author:
GRUENDEL, J.
      MCDONALD, J.,

text:
    STATE OF CONNECTICUT v. BECKER ALTAYEB
    (AC 31678)
    Gruendel, Beach and McDonald, Js.

      Argued October 26, 2010
    officially released February 8, 2011

      Andrew B. Bowman, for the appellant (defendant).

      Linda Currie-Zeffiro, assistant state’s attorney, with whom, on the brief, were John C. Smriga, state’s attorney, and Joseph T. Corradino, senior assistant state’s attorney, for the appellee (state).
   Opinion

GRUENDEL, J.

The defendant, Becker Altayeb, appeals from the judgment of conviction, rendered after a trial to the court, of attempt to commit murder in violation of General Statutes §§ 53a-49 and 53a-54a (a), and assault in the first degree in violation of General Statutes § 53a-59 (a) (1), and the judgment revoking his probation after the court found that he had violated his probation in violation of General Statutes § 53a-32. On appeal, the defendant claims that (1) the evidence adduced at trial was insufficient to sustain his conviction of attempt to commit murder and assault in the first degree, (2) the court improperly determined that he validly waived his right to a jury trial and (3) the court improperly denied his motion for a Franks hearing. We affirm the judgments of the trial court.

The following facts, as found by the court, and procedural history are relevant to the disposition of the defendant’s appeal. In the early morning of July 28, 2008, the victim, Farid Alzoubi, attended prayer at a mosque located at 1300 Fairfield Avenue in Bridgeport. At the conclusion of prayer, Alzoubi exited the mosque and stood outside on the comer of Fairfield and Clinton Avenues for approximately ten minutes conversing with an acquaintance, Ali Essafi. As the two men were speaking, the defendant approached and joined their conversation. Alzoubi personally was familiar with the defendant, given their mutual connections to the Islamic community center in Bridgeport. Shortly after the defendant appeared, Essafi departed, leaving Alzoubi alone with the defendant. An argument soon ensued, as the defendant threatened to kill Alzoubi for having an affair with his wife. Suddenly, the defendant drew a knife and stabbed Alzoubi in the abdomen, causing him to fall backward onto the street. Bleeding and disoriented, Alzoubi fled across the street to a gasoline station where he called 911, identifying the defendant as his attacker. Richard Campoli, a witness to the stabbing, was sitting on the street curb across from the mosque waiting for a ride to work on the morning of July 28, 2008. After witnessing the stabbing, Campoli observed Alzoubi’s attacker flee in a black Mercedes-Benz sedan. Because of the predawn darkness, Campoli was unable to clearly identify Alzoubi’s attacker; however, he was able to record what he recalled of the sedan’s license plate, which he provided to Bridgeport police. Campoli’s account of the incident, particularly his description of the sedan, assisted police in further linking the defendant to the stabbing.

The defendant subsequently was arrested and charged with attempt to commit murder in violation of §§ 53a-49 and 53a-54a (a), assault in the first degree in violation of § 53a-59 (a) (1) and violation of probation in violation of § 53a-32. After a trial to the court, the defendant was convicted of the first two charges and, in a separate proceeding, the court found that he had violated his probation. Thereafter, the court imposed a total effective sentence of eighteen years incarceration, execution suspended after thirteen years, with five years of probation. This appeal followed. Additional facts will be set forth as necessary.

I

First, the defendant claims that the evidence adduced at trial was insufficient to sustain his conviction of attempt to commit murder and assault in the first degree. Specifically, the defendant argues that the court improperly concluded that various factual inconsistencies in the victim’s account of the stabbing incident and his identification of the defendant as his attacker were the result of language difficulties, rather than outright dishonesty. We disagree.

“The standard of review employed in a claim of insufficient evidence is well settled. [W]e apply a two part test. First, we construe the evidence in the light most favorable to sustaining the verdict. Second, we determine whether upon the [evidence] so construed . . . the [trier of fact] reasonably could have concluded that the cumulative force of the evidence established guilt beyond a reasonable doubt.” (Internal quotation marks omitted.) State v. Chimenti, 115 Conn. App. 207, 218, 972 A.2d 293, cert. denied, 293 Conn. 909, 978 A.2d 1111 (2009).

“[E]vidence is not insufficient [merely] because it is conflicting or inconsistent. [The fact finder] is free to juxtapose conflicting versions of events and determine which is more credible. ... It is the [fact finder’s] exclusive province to weigh the conflicting evidence and to determine the credibility of witnesses. . . . The [fact finder] can . . . decide what — all, none, or some — of a witness’ testimony to accept or reject.” (Internal quotation marks omitted.) State v. Santos, 108 Conn. App. 250,253,947 A.2d 414 (2008). As a corollary, “[questions of whether to believe or to disbelieve a competent witness are beyond our review. As a reviewing court, we may not retry the case or pass on the credibility of witnesses. . . . Our review of factual determinations is limited to whether those findings are clearly erroneous. ... [In any case], [w]e must defer to the [finder] of fact’s assessment of the credibility of the witnesses that is made on the basis of its firsthand observation of their conduct, demeanor and attitude.” (Internal quotation marks omitted.) State v. Moody, 121 Conn. App. 207, 219, 994 A.2d 702, cert. denied, 297 Conn. 920, 996 A.2d 1193 (2010). A court’s finding of fact is clearly erroneous and its conclusions drawn from that finding lack sufficient evidence when there is no evidence in the record to support it or when although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed. See Molaver v. Thomas, 125 Conn. App. 88, 92-93, 6 A.3d 232 (2010).

Here, the defendant’s claim can be summarized as an attack on the corut’s credibility assessment of the victim and the victim’s testimony regarding the stabbing and the identification of the defendant as his assailant. The defendant argues that the corut’s conclusion that various inconsistencies within the victim’s testimony were due to his difficulties with the English language was clearly erroneous. As our case law makes clear, “[qjuestions of whether to believe or to disbelieve a competent witness are beyond our review.” (Internal quotation marks omitted.) State v. Moody, supra, 121 Conn. App. 219. Instead, the scope of our review is limited to the question of whether or not the court’s conclusions regarding the victim’s testimony are supported by the record; we conclude that the record in this case is so supportive. Although the victim may have contradicted himself several times when explaining the circumstances of the stabbing, his “identification of the [defendant as his] assailant . . . was positive throughout” his testimony. Indeed, at no time, from the initial 911 call through the end of trial, did the victim waver in his identification of the defendant as the assailant in this case. Given the victim’s nationality, as documented by his trial testimony, the court had evidence from which it could make the reasonable determination that any inconsistencies in the victim’s account of the incident were in fact due to his difficulties in expressing himself in English. Thus, we cannot say, in light of the evidence contained in the record, that the court’s factual conclusions regarding the victim’s testimony were clearly erroneous, and therefore, there was sufficient evidence to find the defendant guilty beyond a reasonable doubt of the crimes charged. Accordingly, the defendant’s claim fails.

II

The defendant’s next claim is that the court improperly concluded that he validly waived his right to a jury trial on the charges of attempted murder and assault in the first degree. Specifically, the defendant maintains that the waiver of his right to a jury trial was not knowingly, intelligently and voluntarily made. We disagree.

The following additional facts are relevant to the resolution of the defendant’s claim. On June 16, 2009, the defendant appeared with counsel before the court to begin trial. At this time, defense counsel advised the court, Thim, J., of the defendant’s desire to waive his right to a jury trial and to proceed instead with a court trial. The following colloquy then ensued:

“The Court: . . . [W]hat I am hearing at this moment is that you want to waive your basic [constitutional] right to have a jury trial — have a trial before a jury and have a decision made by a jury, and instead you want a judge to make the decision as to your guilt or innocence on these charges. Is that correct, sir?
“[The Defendant]: A judge — a judge trial. I have my reasons as well.
* * H=
“The Court: . . . [Y]ou are charged with attempted murder and assault in the first degree. The potential penalty for each of those offenses is twenty years, and so if you were convicted of both, the penalty could be forty years in prison. . . . Under the law, you have the right to have the decision as to whether or not you are guilty to be made by a jury — a jury of six persons, and that jury would be selected by your attorney and the state’s attorney in your presence, and those persons would listen to all the evidence in the case and listen to the judge’s charge instructions on the law and decide whether or not the state had proven one or both charges beyond a reasonable doubt. What I am hearing is that you want to give up that procedure, give up that basic constitutional right and have a judge alone decide whether you are guilty .... Is that correct, sir?
“[The Defendant]: Yes.
“The Court: And you understand that your lawyer is advising you to the contrary. Your lawyer wants you to proceed with a jury [trial]. Is that correct, sir?
“[The Defendant]: Yes.
“The Court: ... Is anyone forcing you in any way to give up your right to have a jury trial? . . .
“[The Defendant]: No. Nobody’s threatening me. No. . . .
“The Court: . . . Why are you giving up your right to have a jury trial?
“[The Defendant]: I don’t trust juries. . . .
“The Court: Do you understand that if I accept your waiver of the right to have a trial before a jury, you will forever have given up the right to have the attempted murder and the assault chargesfs] tried before a jury? Is that clear?
“[The Defendant]: That’s fine.
“The Court: The case would proceed to trial today. . . . [The trial] would probably start next week, then you could not come back and say, I want a jury trial. Is that clear?
“[The Defendant]: I understand.
* * *
“The Court: . . . [H]ow old are you, sir?
“[The Defendant]: I am forty.
“The Court: Forty. How far have you gone [in] school, sir? . . .
“[The Defendant]: I — I did four years Air Force College [in Jordan]. . . .
“The Court: Jordan. And what type of work have you done?
“[The Defendant]: I was involved in the [Jordanian] military and the government. That’s it. . . .
“The Court: As an officer?
“[The Defendant]: As a captain. . . .
“The Court: Okay. [Counsel], do you have any comments?
“[Defense Counsel]: Your Honor, I am convinced that my client’s decision is voluntary. He is not being forced by anyone [to make this decision]. I believe he knows what he faces with the court versus the jury, and he knows the penalty. I do challenge the fact that this is an intelligent decision that he is making; intelligent based upon his reasoning for electing a court trial versus a jury trial. It troubles me. ... I don’t know how else I can state that I think that this is the wrong decision that he is making, and I think that he is making it for the wrong reason. I don’t think the court should accept it.
“The Court: Well, the decision appears to be voluntary. Your client appears to be a very intelligent person. I think your client understands the decision-making process. [Counsel], I don’t think that you agree with his decision and have advised that he not waive [it]. . . .
* * *
“The Court: ... I conclude that the defendant has knowingly, intelligently and voluntarily waived his right to a jury trial and has done so after consulting his attorney.”

Following this initial canvassing, the defendant signed a written waiver of his right to a jury trial, affirming his decision to proceed instead with a court trial. Additionally, later in the afternoon of June 16, 2009, the court, Hauser, J., again addressed the issue of the defendant’s waiver of his right to a jury trial in the following colloquy:

“The Court: ... I have in front of me [the] defendant’s waiver of jury trial dated today, signed by the defendant .... [D]id you sign this freely, and voluntarily sign it?
“[The Defendant]: Yes.
“The Court: Do you understand it all?
“[The Defendant]: Yes.
“The Court: There was no part of it you did not understand, sir; is that correct?
“[The Defendant]: I understand.
“The Court: The court finds that the defendant has signed the waiver voluntarily as indicated in the waiver itself and orally to this court himself, not only through his attorney. . . .
“[Defense Counsel]: Your Honor, if I may interrupt. ... I believe my client is entering this decision knowingly, and voluntarily; however, I don’t believe it’s an intelligent decision. ... I believe [it] is a decision I’m against, and I do not believe [it] is intelligent. . . .
“The Court: But it is his right to waive.
“[Defense Counsel]: It is his right to waive it.
“The Court: You heard what [defense counsel] just said, sir?
“[The Defendant]: Yes.
“The Court: Do you still wish to be tried by the court and not by the jury?
“[The Defendant]: Yes.
“The Court: And [do you] still stand behind each and every paragraph of the waiver you signed today?
“[The Defendant]: Yes. Yes.”

The defendant now claims that the court improperly determined that the waiver of his right to a jury trial was done knowingly, intelligently and voluntarily.

Before addressing the merits of the defendant’s claim, we begin by setting forth the applicable standard of review and legal principles governing our analysis. “The right to a jury trial in a criminal case is among those constitutional rights which are related to the procedure for the determination of guilt or innocence. The standard for an effective waiver of such a right is that it must be knowing and intelligent, as well as voluntary. . . . Relying on the standard articulated in Johnson v. Zerbst, 304 U.S. 458, 464, 58 S. Ct. 1019, 82 L. Ed. 1461 (1938), we have adopted the definition of a valid waiver of a constitutional right as the intentional relinquishment or abandonment of a known right. . . . This strict standard precludes a court from presuming a waiver of the right to a trial by jury from a silent record. ... In determining whether this strict standard has been met, a court must inquire into the totality of the circumstances of each case. . . . When such a claim is first raised on appeal, our focus is on compliance with these constitutional requirements rather than on observance of analogous procedural rules prescribed by statute or by the Practice Book. . . . Our task, therefore, is to determine whether the totality of the record furnishes sufficient assurance of a constitutionally valid waiver of the right to a jury trial. . . . Our inquiry is dependent upon the particular facts and circumstances surrounding [each] case, including the background, experience, and conduct of the accused. ... In examining the record, moreover, we will indulge every reasonable presumption against waiver of fundamental constitutional rights and . . . [will] not presume acquiescence in the loss of fundamental rights. ... In addition, a waiver of a fundamental constitutional right [such as the right to a trial by jury] is not to be presumed from a silent record. . . . [Rather] in determining whether a court has properly accepted a waiver of the right [to a jury trial], there must be some affirmative indication from the accused personally, on the record, that he or she has decided to waive the fundamental right to a jury trial [as] the defendant’s silence is too ambiguous to permit the inference that he or she has waived such a fundamental right.” (Citation omitted; internal quotation marks omitted.) State v. Tocco, 120 Conn. App. 768, 777-78, 993 A.2d 989, cert. denied, 297 Conn. 917, 996 A.2d 279 (2010).

Here, our review of the “totality of the record [unequivocally] furnishes sufficient assurance” that the defendant validly waived his right to a jury trial. (Internal quotation marks omitted.) Id., 777. Not only did the defendant explicitly acknowledge, by way of a written waiver, his desire to waive his right to a jury trial, but he also stated numerous times during extensive canvassing by two different Superior Court judges that he wanted to proceed with a court trial in lieu of a jury trial. See State v. Crump, 201 Conn. 489, 504-505, 518 A.2d 378 (1986) (ruling that written waiver, even in absence of oral acknowledgment by defendant, constituted valid waiver of right to jury trial); cf. State v. Gore, 288 Conn. 770, 787-88, 955 A.2d 1 (2008) (“when a defendant, personally or through counsel, indicates that he wishes to waive a jury trial in favor of a court trial in the absence of a signed written waiver by the defendant, the trial court should engage in a brief canvass of the defendant in order to ascertain that his or her personal waiver of the fundamental right to a jury trial is made knowingly, intelligently and voluntarily” [emphasis added]). Furthermore, “there is no evidence to suggest that the defendant was not of ordinary intelligence or educational background” such that he could not make a knowing and intelligent waiver of his right to a jury trial. (Internal quotation marks omitted.) State v. Cobb, 251 Conn. 285, 372, 743 A.2d 1 (1999), cert. denied, 531 U.S. 841, 121 S. Ct. 106, 148 L. Ed. 2d 64 (2000). To the contrary, the defendant received four years of postsecondary education and served as an officer in the Jordanian military. Finally, at all relevant times the defendant had the benefit of counsel, who advised him not to waive his right to a jury trial. See id., 373 (“[although the presence of counsel does not by itself mean that the defendant’s interests and rights are protected . . . [t]he fact of counsel being present and having advised the defendant is a factor to be considered in determining the question of the need for or sufficiency of any admonition given by the court” [internal quotation marks omitted]). In the present case, the record is more revealing of defense counsel’s opposition to the defendant’s waiver of his right to a jury trial, rather than that of the defendant himself. As defense counsel conceded, however, it is well established that the decision to waive one’s right to a jury trial belongs solely to the defendant, not to his or her attorney. See State v. Gore, supra, 779 (“[o]ne of the rights that a criminal defendant personally must waive is the fundamental right to a jury trial”).

We conclude that the totality of the circumstances in this case clearly demonstrates that the defendant’s waiver of his right to a jury trial was done knowingly, intelligently and voluntarily. Accordingly, the defendant’s claim fails.

Ill

The defendant next claims that the court improperly denied his motion for a hearing pursuant to Franks v. Delaware, 438 U.S. 154, 156, 98 S. Ct. 2674, 57 L. Ed. 2d 667 (1978). More precisely, the defendant argues that the court should have held a Franks hearing because “there was a substantial preliminary showing that material omissions” from the affidavit in support of the application for his arrest warrant “caused the reviewing judge to be misled” in finding probable cause to arrest him. We are not persuaded.

The following additional facts are relevant to the resolution of the defendant’s claim. On June 16, 2009, the defendant moved for a Franks hearing to determine whether the judge issuing the arrest warrant had been misled in finding probable cause to arrest the defendant. Judge Hauser held a hearing on the defendant’s motion on June 23, 2009, at which time defense counsel articulated the factual basis in support of the defendant’s motion. Specifically, defense counsel represented that Campoli, the only eyewitness to the stabbing, was unable to identify the defendant from a single photograph he was shown by police the day after the stabbing, and that this “exculpatory” information was omitted from the affidavit in support of the defendant’s arrest warrant. Additionally, defense counsel noted that Cam-poli provided a partial license plate description of “L67,” and that, despite the fact that the defendant’s license plate contained the combination of “L87,” this misiden-tification also was omitted from the arrest warrant affidavit. After hearing testimony from both Campoli and the Bridgeport police detective who submitted the arrest warrant affidavit, the court denied the defendant’s request for a Franks hearing. In so ruling, the court explained that the defendant had failed to meet his burden in showing the need for a Franks hearing because there was no evidence of a “deliberate falsehood or [other] reckless disregard for the truth” on the part of the affiant detective, and “even if the same were present . . . the [alleged omissions] were not necessary for the finding of probable cause . . . .” The defendant now claims that the court improperly denied his motion for a Franks hearing, as there was a “substantial preliminary showing that [the] material omissions” from the arrest warrant affidavit “caused the reviewing judge to be misled” in finding probable cause to arrest the defendant.

“In Franks v. Delaware, supra, [438 U.S.] 155-56, the United States Supreme Court held that where [a] defendant makes a substantial preliminary showing that a false statement knowingly and intentionally, or with reckless disregard for the truth, was included by the affiant in the warrant affidavit, and if the allegedly false statement is necessary to the finding of probable cause, the [fourth [ajmendment requires that a hearing be held at the defendant’s request [to determine whether probable cause exists for his or her arrest]. . . . The court in Franks mentioned only a false statement . . . included ... in the warrant affidavit; subsequent cases, however, have extended Franks to include material omissions from such an affidavit. . . .

“Not all omissions, however, even if intentional, will invalidate an affidavit. ... In fact, an affiant may omit facts that he believes to be either immaterial or unsubstantiated. . . . Thus, before a defendant is entitled to a Franks hearing for an alleged omission, he must make a substantial preliminary showing that the information was (1) omitted with the intent to make, or in reckless disregard of whether it made, the affidavit misleading to the issuing judge, and (2) material to the determination of probable cause. . . . Even if the affiant picks and chooses the information that he includes in the affidavit, there is no Franks violation if, had the magistrate been so advised, he still would have been justified in issuing the warrant. . . . When reviewing whether a Franks hearing is warranted, we recognize that there is a longstanding rule that there is an underlying presumption of validity with respect to the affidavit supporting a warrant. ... In summary, there can be no Franks violation when the omissions, if included in the arrest warrant affidavit, would not defeat probable cause.” (Citations omitted; emphasis in original; internal quotation marks omitted.) State v. Grant, 286 Conn. 499, 519-20, 944 A.2d 947, cert. denied, 555 U.S. 916, 129 S. Ct. 271, 172 L. Ed. 2d 200 (2008).

In the present case, the defendant argues that the court improperly denied his motion for a Franks hearing in light of the “substantial preliminary showing”; (internal quotation marks omitted) id., 520; that materially exculpatory facts were omitted from the affidavit in support of his arrest warrant. Our review of the transcript from June 23, 2009, however, reveals that at no time did the defendant elicit testimony or offer evidence illustrative of an “intent ... or [a] reckless disregard” on the part of the affiant detective to mislead the issuing judge by excluding the information in question. (Internal quotation marks omitted.) Id. Rather, the testimony given by the affiant detective is just as indicative of an intent to “omit facts that he believe [d] to be either immaterial or unsubstantiated,” as an intent to mislead the reviewing judge. (Internal quotation marks omitted.) Id. Moreover, even were we to assume, arguendo, that the affiant detective did intentionally mislead the reviewing judge, we would conclude, as did the court, that the omitted information, “if included in the arrest warrant affidavit, would not defeat probable cause” to arrest the defendant. (Internal quotation marks omitted.) Id. Notably, our review of the arrest warrant affidavit discloses that the affiant detective included the fact that the victim recognized the defendant as his attacker, as he had known the defendant for one and one-half years before the stabbing occurred. Additionally, we fail to see how the minor discrepancies between the defendant’s license plate and Campoli’s recollection of the partial plate number, even if included in the affidavit, would defeat probable cause, given the other corroborating aspects of Campoli’s account of the stabbing.

Thus, we conclude that the court did not improperly deny the defendant’s motion for a Franks hearing because the defendant failed to make the “substantial preliminary showing” necessary to warrant such a hearing. (Internal quotation marks omitted.) Id., 519. Accordingly, the defendant’s claim is without merit.

The judgments are affirmed.

In this opinion BEACH, J., concurred.

MCDONALD, J.,

concurring. I concur in the majority opinion that the judgments should be affirmed. As to part I of the opinion, rather than referring to the victim’s nationality, I would point to evidence that the victim was stabbed in the abdomen, which caused a large blood clot in the abdominal wall and the mesentery of the colon was injured with arterial bleeding, and evidence that the first police officer interviewing the victim in English, not the victim’s first language, had trouble communicating with the victim. Also, the trial court found the victim was bleeding and disoriented as he called 911. Thus, the trial court properly remarked that the victim’s contradictions as to the location of the stabbing given to the police and hospital personnel may have been the product of difficulty expressing himself in English while being presented with a greatly emotional situation. I agree, therefore, that there was sufficient evidence to support the judgments.

       See Franks v. Delaware, 438 U.S. 154, 156, 98 S. Ct. 2674, 57 L. Ed. 2d 667 (1978).

       Alzoubi also identified the defendant as his attacker to the first responding police officer on the morning of July 28, 2008, later to a Bridgeport police detective who interviewed Alzoubi shortly after he was taken to a hospital for his irvjuries and finally in court on June 29, 2009.

       At the time of his arrest, the defendant was on probation for a domestic violence conviction.

       The victim testified that he was Jordanian by birth and lived in Jordan for some time before emigrating to the United States, and that English was his second language. It is also noteworthy that the victim can initially be heard speaMng Arabic in the June 28, 2008 911 call.

       The defendant does not dispute that he was not entitled to a jury trial on the violation of probation charge.

       The defendant also claims that, because the court’s finding that he violated his probation was premised on his allegedly wrongful conviction of attempted murder and assault in the first degree, the revocation of his probation should be reversed. Because we find no error, however, in the attempted murder and first degree assault conviction, it follows that there is no error as to the finding that he violated his probation. Therefore, we need not address this claim further.

       Part El of the final draft before publication was changed to part I of the published opinion.


source: Caselaw Access Project

author: SCHALLER, J.

license: Public Domain

text:
    CURTIS MORIKAWA ET AL. v. ZONING BOARD OF APPEALS OF THE TOWN OF WESTON ET AL.
    (AC 31175)
    DiPentima, C. J., and Bear and Schaller, Js.

      Argued November 16, 2010
    officially released February 8, 2011

      Mark S. Rosenblit, for the appellants (defendant Joseph Ryan et al.).

      Patricia C. Sullivan, for the appellant (named defendant).

      Robert A. Fuller, for the appellees (plaintiffs).
   Opinion

SCHALLER, J.

The defendant zoning board of appeals of the town of Weston (board) granted a variance to the defendant homeowners, Joseph Ryan and Lois Ryan, allowing the roof on their newly constructed dwelling to exceed the town’s thirty-five foot building height restriction by two feet, seven inches. The plaintiffs, Curtis Morikawa and Diane Lynch, owners of an adjoining property, appealed from the board’s decision, and the trial court sustained their appeal. On appeal to this court, the defendants claim that the court improperly sustained the plaintiffs’ appeal because (1) the defendants’ hardship was not self-created and (2) the board has the authority to grant a variance -without proof of exceptional difficulty or unusual hardship if the board determines the violation of the zoning regulations is de minimis. We affirm the judgment of the trial court.

The folio-wing facts and procedural history, as set forth by the court in its memorandum of decision and as supported by the record, are relevant. The defendants are owners of realty in Weston and the plaintiffs are owners of abutting land. The defendants’ property is located in a district that permits only single-family homes. Section 321.7 of the town of Weston’s zoning regulations provides that, in that district, “[n]o building or structure shall be permitted to exceed a height of [thirty-five] feet.” Weston Zoning Regs., art. III, § 321.7.

On June 3, 2005, the defendants applied to the building inspector for a permit to construct a single-family home and filed architectural plans and drawings with the inspector. In order to act on this permit, the building inspector was obliged to submit the defendants’ materials to the code enforcement officer, who, if the plans were in compliance with the zoning code, would issue a zoning permit. Pursuant to the regulations, the code enforcement officer’s review process takes place before construction can commence and, after construction is completed, the code enforcement officer reviews the building and issues a zoning compliance certificate.

After reviewing the defendants’ plans and drawings, the code enforcement officer found that the highest roof height of the defendants’ proposed dwelling was thirty-eight feet and was, thus, in excess of the roof height restriction. The code enforcement officer brought this problem to the attention of the defendants and the architect who prepared the specifications, with instructions to correct the defect before a zoning permit might issue. The defendants thereafter revised their plans and filed a second revised plan with the building inspector. This new plan shows the highest roof height of the building to be constructed as thirty-five feet. On the basis of the revised plan, the code enforcement officer issued a zoning permit authorizing the issuance of a building permit by the building inspector. The building inspector issued a building permit, and construction of the home on the defendants’ property commenced. The roof subsequently was finished.

Thereafter, while the code enforcement officer was at the defendants’ property investigating an unrelated complaint, he found that the height of the highest roof at the residence (then undergoing final site work) exceeded thirty-five feet in height. It measured thirty-seven feet, seven inches high. The code enforcement officer issued a cease and desist order to the defendants, requiring them to “remove the height violation and bring the structure into compliance.”

The defendants appealed from the cease and desist order to the board. The board held a public hearing on the defendants’ appeal. Joseph Ryan asked that the cease and desist order be lifted and a variance granted because no one — not the former general contractor, the former architect, the present general contractor, the framer or the town — caught the error or checked the height of the roof during the course of the construction. The roof had been completed for four months before the error was discovered by the code enforcement officer. The code enforcement officer asked the board to uphold the cease and desist order. He argued that if a house has been constructed that exceeds the height restriction, regardless of whether it was constructed according to the submitted plans, it is an issue “for the owner and . . . the builders to deal with. It is not the town’s responsibility to step in and decide whether people are talking to their contractors.”

The board upheld the cease and desist order but allowed the defendants to apply for a variance. The board indicated that it was leaning toward granting a variance in its discretion because this was a hardship resulting from “a voluntary act by one other than the one whom the variance would benefit, [that is, contractor error] . . . .” (Citation omitted; internal quotation marks omitted.) After the board denied their appeal, the defendants filed an application for a “variance of roof height” with the board. The defendants raised three justifications for the variance sought: (1) the defendants relied on independent contractors, an architect and builders who did not check periodically the height of the roof against the plans during construction; (2) the code enforcement officer negligently failed to monitor the construction periodically; and (3) the excess height would not affect the surrounding areas, as the house is set back from the street and the land to the rear of the house is owned by a land trust.

The board conducted a public hearing on the defendants’ application for a variance. The code enforcement officer opposed the variance on the grounds that the hardship claimed was solely economic and that, even though it was unintended, the hardship claimed was self-created. The board discussed the application for the variance, noting that the roof height was out of compliance by approximately two feet, that the home is perched high on the land and is not a detriment to the neighborhood, and that the hardship was created by the contractor’s error. “The conclusion of the meeting was as follows: A member stated that the variance would be based on a ‘de minimis’ theory. Another stated: ‘And on the neighborhood setting; the siting of the house.’ Another stated: ‘And the topography.’ ” A motion was made to grant the variance, and the board members approved it unanimously.

An August 7, 2006 notice to the defendants from the clerk of the board stated the approved motion as follows: “[A] motion [was made] to grant variance to [§] 321.7 regarding maximum building height to allow the building to exist as it is presently constructed on this date of July 25, 2006. The variance to the code is de minimis as to the way the property is laid out, the siting of the house and the topography.”

The plaintiffs’ appeal to the Superior Court followed. After trial, the court sustained the plaintiffs’ appeal on the grounds that Connecticut rejects the granting of variances for de minimis violations of zoning regulations and that neither of the other grounds stated by the board, siting or topography as they related to the roof height, constituted a hardship that related to a condition of the land initially. The board’s stated collective reasons for granting the variance did not include the much discussed reason of a mistake by the architect and/or contractor. The court found that even if it concluded that the board had granted the variance on that ground, a hardship created by those employed by the owner is a self-created hardship, which cannot support the board’s grant of a variance. After the defendants’ motion for articulation was granted and their motion for reargument and reconsideration was denied, and after this court granted their petition for certification to appeal, the defendants filed the present appeal.

The defendants claim that the court improperly ruled that the board abused its discretion in granting their application for a variance. Specifically, they maintain that the court improperly concluded that their hardship was self-created because they had sufficient involvement in the building process to be chargeable with the outcome. They also argue that the board has the discretionary authority to grant a variance if it determines that the violation is de minimis, which obviates the need for them to prove exceptional difficulty or unusual hardship in order to receive a variance. We are not persuaded.

“The standard of review on appeal from a zoning board’s decision to grant or deny a variance is well established. We must determine whether the trial court correctly concluded that the board’s act was . . . arbitrary, illegal or an abuse of discretion. . . . Courts are not to substitute their judgment for that of the board . . . and decisions of local boards will not be disturbed so long as honest judgment has been reasonably and fairly exercised after a full hearing. . . . Upon appeal, the trial court reviews the record before the board to determine whether it has acted fairly or with proper motives or upon valid reasons. . . . We, in turn, review the action of the trial court.” (Internal quotation marks omitted.) Moon v. Zoning Board of Appeals, 291 Conn. 16, 23-24, 966 A.2d 722 (2009).

“In order to determine whether the board properly granted the subject variance, we must first consider whether the board gave reasons for its action.” (Internal quotation marks omitted.) Id., 25. “[W]hen a zoning board has given a formal, official collective statement of reasons for its actions, the scope of our review is limited to determining whether the assigned grounds are reasonably supported by the record and whether they are pertinent to the considerations which the authority was required to apply under the zoning regulations.” (Internal quotation marks omitted.) Rural Water Co. v. Zoning Board of Appeals, 287 Conn. 282, 294-95, 947 A.2d 944 (2008).

In the present case, the board gave a formal, collective statement of reasons for its actions. Ordinarily, we would not look beyond those reasons. On appeal before this court, the defendants do not challenge the court’s ruling that two of the board’s stated reasons, the siting and the topography as they pertain to the height of the roof, were insufficient to support the board’s action. Rather, they challenge the court’s conclusion that the board did not have the authority to grant the variance if it determined the violation to be de minimis. Additionally, the defendants had asked the trial court to determine that the board had concluded that their hardship was not self-created based on the extensive discussion of this issue, even though this ground was not included in the board’s formal statement. The court, assuming arguendo that the board did so conclude, considered the issue of self-created hardship and found it to be unavailing. In response to a motion by the defendants, the court further articulated its ruling on the issue of self-created hardship. In their appeal to this court, the defendants focus their claims on whether the hardship was self-created and whether the violation was de mini-mis. The defendants have presented an adequate record to review these claims. Although the issue of self-created hardship was not a formal stated basis for the board’s action, we will consider, as did the trial court, the merits of this claim.

The following principles of law relating to variances guide our inquiry. “A variance constitutes permission to act in a manner that is otherwise prohibited under the zoning law of the town. ... It is well established, however, that the granting of a variance must be reserved for unusual or exceptional circumstances. ... An applicant for a variance must show that, because of some peculiar characteristic of his property, the strict application of the zoning regulation produces an unusual hardship, as opposed to the general impact which the regulation has on other properties in the zone.” (Internal quotation marks omitted.) Moon v. Zoning Board of Appeals, supra, 291 Conn. 24.

Our Supreme Court has cautioned that “the power to grant variances from the strict application of zoning ordinances should be carefully and sparingly exercised. . . . [UJnless great caution is used and variances are granted only in proper cases, the whole fabric of town- and city-wide zoning will be worn through in spots and raveled at the edges until its purpose in protecting the property values and securing the orderly development of the community is completely thwarted. . . . The power to authorize a variance is only granted for relief in specific and exceptional instances.” (Citations omitted; internal quotation marks omitted.) Pleasant View Farms Development, Inc. v. Zoning Board of Appeals, 218 Conn. 265, 270-71, 588 A.2d 1372 (1991); Durkin Village Plainville, LLC v. Zoning Board of Appeals, 107 Conn. App. 861, 868-69, 946 A.2d 916 (2008).

Accordingly, our Supreme Court has “interpreted [General Statutes § 8-6 (a) (3)] to authorize a zoning board of appeals to grant a variance only when two basic requirements are satisfied: (1) the variance must be shown not to affect substantially the comprehensive zoning plan, and (2) adherence to the strict letter of the zoning ordinance must be shown to cause unusual hardship unnecessary to the carrying out of the general purpose of the zoning plan. . . . Proof of exceptional difficulty or unusual hardship is absolutely necessary as a condition precedent to the granting of a zoning variance. ... A mere economic hardship or a hardship that was self-created, however, is insufficient to justify a variance . . . and neither financial loss nor the potential for financial gain is the proper basis for granting a variance.” (Internal quotation marks omitted.) Moon v. Zoning Board of Appeals, supra, 291 Conn. 24-25.

As to whether a hardship is self-created, our Supreme Court has stated that “[w]here the condition which results in the hardship is due to one’s own voluntary act, the zoning board is without the power to grant a variance.” (Internal quotation marks omitted.) Vine v. Zoning Board of Appeals, 281 Conn. 553, 561, 916 A.2d 5 (2007). The defendants focus their claim on the corollary statement, found in several Supreme Court decisions, that where “the hardship arises as the result of a voluntary act by one other than the one whom the variance will benefit, the board may, in the sound exercise of its liberal discretion, grant the variance.” (Internal quotation marks omitted.) Rural Water Co. v. Zoning Board of Appeals, supra, 287 Conn. 295; Vine v. Zoning Board of Appeals, supra, 561; Whittaker v. Zoning Board of Appeals, 179 Conn. 650, 657-58, 427 A.2d 1346 (1980); Belknap v. Zoning Board of Appeals, 155 Conn. 380,384, 232 A.2d 922 (1967). The defendants maintain that because the hardship was created by the error of the contractor and/or the architect, the defendants did not create the hardship. We disagree.

We begin our analysis by examining whether a hardship created by the error of the defendants’ contractor and/or architect is self-created because it arises as the result of a voluntary act by one other than the one whom the variance will benefit. In Belknap v. Zoning Board of Appeals, supra, 155 Conn. 382-83, the applicants believed erroneously that their predecessor in title had conveyed to them a parcel that fully complied with zoning requirements. In fact, the lot was undersized and because no accurate maps or surveys of the property were available and because a title search performed years before was inconclusive as to the ownership of an abutting strip of land, the original grantor conveyed only 2.94 acres, not the three acres that she believed that she owned, to the applicants’ predecessor in title. Id., 382. The board denied the variance sought. Id., 383. Our Supreme Court upheld the board’s decision because “the board is not required to extricate an applicant from an unusual hardship, at least if it does not arise out of the application of the zoning regulations themselves.” Id., 384-85. Nonetheless, the court stated, in dicta, that a board had the authority to grant a variance “[w]here, as in the present case . . . the hardship arises as the result of a voluntary act by one other than the one whom the variance will benefit . . . . Cf. Highland Park, Inc. v. Zoning Board of Appeals, [155 Conn. 40, 43, 229 A.2d 356 (1967)].” Belknap v. Zoning Board of Appeals, supra, 384.

In Highland Park, Inc. v. Zoning Board of Appeals, supra, 155 Conn. 40, either the surveyor or the foundation contractor employed by the plaintiff corporation made an error that caused a house to be constructed on a lot so that it was positioned in violation of the applicable zoning regulations. Id., 41-42. Without the variance, the house would have to be demolished. Id., 42. The zoning board of appeals denied a variance request, finding that the condition was “ ‘self-inflicted.’ ” Id., 43. In sustaining the trial court’s dismissal of the appeal, our Supreme Court stated that “any hardship present in the situation is due to the property owner’s own error, or the error of those employed by the owner, and does not arise from the application of the zoning regulations themselves.” (Emphasis added.) Id.

Our Supreme Court indicated in the Belknap dicta that, although there may be situations in which the court would uphold the grant of a variance when the hardship arises as the result of a voluntary act by one other than the one whom the variance will benefit, it squarely held in Highland Park, Inc., that it would not do so when the hardship arises as a result of the property owner’s own error or the error of those employed by the owner. The latter principle is illustrated in Pollard v. Zoning Board of Appeals, 186 Conn. 32, 40-43, 438 A.2d 1186 (1982). In that case, a house was constructed too close to a property boundary due to an error by a surveyor who was hired “for the benefit of the defendants . . . .” Id., 43. Specifically, the surveyor was hired by the executrix of the estate of the deceased prior owner, but the defendants, the heirs of the prior owner, were the legal owners of the property at the time the survey was performed improperly. Id., 40-42. The court held that the hardship “arose as the result of voluntary acts on behalf of one whom the variance would benefit and, therefore, was self-created.” (Emphasis added.) Id., 42.

Having examined the genesis of the proposition on which the defendants rely, we are persuaded that errors made by the architect and/or general contractor in the construction of the defendants’ home do not constitute “a voluntary act by one other than the one whom the variance will benefit . . . .” (Emphasis added; internal quotation marks omitted.) Rural Water Co. v. Zoning Board of Appeals, supra, 287 Conn. 295. Rather, we conclude that the errors of the architect and/or general contractor that resulted in the roof exceeding the thirty-five foot height requirement are attributable to the defendants because the voluntary acts of those persons were on behalf of the ones whom the variance would benefit. Thus, the hardship claimed is self-created. Moreover, although we can appreciate the plight of the defendants, who relied on the work of the professionals that they hired, we have stated that “[p]ersonal hardships, regardless of how compelling or how far beyond the control of the individual applicant, do not provide sufficient grounds for the granting of a variance. . . . [T]he basic zoning principle that zoning regulations must directly affect land, not the owners of land . . . limits the ability of zoning boards to act for personal rather than principled reasons, particularly in the context of variances.” (Internal quotation marks omitted.) Durkin Village Plainville, LLC v. Zoning Board of Appeals, supra, 107 Conn. App. 869-70. Because the defendants’ hardship was self-created, the board was without the authority to grant the variance sought.

The defendants ask this court to recognize a “de minimis” deviation exception that would obviate the need for the homeowners to prove hardship. We decline to do so. The authority of a zoning board of appeals to grant a variance is controlled by statute, and § 8-6 (a) (3) does not allow a variance unless the applicant proves that there is an “exceptional difficulty or unusual hardship . . . .” See Moon v. Zoning Board of Appeals, supra, 291 Conn. 24 (“[p]roof of exceptional difficulty or unusual hardship is absolutely necessary as a condition precedent to the granting of a zoning variance” [emphasis added; internal quotation marks omitted]). We recognize that case law has carved out a narrow exception to this requirement. See Vine v. Zoning Board of Appeals, supra, 281 Conn. 563 (showing of hardship not required when variance reduces prior nonconforming use); Adolphson v. Zoning Board of Appeals, 205 Conn. 703, 708-10, 535 A.2d 799 (1988) (same). We decline the defendants’ invitation to carve out a new exception here.

The judgment is affirmed.

In this opinion the other judges concurred.

       Although the board is a defendant, only the Ryans petitioned this court for certification to appeal from the trial court’s judgment. We therefore refer to the Ryans as the defendants throughout this opinion.

       The court found that the problem occurred because “ ‘the contractor looked at the wrong plans.’ ” The defendants maintain that the problem occurred because, although the architect adjusted the height of the roof in the revised plans, he failed to adjust its pitch. Whether the error was caused by the architect or the contractor is not material to the outcome of this appeal. See footnote 3 of this opinion. We refer to the error as one made by the “architect and/or contractor.”

       But see Osborne v. Zoning Board of Appeals, 41 Conn. App. 351, 354-55, 675 A.2d 917 (1996) (concluding that error made by surveyor hired by architect that resulted in house constructed within sideyard setback was not hardship created by homeowner who hired architect). In Vine v. Zoning Board of Appeals, supra, 281 Conn. 562, our Supreme Court noted that “[i]n cases in which an extreme hardship has not been established, the reduction of a nonconforming use to a less offensive prohibited use may constitute an independent basis for granting a variance.” See also Adolphson v. Zoning Board of Appeals, 205 Conn. 703,708-10,712,535 A.2d 799 (1988). In Osborne v. Zoning Board of Appeals, supra, 352-53, the surveyor’s error reduced, but did not eliminate, a prior nonconformity. In Durkin Village Plainville, LLC v. Zoning Board of Appeals, supra, 107 Conn. App. 866 n.4, this court distinguished Osborne on several grounds, including that the error did not reduce a prior nonconformity and that there was no evidence that the surveyor error at issue had been made by an independent contractor.
      The present matter is also distinguishable from Osborne. As in Durkin Village Plainville, LLC, the error in the present case did not reduce a prior nonconformity. In Osborne v. Zoning Board of Appeals, supra, 41 Conn. App. 354, the surveyor testified before the board that he was not hired by the applicants and that he made the error. Here, the trial court determined that the error occurred because “ ‘the contractor looked at the wrong plans.’ ” The defendants maintain on appeal that the problem occurred because, although the architect adjusted the height of the roof in the revised plans, he failed to adjust its pitch. The defendants testified before the board that, in their opinion, “five entities” were responsible for the error: the former general contractor, the former architect, the present general contractor, the framer and the town. We find unavailing the defendants’ claim that this case is similar to Osborne.

      Further, in dismissing the defendants’ claim that an exception under Osborne applies, the trial court determined that they “had an initial indication that the roof in the first plans was out of code, and they also had sufficient involvement in the building process to be chargeable with the outcome.” The fact that the record in this case indicates that the defendants were directly notified of the defect by the code enforcement officer before building began presents an even more compelling reason to limit Osborne to its facts than did Durkin Village Plainville, LLC.

       The defendants argue that the code enforcement officer also “participated” in the creation of the hardship because he did not discover the error sooner. In its articulation, the trial court found that the “issue of the [code enforcement officer’s] role was not given by the [board] as a reason for its granting of the variance. ... It was not argued by the [board] or the Ryans as a ground to dismiss the appeal.” Indeed, the board upheld the cease and desist order issued by the code enforcement officer prior to considering the defendants’ application for a variance. The record is clear that, in the revised plans reviewed by the code enforcement officer, the roof height was corrected. We are not persuaded by the defendants’ claim that, because the code enforcement officer could have discovered that the architect failed to correct the pitch of the roof in the revised plans, the hardship is somehow not self-created.
      We note that in making this argument, the defendants expressly disclaim reliance on the doctrine of municipal estoppel; see Collins Group, Inc. v. Zoning Board of Appeals, 78 Conn. App. 561, 575-76, 827 A.2d 764, cert. denied, 266 Conn. 911, 832 A.2d 68 (2003); and we express no opinion on that issue.

       Insofar as the cases cited by the defendants discuss de minimis violations in the context of variances, such discussion almost invariably was relevant to whether the first of the two requirements for a variance was satisfied; that is, whether the variance did not affect substantially the comprehensive zoning plan. None of the cases cited stands for the proposition that, in Connecticut, a de minimis violation obviates the need for the homeowners to prove hardship.