author: BEACH, J.

text:
    STATE OF CONNECTICUT v. ALIA K. ALTAJIR
    (AC 31375)
    Bishop, Beach and West, Js.

      Argued May 17
    officially released September 14, 2010

      Moira L. Buckley, with whom, on the brief, was Morgan P. Rueckert, for the appellant (defendant).

      Timothy J. Sugrue, assistant state’s attorney, with whom, on the brief, was David Shepack, state’s attorney, for the appellee (state).
   Opinion

BEACH, J.

The defendant, Alia K. Altajir, appeals from the judgment of the trial court revoking her probation and sentencing her to three years incarceration. The defendant claims that she was denied due process because (1) she did not receive adequate notice, (2) the state was not required to prove by a preponderance of the evidence certain “uncharged violations” of probation raised at the disposition hearing, and (3) the court admitted unreliable evidence and substantially relied on it in rendering its sentence. She also claims that the court abused its discretion by revoking her probation. We affirm the judgment of the trial court.

The following facts and procedural history are relevant to our resolution of the defendant’s appeal. On July 10, 2004, the defendant was involved in a motor vehicle accident. At approximately 2:20 a.m., the defendant lost control of the vehicle she was driving. It crossed the highway and traveled down an embankment before becoming submerged in the Housatonic River. As a result of the accident, a passenger in the vehicle, Dustin Church, died by drowning.

The defendant was thereafter arrested and charged with one count of misconduct with a motor vehicle in violation of General Statutes § 53a-57 and one count of operating a motor vehicle while under the influence of intoxicating liquor or drugs in violation of General Statutes (Rev. to 2003) § 14-227a (a). The defendant subsequently pleaded nolo contendere to both counts.

The defendant’s sentencing hearing was held on January 5,2007. Pursuant to the defendant’s plea agreement, the court imposed a total effective sentence of five years imprisonment, execution suspended after one year, and five years probation, along with several conditions. The defendant was required, inter alia, to use an ignition interlock device on any vehicle owned or operated by her, to attend school full-time or to obtain full-time employment, to perform fifty hours of community service each year of probation, not to operate a vehicle without a valid operator’s license, to abstain from violating any laws and to refrain from leaving the state without permission. The sentencing court stated: “So . . . there are ten or eleven conditions here, plus the normal conditions. If you do ten out of eleven, that is not good enough. If you violate one of those conditions you could be violated and wind up serving the balance of the four years.”

The defendant served her prison term; her period of probation commenced on January 4, 2008. On April 17, 2009, the defendant was involved in a minor motor vehicle accident. A police investigation revealed that the defendant was driving the vehicle without an ignition interlock device installed on it and without a valid driver’s license, both of which were requirements of her probation. As a result, an arrest warrant application was filed on the basis of these two alleged violations of probation. The defendant then was arrested and charged with violating her probation in violation of General Statutes § 53a-32.

The adjudicatory phase of the probation revocation hearing was conducted on May 19,2009. At this hearing, the defendant knowingly and voluntarily admitted to the two violations of probation charged in the arrest warrant: operating a vehicle without a valid license and operating a vehicle without an ignition interlock device in violation of § 53a-32. The court accepted the plea, found the defendant to have violated the two conditions and continued the matter for disposition.

The dispositional phase of the hearing occurred on July 31, 2009. The state sought to have the defendant’s probation revoked and the remaining four years of incarceration imposed. In support of this request, the state made several arguments as to why the defendant was no longer an appropriate candidate for probation. The state reiterated that the defendant admitted to having violated two conditions of her probation. The state also alluded to conduct, which, if charged, could have constituted violations of probation. The conduct was not charged in the warrant or raised in the adjudicatory phase of the violation of probation proceedings. The state suggested that the defendant failed to attend school full-time and to obtain full-time employment. The state provided the defendant’s college transcript, which indicated that she took only two evening classes during the spring, 2009 semester, both of which she failed. The defendant also conceded that she had failed to obtain any form of employment. The state further suggested that the defendant failed fully to perform her required community service hours.

The state also maintained that several photographs of the defendant that were posted on her Facebook page indicated that she had left the state without permission. Many of these photographs also depicted the defendant drinking alcohol and attending various parties and social events. The state conceded that drinking alcohol was not itself illegal and did not in itself violate a condition of the defendant’s probation. The state argued, however, that inferences could be drawn that the defendant possibly could have been drinking and driving and that the photographs purported to show that she had not reformed, nor had she learned from her mistakes. After considerable discussion regarding the photographs, the state sought to have them admitted into evidence. The court, Ginocchio, J., admitted some of the photographs over the defendant’s objection that they were cumulative and inflammatory.

At the conclusion of the dispositional proceeding, the court stated that “I’m looking at these pictures, and all I can think of is, where is the remorse?” The court further stated that “[the defendant] should have had that device in the car, and that really causes the court a great deal of [concern] that she didn’t do that, and it was one of the key points to the probation. She was supposed to abide by all conditions of probation. Her not doing two conditions of probation is egregious.” The two conditions referred to were those that the defendant admitted to in the adjudicatory phase of the violation of probation proceedings. The court then sentenced the defendant to a total effective term of three years incarceration. This appeal followed.

I

The defendant claims that she was deprived of her right to due process under the federal constitution because she did not receive adequate notice that three “uncharged violations” of probation would be alleged at the dispositional phase of the revocation proceeding: failing to obtain full-time employment or to enroll in school full-time, failing to perform community service hours and leaving the state without permission. We disagree.

Our Supreme Court has “recognized that revocation of probation hearings, pursuant to § 53a-32, are comprised of two distinct phases, each with a distinct purpose. ... In the evidentiary phase, [a] factual determination by a trial court as to whether a probationer has violated a condition of probation must first be made. ... In the dispositional phase, [i]f a violation is found, a court must next determine whether probation should be revoked because the beneficial aspects of probation are no longer being served.” (Internal quotation marks omitted.) State v. Barnes, 116 Conn. App. 76, 80, 974 A.2d 815, cert. denied, 293 Conn. 925, 980 A.2d 913 (2009).

“[T]he due process clause of the fourteenth amendment to the United States constitution requires that certain minimum procedural safeguards be observed in the process of revoking the conditional liberty created by probation. ... In this regard . . . [w]here noncriminal activity forms the basis for the revocation of probation . . . due process mandates that the [probationer] cannot be subjected] to aforfeiture of his liberty for those acts unless he is given prior fair warning.” (Internal quotation marks omitted.) State v. Bruce T., 98 Conn. App. 579, 586, 910 A.2d 986 (2006). “[Assertions that the defendant lacked prior notice of the conditions underlying the probation revocation [involve a question] of law for which our review is plenary.” State v. Reilly, 60 Conn. App. 716, 727, 760 A.2d 1001 (2000).

The defendant concedes that her claim was not properly preserved for appellate review and seeks review under State v. Golding, 213 Conn. 233, 239-40, 567 A.2d 823 (1989). We agree that the record is adequate for review and that the claim is of a constitutional magnitude; thus, we must determine if the alleged constitutional violation clearly exists.

“Probation itself is a conditional liberty and a privilege that, once granted, is a constitutionally protected interest. . . . The revocation proceeding must comport with the basic requirements of due process because termination of that privilege results in a loss of liberty. . . . [T]he minimum due process requirements for revocation of [probation] include written notice of the claimed [probation] violation, disclosure to the [probationer] of the evidence against him, the opportunity to be heard in person and to present witnesses and documentary evidence, the right to confront and cross-examine adverse witnesses in most instances, a neutral hearing body, and a written statement as to the evidence for and reasons for [probation] violation.” (Internal quotation marks omitted.) State v. Shuck, 112 Conn. App. 407, 409, 962 A.2d 900 (2009). “Despite that panoply of requirements, a probation revocation hearing does not require all of the procedural components associated with an adversarial criminal proceeding.” (Internal quotation marks omitted.) State v. Barnes, supra, 116 Conn. App. 79.

Here, the defendant’s probation revocation proceeding satisfied all the requirements mandated by due process. First, there is no contention that the defendant did not receive written notice of the two charged probation violations. The defendant was provided with the opportunity to contest the charges at a violation of probation hearing on May 19,2009. The defendant, however, opted to admit the violations of probation alleged and waived her right to a hearing. Although the defendant waived her right to a hearing on the adjudicatory issues, she still had the opportunity of a hearing during the dispositional phase of the proceedings. We are persuaded that the defendant had adequate opportunity to contest the information presented by the state.

The defendant contends, however, that facts constituting violations of probation raised for the first time at the dispositional phase of the proceedings should be subject to the same due process requirements as those applied at the adjudicatory phase. We recently rejected a similar argument in State v. Natal, 113 Conn. App. 278, 289 n.4, 966 A.2d 331 (2009), in which we stated that a defendant is not entitled to formal notice, by way of arrest warrant application, of evidence that the state intends to present in the dispositional phase of a probation revocation proceeding.

Here, the defendant was informed as to the manner in which she was alleged to have violated her probation, and she admitted to such violations during the adjudicatoiy phase. The court did not find that the defendant was guilty of violating her probation for any reason other than the two violations charged in her arrest warrant, which the defendant admitted. A defendant is not entitled to formal notice of “uncharged violations” of probation that the state intends to present at the dispositional phase of a probation revocation proceeding. Our Supreme Court has stated that “[i]t is a fundamental sentencing principle that a sentencing judge may appropriately conduct an inquiry broad in scope, and largely unlimited either as to the kind of information he may consider or the source from which it may come.” State v. Bletsch, 281 Conn. 5, 20, 912 A.2d 992 (2007), citing United States v. Tucker, 404 U.S. 443, 446, 92 S. Ct. 589, 30 L. Ed. 2d 592 (1972). It is a settled principle that a court “can rely on the defendant’s entire probationary history in determining whether the rehabilitative purpose of probation is no longer being served.” State v. Brunette, 92 Conn. App. 440, 454, 886 A.2d 427 (2005), cert. denied, 277 Conn. 902, 891 A.2d 2 (2006). We conclude that the defendant’s notice satisfied the mandates of due process, and, thus, this claim fails under the third prong of Golding because no constitutional violation clearly exists.

n

The defendant next claims that she was denied due process of law under the federal constitution because the state was not required to prove the “uncharged violations” of probation alleged at the dispositional hearing by a preponderance of the evidence. The defendant argues that if the state is not required to prove additional violations presented at the dispositional phase by a preponderance of the evidence, it may make “an end run around” due process requirements. We disagree.

The defendant did not properly preserve this claim and therefore seeks review under State v. Golding, supra, 213 Conn. 239-40. We agree that the record is adequate for review and that the claim is of a constitutional magnitude; thus, we must determine if the alleged constitutional violation clearly exists.

We first note the proper standard of review for this claim. “When a party contests the burden of proof applied by the trial court, the standard of review is de novo because the matter is a question of law.” (Internal quotation marks omitted.) Smith v. Muellner, 283 Conn. 510, 536, 932 A.2d 382 (2007).

The United States Supreme Court has spoken to the issue of standard of proof at sentencing proceedings. The United States Supreme Court has acknowledged that “sentencing courts have always operated without constitutionally imposed burdens of proof . . . ,” McMillan v. Pennsylvania, All U.S. 79, 92 n.8, 106 S. Ct. 2411, 91 L. Ed. 2d 67 (1986). The Supreme Court reasoned that requiring strict adherence to the evidentiary standards observed in the adjudicatory phase would “hinder if not preclude all courts—state and federal—from making progressive efforts to improve the administration of criminal justice.” Williams v. New York, 337 U.S. 241, 251, 69 S. Ct. 1079, 93 L. Ed. 1337 (1949). We have neither found nor been referred to binding federal authority requiring facts at sentencing to be proven by a preponderance of the evidence.

The defendant’s assertion otherwise is contrary to Connecticut precedent. Our Supreme Court has held that “[i]t is a fundamental sentencing principle that a sentencing judge may appropriately conduct an inquiry broad in scope, and largely unlimited either as to the kind of information he may consider or the source from which it may come. . . . The trial court’s discretion, however, is not completely unfettered. As a matter of due process, information may be considered as a basis for a sentence only if it has some minimal indicium of reliability.” (Citation omitted; internal quotation marks omitted.) State v. Huey, 199 Conn. 121, 127, 505 A.2d 1242 (1986). The court properly applied this standard, stating that “I think the court can consider any evidence in a sentencing hearing as long as I find it to be rehable.”

The defendant argues that the minimal evidentiary standard, even if generally acceptable, should not apply to violations of probation alleged at the dispositional phase of the proceedings because it would be fundamentally unfair. The defendant argues that a violation of probation, charged or not, carries disproportionate weight. We see no reason why this proposition is necessarily so; indeed, in this case the “uncharged violations” did not appear to carry undue weight. If the adjudicatory phase has resulted in a finding of a violation of probation, there is no persuasive reason why “uncharged violations” should be treated differently from any other information. To raise the burden of proof for such allegations would hinder a sentencing judge’s ability to administer a fair and appropriate punishment. We conclude that the court applied the proper evidentiary standard at the dispositional hearing. Accordingly, this claim fails under the third prong of Golding because the defendant has failed to establish that a constitutional violation clearly exists.

Ill

The defendant next claims that she was denied due process under the federal constitution because the court admitted unreliable Facebook evidence and substantially relied on it in rendering her sentence. The defendant contends that because the dates the photographs were “posted” on the Facebook page do not indicate when they were actually taken, the photographs were unreliable because it could not be confirmed that they were taken while she was on probation.

Having failed properly to preserve this claim for appeal, the defendant seeks appellate review for this claim under State v. Golding, supra, 213 Conn. 239-40. We conclude that the claim in the context of this case is not of constitutional magnitude and, thus, is not reviewable.

The defendant argues that this is a constitutional claim because the Facebook photographs were unreliable and, thus, introducing them into evidence violated her due process rights. It is well established, however, that “[e]videntiary claims do not merit review pursuant to State v. Golding, [supra, 213 Conn. 239-40], because they are not of constitutional magnitude. [R]obing garden variety claims [of an evidentiary nature] in the majestic garb of constitutional claims does not make such claims constitutional in nature. . . . Putting a constitutional tag on a nonconstitutional claim will [not] change its essential nature . . . .” (Internal quotation marks omitted.) State v. Nelson, 105 Conn. App. 393, 413, 937 A.2d 1249, cert. denied, 286 Conn. 913, 944 A.2d 983 (2008). Therefore, we decline to review this claim because it fails under the second prong of Golding.

IV

Finally, the defendant claims that the court abused its discretion by finding that the rehabilitative purposes of probation were no longer being served and by revoking her probation. The defendant contends that it was an abuse of discretion for the court to terminate her probation because it relied on “uncharged violations” of probation raised at sentencing, it did not require those uncharged violations to be proved by a preponderance of the evidence and it considered unreliable Face-book photographs. We disagree.

“The standard of review of the trial court’s decision at the sentencing phase of the revocation of probation hearing is whether the trial court exercised its discretion properly by reinstating the original sentence and ordering incarceration. ... In determining whether there has been an abuse of discretion, every reasonable presumption should be given in favor of the correctness of the court’s ruling. . . . Reversal is required only where an abuse of discretion is manifest or where injustice appears to have been done.” (Internal quotation marks omitted.) State v. Faraday, 268 Conn. 174, 185-86, 842 A.2d 567 (2004). “In determining whether to revoke probation, the trial court shall consider the beneficial purposes of probation, namely rehabilitation of the offender .... The important interests in the probationer’s liberty and rehabilitation must be balanced, however, against the need to protect the public.” (Internal quotation marks omitted.) State v. Bryant, 98 Conn. App. 602, 606, 910 A.2d 243 (2006), cert. denied, 281 Conn. 909, 916 A.2d 52 (2007).

Several of the defendant’s contentions supporting this claim have already been addressed. As previously stated, the “uncharged violations” of probation raised at sentencing were not required to be proven by a preponderance of the evidence, and the state did satisfy its burden of showing some indicia of reliability to support its claims. Additionally, we established above that we decline to review the defendant’s unpreserved evidentiary claim that the court improperly allowed the Facebook photographs into evidence.

The court stated expressly that the beneficial purposes of probation were not being served with the defendant. The court stated that it sensed a lack of remorse from the defendant. The fact that the defendant seemed to be acting in the same manner while on probation that she did prior to incarceration led the court to believe that she had not reformed and had forgotten the seriousness of her situation.

Furthermore, the court emphasized its concern over the fact that the defendant was driving a car without a license and without an ignition interlock device, violations of her probation that the court considered to be “egregious.” On the basis of the record before us, we conclude that the court did not abuse its discretion in revoking the defendant’s probation.

The judgment is affirmed.

In this opinion the other judges concurred.

       General Statutes § 14-227,j (a) defines an ignition interlock device as a “device installed in a motor vehicle that measures the blood alcohol content of the operator and disallows the mechanical operation of such motor vehicle until the blood alcohol content of such operator is less than twenty-five thousandths of one per cent.”

       The record does not expressly indicate that refraining from leaving the state without permission was a condition of the defendant’s probation. Neither party, however, contests the proposition that it was a condition. The only minor dispute over this issue is whether the defendant did in fact leave the state without permission and, thus, violate her probation.

       General Statutes § 53a-32 (a) provides in relevant part: “At any time during the period of probation or conditional discharge, the court or any judge thereof may issue a warrant for the arrest of a defendant for violation of any of the conditions of probation or conditional discharge, or may issue a notice to appear to answer to a charge of such violation, which notice shall be personally served upon the defendant. Any such warrant shall authorize all officers named therein to return the defendant to the custody of the court or to any suitable detention facility designated by the court. ...”

       The defendant presented evidence that by the time of this hearing she had received a valid driver’s license and had installed an interlock device on the vehicle she was primarily operating.

       The defendant provided a Kent volunteer sign-in sheet showing that she was performing her community service hours in compliance with the terms of her probation. The state, however, averred that the defendant’s probation officer deemed the document unsatisfactory because it was not verified. Furthermore, the state consulted with the town of Kent, which was unable to confirm the hours listed on the sign-in sheet.

       Facebook is a social networking Internet site. It presents what is “essentially a template into which you may enter any information you choose. There is a place to upload an identifying picture and other personal or identifying information. Users may enter their relationship status; high schools, universities, and graduate schools attended; favorite music, movies, and books; hometown, current town, e-mail addresses, and home addresses.” S. Millier, “The Facebook Frontier: Responding to the Changing face of Privacy on the Internet,” 97 Ky. L.J. 541, 544 (2008-2009).
      “Members may then start adding ‘friends’ on the network, usually people one knows from the non-digital world, who must confirm your friendship before being granted corresponding access to the other person’s profile. Members may control who views their personal information: they may make it available system-wide without discretion, or they may limit access to just their friends. Members may create photo albums . . . and ‘tag,’ or identify by name, friends in their pictures. ... By ‘tagging’ a photo, Facebook creates a link [to] the individual’s profile from the photograph, making users easily identifiable, even when the viewer of the photograph is not ‘friends’ with the photograph’s subjects. If a Facebook member in the picture objects, he can remove the link to his profile, but he can’t get the picture taken down.” Id.
      This was not the first time the defendant’s Facebook profile was at issue. Prior to the probation revocation proceedings, the defendant’s Facebook profile and accompanying photographs were taken into account when determining the defendant’s sentencing and probation agreement for her violation of §§ 53a-57 and 14-227a (a).

       Before admitting the photographs into evidence, the court allowed the defendant some time to look through them. After giving the defendant a chance to examine the photographs, the state agreed to refrain from introducing approximately one half of the pictures into evidence.

       Pursuant to Golding, “a defendant can prevail on a claim of constitutional error not preserved at trial only if all of the following conditions are met: (1) the record is adequate to review the alleged claim of error; (2) the claim is of constitutional magnitude alleging the violation of a fundamental right; (3) the alleged constitutional violation clearly exists and clearly deprived the defendant of a fair trial; and (4) if subject to harmless error analysis, the state has failed to demonstrate harmlessness of the alleged constitutional violation beyond a reasonable doubt.” (Emphasis in original.) State v. Golding, supra, 213 Conn. 239-40.

       There may be situations in which a defendant is legitimately surprised at a sentencing hearing by entirely new material “facts” that the defendant believes are erroneous or explainable. In such situations, continuances or other ameliorative measures may be required.

       The defendant makes a similar argument, contending that she did not receive notice that abstaining from alcohol was a condition of her probation and, thus, was deprived of her right to due process by having her probation terminated for this reason. The defendant seeks appellate review for this claim under State v. Golding, supra, 213 Conn. 239-40. We conclude that no constitutional violation clearly exists.
      This allegation is not supported by the record. The defendant was charged only with two violations of probation, both of which she admitted. The state subsequently offered evidence of the defendant’s drinking at sentencing because it was probative as to whether or not the rehabilitative purposes of probation were being served. The state contended that this evidence tends to show that the beneficial aspects of probation were not being served because the defendant was engaging in many of the same activities postincarceration as she engaged in before being incarcerated. The state specifically acknowledged that it was not illegal for the defendant to be drinking alcohol, and the court did not hold that she violated her probation by drinking alcohol.
      As we discussed, the defendant is not entitled to formal notice of evidence that the state intends to present at the sentencing phase of a probation revocation proceeding. State v. Natal, supra, 113 Conn. App. 289 n.4. Therefore, we conclude that the defendant received adequate notice, and, thus, this claim fails under the third prong of Golding because no constitutional violation clearly exists.

       The defendant also makes a statutory construction argument, claiming that § 53a-32 (d) requires that uncharged violations of probation alleged at the dispositional phase of aprobation revocation proceeding must be proven by a preponderance of the evidence. The defendant did not properly preserve this claim and asks us to exercise our supervisory power to afford it review.
      We have previously stated that our “supervisory powers are invoked only in the rare circumstance where [the] traditional protections are inadequate to ensure the fair and just administration of the courts . . . .” (Internal quotation marks omitted.) Smith v. Andrews, 289 Conn. 61, 79, 959 A.2d 597 (2008). This case does not implicate the type of extraordinary circumstances for which our supervisory powers are reserved. Accordingly, we decline to exercise our supervisory power to review this claim.

       See footnote 8 of this opinion.

       The Supreme Court also stated that it saw “nothing in Pennsylvania’s [sentencing] scheme that would warrant constitutionalizing burdens of proof at sentencing.” McMillan v. Pennsylvania, 477 U.S. 79, 92, 106 S. Ct. 2411, 91 L. Ed. 2d 67 (1986).

       When a defendant’s criminal record and presentence investigation report are relied on at sentencing, a defendant is statutorily entitled to notice and an opportunity to correct inaccuracies. See General Statutes § 54-9 lb.

       The defendant objected at trial but not on the grounds asserted on appeal.

       See footnote 8 of this opinion.

       It should also be noted that the court sentenced the defendant to three years incarceration rather than the full four years requested by the state.


source: Caselaw Access Project

author: ROBINSON, J.

license: Public Domain

text:
    STATE OF CONNECTICUT v. BERNARD EARL BILLIE
    (AC 30570)
    Bishop, Robinson and Alvord, Js.

      Argued May 28
    officially released September 14, 2010

      James B. Streeto, assistant public defender, for the appellant (defendant).

      Melissa L. Streeto, assistant state’s attorney, with whom, on the brief, were David I. Cohen, state’s attorney, and Dina Urso, assistant state’s attorney, for the appellee (state).
   Opinion

ROBINSON, J.

The defendant, Bernard Earl Billie, appeals from the judgment of conviction, rendered after a jury trial, of possession of narcotics with intent to sell in violation of General Statutes § 21a-277 (a), possession of narcotics in violation of General Statutes § 21a-279 (a) and possession of marijuana in violation of General Statutes § 2 la-279 (c). On appeal, the defendant claims that (1) the evidence adduced at trial was insufficient to support his conviction of possession of narcotics with intent to sell and (2) certain portions of the trial court’s jury instruction on reasonable doubt were constitutionally infirm. We reverse in part and affirm in part the judgment of the trial court.

The jury reasonably could have found the following facts. On November 9, 2006, at approximately 5 p.m., an anonymous informant notified the Stamford police department of suspected criminal activity in an area of Stamford known for drug trafficking. The informant stated that he had witnessed a “black male” placing narcotics underneath the rear porch of a certain house but did not provide any further information that could be used to identify the individual observed.

In response to this information, Richard Gasparino, George Moran and Adrian Novia, officers with the Stamford police department, were dispatched to the residence to investigate the complaint. The officers proceeded to the rear porch area identified by the informant, where they discovered a clear plastic sandwich bag hidden underneath. The bag contained twenty-two smaller, individually wrapped packages of crack cocaine. Moran removed all but one of the smaller packages and replaced the sandwich bag in the hidden location.

After verifying that narcotics were located on the property, the officers set up surveillance. The rear porch area, which was surrounded on all sides by fencing, was accessible only by way of a driveway that extended from the front to the rear of the property. The officers, therefore, determined that a person would have to use the driveway to retrieve the narcotics. Gasparino watched the entrance of the driveway from a position in front of the property, while Moran and Novia took a position in the basement of the house. The basement, located underneath the rear porch, allowed the officers to observe simultaneously the narcotics and the rear of the property.

At approximately 9:35 p.m., Gasparino noticed a black male, later identified as the defendant, enter the driveway at the front of the property, and thereafter Gasparino notified Novia and Moran. Novia watched as the defendant walked from the driveway to the location of the narcotics. As the defendant removed the sandwich bag from underneath the porch, Novia and Moran emerged from the basement and identified themselves as police officers. The defendant dropped the sandwich bag, which then contained only the single package of crack cocaine, along with another bag containing marijuana.

The officers arrested the defendant in connection with the possession of twenty-two packages of crack cocaine and the marijuana. During the arrest, the defendant admitted to possessing the marijuana but made no statement regarding the crack cocaine. The officers searched the defendant but found no other contraband or evidence. Following the arrest, Novia conducted a records search and determined that the defendant previously had lived at that property in 2002. At the time of his arrest, however, the defendant was living at another location in Stamford.

The defendant was subsequently charged with possession of narcotics with intent to sell in violation of § 21a-277 (a), possession of narcotics in violation of § 2 la-279 (a) and possession of marijuana in violation of § 21a-279 (c). A jury trial was held from May 6 to 8, 2008. At oral argument, the defendant moved for a judgment of acquittal on May 7,2008, which was denied by the court. On May 8, 2008, the jury returned a verdict of guilty on all counts, and the defendant was sentenced on July 15, 2008. This appeal followed. Additional facts will be set forth as necessary.

I

The defendant first claims that the evidence adduced at trial was insufficient to support his conviction of possession of narcotics with intent to sell. Specifically, the defendant claims that the state did not produce sufficient evidence to prove beyond a reasonable doubt that he (1) possessed twenty-two packages of crack cocaine and (2) had the intent to sell narcotics. We agree.

We begin by setting forth the appropriate standard of review. “Appellate analysis of [a sufficiency of the evidence claim] requires us to undertake a well defined, twofold task. We first review the evidence presented at the trial, construing it in the light most favorable to sustaining the jury’s verdict. We then determine whether, upon the facts thus established and the inferences reasonably drawn therefrom, the jury could reasonably have concluded that the cumulative effect of the evidence established guilt beyond a reasonable doubt.” State v. Sinclair, 197 Conn. 574, 576, 500 A.2d 539 (1985); see also, e.g., State v. Butler, 296 Conn. 62, 76, 993 A.2d 970 (2010). “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.” State v. Sivri, 231 Conn. 115, 134, 646 A.2d 169 (1994).

“While the jury must find every element proven beyond a reasonable doubt in order to find the defendant guilty of the charged offense, each of the basic and inferred facts underlying those conclusions need not be proved beyond a reasonable doubt. ... If it is reasonable and logical for the jury to conclude that a basic fact or an inferred fact is true, the jury is permitted to consider the fact proven and may consider it in combination with other proven facts in determining whether the cumulative effect of all the evidence proves the defendant guilty of all the elements of the crime charged beyond a reasonable doubt.” (Citation omitted.) State v. Pinnock, 220 Conn. 765, 771, 601 A.2d 521 (1992).

“[I]t is a function of the jury to draw whatever inferences from the evidence or facts established by the evidence it deems to be reasonable and logical. . . . Because [t]he only kind of an inference recognized by the law is a reasonable one . . . any 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. . . . However, [t]he line between permissible inference and impermissible speculation is not always easy to discern. When we infer, we derive a conclusion from proven facts because such consideration as experience, or history, or science have demonstrated that there is a likely correlation between those facts and the conclusion. If that correlation is sufficiently compelling, the inference is reasonable. But if the correlation between the facts and the conclusion is slight, or if a different conclusion is more closely correlated with the facts than the chosen conclusion, the inference is less reasonable. At some point, the link between the facts and the conclusion becomes so tenuous that we call it speculation. When that point is reached is, frankly, a matter of judgment.” (Citations omitted; internal quotation marks omitted.) State v. Copas, 252 Conn. 318, 338-39, 746 A.2d 761 (2000).

A

We first consider the defendant’s claim that the state presented insufficient evidence to establish beyond a reasonable doubt that he possessed twenty-two packages of crack cocaine.

In order to prove that a defendant is guilty of possession of narcotics with intent to sell under § 21a-277 (a), the state must prove beyond a reasonable doubt that the defendant had either actual or constructive possession of a narcotic substance. State v. Williams, 110 Conn. App. 778, 785, 956 A.2d 1176, cert. denied, 289 Conn. 957, 961 A.2d 424 (2008). “Actual possession requires the defendant to have had direct physical contact with the narcotics.” (Internal quotation marks omitted.) State v. Gainey, 116 Conn. App. 710, 721, 977 A.2d 257 (2009). Constructive possession, on the other hand, is “possession without direct physical contact.” (Internal quotation marks omitted.) State v. Berger, 249 Conn. 218, 225, 733 A.2d 156 (1999). “To prove either actual or constructive possession of a narcotic substance, the state must establish beyond a reasonable doubt that the accused knew of the character of the drug and its presence, and exercised dominion and control over it.” State v. Crus, 28 Conn. App. 575, 579, 611 A.2d 457 (1992); see also State v. Butler, supra, 296 Conn. 78.

“Where . . . the [narcotic substance] was not found on the defendant’s person, the state must proceed on the theory of constructive possession .... One factor that may be considered in determining whether a defendant is in constructive possession of narcotics is whether he is in possession of the premises where the narcotics are found. . . . Where the defendant is not in exclusive possession of the premises where the narcotics are found, it may not be inferred that [the defendant] knew of the presence of the narcotics and had control of them, unless there are other incriminating statements or circumstances tending to buttress such an inference.” (Citations omitted; internal quotation marks omitted.) State v. Berger, supra, 249 Conn. 225.

In his brief on appeal, the defendant has conceded to possession of the single package of crack cocaine recovered after his arrest. Therefore, we limit our inquiry to whether the state has presented sufficient evidence to establish beyond a reasonable doubt that the defendant had knowledge of and control over the remaining twenty-one packages.

As stated previously, when narcotics are not found on the person of the defendant, “the state must proceed on the theory of constructive possession, that is, possession without direct physical contact.” Id. Furthermore, when the defendant is not in exclusive possession of the premises, the state must show incriminating statements or circumstances that support an inference that “[the defendant] knew of the presence of the narcotics and had control of them . . . .” (Internal quotation marks omitted.) Id. The state claims that it has met this burden, arguing that knowledge and control of the remaining twenty-one packages reasonably could have been inferred from the correlation between the anonymous informant’s observation and the actions of the defendant. We are not persuaded.

First, neither party disputes that the anonymous informant’s statement to the Stamford police was limited to his witnessing a “black male” placing narcotics underneath the rear porch of a certain house. This general description alone, totally devoid of any additional identifying characteristics or traits, did not provide sufficient information for the jury reasonably to have concluded that the defendant was the individual observed by the informant. The individual observed very well may have been the defendant or just as readily a drug dealer or user hiding his stash of narcotics. The evidence simply does not make this clear. Thus, in the absence of additional identifying information, the jury could not have concluded that the defendant was the individual observed by the informant without resorting to speculation.

Second, we believe that the state’s argument conflates the two separate requirements of constructive possession: knowledge and dominion and control. See, e.g., State v. Berger, supra, 249 Conn. 225. To establish constructive possession, the state relies heavily on evidence that the defendant purposely entered the property, proceeded directly to the location of the narcotics and immediately removed the sandwich bag from the hidden location without having to look or feel around. The state argues that this evidence, along with the defendant’s prior residency at the location, permits a reasonable inference that the defendant knew of and exercised dominion and control over all twenty-two packages of crack cocaine.

Although we are mindful that “[w]e do not sit as a [seventh] juror who may cast a vote against the verdict based upon our feeling that some doubt of guilt is shown by the cold printed record”; State v. Stepney, 191 Conn. 233, 255, 464 A.2d 758 (1983), cert. denied, 465 U.S. 1084, 104 S. Ct. 1455, 79 L. Ed. 2d 772 (1984); and we are only to ask “whether there is a reasonable view of the evidence that supports the jury’s verdict of guilty”; State v. Sivri, supra, 231 Conn. 134; we believe that this evidence is relevant to whether the defendant had knowledge of the narcotics but does not support a reasonable inference of dominion and control. As this court has recognized, “contraband found in a public area could have been secreted there by virtually anyone.” State v. Brunori, 22 Conn. App. 431, 436, 578 A.2d 139, cert. denied, 216 Conn. 814, 580 A.2d 61 (1990). Therefore, “[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.” Id., 436-37.

In rejecting the state’s argument, we rely on two other facts adduced at trial: (1) the narcotics were found at a location in an area of Stamford known by the police department for drug trafficking and (2) as the state’s own witness testified, it was not uncommon for a drug dealer or user to watch an individual hide his or her “stash” and then steal it. Considered altogether, we believe that the link between the evidence and the conclusion that the defendant possessed the remaining twenty-one packages of crack cocaine is tenuous. Without additional evidence, any conclusion that the defendant previously had dominion and control of the other twenty-one packages would be based simply on possibilities, surmise or conjecture. Therefore, we conclude that the evidence required the jury to resort to impermissible speculation instead of drawing a permissible inference.

Third, we reject the state’s argument that the crack cocaine was so well hidden that only the true owner would know of its location. Restated in a slightly different manner, the state basically contends that the hiding of individually wrapped packages of crack cocaine is an act of ongoing control. Although we do not take issue with the state’s argument, the jury simply could not have concluded from the evidence presented, without resorting to impermissible speculation, that the defendant hid the narcotics. See State v. Williams, 16 Conn. App. 75, 79, 546 A.2d 943 (1988) (“jury may not speculate to reach a conclusion of guilt”).

Finally, the cases cited by the state to support its contention that there is a sufficient nexus between the defendant’s conduct prior to arrest and a finding of dominion and control are easily distinguishable. The cases relied on by the state show that a compelling correlation between the actions of a defendant prior to arrest and the conclusion of dominion and control is required before we will find that the jury’s conclusion was a reasonable inference. Unlike the evidence in this case, the evidence in those cases showed a strong correlation between the defendant’s actions and the inference of control. For example, in State v. Somerville, 214 Conn. 378, 391, 572 A.2d 944 (1990), our Supreme Court found the testimony of two witnesses, both of whom observed the defendant dealing narcotics and hiding them just prior to arrest, sufficient to support an inference that the defendant had constructive possession of narcotics found under a garbage can. Similarly, in State v. Forde, 52 Conn. App. 159, 163-65, 726 A.2d 132, cert. denied, 248 Conn. 918, 734 A.2d 567 (1999), this court determined that a jury reasonably could have inferred that the defendant possessed a paper bag containing narcotics on the basis of the testimony of two police officers, each of whom had observed the defendant sitting and conducting a drug deal near the location of the bag. Finally, in State v. Santiago, 17 Conn. App. 273, 277-79, 552 A.2d 438 (1989), this court found that a jury reasonably could have inferred that the defendant possessed narcotics found under the driver’s seat of his vehicle from evidence that the defendant owned the vehicle, was seen driving it just prior to the discovery and had been seen placing an item under the driver’s seat shortly before narcotics were discovered in that area.

Unlike the previously mentioned cases, the state has failed to produce evidence that shows a compelling correlation between the defendant’s actions in this case and the conclusion that the defendant controlled the narcotics. In contrast to the specific, detailed descriptions provided by the witnesses in Somerville and Forde, the informant in the present case provided only a general, vague description of the individual observed. Moreover, the actions relied on to establish control in Somerville, Forde and Santiago occurred contemporaneously with the observation of the defendant near the area where the narcotics were located. In the present case, however, the acts of the defendant relied on by the state to prove control occurred after the narcotics were removed from the location by the officers.

Accordingly, because there was insufficient evidence for the jury reasonably to have concluded that it was the defendant who had hidden the narcotics in the first instance and insufficient evidence to buttress an inference of dominion and control by the defendant, we conclude that there was insufficient evidence for the jury to have found the defendant guilty of possessing the remaining twenty-one packages of crack cocaine that were not found on his person at the time of his arrest.

B

We next consider the defendant’s claim that the state presented insufficient evidence to prove beyond a reasonable doubt that the defendant harbored the requisite intent to sell narcotics.

The following additional facts are relevant to our review of the defendant’s claim. At trial, the state called Lieutenant Timothy Shaw of the Stamford police department to testify as an expert on narcotics. Shaw explained that the quantity of narcotics in an individual’s possession is a key difference between possession for personal use and possession with intent to sell. According to Shaw, an individual “with a very small amount,” one or two packages, typically intends to use it, while “someone [who] has a lot of individually wrapped [packages] ... is more inclined to be someone who is going to sell it . . . .” In response to the state’s questioning, Shaw specifically testified that possession of twenty-two individually wrapped packages of crack cocaine was more consistent with “[possession with intent to [sell], based on the numbers.”

In order to prove that a defendant is guilty of possession of narcotics with intent to sell under § 2la-277 (a), the state must prove beyond a reasonable doubt that the defendant had the intent to sell narcotics. See State v. Williams, supra, 110 Conn. App. 790-93. “[T]he question of intent is purely a question of fact. . . . The state of mind of one accused of a crime is often the most significant and, at the same time, the most elusive element of the crime charged. . . . Because it is practically impossible to know what someone is thinking or intending at any given moment, absent an outright declaration of intent, a person’s state of mind is usually proven by circumstantial evidence. . . . Intent may be and usually is inferred from conduct. . . . [I]t is not one fact, but the cumulative impact of a multitude of facts which establishes guilt in a case involving circumstantial evidence. . . .

“The quantity of narcotics found in the defendant’s possession [is] probative of whether the defendant intended to sell the drugs. . . . Also indicative of the defendant’s intent to sell narcotics is the manner in which the narcotics are packaged. . . . Evidence demonstrating that the defendant was present in a known drug trafficking area further suggests an intent to sell. ... In addition, the absence of drug paraphernalia indicates that the substance is not intended for personal use, but rather for sale to others.” (Citations omitted; internal quotation marks omitted.) Id., 791-92.

In the present case, there was insufficient evidence to show beyond a reasonable doubt that the defendant harbored the requisite intent to sell narcotics. Although the state argued that the defendant possessed twenty-two individually wrapped packages of crack cocaine, we have concluded that the evidence only supports a finding that the defendant possessed a single package. According to the state’s own expert witness, possession of such a small quantity generally is more consistent with possession for personal use rather than, with intent to sell. Although the defendant was arrested in an area known for drug trafficking without any drug paraphernalia on his person, in light of the amount he possessed, we cannot say that the cumulative impact of all the facts, along with the reasonable inference drawn from these facts, supports the jury’s conclusion that he harbored the requisite intent to sell narcotics.

II

In the defendant’s second claim, he argues that certain portions of the court’s jury instruction regarding reasonable doubt were constitutionally infirm. Specifically, the defendant claims that the court’s instruction improperly diluted the state’s burden of proof by instructing the jury that a reasonable doubt is (1) “a doubt for which a valid reason can be assigned,” (2) “a real doubt, an honest doubt” and (3) “the kind of doubt which in the serious affairs of everyday life you would pay heed and attention to.”

After reviewing the defendant’s claim, we find that it is without merit. As the defendant concedes, our Supreme Court previously has upheld the portions of the challenged instruction and determined that they do not constitute reversible error. See, e.g., State v. Ferguson, 260 Conn. 339, 369-71, 796 A.2d 1118 (2002); State v. Griffin, 253 Conn. 195, 205-208, 749 A.2d 1192 (2000); State v. Velasco, 253 Conn. 210, 249, 751 A.2d 800 (2000); State v. Ellis, 232 Conn. 691, 705, 657 A.2d 1099 (1995); State v. Campbell, 225 Conn. 650, 661-62, 626 A.2d 287 (1993). Furthermore, we reject the defendant’s request that we abandon our Supreme Court precedent and adopt the cumulative error approach followed by the United States Court of Appeals for the Second Circuit. Compare State v. Tillman, 220 Conn. 487, 505, 600 A.2d 738 (1991) (“[w]e decline to create a new constitutional claim in which the totality of alleged constitutional error is greater than the sum of its parts”), cert. denied, 505 U.S. 1207, 112 S. Ct. 3000, 120 L. Ed. 2d 876 (1992) with Gaines v. Kelly, 202 F.3d 598, 607 (2d Cir. 2000) (“[e]ven were each and every one of the individual definitions of reasonable doubt to pass constitutional muster, their cumulative effect may violate constitutional due process”). As we have recognized, “[t]his court will not reexamine or reevaluate Supreme Court precedent. Whether a Supreme Corut holding should be reevaluated and possibly discarded is not for this court to decide.” State v. Reis, 33 Conn. App. 521, 527, 636 A.2d 872, cert. denied, 229 Conn. 901, 640 A.2d 118 (1994).

The judgment is reversed only as to the conviction of possession of narcotics with intent to sell and the case is remanded for resentencing. The judgment is affirmed in all other respects.

In this opinion the other judges concurred.

       The defendant also claims that the court improperly permitted an expert witness to testify as to (1) general practices and behaviors of narcotics dealers and (2) an ultimate issue to be decided by the jury. Because we agree with the defendant’s claim that the evidence was insufficient to supp ort his conviction of possession of narcotics with intent to sell, we do not address these additional claims.

       The record suggests that other officers may have participated in the events leading to the arrest on November 9, 2006. Gasparino, Moran and Novia, however, were the only officers present at the location on that date who testified at trial.

       Novia testified that the officers had received permission from a tenant of the residence to be in the basement.

       General Statutes § 21a-277 (a) provides: “Any person who manufactures, distributes, sells, prescribes, dispenses, compounds, transports with the intent to sell or dispense, possesses with the intent to sell or dispense, offers, gives or administers to another person any controlled substance which is a hallucinogenic substance other than marijuana, or a narcotic substance, except as authorized in this chapter, for a first offense, shall be imprisoned not more than fifteen years and may be fined not more than fifty thousand dollars or be both fined and imprisoned; and for a second offense shall be imprisoned not more than thirty years and may be fined not more than one hundred thousand dollars, or be both fined and imprisoned; and for each subsequent offense, shall be imprisoned not more than thirty years and may be fined not more than two hundred fifty thousand dollars, or be both fined and imprisoned.”

       General Statutes § 21a-279 (a) provides: “Any person who possesses or has under his control any quantity of any narcotic substance, except as authorized in this chapter, for a first offense, may be imprisoned not more than seven years or be fined not more than fifty thousand dollars, or be both fined and imprisoned; and for a second offense, may be imprisoned not more than fifteen years or be fined not more than one hundred thousand dollars, or be both fined and imprisoned; and for any subsequent offense, may be imprisoned not more than twenty-five years or be fined not more than two hundred fifty thousand dollars, or be both fined and imprisoned.”

       At sentencing, the court merged the conviction of possession of narcotics with the conviction of possession of narcotics with intent to sell. The defendant was sentenced to ten years incarceration and five years of special parole on the charge of possession of narcotics with intent to sell and one year of incarceration on the charge of possession of marijuana, to be served concurrently.

       In order to prove that a defendant is guilty of possession of narcotics with intent to sell, the state must prove beyond a reasonable doubt that the defendant had (1) either actual or constructive possession of a narcotic substance and (2) the intent to sell narcotics. State v. Williams, 110 Conn. App. 778,792,956 A.2d 1176, cert. denied, 289 Conn. 957,961 A.2d 424 (2008).

       This alternative inteipretation is based on a statement made by the state’s witness, lieutenant Timothy Shaw of the Stamford police department: “[Drug dealers and drug users] are also hiding [their stashes] from anyone else who may want it, which would be another seller, which would be someone who uses. We’ve had incidents of someone seeing someone hide their stash and someone else would go by and take it from them.”

       The fact that the anonymous informant saw someone placing narcotics in the subject location illustrates that the individual placing the narcotics under the porch was capable of being observed.

       The three cases relied on by the state are State v. Somerville, 214 Conn. 378, 572 A.2d 944 (1990), State v. Forde, 52 Conn. App. 159, 726 A.2d 132, cert, denied, 248 Conn. 918, 734 A.2d 567 (1999), and State v. Santiago, 17 Conn. App. 273, 552 A.2d 438 (1989).

       At trial, Shaw testified as follows: “An example of possession [for personal use] would be someone with a very small amount, and it would be based on the evidence that we would get, which would be sometimes the surveillance. We may watch someone go into an area and make a purchase and leave and then, if we stop that person and they have one or two bags, it kind of confirms what we see.
      “Other chances are we may see the amount of the evidence that they have, you know. When someone has a lot of individually wrapped [packages of narcotics], that is more inclined to be someone who is going to sell it versus someone with a lesser amount, and someone with a lesser amount may also have some paraphernalia to actually ingest the evidence. And depending on what the drug is, it would change what the paraphernalia would be.”

       On appeal, the defendant argues that the court improperly permitted Shaw to testify as to an ultimate issue in the case. Because we conclude that the evidence was insufficient to prove beyond a reasonable doubt that the defendant had the intent to sell narcotics, notwithstanding this testimony, we do not address this claim.

       With respect to reasonable doubt, the court instructed the jury as follows: “The phrase reasonable doubt has no technical or unusual meaning. You can arrive at the real meaning of it by emphasizing the word reasonable.
      “A reasonable doubt is a doubt for which a valid reason can be assigned. It is a doubt that is something more than a guess or a surmise. It is not a conjecture or a fanciful doubt. Not all doubts are reasonable ones.
      “A reasonable doubt is based upon reason. It is a doubt for which you can, in your own mind, conscientiously give a reason. A reasonable doubt, in other words, is a real doubt, an honest doubt, a doubt that has its foundation [in] the evidence or lack of evidence. It is the kind of doubt, which, in the serious affairs of everyday life, you would pay heed and attention to.
      “Now, of coruse, absolute certainty in the affairs of life are almost never attainable. And the law does not require absolute certainty on the part of the jury before you return a verdict of guilty. The state does not have to prove guilt beyond all doubt or to a mathematical or absolute certainty,
      “What the law does require, however, is that after hearing all the evidence, if there is something in that evidence or lack of evidence that leaves in the minds of the jury as reasonable men and women reasonable doubt about the guilt of the accused, then the accused must be given the benefit of that doubt and be found not guilty. If there is no reasonable doubt, then the accused must be found guilty.
      “Proof beyond a reasonable doubt is proof that precludes every reasonable hypothesis except guilt. It is consistent with guilt and is inconsistent with any other reasonable conclusion.”


author: PELLEGRINO, J.

text:
    KENNETH P. MEAGHER ET AL. v. DONNA DIACRI ET AL.
    (AC 30651)
    (AC 31155)
    Beach, Robinson and Pellegrino, Js.
    Argued April 12
    officially released September 14, 2010

      Norman J. Voog, with whom was Christopher J. Molyneaux, for the appellants (named defendant et al.).

      Kenneth P. Meagher, for the appellees (plaintiffs).
   Opinion

PELLEGRINO, J.

These are consolidated appeals arising out of the alleged breach of a home improvement contract. The plaintiffs, Kenneth P. Meagher and Bethilda Meagher, filed a six count complaint alleging breach of contract and a violation of the Connecticut Unfair Trade Practices Act (CUTPA) against the defendant Chrisdon Builders (counts one and two), breach of contract and a violation of CUTPA against the defendants Donna Diacri and Christopher Diacri (counts three and four), a violation of CUTPA against Diacri Builders, Inc. (count five), and requesting the discharge of a mechanic’s lien that Chrisdon Builders had filed against the plaintiffs’ property (count six). In response, the defendants filed a counterclaim in which they alleged that the plaintiffs had breached the home improvement contract by failing to pay for extra work and materials. After a twelve day trial, the court, Shaban, J., on December 8, 2008, rendered judgment in favor of the plaintiffs as to counts one, two, three, four and six of the complaint, and rendered judgment in favor of Diacri Builders, Inc., as to count five. On appeal, in AC 30651 and AC 31155, the defendants claim that the court improperly (1) awarded CUTPA damages to the plaintiffs for the defendants’ alleged failure to comply with the Home Improvement Act (the act), and (2) denied the defendants’ motion to open the judgment and failed to determine the amount due the defendants’ under their counterclaim. We affirm the judgment of the trial court.

The following facts as found by the court, and procedural history as revealed by the record, are relevant to our resolution of the issues on appeal. On October 12, 2004, the plaintiffs entered into a written contract with Chrisdon Builders for renovations and improvements to their home at 261 Wilton Road West in Ridgefield. The parties agreed to a price of $550,000 for the work, which included construction of a new garage with a living area above it and extensive renovations to the existing home, which was built in the 1800s. The contract included a start date of November 15, 2004, and a “time is of the essence” completion date of July 15, 2005. Plans and specifications, as well as payment schedules, were appended and incorporated into the contract by reference. On October 12,2004, the contract was signed and executed by both plaintiffs and Donna Diacri, on behalf of Chrisdon Builders.

On the second page of the contract, there was a line for the entry of the contractor’s state license number. The telephone number of Diacri Builders, Inc., rather than a contractor’s registration number, was entered on that line. In soliciting the job from the plaintiffs, either Christopher Diacri or Donna Diacri gave the plaintiffs a business card that contained the name Chris-don Builders but did not include a contractor’s registration number. Also, a “Chrisdon Builders” sign was placed on the plaintiffs’ property during construction, but it did not disclose a contractor’s registration number.

Following execution of the contract, applications were made with the town of Ridgefield for an alteration permit, development application and zoning permit. The alteration permit was issued on November 30, 2004, and listed the contractor as “Diacri/Chrisdon Builders, I.” The development application was issued on the same date and listed the contractor as “Diacri/Chrisdon Builders.” The application had been signed by Donna Diacri on November 2, 2004, and referenced “CT license # 550053,” which was the home improvement contractor license number of Diacri Builders, Inc. The zoning permit application was issued by the town on November 15, 2004. In order to commence work on the project, Donna Diacri also submitted an insurance affidavit to the town, indicating that Chrisdon Builders was the entity submitting the information.

Work began on the property on November 30, 2004, and continued through the summer of 2005. By July 15, 2005, the addition to the property had been substantially completed. The garage itself was completed on July 19, 2005. As of that time, work on the existing house was nowhere near finished. In order to allow construction on the house to progress, the plaintiffs and their daughters gradually moved into the extra room above the garage, which they used as their living quarters for the summer.

Following the July 15, 2005 deadline, a significant amount of interior and exterior work remained to be done. At trial, the plaintiffs introduced photographs detailing the extent of the demolition and construction work that had been started but remained to be completed. As of August, 2005, the kitchen, bathroom, parlor, master bedroom, basement and other areas were uninhabitable. The demolition had left a first floor area open and exposed to the basement, which was dangerous, and prevented the plaintiffs’ family from using that area of the first floor. In September, the wood flooring in the kitchen was installed, but treatment of the wood was never completed. The flooring in the master bedroom had not been completed. Some of the roofing, plumbing and exterior painting had yet to be completed. As the court noted in its memorandum of decision, “[d] espite the delay in completion, the plaintiffs continued to work with the defendants toward the common goal of completing the project. At this point in time, the plaintiffs still considered their relationship with the defendants to be a reasonable one.”

With the input and consent of the plaintiffs, work continued through November, 2005. Nonetheless, substantial amounts of work still had not been completed. Insulation to the old part of the house was not approved by the town’s inspector until November 30, 2005, an exterior electrical conduit was not laid until approximately November 18, 2005, and the electric meter was not installed until December 2, 2005, which prevented the power company from turning power on to parts of the house. Moreover, a gas line was not hooked up until approximately December 29, 2005, after twice having failed inspection. As of that date, some of the plumbing was not completed or did not function correctly, several lolly columns in the basement were not as they should have been, loose wires were hanging in several places, and there were no stairs down to the basement. While there were some beams supporting the house, they were not building code compliant.

As of late December, 2005, the house was not close to being in a condition such that a certificate of occupancy could be issued. By that time, the defendants had begun to slow or even stop some of the work on the property, as they had begun work on another job in November. The defendants’ progress became sporadic and unpredictable. In an attempt to keep things moving, the plaintiffs began to pay some of the subcontractors directly. After a meeting between the parties in late 2005, the defendants attempted to return to continue work on the property but appeared only intermittently in January and February, 2006.

In its memorandum of decision, the court detailed the state of the project in March, 2006, nearly one and one-half years after the work had first commenced. “[T]here remained a significant amount of work to be done. In the kitchen, the cabinetry was never installed by the defendants, despite the fact that it was on site in the fall of2005. Although the defendants denied being obligated to install them, the court finds that the contract did obligate the defendants to do so. As noted . . . the kitchen flooring was done but not fully completed. After installation, the flooring began to ‘cup,’ likely due to moisture. As to the [heating, ventilating and air conditioning] work, some of the piping was in as of December, 2005, but the thermostats were not in and the cooling units had been left in the living room. Other cooling and heating hardware was left in the attic. The plaintiffs, ultimately, had to undertake the effort to complete their installment. Some flooring in the bonus room in the new construction over the garage was left, as well as the flooring in the master bedroom. To one degree or another, Sheetrocking, interior and exterior painting, plumbing, electrical, demolition, stairs, interior trim, doors, siding, heating and cooling elements and equipment, all remained to be done in various areas.

“Some of the existing rooms suffered water damage dining the remodeling as tarps covering exposed areas had come undone. Windows in the dining room had been put in place but large gaps made them unusable. Ultimately, they had to be reinstalled by another contractor. Tile also remained to be done where required in the old part of the house. This was so, even though the plaintiffs were ready to order the tile because the defendants never gave them the directive to do so. Eventually, the plaintiffs ordered the tile and installed it themselves. The defendants claim that the delay in the installation of the tile was the failure of the plaintiffs to timely select and order the materials. While the court finds that there was some delay on the part of the plaintiffs in this regard, the greater responsibility for the failure to complete this obligation lay with the defendants. The plaintiffs also completed significant amounts of the painting that remained. Debris was left behind both inside and outside the house, including several old heavy metal radiators that had been taken out of the house and left on the grounds. In the laundry room, there was no dryer vent to the outside. The downstairs bathroom was not substantially complete; toilets were on the site but not hooked up. The staircase to the bedrooms was not even delivered or installed until January, 2006, and the one for the basement was never completed. The exterior siding was never finished. Roof scaffolding was left on the roof. The main sewer line was never installed, nor was the sewer stack.”

Although the contract specifically stated that time was of the essence as to the July 15, 2005 completion date, the plaintiffs allowed the defendants to continue to work toward completing the project. While the plaintiffs deviated from the contracted payment schedule, they continued to pay the defendants and worked with the defendants on other alterations to the project plans in an attempt to finalize the project. The defendants continued work on the property until February, 2006. On May 3,2006, the defendants sent a letter to the town of Ridgefield, notifying the town that the defendants were no longer acting as contractors on the project. It is undisputed that to this date, the plaintiffs had paid to the defendants a total of $465,000 for the work done on their property. Thereafter, through counsel, the defendants notified the plaintiffs that they were still owed $90,000 pursuant to the contract, as well as $58,061 with regard to extras. Ultimately, on May 4, 2006, the defendants filed a mechanic’s lien against the plaintiffs’ property, under the name Chrisdon Builders, in the amount of $83,315.55.

On June 13, 2006, the plaintiffs filed their six count complaint against the defendants. After a twelve day trial, the court awarded damages in favor of the plaintiffs in the amount of $35,983.50 for breach of contract, $25,000 for violations of CUTPA and $760 for sanctions against the defendants for failure to comply with pretrial discovery orders. Thereafter, the defendants filed their appeals challenging the court’s (1) award of CUTPA damages (AC 30651) and (2) denial of their motion to open the judgment (AC 31155). Additional facts and procedural history will be provided as necessary.

I

On appeal, the defendants first claim that the court improperly awarded $25,000 to the plaintiffs for the defendants’ CUTPA violations because there is no evidence that the plaintiffs suffered an ascertainable loss. We decline to review this claim.

“It is the appellant’s responsibility to provide an adequate record for review. Practice Book § 60-5. The appellant shall determine whether the entire trial court record is complete, correct and otherwise perfected for presentation on appeal. . . . Practice Book § 61-10. Conclusions of the trial court cannot be reviewed where the appellant fails to establish through an adequate record that the trial court incorrectly applied the law or could not reasonably have concluded as it did. ... An appellant’s utilization of the motion for articulation serves to dispel any . . . ambiguity by clarifying the factual and legal basis upon which the trial court rendered its decision, thereby sharpening the issues on appeal. . . .

“Our role is not to guess at possibilities, but to review claims based on a complete factual record developed by a trial court. . . . Without the necessary factual and legal conclusions furnished by the trial court, either on its own or in response to a proper motion for articulation, any decision made by us respecting this claim would be entirely speculative.” (Internal quotation marks omitted.) Gilbert v. Gilbert, 73 Conn. App. 473, 476-77, 808 A.2d 688 (2002).

Here, the defendants did not request, pursuant to Practice Book § 66-5, an articulation of the court’s decision to award $25,000 to the plaintiffs for the defendants’ violations of CUTPA. In its thorough memorandum of decision, the court awarded “$25,000, collectively, as there was an ascertainable loss which was proximately caused by the defendants’ multiple violations of the [act] constituting per se violations of CUTPA.” See New England Custom Concrete, LLC v. Carbone, 102 Conn. App. 652, 666, 927 A.2d 333 (2007) (“[p]ursuantto General Statutes § 20-427 (c), a violation of the [act] is automatically a violation of CUTPA”). The court found that the plaintiffs “suffered an ascertainable loss as a result of [Chrisdon Builders’] failure to substantially complete the project and to document changes to the contract in writing” and that pursuant to General Statutes § 20-429 (a) of the act, Chrisdon Builders failed to uphold its obligation to provide a contract that contained the entire agreement of the parties. That failure contributed to the breakdown of the relationship between the parties, resulting in damages to the plaintiffs, because of the inability of the parties to determine the scope of the work and amounts due. The defendants failed to file a motion for articulation and, therefore, we have no record that would permit us to review the breakdown of the award of $25,000. If the defendants had wanted the court to specify the work that was not extra work but should have been included under the contract, and the work that the defendants did not provide but that they were obligated to perform, with a dollar amount attributed to each, then the defendants should have sought an articulation. Because the defendants have failed to establish through an adequate record that the court incorrectly applied the law or could not reasonably have concluded as it did, we decline to review this claim.

n

The defendants also claim that the court improperly denied their motion to open the judgment and failed to determine the amount due them under their counterclaim. We disagree.

In its memorandum of decision, the court wrote that “[r]egardless of the status of the construction, the defendants cannot prevail on their breach of contract counterclaim, as they are precluded from enforcing a home improvement contract due to its deficiencies under the [act]. Specifically, the contract failed to contain a notice of cancellation rights, pursuant to § 20-429 (a) (6), and it was not entered into by a registered salesman or registered contractor as required by § 20-429 (a) (8). MJM Landscaping, Inc. v. Lorant, 268 Conn. 429, 435, 845 A.2d 382 (2004); see also General Statutes § 20-429 (f). Also, none of the changes in the terms and conditions of the contract were put in writing. Sidney v. DeVries, 215 Conn. 350, 354, 575 A.2d 228 (1990).”

Following the judgment, the defendants appealed to this court on December 29, 2008 (AC 30651). On March 20, 2009, the defendants filed with the trial court a motion to open and to set aside the judgment, pursuant to Practice Book § 17-4 and General Statutes § 52-212a. The defendants argued that on January 6,2009, approximately thirty days after the court issued its memorandum of decision, our Supreme Court released its decision in Hees v. Burke Construction, Inc., 290 Conn. 1, 961 A.2d 373 (2009), which permitted a contractor who failed to comply with the provisions of the act to set off moneys claimed to be due for work performed against the homeowners’ claim for damages. According to the defendants, the judgment in this case should be set aside because Hees rendered the court’s decision inconsistent with applicable law. The plaintiffs objected, arguing that Hees could not have been relied on because it was not the law when the case was decided and, even if it were to be considered, that case is factually distinguishable from the present case. On May 14, 2009, the court denied the defendants’ motion by memorandum of decision. On appeal, the defendants claim that the court improperly denied their motion to open because the Supreme Court’s decision in Hees rendered the court’s judgment incorrect as a matter of law.

We begin our analysis by setting forth the standard of review. “Because opening a judgment is a matter of discretion . . . [t]he exercise of equitable authority is vested in the discretion of the trial court and is subject only to limited review on appeal. . . . We do not undertake a plenary review of the merits of a decision of the trial court to grant or to deny a motion to open a judgment. The only issue on appeal is whether the trial court has acted unreasonably and in clear abuse of its discretion. ... In determining whether the trial court abused its discretion, this court must make every reasonable presumption in favor of its action. . . . The theory underlying these rules governing the vacating of judgments is the equitable principle that once a judgment is rendered it is to be considered final . . . and should be left undisturbed by post-trial motions except for a good and compelling reason.” (Citation omitted; internal quotation marks omitted.) Priest v. Edmonds, 295 Conn. 132, 138, 989 A.2d 588 (2010).

The defendants assert that Hees provides guidance for this court to “correct the mistake of law which the trial court made when it rendered its decision approximately one month prior . . . .” The defendants have failed to present to this court any authority to support their position that the trial court acted unreasonably by deciding not to open its judgment and consider the decision in Hees. The defendants suggest that the court’s rejection of their counterclaim was an “error” or “mistake of law.” Nonetheless, as the court reasoned, the defendants’ reliance on Hees is misplaced. That decision was released subsequent to the court’s decision in this case and, therefore, as the court stated in its memorandum of decision, it could not have been a case that was “overlooked either as authority relevant to its consideration of the facts or as a controlling principle of law at that time.” As a result, we conclude that the court did not abuse its discretion by declining to open or to set aside the judgment.

The judgment is affirmed.

In this opinion the other judges concurred.

       On appeal, Kenneth Meagher, an attorney, is representing himself and his wife, Bethilda Meagher.

       See General Statutes § 42-110a et seq.

       Although the counterclaim appears to have been filed solely in the name of Chrisdon Builders, we note that the court found “that Chrisdon Builders is not a legal entity separate and apart from either Donna Diacri or Christopher Diacri, but rather is a business name used by them in the conduct of their business.” For purposes of this opinion, all references to the defendants are to Chrisdon Builders, Donna Diacri and Christopher Diacri.

       See General Statutes § 20-418 et seq.

       The contract did not contain a notice of a right to cancel provision, which is required pursuant to General Statutes § 20429 (a) (6).

       On May 30, 2006, the legislature amended General Statutes § 20429 (a) (5) to require home improvement contractors to include a contractor’s registration number in any home improvement contract. The execution of the contract in this case preceded that amendment and is not subject to that statutory requirement.

       The plaintiffs paid $465,000 to the defendants in the following manner: $5000 on October 27, 2004; $50,000 on January 6, 2005; $50,000 on February 23,2005; $50,000 on April 5,2005; $50,000 on April 15, 2005; $50,000 on June 10, 2005; $5000 on July 19, 2005; $40,000 on August 8, 2005; $25,000 on August 26, 2005; $15,000 on September 28, 2005; $30,000 on November 18, 2005; $10,000 on November 30, 2005; $15,000 on December 12, 2005; $15,000 on December 14,2005; $10,000 on January 3,2006; $5000 on January 6,2006; and $40,000 on January 18, 2006. As the court observed in its memorandum of decision, “[a]ll the payments were made to ‘Chrisdon Builders’ or ‘Chrisdon.’ ”

       Practice Book § 66-5 provides in relevant part: “A motion seeking . . . an articulation ... of the decision of the trial court shall be called . . . a motion for articulation .... Any motion filed pursuant to this section shall state with particularity the relief sought. . . . The trial court may make such corrections or additions as are necessary for the proper presentation of the issues raised or for the proper presentation of questions reserved. The trial judge shall file the decision on the motion with the appellate clerk. . . . The sole remedy of any party desiring the court having appellate jurisdiction to review the trial court’s decision on the motion filed pursuant to this section . . . shall be by motion for review under Section 66-7. . . .”

       Because we have not been provided with an adequate analysis; see, e.g., Connecticut Light & Power Co. v. Dept. of Public Utility Control, 266 Conn. 108, 120, 830 A.2d 1121 (2003); we do not reach the issue of whether the principles enunciated in Hees v. Burke Construction, Inc., supra, 290 Conn. 1, are appropriately applied retroactively and whether, if so, the procedural posture of this case permits retroactive application.

       The defendants also claim that the court failed to determine the amount due them under their counterclaim. Although the defendants provided an extensive list of alleged unpaid extra work and materials, the court specifically stated that the defendants “gave inconsistent and often contradictory testimony as to the amount claimed to be due.” “The court, as the sole arbiter of credibility, is free to accept or reject, in whole or in part, the testimony offered by either party.” (Internal quotation marks omitted.) Taylor v. King, 121 Conn. App. 105, 128, 994 A.2d 330 (2010). We conclude that the court found, based on the law and applicable facts, that the defendants failed to prove that they were entitled to any specific damages.


author: PER CURIAM.

text:
    JOAQUIN GUDINO v. COMMISSIONER OF CORRECTION
    (AC 30801)
    Gruendel, Beach and West, Js.

      Argued May 25
    officially released September 14, 2010

      PaulR. Kraus, special public defender, for the appellant (petitioner).

      Leon F. Dalbec, Jr., senior assistant state’s attorney, with whom, on the brief, was David I. Cohen, state’s attorney, for the appellee (respondent).
   Opinion

PER CURIAM.

The petitioner, Joaquin Gudino, appeals following the habeas court’s denial of his petition for certification to appeal from the judgment denying his amended petition for a writ of habeas corpus. On appeal, the petitioner claims that the court abused its discretion when it denied his petition for certification to appeal and improperly rejected his claim that his trial counsel rendered ineffective assistance, thereby denying the petitioner due process of law. More specifically, the petitioner argues that there was merit to his claim of ineffective assistance of trial counsel because his counsel failed to secure a dismissal of the jury panel based on juror misconduct, failed to advise the petitioner that he would lose his right to raise the juror misconduct issue on appeal if he pleaded guilty and failed to advise the petitioner about the possibility of a guilty plea conditioned on the right to raise the juror misconduct issue on appeal. He contends that there was merit to his claim that he was denied due process because his plea was not knowingly, voluntarily and intelligently made as a result of his trial counsel’s failure to advise him that he would lose his right to appeal on the basis of juror misconduct if he entered a guilty plea and failure to advise him of the possibility of the entry of a conditional plea. We dismiss the appeal.

The petitioner was charged with murder in violation of General Statutes § 53a-54a. Initially, he entered a not guilty plea and elected a juiy trial. On July 28, 1998, prior to the jury being sworn in, the court, Nigro, J., advised the parties that there was a potential problem with the jury because a person selected as a juror, J.C., recollected that she had some knowledge of the parties involved in the case. The court inquired as to J.C.’s knowledge of the case. She stated that she had discussed the case with family and friends and that they told her that the petitioner had committed the crime. She also reported that she discussed these conversations with another person selected to be a juror. Counsel for the petitioner immediately moved for a mistrial. The court did not rule on that motion at that time, but, rather, brought into court another juror, D.H., whom J.C. stated that she had talked to, and questioned him about what J.C. had said to him. D.H. indicated that he heard J.C. state that “it bothered her to look at the [petitioner] or made her nervous” but that he did not hear J.C. say anything about having outside knowledge about the case. The court then brought out the entire panel and inquired whether any of them had discussed the case with J.C. Several members of the panel raised their hands and each was questioned by the court and counsel regarding what they heard and whether they could remain unbiased. The court subsequently excused J.C. and one other person who had been selected to be a juror. Counsel for the petitioner renewed his motion for a mistrial. The court denied the motion, treating it as a motion to dismiss the jury panel, because the panel had not yet been sworn in.

Following the denial of the motion, the jury panel was sworn in, and the state began its presentation of evidence. After the state’s presentation of seven witnesses, four of whom testified that the petitioner shot the victim, the petitioner withdrew his not guilty plea and pleaded guilty before the court. The court sentenced the petitioner to forty-five years of incarceration.

Counsel for the petitioner testified at the habeas trial that he advised the petitioner that if he entered a guilty plea, he would be giving up certain rights, including his right to appeal. Counsel could not remember if he had advised the petitioner of his right to enter a conditional plea of guilty or if he advised the petitioner that by pleading guilty he would be giving up his right to raise on appeal a claim of juror misconduct. The petitioner informed his counsel that he originally had decided to plead not guilty because he had believed that the witnesses who identified him as the shooter would not come to court. Now that these various witnesses had testified, the petitioner preferred to get a specific agreement on sentencing rather than to rely on the discretion of the corut. The petitioner did not state any intention to raise on appeal any issue. The petitioner did not testify at his habeas trial.

The petitioner claims that the court erred by rejecting his claim of ineffective assistance of counsel. “[T]he governing legal principles in cases involving claims of ineffective assistance of counsel arising in connection with guilty pleas are set forth in Strickland [v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984)] and Hill [v. Lockhart, 474 U.S. 52, 106 S. Ct. 366, 88 L. Ed. 2d 203 (1985)]. [According to] Strickland, [an ineffective assistance of counsel] claim must be supported by evidence establishing that (1) counsel’s representation fell below an objective standard of reasonableness, and (2) counsel’s deficient performance prejudiced the defense because there was a reasonable probability that the outcome of the proceedings would have been different had it not been for the deficient performance. . . . The first prong requires a showing that counsel made errors so serious that counsel was not functioning as the counsel guaranteed ... by the [s]ixth [a]mendment. . . . Under . . . Hill . . . which . . . modified the prejudice prong of the Strickland test for claims of ineffective assistance when the conviction resulted from a guilty plea, the evidence must demonstrate that there is a reasonable probability that, but for counsel’s errors, [the petitioner] would not have pleaded guilty and would have insisted on going to trial. ... In its analysis, a reviewing court may look to the performance prong or to the prejudice prong, and the petitioner’s failure to prove either is fatal to a habeas petition.” (Citation omitted; emphasis in original; internal quotation marks omitted.) Faraday v. Commissioner of Correction, 107 Conn. App. 769, 773, 946 A.2d 891 (2008).

We need not examine the performance prong because it is clear from the habeas court’s factual findings that the petitioner failed to provide any evidence under the prejudice prong. From an examination of the court’s memorandum of decision, it is not entirely clear that the court used the test set forth in Hill to determine whether the petitioner’s trial counsel had rendered ineffective assistance. The court did find, however, that the petitioner did not present any evidence that he was prejudiced by his trial counsel’s failure to succeed on his motion for a mistrial on the basis of juror misconduct. The court also found that the petitioner did not present any evidence that he would not have pleaded guilty had he been advised that a guilty plea would prevent him from appealing from the court’s denial of his motion for a mistrial. Finally, the court found that the petitioner could not succeed on his ineffective assistance claim on the basis of trial counsel’s failure to advise the petitioner of his right to enter a conditional guilty plea because the trial court could not accept a conditional guilty plea under the circumstances of this case, and the petitioner failed to present any evidence that the prosecutor would have agreed to accept such a plea as part of the plea agreement. The petitioner failed to present any evidence at the habeas trial that he would have acted differently or was prejudiced by any of the claimed errors of his trial counsel. Because the petitioner has failed to prove prejudice under the Strickland standard as modified by Hill, we dismiss his appeal.

The petitioner next claims that the purportedly ineffective assistance of counsel also violated his right to due process guaranteed by the fourteenth amendment to the United States constitution. Because the petitioner has failed to prove his claim of ineffective assistance, as discussed in the preceding paragraph, this claim also fails.

We are not persuaded that the issues presented in this appeal are debatable among jurists of reason, that a court could resolve them in a different manner or that the questions raised deserve encouragement to proceed further. See Lozada v. Deeds, 498 U.S. 430, 431-32, 111 S. Ct. 860, 112 L. Ed. 2d 956 (1991); Simms v. Warden, 230 Conn. 608, 616, 646 A.2d 126 (1994). We conclude, therefore, that the petitioner has failed to establish that the court abused its discretion in denying his petition for certification to appeal.

The appeal is dismissed.

       The petitioner also claims that during his criminal trial, the court denied him due process of law when it failed to dismiss the jury panel on the basis of juror misconduct. Because the petitioner entered an unconditional guilty plea and during the canvass specifically acknowledged that he waived any right to challenge on appeal a nonjurisdictional issue, we do not review this claim. See State v. Hanson, 117 Conn. App. 436, 456, 979 A.2d 576 (2009) (“[i]n general, the only allowable challenges after a plea are those relating either to the voluntary and intelligent nature of the plea or the exercise of the trial court’s jurisdiction” [internal quotation marks omitted]), cert. denied, 295 Conn. 907, 989 A.2d 604 (2010).

       We refer by initials to those selected to be jurors so as to protect their legitimate privacy interests. See State v. Wright, 86 Conn. App. 86, 88 n.3, 860 A.2d 278 (2004).