text:
    IN RE SHANE P.*
    (AC 19430)
    O’Connell, C. X, and Lavery and Landau, Js.

      Argued January 18
    officially released June 13, 2000

      Raymond J. Rigat, for the appellant (respondent father).

      Mary K. Lenehan, assistant attorney general, with whom, on the brief, were Richard Blumenthal, attorney general, and Susan T. Pearlman, assistant attorney general, for the appellee (petitioner).

      David T. Stone, for the minor child.

       In accordance with the spirit and intent of General Statutes § 46b-142 (b) and Practice Book § 79-3, 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.

       The listing of judges reflects their seniority status on this court as of the date of oral argument.

   Opinion

LAVERY, J.

The respondent father appeals from the judgment of the trial court terminating his parental rights with respect to his minor child, Shane P. He claims that (1) the court’s finding that he abandoned Shane constituted an unconstitutional deprivation of due process, (2) the court improperly found that he failed to achieve sufficient personal rehabilitation, (3) the statutory grounds of abandonment and failure to achieve rehabilitation pursuant to General Statutes (Rev. to 1997) § 17a-112, as bases for the termination of parental rights, are unconstitutionally vague as applied to him, (4) the court’s finding of abandonment violated the double jeopardy clause of the fifth amendment to the United States constitution and (5) the termination of his parental rights constituted a violation of due process. We affirm the judgment of the trial court.

In a memorandum of decision, filed February 4,1999, the court found the following facts. The respondent dropped out of high school and developed a drug and alcohol habit. He married Shane’s mother in 1986, and the couple in 1988 had their first child, B. The respondent introduced his wife to drugs, and she also became addicted. In 1991, after a series of arrests, the respondent and his wife put B in the care of his maternal grandparents, where he has remained. Despite their inability to care for B, the respondent and his wife in 1992 had another son, J. Two years later, the respondent and his wife left J with his maternal grandparents as a result of the persistent marital, drug and criminal justice problems the respondent and his wife experienced.

Shane was bom prematurely on July 31, 1995, with a positive toxicity for opiates and went through withdrawal. The presence of drugs in Shane may have been due to his mother’s methadone treatment, although she admitted to using cocaine early in her pregnancy.

On October 3, 1995, with his wife, Shane and J in a car with him on a dirt road, the respondent smoked rock cocaine and then assaulted police officers who came to the scene. Cocaine and baby formula were found in the car. As a result, the respondent was convicted of multiple counts of risk of injury to a child, possession of narcotics and assault on a police officer. Due to the severity of the incident, as well as his lengthy criminal record, which included eight prior felony convictions, violation of probation and numerous misdemeanors, the respondent received a total effective sentence of ten years, execution suspended after five years in prison, and five years of probation. He remains in prison with a maximum release date of October, 2000. The respondent’s wife was convicted of risk of injury to a child and received a suspended sentence. Subsequently, however, in connection with an unrelated incident, she was convicted of robbery, risk of injury to a child and assault in the second degree for which she received a total effective sentence of seven years incarceration. Her maximum release date is June, 2004.

On the basis of the October, 1995 incident, the commissioner of children and families (commissioner) obtained an order of temporary custody for J and Shane. The commissioner placed the boys in a foster home, where Shane has remained. On June 10,1996, the court adjudicated Shane neglected. The court has extended his commitment to the commissioner until June 10, 2000.

From birth, Shane has had special needs. In the first several months of his life, Shane exhibited severe back arching, body tremors, unusual screaming and difficulty keeping down his formula. At twenty-two months, Shane was diagnosed with developmental weaknesses and inconsistencies in the areas of language development, neuromotor functions, behavioral control and possible learning disability. Through the hard work of his foster mother, Shane was placed in a newly created special education program. Although Shane has improved in many areas, he still has frustration problems, oral motor difficulties and is prone to choking.

Shane’s foster mother is devoted to him and devotes considerable energy to his development. A pediatrician and psychologist who testified at the respondent’s trial complimented the foster mother as committed and understanding. Complaints by the respondent’s wife regarding the foster mother’s care were investigated and shown to be unsubstantiated. Shane’s foster parents love him and would like to adopt him. Shane is quite comfortable and is thriving in his foster environment. Shane refers to the other boys in the foster household as his brothers. He refers to his biological brothers, B and J, as his friends. Shane refers to his foster parents as mommy and daddy. Shane does not look forward to visits with the respondent or his wife.

After his arrest in October, 1995, the respondent did not, until February, 1996, request that the department of children and families (department) facilitate a visit with Shane. Sporadic requests continued until August, 1997, when the respondent had his first prison visit with Shane. Delays in the department’s response to the respondent’s requests stemmed from the mixed signals he gave regarding his interest, as well as from the fire-quent turnover of department social workers assigned to the case. Another visit took place in October, 1997, but Shane was uncomfortable, and the respondent suggested that the visit end early. The respondent did not request more visits until March, 1998. The respondent has not sent Shane Christmas or birthday cards or presents. The respondent also admitted that Shane does not know him as a father. Indeed, Shane does not refer to the respondent as daddy or any similar term.

The court found by clear and convincing evidence that the respondent had abandoned Shane within the meaning of § 17a-112 (c) (3) (A) because the respondent had no contact with the child during a five month period between October, 1995, and February, 1996, and showed only sporadic interest in him thereafter. The court also found that for more than one year the respondent had failed to achieve sufficient personal rehabilitation, within the meaning of § 17a-112 (c) (3) (B), such that it is likely that within a reasonable time he could assume a position of responsibility in the child’s life. The court then determined that it was in Shane’s best interest to terminate the respondent’s parental rights. Finally, the court denied a motion by the respondent’s wife to transfer guardianship of Shane to his maternal grandparents. This appeal followed.

At the outset, we note our standard of review in termination of parental rights cases. “The standard for review on appeal [in a termination of parental rights case] is whether the challenged findings are clearly erroneous. ... On appeal, our function is to determine whether the trial court’s conclusion was legally correct and factually supported. . . . We do not examine the record to determine whether the trier of fact could have reached a conclusion other than the one reached . . . nor do we retry the case or pass upon the credibility of the witnesses. . . . Rather, on review by this court every reasonable presumption is made in favor of the trial court’s ruling.” (Internal quotation marks omitted.) In re Alissa N., 56 Conn. App. 203, 207, 742 A.2d 415 (1999), cert. denied, 252 Conn. 932, 746 A.2d 791 (2000).

I

A

The respondent contends that the court’s finding of abandonment was an unconstitutional deprivation of due process because five months of no contact with Shane does not constitute abandonment, and the failure of the department to arrange prison visitation was the main cause of the lack of contact. Although the respondent in his brief does discuss his actions with regard to Shane, he provides no analysis in support of his allegation of a due process violation. Accordingly, this claim is inadequately briefed and we deem it abandoned. Latham & Associates, Inc. v. William Raveis Real Estate, Inc., 218 Conn. 297, 300, 589 A.2d 337 (1991); State v. Dumas, 54 Conn. App. 780, 794, 739 A.2d 1251, cert. denied, 252 Conn. 903, 743 A.2d 616 (1999).

What the respondent does brief is a challenge to the sufficiency of the evidence underlying the court’s conclusion that clear and convincing evidence exists that he abandoned the child within the meaning of § 17a-112 (c) (3) (A).

“Abandonment focuses on the parent’s conduct. It is a question of fact for the trial court which has the parties before it and is in the best position to analyze all of the factors which go into the ultimate conclusion that [the statutory standard of abandonment] has been satisfied.” (Internal quotation marks omitted.) In re Drew R., 47 Conn. App. 124, 128, 702 A.2d 647 (1997).

“It is not lack of interest alone which is the criterion in determining abandonment. Abandonment under [§ 17a-112 (c) (3) (A)] requires failure to maintain interest, concern or responsibility as to the welfare of the child. Attempts to achieve contact with a child, telephone calls, the sending of cards and gifts, and financial support are indicia of interest, concern or responsibility for the welfare of a child. . . . Where a parent fails to visit a child, fails to display any love or affection for the child, has no personal interaction with the child, and no concern for the child’s welfare, statutory abandonment has occurred. . . . General Statutes [§ 17a-112 (c) (3) (A)] does not contemplate a sporadic showing of the indicia of interest, concern or responsibility for the welfare of a child. A parent must maintain a reasonable degree of interest in the welfare of his or her child. Maintain implies a continuing, reasonable degree of concern.” (Internal quotation marks omitted.) Id., 129.

The court stated in its memorandum of decision: “The father abandoned Shane between his arrest in October, 1995, and his request for a visit in February, 1996, a five month period. Over the next year, the father made several direct and indirect requests for visits, and [the department] failed to respond. In February, 1997, however, the father expressed ambivalence concerning whether he wanted a visit. After a March, 1997 request for a visit by the paternal grandparents on [the respondent’s] behalf, the father visited Shane in August and October, 1997. At the October visit, the father again exhibited some ambivalence and then failed to request another visit until five months later in March, 1998. At no point has the father recognized Christmas or Shane’s birthday .... On the whole, the court finds that the father’s level of interest in his son was sporadic, which is not sufficient to defeat statutory abandonment.”

On the basis of our review of the court’s factual findings, we conclude that the evidence was sufficient to support the determination that the respondent abandoned Shane.

B

The respondent also contends that the court’s finding that he failed to achieve sufficient personal rehabilitation was clearly erroneous. For the reasons set forth below, we need not and do not decide this claim.

In part I A of this opinion, we concluded that the court properly found that the respondent abandoned Shane. We need only uphold one statutory ground found by the court to affirm its decision to terminate parental rights. In re John G., 56 Conn. App. 12, 20 n.4, 740 A.2d 496 (1999). “To prevail on [his] claim that the court improperly terminated [his] parental rights, the respondent must successfully challenge all of the bases of the judgment terminating [the] parental rights. If [any] of the grounds on which the trial court relied are upheld on appeal, the termination of parental rights must stand.” (Internal quotation marks omitted.) Id. Accordingly, because one statutory ground for termination properly exists, namely abandonment, we need not reach the respondent’s claim that the court’s finding that he failed to achieve personal rehabilitation was clearly erroneous.

II

The respondent also contends that the statutory ground of abandonment pursuant to § 17a-112 (c) (3) (A) is unconstitutionally vague as applied to him because it fails to put an incarcerated parent on notice as to what is expected to prevent termination of parental rights. We disagree and conclude that the statute and our case law provided more than sufficient guidance to the respondent.

“The void for vagueness doctrine is a procedural due process concept that originally was derived from the guarantees of due process contained in the fifth and fourteenth amendments to the United States constitution.” Packer v. Board of Education, 246 Conn. 89, 98, 717 A.2d 117 (1998). The doctrine requires statutes (1) to provide fair notice of the conduct they address and (2) to establish minimum guidelines to govern law enforcement. State v. Indrisano, 228 Conn. 795, 802, 640 A.2d 986 (1994). Since the “minimum guidelines” prong is applicable only where a statute is challenged as being unconstitutional on its face; State v. George, 37 Conn. App. 388, 390 n.2, 656 A.2d 232 (1995); and the respondent did not make a facial challenge, we focus our attention on the first requirement.

Because the respondent’s vagueness claim was not raised in the trial court, he now seeks review under State v. Golding, 213 Conn. 233, 239-40, 567 A.2d 823 (1989). Our Supreme Court has held that a party can prevail on a claim of constitutional error not preserved at trial only if all of the following four conditions are satisfied: “(1) the record is adequate to review the alleged claim of error; (2) the claim is of constitutional magnitude alleging the violation of a fundamental right; (3) the alleged constitutional violation clearly exists and clearly deprived the defendant of a fair trial; and (4) if subject to harmless error analysis, the state has failed to demonstrate harmlessness of the alleged constitutional violation beyond a reasonable doubt.” Id. Golding applies to civil as well as criminal cases. In re Shyliesh H., 56 Conn. App. 167, 178, 743 A.2d 165 (1999); Hurtado v. Hurtado, 14 Conn. App. 296, 300, 541 A.2d 873 (1988). Even if we assume that the respondent has met the first two prongs of Golding, the respondent has failed to meet the third requirement of Golding, i.e., that a constitutional violation clearly exists and clearly deprived him of a fair trial.

“Legislative enactments carry with them a strong presumption of constitutionality, and a party challenging the constitutionality of a validly enacted statute bears the weighty burden of proving unconstitutionality beyond a reasonable doubt. State v. Angel C., 245 Conn. 93, 102, 715 A.2d 652 (1998). In analyzing the constitutionality of a statute, the court will ‘read the statute narrowly in order to save its constitutionality, rather than broadly in order to destroy it.’ State v. Indrisano, [supra, 228 Conn. 805].” In re Shyliesh H., supra, 56 Conn. App. 178.

Simply put, the respondent received ample guidance so that he could appraise what was necessary to avoid a finding of abandonment. “A statute is not unconstitutional merely because a person must inquire further as to the precise reach of its prohibitions, nor is it necessary that a statute list the exact conduct prohibited. . . . The constitution requires no more than a reasonable degree of certainty.” (Citations omitted.) Packer v. Board of Education, supra, 246 Conn. 101.

High standards of precision in the parental termination arena are neither achievable nor desired, as the acceptability of specific conduct and the determination of whether to terminate parental rights is a highly fact-specific process. See State v. Anonymous, 179 Conn. 155, 165, 425 A.2d 939 (1979). “In light of the individualistic nature of each case, § 45a-61f (2) [an analog to § 17a-l 12] is, on its face, precise enough to warn parents what is and what is not acceptable conduct.” Id.

Since our Supreme Court’s pronouncement in State v. Anonymous, supra, 179 Conn. 155, more than twenty year’s ago, our state’s appellate case law has further shaped and circumscribed the meaning of abandonment. “Abandonment focuses on the parent’s conduct. ... A lack of interest in the child is not the sole criterion in determining abandonment. . . . General Statutes [§ 17a-112 (c) (3) (A)] defines abandonment as the [failure] to maintain a reasonable degree of interest, concern or responsibility as to the welfare of the child .... Attempts to achieve contact with a child, telephone calls, the sending of cards and gifts, and financial support, are indicia of interest, concern or responsibility for the welfare of a child. . . . Abandonment occurs where a parent fails to visit a child, does not display love or affection for the child, does not personally interact with the child, and demonstrates no concern for the child’s welfare. . . .

“Section 17a-112 [(c) (3) (A)] does not contemplate a sporadic showing of the indicia of interest, concern or responsibility for the welfare of a child. A parent must maintain a reasonable degree of interest in the welfare of his or her child. Maintain implies a continuing, reasonable degree of concern. . . .

“The commonly understood general obligations of parenthood entail these minimum attributes: (1) express love and affection for the child; (2) express personal concern over the health, education and general well-being of the child; (3) the duty to supply the necessary food, clothing, and medical care; (4) the duty to provide an adequate domicile; and (5) the duty to furnish social and religious guidance. ... In re Kezia M., [33 Conn. App. 12, 17-18, 632 A.2d 1122, cert. denied, 228 Conn. 915, 636 A.2d 847 (1993)].” (Internal quotation marks omitted.) In re John G., supra, 56 Conn. App. 20-21; see also In re Roshawn R., 51 Conn. App. 44, 53, 720 A.2d 1112 (1998).

Guidance also exists for an incarcerated parent. Our case law has noted that a parent’s incarceration does not absolve him of the requirement that he maintain contact with his child. Although a parent’s imprisonment alone does not constitute abandonment; In re Juvenile Appeal (Docket No. 10155), 187 Conn. 431, 443, 446 A.2d 808 (1982); “[t]he restrictions on movement that are inherent to incarceration, however, do not excuse a failure to make use of available, albeit limited, resources for communication with [his child].” In re Shannon S., 41 Conn. Sup. 145, 153, 562 A.2d 79, aff'd, 19 Conn. App. 20, 560 A.2d 993 (1989). A parent’s interest in his child must not merely be sporadic in nature, but must exist on a consistent and continuing basis. See In re Migdalia M., 6 Conn. App. 194, 210, 504 A.2d 533, cert. denied, 199 Conn. 809, 508 A.2d 770 (1986).

We conclude that § 17a-112 (c) (3) (A) is not void for vagueness as applied to the respondent. This provision as written and as interpreted in our case law provides fair warning of the conduct necessary to avoid a finding of abandonment. The respondent has failed to meet the third Golding requirement that a clear constitutional violation exists, and his claim therefore must fail.

Ill

The respondent next argues that the court’s finding that he abandoned Shane violated the double jeopardy clause of the fifth amendment to the United States constitution because the termination of his parental rights punished him for his status as an incarcerated parent. We disagree.

Because this claim was not preserved at trial, we review it under the precepts of State v. Golding, supra, 213 Conn. 239-40. “The double jeopardy clause of the fifth amendment to the United States constitution provides that no person shall be subject for the same offense to be twice put in jeopardy of life or limb.” (Internal quotation marks omitted.) State v. Braswell, 42 Conn. App. 264, 268, 679 A.2d 407 (1996), appeal dismissed, 243 Conn. 248, 701 A.2d 1057 (1997). “In order for double jeopardy to exist there must be a dual punishment of the same offense arising out of the same act.” State v. Garvin, 43 Conn. App. 142, 150, 682 A.2d 562 (1996), aff'd, 242 Conn. 296, 699 A.2d 921 (1997).

A civil sanction, however, “that serves a legitimate remedial purpose and is related rationally to that purpose does not give rise to a double jeopardy violation even if the sanction has some deterrent effect.” State v. Hickam, 235 Conn. 614, 623, 668 A.2d 1321 (1995), cert. denied, 517 U.S. 1221, 116 S. Ct. 1851, 134 L. Ed. 2d 951 (1996). “[A] civil sanction constitutes punishment when the goal it serves is for purposes of deterrence or retribution. Such goal is evidenced when the sanction is overwhelmingly disproportionate to the damages caused. See United States v. Halper, 490 U.S. 435, 448-49, 109 S. Ct. 1892, 1901-02, 104 L. Ed. 2d 487 (1989). Thus, an overwhelmingly disproportionate sanction may be present where the civil sanction bears so little relationship to making the government whole as to shock the conscience of the court.” United States v. Morgan, 51 F.3d 1105, 1108 (2d Cir.), cert. denied, 516 U.S. 861, 116 S. Ct. 171, 133 L. Ed. 2d 112 (1995).

When considering whether a civil sanction is characterized as remedial for the purposes of the double jeopardy clause, we take a two-pronged approach. “Under that approach . . . [tihe court must] assess: (1) the purpose the sanction is designed to serve; and (2) the nature of the particular sanction as applied to the defendant.” State v. Tuchman, 242 Conn. 345, 352, 699 A.2d 952 (1997), cert. dismissed, 522 U.S. 1101, 118 S. Ct. 907, 139 L. Ed. 2d 922 (1998); State v. Duke, 48 Conn. App. 71, 76 n.9, 708 A.2d 583, cert. denied, 244 Conn. 911, 713 A.2d 829 (1998).

As to the first prong, the purpose of the “sanction” of terminating an individual’s parental rights clearly is remedial in nature. General Statutes § 17a-101 (a) highlights the public policy of this state as it pertains to children: “To protect children whose health and welfare may be adversely affected through injury or neglect; to strengthen the family and to make the home safe for children by enhancing the parental capacity for good care; to provide a temporary or permanent nurturing and safe environment for children when necessary; and for these purposes to require the reporting of suspected child abuse, investigation of such reports by a social agency, and provision of services, where needed, to such child and family.”

Our case law has articulated similar remedial purposes. “The primary concern of [the department] is the safety of [the child]. . . . Where appropriate, the agency can and must take unilateral action either to reunite families or to terminate parental rights as expeditiously as possible to free neglected children for placement and adoption in stable family settings.” (Internal quotation marks omitted.) In re Christine F., 6 Conn. App. 360, 368, 505 A.2d 734, cert. denied, 199 Conn. 808, 809, 508 A.2d 769, 770 (1986); see also In re Juvenile Appeal (85-BC), 195 Conn. 344, 352, 488 A.2d 790 (1985) (established public policy of state is to protect children); State v. Anonymous, supra, 179 Conn. 171 (same). There simply is no evidence to indicate that the termination of the respondent’s parental rights occurred for any reason but the remedial purpose of protecting the welfare of his son, Shane.

We conclude that the application of § 17a-112 to the respondent does notviolate the double jeopardy clause. As stated in our case law, the legislature intended § 17a-112 to serve a remedial purpose—to protect the welfare of children in our state—and it served that purpose when the court applied it in the circumstances of this case. Other states faced with double jeopardy challenges to parental termination actions similarly have concluded that because their parental termination statutes are remedial in nature and rationally related to a legitimate governmental purpose, the termination of the parental rights of an incarcerated parent does not signify an additional punishment constituting double jeopardy. See, e.g., Matter of M.B., 666 N.E.2d 73, 79-80 (Ind. App. 1996); In re Interest of Theodore W., 4 Neb. App. 428, 440-41, 545 N.W.2d 119 (1996).

The court’s conclusion that the respondent abandoned Shane did not violate the double jeopardy clause of the United States constitution. Accordingly, even if we assume arguendo that the first two prongs of Golding have been met, the respondent again has failed to meet the third requirement, i.e., that a constitutional violation clearly exists. Therefore, his claim must fail.

IV

The respondent argues that the termination of his parental rights constituted a violation of due process. He posits that the court failed to demonstrate a compelling state interest in terminating his parental rights when the alternative of placing Shane with his maternal grandparents was available, and would have reunited Shane with his brothers and kept him within the custody of his natural family. After applying the Golding standard of review to this unpreserved constitutional claim, we disagree.

Our Supreme Court, in addition, has recognized the state’s “continuing parens patriae interest ... in the well being of children . . . In re Juvenile Appeal (83-DE), 190 Conn. 310, 318-19, 460 A.2d 1277 (1983). “It is indisputable that protecting the physical and psychological well-being of children is a compelling, as well as legitimate, state interest.” State v. Palangio, 24 Conn. App. 300, 304, 588 A.2d 644, cert. denied, 218 Conn. 911, 591 A.2d 813 (1991). “A democratic society rests, for its continuance, upon the healthy, well-rounded growth of young people into full maturity as citizens . . . .” Prince v. Massachusetts, 321 U.S. 158, 168, 64 S. Ct. 438, 88 L. Ed. 645 (1944). In this case, the state has a compelling interest in assuring the physical and psychological well-being of Shane, a child bom with special needs who requires extraordinary care from a dedicated, loving parent.

The respondent’s argument that no showing of a substantial degree of harm to Shane exists because guardianship could have been granted to the child’s maternal grandparents is highly dubious. Transferring guardianship would have required the following. First, Shane would have to be separated from a foster mother and father who are dedicated to meeting his special needs, with whom Shane has bonded and whom he calls mommy and daddy. Then, Shane would have to be transferred, almost certainly against his wishes, into a home with biological siblings to whom he refers as no more than friends and with biological grandparents to whom he refers as no more than J’s grandparents, who did not recognize Shane’s past birthdays and do not currently inquire into his well-being at his foster home.

Furthermore, Shane no longer would live with foster siblings he cares about and gets along with in his foster home. Instead, he would live with two biological brothers he hardly knows who are receiving counseling for behavior difficulties. Shane actually may fear one of those brothers, J, due to J’s aggressive behavior toward Shane earlier in childhood. Finally, if the maternal grandparents were to receive guardianship of Shane, they would, upon the release of Shane’s mother from prison, return him to his mother, who similarly has shown questionable responsibility toward him.

Shane would also lose any sense of permanency that he has in his present home. Residence with Shane’s maternal grandparents would serve at best as little more than yet, another transitional domicile until his mother is released from prison. Our Supreme Court’s discussion of a matter where a child was left by the state to wander through transitional custody proves instructive: “It is shocking that the defendant’s children have been in ‘temporary’ custody for more than three years. This is a tragic and deplorable situation, and [the department] must bear- full responsibility for this unwarranted and inexcusable delay. Too often the courts of this state are faced with a situation where, as here, litigation has continued for year s while the children, whose interests are supposed to be paramount, suffer in the insecurity of ‘temporary’ placements. The well-known deleterious effects of prolonged temporary placement on the child, which we have discussed above, makes continuing review by [the department] of all temporary custody and commitment cases imperative. Where appropriate, the agency can and must take unilateral action either to reunite families or to terminate parental rights as expeditiously as possible to free neglected children for placement and adoption in stable family settings.” In re Juvenile Appeal (83-CD), 189 Conn. 276, 292, 455 A.2d 1313 (1983).

Forcing a child back into a potentially unhealthy and far less supportive atmosphere merely for the sake of having the child live in the same dwelling as relatives does not provide a constitutionally required alternative for Shane’s family placement. The presence of a compelling interest in terminating the respondent’s parental rights is not diluted merely because a relative demands custody. The respondent again has failed to meet the third Golding requirement that a constitutional violation clearly exists. Therefore, his claim must fail.

The judgment is affirmed.

In this opinion the other judges concurred.

       The trial court terminated the parental rights of both respondent parents. In this opinion, we address only the appeal by the respondent father and refer to him as the respondent.

       In the foster home, J threw toys at Shane and did not get along with the other boys there. The department of children and families returned J to his maternal grandparents.

       In its memorandum of decision, the court stated: “The court can waive the requirement that a statutory ground exist for more than one year if it finds ‘[f]rom the totality of the circumstances surrounding the child that such a waiver is necessary to promote the best interest of the child. . . .’ General Statutes (Rev. to 1997) § 17a-112 (d) (1). To the extent that the father’s abandonment was less than one year, the court waives the one year requirement.”

       The respondent also challenges the statutory ground of failure to rehabilitate as unconstitutionally vague as applied to him. General Statutes (Rev. to 1997) § 17a-112 (c) (3) (B). Because we affirm the court’s conclusions on the abandonment ground; see In re John G., supra, 56 Conn. App. 20 n.l; we need not consider this challenge.

       “Among the factors that are indicative of whether a sanction is punitive or remedial in nature are whether (1) it involves an affirmative disability or restraint, (2) it has historically been regarded as a punishment, (3) it comes into play only on a finding of scienter, (4) its operation will promote the traditional aims of punishment, i.e., retribution and deterrence, (5) the behavior to which it applies is already a crime, (6) an alternative purpose to which it may rationally be connected is assignable for it, and (7) it appears excessive in relation to the alternative purpose assigned. Kennedy v. Mendoza-Martinez, 372 U.S. 144, 168-69, 83 S. Ct. 554, 9 L. Ed. 2d 644 (1963).” State v. Duke, supra, 48 Conn. App. 75.

       The petitioner, the commissioner of children and families, argued on appeal that the court improperly concluded that it could not find a lack of an ongoing parent-child relationship between the respondent and Shane due to the respondent’s incarceration. Because we affirm the judgment on the ground of abandonment, we need not reach this issue. See In re John G., supra, 56 Conn. App. 20 n.4.


source: Caselaw Access Project

author: LANDAU, J.

license: Public Domain

text:
    DONNA L. KROLL v. JACK SEBASTIAN ET AL.
    (AC 19440)
    O’Connell, C. J., and Foti and Landau, Js.

      Argued February 24
    officially released June 13, 2000

      William C. Kroll, for the appellant (plaintiff).

      Ralph J. Monaco, with whom, on the brief, was Thomas J. Londregan, for the appellees (defendants).

       The listing of judges reflects their status on this court as of the date of oral argument.

   Opinion

LANDAU, J.

This is an appeal from the judgment of the trial court rendered following the granting of the defendants’ motion for summary judgment. The plaintiff claims that the court, having concluded that a genuine issue of material fact existed as to whether the strip of land over which the plaintiff sought a prescriptive easement was held open for public use, improperly granted the defendants’ motion for summary judgment. We agree.

The following facts and procedural history are pertinent to our resolution of this appeal. The plaintiff, Donna L. Kroll, brought the present action against the defendants alleging, in an amended complaint, that the defendants Jack Sebastian and Shirley Sebastian, with the approval of the defendant Groton Long Point Association, Inc. (association), the municipal corporation that allegedly owned the subject property, placed boulders on a strip of land in front of their property, which also bordered the plaintiffs property. The plaintiff further alleged that the strip of land has for decades been used openly, notoriously and continuously for parking by area homeowners and their guests. The placement of these boulders by the defendants, the plaintiff alleged, has interfered with parking rights acquired through a prescriptive easement pursuant to General Statutes § 47-37. The defendants asserted, by way of special defense, that the subject strip of land is owned by the association, held for public use and is immune from prescriptive easement claims.

The defendants moved for summary judgment on the single ground that, as a matter of law, the plaintiff could not obtain a prescriptive easement over land held by municipalities for public use. The plaintiff counters that the subject strip of land was, and is, held only for private use by the members and guests of the association and, therefore, is not held for public use. The plaintiff claims that if the land was ever owned by the association, it was abandoned by that entity. The court granted the defendants’ motion for summary judgment, and this appeal followed.

“The standards governing our review of a trial court’s decision on a motion for summary judgment are clear. Practice Book § 384 [now § 17-49] provides that summary judgment shall be rendered forthwith if the pleadings, affidavits and any other proof submitted show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. . . . While the burden of showing the nonexistence of any material fact is on the party seeking summary judgment . . . the party opposing [summary judgment] must substantiate its adverse claim by showing that there is a genuine issue of material fact together with the evidence disclosing the existence of such an issue. ... In deciding a motion for summary judgment, the trial court must view the evidence in the light most favorable to the nonmoving party. . . . The test is whether a party would be entitled to a directed verdict on the same facts. . . .

“Equally well settled is that the trial court does not sit as the trier of fact when ruling on a motion for summary judgment. . . . [T]he trial court’s function is not to decide issues of material fact, but rather to determine whether any such issues exist.” (Citations omitted; internal quotation marks omitted.) Field v. Kearns, 43 Conn. App. 265, 269-70, 682 A.2d 148, cert. denied, 239 Conn. 942, 684 A.2d 711 (1996).

In its memorandum of decision, the court found that “the plaintiffs affidavit and the affidavit of the president of the [association] create a genuine issue of material fact as to whether the subject strip of land was, and presently is, held open for public use.” Immediately following this statement, the court continues, “[h]ow-ever, the plaintiff does not proffer evidence to rebut the assertion by the president of the [association] that the [association] has [recently] considered constructing a sidewalk along a portion of East Shore Avenue, as part of its long-term Local Capital Improvement Plan filed with the [Connecticut office of policy and management] approximately seven years ago. At all times, [the association’s] intention has been to utilize the land adjoining East Shore Avenue for public use.” (Internal quotation marks omitted.)

Quoting American Trading Real Estate Properties, Inc. v. Trumbull, 215 Conn. 68, 79, 574 A.2d 796 (1990), for the proposition that “ ‘land is indeed held for public use even when a municipality is not presently making use of the land but is simply holding it for development at some later time,’ ” the trial court found that the plaintiff failed to present evidence of a “ ‘municipal intention to abandon its plans for future development of the municipal property . . . .’Id., 80.” The court concluded that “[s]ince the plaintiff has failed to present evidence that the [association] has abandoned its intention to hold the subject strip of land for public purposes, the court must conclude that the plaintiff has failed to rebut the presumption that the [association] holds the subject strip of land for public use.”

In support of its ruling, the court cited Kistler v. Gnazzo, 33 Conn. App. 943, 638 A.2d 1101, cert. denied, 229 Conn. 915, 642 A.2d 1209 (1994), a summary affirmance involving an action to enjoin the defendants in that case from interfering with the plaintiffs’ use of certain real property. Kistler cites American Trading Real Estate Properties, Inc., which, indeed, supports the foundation sought to be laid by the trial court. The flaw in the infrastructure sought to be constructed by the court is that these cases are distinguishable. American Trading Real Estate Properties, Inc., and Kistler involve appeals from judgments rendered after trial while the present case involves an appeal from the judgment rendered following the granting of a motion for summary judgment. The court, quite appropriately, found that a genuine issue of material fact was created by the parties as to whether the strip of land was, and is, held for public use, but then decided that question of fact by holding that the plaintiff failed to rebut the presumption that the association holds the land for public use. The plaintiff could proceed no further with specific evidence.

To defeat, a motion for summary judgment, a nonmovant must recite specific facts that contradict those stated in the movant’s documents to show there exists a genuine issue of fact for trial. Chase Manhattan Bank v. CDC Financial Corp., 54 Conn. App. 705, 708, 736 A.2d 938, cert. denied, 251 Conn. 912, 739 A.2d 1247 (1999). The failure to do so, however, is not fatal if the only evidence available to the nonmovant is within the personal knowledge of the movant. See Nolan v. Borkowski, 206 Conn. 495, 504, 538 A.2d 1031 (1988). The affidavit of the president, of the association stated that the association had recently considered constructing a sidewalk on the subject strip of land. Certainly, competent evidence of the intention of the association as to an allegation of abandonment may be obtained only from the association. Once there was a finding by the court that a genuine issue of fact existed for trial, the motion for summary judgment had no viability.

The judgment is reversed and the case is remanded for further proceedings.

In this opinion the other judges concurred.

       The defendants are Jack Sebastian, Shirley Sebastian, Groton Long Point Association, Inc., and Geneva DeLabry, secretary of the association.

       The plaintiff presented three claims in her brief; however, because this issue is dispositive, we do not address the remaining claims.

       General Statutes § 47-37 provides: “No person may acquire a right-of-way or any other easement from, in, upon or over the land of another, by the adverse use or eqjoyment thereof, unless the use has been continued uninterrupted for fifteen years.”

       The association is a municipal corporation pursuant to an act of the General Assembly dated May 19, 1921.


author: HENNESSY, J.

text:
    STATE OF CONNECTICUT v. CECIL LIPSCOMB
    (AC 19353)
    Lavery, Hennessy and Daly, Js.

      Argued February 18
    officially released June 13, 2000

      Jon L. Schoenhom, with whom, on the brief, was Jeanne M. Zulick, for the appellant (defendant).

      Christopher T. Godialis, assistant state’s attorney, with whom, on the brief, were James E. Thomas, state’s attorney, and Adam Scott, assistant state’s attorney, for the appellee (state).

       The listing of judges reflects their seniority status on this court as of the date of oral argument.

   Opinion

HENNESSY, J.

The defendant, Cecil Lipscomb, appeals from the judgment of conviction of operating a motor vehicle while his license was under suspension, claiming that the trial court improperly denied his motion to suppress evidence. Specifically, the defendant claims that he was seized by East Hartford police officers without any reasonable or articulable suspicion of criminal activity and that the subsequent discovery that he was operating a motor vehicle while his license was under suspension should be suppressed as the fruit of an unreasonable search and seizure. We agree and reverse the judgment of the trial court.

The following facts are relevant to the resolution of this appeal. Shortly before midnight on March 17, 1998, East Hartford police officers Mark Allen and William Spragg were in a marked police vehicle in the Main Street area of East Hartford. Spragg was driving at that time, while Allen was riding as a front seat passenger. Allen observed a Ford Bronco turn from Main Street onto Connecticut Boulevard. He then saw a woman, Stephanie Beaulieu, standing on the corner waving her arm to the Bronco. After Allen observed this action, he told Spragg that Beaulieu was a prostitute. The officers then observed Beaulieu get into the Bronco, which pulled over to pick her up and subsequently drove away. The officers testified that this particular area in East Hartford is a high density, “high crime” area known for car thefts, prostitution, burglaries and robberies.

Allen also testified that he had observed Beaulieu in the past on two different occasions. Once, he saw her in the Main Street area during a motor vehicle stop in which she was the passenger in a car driven by a man. No criminal activity was seen at that time. The second occasion that Allen saw Beaulieu occurred when he was riding in a police vehicle with Officer Tracy O’Connell of the East Hartford police, who pointed Beaulieu out and said that she was a prostitute. Allen testified that it was his belief that O’Connell previously had arrested Beaulieu for prostitution. It was later determined that Beaulieu had no prior arrests or convictions for prostitution.

Spragg then proceeded to follow the Bronco onto Lynn Street, a dead-end street, where the officers motioned to the operator of the Bronco to stop. There were no motor vehicle violations observed at any time before the Bronco was stopped. Allen confronted the operator of the Bronco, the defendant, and asked for his license and registration. After a check, Allen found that the defendant’s motor vehicle license was suspended and charged him with a violation of General Statutes § 14-215 (c).

The defendant filed a motion to suppress the evidence of license suspension claiming that he was stopped by the police without a reasonable and articulable suspicion of criminal activity in violation of the federal and state constitutions. The court denied the motion, and the defendant subsequently pleaded nolo contendere with the right to appeal the denial of the motion to suppress pursuant to General Statutes § 54-94a.* *

The defendant claims on appeal that the police lacked a reasonable and articulable basis to stop his vehicle, and that the ensuing detention violated his rights pursuant to the fourth and fourteenth amendments to the United States constitution, and article first, § 7, of the constitution of Connecticut. The state argues in response that the investigatory stop of the defendant was justified on the basis of the facts that Allen thought Beaulieu was a prostitute, Beaulieu was engaged in conduct typical of a prostitute and the area was known for prostitution. We agree with the defendant that the facts of this case do not reveal a reasonable and articula-ble basis for a police stop.

“The determination of whether a reasonable and arti-culable suspicion exists involves a two-part analysis: (1) whether the underlying factual findings of the trial court are clearly erroneous; and (2) whether the conclusion that those facts gave rise to such a suspicion is legally correct. See State v. Cofield, 220 Conn. 38, 44, 595 A.2d 1349 (1991). The trial court’s conclusions must stand unless they are legally and logically inconsistent with the facts. . . . Id.; see State v. Lasher, 190 Conn. 259, 267, 460 A.2d 970 (1983). . . . State v. Kyles, [221 Conn. 643, 660-61, 607 A.2d 355 (1992)].” (Internal quotation marks omitted.) State v. Wilkins, 240 Conn. 489, 496, 692 A.2d 1233 (1997).

“Article first, §§ 7 and 9 of our state constitution permit a police officer in appropriate circumstances and in an appropriate manner to detain an individual for investigative purposes even though there is no probable cause to make an arrest. State v. Mitchell, [204 Conn. 187, 195, 527 A.2d 1168, cert. denied, 484 U.S. 927, 108 S. Ct. 293, 98 L. Ed. 2d 252 (1987)]; State v. Lamme, 216 Conn. 172, 184, 579 A.2d 484 (1990). In determining whether the detention was justified in a given case, a court must consider if [b]ased upon the whole picture the detaining officers [had] a particularized and objective basis for suspecting the particular person stopped of criminal activity. State v. Scully, 195 Conn. 668, 674, 490 A.2d 984 (1985), quoting United States v. Cortez, 449 U.S. 411, 417-18, 101 S. Ct. 690, 66 L. Ed. 2d 621 (1981). A court reviewing the legality of a stop must therefore examine the specific information available to the police officer at the time of the initial intrusion and any rational inferences to be derived therefrom. See State v. Braxton, 196 Conn. 685, 689, 495 A.2d 273 (1985). These standards, which mirror those set forth by the United States Supreme Court in Terry v. Ohio, [392 U.S. 1, 88 S. Ct. 1868, 20 L. Ed. 2d 889 (1968)], with regard to fourth amendment analysis, govern the legality of investigatory detentions under article first, §§ 7 and 9 of our state constitution. State v. Lamme, supra [184]; State v. Scully, supra, 674-75 n.12.” (Internal quotation marks omitted.) State v. Oquendo, 223 Conn. 635, 654, 613 A.2d 1300 (1992).

“Police have the right to stop for investigation short of arrest where a police officer observes unusual conduct which leads him reasonably to conclude in light of his experience that criminal activity may be afoot. . . . [I]n justifying the particular intrusion the police officer must be able to point to specific and articulable facts which, taken together with rational inferences from those facts, reasonably warrant that intrusion.” (Citations omitted; internal quotation marks omitted.) State v. Watson, 165 Conn. 577, 584-85, 345 A.2d 532 (1973), cert. denied, 416 U.S. 960, 94 S. Ct. 1977, 40 L. Ed. 2d 311 (1974). “[A] police officer’s decision to detain an individual for investigatory purposes must be predicated on more than a mere hunch. State v. Scully, supra, [195 Conn.] 675; State v. Aversa, 197 Conn. 685, 691, 501 A.2d 370 (1985).” (Internal quotation marks omitted.) States Oquendo, supra, 223 Conn. 656. “ ‘Aninvestigatory stop must be justified by some objective manifestation that the person stopped is, or is about to be, engaged in criminal activity.’ ” State v. Scully, supra, 674.

We conclude that a woman waving a car down and subsequently getting into it in an area known for prostitution does not form the proper basis for rational inferences that warrant a police officer’s intrusion. The state argues that there was a reasonable and articulable suspicion to detain the defendant because the officers (1) were aware of the area’s reputation for prostitution, (2) had information that the woman was a prostitute and (3) saw the woman engage in conduct that is consistent with the modus operandi of prostitutes.

Our Supreme Court has recently held in State v. Donahue, 251 Conn. 636, 646-47, 742 A.2d 775 (1999) (en banc), that police officers are not justified in stopping people because they are in a high crime area. See also State v. Oquendo, supra, 223 Conn. 655 n. 11 (history of criminal activity in locality does not justify suspension of constitutional rights of everyone in locality). The state claims, however, that the officers’ suspicion in the present case was fueled by additional factors besides the fact that the actions took place in an area known for prostitution.

For instance, the state claims that the officers had information that Beaulieu was a prostitute. The trial court also found that Allen had knowledge that Beaulieu was a prostitute. A review of the record reveals that Allen testified that O’Connell told him on some prior occasion that Beaulieu was arrested for prostitution. A subsequent police record search revealed, however, that Beaulieu was never convicted of or arrested for prostitution. Allen also testified that he had seen Beau-lieu on a prior occasion on a motor vehicle stop where she was a passenger in a car driven by another gentleman. No arrests were made at that time. Any inference that Beaulieu was a prostitute based on these two factors is tenuous at best. Allen did not have personal knowledge that Beaulieu was a prostitute. His knowledge was given to him by O’Connell. O’Connell was never asked to testify as to the basis he had for informing Allen that Beaulieu was a prostitute. We are unable to discern whether the information is rumor or has some objective basis in fact. In addition, finding Beaulieu in a car with a man does not lead to the inference that she was a prostitute.

Indeed, even if we assume arguendo that Beaulieu was a prostitute, her actions of waving to the defendant and getting into his car do not amount to “furtive conduct” that should warrant intrusion by the police. Compare State v. Januszewski, 182 Conn. 142, 149-50, 438 A.2d 679 (1980), cert. denied, 453 U.S. 922, 101 S. Ct. 3159, 69 L. Ed. 2d 1005 (1981) (two people in car in commuter parking lot engaged in furtive conduct supported reasonable and articulable suspicion of criminal activity). Such action does not qualify as an objective manifestation of imposing criminal activity to warrant a detention by the police.

Looking at the totality of the circumstances, we are unpersuaded that the informational basis given by the state to justify the defendant’s detention is sufficient to support a reasonable and articulable suspicion. “In a close case . . . the balance ought to be struck on the side of the freedom of the citizen from governmental intrusion. To conclude otherwise would be to elevate society’s interest in apprehending offenders above the right of citizens to be free from unreasonable stops.” State v. Oquendo, supra, 223 Conn. 657. Because there is insufficient evidence to yield specific and articulable facts to make the defendant’s detention constitutional, we conclude that the trial court improperly denied the defendant’s motion to suppress.

The judgment is reversed and the case is remanded with direction to grant the defendant’s motion to suppress and for further proceedings in accordance with law.

In this opinion the other judges concurred.

       According to Spragg, the Bronco had turned around in the dead-end street and was moving toward the officers when Spragg motioned the vehicle to stop. According to the state, however, the Bronco was parked at the time the police approached. This fact is in direct contradiction to Spragg’s testimony, and most important, to the trial court’s finding of facts.

       General Statutes § 54-94a provides in relevant part: “When a defendant . . . enters a plea of nolo contendere conditional on the right to take an appeal from the court’s denial of the defendant’s motion to suppress evidence based on an unreasonable search or seizure . . . the defendant after the imposition of sentence may file an appeal within the time prescribed by law. The issue to be considered in such an appeal shall be limited to whether it was proper for the court to have denied the motion to suppress . . . .”

       The fourth amendment to the United States constitution provides in relevant part: “The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated . . . .” The fourth amendment to the United States constitution is made applicable to the states by the fourteenth amendment. Mapp v. Ohio, 367 U.S. 643, 655, 81 S. Ct. 1684, 6 L. Ed. 2d 1081 (1961).

       Article first, § 7, of the constitution of Connecticut provides in relevant part: “The people shall be secure in their persons, houses, papers and possessions from unreasonable searches or seizures . . . .”

       Because we conclude that the defendant’s detention was in violation of article first, § 7, of the constitution of Connecticut, we need not address the defendant’s contention that his rights pursuant to the United States constitution were violated. See State v. Donahue, 251 Conn. 636, 644 n.10, 742 A.2d 775 (1999).

       The state does not contest in the present case that there was a seizure of the defendant by the police officers.

       The state also contends that the finding of reasonable and articulable suspicion is supported by the fact that the woman and the defendant were found by the officers parked on a dead-end street. The court’s memorandum of decision and the record do not support the fact that the vehicle was parked. See footnote 2.


author: DALY, J.

text:
    STATE OF CONNECTICUT v. JOHN RUSSELL
    (AC 18163)
    Schaller, Mihalakos and Daly, Js.
    Argued January 20—officially
    officially released June 20, 2000

      Donald D. Dakers, special public defender, for the appellant (defendant).

      Michele C. Lukban, assistant state’s attorney, with whom, on the brief, were Mary M. Galvin, state’s attorney, and John Kerwin, assistant state’s attorney, for the appellee (state).
   Opinion

DALY, J.

The defendant, John Russell, appeals from the judgment of the trial court revoking his probation pursuant to General Statutes (Rev. to 1997) § 53a-32 and committing him to the custody of the commissioner of correction for a period of sixty months. On appeal, the defendant claims that (1) the court abused its discretion by improperly considering his prior convictions in revoking his probation and in determining his sentence and (2) the prosecutor engaged in misconduct. We affirm the judgment of the trial court.

The following facts are relevant to this appeal. In 1994, the defendant was convicted of assault in the third degree in violation of General Statutes § 53a-61, risk of injury to a child in violation of General Statutes § 53-21 and failure to appear in the first degree in violation of General Statutes § 53a-172, and sentenced to seven and one-half years imprisonment, execution suspended with five years probation. On February 13,1997, the victim, who at that time was a friend of the defendant, loaned her automobile to the defendant to have the transmission repaired. The defendant returned the vehicle to the victim’s place of employment in Orange, where the victim was waiting in front of the building. Upon smelling alcohol on the defendant’s breath, the victim removed the keys from the ignition and refused to allow the defendant to drive the vehicle on a personal errand. In response, the defendant opened the hood of the vehicle and threatened to pull out the wires. The victim returned the keys to the defendant, who ran to a nearby brook intending to throw the keys into the water. The victim followed and a scuffle ensued during which the defendant threw the victim to the ground and punched her several times. The police were summoned and the defendant was arrested after he was found hiding under a nearby bam, and he was charged with breach of the peace and threatening.

Thereafter, the defendant was arrested on four other instances on charges of threatening, breach of the peace, criminal trespass, harassment and violating a protective order. On October 29, 1997, after speaking with the prosecutor, the probation officer initiated violation of probation proceedings against the defendant, citing the five instances where the defendant had been arrested during his probationary period. On December 24,1997, the defendant filed a motion for a speedy trial.

Following a revocation of probation hearing on January 12 and January 16, 1998, the court concluded that the defendant had violated the terms of his probation and ordered him to serve sixty months of his previously suspended sentence. In explaining its decision, the court alluded to the five arrests that occurred during probation, to the defendant’s forty-one prior convictions, including a felony conviction in October, 1994, and to three assault convictions involving the same victim that occurred during the probationary period. Several days later, the charges associated with the five arrests that occurred during probation were nolled by the state and dismissed by the court. This appeal followed.

I

The defendant first claims that the court abused its discretion by improperly considering his entire criminal history in revoking his probation and determining his sentence. The defendant concedes that he failed to preserve this claim at trial and now asks for review pursuant to State v. Golding, 213 Conn. 233, 239-40, 567 A.2d 823 (1989).

Under Golding, “a defendant can prevail on a claim of constitutional error not preserved at trial only if all of the following conditions are met: (1) the record is adequate to review the alleged claim of error; (2) the claim is of constitutional magnitude alleging the violation of a fundamental right; (3) the alleged constitutional violation clearly exists and clearly deprived the defendant of a fair trial; and (4) if subject to harmless error analysis, the state has failed to demonstrate harmlessness of the alleged constitutional violation beyond a reasonable doubt.” (Emphasis in original.) Id. “The first two conditions are determinations of whether a defendant’s claim will be reviewed, and the third condition involves a review of the claim itself. . . . We may . . . dispose of the claim by focusing on the condition that appears most relevant under the circumstances of the case.” (Citation omitted; internal quotation marks omitted.) State v. Dunbar, 37 Conn. App. 338, 341, 656 A.2d 672, cert. denied, 233 Conn. 906, 657 A.2d 644 (1995).

In the present case, the record is adequate to review the defendant’s claim. The defendant also has alleged a claim of constitutional magnitude. “Due process requires that certain minimum procedural safeguards be observed in the process of revoking the conditional liberty created by probation. . . . This is so because the loss of liberty entailed is a serious deprivation requiring that the [probationer] be accorded due process.” (Citations omitted; internal quotation marks omitted.) State v. Gaston, 56 Conn. App. 125, 131, 741 A.2d 344 (1999). The defendant, however, has failed to show that a constitutional violation clearly exists and clearly deprived him of a fair trial.

A probation revocation hearing has two distinct components. “The trial court must first conduct an adversarial evidentiary hearing to determine whether the defendant has in fact violated a condition of probation. ... If the trial court determines that the evidence has established a violation of a condition of probation, then it proceeds to the second component of probation revocation, the determination of whether the defendant’s probationary status should be revoked. On the basis of its consideration of the whole record, the trial court may continue or revoke the sentence of probation or conditional discharge . . . and, if such sentence is revoked, require the defendant to serve the sentence imposed or impose any lesser sentence. ... In making this second determination, the trial court is vested with broad discretion.” (Citations omitted; internal quotation marks omitted.) State v. Samuel, 57 Conn. App. 64, 68-69, 747 A.2d 21 (2000).

The defendant’s claim concerns the court’s determination that his probation should be revoked and, therefore, we are concerned only with the second component. In concluding that the beneficial effects of probation were no longer being served and that the defendant’s probation should be revoked, the court considered evidence of the defendant’s criminal convictions that occurred before and during his probationary period but that were unrelated to the charges that formed the basis for the court’s finding that he had violated a condition of probation. “A revocation proceeding is held to determine whether the goals of rehabilitation thought to be served by probation have faltered . . . .” State v. Davis, 29 Conn. App. 801, 811, 618 A.2d 557 (1993), rev’d on other grounds, 229 Conn. 285, 641 A.2d 370 (1994). “In making its . . . determination, the trial court is entitled to draw reasonable and logical inferences from the evidence. ... It may also consider the types of information properly considered at an original sentencing hearing because a revocation hearing is merely a reconvention of the original sentencing hearing. . . . The court may, therefore, consider hearsay information, evidence of crimes for which the defendant was indicted but neither tried nor convicted, evidence of crimes for which the defendant was acquitted, and evidence of indictments or informations that were dismissed. State v. Huey, 199 Conn. 121, 126, 505 A.2d 1242 (1986) . . . .” (Citation omitted; internal quotation marks omitted.) State v. Davis, supra, 811.

In the present case, in determining whether the defendant’s probation should be revoked, the court properly considered the evidence of the defendant’s criminal history and determined that he was not fit for probation. The defendant’s claim fails to satisfy the third prong of Golding.

II

The defendant next claims that the prosecutor engaged in misconduct that violated his constitutional right to a trial on the underlying offenses by contacting the probation officer to initiate the violation of probation proceedings after the defendant had requested a speedy trial, and then nollying the outstanding charges against him before a trial could be held. He argues that, due to his lengthy incarceration on the pending charges, it was especially important that he not be deprived of his constitutional right to a trial on those charges, and that a trial might have resulted in his acquittal or, if he had been convicted, a significantly lighter sentence than the sixty months imposed at the revocation of probation hearing. The defendant again requests review of his unpreserved claim under State v. Golding, supra, 213 Conn. 239-40.

Here, the record is adequate for purposes of review and the defendant’s claim of prosecutorial misconduct is of constitutional magnitude alleging the violation of a fundamental right. The court, however, “will not afford Golding review to claims of prosecutorial misconduct where the record does not disclose a pattern of misconduct pervasive throughout the trial or conduct that was so blatantly egregious that it infringed on the defendant’s right to a fair trial.” (Internal quotation marks omitted.) State v. Ricketts, 37 Conn. App. 749, 762, 659 A.2d 188, cert. denied, 234 Conn. 913, 660 A.2d 355, cert. denied, 516 U.S. 977, 116 S. Ct. 481, 113 L. Ed. 2d 409 (1995).

“Prosecutors . . . have a wide latitude and broad discretion in determining when, who, why and whether to prosecute for violations of the criminal law. . . . This broad discretion, which necessarily includes deciding which citizens should be prosecuted and for what charges they are to be held accountable . . . rests largely on the recognition that the decision to prosecute is particularly ill-suited to judicial review. Such factors as the strength of the case, the prosecution’s general deterrence value, the [state’s] enforcement priorities, and the case’s relationship to the [state’s] overall enforcement plan are not readily susceptible to the kind of analysis the courts are competent to undertake. Judicial supervision in this area, moreover, entails systemic costs of particular concern. Examining the basis of a prosecution delays the criminal proceeding, threatens to chill law enforcement by subjecting the prosecutor’s motives and decisionmaking to outside inquiry, and may undermine prosecutorial effectiveness by revealing the [state’s] enforcement policy. All these are substantial concerns that make the courts properly hesitant to examine the decision whether to prosecute. . . . Furthermore, [judicial deference to the decisions of these executive officers . . . also stems from a concern not to unnecessarily impair the performance of a core executive constitutional function. . . . For these reasons, unless constitutional or other compelling reasons require otherwise, [the court abstains] from setting policy for the performance of the prosecutorial function.” (Citations omitted; internal quotation marks omitted.) State v. Kinchen, 243 Conn. 690, 699-700, 707 A.2d 1255 (1998).

In the present case, the record does not support a claim that the defendant was clearly deprived of a fair trial. The violation of probation proceedings were initiated in October, 1997, and the defendant did not request a speedy trial until December, 1997. The defendant’s claim of prosecutorial misconduct on the ground that the violation of probation proceedings were initiated after he requested a speedy trial is, therefore, not supported by the facts. Moreover, even if the facts were as alleged by the defendant, giving due deference to the prosecutor’s broad discretion in deciding to prosecute; see id.; we conclude that the defendant’s constitutional rights were not abridged merely because the prosecutor discussed initiating a violation of probation proceeding with the probation officer after the defendant requested a speedy trial, or decided to nolle the pending charges against the defendant following the revocation hearing but before the trial could be held. As for scheduling the hearing prior to the trial, “[a] revocation of probation proceeding based upon a violation of a criminal law need not be deferred until after a disposition of the charges underlying the arrest because the purpose of a probation revocation hearing is to determine whether a defendant’s conduct constituted an act sufficient, to support a revocation of probation . . . rather than whether the defendant had, beyond a reasonable doubt, violated a criminal law.” (Citation omitted; internal quotation marks omitted.) State v. Rollins, 51 Conn. App. 478, 484, 723 A.2d 817 (1999).

Accordingly, we conclude that the defendant has failed to show that the prosecutor’s conduct was blatantly egregious or part of a pattern of misconduct pervasive throughout the trial such that it clearly deprived the defendant of a fair trial. Therefore, his claim pursuant to Golding must fail. See State v. Golding, supra, 213 Conn. 239-40; see also 1 B. Holden & J. Daly, Connecticut Evidence (Sup. 1999) § 12.

The judgment is affirmed.

In this opinion the other judges concurred.

       General Statutes (Rev. to 1997) § 53a-32 provides in relevant part: “(a) At any time during the period of probation . . . the court or any judge thereof may issue a warrant for the arrest of a defendant for violation of any of the conditions of probation .... Any such warrant shall authorize all officers ... to return the defendant to the custody of the court .... After making such an arrest . . . the probation officer shall immediately so notify the court or any judge thereof. Thereupon, or upon an arrest by warrant as herein provided, the court shall cause the defendant to be brought before it . . . for a hearing on the violation charges. . . .
      “(b) If such violation is established, the court may: (1) Continue the sentence of probation or conditional discharge; (2) modify or enlarge the conditions of probation or conditional discharge; (3) extend the period of probation or conditional discharge, provided the original period with any extensions shall not exceed the periods authorized by section 53a-29; or (4) revoke the sentence of probation or conditional discharge. If such sentence is revoked, the court shall require the defendant to serve the sentence imposed or impose any lesser sentence. No such revocation shall be ordered, except upon consideration of the whole record and unless such violation is established by the introduction of reliable and probative evidence and by a preponderance of the evidence.”

       The four arrests occurred on the following dates: criminal trespass and breach of the peace on February 15, 1997; threatening, breach of the peace and violation of aprotective order onMarch 10,1997; violation of aprotective order on April 3, 1997; and harassment and violation of a protective order on April 17, 1997. The last two arrests resulted from a series of telephone calls that the defendant made to the victim after he was incarcerated.

       None of the three convictions resulted in a violation of probation charge.

       In his argument before this court, the defendant conceded that the prosecutor’s actions, in and of themselves, were not improper, but nevertheless claimed that the initiating of the revocation of probation proceedings before a trial was held on the underlying offenses deprived him of his right to a trial on the underlying offenses.


text:
    STATE OF CONNECTICUT v. JAMIE ST. PIERRE
    (AC 18428)
    O’Connell, C. J., and Laveiy and Hennessy, Js.

      Argued January 13
    officially released June 20, 2000

      Louis S. Avilabile, special public defender, for the appellant (defendant).

      Margaret Gaffney Radionovas, assistant state’s attorney, with whom, on the brief, were John A. Con-nelly, state’s attorney, and Cynthia Serafini, assistant state’s attorney, for the appellee (state).

       The listing of judges reflects their seniority status on this court as of the date of oral argument.

   Opinion

HENNESSY, J.

The defendant, Jamie St. Pierre, appeals from the judgment of conviction, rendered after a jury trial, of robbery in the first degree in violation of General Statutes § 53a-134 (a) (4) and larceny in the second degree in violation of General Statutes § 53a-123 (a) (3). On appeal, the defendant claims that the court improperly (1) found that the evidence was sufficient to prove that the defendant threatened the use of what he represented by words or conduct to be a firearm, (2) accepted the jury’s verdict of guilty of larceny in the second degree, (3) denied the defendant’s post-verdict motion for discovery and examination of evidence by a court-appointed expert and (4) denied the defendant’s motion for a new trial on the ground that certain identification evidence should have been excluded as the unreliable product of unnecessarily suggestive identification procedures. We affirm the judgment of the trial court.

The jury reasonably could have found the following facts. At approximately 1:30 a.m. on April 12, 1996, the defendant, wearing a hooded gray sweatshirt with the hood tied tightly around his face, dark pants, a dark jacket and black footwear, entered a convenience store in Watertown. The defendant approached the clerk behind the counter, Christopher Brown, and stated, “This is a holdup.” Brown replied, “Are you serious?” The defendant answered, “Yes, I am,” and then gestured by raising his hand inside his jacket from beneath the counter to counter level while at all times keeping his hand and wrist covered by his jacket. On the basis of the comments and gestures of the defendant, Brown presumed that the defendant had a weapon. Brown opened the cash register and gave the defendant the money that was inside. The defendant took the money while keeping the one hand in his jacket and then left. The defendant’s actions were recorded on the store’s surveillance videotapes.

I

The defendant first claims that the court improperly denied his motion for judgment of acquittal because there was insufficient evidence to prove an essential element of robbery in the first degree, namely, that the defendant threatened the use of what he represented by words or conduct to be a firearm. We disagree.

“When reviewing sufficiency of the evidence claims, we impose a two part analysis. First, we construe the evidence in the light most favorable to sustaining the verdict. . . . Second, we determine whether, from that evidence and all the reasonable inferences which it yields, a [trier of fact] could reasonably have concluded that the defendant was guilty beyond a reasonable doubt. . . . State v. Rivera, 32 Conn. App. 193, 200-201, 628 A.2d 996, cert. denied, 227 Conn. 920, 632 A.2d 698 (1993). In this process of review, it does not diminish the probative force of the evidence that it consists, in whole or in part, of evidence that is circumstantial rather than direct. State v. Salz, 226 Conn. 20, 31, 627 A.2d 862 (1993). The jury’s function as the trier of fact is to draw all reasonable and logical inferences from the facts as it finds them to exist. State v. Wideman, 36 Conn. App. 190, 203, 650 A.2d 571 (1994), cert. denied, 232 Conn. 903, 653 A.2d 192 (1995). As a reviewing court, we must decide whether, on the facts established and inferences that could be reasonably drawn from those facts, the jury could reasonably have concluded that the cumulative effect of the evidence established the defendant’s guilt beyond a reasonable doubt. State v. Jarrett, 218 Conn. 766, 770-71, 591 A.2d 1225 (1991).” (Internal quotation marks omitted.) Slate v. Torrence, 37 Conn. App. 482, 485, 657 A.2d 654 (1995).

Robbery in the first degree, pursuant to § 53a-134 (a) (4), requires that a person in the course of committing a robbery display or threaten the use of what he represents by his words or conduct to be a pistol, revolver, rifle, shotgun, machine gun or other firearm. In the present case, Brown testified that after the defendant made the demand for money, the defendant raised his right arm, which was covered by a jacket, onto the counter while stating that he was serious. Brown then performed a demonstration for the jury as to what movements the defendant had made. When Brown was asked whether he knew what kind of weapon the defendant had, Brown replied, “No, I have no idea what the weapon could have been,” but asserted that he thought that the defendant was aimed. Officer Tim Gavallas of the Watertown police department, who had gone to the convenience store after Brown reported the robbery, testified that Brown told him that the defendant made movements suggesting he had a gun. Gavallas also discussed what he saw when he viewed the store surveillance videotape and testified that he saw the defendant put his hand under his shirt and “motion like he had a gun.”

In determining whether the defendant threatened to use what he represented by words or conduct to be a firearm, “ [t]he test is not whether the defendant actually had a firearm; State v. Arena, 33 Conn. App. 468, 476, 636 A.2d 398 (1994); but whether he displayed or threatened the use of what he represented by his conduct to be a firearm. General Statutes § 53a-134 (a) (4).” State v. Torrence, supra, 37 Conn. App. 486.

The defendant claims that the facts in this case fall within the parameters set forth in State v. Aleksiewicz, 20 Conn. App. 643, 569 A.2d 567 (1990), in which the court found the evidence insufficient to establish that the assailant had threatened the use of a gun. In this case, although Brown testified that the defendant had a weapon, he “had no idea what the weapon could have been.” In Aleksiewicz, the defendant, holding his hand flat against his abdomen inside his jacket, approached the driver’s side of the victim’s car and grabbed some of the cash the victim had just withdrawn from a bank’s automatic teller machine. In doing so, the defendant said, “ ‘Give me that money or you’re dead.’ ” Id., 645. There was no testimony by the victim that he knew or believed that the defendant had a firearm. This court concluded that this evidence did “not definitely establish the firearm element of this crime because no gun was shown and no specific indication was given, by either the defendant’s words or actions, that he had in his possession or would use specifically a gun to accomplish his threat.” Id., 647.

In the present case, however, the defendant announced, “This is a holdup,” and raised his right arm which remained hidden in his jacket from beneath the counter to counter level, while stating that he was serious about holding up the store. On the basis of that motion, Brown testified that he presumed that the defendant was holding a weapon under his jacket and that he was armed. We conclude that the defendant’s words and the upward motion of his arm in his jacket, “under the circumstances as they existed, may properly have been considered factors consistent with the representation and threatened use of a firearm.” State v. Torrence, supra, 37 Conn. App. 486. Accordingly, we conclude that the court properly denied the defendant’s motion for judgment of acquittal as to the offense of robbery in the first degree because the jury reasonably could have concluded that the cumulative effect of the evidence established the defendant’s guilt beyond a reasonable doubt.

II

The defendant next claims that the court improperly accepted the jury’s verdict of guilty on the offense of larceny in the second degree. Specifically, the defendant contends that when the jury evidenced some confusion concerning its understanding of the degrees of larceny, the court improperly failed to give the jury additional instructions, and rather, invited the jury to return to the jury room to resume deliberations on the larceny count. When the jury returned, it found the defendant guilty of larceny in the second degree as charged. The defendant moved for a mistrial on the ground that the jury was confused and did not know what it was doing. The court denied the motion.

“The decision as to whether to grant a motion for a mistrial ... is one that requires the trial court to exercise its judicial discretion. . . . Our review of the trial court’s exercise of its discretion is limited to questions of whether the court correctly applied the law and could reasonably have concluded as it did. . . . Every reasonable presumption will be given in favor of the trial court’s ruling. ... It is only when an abuse of discretion is manifest or where an injustice appears to have been done that a reversal will result from the trial court’s exercise of discretion.” (Citations omitted.) State v. Lucci, 25 Conn. App. 334, 341-42, 595 A.2d 361, cert. denied, 220 Conn. 913, 597 A.2d 336 (1991).

In addition to giving instructions on robbery in the first degree and larceny in the second degree, the court charged the jury on the lesser included offenses of robbery in the third degree and larceny in the sixth degree. During deliberations, the jury requested “a detailed explanation of the charges of count one and count two and ... an explanation of the lesser degrees.” The charge on count one and the lesser included offenses was then read back to the jury. Subsequently, the jury indicated that it had reached a verdict of guilty of robbery in the first degree and larceny in the second degree. The court stated, “I’ll accept the [verdict] and order that it be recorded.” The court then asked the jurors to “listen to your verdict as accepted and recorded.” The clerk then repeated the verdict to the jury and asked, “So say you, Mr. Foreperson, so say you all?” The foreperson replied, “You lost me a little bit on it.” The court then asked the foreperson if he had a question. The foreperson stated, “She confused me of the way she worded that entire thing.” The court responded, “All right. Let’s go back over it again, so that we have it clear. . . . Please do it from the beginning.” The clerk again asked the jurors whether they had agreed on a verdict, and the foreman replied, “Yes.” The clerk inquired as to whether the juiy had found the defendant guilty or not guilty of robbery in the first degree, and the foreman indicated, “Guilty.” The clerk then asked whether the jury had found the defendant guilty or not guilty of larceny in the second degree. The foreman responded, “The defendant is guilty, we found him, of the sixth degree.” The court then repeated the question of whether the defendant was guilty or not guilty of larceny in the second degree, to which the foreman responded, “Our verdict is guilty. I think the jury misunderstood as to the degrees. I think we need further explanation on that.” The court then declined to accept the jury’s verdict as to the second count.

After the court polled the jurors individually as to the first count, it accepted the verdict and ordered that it be recorded. The court then stated, “As to the second count, in view of your remarks, Mr. Foreperson, I decline to accept the verdict. I’ll invite you to return to the jury room and resume your deliberations with regard to count two. In accordance with all of my instructions.” The jury returned shortly thereafter with a verdict of guilty on the second count. The court individually polled each juror as to the verdict and accepted the verdict.

“The duty of the trial court [in a criminal case] is to instruct the juiy on the law applicable to the case. General Statutes § 54-89; Practice Book § 855 [now § 42-20], It is the duty of the court, in charging the jury in a criminal case, to give to them such instructions as may be required to enable them to understand the nature of the offense charged and the questions which they are to decide, to weigh the evidence applicable to such questions, and to intelligently decide them.” (Internal quotation marks omitted.) State v. Fletcher, 10 Conn. App. 697, 698-99, 525 A.2d 535 (1987), aff'd, 207 Conn. 191, 540 A.2d 370 (1988). “The defendant is entitled to a jury which is ‘correctly and adequately instructed.’ State v. Hines, 187 Conn. 199, 206, 445 A.2d 314 (1982).” State v. Fletcher, supra, 701.

Practice Book § 42-27 provides: “If the jury, after retiring for deliberations, request additional instructions, the judicial authority, after providing notice to the parties and an opportunity for suggestions by counsel, shall recall the jury to the courtroom and give additional instructions necessary to respond properly to the request or to direct the jury’s attention to a portion of the original instructions.” Our Supreme Court has recognized that “[clarification of the instructions when the jury or one of its members manifests confusion about the law is mandatory.” (Internal quotation marks omitted.) State v. Fletcher, 207 Conn. 191, 193, 540 A.2d 370 (1988).

The state contends that while the foreperson’s remarks arguably could have been treated as a request for additional instructions that would have required the court to provide such instructions, the court was within its discretion in directing the jury to retire for further deliberations because of a failure to reach a unanimous verdict. See General Statutes § 52-223; Practice Book § 42-31. We agree with the state. “When there is uncertainty as to the actual intent of the jury, the power of the court in a criminal case to return them to their room to render a clear and unambiguous verdict is, in this country, recognized as indispensable to an orderly and impartial administration of justice.” State v. Searles, 113 Conn. 247, 255, 155 A. 213 (1931). Moreover, there was no specific request by the jury for additional instructions on the larceny count. There also was no evidence that the jury was confused as to the subsequent guilty verdict on the charge of larceny in the second degree; the jurors were individually polled on the verdict and evinced no confusion.

In light of our limited standard of review of whether the court could reasonably have concluded as it did, we conclude that there has been no abuse of discretion by the court in sending the jury back for further deliberations in accordance with all of its instructions. The court properly accepted the jury’s verdict of guilty on the charge of larceny in the second degree.

Ill

The defendant next argues that the court improperly denied his postverdict motion for discovery and examination of evidence by a court-appointed expert. Specifically, the defendant moved that the court order the state to determine whether photographic or computer enhancement or other expert examination of the store surveillance tapes that recorded the act of robbery could produce relevant evidence as to his innocence. The defendant claims that the state’s failure to conduct such testing constitutes withholding exculpatory information in violation of Brady v. Maryland, 373 U.S. 83, 87, 83 S. Ct. 1194, 10 L. Ed. 2d 215 (1963). We disagree.

In dealing with such posttrial discovery motions, our Supreme Court has stated that “[i]n assessing the legal consequences of possible Brady violations, a court appropriately considers the probable effects of the nondisclosure on the result of the trial. The state’s failure to disclose exculpatory information will require a new trial only if there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome. State v. Shannon, 212 Conn. 387, 399, 563 A.2d 646, cert. denied, 493 U.S. 980, 110 S. Ct. 510, 107 L. Ed. 2d 512 (1989), quoting United States v. Bagley, [473 U.S. 667, 682, 105 S. Ct. 3375, 87 L. Ed. 2d 481 (1985)]. There is a difficulty inherent in measuring the effect of nondisclosure in the course of a lengthy trial with many witnesses and exhibits . . . this lack of certitude suggests deference by a reviewing court especially in the weighing of evidence. [State v. Pollitt, 205 Conn. 132, 149, 531 A.2d 125 (1987)] Thus, the trial court’s decision regarding the defendant’s petition for a new trial as a result of a Brady violation will be overturned only upon a finding of clear abuse of discretion. Demers v. State, [209 Conn. 143, 148, 547 A.2d 28 (1988)] .... State v. Shannon, supra, 400.” (Internal quotation marks omitted.) State v. Hammond, 221 Conn. 264, 293-94, 604 A.2d 793 (1992).

The defendant cites State v. Hammond, supra, 221 Conn. 295 n.13, for the proposition that the trial court has the authority to grant a postverdict motion for discovery in the interest of justice. The defendant argues that the failure of both the state and the defense to have the videotapes enlarged prior to the verdict should not be used as a bar to determining whether relevant exculpatory evidence is contained on those tapes. Rather, the defendant, quoting Hammond, argues that the state has a duty to “to ensure that all evidence tending to aid in the ascertaining of the truth be laid before the court, whether it be consistent with the contention of the prosecution that the accused is guilty.” (Internal quotation marks omitted.) Id., 292.

In Hammond, the trial court denied a postverdict motion for DNA profiling and blood testing of vaginal swabs and smears that were taken from a sexual assault victim on the grounds that the results would be cumulative because there already had been extensive tests performed of samples taken from the victim’s clothing. The Supreme Court remanded the case to the trial court for a determination of whether the posttrial discovery request as to the vaginal swabs of the victim should be granted in light of the Supreme Court’s determinations on appeal. Id., 295. The state had argued that the defendant made a tactical choice not to have the samples tested prior to the verdict. Our Supreme Court stated that “[t]his argument presupposes that it reasonably appeared during the trial that the samples were testable, and raises the inference that the state also made a tactical choice not to have the samples tested prior to the verdict. Such a tactical choice would plainly have been a breach of the prosecutor’s ethical duty to pursue relevant evidence even if it may be exculpatory.” Id., 291-92.

In the present case, however, the videotapes were made available to the defendant before trial, were introduced into evidence and were examined by the, jury. The court found that the state had disclosed all Brady material. Moreover, the court was not convinced that the jury would gain any additional knowledge from the testing of the videotapes. Unlike in Hammond, we are not presented with a case where a defendant requested discovery of evidence that would make his guilt physically impossible.

Brown was in a face-to-face situation with the perpetrator, identified him from a photograph shown to him by the police and described the clothing worn by the perpetrator, which matched clothing later found by the police at the defendant’s home. The need, after the juiy has rendered its verdict, for an enhancement of the store surveillance tapes or for an expert to examine them has not been demonstrated. Because the state disclosed all Brady material, because the defendant had the tapes available to him and could have conducted the requested testing prior to the trial, and because the jury viewed the tapes and determined their weight toward showing guilt or innocence, we conclude that the court did not abuse its discretion in denying the defendant’s posttrial motion for discovery.

IV

The defendant finally claims that the court improperly denied his motion for a new trial on the ground that certain identification evidence should have been excluded as the unreliable product of unnecessarily suggestive identification procedures. The court found that the two procedures used in the identifications by Brown were unnecessarily suggestive. The court found, however, on the basis of the totality of the circumstances that the identifications nevertheless were reliable. See Manson v. Brathwaite, 432 U.S. 98, 114, 97 S. Ct. 2243, 53 L. Ed. 2d 140 (1977); State v. Ramsundar, 204 Conn. 4, 10-11, 526 A.2d 1311, cert. denied, 484 U.S. 955, 108 S. Ct. 348, 98 L. Ed. 2d 374 (1987).

In his brief, the defendant claims that the identification procedures were unnecessarily suggestive. He makes no argument, however, as to the court’s finding that the procedures were nonetheless reliable. In light of the fact that the defendant has inadequately briefed his claim, we decline to afford appellate review. “We are not required to review issues that have been improperly presented to this court through an inadequate brief. . . . Analysis, rather than mere abstract assertion, is required in order to avoid abandoning an issue by failure to brief the issue properly.” (Citation omitted; internal quotation marks omitted.) State v. Henderson, 47 Conn. App. 542, 558, 706 A.2d 480, cert. denied, 244 Conn. 908, 713 A.2d 829 (1998).

The judgment is affirmed.

In this opinion the other judges concurred.

       The clerk stated, “Ladies and gentlemen of the jury, listen to your verdict as accepted and recorded. As to the first count of the information charging the defendant with the crime of robbery in the first degree in violation of General Statutes § 53a-134 (a) (4), you say the defendant is guilty. As to the second count of the information, the defendant is charged with the crime of larceny in the second degree in violation of General Statutes § 53a-123 (a) (3), you say the defendant is guilty. So say you, Mr. Foreperson, so say you all?”