author: PETERS, J.

text:
    STATE OF CONNECTICUT v. SETH WILLIAM APT
    (AC 33812)
    Graendel, Sheldon and Peters, Js.

      Argued September 17
    officially released November 12, 2013

      Adele V. Patterson, senior assistant public defender, for the appellant (defendant).

      Melissa Patterson, assistant state’s attorney, with whom, on the brief, were Matthew C. Gedansky, state’s attorney, and Charles W. Johnson, assistant state’s attorney, for the appellee (state).
   Opinion

PETERS, J.

“[T]he purpose of the erasure statute [General Statutes § 54-142a] ... is to protect innocent persons from the harmful consequences of a criminal charge which is subsequently dismissed.” (Emphasis omitted; footnote added; internal quotation marks omitted.) State v. Morowitz, 200 Conn. 440, 451, 512 A.2d 175 (1986). The principal issue in this case is whether a court can enhance a defendant’s sentence for committing a crime while released on bond pursuant to General Statutes § 53a-40b when, prior to the sentencing, the records relating to the arrests that led to the defendant’s release on bond had been erased pursuant to § 54-142a. We hold that a trial court has no authority to impose such a sentence enhancement and thus reverse the court’s judgment to the contrary.

In a substitute information dated April 25, 2011, the state charged the defendant, Seth William Apt, with larceny in the third degree in violation of General Statutes § 53a-124 (a) (2). The state also filed a part B information, charging the defendant with committing an offense while released on bond pursuant to § 53a-40b. The defendant denied his guilt, and he was tried before a jury on the larceny charge. On May 6, 2011, the jury found the defendant guilty. On June 24, 2011, after a continuance, the court found the defendant guilty of committing a crime while released on bond, subjecting him to a sentence enhancement. The defendant was then sentenced to a term of seven years imprisonment, execution suspended after three years, followed by three years of probation. The court specified that two years had been added to the sentence pursuant to the sentence enhancement statute. The defendant filed this appeal challenging the sentence enhancement.

In regard to the larceny charge, the jury reasonably could have found the following facts. On November 20, 2009, the Regional School District No. 8 high school football team held practice in Hebron. While the practice was underway, the defendant and his friend, a student at the school, entered the team’s locker room. The defendant, equipped with bolt cutters, removed the locks from the players’ lockers and took several valuable items. After practice, when the players returned to the locker room, many of them found that their belongings had been stolen. The stolen items included jewelry, clothing, electronic devices, and cash.

The following additional facts are relevant to the issue of sentence enhancement. On September 10,2007, the defendant was arrested in Manchester on charges of larceny in the first degree and larceny in the fourth degree (Manchester larceny charges). He was released on bond and applied for accelerated rehabilitation, pursuant to General Statutes § 54-56e, which the court granted. On December 19, 2008, the defendant was arrested on a charge of criminal trespass in the first degree (criminal trespass charge). He was again released on bond. On January 16, 2009, he was arrested on charges of risk of injury to a minor, reckless endangerment in the first degree, unlawful restraint in the first degree, reckless driving, and criminal trespass in the first degree (reckless endangerment charges). He was then released on bond for a third time. On November 20, 2009, the defendant committed the Hebron larceny previously described. He was arrested for that crime on March 31, 2010.

On May 7, 2010, prior to trial on the Hebron larceny charges, the defendant was found to have successfully completed accelerated rehabilitation on the Manchester larceny charges. Because the charges were dismissed, the records relating thereto were subject to erasure pursuant to § 54-142a. At the same time, the state entered a nolle prosequi on the defendant’s criminal trespass charge and reckless endangerment charges. On June 7, 2011, because thirteen months had passed since those charges were nolled, the records of the charges were subject to erasure pursuant to § 54-142a (c) (1).

On June 24, 2011, after erasure had taken effect, the court held a sentencing hearing. Over the defendant’s objection, the court admitted into evidence the informa-tions for the defendant’s Manchester larceny charges, criminal trespass and reckless endangerment charges, and an appearance bond form for the reckless endangerment charges. The court relied on these records to find the defendant guilty of committing a crime while released on bond pursuant to § 53a-40b. Dining sentencing, the court referenced the record, the defendant’s history of arrests, and his participation in accelerated rehabilitation in sentencing him to seven years imprisonment, execution suspended after three years, followed by three years of probation.

On appeal, the defendant first claims that the court improperly admitted into evidence records that had been erased pursuant to § 54-142a. He further argues that the error was harmful because the records were the sole evidence before the court on the issue of sentence enhancement. We agree.

Ordinarily, a claim that the trial court improperly admitted evidence is reviewed under the abuse of discretion standard. Landry v. Spitz, 102 Conn. App. 34, 57, 925 A.2d 334 (2007). In the present case, however, the question of whether erased records were properly admitted into evidence presents a question of statutory interpretation over which we exercise plenary review. See Regan v. Regan, 143 Conn. App. 113, 120, 68 A.3d 172 (2013). “The process of statutory inteipretation involves the determination of the meaning of the statutory language as applied to the facts of the case, including the question of whether the language does so apply. . . . When construing a statute, [o]ur fundamental objective is to ascertain and give effect to the apparent intent of the legislature. ... In seeking to determine that meaning, General Statutes § l-2z directs us first to consider the text of the statute itself and its relationship to other statutes.” (Citation omitted; internal quotation marks omitted.) Id. “We are also guided by the principle that the legislature is always presumed to have created a harmonious and consistent body of law . . . .’’(Internal quotation marks omitted.) State v. Fernando A., 294 Conn. 1, 21, 981 A.2d 427 (2009).

The records relied upon by the court in finding the defendant guilty of committing a crime while released on bond related to charges against the defendant that had been dismissed under the accelerated rehabilitation statute and nolled by the prosecutor. The accelerated rehabilitation statute provides for the erasure of records relating to charges dismissed for successful completion of accelerated rehabilitation: “Upon dismissal, all records of such charges shall be erased pursuant to [the erasure statute].” General Statutes § 54-56e (f). The erasure statute expressly provides for the erasure of records relating to nolled charges: “Whenever any charge in a criminal case has been nolled in the Superior Court ... if at least thirteen months have elapsed since such nolle, all police and court records and records of the state’s or prosecuting attorney . . . pertaining to such charge shall be erased . . . .” General Statutes § 54-142a (c) (1).

In both cases, the erasure statute dictates the ramifications of erasure. The statute provides in relevant part that “[t]he clerk of the court or any person charged with retention and control of such records in the records center of the Judicial Department or any law enforcement agency having information contained in such erased records shall not disclose to anyone, except the subject of the record . . . information pertaining to any charge erased under any provision of this section and such clerk or person charged with the retention and control of such records shall forward a notice of such erasure to any law enforcement agency to which he knows information concerning the arrest has been disseminated and such disseminated information shall be erased from the records of such law enforcement agency. . . .” General Statutes § 54-142a (e) (1).

Our Supreme Court has noted that “the purpose of the erasure statute ... is to protect innocent persons from the harmful consequences of a criminal charge which is subsequently dismissed. . . . Prohibiting the subsequent use of records of the prior arrest and court proceedings adequately fulfills this purpose by insulating such an individual from the consequences of the prior prosecution.” (Citations omitted; emphasis omitted; internal quotation marks omitted.) State v. Morowitz, supra, 200 Conn. 451. While erasure does not require physical destruction of the records, it does require that such records not be disclosed except in very limited circumstances. See State v. Anonymous, 237 Conn. 501, 513, 680 A.2d 956 (1996).

In this case, it is undisputed that the necessary amount of time had elapsed to subject records relating to the defendant’s prior arrests to erasure as a matter of law. The documents proffered by the prosecution at the sentencing hearing, informations and an appearance bond form, clearly qualify as the type of “police and court records” to which the erasure statute applies. The records did not fall into any exception Usted under the erasure statute. Thus, the four exhibits had been erased prior to being admitted into evidence by the court. It is clear that the admission into evidence of erased records in a court proceeding against the subject of those erased records is exactly the type of disclosure that the erasure statute is designed to prevent. See Stratford v. Council 15, Local 407, AFSCME, 3 Conn. App. 590, 594-95, 490 A.2d 1021 (holding that administrative board properly refused to admit erased records into evidence), cert. denied, 196 Conn. 809, 494 A.2d 905 (1985). Thus, the court erred in admitting these records into evidence. Likewise, the court’s error was harmful, as the erased records were the only evidence in support of the court’s determination that the defendant had committed a crime while released on bond.

The state contends that, upon a determination of error, this case should be remanded for a new hearing as to the sentence enhancement, where the prosecution can introduce alternative evidence that the defendant was released on bond at the time he committed the Hebron larceny. The state correctly notes that the erasure statute does not preclude certain alternative forms of evidence, such as testimony from personal knowledge, so long as it is not derived from the erased records. See Rado v. Board of Education, 216 Conn. 541, 550, 583 A.2d 102 (1990) (“[t]he Erasure Act was not intended to obliterate memory or to exclude any testimony not shown to have been derived from erased records”).

In this case, however, the sole subject of the trial court’s inquiry on remand would be the defendant’s pretrial release status on the particular date in question. This status is inextricably related to the defendant’s prior arrests. The erasure statute provides that “[a]ny person who shall have been the subject of such an erasure shall be deemed to have never been arrested within the meaning of the general statutes with respect to the proceedings so erased and may so swear under oath.” General Statutes § 54-142a (e) (3). Thus, the defendant is no longer considered to have been arrested for the alleged crimes to which the records pertained. It would be wholly inconsistent to enhance the defendant’s sentence for committing a crime while released on bond for charges on which, as far as the law is concerned, he was never arrested. Doing so would run counter to the erasure statute’s purpose of “insulating [the defendant] from the consequences of the prior prosecution.” (Emphasis omitted.) State v. Morowitz, supra, 200 Conn. 451. Accordingly, a new hearing is unnecessary as, regardless of the evidence produced by the state, any determination of guilt as to the sentence enhancement would violate the erasure statutes. Furthermore, the trial judge explicitly stated that two years had been added to the defendant’s sentence as a sentence enhancement. Therefore, the proper remedy is to vacate the sentence enhancement and to remove the additional two years from the defendant’s sentence.

To summarize, we conclude that the court erred in admitting the erased records into evidence and that any sentence enhancement for committing a crime while released on bond under § 53a-40b is barred in this case.

The judgment is reversed only as to the conviction under § 53a-40b and the case is remanded with direction to vacate that conviction and to resentence the defendant to a total effective term of five years imprisonment, execution suspended after three years, followed by three years of probation. The judgment is affirmed in all other respects.

In this opinion the other judges concurred.

       General Statutes § 54-142a provides in relevant part: “(a) Whenever in any criminal case, on or after October 1, 1969, the accused, by a final judgment, is found not guilty of the charge or the charge is dismissed, all police and court records and records of any state’s attorney pertaining to such charge shall be erased upon the expiration of the time to file a writ of error or take an appeal, if an appeal is not taken, or upon final determination of the appeal sustaining a finding of not guilty or a dismissal, if an appeal is taken. . . .
      “(c) (1) Whenever any charge in a criminal case has been nolled in the Superior Court ... if at least thirteen months have elapsed since such nolle, all police and court records and records of the state’s or prosecuting attorney or the prosecuting grand juror pertaining to such charge shall be erased . . . .”

       General Statutes § 53a-40b provides in relevant part: “A person convicted of an offense committed while released [on bond] . . . may be sentenced, in addition to the sentence prescribed for the offense to (1) a term of imprisonment of not more than ten years if the offense is a felony . . . .”

       General Statutes § 53a-124 (a) provides in relevant part: “A person is guilty of larceny in the third degree when he commits larceny, as defined in section 53a-119, and ... (2) the value of the property or service exceeds two thousand dollars . . . .”

       The defendant also claims that he was denied due process of law when the judge, rather than a jury, decided the issue of sentence enhancement and when the judge treated his earlier arrests and dismissals as proof of prior criminal conduct. In light of our determination on the defendant’s principal claim, we need not address these issues.

       The fact that the nolled charges were not yet erased when the defendant was convicted of the Hebron larceny charge does not impact our analysis. The state did not object to the delay in sentencing and, in fact, ensured it by requesting a presentencing investigation.

       The state argues that the erasure statute is inapplicable to records that are relevant to a pending case, based on the following statutory language: “[The erasure statute] shall not apply to any police or court records or the records of any state’s attorney or prosecuting attorney with respect to any information or indictment containing more than one count . . . while the criminal case is pending . . . General Statutes § 54-142a (g). The state has misconstrued this exception, which applies when one or more counts of a multicount information or indictment has been dismissed but additional counts remain. In that instance, the records relating to those counts are not erased while the remaining charges are being adjudicated. This is not such a case.

       Notably, this is not a case where the defendant seeks to be “insulate[d] . . . from the consequences of his prior actions.” (Emphasis in original.) State v. Morowitz, supra, 200 Conn. 451. Our case law is clear that the erasure statute does not prevent the admission of evidence relating to the conduct for which the subject of erased records was arrested. See id.; see also Rado v. Board of Education, supra, 216 Conn. 550. In this case, however, it is the defendant’s status as a prosecuted person, not his conduct, that is at issue.


source: Caselaw Access Project

author: ROBINSON, J.

license: Public Domain

text:
    BANCO POPULAR NORTH AMERICA v. DU’GLACE, LLC, ET AL.
    (AC 35014)
    Gruendel, Robinson and Keller, Js.
    Submitted on briefs September 13
    officially released November 12, 2013

      Howard M. Gould and Elizabeth R. Woodhull filed a brief for the appellant (defendant Douglas F. Holt).

      Philip G. Kent and Karen Baldwin Kravetz filed a brief for the appellee (plaintiff).
   Opinion

ROBINSON, J.

In this mortgage foreclosure action, the defendant Douglas F. Holt, a guarantor of the mortgage debt, appeals from the deficiency judgment rendered against him and the defendant mortgagor, du’Glace, LLC, by the trial court in favor of the plaintiff, Banco Popular North America, in the amount of $281,910.42. Holt claims that, in ruling on the plaintiffs motion for a deficiency judgment, the court improperly admitted into evidence a “restricted use” appraisal report and relied upon that same appraisal report in determining the fair market value of the subject property. We disagree and affirm the judgment of the court.

The record reveals the following facts and procedural history relevant to this appeal. Defaults were rendered in the foreclosure action against all the defendants. On March 14, 2011, the court, Abrams, J., rendered judgment of strict foreclosure in favor of the plaintiff. The court found that the debt, including attorney’s fees, was $727,889.69, and that the property had a fair market value of $410,000. The court set law days to commence on May 9, 2011, beginning with du’Glace, LLC, as the owner of the equity of redemption, and continuing for subsequent encumbrancers in the inverse order of priorities. No appeal was taken from the foreclosure judgment. All law days subsequently passed without redemption, at which time title to the subject property fully vested in the plaintiff. See Barclays Bank of New York v. Ivler, 20 Conn. App. 163, 167, 565 A.2d 252, cert. denied, 213 Conn. 809, 568 A.2d 792 (1989).

On June 14, 2011, the plaintiff filed a motion for a deficiency judgment. In the motion, the plaintiff requested that the court hold an evidentiary hearing and, pursuant to Practice Book § 23-19, disclosed that the plaintiff intended to call Michael Alerta as an expert witness regarding the value of the subject property on the date that title vested in the plaintiff. On September 16, 2011, the plaintiff served copies of what was titled a “limited restricted use appraisal report of commercial property,” which was accompanied by an affidavit from Alerta stating his opinion that the subject property had a fair market value of $410,000 at the time title vested in the plaintiff. On October 6, 2011, the court, Holzberg, J., issued an order that argument on the motion for a deficiency judgment would be necessary, indicating that “ [consideration of this motion will require the testimony of the appraiser.”

On November 7, 2011, Holt filed an objection to the plaintiffs motion for a deficiency judgment. On November 14, 2011, the parties appeared before Judge Holz-berg for the purpose of hearing testimony from Aletta about his appraisal and findings, and to allow Holt’s counsel an opportunity to cross-examine Aletta as to whether the appraisal and his findings were consistent with standards in the field and based on methodology consistent with the Uniform Standards of Professional Appraisal Practice (USPAP). See General Statutes § 20-504. At the start of the hearing, Holt’s counsel indicated that he had just filed a motion in limine that sought an order “excluding any and all evidence of, or reference to, the ‘limited restricted appraisal report’ based on the ground that such evidence does not meet the standards for admissibility, and is inherently prejudicial . . . .” Following the hearing, on November 29,2011, the plaintiff filed a memorandum of law that addressed both Holt’s objection to the motion for a deficiency judgment and his motion in limine. The parties appeared before the court again on December 12, 2011, for additional argument on the motion in limine.

On August 6,2012, the court issued a memorandum of decision granting the plaintiffs motion for a deficiency judgment against Holt and du’Glace, LLC. In the memorandum, the court also disposed of the motion in limine, noting that, although Holt had raised a number of interesting issues concerning the propriety of the appraisal offered by the plaintiff, the court was “not precluded from considering either the appraisal itself or the expert’s opinion concerning fair market value. The short answer is that [Holt]’s objection goes to the weight, not the admissibility, of the evidence.” The court found that the fair market value of the subject property on the date title vested in the plaintiff was $510,000, significantly more than Aletta’s appraised value, resulting in a deficiency judgment of $281,910.42. The court explained that it reached its decision by taking into account all evidence presented, including the appraisal and its inherent limitations, the comparables used in the appraisal, and the credibility of Aletta. This appeal followed.

“A deficiency judgment provides a means for a mortgagee to recover any balance due on the mortgage note that was not satisfied by the foreclosure judgment .... It is the only means of satisfying a mortgage debt when the security is inadequate to make the foreclosing plaintiff whole.” (Citation omitted; internal quotation marks omitted.) People’s Bank v. Bilmor Building Corp., 28 Conn. App. 809, 822, 614 A.2d 456 (1992). A motion for a deficiency judgment may be brought “[a]t any time within thirty days after the time limited for redemption has expired . . . .” General Statutes § 49-14 (a). “A deficiency proceeding has a very limited purpose. In the hearing contemplated under § 49-14 to obtain a deficiency judgment, the court, after hearing the party’s appraisers, determines the value of the property and calculates any deficiency. This deficiency judgment procedure presumes the amount of the debt as established by the foreclosure judgment and merely provides for a hearing on the value of the property. . . . The deficiency hearing concerns the fair market value of the subject property as of the date title vests in the foreclosing plaintiff under § 49-14. . . . [I]mplicit in ... § 49-14 is the requirement that the party seeking a deficiency judgment satisfy her burden of proof regarding the fair market value of the property ... in particular, the requirement that the plaintiff provide the court with sufficient evidence to demonstrate that she is entitled to a deficiency judgment. . . .

“When considering a motion for a deficiency judgment, the trial court may make an independent determination as to the valuation of the property. . . . Our Supreme Court has held that, in a deficiency judgment proceeding, [t]he determination of [a property’s] value by a court is the expression of the court’s opinion aided ordinarily by the opinions of expert witnesses, and reached by weighing those opinions in light of all the circumstances in evidence bearing upon value and its own general knowledge of the elements going to establish it. .. . [T]he determination of the credibility of expert witnesses and the weight to be accorded their testimony is within the province of the trier of facts, who is privileged to adopt whatever testimony he reasonably believes to be credible. . . .

“In determining valuation pursuant to [General Statutes] § 49-14, the trier, as in other areas of the law, is not bound by the opinion of the expert witnesses .... The evaluation of testimony is the sole province of the trier of fact. We do not retry the case. The conclusion of the trial court must stand unless there was an error of law or a legal or logical inconsistency with the facts found. . . . We will disturb the trial court’s determination of valuation, therefore, only when it appears on the record before us that the court misapplied or overlooked, or gave a wrong or improper effect to, any test or consideration which it was [its] duty to regard.” (Citations omitted; emphasis altered; internal quotation marks omitted.) Citicorp Mortgage, Inc. v. Weinstein, 52 Conn. App. 348, 352-53, 727 A.2d 720 (1999). Finally, “the trial court has broad discretion in ruling on the admissibility [and relevancy] of evidence. . . . The trial court’s ruling on evidentiary matters will be overturned only upon a showing of a clear abuse of the court’s discretion.” (Citation omitted; internal quotation marks omitted.) New England Savings Bank v. Bedford Realty Corp., 238 Conn. 745, 752, 680 A.2d 301 (1996).

On appeal, Holt claims that the court erred in denying his motion in limine, admitting into evidence Aletta’s “limited restricted use appraisal report,” and by relying on that appraisal and on Aletta’s expert testimony in determining the subject property’s fair market value. Holt argues that Aletta’s appraisal was a “restricted use” appraisal as that term is used in USPAP, and that such an appraisal is intended only for the client’s use and not by third parties such as the court because, by definition, such an appraisal does not contain all of the data, reasoning and analysis used in the appraisal process, and, therefore, is inherently unreliable. Holt supports his argument by relying on admissibility standards for scientific evidence; see State v. Porter, 241 Conn. 57, 698 A.2d 739 (1997) (adopting similar approach to admissibility of scientific evidence as set forth in Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S. Ct. 2786, 125 L. Ed. 2d 469 [1993]), cert. denied, 523 U.S. 1058, 118 S. Ct. 1384, 140 L. Ed. 2d 645 (1998); and citations to two tax assessment cases from other jurisdictions, one in which the court granted a motion in limine under the Federal Rules of Evidence barring admission of an appraisal report because it was not “the product of reliable methods and the authors have not applied reliable principles and methods reliably to the facts of the case”; Boltar, L.L.C. v. Commissioner of Internal Revenue, 136 T.C. 326, 340 (2011); and the other holding that “restricted use” appraisals should not be admitted as evidence for valuation purposes. See Omaha Country Club v. Douglas County Board of Equalization, 11 Neb. App. 171, 177-78, 645 N.W.2d 821 (2002). We do not find the arguments persuasive.

In Daubert, the United States Supreme Court charged federal trial judges to act as gatekeepers regarding the reasoning or methodology behind scientific evidence so as to exclude from admission any unreliable evidence and related expert testimony. See Daubert v. Merrell Dow Pharmaceuticals, Inc., supra, 509 U.S. 589-90, 592-93. Our Supreme Court adopted the Daubert approach regarding the threshold admissibility of scientific evidence. See State v. Porter, supra, 241 Conn. 61. Although federal courts have applied the Daubert gatekeeping function as to the admission of all expert testimony, not just testimony based in science; see Kumho Tire Co., Ltd. v. Carmichael, 526 U.S. 137, 119 S. Ct. 1167, 143 L. Ed. 2d 238 (1999); Connecticut has never adopted that expansion of the Daubert holding. See Message Center Management, Inc. v. Shell Oil Products Co., 85 Conn. App. 401, 422 n.12, 857 A.2d 936 (2004). Because a real estate appraisal is not scientific evidence, any reliance by Holt on the Porter-Daubert line of cases or cases such as Boltar, L.L.C., applying federal admissibility standards is misplaced.

“All relevant evidence is admissible except as provided by the federal or state constitutions or Connecticut statute. Conn. Code Evid. § 4-2. Relevant evidence is evidence that has a logical tendency to aid the trier in the determination of an issue. . . . The fact that evidence may be subject to several interpretations does not affect its admissibility as long as it can be construed as relevant.” (Citation omitted; internal quotation marks omitted.) Jenkins v. Kos, 78 Conn. App. 840, 843-44, 829 A.2d 31 (2003). The appraisal report and Aletta’s testimony were relevant, as they had a logical tendency to aid the court as the trier of fact in reaching its independent determination regarding the value of the subject property. We can find no Connecticut authority suggesting that a real estate appraiser must fully satisfy USPAP standards in a particular manner before a court can admit and consider that appraiser’s expert testimony or appraisal report; the court, in fact, has wide discretion in admitting expert testimony regarding property values. See Caciopoli v. Lebowitz, 131 Conn. App. 306, 323, 26 A.3d 136 (2011), aff'd, 309 Conn. 62, 68 A.3d 1150 (2013); see also Taylor v. King, 121 Conn. App. 105, 120, 994 A.2d 330 (2010) (witness qualified to testify to diminution in value of property despite not being licensed as real estate appraiser pursuant to General Statutes § 20-501).

Here, Aletta testified subject to cross-examination about his background and experience as a real estate appraiser and about how he came to reach the opinion expressed in the appraisal report. Holt’s attorney fully cross-examined Aletta regarding his appraisal methods, including the fact that the appraisal was done without the benefit of examining the interior of the subject property. The court was free to accept or reject in whole or in part the evidence before it regarding valuation. See Citicorp Mortgage, Inc. v. Weinstein, supra, 52 Conn. App. 353. We agree with the court’s conclusion that any irregularities that Holt sought to expose regarding Aletta’s methodology were fodder for cross-examination and went to the weight, and not the admissibility, of the appraisal or the expert testimony.

In sum, “[t]he trial court has wide discretion in ruling on the qualification of expert witnesses and the admissibility of their opinions. . . . The court’s decision is not to be disturbed unless [its] discretion has been abused, or the error is clear and involves a misconception of the law.” (Internal quotation marks omitted.) Hutchinson v. Andover, 49 Conn. App. 781, 788, 715 A.2d 831 (1998). On the record before us, we find no such abuse of discretion, clear error or misconception of the law in the court’s admission of Aletta’s appraisal or expert testimony.

The judgment is affirmed.

In this opinion the other judges concurred.

       Also named as defendants in the operative complaint were William Von Ahnen and Jacqueline Von Ahnen, as additional personal guarantors of the mortgage debt, and Patricia Von Ahnen, as a subsequent encumbrancer of the subject property, a restaurant located in Deep River. Patricia Von Ahnen was defaulted for failure to appear and is not a participant in this appeal. The plaintiff did not seek a deficiency judgment against William Von Ahnen and Jacqueline Von Ahnen, each of whom had filed for bankruptcy relief. Neither is a participant in this appeal. Finally, we note that the defendant du’Glace, LLC, did not file an appeal from the deficiency judgment, and it has not participated in the present appeal.

       In its August 6, 2012 memorandum of decision, the court states that title vested in the plaintiff on May 16, 2011. Although it is not clear from the record precisely which of the defendants were entitled to and awarded law days, that issue is not before this court, and it is not in dispute that all law days had expired, at the latest, by May 16, 2011.

       The motion for a deficiency judgment first came before Judge Holzberg at a short calendar hearing on October 3, 2011. The plaintiffs counsel appeared at that time without an appraiser. There is no indication that anyone appeared on behalf of any of the defendants. After a brief exchange with the plaintiffs counsel about the current appraisal and the appraisal relied on at the time the judgment of foreclosure was rendered, the court indicated: “I need to look at this more carefully. I can’t do it now. I’m not guaranteeing I’m not going to reschedule this with Mr. Aletta present in person; but, for now, I’ll take the papers.”

       Holt indicated in his motion that Christopher Buckley would testily on his behalf as to the value of the subject property. There is nothing in the record, however, that indicates that Buckley’s opinion was ever presented to the court.

       General Statutes § 20-504 provides in relevant part that the Commissioner of Consumer Protection may adopt reasonable regulations that, inter alia, “shall require any real estate appraiser to comply with generally accepted standards of professional appraisal practice as described in the [USPAP] issued by the Appraisal Standards Board of the Appraisal Foundation . . . .”

       We note that Holt does not argue that a real estate appraisal is scientific evidence, nor does he ask us to adopt the expansion by Kumho Tire Co., Ltd., of the Daubert holding as the law of this state.

       This court previously has rejected a foreclosure defendant’s claim that, as a matter of law, a wholly exterior appraisal or “drive-by” appraisal cannot provide a sufficient basis for determining a property’s fair market value in a deficiency judgment proceeding, especially when other information such as town records, comparable sales and Multiple Listing Service information is part of the appraisal process. See Citicorp Mortgage, Inc. v. Weinstein, supra, 52 Conn. App. 354-55.


author: PER CURIAM.

text:
    STATE OF CONNECTICUT v. CLYDE MEIKLE
    (AC 34203)
    Lavine, Robinson and Alvord, Js.

      Argued October 9
    officially released November 12, 2013

      Clyde Meikle, self-represented, the appellant (defendant).

      Ronald G. Weller, senior assistant state’s attorney, with whom, on the brief, were Gail P. Hardy, state’s attorney, and Donna Mambrino, senior assistant state’s attorney, for the appellee (state).
   Opinion

PER CURIAM.

The defendant, Clyde Meikle, returns to this court for the fourth time following his conviction of murder in April of 1998. The self-represented defendant appeals from the judgment of the trial court denying his motion to correct an illegal sentence pursuant to Practice Book § 43-22. We conclude that the trial court lacked subject matter jurisdiction to consider the motion to correct. Accordingly, we remand the matter to the trial court with direction to render a judgment of dismissal.

The underlying offense occurred on November 1, 1994. Following an argument with the victim, Clifford Walker, over a parking space, the defendant approached the victim with a sawed-off shotgun, pulled the trigger and killed the victim instantly. The defendant contended that the weapon discharged accidentally. After a jury trial, he was convicted of murder. See State v. Meikle, 60 Conn. App. 802, 761 A.2d 247 (2000), cert. denied, 256 Conn. 947, 769 A.2d 63 (2001).

Following his conviction, the trial court sentenced the defendant to fifty years incarceration. Thereafter, he brought numerous postconviction challenges including a direct appeal and two petitions for a writ of habeas corpus. These challenges were all resolved against the defendant. On April 27, 2011, the defendant filed an amended motion to correct an illegal sentence alleging that (1) the shotgun introduced at trial was not in fact the murder weapon and (2) the state fraudulently concealed this fact from his trial counsel. Following a hearing on the motion to correct, the trial corut denied the motion. On the basis of our review of the record, we conclude that the trial corut lacked subject matter jurisdiction.

“We have long held that because [a] determination regarding a trial court’s subject matter jurisdiction is a question of law, our review is plenary.” (Internal quotation marks omitted.) Ajadi v. Commissioner of Correction, 280 Conn. 514, 532, 911 A.2d 712 (2006). “It is well established that the jurisdiction of a sentencing court terminates once a defendant has begun serving his sentence. . . . [Therefore, that court may no longer take any action affecting a defendant’s sentence unless it expressly has been authorized to act. . . . Practice Book § 43-22, which provides the trial court with such authority, provides that [t]he judicial authority may at any time correct an illegal sentence .... An illegal sentence is essentially one which either exceeds the relevant statutory maximum limits, violates a defendant’s right against double jeopardy, is ambiguous, or is internally contradictory.” (Citation omitted; internal quotation marks omitted.) State v. Delgado, 116 Conn. App. 434, 437-38, 976 A.2d 736 (2009).

A motion to correct an illegal sentence must rest on the sentencing itself. “In order for the court to have jurisdiction over a motion to correct an illegal sentence after the sentence has been executed, the sentencing proceeding, and no t the trial leading to the conviction, must be the subject of the attack.” (Emphasis added.) State v. Lawrence, 281 Conn. 147, 158, 913 A.2d 428 (2007).

In the present case, the defendant improperly seeks to address a trial-related claim through a motion to correct an illegal sentence. The defendant contends that the sentencing court relied on inaccurate information, specifically, that the shotgun introduced at trial was not the actual murder weapon. The defendant argues that because the sentencing court “considered all the evidence that was used at trial,” it relied on inaccurate information. This argument is not persuasive because an attack on the admissibility of evidence relates to the events occurring during the criminal trial and thus falls outside the narrow confines of Practice Book § 43-22. See State v. Delgado, supra, 116 Conn. App. 439 (“the sentencing proceeding, and not the trial leading to the conviction, must be the subject of the attack” [internal quotation marks omitted]). Accordingly, the trial court lacked subject matter jurisdiction to consider the defendant’s motion to correct.

The form of the judgment is improper, the judgment is reversed and the case is remanded with direction to render judgment dismissing the defendant’s motion to correct an illegal sentence.

       The defendant proceeded as a self-represented party at the trial court because the public defender’s office found no basis for the motion to correct. See State v. Casiano, 282 Conn. 614, 627, 922 A.2d 1065 (2007) (appointed counsel not required to file motion that is frivolous or improper). On May 23, 2011, the public defender was released from the case.

       See Meikle v. Commissioner of Correction, 146 Conn. App. 905, 75 A.3d 810 (2013); Meikle v. Commissioner of Correction, 87 Conn. App. 490, 865 A.2d 1237, cert. denied, 273 Conn. 922, 871 A.2d 1028 (2005); State v. Meikle, supra, 60 Conn. App. 802.


author: BEACH, J.

text:
    IN RE HARLOW P.

    (AC 35602)
    Beach, Sheldon and Dupont, Js.

      Argued September 16
    officially released October 30, 2013

      Alison P. Gaston, with whom, on the brief, was Erich H. Gaston, for the appellant (respondent father).

      Ingrid E. Swanson, for the appellee (petitioner minor child).

      Jessica B. Gauvin, assistant attorney general, with whom, on the brief, were George Jepsen, attorney general, and Benjamin Zivyon, assistant attorney general, for the appellee (Commissioner of Children and Families).

         In accordance with the spirit and intent of General Statutes § 46b-142 (b) and Practice Book § 79a-12, the names of the parties involved in this appeal are not disclosed. The records and papers of this case shall be open for inspection only to persons.having a proper interest therein and upon order of the Appellate Court.

       October 30, 2013, the date that this decision was released as a slip opinion, is the operative date for all substantive and procedural purposes.

   Opinion

BEACH, J.

The respondent father, Joseph P., appeals from the judgment of the trial court terminating his parental rights with respect to his minor child, H. On appeal, the respondent claims that the court erred in (1) finding that the Department of Children and Families (department) made reasonable efforts to reunify him with H and that he was unable or unwilling to benefit from such efforts, (2) concluding that he failed to achieve a sufficient degree of personal rehabilitation, (3) concluding that terminating his parental rights was in H’s best interest, (4) admitting a social study into evidence, and (6) terminating his parental rights on the basis of indigence in violation of his rights to equal protection and due process protected by the fourteenth amendment to the United States constitution. We affirm the judgment of the trial court.

The record reveals the following relevant facts and procedural history. Shortly after H was bom in 2009, the Commissioner of Children and Families (commissioner) received a referral from Yale-New Haven Hospital expressing concerns for H’s safety. A department social worker interviewed both parents at the hospital. The respondent reported that he was unemployed, used marijuana and benzodiazepines, was receiving substance abuse services, was living at a friend’s house, and lacked stable housing. The social worker noted that H’s parents failed to follow a safety protocol put in place by the hospital to ensure that H would be safe while in their care. On May 19, 2009, the commissioner filed a motion for an order of temporary custody and a neglect petition. On May 29, 2009, the court granted the order of temporary custody by agreement of the parties.

The court ordered specific steps, which, for the respondent, included engaging in counseling and obtaining adequate housing and a legal income. The respondent signed the form outlining the steps. H was adjudicated neglected and committed to the custody of the commissioner in June, 2011. Gloria Harris, counsel for the petitioner minor child, later filed a petition for termination of the respondent’s parental rights with respect to H, pursuant to General Statutes § 17a-112 et seq. On February 13, 2013, the court, Brown, J., terminated the respondent’s parental rights with respect to H. This appeal followed. Additional facts will be set forth as necessary.

Section 17a-112 (j) provides in relevant part: “The Superior Court . . . may grant a petition filed [for termination of parental rights] if it finds by clear and convincing evidence that (1) the Department of Children and Families has made reasonable efforts to locate the parent and to reunify the child with the parent . . . [unless the parent is unable or unwilling to benefit from reasonable efforts], (2) termination is in the best interest of the child, and (3) . . . (B) the child (i) has been found by the Superior Court or the Probate Court to have been neglected or uncared for in a prior proceeding . . . and the parent . . . has failed to achieve such degree of personal rehabilitation as would encourage the belief that within a reasonable time, considering the age and needs of the child, such parent could assume a responsible position in the life of the child . . .

“A hearing on a petition to terminate parental rights consists of two phases, adjudication and disposition. ... In the adjudicatory phase, the trial court determines whether one of the statutory grounds for termination of parental rights [under § 17a-112 (j)] exists by clear and convincing evidence. If the trial court determines that a statutory ground for termination exists, it proceeds to the dispositional phase. In the dispositional phase, the trial court determines whether termination is in the best interests of the child. . . .

“Our standard of review on appeal from a termination of parental rights is limited to whether the challenged findings are clearly erroneous. ... A finding is clearly erroneous when either there is no evidence in the record to support it, or the reviewing court is left with the definite and firm conviction that a mistake has been made. . . . [G]reat weight is given to the judgment of the trial court because of [the trial court’s] opportunity to observe the parties and the evidence. . . . [An appellate court does] not examine the record to determine whether the trier of fact could have reached a conclusion other than the one reached. . . . [Rather] every reasonable presumption is made in favor of the trial court’s ruling.” (Internal quotation marks omitted.) In re Sole S., 119 Conn. App. 187, 190-91, 986 A.2d 351 (2010).

I

The respondent claims that the court erred in finding that the department made reasonable efforts to reunify him with H and that he was unable or unwilling to benefit from such efforts. We disagree.

“In order to terminate parental rights under § 17a-112 (j), the department is required to prove, by clear and convincing evidence, that it has made reasonable efforts ... to reunify the child with the parent, unless the court finds . . . that the parent is unable or unwilling to benefit from reunification [efforts] .... [Section 17a-112] imposes on the department the duty, inter alia, to make reasonable efforts to reunite the child or children with the parents. The word reasonable is the linchpin on which the department’s efforts in a particular set of circumstances are to be adjudged, using the clear and convincing standard of proof. Neither the word reasonable nor the word efforts is, however, defined by our legislature or by the federal act from which the requirement was drawn. . . . [Reasonable efforts means doing everything reasonable, not everything possible. . . . The trial court’s determination of this issue will not be overturned on appeal unless, in light of all of the evidence in the record, it is clearly erroneous.” (Internal quotation marks omitted.) In re G.S., 117 Conn. App. 710, 716, 980 A.2d 935, cert. denied, 294 Conn. 919, 984 A.2d 67 (2009).

The respondent argues that the department’s reunification efforts were unreasonably insufficient because (1) he was not involved in “Birth to Three” services given to H to address developmental delays, despite the testimony of Logan Green, a court-appointed psychologist, that some type of services that focused on H’s developmental issues should have been in place to facilitate reunification, (2) a psychologist was not involved to assist in the reunification process despite the testimony of Ines Schroeder, another court-appointed psychologist, that a psychologist should be involved to help everyone in the reunification process, (3) the respondent and H’s mother were not provided with couples therapy, and (4) the department ignored “a myriad of recommendations” made by court-appointed psychologists, such as that the respondent would benefit from parenting education, that visitation should be increased from two times per week to three and then should progress to unsupervised full day visits, and that the respondent would benefit from “psycho-education” regarding the impact of disrupted primary bonds between a child and their caregiver.

Relying on evidence contradictory to each of the respondent’s claims, the court found that he was offered a variety of services. As to the Birth to Three program, evidence was submitted at trial that the respondent was provided with “explanatory” work sheets from that program detailing the services which were provided to H within the program, such as descriptions of exercises H should perform to help alleviate physical issues related to her developmental delays. Tomi Handy, a social worker with the department, testified that Birth to Three workers filled out the work sheets each week, and that she gave the sheets to the respondent and was willing to assist the respondent with any questions regarding the work sheets.

Second, Schroeder testified that a psychologist’s services would be helpful to the reunification process when the respondent was “stable”: that is, when he had stable housing, was consistent with his treatment for substance abuse and had provided consistently negative substance screenings. Schroeder further testified that she was not recommending reunification because the respondent was not stable.

Third, Julie Dixon, a social worker with the department, testified that the department made a recommendation that H’s parents participate in couples counseling. She testified that H’s parents discontinued couples counseling because they did not think that they had any such issues.

Last, Dixon testified that the respondent’s visitation schedule with H was changed from three times per week to twice per week, but for the same total number of hours by agreement of all parties involved. Green testified that he “didn’t think it was especially relevant whether [visitation] happened twice a week or three times a week.” Dixon also testified that the change to unsupervised visits was reconsidered when H’s mother was arrested. Although the department did not follow through with every recommendation made by the court-appointed psychologist, it did offer multiple services to the respondent.

The court found that the department offered the respondent a “plethora” of services designed to achieve reunification. These services included: Safe Families, for substance abuse treatment, parenting, case management services, assistance in obtaining safe and stable housing, and transportation assistance; Coordinating Counsel for Children in Crisis, for domestic violence counseling; Grant Street Partnership, for substance abuse treatment; Integrated Wellness, for mental health services; Southern Connecticut Rehabilitation Center (SCRC), for mental health services; Jewish Family Services, for supervised visitation and parenting counseling. The department also provided the respondent with bus passes, supervised visitation, and case management services. The court credited the testimony of various social workers with the department regarding their efforts to assist the respondent in obtaining appropriate housing; their efforts included driving him to look at various housing units and providing a list of shelters and referrals to housing services.

The court’s finding of reasonable efforts was not clearly erroneous. To the contrary, the record contains ample evidence supporting the court’s conclusion that the department made reasonable efforts to provide the respondent with services and opportunities to facilitate his reunification with H.

The respondent also claims that the court erred in determining that he was unable or unwilling to benefit from such efforts. We first note that the department was required to show clear and convincing evidence of only one of the statutory conditions the respondent now challenges. Section 17a-112 (j) provides in relevant part: “The Superior Court . . . may grant a petition [to terminate parental rights] if it finds by clear and convincing evidence that (1) the Department of Children and Families has made reasonable efforts to locate the parent and to reunify the child with the parent in accordance with subsection (a) of section 17a-111b, unless the court finds in this proceeding that the parent is unable or unwilling to benefit from reunification efforts . . . .” (Emphasis added.) “Because the two clauses [of § 17a-112 (j) (1)] are separated by the word ‘unless,’ this statute plainly is written in the conjunctive. Accordingly, the department must prove either that it has made reasonable efforts to reunify or, alternatively, that the parent is unwilling or unable to benefit from reunification efforts. Section 17a-112 (j) clearly provides that the department is not required to prove both circumstances. Rather, either showing is sufficient to satisfy this statutory element.” (Emphasis in original.) In re Jorden R., 293 Conn. 539, 552-53, 979 A.2d 469 (2009). Because we conclude that the court properly found, on the basis of clear and convincing evidence, that the department had made reasonable efforts to reunify the respondent and H, we do not reach his claim that the court improperly concluded that he was unable or unwilling to benefit from reunification efforts.

II

The respondent next claims that the court erred in concluding that he failed to achieve a sufficient degree of personal rehabilitation. We disagree.

“Section [17a-112 (j) (3) (B)] requires the court to determine whether the degree of personal rehabilitation . . . encourage [s] the belief that within a reasonable time . . . such parent could assume a responsible position in the life of the child .... Personal rehabilitation refers to the reasonable foreseeability of the restoration of a parent to his or her former constructive and useful role as a parent, not merely the ability to manage his or her own life. ... In conducting this inquiry, the trial court must analyze the respondent’s rehabilitative status as it relates to the needs of the particular child .... The trial court must also determine whether the prospects for rehabilitation can be realized within a reasonable time given the age and needs of the child. ... [A] trial court’s finding that a parent has failed to achieve sufficient rehabilitation will not be overturned unless it is clearly erroneous . . . .” (Citations omitted; internal quotation marks omitted.) In re Tremaine C., 117 Conn. App. 590, 597, 980 A.2d 330, cert. denied, 294 Conn. 920, 984 A.2d 69 (2009).

In the portion of the court’s memorandum of decision addressing the issue of the respondent’s rehabilitation, the court made the following findings and conclusions. “[T]he central impediment” to the respondent’s ability to reunify with H was his inability to obtain and maintain stable, appropriate housing. The respondent had almost four years in which to address the issues that led to H’s removal: substance abuse, mental health, lack of income, and lack of stable housing. Although the respondent made progress in these areas, he had not achieved a sufficient degree of rehabilitation within a reasonable time. The respondent was unsuccessfully discharged from Integrated Wellness because of a lack of compliance with attendance requirements. It was critical for the respondent to stay engaged with counseling sessions to address his anxiety, which he claimed might have triggered his migraine attacks that may have affected his ability to function for several days per month. It was not clear whether the respondent had sufficient income to meet his needs, let alone the needs of H. He testified at trial that he was employed by Elite Landscaping, but provided no proof of employment. The court expressed concerns as to whether the respondent would continue to attend treatment programs for substance abuse and mental health, and to maintain employment. The court noted that H’s parents demonstrated some degree of stability for the first time at the end of June, 2012, when they moved into an apartment in New Haven with a friend, Warren S., with whom they planned to share expenses.

The respondent argues that the court’s concerns regarding adequate housing and the ability to afford housing expenses do not justify the termination of his parental rights. He contends that he had been sober for eighteen months and had been consistent with parental visits from May, 2009, to August 13, 2012, in that he missed only one visit in order to meet with Catholic Family Charities. He claims that he had adequate housing, was employed, and was able to assume a responsible position in the care of H, with appropriate support systems.

The court did not discount the progress made by the respondent, but rather concluded that despite the progress he had made with respect to issues of substance abuse, mental health, lack of income, and stable housing, he nonetheless had not achieved a sufficient degree of rehabilitation within a reasonable time. “[I]n assessing rehabilitation, the critical issue is not whether the [respondent has] improved [his] ability to manage [his] own life, but rather whether [he] has gained the ability to care for the particular needs of the [children] at issue.” (Internal quotation marks omitted.) In re Sarah Ann K., 57 Conn. App. 441, 448, 749 A.2d 77 (2000).

Despite the respondent’s having a place to live with Warren S., there was evidence to support the court’s conclusion that his housing was not stable. The court concluded that pursuant to the lease agreement for the New Haven apartment, the landlord rented the apartment only to Warren S., who was solely responsible for the rent. The court determined that Warren S. permitted the respondent and H’s mother to reside in the apartment, but there was nothing to suggest that his generosity need continue. The court noted that it was unclear whether the landlord would permit the respondent and H’s mother to continue to reside there if Warren S. did not renew his lease in July, 2013. The court further stated that it was reasonable to assume that the respondent and H’s mother were unable to obtain the apartment without the assistance of Warren S., in light of their past history of evictions and lack of stable income.

The respondent and H’s mother were evicted from three of the nine residences they had lived in since H’s birth because of their reliance on Warren S. to pay rent and his failure to do so. When the respondent was not living with Warren S. or otherwise relying on him to pay rent, the respondent lived in temporary lodging with friends, resided in shelters or was homeless. There was testimony that in May, 2011, during a supervised visit at a prior residence of H’s parents and Warren S., H’s mother and Warren S. were involved in an altercation concerning finances during which H’s mother threw a telephone at Warren S. Handy testified that the department was concerned that the respondent did not think animosity with Warren S. was an issue despite the respondent’s “need to be involved [with] what’s going on in the home” if he was to reside with H’s mother, Warren S., and H. The respondent’s history of unstable housing and Warren S.’s history of nonpayment of rent provided an evidentiary basis for the court’s conclusion that the respondent would likely not be able, within a reasonable time, to provide stable housing. Green testified that the gains made by H in motor and cognitive abilities could easily be lost if she were placed in an environment with unstable housing.

The court did not base its determination regarding failure to rehabilitate solely on the respondent’s inability to maintain or to afford adequate housing. The court also concluded that although it was critical for the respondent to continue to attend individual counseling sessions, he was unsuccessfully discharged from his mental health treatment program because of noncompliance. The court observed that the respondent lost his “take home bottle status” at certain times because of his failure to keep appointments with a substance abuse program.

The court also determined that it was not clear whether the respondent had sufficient income to meet the needs of H. The respondent testified that he received $212 per month in State Administered General Assistance (SAGA) cash assistance, $200 per month in food stamps, as well as “under the table” income from landscape work with Elite Landscaping. Despite the respondent’s urging that he had sufficient income to provide for H, Handy testified that the respondent was not able to confirm a source of income by providing a check or other proof. The respondent testified that he was employed under the table as a landscaper, and that he had not had a job “on the books” since before H was bom. According to Dixon’s testimony, the respondent reported to her that as of June, 2012, he was no longer working as a landscaper. The court did not view the respondent’s uncertain income as dispositive of the element of failing to rehabilitate; rather, in its overall analysis it factored in its concern about whether the respondent had shown sufficient responsibility to pay for his own needs, let alone the needs of H.

We conclude that the court’s finding that the respondent failed to achieve a sufficient degree of personal rehabilitation was not clearly erroneous.

Ill

The respondent next claims that the court erred in concluding that terminating his parental rights was in H’s best interest. We disagree with the respondent.

Section 17a-112 (k) provides in relevant part: “[I]n determining whether to terminate parental rights under this section, the court shall consider and shall make written findings regarding: (1) The timeliness, nature and extent of services offered ... (2) whether the Department of Children and Families has made reasonable efforts to reunite the family ... (3) the terms of any applicable court order entered into and agreed upon ... (4) the feelings and emotional ties of the child with respect to the child’s parents ... (6) the age of the child; (6) the efforts the parent has made to adjust such parent’s circumstances, conduct, or conditions to make it in the best interest of the child to return such child home in the foreseeable future . . . and (7) the extent to which a parent has been prevented from maintaining a meaningful relationship with the child . . . .”

“In the dispositional phase of a termination of parental rights hearing, the trial court must determine whether it is established by clear and convincing evidence that the continuation of [the respondent’s] parental rights is not in the best interests of the child. In arriving at this decision, the court is mandated to consider and [to] make written findings regarding seven factors delineated in [§ 17a-112 (k)]. ... As with the findings made in the adjudicatory phase, we reverse the court’s determination of the best interest of the child only if the court’s findings are clearly erroneous.” (Citation omitted; internal quotation marks omitted.) In re Albert M., 124 Conn. App. 561, 566, 6 A.3d 815, cert. denied, 299 Conn. 920, 10 A.3d 1050 (2010).

The respondent argues that “[i]t is clear that the trial court determined that [H] would be ‘better off with [H’s] foster parents.” He argues that the court wrongfully compared the resources of the foster parents with the resources of the respondent and H’s mother in determining whether termination was in H’s best interest. In support of his argument, the respondent refers to the factual background portion of the court’s decision , in which it notes that Green testified that he considered the material advantages provided by the foster parents as contrasted to those of the respondent and H’s mother. Referring to testimony is not the same as endorsing the testimony; it would clearly be inappropriate for such a comparison by itself to affect a court’s decision regarding termination of parental rights. The respondent also notes the court’s statement of concern as to whether he had sufficient income to meet his own needs, let alone the needs of H if she were returned to his care. As we stated previously, the court’s concern regarding the respondent’s ability to meet H’s needs financially was a factor in the court’s determination that the respondent, by not acting responsibly in several areas of his life, had failed to rehabilitate sufficiently. The court’s decision does not hold that H was “better off’ with the foster parents.

The court did state, in its analysis regarding the best interest of the child, that the parents likely were unable to address income and housing concerns within a reasonable period of time sufficient to meet H’s needs. The question at issue in that discussion was whether the respondent could properly care for H. In its best interest analysis, the court carefully examined each of the factors delineated in § 17a-112 (k), but did not compare the respective resources of the foster parents and the respondent. In the absence of any evidence that the court engaged in such an analysis, we presume that the court knew the law and applied it correctly. See State v. Reynolds, 264 Conn. 1, 29 n.21, 836 A.2d 224 (2003), cert. denied, 541 U.S. 908, 124 S. Ct. 1614, 158 L. Ed. 2d 254 (2004).

The respondent also argues that the court did not give proper consideration to the strong emotional bond between him and H. In the course of its decision, however, the court previously had recognized the bond between H and the respondent and noted that “[i]t is uncontroverted that [H] has strong emotional ties with her biological parents.”

The respondent contends that the court ignored the efforts he made toward rehabilitation, including maintaining sobriety and consistent visitation. The court expressly addressed the issue of the respondent’s personal rehabilitation and noted the respondent’s efforts to attend every visit with H and to address substance abuse issues. The court also noted its concern over the respondent’s failure to attend his mental health treatment sessions on a consistent basis, in light of the connection between his stress level and frequent migraine headaches, which, in turn, affected his ability to work and potentially interfered with his ability to care for H properly.

The respondent further argues that “there was evidence that the foster parents interfered with the reunification process,” and that the court “should not have put its imprimatur on the malfeasance of the foster parents.” The court appropriately expressed its disapproval of the foster parents’ actions in telling H that her name was changed to “Charlotte,” and in telling H that she did not have to live with the respondent and H’s mother. The court, however, noted that “it does not appear to the court that these actions have interfered with the [respondent’s] ability to have a meaningful relationship with [H]. The numerous examples of expressions of [H’s] love and affection for the [respondent] ... is ample evidence that the [respondent has] been able to maintain a meaningful relationship with [his] daughter, despite the actions ofthe foster parents.”

The court examined the seven factors delineated in § 17a-112 (k) and concluded that it was in H’s best interest for the respondent’s parental rights to be terminated. We conclude that this determination was not clearly erroneous.

IV

The respondent next claims that the court erred in admitting a social study into evidence. We disagree.

“The trial court’s ruling on the admissibility of evidence is entitled to great deference. . . . [T]he trial court has broad discretion in ruling on the admissibility ... of evidence . . . [and its] ruling on evidentiary matters will be overturned only upon a showing of a clear abuse of the court’s discretion. . . . We will make every reasonable presumption in favor of upholding the trial court’s ruling, and only upset it for a manifest abuse of discretion.” (Internal quotation marks omitted.) Quaranta v. King, 133 Conn. App. 565, 567, 36 A.3d 264 (2012).

General Statutes § 45a-717 (e) provides in relevant part: “(1) The court may, and in any contested case shall, request the Commissioner of Children and Families or any child-placing agency licensed by the commissioner to make an investigation and written report to it, within ninety days from the receipt of such request. The report shall indicate the physical, mental and emotional status of the child and shall contain such facts as may be relevant to the court’s determination of whether the proposed termination of parental rights will be in the best interests of the child, including the physical, mental, social and financial condition of the biological parents, and any other factors which the commissioner or such child-placing agency finds relevant to the court’s determination of whether the proposed termination will be in the best interests of the child. ... (3) The report shall be admissible in evidence, subject to the right of any interested party to require that the person making it appear as a witness, if available, and subject himself to examination.” Practice Book § 35a-9 provides in relevant part that “no disposition may be made by the judicial authority until any mandated social study has been submitted to the judicial authority. Said study shall be marked as an exhibit subject to the right of any party to be heard on a motion in limine requesting redactions and to require that the author, if available, appear for cross-examination.”

The respondent argues that the admission of the social study was improper because pages thirteen through twenty-two of the study were written by the petitioner’s attorney, Harris. He contends that the pages written by Harris contained factual inaccuracies and that Harris was not subject to cross-examination as required by § 45a-717 (e). We are not persuaded that the admission of the study was in error.

The termination of parental rights social study, which was admitted as a full exhibit, contains a section from pages thirteen through twenty-two under the following heading: “Facts in support of TPR. The following are the facts as alleged by the child’s attorney who is the petitioner in this matter.” At the end of the study, there is a line stating: “Submitted by: Julie Dixon,” with Dixon’s signature. The study also indicates that it was reviewed by Chrichton Stewart, social work supervisor and approved by Tracy Mello, program manager. Dixon testified that she included in the study a section outlining the factual allegations made by Harris in the petition for termination of parental rights. She testified that she read the petition closely and did not change the wording. She further testified that she prepared, typed, submitted and signed the study.

In ruling on the admissibility of the study, the court reasoned that although Dixon obtained information from various sources, including Harris, Dixon “is the author, she put pen to paper, this is the individual who was called to testify [regarding the study].” The court determined that the issue of possible factual inaccuracies in the study goes to its weight and not its admissibility.

The respondent’s position is that he had a right, pursuant to § 45a-717 (e) and Practice Book § 35a-9, to cross-examine the author of the study. Because the “author” of the allegations was an attorney in the proceedings, she could not, for practical purposes, be cross-examined. In that situation, the argument goes, the study should not have been admitted into evidence.

The court did not abuse its discretion in admitting the study as a full exhibit. The court did not err in concluding that Dixon, who signed and prepared the study, was its author and, thus, was the individual who was subject to cross-examination under § 45a-717 (e). Although Harris was the “author” of the allegations, recitation of the allegations is not the same as accepting them as true. The section at issue was clearly labeled: “facts as alleged by the child’s attorney”; (emphasis added); and, thus, Dixon was not representing that the allegations were facts as determined by the department. The respondent was able to, and did, extensively cross-examine Dixon regarding the factual allegations, and to offer evidence to refute them. Any alleged inaccuracies in the factual allegations pertained to their weight, not their credibility. See, e.g., State v. White, 64 Conn. App. 126, 133, 779 A.2d 776 (inaccuracies of exhibit do not raise question of admissibility, but rather weight), cert. denied, 258 Conn. 910, 782 A.2d 1251 (2001). The commissioner, of course, had the burden of proving the allegations by clear and convincing evidence.

V

The respondent claims finally that terminating his parental rights “on the basis of his indigence” violated his rights to equal protection and due process under the fourteenth amendment to the Unites States constitution. The commissioner and counsel for H argue in their respective briefs that these claims are not reviewable on appeal because they were not preserved at trial and that Golding review, the rationale for reviewing unpreserved constitutional claims, was not requested in form or in substance in the respondent’s main brief. The respondent argues in his reply brief that the claims are reviewable because, pursuant to Practice Book § 60-5, they arose subsequent to trial—in other words, he argues that his claims regarding his indigence initially arose in the trial court’s decision.

It is undisputed that the respondent did not raise his constitutional claims at trial and failed to request extraordinary review in the appropriate manner in his main brief. See, e.g., State v. Elson, 125 Conn. App. 328, 353-54, 9 A.3d 731 (2010) (outlining requirements for sufficiently requesting extraordinary review), cert. granted on other grounds, 300 Conn. 904, 12 A.3d 572 (2011). The question remains whether the claim arose subsequent to trial. Practice Book § 60-5 provides in relevant part: “The court shall not be bound to consider a claim unless it was distinctly raised at the trial or arose subsequent to the trial. ...”

The respondent was put on notice that obtaining adequate housing and legal income were goals in the reunification process and that his failure to do so could result in termination of his parental rights. See Intercity Development, LLC v. Andrade, 286 Conn. 177, 189, 942 A.2d 1028 (2008) (because issue set forth at trial, it became party’s responsibility distinctly to raise objections at trial). His ability to support H and to provide housing, with the assistance of his support systems, was a central issue throughout the entire process. At trial, Dixon testified regarding the respondent’s efforts to obtain stable housing and adequate income, and that she had made numerous referrals in that regard. The respondent sought to show at trial that he had adequate income and stable housing to support H: he testified that he did not have stable housing until he moved into the New Haven apartment, and that he received SAGA cash assistance, food stamps, and had an “under the table” landscaping position. Green testified that continued relapses in financial stability posed a problem for creating a stable, healthy, safe, and calm environment within which to raise H. The specific steps, which were signed by the respondent, indicated that he was to “get and/or maintain adequate housing and a legal income.” Accordingly, the respondent was aware that his ability to maintain adequate housing and legal income would factor into the court’s decision. His claim, therefore, did not “[arise] subsequent to trial. ...” Practice Book § 60-5.

Moreover, the respondent mischaracterizes the court’s decision. The court did not consider indigence, by itself, to be a factor in the decision to terminate the respondent’s parental rights. Rather, the court examined the respondent’s ability to support H financially and to provide adequate housing for H, a child with developmental delays, in the context of the stability of his support systems, such as Warren S. The court determined not that it was impermissible for the respondent to rely on support systems, but that reliance on Warren S. to assist with rent payments was not likely to create a stable housing environment in the future. For the foregoing reasons, we decline to review the respondent’s unpreserved claim.

The judgment is affirmed.

In this opinion the other judges concurred.

       Gloria Harris, counsel for the petitioner minor child, instituted this termination proceeding against both the mother and the father of the child, naming both as respondents. Although the court terminated the parental rights of both parents, only the father has filed this appeal and, for simplicity, all references to the respondent are to the father.

       The court found since H’s removal, the respondent had lived at nine different locations and either was evicted from these residences or walked away due to an inability to pay rent.

       The respondent also argues that the court engaged “whether expressly, tacitly, orperhaps even inadvertently” in a “balancing of the utilities” analysis in which it compared the abilities of H’s foster parents with those of her biological parents and determined that H’s foster parents would be better caregivers and/or providers for H. The record does not demonstrate, however, that the court engaged in such an analysis. “In the absence of any evidence to the contrary, [Judges are presumed to know the law . . . and to apply it correctly.” (Internal quotation marks omitted.) State v. Reynolds, 264 Conn. 1, 29 n.21, 836 A.2d 224 (2003), cert. denied, 541 U.S. 908, 124 S. Ct. 1614, 158 L. Ed. 2d 264 (2004). The court expressly stated in its decision that “[tjhis court, through this proceeding, will not decide whether the foster parents are suitable adoptive parents.”

       The respondent argues: “In determining that [the respondent] failed to rehabilitate, the court stated, ‘[t]he court is concerned as to the need for the parents to obtain the services of Catholic Family Charities ... as well as Warren S. to pay for the rent and the security deposit on the [New Haven] apartment.’ . . . Rehabilitation . . . does not require a parent to assume full responsibility for a child, without the aid of available support systems.” (Citation omitted; internal quotation marks omitted.) He argues that receiving financial assistance from Catholic Family Charities and Warren S. for rent payment is not dispositive of his rehabilitative status.
      The respondent correctly argues that, by itself, reliance on support systems is not inconsistent with rehabilitation. In re Migdalia M., 6 Conn. App. 194, 203, 504 A.2d 533 (“[p]ersonal rehabilitation . . . does [not] require the parent to be able to assume full responsibility for a child, without the use of available support programs” [citation omitted; internal quotation marks omitted]), cert. denied, 199 Conn. 809, 508 A.2d 770 (1986). The respondent, however, takes the court’s quotation regarding rent assistance in this case out of context. The court did not base its conclusion regarding failure to rehabilitate on the respondent’s receiving financial assistance. The court’s comment was made in the context of assessing the credibility of the parents’ statement that together they were earning a total amount exceeding $3000 per month as of February, 2012. The court said, “If the rent was $625 per month, it is unclear why Warren had to pay anything, or why they needed [Catholic Family Charities] to pay any of the expenses in June-July, 2012.” The court further questioned the credibility of H’s mother’s statement that she was earning $2000 per month, particularly in light of attempts to withhold important information regarding substance abuse issues from the court.

       H was not present during the altercation.

       The court noted that “take home bottle status” meant that attendance and participation was sufficient to permit him to take medication home for periods of time without having to report to the clinic to receive the medication.

       This case presented unusual circumstances, in that the petition was drafted by Harris, the attorney for the minor child. Dixon testified that she followed the ordinary procedure in preparing the study.

       The respondent also argues that the admission of the social study violated his constitutional right to due process under the fourteenth amendment to the United States constitution because he was unable to cross-examine the “author,” Harris. The court did not err in determining that Dixon was the author of the study. Nonetheless, it strains the definition of due process to argue that, in the context of the social study, opposing counsel should be cross-examined regarding factual allegations set forth in the termination of parental rights petition simply because those allegations were contained in a social study. Throughout trial, the petitioner was attempting to prove those allegations by clear and convincing evidence, and the respondent was permitted to cross-examine the petitioner’s witnesses.

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

       Although certification to appeal was granted, the Supreme Court has not yet issued a decision in State v. Elson, supra, 125 Conn. App. 328.


text:
    STATE OF CONNECTICUT v. FAROULH DORLETTE
    (AC 35512)
    Beach, Sheldon and Schaller, Js.
    Argued September 10
    officially released November 19, 2013

      Daniel J. Krisch, assigned counsel, for the appellant (defendant).

      Leonard C. Boyle, deputy chief state’s attorney, with whom, on the brief, was Matthew C. Gedansky, state’s attorney, for the appellee (state).
   Opinion

BEACH, J.

This case concerns the court’s admission into evidence of statements allegedly made by the defendant a short time after he had been involved in an altercation in prison. The defendant, Faroulh Dorlette, who appeals from the judgment of conviction rendered after a jury trial of two counts of assault of public safety personnel in violation of General Statutes § 53a-167c (a) (1), claims that the trial court erred in admitting the postaltercation statements. We affirm the judgment of the trial court.

The following facts, which the jury reasonably could have found, and procedural history are relevant. In October, 2009, when the defendant was an incarcerated prisoner at Northern Correctional Institution in Somers, he and other prisoners returned to a housing unit from the prison’s recreation yard. Without provocation, the defendant punched William Brunetti, a correction officer who had been monitoring the recreation yard, in the face near the left eye. Brunetti fell to the ground and the defendant stood over him “in a fighting stance.” Alejandro Correa, another correction officer, ran toward the defendant, and the defendant fled. Correa and Brunetti chased the defendant, who, upon being caught at the prison’s control pod, began punching Cor-rea. Other officers assisted in subduing the defendant as he continued to fight.

Once subdued, the defendant was taken to a separate housing unit, where he was handcuffed, tethered, and placed in leg irons. Correction officer Richard Zina monitored the defendant while he was in the holding cell, checking on him every fifteen minutes. Approximately thirty-five minutes after the altercation, Zina approached the defendant’s cell. Zina heard the defendant say “that he was going to assault [correction] staff the first chance he got. It’s not over, it just started.” Zina recorded the statement in a written report.

In a pleading entitled “State’s Notice to Introduce Uncharged Misconduct,” the state announced its intention to introduce into evidence the defendant’s statement. The defendant filed a motion in limine to prevent the introduction of the evidence on the ground of unfair prejudice. The court denied the motion in limine, stating, “I don’t think it’s uncharged misconduct. It’s a statement against interest by a party. It comes under the rubric of consciousness of guilt as far as an instruction is concerned.” The state agreed, and added, “[I]t’s an admission against party-opponent.” The court did not expressly state that the probative value of the statement outweighed its prejudicial effect.

On direct examination, Zina testified to a somewhat different version of the defendant’s statement. After refreshing his recollection by reading his written report, he testified that the defendant had said “that he wasn’t done assaulting staff, that he was going to get more, and it’s not over with yet. The first chance he gets, he is going to assault more staff.” There was no objection to this version of the defendant’s statement, which quite clearly had more probative value than the version recorded in the report. On cross-examination, however, after acknowledging that his present recollection of the defendant’s precise words was unclear, Zina stated that what he had written in the report was what the defendant had said to him. The defendant entered into evidence Zina’s written report. There was never a motion to strike Zina’s prior testimony on direct examination regarding the defendant’s statement.

The jury found the defendant guilty on both counts of assault of public safety personnel and later found him guilty of being a persistent felony offender. The defendant was sentenced to ten years incarceration and ten years special parole, which sentence was to run consecutively to any sentence previously imposed upon him. This appeal followed.

The defendant argues that the court erred in admitting his alleged postaltercation statements because they were highly prejudicial and not probative of his state of mind, his consciousness of guilt or any other material issue in the case. The defendant argues that such statements, if made to Zina thirty-five minutes after a violent altercation with correction officers, would not have been probative of a guilty mind, but rather would have demonstrated only anger, a natural reaction to having been in a fight. The defendant further argues that Zina’s testimony regarding his alleged statements was highly prejudicial because the statements had the potential to arouse a disproportionate emotional response in the jury, namely, one of fear and anger toward the defendant. We are not persuaded.

Connecticut Code of Evidence § 4-3 provides in pertinent part: “Relevant evidence may be excluded if its probative value is outweighed by the danger of unfair prejudice or surprise . . . .” “[T]he determination of whether the prejudicial impact of evidence outweighs its probative value is left to the sound discretion of the trial court judge and is subject to reversal only where an abuse of discretion is manifest or injustice appears to have been done. . . . [Our Supreme Court] has previously enumerated situations in which the potential prejudicial effect of relevant evidence would counsel its exclusion. Evidence should be excluded as unduly prejudicial: (1) where it may unnecessarily arouse the jury’s emotions, hostility or sympathy; (2) where it may create distracting side issues; (3) where the evidence and counterproof will consume an inordinate amount of time; and (4) where one party is unfairly surprised and unprepared to meet it.” (Citations omitted; internal quotation marks omitted.) State v. Rinaldi, 220 Conn. 345, 355-56, 599 A.2d 1 (1991); see also State v. Smith, 275 Conn. 205, 221-22, 881 A.2d 160 (2005) (applying probative/prejudicial balancing test to evidence admitted under hearsay exception).

Two versions of the defendant’s postaltercation statement to Zina were entered into evidence: one version was written by Zina in his report and the second version was elicited from Zina on direct examination. As previously noted, there was no objection to Zina’s testimony on direct examination, which testimony had probative value as to the defendant’s intent at the time of the incident and prejudicial effect that was not overwhelming, in light of other evidence about the altercation. There was no motion to strike the testimony. Although the defendant argues that the version of the statement as phrased in the report should be considered the more reliable, the oral version is nonetheless evidence that may be considered. Because no objection was made as to Zina’s testimony regarding the defendant’s postaltercation statement, and there was no motion to strike it, we do not consider any claim about it on appeal. See, e.g., State v. Cosby, 99 Conn. App. 164, 171, 913 A.2d 1068 (“[assigning error to a court’s evidentiary rulings on the basis of objections never raised at trial unfairly subjects the court and the opposing party to trial by ambush” [internal quotation marks omitted]), cert. denied, 281 Conn. 920, 918 A.2d 273 (2007).

The version in the report, to which an objection was made in the motion in limine, is properly the subject of appeal. In light of the prior testimony, however, its admission was undoubtedly harmless. See, e.g., State v. Stovall, 142 Conn. App. 562, 582, 64 A.3d 819 (2013) (admission of cumulative evidence harmless); see also State v. George J., 280 Conn. 551, 592, 910 A.2d 931 (2006) (defendant bears burden of showing evidentiary ruling harmful), cert. denied, 549 U.S. 1326, 127 S. Ct. 1919, 167 L. Ed. 2d 573 (2007).

The prior testimony, as discussed previously, had probative value as an admission, and there was no greater degree of unfair prejudice in the version in the report. Further, the defendant introduced the report into evidence during his cross-examination of Zina, in an apparent effort to show that the defendant was expressing only anger at the time the statement was made, if indeed the statement was made at all.

The judgment is affirmed.

In this opinion the other judges concurred.

       There is no claim that the statement was made in the course of custodial interrogation.

       The defendant argued to the jury that the statement concerned an intention to act in the future, if indeed the defendant made the statement at all.

       The defendant was charged with two counts of assault of public safety personnel. The defendant was also charged in a part B information with being a persistent serious felony offender in violation of General Statutes § 53a-40 (c).

       As the defendant stated in his reply brief, he “did not (and does not now) claim that Zina’s testimony was inadmissible because it was hearsay— only that his testimony failed the probative/prejudicial balancing required by § 4-3 of the Code of Evidence.”

       Zina recorded in his report that the defendant said “that he was going to assault [correction] staff the first chance he got. It’s not over, it just started.” Zina testified that he heard the defendant say “that he wasn’t done assaulting staff, that he was going to get more, and it’s not over with yet. The first chance he gets, he is going to assault more staff.”

       Additionally, the testimony created no side issues, consumed little time, and caused no unfair surprise. The testimony was somewhat different from that which had been addressed in the motion in limine, but the defendant had been alerted to the general nature of the testimony.