author: SULLIVAN, J.

text:
    LYDIA J. MELE v. CITY OF HARTFORD ET AL.
    (AC 30473)
    Flynn, C. J., and Alvord and Sullivan, Js.

      Argued September 15
    officially released November 24, 2009

      Mark E. Blakeman, for the appellant (plaintiff).

      James L. Pomeranz, for the appellees (defendants).
   Opinion

SULLIVAN, J.

The plaintiff, Lydia J. Mele, appeals from the decision of the workers’ compensation review board (board) affirming the decision of the workers’ compensation commissioner (commissioner) finding that the injuries to her right hip were not work-related. On appeal, the plaintiff claims that the board improperly affirmed the commissioner’s decision because the evidence in the record did not support the determinations he made and because she made a prima facie case that the defendants, the city of Hartford and its workers’ compensation insurer, Constitution State Service Company, failed to rebut. We reverse in part and affirm in part the decision of the board.

The following facts form the background for the present appeal. The plaintiff, a schoolteacher and later a guidance counselor, has been employed by the city of Hartford board of education for more than thirty years. During her career, she sustained numerous work-related injuries. One such injury occurred on October 24, 1996, when the plaintiff fell while using a freight elevator at the school where she was employed. She landed on her right side and experienced bruising on her right buttock, back and knee. Another incident occurred on December 11, 2001, when the plaintiff was hit with a ball thrown by one student at another student. As a result of these injuries, the plaintiff claimed that she developed trochanteric bursitis and degenerative arthritis in her right hip, and she requested approval for treatment of these conditions, including hip replacement surgery, which the defendants denied. The defendants did not contest that injuries resulting from the October, 1996 and December, 2001 incidents would be compensable work-related injuries; rather, the only issue before the commissioner was whether the tro-chanteric bursitis and degenerative arthritis claimed by the plaintiff were caused by a compensable incident.

On September 24, 2004, the commissioner denied the plaintiffs claims, and she appealed to the board. On September 29, 2005, the board affirmed the decision of the commissioner in part and remanded the case to the commissioner with direction “to give the [plaintiff] an opportunity to be heard on the causal relationship of her claim and the October [24], 1996 injury.” (Internal quotation marks omitted.) Mele v. Hartford, 4870 CRB-1-04-10 (September 29, 2005). On remand, the sole issue before the commissioner was whether the injuiy to the plaintiffs right hip was causally related to the October, 1996 fall. On October 3, 2007, the commissioner issued his decision, again denying the plaintiffs claim, and, on October 10, 2008, the board affirmed the decision of the commissioner. The plaintiff has appealed to this court seeking review of the board’s decision. Additional facts will be set forth as necessary.

The standard of review of workers’ compensation claims is well established. “[W]hen a decision of a commissioner is appealed to the review [board], the review [board] is obligated to hear the appeal on the record of the hearing before the commissioner and not to retry the facts. ... It is the power and the duty of the commissioner, as the trier of fact, to determine the facts. . . . [T]he commissioner is the sole arbiter of the weight of the evidence and the credibility of witnesses .... The conclusions drawn by [the commissioner] from the facts found must stand unless they result from an incorrect application of the law to the subordinate facts or from an inference illegally or unreasonably drawn from them. . . . We will not change the finding of the commissioner unless the record discloses that the finding includes facts found without evidence or fails to include material facts which are admitted or undisputed. . . . Similarly, [t]he decision of the [board] must be correct in law, and it must not include facts found without evidence or fail to include material facts which are admitted or undisputed.” (Internal quotation marks omitted.) Greene v. Aces Access, 110 Conn. App. 648, 652, 955 A.2d 616 (2008).

“Our role is to determine whether the review [board’s] decision results from an incorrect application of the law to the subordinate facts or from an inference illegally or unreasonably drawn from them.” (Internal quotation marks omitted.) Kudlacz v. Lindberg Heat Treating Co., 70 Conn. App. 559, 800 A.2d 560 (2002).

I

The plaintiff first claims that because all of the expert witnesses, including those found credible by the commissioner, agreed that the trochanteric bursitis in her right hip was causally related to her October, 1996 injury, the dismissal of the bursitis claim should be reversed. We agree.

The record shows that the experts relied on by both sides acknowledged that the bursitis of the right hip was caused, either directly or indirectly, by her compensable work-related injury. The physicians found credible by the commissioner, Wells C. Jacobson and John C. Grady-Benson, both concluded that the bursitis was work-related, and both physicians distinguished the bursitis from the arthritis. Although great deference is given to findings of fact made by the commissioner, the determination that the plaintiffs trochanteric bursitis was not work-related had no support in the record.

The plaintiff began seeking treatment for hip pain in 1999, with Michael S. Aronow, a physician. Aronow diagnosed the pain as trochanteric bursitis and prescribed physical therapy for the plaintiff. In 2002, Gordon A. Zimmerman, another of the plaintiffs physicians, referred the plaintiff to Grady-Benson, a hip specialist. Grady-Benson’s initial diagnosis was trochanteric bursitis due to an abnormal gait. On the basis of radiographic evidence, he changed the diagnosis to include moderate degenerative arthritis, in addition to the bursitis. In December, 2003, Grady-Benson saw the plaintiff and discussed hip replacement surgery, indicating that she would get relief of the arthritic condition but that the hip replacement would not alleviate the bursitis.

The plaintiff also had been referred to Jacobson for an independent medical evaluation. On September 18, 2002, Jacobson issued his first report, stating that he did not “feel that the medical record demonstrates a distinct causal relationship [between] the [plaintiffs] right hip and any work-related injury.” In this evaluation, Jacobson did not distinguish between the bursitis and degenerative arthritis, and he noted that the hip injury could not “be evaluated for permanency.” He also reviewed many of the plaintiffs other joint ailments, including ankle, knee and shoulder issues. As Jacobson noted, the plaintiffs medical records included the opinions of at least thirteen physicians and were extremely complicated.

Later, in 2004, Jacobson submitted a second report, in which he distinguished between the bursitis and arthritis, stating: “I do not feel that there is any relationship between work injury and the [plaintiffs] degenerative arthritis in her hip. The [plaintiff] does have some tenderness over the trochanter and has been treated for trochanteric bursitis in the past and that may be related to work injury or an abnormal gait secondary to other lower extremity malady which was work related. In terms of the trochanteric bursitis which the [plaintiff] states is persistent, I would estimate that she has a [1 percent] permanent partial disability of her hip that is work related. Again, the degenerative change here I strongly feel should not be considered work induced.”

The defendants refer to the use of the word “may” in Jacobson’s latter report; however, the word “may” modifies the two possible explanations he offered: a work-related injury or an abnormal gait secondary to a work-related injury. The defendants ignore the next unequivocal statement that the plaintiff “has a [1 percent] permanent partial disability of her hip that is work related.” (Emphasis added.)

In Grady-Benson’s first assessment of the plaintiff, he stated that she “has chronic abductor tendonosis in the right hip as a result of chronic gait abnormalities from her right knee and right ankle work-related injuries.” In his deposition, Grady-Benson testified that “it’s highly medically probable that the trochanteric bursitis of her right hip is directly related to at least two of the work-related injuries, most specifically the contusion she sustained on [October 24, 1996], in which she fell and landed on her hip, and possibly to the twisting injury she described on [December 11, 2001].”

Although the defendants emphasize the commissioner’s finding that the plaintiff was not credible, the relevance of her credibility is limited on this issue. The expert witnesses concurred that the trochanteric bursitis resulted from the plaintiffs abnormal gait, and, although some experts thought it could have resulted directly from the incident, her original diagnoses by Aronow and Grady-Benson both indicated that her abnormal gait was the cause of the bursitis. The plaintiff did not attempt to testify as to the connection of her abnormal gait and the bursitis, and she would not have been competent to do so. Such a conclusion requires expert testimony. Even if she entirely fabricated any direct injury to her hip in either incident, no one has disputed that the incidents in question caused the plaintiff injuries to her back and knees, contributing to an abnormal gait. It was the abnormal gait, resulting from the work-related injuries, found compensable and undisputed by the defendants, that the expert evidence showed was the most likely cause of her trochanteric bursitis.

Although great deference is given to the fact finder, no evidence whatsoever exists in the record to refute the proposition that the plaintiffs trochanteric bursitis was caused by anything other than work-related causes. With regard to the bursitis claim, therefore, the conclusion of the board is reversed.

II

The plaintiff next claims that she made a prima facie case by a preponderance of the evidence that her right hip injuries were work-related, and the defendants failed to rebut her case. The plaintiff, therefore, argues that the decision of the commissioner was clearly erroneous and must be reversed. We disagree.

As discussed, the standard of review requires great deference to the trier of fact, and the conclusions made by the commissioner will be overturned on appeal only if they derive from an illegal or unreasonable application to the subordinate facts. Although we already have decided that the commissioner’s rejection of the bursitis claim was done without the support of any evidence, we cannot draw that same conclusion with respect to the arthritis claim and, therefore, conclude that the plaintiffs second claim lacks merit.

The record shows that both Jacobson and Grady-Benson distinguished between the likely causes of the bursitis and the arthritis experienced by the plaintiff. Evidence also in the record indicated, as noted by the board in its decision, that the hip replacement surgery sought by the plaintiff would correct only the arthritic condition. Grady-Benson informed the plaintiff that she would not get relief for the bursitis through the hip replacement. To the extent that the commissioner’s decision denied coverage for the arthritis condition, we cannot say that he committed clear error. We therefore cannot conclude that the plaintiff made a prima facie case that the defendants failed to rebut.

The decision of the workers’ compensation review board is reversed only as to the finding that the plaintiffs bursitis was not a compensable work-related injury, and the case is remanded to the board with direction to remand the case to the commissioner with direction to determine what portion of the plaintiffs hip injuries is related to trochanteric bursitis arising out of the October, 24, 1996 incident and is therefore compensable. The decision is affirmed in all other respects.

In this opinion the other judges concurred.

       In. the record, trochanteric bursitis is interchangeably referred to as abductor tendonosis or abductor tendonitis.

       We note that in the board’s October 10, 2008 decision, which is at issue in the plaintiff’s appeal, the board incorrectly stated that on remand “[t]he [plaintiff] was given the opportunity to testify at length regarding the injuries she sustained on October [24], 1996 and December 11, 2001 . . . At the March 15, 2007 hearing on the remand, the commissioner ruled, and the plaintiffs attorney agreed, that the remand concerned only the 1996 incident, not the 2001 incident. The plaintiff did not appeal from the original decision of the board, which affirmed the finding by the commissioner that the 2001 incident did not cause her hip injuries.

       We note that the determination that the plaintiff has a 1 percent permanent partial disability of her right hip due to bursitis does not resolve or address the question of what portion of her overall hip disability is related to bursitis. The commissioner made no finding as to what portion of her disability is due to bursitis, and he also made no determination of the total permanent partial disability of the right hip.

       In making her second claim, the plaintiff does not distinguish between her bursitis and arthritis conditions, just as her claims before the commissioner did not distinguish between these two injuries. We therefore consider the plaintiffs second argument to be referring to both of her hip conditions.


source: Caselaw Access Project

author: ROBINSON, J.

license: Public Domain

text:
    STATE OF CONNECTICUT v. ROBERT W. BOWENS
    (AC 29134)
    Flynn, C. J., and Robinson and Mihalakos, Js.

      Argued September 17
    officially released November 24, 2009

      David B. Rozwaski, special public defender, for the appellant (defendant).

      Richard K. Greenalch, Jr., special deputy assistant state’s attorney, with whom, on the brief, were Jonathan C. Benedict, state’s attorney, and Charles M. Stango, senior assistant state’s attorney, for the appel-lee (state).
   Opinion

ROBINSON, J.

The defendant, Robert W. Bowens, appeals from the judgment of conviction, rendered after a court trial, of criminal possession of a firearm in violation of General Statutes § 53a-217 (a) (1). On appeal, the defendant claims that the court improperly denied his motions for a judgment of acquittal because there was insufficient evidence to support a conclusion that he constructively possessed a firearm. We affirm the judgment of the trial court.

The court, as the finder of fact, reasonably could have found the following facts. At approximately 2 a.m. on March 5, 2006, Officer Domenic Tartaglia of the Bridgeport police department was helping a stranded motorist on the comer of 5th Street and Stratford Avenue, located in the east side of Bridgeport, when he heard several gunshots fired a few blocks away, in the area of Bunnell Street and Stratford Avenue. Several minutes later, Gilbert DelVaile, a sergeant with the Bridgeport police department, spoke with two men on the comer of 6th Street and Connecticut Avenue who stated that they saw a white car leave the area immediately after the gunshots were fired. DelVaile used his radio to inform the other officers that the suspect might be driving a white car, and, immediately thereafter, he heard several more gunshots fired a few blocks away. Although the officers canvassed both areas where gunshots were heard, which were only a few blocks from each other, nobody appeared to be injured.

While Tartaglia was canvassing the area in his police car, a white Ford Taums that was driven by the defendant proceeded in front of Tartaglia on Stratford Avenue. Tartaglia followed the Taums onto Bunnell Street and then onto Connecticut Avenue, although he waited for backup to arrive before attempting to stop the car. Once DelVaile was able to join Tartaglia, Tartaglia activated his emergency lights and stopped the Taums at the comer of 5th Street and Connecticut Avenue. As Tartaglia and DelVaile approached the Taums, however, it sped away, engaging the officers in a pursuit. Tartaglia proceeded to chase the Taums down Connecticut Avenue, across 4th Street and up Stratford Avenue until it hit the curb and became disabled when the defendant attempted to negotiate a hard right turn onto Logan Street. The defendant and the passenger then exited the Taums and ran in different directions. Before fleeing, though, the defendant stood next to the Taums under a streetlight and in front of the cruiser’s headlights and looked at Tartaglia, during which time Tartag-lia got a good view of the defendant at a distance of approximately twenty feet.

DelValle then arrived and secured the crash scene while Tartaglia chased the defendant on foot through several backyards and over several fences. Although Tartaglia lost track of the defendant, he was able to inform the other officers over the radio which direction the defendant was headed and that the defendant was wearing a baseball cap, a black jacket and had braids. Roughly fifteen minutes later, Officer Peter Billings of the Bridgeport police department saw the defendant using a pay telephone at the comer of Connecticut Avenue and Waterman Street. The defendant had braids, was wearing a T-shirt, and was bleeding from a leg wound that was visible through his ripped pants. Billings believed it odd that the defendant was wearing only a T-shirt because the temperature was below freezing. Because the defendant matched the description provided by Tartaglia and was not wearing clothing suited to the weather, Billings detained the defendant, who, shortly thereafter, was identified by Tartaglia as the driver of the Taurus whom he had chased.

Contemporaneous with these events, DelValle looked inside the Taurus to discern whether anybody was injured or any weapons were present. In plain view, DelValle observed a bag on the floor in front of the passenger seat that contained 12.5 grams of heroin, which had been divided into fifty-three small envelopes. In the same location was a small bag containing .162 grams of marijuana. Additionally, DelValle observed a .38 caliber shell casing located in plain view on the floor behind the passenger seat. After turning over scene security to another officer, DelValle retraced the chase route to ascertain whether any additional evidence had been discarded. Although neither Tartaglia nor DelValle saw anyone throw anything from the Taurus, DelValle did find a Charter Arms .38 caliber revolver on the sidewalk in front of 73 4th Street, which was along the chase route. It subsequently was confirmed by Marshall Robinson, an expert firearms examiner, that the shell casing found on the floor behind the passenger seat of the Taurus was fired from the revolver that was found along the chase route. Robinson additionally explained that this revolver does not eject a shell casing after it is fired; the operator must open the cylinder manually and remove the spent shell casing.

The defendant then was arrested and processed, at which time it was revealed that he had $1293 in cash on his person. After being processed, the defendant was interviewed by Santiago Llanos and Sanford Dow-ling, both detectives with the Bridgeport police department and members of a joint task force involving the federal Bureau of Alcohol, Tobacco and Firearms and the Bridgeport police department. During the interview, the detectives explained that they had information that the defendant’s life was in danger because he previously had witnessed the murder of his friend, known as Tookie. The defendant acknowledged that his life was in danger, and he also stated that he had been shot at earlier in the day. He continued by explaining that he had cut his leg jumping over fences in an attempt to get away from the gunshots he had heard fired earlier in the evening. Although the defendant initially stated that he had not been in the Taurus, he modified that statement once he had learned that the car was being checked for fingerprints, admitting that he had been in the Taurus but only for a brief period of time. Additionally, the defendant admitted to the detectives that he knew Quesha Rogers, who had rented the Taurus from the Hertz Corporation the day before.

The defendant was charged in a substitute information with criminal possession of a firearm in violation of § 53a-217 (a) (1); possession of narcotics with intent to sell in violation of General Statutes § 2 la-277 (a); possession of narcotics with intent to sell by a person who is not drug-dependent in violation of General Statutes § 21a-278 (b); possession of a weapon in a motor vehicle in violation of General Statutes § 29-38; and engaging the police in a pursuit in violation of General Statutes § 14-223 (b). Although the defendant initially elected a jury trial to resolve all counts, he moved to sever the counts and waived his right to a jury trial on the count of criminal possession of a firearm by a felon. A trial was held between April 10 and 13, 2007, although the court declared a mistrial because the jury inadvertently had been exposed to improper evidence during its deliberations. After dismissing the jury, the court proceeded to find the defendant guilty of criminal possession of a firearm by a felon. Subsequently, the court denied the defendant’s motions for a judgment of acquittal and for a new trial and sentenced him to a term of five years imprisonment, two years of which were mandatory. This appeal followed.

The gravamen of the defendant’s arguments is that the court improperly denied his motions for a judgment of acquittal because the evidence did not support his conviction of criminal possession of a firearm. We disagree.

“In reviewing a sufficiency of the evidence claim, we apply a two-part test. First, we construe the evidence in the light most favorable to sustaining the verdict. Second, we determine whether upon the facts so construed and the inferences reasonably drawn therefrom the 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. . . . This does not require that each subordinate conclusion established by or inferred from the evidence, or even from other inferences, be proved beyond a reasonable doubt . . . because this court has held that a jury’s factual inferences that support a guilty verdict need only be reasonable. . . .

“[A]s we have often noted, proof beyond a reasonable doubt does not mean proof beyond all possible doubt . . . nor does proof beyond a reasonable doubt require acceptance of eveiy hypothesis of innocence posed by the defendant that, had it been found credible by the trier, would have resulted in an acquittal. ... On appeal, we do not ask whether there is a reasonable view of the evidence that would support a reasonable hypothesis of innocence. We ask, instead, whether there is a reasonable view of the evidence that supports the jury’s verdict of guilty. . . . Furthermore, [i]n [our] process of review, it does not diminish the probative force of the evidence that it consists, in whole or in part, of evidence that is circumstantial rather than direct. ... It is not one fact, but the cumulative impact of a multitude of facts which establishes guilt in a case involving substantial circumstantial evidence. . . . Indeed, direct evidence of the accused’s state of mind is rarely available. . . . Therefore, intent is often inferred from conduct . . . and from the cumulative effect of the circumstantial evidence and the rational inferences drawn therefrom. . . . [A]ny such inference cannot be based on possibilities, surmise or conjecture. ... It is axiomatic, therefore, that [a]ny [inference] drawn must be rational and founded upon the evidence.” (Internal quotation marks omitted.) State v. Aloi, 280 Conn. 824, 842-43, 911 A.2d 1086 (2007).

With these principles in mind, we now turn to the defendant’s claims. General Statutes § 53a-217 (a) provides in relevant part: “A person is guilty of criminal possession of a firearm . . . when such person possesses a firearm . . . and (1) has been convicted of a felony . . . .’’In this case, the defendant stipulated that he was a convicted felon on March 5, 2006, the day of the events at issue, and conceded that there was ample evidence in the record for a fact finder reasonably to have concluded both that the .38 caliber handgun found along the chase route was a revolver as defined by General Statutes § 53a-3 (18) and that the firearm was operable as defined in § 53a-3 (19). Accordingly, the only issue in dispute is whether there was sufficient evidence that the defendant had possession of the firearm that was found by DelValle along the chase route and whose shell casing was found behind the passenger’s seat in the Taurus.

“Possess,” as defined in § 53a-3 (2), “means to have physical possession or otherwise to exercise dominion or control over tangible property. ...” Our jurisprudence elucidating this definition teaches that such possession may be actual or constructive. See State v. Williams, 110 Conn. App. 778, 785-87, 956 A.2d 1176, cert. denied, 289 Conn. 957, 961 A.2d 424 (2008). Nevertheless, “[b]oth actual and constructive possession require a person to exercise dominion and control over the [contraband] and to have knowledge of its presence and character. . . . Actual possession requires the defendant to have had direct physical contact with the [contraband]. . . . Typically, the state will proceed under a theory of constructive possession when the [contraband is] not found on the defendant’s person at the time of arrest, but the accused still exercises dominion and control.” (Citations omitted; internal quotation marks omitted.) State v. Coleman, 114 Conn. App. 722, 728, 971 A.2d 46, cert. denied, 293 Conn. 907, 978 A.2d 1112 (2009). In this regard, “[t]he essence of exercising control is not the manifestation of an act of control but instead it is the act of being in a position of control coupled with the requisite mental intent. In our criminal statutes involving possession, this control must be exercised intentionally and with knowledge of the character of the controlled object.” State v. Hill, 201 Conn. 505, 516, 523 A.2d 1252 (1986). Consequently, to prove that the defendant constructively possessed the firearm, it was the state’s burden to prove that he knowingly had the power and the intention at a given time of exercising dominion and control over the firearm.

Finally, we note that when, as here, the defendant is not in exclusive possession of the place where the contraband is found, it may not be inferred that the defendant knew of the presence of the contraband and had control of it, unless there are other incriminating statements or circumstances tending to support such an inference. See State v. Sanchez, 75 Conn. App. 223, 242, 815 A.2d 242, cert. denied, 263 Conn. 914, 821 A.2d 769 (2003). Accordingly, “[t]o mitigate the possibility that innocent persons might be prosecuted for . . . possessory offenses ... it is essential that the state’s evidence include more than just a temporal and spatial nexus between the defendant and the contraband.” (Internal quotation marks omitted.) State v. Davis, 84 Conn. App. 505, 510, 854 A.2d 67, cert. denied, 271 Conn. 922, 859 A.2d 581 (2004).

With respect to the requirement that the defendant had knowledge of the presence and character of the .38 caliber revolver, we conclude that it was reasonable for the court to have found both that the revolver was in the Taurus and that the defendant knew of its presence and its character. In the first instance, we conclude that it is reasonable to infer from the evidence that the .38 caliber revolver found along the chase route was in the Taurus that the defendant had been driving on the night in question. The evidence revealed that immediately after gunshots had been fired in two separate locations just a few blocks away from each other, witnesses saw a white car leaving the area of one of the shootings, the defendant was driving a white Ford Taurus, and he ran from the police after being stopped. Subsequently, a revolver was found along the route that the police had chased the defendant as he fled from them, and the shell casing in the backseat of the Taurus was from a bullet fired from the revolver the police had recovered. See, e.g., United States v. McKissick, 204 F.3d 1282, 1291 (10th Cir. 2000) (defendant constructively possessed firearm where shell casing found in his car matched shell casings at crime scene even though gun not found); Warren v. State, 289 Ga. App. 481, 484, 657 S.E.2d 533 (where witness saw defendant shoot man and gun recovered from defendant’s home did not match shell casing at crime scene, defendant held to possess constructively both gun found at home and gun used to shoot man even though second gun could not be found), cert. denied, 2008 Ga. LEXIS 508 (June 2, 2008). As in both McKissick and Warren, the possession by the defendant in this case of a shell casing that was linked definitively to an illegal firearm strongly supports a conclusion that he possessed the revolver. Consequently, the cumulative weight of these facts supports a reasonable inference that the revolver was in the Taurus operated by the defendant.

We likewise determine that the evidence supports a conclusion that the defendant knew of the revolver’s presence in the Taurus and was aware of its character. Robinson, the firearms examiner, explained that the revolver in question did not automatically eject the shell after a round was fired but, instead, required the cylinder to be opened and the spent shells to be removed. When considered in light of the fact that the revolver only held five rounds and that there were two series of gunshots fired at two different locations a few blocks from each other, it was reasonable for the court to have concluded that either the defendant or the passenger, while in the Taurus, removed the spent shells and reloaded the revolver between the two shootings. The reloading of a revolver by either the defendant or the passenger in the seat next to him provided a sufficient basis from which the court reasonably could have concluded that the defendant knew of the presence and the character of the revolver in the Taurus he was driving. See State v. Williams, 258 Conn. 1, 14-15, 778 A.2d 186 (2001) (gun located in plain view of driver is sufficient evidence of defendant’s knowledge and character of gun). It therefore was reasonable for the court to have concluded that the defendant was aware of the presence and character of the revolver that likely was reloaded in the car while the defendant was driving.

Having concluded both that the revolver was in the Taurus driven by the defendant while fleeing from the police and that he was aware of the revolver’s presence and character, we next inquire whether he exercised control or dominion over the revolver. We begin by noting that the defendant was driving the Taurus containing the revolver, which itself suggests control of the firearm. See United States v. Hastings, 918 F.2d 369, 373-74 (2d Cir. 1990) (possession of firearm in car operated by defendant evidence of control and dominion of firearm). More compelling, however, is the fact that the defendant fled from the police and only the revolver was discarded, leaving the heroin and marijuana in the car. This suggests that the motivation in fleeing was to jettison the revolver. These evasive actions could not have been undertaken without the defendant’s active participation, and they suggest that the defendant acted in concert with the passenger to dispose of the revolver. See McDaniels v. United States, 718 A.2d 530, 532 (D.C. 1998) (driver of car containing firearms had dominion and control of firearms because he attempted to evade police); Logan v. United States, 489 A.2d 485, 491-92 (D.C. 1985) (driver of car containing firearm had dominion and control because he acted in concert with passengers to dispose of weapon before stopping for police). Accordingly, we conclude that there was sufficient evidence from which the court reasonably could'have concluded that the defendant exercised dominion and control over the revolver.

Moreover, there also were other factors that would support a reasonable inference that the defendant possessed the revolver. At the time of the defendant’s arrest, he was in possession of $1293 in cash, and there was both heroin and marijuana in the car he was operating, which bolsters a conclusion that the defendant also possessed a firearm because the connection between drug dealing and firearms is well established. See State v. Mann, 271 Conn. 300, 325, 857 A.2d 329 (2004) (“Connecticut courts repeatedly have noted that [t]here is a well established correlation between drug dealing and firearms. . . . Federal courts also have recognized this fact of life.” [Citations omitted; internal quotation marks omitted.]), cert. denied, 544 U.S. 949, 125 S. Ct. 1711, 161 L. Ed. 2d 527 (2005). Additionally, the defendant fled from the police twice, once in the Taurus and a second time on foot. “[Our Supreme Court] previously has stated that [f]light, when unexplained, tends to prove a consciousness of guilt. . . . Flight is a form of circumstantial evidence.” (Internal quotation marks omitted.) State v. Luther, 114 Conn. App. 799, 817, 971 A.2d 781, cert. denied, 293 Conn. 907, 978 A.2d 1112 (2009). In the present case, the defendant did not discard the heroin or marijuana while fleeing, and his flight was otherwise unexplained, which suggests that the primary reason for the flight was to jettison the revolver. Thus, both the defendant’s possession of drugs and his fleeing from the police further support a conclusion that the revolver found by DelValle was constructively possessed by the defendant on the night in question.

It bears emphasis that although “mere proximity to a gun is not alone sufficient to establish constructive possession, evidence of some other factor — including connection with a gun, proof of motive, a gesture implying control, evasive conduct, or a statement indicating involvement in an enterprise — coupled with proximity may suffice.” (Internal quotation marks omitted.) United States v. Mayberry, 540 F.3d 506, 514 (6th Cir. 2008). In this case, two separate series of gunshots were heard just a few blocks from one another. Witnesses described a white car leaving the scene immediately after the shootings, and the defendant was driving a white Taurus in the vicinity of the shootings shortly after the gunshots were heard. When the police attempted to stop the Taurus, the defendant fled, first in the Taurus and then on foot. In addition to the narcotics and the $1293 found in the defendant’s possession, the police also recovered a .38 caliber shell casing from the Taurus. That shell casing had been a part of a bullet fired from the .38 caliber revolver that was found along the chase route, and that model firearm requires its operator to remove its spent shells manually before it can be reloaded. Moreover, the defendant had motivation to possess a firearm because he previously witnessed a homicide and knew that his life was in danger. Finally, it is noted that the defendant initially lied to the police about even being in the Taurus, and he was operating a car that contained fifty-three individual envelopes of heroin and a bag of marijuana on the floor in front of the passenger seat. Thus, in addition to the defendant’s physical proximity to the shell casing found in the Taurus, there also is evidence of “connection with a gun, proof of motive . . . [and] evasive conduct”; (internal quotation marks omitted) id.; that further bolsters the court’s finding of constructive possession. The cumulative impact of this evidence affords sufficient evidentiary support for the court reasonably to have concluded that the defendant was in constructive possession of the revolver.

The defendant’s first rejoinder to the sufficiency of this evidence is that it is insufficient because it was not supported by any direct evidence. Specifically, the defendant notes that there were no fingerprints found on the revolver, no eyewitnesses saw him with the revolver, and the police did not conduct a gun residue test to determine whether he had fired a gun on the night in question. That argument, however, is unavailing. As our case law makes clear, “[i]n [our] process of review, it does not diminish the probative force of the evidence that it consists, in whole or in part, of evidence that is circumstantial rather than direct. ... It is not one fact, but the cumulative impact of a multitude of facts which establishes guilt in a case involving substantial circumstantial evidence.” (Internal quotation marks omitted.) State v. Aloi, supra, 280 Conn. 842-43. Accordingly, the dearth of direct evidence in this case is of no moment because, as explained previously, there was sufficient circumstantial evidence from which the court reasonably could have concluded that the defendant was in constructive possession of the revolver.

Next, the defendant argues that there was insufficient evidence that he criminally possessed a firearm because a person may be at the scene of a crime, know criminality to be afoot and, nevertheless, not be involved in criminal activity. In support of this proposition, the defendant cites United States v. Johnson, 513 F.2d 819, 823-24 (2d Cir. 1975), in which the court held that there was insufficient evidence of constructive possession where the defendant had been a passenger in a car containing hidden narcotics and had lied to the police. In that case, however, there was no evidence that the defendant had knowledge of the narcotics that were hidden inside the front door panel on the passenger’s side. Id. In the present case, by contrast, the revolver had to be in plain sight while it was being reloaded, supporting a conclusion that the defendant had knowledge of the revolver. Moreover, in Johnson, the defendant was the passenger of the car and took no steps to control the drugs that he did not know existed in the passenger’s side door. Id., 823. Here, the evidence reasonably supported a conclusion that the defendant acted in concert with the passenger to dispose of the revolver, which bolsters a conclusion that the defendant exercised dominion and control over the revolver. Consequently, the defendant’s reliance on Johnson is misplaced.

The defendant next cites State v. Brunori, 22 Conn. App. 431, 440, 578 A.2d 139, cert. denied, 216 Conn. 814, 580 A.2d 61 (1990), in support of his argument that the revolver recovered along the chase route could not be ascribed to him unless the police observed some furtive movement to suggest that he discarded an object. That case, however, is inapposite to the facts presented here. In Brunori, the defendant was standing in a public area outside an apartment complex with two other men when the police approached. Id., 432-33. As the police drew closer, the defendant bent down and then stood up and began walking away with the other two men. Id. Although the police did not see the defendant discard an object when he bent down, they did recover cocaine and a hypodermic needle in the proximate area where the defendant originally had been standing. Id., 433-34. Noting that “a defendant who was never observed placing or discarding the contraband in the location it was later discovered cannot be found guilty of possession in the absence of other evidence”; id., 434; the court held that there had been insufficient evidence to convict the defendant of possessing narcotics. By contrast, the defendant here was driving a car that contained a shell casing that came from the revolver that was recovered along the chase route. Indeed, Robinson testified that the “cartridge case [recovered from the Taurus] was fired in [the revolver found along the chase route] to the exclusion of all other firearms in the world.” Thus, there is a direct link between the defendant and the discarded contraband in this case that conspicuously was absent in Brunori.

The defendant’s final argument is that there was insufficient evidence to support his conviction of criminal possession of a firearm because he was not solely in possession of the car in which the contraband had been located. Citing State v. Cruz, 28 Conn. App. 575, 579-80, 611 A.2d 457 (1992), the defendant argues that because possession may not be inferred from nonexclusive possession absent other incriminating circumstances, there was insufficient evidence of possession in this case because there was a passenger in the Taurus with the defendant and other incriminating evidence is absent. We do not agree with this claim.

In the first instance, we note that in Cruz there was no more than a temporal and spatial nexus between the defendant and the contraband. The marijuana seed that was located in the backseat of the car operated by the defendant in Cruz was detected only after the police used a 30,000 candlepower flashlight to examine the car’s interior, and the “E-Z Wider” cigarette rolling papers were found in the center console. Id., 577. Thus, it was less likely that the defendant in Cruz knew of the contraband’s presence in the car he was driving than is true of the defendant in the present case. Moreover, in Cruz, the defendant did not take evasive action that manifested an intent to exercise dominion and control over the contraband, which stands in contradistinction to the actions of the defendant in this case. From those actions, it can be reasonably inferred that the defendant fled the police for the express purpose of discarding the revolver.

State v. Cruz, supra, 28 Conn. App. 575, also is distinguishable because there were incriminating circumstances in the present case that were not present in Cruz. By way of example, in the present case, the police were investigating two shootings, and witnesses at the scene described the type of car the defendant was driving and stated that it had left the scene immediately after the gunshots were heard. In Cruz, the police were engaged in a routine traffic stop rather than investigating an allegation that a person driving a car like the one operated by the defendant was in possession of illicit substances. Id., 576. Similarly, the defendant in the present case engaged the police in two separate pursuits, which, as explained previously, was further evidence of a consciousness of guilt. The defendant in Cruz did not run from the police and, in fact, was cooperative. Id. Accordingly, we conclude that Cruz is distinguishable from the present case both because there was evidence that the defendant here knew the revolver was in the Taurus and exercised dominion and control over it and because there were additional incriminating circumstances in the present case that were not present in Cruz.

The judgment is affirmed.

In this opinion the other judges concurred.

       This task force was formed to conduct gun investigations, to recover firearms to target illegal sales of firearms and to target drug gangs who use firearms to commit crimes. It is comprised of a federal and state prosecutor, special agents from the federal Bureau of Alcohol, Tobacco and Firearms and officers and detectives from the Bridgeport police department.

       The defendant subsequently was found guilty by a different jury of possession of marijuana in violation of General Statutes § 21a-279 (c); possession of a weapon in a motor vehicle in violation of § 29-38; and disregard of an officer’s signal in violation of § 14-223 (b). He was sentenced to a total of seven years imprisonment.

       In addition to evidencing dominion and control over the revolver, the evasive maneuvers taken by the defendant to discard only the revolver, while leaving the heroin and marijuana in the car, further buttress a conclusion that the revolver was in the Taurus and that the defendant knew of the revolver’s presence and character.

       During oral argument, the defendant attempted to distinguish McDaniels on the ground that the defendant in that case owned the car he was driving, whereas the defendant in this case did not own the Taurus he was driving. We are not persuaded by such a distinction because there was sufficient evidence for the defendant here to have been found in constructive possession of the Taurus and the revolver, irrespective of who legally owned the Taurus. Although ownership may be evidence of constructive possession; see United States v. Harris, 369 F.3d 1157, 1163-64 (10th Cir.) (“[t]o prove constructive possession, the [g]ovemment must show that [defendant knowingly held ownership, dominion or control over the object and premises where the contraband was found” [emphasis added; internal quotation marks omitted]), cert. denied, 543 U.S. 915, 125 S. Ct. 118, 160 L. Ed. 2d 198 (2004); ownership is not necessary for constructive possession to be established. See United States v. DeCologero, 530 F.3d 36, 67 (1st Cir.) (“[constructive possession can be joint, does not require actual ownership of the firearm, and can be established through circumstantial evidence”), cert. denied, 555 U.S. 1005, 129 S. Ct. 513, 172 L. Ed. 2d 376 (2008).


author: WEST, J.

text:
    JASON M. DAY v. COMMISSIONER OF CORRECTION
    (AC 29604)
    Beach, Alvord and West, Js.

      Argued September 16
    officially released November 24, 2009

      Mary Boehlert, special public defender, for the appellant (petitioner).

      Gerard P. Eisenman, senior assistant state’s attorney, with whom, on the brief, was John C. Smriga, state’s attorney, for the appellee (respondent).
   Opinion

WEST, J.

The petitioner, Jason M. Day, appeals from the judgment of the habeas court denying his second petition for a writ of habeas corpus. The court granted the petition for certification to appeal. The petitioner makes two claims on appeal. First, the petitioner claims that the court abused its discretion when it refused to grant him a continuance to appeal from a previous denial of his pro se application to subpoena his trial counsel to testify at the habeas trial. Second, the petitioner claims that the court improperly denied his petition because an actual conflict of interest existed between the petitioner and his counsel from his first habeas trial that prevented the petitioner from receiving effective assistance of counsel. We affirm the judgment of the habeas court.

In 1991, the petitioner was convicted of one count of capital felony in violation of General Statutes § 53a-54b (8), four counts of murder in violation of General Statutes § 53a-54a (a) and one count of assault in the third degree in violation of General Statutes § 53a-61 (a) (l). Our Supreme Court affirmed the petitioner’s underlying conviction in State v. Day, 233 Conn. 813, 661 A.2d 539 (1995). On March 2, 2001, through counsel, the petitioner filed his first amended petition for a writ of habeas coxpus. In it, he alleged numerous claims of ineffectiveness on the part of his trial counsel. After a hearing, the petition was denied. This court affirmed that judgment in Day v. Commissioner of Correction, 86 Conn. App. 522, 862 A.2d 309 (2004). On June 7, 2005, the petitioner then filed the pro se habeas corpus petition that is the subject of this appeal. In it, the petitioner claimed that he was denied his statutory right to the effective assistance of habeas counsel because his attorney, James J. Ruane, had failed to raise a claim of actual innocence and a specific claim concerning ineffective assistance of trial counsel in the habeas petition filed in 2001. By memorandum of decision issued August 27, 2007, the court, A. Santos, J., denied the petition and subsequently granted certification to appeal. Further facts will be set forth as necessary.

I

The petitioner first claims that the court abused its discretion when it refused to grant him a continuance to appeal from a previous denial of his request to subpoena his trial counsel to testify at the habeas trial. We disagree.

The following facts and procedural history are relevant to our resolution of the petitioner’s claim. On December 1, 2006, the petitioner filed with the court a pro se application to subpoena his trial counsel to testify at the habeas trial. He sought the issuance of subpoenas for attorney Patrick J. Culligan and then attorney William Holden, each of whom had represented the petitioner at his criminal trial. On January 10, 2007, the court, Swords, J., denied the petitioner’s application. On February 6,2007, the petitioner, pursuant to General Statutes § 52-470, filed with the court a petition for certification to appeal from, inter alia, the court’s denial of his application to subpoena Culligan and Holden. On March 27, 2007, Judge Swords denied the petition for certification to appeal.

The habeas trial commenced on May 7, 2007. Preliminarily, Judge Santos addressed the petitioner’s request for a continuance to pursue his appeal from Judge Swords’ denial of his application for subpoenas. The petitioner stated, “I appealed [Judge Swords’] denial to the Appellate Court. Inadvertently, it was sent to the wrong address.” The petitioner informed the court, upon its inquiry, that he had sought to subpoena his trial counsel, Culligan and Holden. Judge Santos then inquired whether Gerard P. Eisenman, the senior assistant state’s attorney representing the respondent, the commissioner of correction, was aware of the petitioner’s purported appeal. Eisenman stated that he was aware of it but that he believed that the Appellate Court would not reach the merits of any such appeal because it was not brought from an appealable final judgment. The court denied the petitioner’s request for a continuance.

“It is well settled that [t]he determination of whether to grant a request for a continuance is within the discretion of the trial court, and will not be disturbed on appeal absent an abuse of discretion. ... A reviewing court is bound by the principle that [e]very reasonable presumption in favor of the proper exercise of the trial court’s discretion will be made. . . . Our role as an appellate court is not to substitute our judgment for that of a trial court that has chosen one of many reasonable alternatives. . . . Therefore, on appeal, we . . . must determine whether the trial court’s decision denying the request for a continuance was arbitrary or unreasonable].” (Internal quotation marks omitted.) Hamlin v. Commissioner of Correction, 113 Conn. App. 586, 592, 967 A.2d 525, cert. denied, 291 Conn. 917, 970 A.2d 728 (2009).

Here, the request for a continuance was made at the start of the habeas trial. “We are especially hesitant to find an abuse of discretion where the court has denied a motion for continuance made on the day of the trial.” (Internal quotation marks omitted.) Id., 593. Moreover, the petitioner immediately qualified his representation to the court that an appeal had been filed by admitting that it inadvertently had been mailed to the wrong address. Our review of the record reveals that it is bereft of any indication that an appeal actually was filed at the time of the court’s denial of the petitioner’s request. See id. (“[t]he right of a [petitioner] to a continuance is not absolute and the propriety of a denial of one is to be found in the circumstances present in every case, particularly in the reasons presented to the trial judge at the time the request is denied” [emphasis added; internal quotation marks omitted]). Therefore, we cannot conclude that the court abused its discretion in denying the petitioner’s request for a continuance at the start of trial to await the adjudication of an appeal that, by the petitioner’s admission, had yet to be filed properly.

II

Next, the petitioner claims that the court improperly denied his petition because an actual conflict of interest existed between him and his counsel from his first habeas trial that prevented the petitioner from receiving effective assistance of counsel. Specifically, the petitioner claims that a conflict arose when Ruane advised the petitioner that he could not in good conscience raise a claim of actual innocence or a claim involving trial counsel’s failure to request a specific jury instruction. We disagree.

“[A] petitioner in a habeas proceeding has both the right to effective assistance of habeas counsel and the right to be represented by habeas counsel who is free from conflicts of interest.” Morgan v. Commissioner of Correction, 87 Conn. App. 126, 133, 866 A.2d 649 (2005). We must determine, therefore, whether a conflict of interest existed.

“Our Supreme Court has established the proof requirements where a habeas corpus petitioner claims ineffective assistance of counsel because of a claimed conflict of interest. Where . . . the defendant claims that his counsel was burdened by an actual conflict of interest . . . the defendant need not establish actual prejudice. . . . Where there is an actual conflict of interest, prejudice is presumed because counsel [has] breach[ed] the duty of loyalty, perhaps the most basic of counsel’s duties. Moreover, it is difficult to measure the precise effect on the defense of representation corrupted by conflicting interests. ... In a case of a claimed conflict of interest, therefore, in order to establish a violation of the sixth amendment the defendant has a two-pronged task. He must establish (1) that counsel actively represented conflicting interests and (2) that an actual conflict of interest adversely affected his lawyer’s performance. . . .

“On appellate review, the historical facts found by the habeas court may not be disturbed unless they were clearly erroneous . . . .” (Internal quotation marks omitted.) Myers v. Commissioner of Correction, 68 Conn. App. 31, 34, 789 A.2d 999, cert. denied, 260 Conn. 907, 795 A.2d 545 (2002). When, however, as in this case, those facts are essential to a determination of whether the petitioner’s sixth amendment rights have been violated, we are presented with a mixed question of law and fact requiring plenary review. See id.

The petitioner claims that an actual conflict of interest resulted from “Ruane’s refusal to adequately and independently investigate the petitioner’s claims [of actual innocence and trial counsel’s failure to request a specific juiy instruction; see footnote 5]; and by refusing to follow [the petitioner’s] request to withdraw from his representation if he refused to pursue the . . . strategy communicated by [the petitioner].” On the basis of our review of the record, we conclude that the petitioner’s claim has no merit. Ruane testified at the petitioner’s habeas trial. That testimony reflects that he adequately and independently investigated each of the petitioner’s claims at issue here and correctly declined to withdraw from his representation of the petitioner because of the alleged conflict of interest. Cf. Santiago v. Commissioner of Correction, 87 Conn. App. 568, 591 n.20, 867 A.2d 70 (“[i]n determining whether counsel's performance was adversely affected by an actual conflict of interest, counsel’s testimony regarding the reasons for his or her trial strategy is wholly proper evidence to be considered and credited by the court”), cert. denied, 273 Conn. 930, 873 A.2d 997 (2005).

The petitioner has failed to demonstrate, and the record does not reveal, that Ruane actively represented conflicting interests as a result of either circumstance of which the petitioner complains. There was no evidence that Ruane’s interests were diverse from those of the petitioner or that his performance was affected adversely by any alleged conflict. See Myers v. Commissioner of Correction, supra, 68 Conn. App. 34.

The judgment is affirmed.

In this opinion the other judges concurred.

       Our Supreme Court set out the following facts that underlie the petitioner’s conviction: “In early 1990, the [petitioner] resided in a one bedroom apartment in Bridgeport with his girlfriend, Lisa G.; Lisa’s brother, Raymond G. ; Raymond’s girlfriend, Theresa H.; Gloria S.; and Theresa’s sons, five year old George G. and two year old Marcus G. Sometime before 10 p.m. on March 19, 1990, the [petitioner] shot and killed Raymond G., Lisa G. and George G. in the apartment. The [petitioner] also shot and killed Theresa H. while she was in her car in the parking area of the apartment house and dragged her body to an adjacent storage shed. Either before or after shooting Theresa H., the [petitioner] repeatedly struck her in the head with the blade of a snow shovel. Each victim was shot in the head from close range. Marcus G., who was present in the apartment when the shootings took place, had been slapped in the face by the [petitioner] but had not been shot. The [petitioner] thereafter drove Theresa H.’s car to a hospital in New York City, where he requested treatment under an assumed name and was diagnosed as having a fractured toe. Although he was scheduled for surgery, the [petitioner] left the hospital before the operation was due to be performed. He subsequently was apprehended in a hospital in Baltimore by agents of the Federal Bureau of Investigation (FBI) on charges of unlawful flight to avoid prosecution. While in custody, the [petitioner] confessed his role in the killings to FBI agents.” State v. Day, 233 Conn. 813, 817, 661 A.2d 539 (1995).

       The record reveals that the petitioner also sought to subpoena Ruane, his previous habeas counsel, to testify at the second habeas trial. The court granted this application.

       The Honorable William Holden is currently a Superior Court judge.

       At oral argument before this court, counsel for the petitioner conceded that there was no indication in the record that he had filed the appeal in question at the time of the court’s denial of his request for a continuance.
      The petitioner also seems to argue that regardless of whether the appeal from the denial of his application for subpoenas for Culligan and Holden had been properly filed at the time of the request for a continuance, the court abused its discretion in denying the request. He contends that because the respondent would not have been put at a disadvantage or undue hardship by a continuance and that he was substantially impaired in presenting his case, the court had no legitimate reason to deny his request for a continuance to await the outcome of an appeal. We cannot agree.
      “We have identified several factors that a trial court may consider when exercising its discretion in granting or denying a motion for continuance. . . . These factors include the likely length of the delay . . . the impact of delay on the litigants, witnesses, opposing counsel and the court . . . the perceived legitimacy of the reasons proffered in support of the request . . . [and] the likelihood that the denial would substantially impair the [petitioner’s] ability to [present his case].” (Internal quotation marks omitted.) State v. Lopez, 280 Conn. 779, 787, 911 A.2d 1099 (2007). We also note that the court need not have considered all of those factors enumerated in exercising its discretion to deny the petitioner’s request for a continuance. See West Haven Lumber Co. v. Sentry Construction Corp., 117 Conn. App. 465, 471, 979 A.2d 591 (2009).
      The record reveals, however, that the court considered the timeliness of the request as well as the likelihood that the denial would substantially impair the petitioner’s ability to present his case. Moreover, the court was provided with no evidence as to the likely length of the delay to be caused by the continuance. On the basis of our review of the record, therefore, we cannot agree that the court abused its discretion when it denied the petitioner’s request for a continuance.

       On direct appeal from his criminal conviction, the petitioner made a claim concerning the “ ‘two witness’ rule codified at General Statutes § 54-83, which provides that ‘[n]o person may be convicted of any crime punishable by death without the testimony of at least two witnesses, or that which is equivalent thereto.’ Although the [petitioner] neither [asked] the trial court to charge on the statute nor excepted to the jury charge as given, [on appeal] he . . . claim[ed] that the court’s failure to instruct the jury on the rule requires that his conviction be reversed.” State v. Day, supra, 233 Conn. 848. Our Supreme Court concluded that because it was not more likely than not that the trial court’s failure to instruct on § 54-83 affected the verdict, the petitioner could not prevail on his claim of plain error. See id., 852. It is with regard to trial counsel’s alleged failure to challenge that jury charge that the petitioner requested that Ruane file the claim in question in this appeal.

       Ruane testified that he investigated the possibility of asserting the petitioner’s claim of actual innocence but that he “could not find sufficient evidence to make that claim go forward.” Ruane testified that he reviewed the entire file and transcript from the petitioner’s criminal trial and interviewed Culligan, Holden and the petitioner. He also testified that he found no newly discovered evidence to support a claim of actual innocence. Ruane, on the basis of that investigation, concluded that the claim of actual innocence had no merit. Ruane also testified that in regard to the proposed jury instruction claim, he interviewed the attorney who represented the petitioner in the direct appeal from the criminal conviction. Ruane concluded, on the basis of that investigation, that the issue involving the jury instruction also had no merit. Ruane also testified that he viewed the disagreement as one involving the merit of proposed claims and not a conflict of interest with the petitioner and, therefore, concluded that he should not withdraw from his representation.


author: PER CURIAM.

text:
    EMIL D. ANGHEL v. SAINT FRANCIS HOSPITAL AND MEDICAL CENTER
    (AC 30614)
    Flynn, C. J., and Beach and Robinson, Js.
    Argued September 8
    officially released November 13, 2009

      Emil D. Anghel, pro se, the appellant (plaintiff).

      Jessica D. Meerbergen, with whom, on the brief, was Louis B. Blumenfeld, for the appellee (defendant).

       November 13, 2009, the date that this decision was released as a slip opinion, is the operative date for all substantive and procedural purposes.

   Opinion

PER CURIAM.

The pro se plaintiff, Emil D. Anghel, appeals from the summary judgment rendered by the trial court in favor of the defendant, Saint Francis Hospital and Medical Center. Having considered the respective arguments advanced by the parties, we note that no issues of material fact were in dispute and that the plaintiffs appeal of his original federal action was still pending before the United States Court of Appeals for the Second Circuit at the time he brought the action in state court. Accordingly, we conclude that the plaintiffs reliance on General Statutes § 52-592 was premature. The court properly granted the motion for summary judgment.

The judgment is affirmed.

       Where a layman appears pro se, the court follows a liberal policy and carefully considers a pro se party’s claims as far as they are fairly presented upon the record to ensure that no injustice has been done to him under the law. See Goldstein v. Fischer, 200 Conn. 197, 198, 510 A.2d 184 (1986). Nevertheless, while the plaintiff is afforded this latitude, the court is equally cognizant that “the right of self-representation provides no attendant license not to comply with relevant rules of procedure and substantive law.” (Internal quotation marks omitted.) New Haven v. Bonner, 272 Conn. 489, 498, 863 A.2d 680 (2005).

       General Statutes § 52-592, the accidental failure of suit statute, provides in relevant part: “(a) If any action, commenced within the time limited by law, has failed one or more times to be tried on its merits because of insufficient service or return of the writ due to unavoidable accident or the default or neglect of the officer to whom it was committed, or because the action has been dismissed for want of jurisdiction, or the action has been otherwise avoided or defeated by the death of a party or for any matter of form; or if, in any such action after a verdict for the plaintiff, the judgment has been set aside, or if a judgment of nonsuit has been rendered or a judgment for the plaintiff reversed, the plaintiff . . . may commence a new action . . . for the same cause at any time within one year after the determination of the original action or after the reversal of the judgment. . . .
      “(d) The provisions of this section shall apply to . . . any action brought to the United States circuit or district court for the district of Connecticut which has been dismissed without trial upon its merits or because of lack of jurisdiction in such court. If such action is within the jurisdiction of any state court, the time for bringing the action to the state court shall commence from the date of dismissal in the United States court, or, if an appeal or writ of error has been taken from the dismissal, from the final determination of the appeal or writ of error. . . .”

       We take judicial notice that on October 6, 2009, the Second Circuit dismissed the plaintiffs federal appeal. That dismissal does not effect our analysis of the issues in the present case because it occurred after the trial court rendered summary judgment on the plaintiffs state claim.