defense of inoperability of the gun involved in the incident at issue, as provided for in the text of § 53a-134 (a) (4) relative to the charge of robbery in the first degree, and to fail to instruct the jury on the lesser included offense of robbery in the second degree in violation of General Statutes § 53a-135 (a) (2) where there was uncontroverted evidence from two state’s witnesses that the gun was inoperable. Accordingly, we affirm, in part, and reverse, in part the judgment of the trial court.

The jury reasonably could have found the following facts. On the evening of November 8, 1999, the victim, Scott Finch, left the Stop & Shop supermarket in Fair-field after buying groceries. As he waited in his vehicle at a traffic light on his way home, the victim was approached by Judith Basco, who asked him for a ride. The victim agreed and drove her, at her direction, to an underground garage in Bridgeport.

While in the garage, the defendant and Antonio Camacho approached. The defendant was carrying an automatic pistol. Basco told the victim that he would not be hurt if he gave them his money. The victim was forced out of the car and had his money, cellular phone and car taken from him.

The victim reported the incident to a security guard on patrol for the University of Bridgeport, who contacted the Bridgeport police. Two police officers drove to Maplewood Avenue and Poplar Avenue, a known location for the recovery of stolen vehicles. En route, they saw the victim’s car, driven by the defendant, exiting the common driveway between 762 and 772 Maple-wood Avenue. The defendant saw the officers and drove the victim’s car onto the curb on Colorado Avenue where he and another male got out and ran into nearby rear yards.

Assisted by two officers from the Fairfield police department and a canine officer from the state police, a search commenced. The officers proceeded to the rear of the house at 762 Maplewood Avenue, where Fairfield police Detective Michael Gagner heard a male and female voice talking inside and observed car stereo speakers outside the apartment door. In response to Gagner’s knock on the door and announcement of “police,” Basco answered. Although she repeatedly told the officers that no one else was in the apartment, the defendant walked out of the bathroom after the canine officer announced that he was going to release the dog.

The police searched the apartment and found groceries that were the same as those that the victim had reported were in his car, and they found the victim’s store receipt. They also found the pistol in the bathroom. The pistol had a loaded magazine and one bullet in the chamber. The defendant was arrested and charged in a substitute part A information with robbery in the first degree, robbery of an occupied motor vehicle and robbery in the second degree.

At trial, the defendant claimed that he was not in the garage that evening. Rather, he testified that he was house-sitting in the apartment at 762 Maplewood Avenue and using drugs when Camacho and Ricardo Cruz arrived in the victim’s car and told him that they and Basco had robbed the victim. On cross-examination, the defendant admitted that he had driven the victim’s car, but only to get it out of the driveway for the people for whom he was house-sitting.

Camacho testified for the state. He stated that he originally found the gun but that the defendant used it. He testified that he knew that the gun did not work because the firing pin was broken. Later in the state’s case, its expert witness, Edward Jachimowicz, a firearms and tool mark examiner at the department of public safety’s forensic science laboratory, also testified as to the gun’s inoperability:

“[Prosecutor]: I want to show you [the pistol] to see whether or not you recognize [it].
“[The Witness]: Yes. . . .
“[Prosecutor]: Okay. Now, have you examined that gun before?
“[The Witness]: Yes.
“[Prosecutor]: And can you tell us in what condition you received it?
“[The Witness]: When I received this—this pistol, the firing pin was broken, and it was basically inoperable
“[Prosecutor]: Now, when you say inoperable, was it capable of discharging a bullet? First of all, did you do something to the gun?
“[The Witness]: Yes, I changed a firing pin. I put a firing pin in from the laboratory. We have a reference collection. I put it in this firearm, and the firearm functioned as it is designed to function.”

The jury found the defendant guilty of all three charges, and judgment was rendered accordingly. He was sentenced to a total effective sentence of twenty-three years incarceration. The defendant thereafter appealed. In addition to his claim that the court violated his constitutional right to a fair trial and committed plain error by not instructing the jury on the affirmative defense that the pistol was inoperable, he raises two claims stemming from the court’s denial of his motions for a judgment of acquittal. First, he argues that the evidence conclusively showed inoperability. He also argues that the evidence was insufficient to identify him as the perpetrator.

I

The defendant claims that the court violated his constitutional right to a fair trial and committed plain error by not giving a jury instruction, sua sponte, on the affirmative defense of inoperability of the weapon where there was uncontroverted evidence by two of the state’s witnesses to that effect. We agree that this was plain error in those circumstances.

Section 53a-134 (a) provides in relevant part: “A person is guilty of robbery in the first degree when, in the course of the commission of the crime of robbery . . . he or another participant in the crime ... (4) displays or threatens the use of what he represents by his words or conduct to be a pistol, revolver, rifle, shotgun, machine gun or other firearm, except that in any prosecution under this subdivision, it is an affirmative defense that such pistol, revolver, rifle, shotgun, machine gun or other firearm was not a weapon from which a shot could be discharged. Nothing contained in this subdivision shall constitute a defense to a prosecution for, or preclude a conviction of, robbery in the second degree, robbery in the third degree or any other crime.” (Emphasis added.) Robbery in the second degree in violation of § 53a-135 (a) (2) has the same elements as § 53a-134 (a) (4), but does not have the affirmative defense of inoperability. See State v. Hawthorne, 175 Conn. 569, 571-72, 402 A.2d 759 (1978).

At oral argument, the state noted that operability is not an element of robbery in the first degree. See General Statutes § 53a-134 (a) (4); State v. Hawthorne, supra, 175 Conn. 573. Accordingly, the state was not required to prove that the gun was operable; see State v. Hawthorne, supra, 573-74; or, for that matter, that the weapon was a gun; see, e.g., State v. Bell, 188 Conn. 406, 414-15, 450 A.2d 356 (1982); as long as the defendant had “represented” it to be a gun.

Because inoperability is an affirmative defense, the defendant was required to raise and prove it by a preponderance of the evidence. See General Statutes § 53a-12 (b). Although the claim is unpreserved, the defendant argues that the court’s failure to instruct, sua sponte, was a constitutional violation and plain error.

We generally do not review unpreserved instructional claims, as we are not bound “to consider error as to the giving of, or the failure to give, an instruction unless the matter is covered by a written request to charge or exception has been taken by the party appealing immediately after the charge is delivered. ...” Practice Book § 42-16. As we reiterated recently in State v. Marrero, 66 Conn. App. 709, 718, 785 A.2d 1198 (2001), an improper instruction on an affirmative defense is not of constitutional magnitude and is not entitled to Golding review. It may be reviewed, however, under the plain error doctrine. See id., 719-20.

Pursuant to Practice Book § 60-5, although we “shall not be bound to consider a claim unless it was distinctly raised at the trial or arose subsequent to the trial,” we may, “in the interests of justice notice plain error not brought to the attention of the trial court. ...” Success on such a claim is rare. “Plain error review is reserved for truly extraordinary situations where the existence of the error is so obvious that it affects the fairness and integrity of and public confidence in the judicial proceedings. . . . Westport Taxi Service, Inc. v. Westport Transit District, 235 Conn. 1, 25, 664 A.2d 719 (1995). It is also a doctrine that should be invoked sparingly. See Berchtold v. Maggi, 191 Conn. 266, 274, 464 A.2d 1 (1983). An important factor in determining whether to invoke the plain error doctrine is whether the claimed error resulted] in an unreliable verdict or a miscarriage of justice. DiNapoli v. Cooke, 43 Conn. App. 419, 426, 682 A.2d 603, cert. denied, 239 Conn. 951, 686 A.2d 124 (1996), cert. denied, 520 U.S. 1213, 117 S. Ct. 1699,137 L. Ed. 2d 825 (1997). A party cannot prevail under plain error unless it has demonstrated that the failure to grant relief will result in manifest injustice. See State v. Schiappa, 248 Conn. 132, 166, 728 A.2d 466, cert. denied, 528 U.S. 862, 120 S. Ct. 152, 145 L. Ed. 2d 129 (1999).” (Internal quotation marks omitted.) State v. Fitzgerald, 257 Conn. 106, 111, 777 A.2d 580 (2001). “To prevail on a claim of nonconstitutional plain error, the defendant must demonstrate that the trial court’s improper action likely affected the result of his trial.” (Internal quotation marks omitted.) State v. Marrero, supra, 66 Conn. App. 720.

“When reviewing [a] challenged jury instruction . . . we must adhere to the well settled rule that a charge to the jury is to be considered in its entirety, read as a whole, and judged by its total effect rather than by its individual component parts. . . . [T]he test of a court’s charge is not whether it is as accurate upon legal principles as the opinions of a court of last resort but whether it fairly presents the case to the jury in such a way that injustice is not done to either party under the established rules of law. ... As long as [the instructions] are correct in law, adapted to the issues and sufficient for the guidance of the jury . . . we will not view the instructions as improper.” (Internal quotation marks omitted.) State v. Denby, 235 Conn. 477, 484-85, 668 A.2d 682 (1995). Viewed “ ‘from the standpoint of its effect on the jury in guiding [it] to a proper verdict’ State v. McCalpine, 190 Conn. 822, 830, 463 A.2d 545 (1983); we conclude that the court’s instructions did an injustice to the defendant that likely affected the result of his trial because the instructions neither contained the affirmative defense of inoperability despite uncontroverted evidence of that from two of the state’s witnesses, nor did the instructions discuss the lesser included offense of robbery in the second degree.

On the count of robbery in the first degree, the court instructed the jury in relevant part: “[Y]ou are going to consider robbery in the first degree under this information only if you find proven that the defendant has committed a robbery in the first place. Robbery becomes first degree when, as charged here in the information, in the course of commission of the robbery, the defendant or another participant displayed or threatened the use of what was represented by words or conduct to be a pistol, revolver or firearm. A firearm means a pistol, revolver or other weapon whether loaded or unloaded from which a shot may be discharged. Robbeiy in the first degree requires the additional element of the robber or another participant displaying or threatening the use of what is represented by words or conduct to be such pistol, revolver or firearm. It is not required that such weapon be loaded or that the defendant actually has such a weapon or a firearm. lie need only represent by his words or conduct that he is so armed to be guilty of the crime of robbery in the first degree. In other words, it is sufficient if the victim is made to believe that the object that the defendant had or another participant had was, in fact, a weapon.

“Now, if you find proven beyond a reasonable doubt that a robbeiy was committed by this defendant and that in the course or commission of such robbeiy or the immediate flight therefrom, he or another participant displayed or threatened the use of a pistol, revolver or other firearm, you shall return a verdict of guilty of robbery in the first degree. If, however, you find that the state has failed to prove beyond a reasonable doubt any one of the elements of robbery, then you will find the defendant not guilty under the first count.” (Emphasis added.) The court also gave the jury a form listing the elements of the crimes with which the defendant was charged and larceny in the sixth degree as the sole lesser included offense. The form for robbery in the first degree did not contain the affirmative defense of inoperability of the weapon.

Ordinarily, the instructions given by the court would have been proper. As we previously stated, one may be convicted under § 53a-134 (a) (4) even if he does not have a weapon at all, as long as he “represents” it to be a weapon. Our appellate courts have upheld convictions where evidence as to inoperability either was controverted or lacking entirely. See State v. Dolphin, 195 Conn. 444, 449, 488 A.2d 812 (“no evidence at the trial which could be said to raise the affirmative defense [of inoperability]”), cert. denied, 474 U.S. 833, 106 S. Ct. 103, 88 L. Ed. 2d 84 (1985); State v. Bell, supra, 188 Conn. 414-15 (jury could have discredited defendant’s testimony that bulge under his sweatshirt was hammer handle rather than gun); State v. Gebeau, 55 Conn. App. 795, 799-800, 740 A.2d 906 (1999) (no evidence regarding operability or inoperability of gun), cert. denied, 252 Conn. 922, 747 A.2d 519 (2000). Here, by contrast, the evidence was uncontroverted that the weapon was inoperable. Accordingly, we conclude that it was plain error for the court to fail to instruct on the affirmative defense of inoperability so as to guide the jury to the proper verdict.

Arguing that the court’s instructions were proper, the state proffers two alternate explanations. Neither are persuasive. First, the state argues that because the defendant claimed that he was not at the scene of the crime, he may have made the strategic decision at trial not to request instruction on inoperability because it would have undercut his main defense. Although we would not afford plain error review to a claim that derived from counsel’s use of an unsuccessful trial strategy; see, e.g., State v. Burke, 182 Conn. 330, 332 n.3, 438 A.2d 93 (1980), citing Gigliotti v. United Illuminating Co., 151 Conn. 114, 121, 193 A.2d 718 (1963); we cannot conclude that such strategy was at play here. The defendant’s counsel stated on two occasions during his closing argument that if the jury believed that the defendant was at the scene with the gun, “then he [was] guilty of all three counts,” including robbery in the first degree. We cannot conclude that it was a strategic decision by the defendant’s counsel to inform the jury that if it disbelieved the defendant’s defense, his client should be found guilty of robbeiy in the first degree, despite the uncontroverted evidence on inoperability that otherwise would trigger that affirmative defense and the lesser included offense of robbery in the second degree.

The state also argues that the jury may have inferred from the evidence that the defendant had replaced the broken firing pin with a working one for the robbeiy and then switched it back immediately afterward to make it inoperable. In support of that argument, the state relies on four items of evidence. First, the state relies on Camacho’s testimony that the defendant had the gun during the robbeiy and that Camacho did not know what happened to it afterward. Second, the state relies on Basco’s testimony that the defendant gave her the gun after the robbery and that she put it in the bathroom. Third, the state relies on evidence that the defendant was in the bathroom when the police came to the apartment. At oral argument, the state relied most heavily on the fourth item of evidence, i.e., that Jachimowicz had demonstrated at trial that he could make the gun operable within fifteen seconds by removing the broken firing pin with a ballpoint pen and inserting a new pin. We disagree that the jury could have inferred, on the basis of that evidence, that the weapon was operable during the robbery.

Although operability may be shown by either direct or circumstantial evidence; see, e.g., State v. Manley, 195 Conn. 567, 573-74 n.8, 489 A.2d 1024 (1985); “inferences which do not have a basis in facts established by the evidence cannot be drawn or relied upon to sustain a verdict.” (Internal quotation marks omitted.) State v. Torrence, 37 Conn. App. 482, 486-87, 657 A.2d 654 (1995), quoting State v. Jackson, 176 Conn. 257, 264, 407 A.2d 948 (1978). There was no evidence before the jury that the defendant knew how to change a firing pin or had access to a “reference collection” of unbroken ones, as did Jachimowicz. Rather, the evidence showed that the weapon was inoperable both before the robbery when Camacho found it and when examined by Jachimowicz after it had been recovered by the police. Those facts are a far cry from instances in which our appellate courts have concluded that a jury could infer operability. Compare State v. Manley, supra, 570-71 (witnesses saw defendant fire gun); State v. Williams, 59 Conn. App. 771, 777, 758 A.2d 400 (2000) (officers testified that bullet jammed in chamber was dislodged by pulling slide back on gun and tapping its bottom, that gun could be fired despite jam and that gun successfully test fired), rev’d on other grounds, 258 Conn. 1, 778 A.2d 186 (2001); State v. Rogers, 50 Conn. App. 467, 469-70, 475, 718 A.2d 985 (witness saw gunshots come from passenger side of vehicle), cert. denied, 247 Conn. 942, 723 A.2d 319 (1998); State v. Hopes, 26 Conn. App. 367, 369-70, 602 A.2d 23 (witnesses saw defendant with gun, heard gunfire one minute later and felt something pass close by their heads), cert. denied, 221 Conn. 915, 603 A.2d 405 (1992); State v. Bradley, 39 Conn. App. 82, 85, 663 A.2d 1100 (1995) (police successfully test fired gun abandoned by defendant four days earlier), cert. denied, 236 Conn. 901, 670 A.2d 322 (1996); State v. Zayas, 3 Conn. App. 289, 299, 489 A.2d 380 (officer testified that bullet jammed in chamber could have jammed when defendant attempted to cock gun or when gun fell to ground), cert. denied, 195 Conn. 803, 491 A.2d 1104 (1985).

Given the uncontroverted evidence of inoperability by two of the state’s witnesses, we also conclude that it was plain error for the court not to instruct the jury on the lesser included offense of robbery in the second degree in violation of § 53a-135 (a) (2). As we previously stated, §§ 53a-134 (a) (4) and 53a-135 (a) (2) contain the same elements. The only difference between them in this case is whether the defendant proved that the weapon was inoperable. See State v. Hawthorne, supra, 175 Conn. 573-74. Rather than instruct on robbery in the second degree, the court instructed the juiy that larceny in the sixth degree was the only available lesser included offense. That came after colloquy between the court and counsel in which the court noted its belief that it “has a right and, or obligation, depending upon how it arises, to give the lesser included” offense instruction where such instruction is supported by the evidence.

In addition to the instruction on larceny in the sixth degree, the court also provided the jury with a form that stated the elements of the crimes and the lesser included offenses. The form for robbery in the first degree did not list inoperability as an affirmative defense and listed only larceny in the sixth degree as a lesser included offense.

In State v. Whistnant, 179 Conn. 576, 588, 427 A.2d 414 (1980), our Supreme Court stated that under our common law, “[a] defendant is entitled to an instruction on a lesser offense if, and only if, the following conditions are met: (1) an appropriate instruction is requested by either the state or the defendant; (2) it is not possible to commit the greater offense, in the manner described in the information or bill of particulars, without having first committed the lesser; (3) there is some evidence, introduced by either the state or the defendant, or by a combination of their proofs, which justifies conviction of the lesser offense; and (4) the proof on the element or elements which differentiate the lesser offense from the offense charged is sufficiently in dispute to permit the jury consistently to find the defendant innocent of the greater offense but guilty of the lesser.”

Despite mandating that one party must request a charge to be entitled to have the charge given to the jury, our Supreme Court has reviewed an unpreserved Whistnant claim. See State v. Henning, 220 Conn. 417, 427-31, 599 A.2d 1065 (1991); but see State v. Tomasko, 238 Conn. 253, 259-63, 681 A.2d 922 (1996) (rejecting defendant’s claim of entitlement to lesser included offense on first Whistnant prong where request did not comply with rules of practice); State v. Killenger, 193 Conn. 48, 57, 475 A.2d 276 (1984) (same). Additionally, we have stated that even in the absence of a request at trial for a jury instruction on a lesser included offense, an appellate court may invoke the Whistnant doctrine “where the trial court record justifies its application” and order that the judgment be modified to reflect a conviction on the lesser offense and that the defendant be sentenced thereon. State v. Horne, 19 Conn. App. 111, 144-45, 562 A.2d 43 (1989), rev’d on other grounds, 215 Conn. 538, 577 A.2d 694 (1990).

We conclude that the defendant was entitled to an instruction on robbery in the second degree as a lesser included offense for the same reasons we discussed relative to an instruction on the inoperability of the gun. Simply put, the evidence was uncontroverted that the gun was inoperable, and the jury could have found the defendant guilty of robbery in the second degree because that offense has the same elements as does robbery in the first degree. See, e.g., State v. Morales, 45 Conn. App. 116, 136, 694 A.2d 1356 (1997), appeals dismissed, 246 Conn. 249, 714 A.2d 677 (1998). Because we “cannot as a matter of law exclude [the] possibility that the defendant is guilty only of the lesser offense”; (internal quotation marks omitted) State v. Preston, 248 Conn. 472, 477, 728 A.2d 1087 (1999); we conclude that the court not only should have instructed the jury on that lesser included offense, but that the jury concluded that there was evidence to justify a finding beyond a reasonable doubt that the defendant had committed robbeiy in the second degree in violation of § 53a-135 (a) (2).

Accordingly, we reverse the judgment only as to the conviction of robbery in the first degree and remand the case with direction to render a judgment of acquittal on that charge and to modify the judgment to reflect a conviction of robbery in the second degree in violation of § 53a-135 (a) (2) and for sentencing thereon.

In light of our remand, we need not reach the defendant’s claim that the court improperly denied his motions for a judgment of acquittal because the evidence supported a finding that the weapon was inoperable.

II

The defendant’s claim that the court improperly denied his motion for a judgment of acquittal because there was insufficient evidence to identify him as the perpetrator can be disposed of with little difficulty because identification is a question of fact for the jury. See State v. Jackson, 257 Conn. 198, 206, 777 A.2d 591 (2001).

We review sufficiency of the evidence claims using 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 jury 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.” (Internal quotation marks omitted.) Id., 205.

The victim testified at trial that he was unable to identify the peipetrators when the defendant was presented to him by the police later that night because the robbers “were wearing disguises or hoods, masks, however you want to say it” and, “[a]s I told the police at the time, given the apparel of the two men, there was no way I was ever going to identify them by looks.” Although Basco and Camacho identified the defendant as a participant and testified that he was carrying the gun, the defendant argues that their testimony was not credible because they testified that they were high on drugs during the dime and were hoping for leniency in exchange for their testimony in the trial. Because the victim testified that he could not identify the men in the garage and the defendant testified that he was not in the garage, the defendant argues that there was insufficient evidence to identify him.

Given the disparity in the testimony between the defendant and Camacho and Basco, the jurors were required to judge credibility. “[W]e do not sit as the [seventh] juror who may cast a vote against the verdict based upon a feeling that some doubt of guilt is shown by the cold printed record. . . . Rather, we must defer to the jury’s assessment of the credibility of the witnesses based on its firsthand observation of their conduct, demeanor and attitude. . . . This court cannot substitute its own judgment for that of the jury if there is sufficient evidence to support the jury’s verdict.” (Internal quotation marks omitted.) Id.

Furthermore, “the question of identity of a perpetrator of a crime is a question of fact that is within the sole province of the jury to resolve. [I]n viewing evidence which could yield contrary inferences, the jury is not barred from drawing those inferences consistent with guilt and is not required to draw only those inferences consistent with innocence. The rule is that the jury’s function is to draw whatever inferences from the evidence or facts established by the evidence it deems to be reasonable and logical. (Internal quotation marks omitted.) Id., 206.

Construing the evidence in the light most favorable to sustaining the verdict, we conclude that the jury could have credited the testimony of Camacho and Basco over that of the defendant. As a result, the court properly denied the defendant’s motions for a judgment of acquittal.

The judgment is reversed only as to the conviction of robbery in the first degree and the case is remanded with direction to render a judgment of acquittal on that charge, and to modify the judgment to reflect a conviction of robbery in the second degree in violation of § 53a-135 (a) (2) and for sentencing thereon.

In this opinion BISHOP, J., concurred.

SCHALLER, J.

dissenting. The majority concludes that the trial court committed plain error by not instructing the jury on the affirmative defense of inoper-ability relative to the charge of robbery in the first degree in violation of General Statutes § 53a-134 (a) (4) and did not instruct the jury on the lesser included offense of robbery in the second degree in violation of General Statutes § 53a-135 (a) (2). The majority bases both of those conclusions on the specific fact that the evidence was uncontroverted that the weapon in question was inoperable. I do not agree, and respectfully dissent.

In the present case, I conclude that the court’s failure to instruct on the affirmative defense was not improper for two reasons. First, the defendant did not request that the court instruct the jury on the affirmative defense. Our case law establishes that it is the defendant’s burden, and his alone, to request a jury charge on an affirmative defense. In State v. Preyer, 198 Conn. 190, 502 A.2d 858 (1985), the defendant failed to request a charge on an applicable affirmative defense that was supported by the evidence. On appeal, the defendant argued that “a trial court always has an independent obligation, as a matter of law, to charge on any theory of defense for which there is a foundation in the evidence.” Id., 196. The Preyer court did not agree and concluded that “[t]here is no basis, in the law of this state, for the defendant’s broad claim that a trial court has an independent obligation to instruct the jury on the affirmative defense ... if the evidence at trial would suffice to support such a charge.” Id.

The majority, however, is in direct conflict with Preyer and imposes a duty on the trial court to instruct on an affirmative defense absent any request for a specific instruction from the defendant. By way of its decision, the majority effectively has created law that if the defendant does not request an instruction on a viable affirmative defense, the court must provide the instruction on the affirmative defense to avoid committing plain error. I believe that is inappropriate in light of Preyer and stands in direct conflict with the governing law on the issue.

Furthermore, I am not persuaded by the majority’s attempt to distinguish Preyer. The majority first states that Preyer has only a “facial similarity” because the Preyer court reviewed the defendant’s claim under the constitutional Golding standard as opposed to the plain error analysis invoked in the present case. While those two doctrines admittedly apply different standards, the Preyer court’s choice of method with which to review the unpreserved claim does not diminish its legal conclusion that a trial court does not have an independent obligation to instruct the jury on an affirmative defense if the evidence would suffice to support such a charge. Additionally, the fact that the Preyer court did not apply a plain error analysis in that case, in which there was evidence that was sufficient to present the defense to the jury, indicates that the Preyer court concluded that the trial court’s failure to instruct did not constitute plain error.

The majority also attempts to distinguish Preyer by focusing on the phrases “always has an independent obligation” and “any theory of defense” that are used in Preyer’s statement of the claim. Id. The majority notes that the present case is distinguishable from that broad language because the present case is confined to the situation at hand in which there was uncontroverted evidence that the weapon in question was inoperable. Those phrases, however, are of no consequence because they are used only in the majority’s recast of the defendant’s claim. In that capacity, they do not have any bearing on the Preyer court’s conclusion of law that “[t]here is no basis, in the law of this state, for the defendant’s broad claim that a trial court has an independent obligation to instruct the jury on the affirmative defense ... if the evidence at trial would suffice to support such a charge.” (Emphasis added.) Id. In the absence of a useful distinction from the legal conclusion set forth in Preyer, I must conclude that Preyer controls the issue presently before us and that the majority is in conflict with authority from our Supreme Court.

Second, I do not agree with the majority’s reasoning that it was plain error for the court not to instruct the jury on the affirmative defense in this particular case specifically because the evidence was uncontroverted that the weapon was inoperable. Although the majority relies on that fact and distinguishes the present case from others in which the evidence of operability was contested, I do not believe that the clarity and sufficiency of the evidence of operability is the determinative factor when deciding whether a court should instruct on an affirmative defense. The conclusiveness of operability, or the potential effectiveness of an affirmative defense generally, in no way diminishes a defendant’s burden of requesting an instruction on the affirmative defense or taking exception to a court’s instruction that did not discuss the affirmative defense. The potency of a defense does not vitiate the procedural hurdle of requesting it or taking exception to the court’s failure to include it in its jury instruction. Moreover, I cannot fathom a way, notwithstanding the majority opinion, in which the magnitude or clarity of the proof shifts the burden from the defendant to the court to ensure that an applicable affirmative defense is included in the instruction. Rather, I believe that regardless of the nature or conclusiveness of the evidence, a court is obligated to consider instructing on an affirmative defense only when the defendant has requested such a charge or when the defendant takes exception to a charge that does not address an affirmative defense.

I also conclude that the court’s failure to instruct the jury on the lesser included offense of robbery in the second degree was not improper. At the outset, I note as a procedural matter that the defendant did not raise or brief the issue of whether the court’s failure to instruct on the lesser included offense constituted plain error. The majority, however, reaches that issue because, having concluded that the court, sua sponte, should have instructed on the affirmative defense, it necessarily addresses the lesser included offense. Although I understand the majority’s need to address the issue as part of its analysis of the failure to charge on the affirmative defense, because I conclude that there was no plain error regarding the instruction on the affirmative defense, the question of whether the court committed plain error with regard to not instructing the jury on the lesser included offense is a separate issue. Because that issue is separate and the defendant has failed to raise it, I would not address it.

Even if I were to address the lesser included offense issue, I would not agree with the majority’s reasoning that the court acted improperly in not instructing the jury on the lesser included offense merely because there was uncontroverted evidence that the weapon was inoperable. I would conclude otherwise because the contested nature of the evidence alone is not determinative of the question. Rather, the four-pronged Whist-nant test governs the issue. Although that test clearly implicates the evidence in a case, it does not rely solely on evidentiary matters. I therefore do not agree with the majority analysis, which omits the first prong of the Whistnant test to focus on the evidence. Although our case law states that we may assume that the first factor has been satisfied, such an action is not mandatory.

In the present case, I would give due consideration to the first prong of Whistnant because I believe it is possible that the defendant, fully aware of the evidence regarding inoperability, purposely decided not to request the lesser instruction. Instruction on the lesser included offense may not have been requested because the defendant sought an outright acquittal as part of an all or nothing strategy, rather than a conviction of a lesser crime. I do not believe it is appropriate to ignore the first prong in this case because the defendant may well have deliberately failed to request the instruction on the lesser included offense. That likelihood is bolstered by the fact that the defendant did not assert the affirmative defense to the charge of robbery in the first degree. Under those circumstances, I would conclude that the defendant has failed to meet the first prong of the Whistnant test and that this is not an appropriate situation for us to ignore that failure.

In addition to that, I disagree with the majority because of the ramifications its decision will have on both the parties to a trial and the presiding court. In essence, the majority requires that if a defendant does not request an instruction on an affirmative defense or take exception to a charge that does not include such instruction when there is uncontroverted evidence to support an affirmative defense, the court is obligated to instruct on the defense for the defendant and to inform the jury of the applicability of the defense. That new requirement presents several significant problems.

First, the majority potentially deprives the prosecution of a chance to argue whether the court should instruct on an affirmative defense. Without a requested instruction by the defendant or an exception by the defendant to the court’s instruction, the prosecution will have no opportunity to argue whether the court should instruct on the affirmative defense because any mention of instructing on a defense will be raised for the first time by the court at the time it actually charges the jury and informs it of the affirmative defense. I do not believe that the prosecution should be surprised in that manner and denied an opportunity to address the affirmative defense and the evidence underlying it. Such an outcome is patently unfair.

Second, the majority’s decision may have a negative effect on a defendant’s trial strategy. If a defendant argues, as the defendant in this case did, that he was not present at the scene of the crime, then defense counsel may believe that as a matter of strategy, it is not in the defendant’s best interest to offer the jury an alternative in the form of an affirmative defense that places the defendant at the scene. In that scenario, the court’s obligation to instruct the jury on an affirmative defense that the defendant has not requested may directly undercut the defendant’s strategy. I do not believe that a defendant’s trial tactics should be subject to that potential undermining. Moreover, as previously stated, it is the defendant’s responsibility to request an instruction on an affirmative defense or to take exception to an instruction that does not contain one. In the context of the present discussion, keeping that burden on the defendant allows him to control his trial strategy and to assert a consistent defense. The defendant’s choice, either alone or through counsel, to seek out an instruction on an affirmative defense should not implicate the court’s intervention in the process.

Finally, the majority’s decision imposes several inappropriate burdens on the trial court. According to the majority, if a defendant does not request an affirmative defense instruction or take exception to the court’s instruction when there is uncontroverted evidence to support it, the court is obligated to instruct on the defense for the defendant. As a result, the trial court now has the burden of determining whether any affirmative defenses may apply if uncontroverted evidence exists to support them. If the court concludes that defenses do exist, it then has to determine whether uncontroverted evidence in fact exists, thereby requiring it to instruct on the defense. I note that although those determinations were not difficult to make in the present case, other cases likely will not provide such clear answers.

For the foregoing reasons, I do not believe that the trial court’s instruction constituted plain error, and I would affirm the judgment.

       In apart B information, the defendant was charged with being apersistent dangerous felony offender in violation of General Statutes § 53a-40 (a) (1) (A). A note in the trial court file states that the “court did not sentence the defendant as a Perst. Dangerous Felony Offender despite 11/14/00 finding of guilt by court.”

       See State v. Golding, 213 Conn. 233, 239-40, 567 A.2d 823 (1989).

       Despite the dissent’s assertion to the contrary, there is no more than a facial similarity between this case and State v. Preyer, 198 Conn. 190, 502 A.2d 858 (1985). Although the Preyer court noted that a defendant could succeed on his unpreserved instructional claim only if he could prove a constitutional deprivation or plain error, it analyzed his claim only under the constitutional rubric. As we previously noted, we agree that the failure to instruct on an affirmative defense is not of constitutional magnitude. It is, however, plain error in this case. In any event, just as our Supreme Court vxPreyer rejected the defendant’s “sweeping” claim “that atrial court always has an independent obligation, as a matter of law, to charge on any theory of defense for which there is a foundation in the evidence”; (emphasis added) id., 196; our conclusion of plain error is limited to instances such as the one at issue in which the affirmative defense is written into the statute, and the evidence proving that defense is uncontroverted and introduced by the opposing party. See id., 195-96.

       See State v. Golding, 213 Conn. 233, 239-40, 567 A.2d 823 (1989).

       See State v. Whistnant, 179 Conn. 576, 588, 427 A.2d 414 (1980).