author: DALY, J.

text:
    STATE OF CONNECTICUT v. DAVID COLLIC
    (AC 17028)
    Foti, Sullivan and Daly, Js.

      Argued January 22
    officially released October 5, 1999

      Kirstin B. Coffin, special public defender, for the appellant (defendant).

      Marjorie Allen Banister, assistant state’s attorney, with whom, on the brief, were Eugene Callahan, state’s attorney, Judith Rossi, senior assistant state’s attorney, And Richard J. Colangelo, Jr., assistant state’s attorney, for the appellee (state).
   Opinion

DALY, J.

The defendant, David Collie, appeals from the judgment of the trial court revoking his probation and imposing the remaining three years of his sentence. On appeal, the defendant claims that the court improperly (1) determined that he violated the terms of his probation, (2) admitted into evidence testimony concerning threatening letters and telephone calls and physical evidence concerning the letters despite their lack of relevance, (3) admitted the testimony and physical evidence concerning the threatening telephone calls and letters despite the state’s failure to disclose that evidence during discovery and (4) failed to set forth explicitly the facts supporting its finding of a violation of probation. We affirm the judgment of the trial court.

The following procedural history and facts are relevant to this appeal. In 1990, the defendant was convicted of robbery in the first degree in violation of General Statutes § 53a-134 (a) (3), larceny in the second degree in violation of General Statutes § 53a-123 (a) (1) and kidnapping in the first degree in violation of General Statutes § 53a-92 (a) (2) (B). On July 27, 1990, the trial court sentenced the defendant to a total effective sentence of fifteen years, execution suspended after twelve years and five years probation.

On July 21, 1995, the defendant was discharged to probation and, on July 24, 1995, he signed a document outlining the conditions of his probation. Among the conditions with which the defendant agreed to comply was a standard provision that he “not violate any criminal law of the United States, this state or any other state or territory.”

On February 28,1996, the defendant was served with an arrest warrant charging him with second degree sexual assault in violation of General Statutes § 53a-71. On March 5, 1996, pursuant to General Statutes § 53a-32, an arrest warrant was issued for the defendant for violating the conditions of his probation. In January, 1997, the defendant was tried to the court. The court acquitted him of the sexual assault charge and found that he had violated the terms of his probation.

The trial court found the following facts. The defendant was employed as a psychiatric technician in a substance abuse treatment unit at Silver Hill Hospital, New Canaan. Between January 26, and February 5,1996, the victim was a patient in the same substance abuse unit and was receiving treatment for dependence on prescription medication.

On the night of January 29 and in the early morning of January 30, 1996, the victim awoke in her room and discovered the defendant with his hand inside her pajamas, digitally penetrating her vagina and causing her pain. The defendant was fondling and kissing her breasts, and before leaving the room, said, “You’re just dreaming. This is normal when you’re detoxing.” After the defendant left the room, the victim noticed that her pajama buttons were undone, her vaginal area was sore and her left breast was wet.

On January 31, 1996, when the victim attended a group meeting at the hospital, she inquired about the confidentiality of the information revealed during the group sessions and about what would happen if a staff member had done something to her. A group leader informed her that the matter would have to be taken up with the staff member. The victim told the group leader that she could not discuss it further.

On February 3,1996, the victim reported the incident to a nurse, who referred her to a nurse supervisor. On February 5, 1996, the victim reported the incident to her treating psychiatrist. Thereafter, the police were contacted and the victim filed a report.

In the months following the incident, the victim had nightmares, suffered from anorexia and bulimia, had difficulty sleeping and functioning at work, and resumed her dependence on her medication. The state presented evidence that the victim’s behavior, including the delay in reporting, was consistent with rape trauma syndrome and, thus, was consistent with the conduct of victims of sexual assault.

The trial court, over the defendant’s objection, admitted testimony concerning threatening letters and telephone calls that he allegedly sent to the victim. The letters and telephone calls threatened her with physical harm unless she dropped the charges or refused to testify.

The trial court acquitted the defendant of the sexual assault charge, concluding that the state failed to present sufficient evidence to establish guilt beyond a reasonable doubt. The court found, however, that, when viewed under the less stringent preponderance of the evidence standard applicable to alleged probation violations, the evidence was sufficient to find that “the defendant probably did sexually assault or [have sexual] contact [with] the victim.” The court therefore found that the defendant had violated the terms of his probation. The court then ordered the defendant to serve the remaining three years of his sentence on his 1990 conviction. This appeal followed.

As a preliminary matter, we address the state’s claim that the defendant’s appeal should be dismissed as moot. The state’s claim is predicated on the fact that the trial court revoked the defendant’s probation on January 25, 1997, and ordered him to serve three years incarceration, a term that expired on January 13, 1998, the defendant apparently having been credited with pretrial incarceration time served. The state contends that because the defendant is no longer on probation, is no longer being supervised under the terms of probation that were imposed in the present case and has been discharged from the sentence of incarceration imposed by the trial court, no relief exists that this court could grant. We are not persuaded.

“Where the matter being appealed creates collateral consequences prejudicial to the interests of the appellant, we may retain jurisdiction despite developments during the pendency of the appeal that would otherwise render it moot. Housing Authority v. Lamothe, 225 Conn. 757, 765, 627 A.2d 367 (1993).” Thorn Americas, Inc. v. Torres, 34 Conn. App. 303, 306, 641 A.2d 386 (1994). Such situations include those in which an appellant has completed a sentence for a criminal offense and is appealing from the judgment revoking his probation. Id. Such an appeal is not moot “in light of the potential impact on the appellant’s ability to obtain probation in the future and to enjoy a good reputation in the community. State v. Smith, 207 Conn. 152, 160-62, 540 A.2d 679 (1988) (appeal dismissed as moot only after determination that there were no collateral consequences).” Thorn Americas, Inc. v. Torres, supra, 306. Indeed, the Smith court noted that “ ‘judicial notice can be taken of the “collateral disability” which accompanies the acquisition by an adult of a criminal record, and that such harm is of sufficient magnitude to overcome a charge of mootness.’ State v. Wilson, 41 Ohio St. 2d 236, 238, 325 N.E.2d 236 (1975) (Herbert, J., concurring).” State v. Smith, supra, 161.

Although the state asserts that no relief exists that this court could grant, we note that if we were to reverse the judgment of the trial court, the benefit to the defendant would be the removal from his record of a mark that would otherwise impact his ability to obtain probation in the future and affect his reputation in the community. Accordingly, we conclude that the defendant’s appeal is not moot.

I

The defendant first claims that there was insufficient evidence to support the trial court’s determination that he violated the terms of his probation. Specifically, the defendant claims that the court’s finding was not based on “reliable and probative” evidence as required by § 53a-32 (b). We disagree.

“[U]nder § 53a-32, 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 . . . 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. . . .

“To support a finding of probation violation, the evidence must induce a reasonable belief that it is more probable than not that the defendant has violated a condition of his or her probation. ... In making its factual determination, the trial court is entitled to draw reasonable and logical inferences from the evidence. . . . This court may reverse the trial court’s initial factual determination that a condition of probation has been violated only if we determine that such a finding was clearly erroneous. ... A finding of fact is clearly erroneous when there is no evidence to support it . . . or when although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed. ... In making this determination, every reasonable presumption must be given in favor of the trial court’s ruling .... A fact is more probable than not when it is supported by a fair preponderance of the evidence.” (Citations omitted; internal quotation marks omitted.) State v. Welch, 40 Conn. App. 395, 400-401, 671 A.2d 379, cert. denied, 236 Conn. 918, 673 A.2d 1145 (1996). In conducting our review of the trial court’s factual findings under the clearly erroneous standard, “[w]e cannot retry the facts or pass on the credibility of the witnesses.” (Internal quotation marks omitted.) In re Jessica S., 51 Conn. App. 667, 674, 723 A.2d 356, cert. denied, 251 Conn. 901, 738 A.2d 1090 (1999).

The defendant identifies five assertions of fact that he claims establish that the trial court’s finding was not based on “reliable and probative” evidence as required by § 53a-32 (b). Specifically, the defendant points out that (1) the victim was mentally unstable and under the influence of substances prior to and at the time of the incident and at the time of trial, (2) the victim failed to report the incident, in a “timely” manner, and the staff at Silver Hill Hospital did not notice anything unusual about the victim or the defendant immediately after the incident, (3) the defendant had no opportunity to commit such an assault because he almost certainly would be caught, since the victim’s room was “virtually a public place,” (4) the victim wanted to extend her stay at Silver Hill Hospital despite the presence of her attacker at the facility, and (5) although the state’s expert witness testified that the victim exhibited the effects of rape trauma syndrome, the victim also exhibited these same effects prior to the alleged incident. These assertions, however, challenge only the credibility of the victim. As we previously stated, in reviewing the trial court’s findings “[w]e cannot retry the facts or pass on the credibility of the witnesses.” (Internal quotation marks omitted.) Id.

Our review of the record reveals evidence that, when viewed under the less stringent preponderance of the evidence standard, supports the trial court’s finding that the defendant violated the conditions of his probation. Specifically, the victim testified that on the night of the alleged incident, she awoke in her room and discovered the defendant with his hand inside her pajamas, digitally penetrating her vagina and causing her pain. She testified that the defendant was fondling and kissing her breasts. The victim further testified that after the defendant left the room she noticed that her pajama buttons were undone, her vaginal area was sore and her left breast was wet. Accordingly, we conclude that the trial court’s determination that the defendant violated the conditions of his probation was supported by the evidence and was not improper.

II

The defendant next claims that the trial court improperly admitted into evidence testimony concerning threatening letters and telephone calls, and physical evidence concerning the threatening letters that was not relevant to the offense charged. We conclude that the defendant has failed to demonstrate that the admission of the evidence was harmful.

Our review of the trial transcript reveals that the defendant’s relevance objection was asserted only as to the evidence of the threatening letters admitted through testimony of the victim’s mother. The defendant did not, however, assert a relevance objection as to the evidence concerning the letters and telephone calls admitted through the victim’s testimony or as to the evidence concerning the telephone calls admitted through the victim’s mother.* * The defendant’s claim on appeal is, therefore, unpreserved as to the testimony of the victim concerning the letters and telephone calls and as to the testimony of her mother concerning the telephone calls. Pursuant to Practice Book § 60-5, formerly § 4061, we are not “bound to consider a claim unless it was distinctly raised at the trial or arose subsequent to the trial. ...” We therefore decline to review this unpreserved claim.

We now address that portion of the defendant’s claim concerning whether the trial court improperly admitted into evidence the threatening letters introduced through the testimony of the victim’s mother, which the defendant claims to be irrelevant to the offense charged. As we previously stated, this claim is not of constitutional magnitude. “In nonconstitutional claims, the defendant has the burden of demonstrating the harmfulness of the claimed error. . . . lie must show that it is more probable than not that the claimed error affected the verdict.” (Citation omitted; internal quotation marks omitted.) State v. Walsh, 52 Conn. App. 708, 720, 728 A.2d 15, cert. denied, 249 Conn. 911, 733 A.2d 233 (1999). The general rule concerning threats against witnesses is that they are “not relevant and are thus inadmissible as evidence unless the defendant is linked in some way to the making of [them].” State v. Walker, 214 Conn. 122, 129, 571 A.2d 686 (1990).

In the present case, the trial court stated that there was no evidence linking the threatening telephone calls and letters to the defendant nor was it demonstrated that the defendant solicited them. Therefore, the trial court should have excluded this evidence. Although the court improperly admitted the letters into evidence through the testimony of the victim’s mother, our review of the record reveals that the court found no link between the threats and the defendant, and that the court did not rely on this evidence in reaching its decision. Therefore, the defendant has failed to demonstrate that the admission of the testimony provided by the victim’s mother concerning the letters affected the verdict. We conclude, therefore, that the defendant has failed to demonstrate the harmfulness of the error.

Ill

The defendant next claims that the trial court committed reversible error under Brady v. Maryland, 373 U.S. 83, 83 S. Ct. 1194, 10 L. Ed. 2d 215 (1963), when it admitted the testimony and physical evidence concerning the threatening telephone calls and letters. We disagree.

The following additional facts are necessary for our resolution of this claim. The victim testified on direct examination that she and her mother had received threatening telephone calls and letters. Defense counsel objected to the questioning as a violation of Brady, stating that the defendant had not received responses to discovery requests related to the alleged threatening telephone calls and letters. The trial court overruled the objection.

The victim’s mother then testified regarding threatening letters that were allegedly sent to her home. Defense counsel objected on relevance grounds, and the trial court overruled the objection. The victim’s mother also testified as to threatening telephone calls that she received at home, three of which she recorded. Defense counsel objected, claiming that he previously had not heard of the tape recordings’ existence but that this had been included in his discovery request. The state noted that it maintained an “open file” policy in this case and that the information had been in its file at all times. The trial court ruled that the tapes were not covered by the discovery requests and overruled the objection.

Under Brady v. Maryland, supra, 373 U.S. 87, “suppression by the prosecution of evidence favorable to an accused upon request violates due process where the evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution.” To prevail on a claimed violation of Brady, the defendant must show that (1) the prosecution suppressed evidence after a request by the defense, (2) the evidence was favorable to the defense and (3) the evidence was material. State v. Correa, 241 Conn. 322, 360-61, 696 A.2d 944 (1997).

Here, the defendant failed to establish that any evidence was suppressed. Our review of the record reveals that the trial court properly determined that the evidence claimed by the defendant to have been suppressed was not covered by the defendant’s discovery requests. Second, the defendant did not dispute the state’s representations at trial that it maintained an open file policy and that the evidence was in the file and available for examination. Finally, copies of the letters were provided to the defendant at trial. “ ‘Evidence known to the defendant or his counsel, or that is disclosed, even if during trial, is not considered suppressed as that term is used in Brady.’ ” (Emphasis added.) State v. Reddick, 197 Conn. 115, 121, 496 A.2d 466 (1985), cert. denied, 474 U.S. 1067, 106 S. Ct. 822, 88 L. Ed. 2d 795 (1986).

Our review of the record reveals that the defendant has not satisfied his burden of proving that his right to due process was violated under Brady because he has failed to establish that the evidence was suppressed. Accordingly, we conclude that the trial court properly admitted into evidence the testimony and physical evidence concerning the threatening telephone calls and letters.

IV

The defendant’s final claim is that the trial court failed to set forth explicitly the facts supporting its finding of a violation of probation. We decline to review this claim because the defendant has failed to provide an adequate record.

Practice Book (1998 Rev.) § 64-1 (a), formerly § 4059, provides in relevant part that “the court shall, either orally or in writing, state its decision on the issues in the matter. The court shall include in its decision its conclusion as to each claim of law raised by the parties and the factual basis therefor. . . .” The defendant contends that the court’s decision failed to set forth the facts underlying its finding that he violated his probation.

“ Tt is the appellant’s burden to provide an adequate record for review. Practice Book [§ 60-5] .... It is, therefore, the responsibility of the appellant to move for an articulation or rectification of the record where the trial court has failed to state the basis of a decision ... to clarify the legal basis of a ruling ... or to ask the trial judge to rule on an overlooked matter.’ ” (Citations omitted.) Gianquitti v. Sheppard, 53 Conn. App. 72, 79, 728 A.2d 1133 (1999); see also Practice Book § 61-10, formerly § 4007.

Here, the plaintiff did not move for an articulation of the trial court’s ruling regarding the facts. Thus, “[w]e . . . are left to surmise or speculate as to the existence of a factual predicate for the trial court’s [ruling]. Our role is not to guess at possibilities, but to review claims based on a complete factual record developed by a trial court. . . . Without the necessary factual and legal conclusions furnished by the trial court . . . any decision made by us respecting [the defendant’s claims] would be entirely speculative.” (Internal quotation marks omitted.) Chase Manhattan Bank/City Trust v. AECO Elevator Co., 48 Conn. App. 605, 608-609, 710 A.2d 190 (1998). We therefore decline to review this claim.

The judgment is affirmed.

In this opinion the other judges concurred.

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

       General Statutes § 53a-32 (b) provides in relevant part: “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.”

       Tho trial transcript reveals that the defendant objected to this evidence under Brady v. Maryland, 373 U.S. 83, 83 S. Ct. 1194, 10 L. Ed. 2d 215 (1963), the best evidence rule and as hearsay.

       The defendant also did not request review under State v. Golding, 213 Conn. 233, 239-40, 5(57 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 mel: (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 lair 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. In the absence of any one of these conditions, the defendant’s claim will fail.” (Emphasis in original.) Id. Even if the defendant had requested Golding review, his claim would fail because it is evidentiary and not constitutional in nature and, thus, could not meet the second prong of Golding. See State v. Walsh, 52 Conn. App. 708, 720, 728 A.2d 15, cert. denied, 249 Conn. 911, 733 A.2d 233 (1999).

       Defense counsel supported his claim by citing the following language contained in his motion for discovery and inspection: “Any and all reports, tape recordings or interviews of the victim, the defendant or any witnesses prepared by the agents of the [Federal Bureau of Investigation (FBI)] made in connection with this case. . . .
      “Any and all reports or results, positive or negative, or scientific tests, experiments or comparisons made by the FBI or any other state agency conducted on evidence in this case.”

       In its ruling on the sexual assault charge, the court stated in relevant part: “I find that there has not been presented [sufficient] proof for me to find the defendant guilty beyond a reasonable doubt. . . . Basically, I have reasonable doubt. I cannot find beyond a reasonable doubt that the incident did occur. There’s several factors which I cannot internally resolve to come to a finding of guilt.”
      After discussing the factors, the court stated as to the violation of probation charge: “Now my finding of not guilty does not end the matter, however. The case the court heard was also in the nature of a probation violation hearing where the standard of proof is by a preponderance of the evidence. When the evidence is put in a less demanding light, this less stringent light, the court does find that the defendant probably did sexually assault or [have sexual] contact [with] the victim. I believe that the state has carried its burden of proof on a probation violation. The court, therefore, finds the defendant has violat ed the terms and conditions of his probation by committing one or more crimes.”


source: Caselaw Access Project

author: SPALLONE, J.

license: Public Domain

text:
    STATE OF CONNECTICUT v. KEITH HOFFLER
    (AC 18259)
    O’Connell, C. J., and Sullivan and Spallone, Js.
    Argued April 19
    officially released October 5, 1999

      Michael L. Moscowitz, special public defender, for the appellant (defendant).

      Carolyn K. Longstreth, assistant state’s attorney, with whom, on the brief, were John A. Connelly, state’s attorney, and Terrence Mariani, assistant state’s attorney, for the appellee (state).
   Opinion

SPALLONE, J.

The defendant, Keith Hoffler, appeals from the judgment of the trial court revoking his probation. The defendant claims that the trial court improperly (1) denied his request to continue the hearing on the charge of violation of probation until after his trial on the criminal charges arising from the same incident, (2) found that he had fair notice of the condition of probation requiring that he refrain from violating any criminal laws and (3) admitted the order of probation under General Statutes § 52-180. We affirm the judgment of the trial court.

The following facts are necessary to our resolution of this claim. In August, 1997, the defendant, while on probation for a previous offense, was arrested for the sale of a controlled substance in violation of General Statutes § 2 la-278 (a) and larceny in the first degree in violation of General Statutes § 53a-122. Because of his arrest and because he failed to report to his probation officer, he was charged with violation of probation in violation of General Statutes § 53a-32.

When the defendant’s probation revocation proceeding came before the trial court, the defendant requested that the hearing be continued until after his criminal trial on the narcotics and larceny charges. The defendant advised the court that he planned to testify at the violation of probation hearing but did not intend to testify at the criminal trial for fear of having his criminal record disclosed to the jury. The defendant asserted that he was willing to testify at the violation of probation hearing, but because of the pending criminal trial he would be unable to testify, fearing that anything he said in the violation of probation hearing would be used against him at the criminal trial. The court denied the request for a continuance of the revocation of probation hearing.

The evidence adduced at the violation of probation hearing indicates that the defendant failed to respond to a letter from his probation officer advising him to report to the office of adult probation so that he could review the conditions of his probation. The office of adult probation conceded that the probation officer never met with the defendant or informed him of the conditions of his probation. The defendant had been on probation in the past.

Further testimony showed that on August 29, 1997, the Waterbury police executed a search warrant of 87 Ives Street, which identified the defendant as a suspect in a narcotics enterprise. Upon entry into the premises, the officers observed the defendant sitting on a couch. The police seized a clear bag containing a white substance, later identified as cocaine, from the pocket of a bathrobe that the defendant was wearing. Also discovered on the premises was a large stockpile of electronic equipment and other household items, including stereos, television sets, videocassette recorders, bicycles, computers, lawn mowers, weed trimmers, snowblow-ers and two automobile wheel rims. The defendant subsequently gave a statement admitting that the items were stolen and that he had collected them to supplement his income.

After the state rested at the revocation of probation hearing, the defense rested when the trial court, in response to the defendant’s motion in limine to restrict the state’s cross-examination of the defendant so as not to allow the state to explore the facts of the underlying crimes leading to the violation of probation hearing, concluded that the defendant could invoke the privilege against self-incrimination. After further discourse with the court, the defense rested without the defendant testifying.

The trial court agreed with the state that a revocation of probation could properly result from the commission of a new crime, without specific notice that compliance with the law is a condition of probation, and found that the defendant violated a condition of probation and that the rehabilitative purposes no longer were being served. This appeal followed.

I

The defendant first claims that the trial court improperly denied his request to continue the violation of probation hearing until after his trial on the underlying criminal charges. We decline to review the defendant’s claim because he failed to provide an adequate record for review.

It is the defendant’s burden to provide a record adequate to review any claim he seeks to raise on appeal. Practice Book § 61-10. When a defendant claims that a ruling of the trial court improperly restricted his freedom to choose whether to testify, a reviewing court can meaningfully gauge the validity of the claim only if the record shows what the substance of his testimony would have been.

Our Supreme Court has adopted the holding of Luce v. United States, 469 U.S. 38, 43, 105 S. Ct. 460, 83 L. Ed. 2d 443 (1984), that a defendant must testify to preserve for review any claims of improper impeachment by a prior conviction. State v. Harrell, 199 Conn. 255, 265-66, 506 A.2d 1041 (1986). To weigh effectively the prejudicial effect and probative value of the anticipated impeachment, the court must know the precise nature of the testimony the defendant desired to give. Id., 266; see also State v. Schroff, 198 Conn. 405, 409, 503 A.2d 167 (1986); State v. Marsala, 43 Conn. App. 527, 535-36, 684 A.2d 1199 (1996), cert. denied, 239 Conn. 957, 688 A.2d 329 (1997).

In the present case, the defendant failed to provide the trial court with specific information concerning the substance of the testimony he wanted to give at the violation of probation hearing. Although the defendant generally stated his fear of being impeached at his criminal trial with prior conviction evidence and with his testimony at the violation of probation hearing, he did not provide the trial court or this court the substance of any specific testimony he desired to give, leaving us, as a reviewing court, to speculate as to what the testimony might be. “ ‘Because an accused’s decision whether to testify seldom turns on the resolution of one factor ... a reviewing court cannot assume that the adverse ruling motivated a defendant’s decision not to testify.’ ” State v. Harrell, supra, 199 Conn. 267.

II

The defendant’s second claim is that the trial court improperly admitted his order of probation under the business records exception to the hearsay rule. Specifically, the defendant claims that the trial court abused its discretion in admitting the document as a business record because there was not any evidence that it was a record prepared by the office of adult probation. This claim is without merit.

The following facts are necessary to a proper resolution of this claim. The state offered into evidence the defendant’s September 5, 1995 order of probation through Paul DiStasio, a probation officer. The defendant objected on the ground that DiStasio had not prepared or signed the document and, therefore, it was not made in the regular course of business of the office of adult probation. Instead, the defendant claimed, the document was made in the regular course of business of the clerk’s office. DiStasio then testified that “whenever someone is sentenced in front of a judge, obviously, the court clerk types the information, [i.e., that the defendant pleaded guilty or was convicted] then it becomes part of our file.” DiStasio further testified that it was in the ordinary course of the business of the office of adult probation to keep such records and that the record was made on September 5, 1995.

“Our standard of review regarding challenges to a trial court’s evidentiary rulings is that these rulings will be overturned on appeal only where there was an abuse of discretion and a showing by the defendant of substantial prejudice or injustice. ... In reviewing claims that the trial court abused its discretion, great weight is given to the trial court’s decision and every reasonable presumption is given in favor of its correctness. . . . We will reverse the trial court’s ruling only if it could not reasonably conclude as it did.” (Internal quotation marks omitted.) State v. Rogers, 38 Conn. App. 777, 796, 664 A.2d 291, cert. denied, 235 Conn. 918, 665 A.2d 610 (1995), cert. denied, 516 U.S. 1084, 116 S. Ct. 799, 133 L. Ed. 2d 747 (1996).

“An out-of-court statement offered to prove the truth of the matter asserted is hearsay and is generally inadmissible unless an exception to the general rule applies.” State v. Hines, 243 Conn. 796, 803, 709 A.2d 522 (1998). “General Statutes § 52-180 requires that evidence proffered under the business records exception to the hearsay rule satisfy three requirements: (1) that the record was made in the regular course of business; (2) that it was the regular course of the business to make the writing; and (3) that the writing was made at the time of the transaction or occurrence or within a reasonable time thereafter.” (Internal quotation marks omitted.) State v. Scott, 31 Conn. App. 660, 665, 626 A.2d 817 (1993). “ ‘The trial court is given discretion under General Statutes § 52-180 (a) to determine whether the criteria of the statute have been satisfied and, in reviewing the decision of the trial court to admit the evidence, an appellate court should construe the statute liberally.’ ” Id.

We conclude that the defendant’s claim that the document is inadmissible as a business record because it was created by the clerk’s office rather than the office of adult probation is without merit. “There is no requirement in § 52-180 . . . that the documents must be prepared by the organization itself to be admissible as that organization’s business records.” Crest Plumbing & Heating Co. v. DiLoreto, 12 Conn. App. 468, 475, 531 A.2d 177 (1987). DiStasio testified that orders of probation are prepared by the clerks of the court in the ordinary course of a criminal sentencing and then forwarded to the probation office. Moreover, DiStasio testified that it was the regular duty of the clerk’s office to create the writing and that the writing was made contemporaneously with the transaction. Accordingly, the trial court did not abuse its discretion in admitting the probation order as a business record.

Ill

The defendant’s final claim is that the trial court violated his due process rights by concluding that he violated his probation because he did not have “fair warning” that his behavior would constitute a violation of probation. The defendant specifically claims that because DiStasio did not review the conditions of probation with him, the trial court could not have properly concluded that he violated his probation. This claim is without merit.

“It is universally held that the commission of a felony violates a condition inherent in every probation order. . . . Had the sentencing court in this case merely placed the defendant on probation and said no more, commission of a felony would nevertheless constitute a violation sufficient to authorize revocation of probation.” (Internal quotation marks omitted.) State v. Wright, 24 Conn. App. 575, 577 n.1, 590 A.2d 486 (1991). In this case, the defendant was arrested for committing two felonies. Accordingly, we conclude that the defendant’s claim that he needed “fair warning” that committing new crimes is a violation of probation is without merit.

The judgment is affirmed.

In this opinion the other judges concurred.

       The state abandoned the defendant's failure to report as a ground for revocation of probation when the trial court ruled that the duty to establish contact was the responsibility of the probation officer and not the defendant.

       The defendant claims that United States v. Gallo, 20 F.3d 7 (1st Cir. 1994), supports his “proposition that due process prohibits forfeiture of a defendant’s liberty because he violaled the conditions of probation, absent a fair warning that particular conduct, will constitute a violation.” The defendant’s reliance on Gallo, however, is misplaced because the Gallo court concluded that a failure to warn a probationer that a particular lawful act is a violation of probation violates the probationer’s due process rights.


author: FOTI, J. SHEA, J.,

text:
    STATE OF CONNECTICUT v. HECTOR REVELO
    (AC 17757)
    Foti, Landau and Shea, Js.

      Argued February 24
    officially released October 12, 1999

      Alix C. Walmsley, deputy assistant public defender, with whom was Pamela Nagy, assistant public defender, for the appellant (defendant).

      Leon F. Dalbec, Jr., senior assistant state’s attorney, with whom, on the brief, were John A. Connelly, state’s attorney, and Cynthia Serafini, assistant state’s attorney, for the appellee (state).
   Opinion

FOTI, J.

The defendant, Hector Revelo, appeals from the trial court’s judgment of conviction of sale of illegal drugs in violation of General Statutes § 21a-278 (a) rendered after a conditional plea of nolo contendere pursuant to General Statutes § 54-94a.* On appeal, the defendant challenges the trial court’s conclusion that there was probable cause for a search of his apartment and claims that the court violated his constitutional rights by adding one additional year to his sentence because he insisted on a determination of his motion to suppress. We affirm the judgment of the trial court.

I

The defendant challenges the sufficiency of the facts stated in the warrant affidavit to support the finding of probable cause to search his apartment. The affidavit for the search warrant, pursuant to which the defendant’s apartment was searched and found to contain illegal drugs, was signed by two Waterbury police officers claiming to have a combined total of forty years training and experience and to have conducted numerous narcotics investigations resulting in arrests and convictions. It stated that within the two weeks prior to the search warrant application, members of the vice and intelligence division of the Waterbury police department had received information that the defendant was using Apartment K at 103 Hamden Avenue as a drug factory and that a Hispanic male known as “Tito” was delivering drugs for the defendant.

The affidavit then set forth the following narrative: “That within the past few days, a known and reliable confidential informant, who has given the Waterbury police department information that has led to arrests and convictions, came forward and agreed to make a controlled purchase of cocaine from the Hispanic male known as ‘Tito.’ The informant was searched for drugs and none were found. The informant was given Waterbury police funds for the sole purpose of purchasing cocaine from . . . Tito. The informant then contacted . . . Tito by telephone and arranged a purchase of cocaine at a prearranged location. A surveillance was setup on [the defendant’s apartment], . . . [The defendant] was observed operating a 1988 Dodge Caravan . . . and drove to [his apartment] and entered [it] using a key. ... A short time later . . . Tito was observed operating a 1983 Toyota Starlet . . . and he was also observed entering [the apartment] using a key. A short time later both parties exited [the apartment] and left in their vehicles. . . .

“Tito was followed to the prearranged location where he met the informant. While under surveillance the informant was observed meeting with . . . Tito. After the meeting the informant then went directly to this affiant and turned over a white powder substance. The informant said that the white powder substance was purchased from . . . Tito. . . . The surveillance was continued and . . . Tito was observed going directly [back to the defendant’s apartment] where he met with [the defendant] outside and . . . Tito gave [the defendant] money. ...”

Although the defendant challenges the sufficiency of the facts stated in the warrant affidavit to support the finding of probable cause to search his apartment, he does not dispute their veracity. The judge who denied the defendant’s motion to suppress concluded that the affidavit “presented a substantial factual basis, including reasonably drawn inferences, that uphold the validity of the warrant and the magistrate’s conclusion that probable cause existed.”

The defendant relies primarily on State v. DeCham-plain, 179 Conn. 522, 427 A.2d 1338 (1980), in claiming that the facts set out in the warrant application do not establish a sufficient connection between his apartment and the illegal drugs that were delivered to the affiant officer by the informant. In DeChamplain, a case involving a similar controlled buy, there was no indication that the drugs delivered to the informant by the seller came from the apartment in question other than the fact that the seller’s car was observed parked near the apartment prior to the sale. According to our Supreme Court, “[i]t was just as likely that the marihuana sought to be seized was in another location—for example, in another apartment in the complex or in the [seller’s carl—as it was that it was in [the apartment searchedl.” Id., 532.

The case before us is readily distinguishable. The fact that Tito, after agreeing to meet the informant to sell him illegal drugs, immediately drove to the defendant’s apartment and arrived almost simultaneously with the defendant indicates some communication between them to arrange the meeting for a purpose related to that communication. If Tito already had possessed a supply of drugs sufficient to complete the sale to the informant, it is unlikely that he would have made a special trip to the defendant’s apartment prior to meeting with the informant.

Further, Tito’s return to the defendant’s apartment after delivering the drugs to the informant, and his payment of money to the defendant there, indicates the significance of the apartment as the center of the drug distribution operation. “In making his determination on the issue of probable cause, the magistrate is entitled to rely on the ordinary dictates of common experience and on his own common sense.” State v. Bember, 183 Conn. 394, 412, 439 A.2d 387 (1981). We conclude that the facts contained in the search warrant application support a reasonable inference that the apartment was the source of the drugs delivered by Tito to the informant and that additional drugs probably would be found there. We conclude that the trial court properly found that probable cause existed to issue the search warrant and, therefore, properly denied the defendant’s motion to suppress.

II

■ The defendant next claims that he was penalized for exercising his right to a judicial determination of his motion to suppress the evidence obtained as a result of the warrant. The basis for this claim is the plea bargain made before the trial court denied the defendant’s motion to suppress.

The defendant was charged in a four count information with two counts of selling illegal drugs in violation of § 2 la-278 (a), one count of operating a drug factory in violation of General Statutes § 2 la-277 (c) and one count of risk of injury to a child in violation of General Statutes § 53-21. On June 17, 1997, the trial court announced that a plea offer of “eight years to serve in jail” had been made to the defendant, but that the defendant wanted a hearing on his motion to suppress. The court stated further that if the defendant wanted to plead guilty after losing that motion, the sentence would be nine years instead of eight years. The defendant responded that he understood.

Two weeks after the denial of his motion to suppress, the defendant accepted an offer of a plea bargain for a definite sentence of nine years imprisonment on the charge of sale of illegal drugs, reserving the right to appeal the denial of his motion to suppress pursuant to § 54-94a. The state agreed to nolle the three remaining charges. After canvassing the defendant about his understanding of the consequences of a nolo conten-dere plea and informing him that a sentence of nine years imprisonment would be imposed under the plea agreement, the trial court accepted the plea on the charge of selling illegal drugs. At the conclusion of the proceeding, the court imposed a sentence of nine years in the custody of the commissioner of correction.

The defendant contends that the trial court added one year to the eight year’ sentence offered as punishment for the charged offense to induce the defendant to waive his constitutional and statutory rights to a judicial determination of his motion to suppress. He claims that the additional year of imprisonment was imposed for exercising his statutory and constitutional rights to contest the validity of the search warrant by filing a motion to suppress and therefore violated his right to due process.

The state maintains that the due process issue raised by the defendant is not reviewable because § 54-94a limits the bases of appeals from denials of motions to suppress evidence allegedly obtained from unreasonable searches or seizures. Section 54-94a provides in relevant part that “[t]he 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 or the motion to dismiss. ...” The issue of the propriety of the denial of the defendant’s motion to suppress was properly preserved for appellate review in accordance with § 54-94a and Practice Book § 61-6 (a), formerly § 4003, and we have upheld the denial of that motion in part I of this opinion.

The defendant argues, nevertheless, that his claim that the trial court imposed one additional year of imprisonment because he refused to relinquish his right to a judicial determination of his motion to suppress satisfies the criteria established by State v. Golding, 213 Conn. 233, 239-40, 567 A.2d 823 (1989), for appellate review of unpreserved constitutional claims: “[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.) We do not agree that this claim is reviewable, however, because it is not properly before us on appeal.

“What § 54-94a does is abrogate, in certain circumstances, the waiver of constitutional rights that [are] implicit in a guilty or nolo contendere plea.” (Internal quotation marks omitted.) State v. Piorkowski, 236 Conn. 388, 401, 672 A.2d 921 (1996). The conditions of § 54-94a, however, must be strictly construed and claims that are not encompassed within the statute should not be considered. State v. Sebastian, 41 Conn. App. 530, 534, 677 A.2d 437, cert. denied, 238 Conn. 906, 679 A.2d 365 (1996); see State v. Madera, 198 Conn. 92, 99, 503 A.2d 136 (1985). Section 54-94a does not encompass the claim made by the defendant and, therefore, it is not reviewable. See State v. Cedric S., 51 Conn. App. 539, 540, 722 A.2d 299 (1999).

Under the particular circumstances of this case, the defendant knew exactly what was being offered after his motion to suppress was denied, i.e., a sentence of nine years on one count of a four count information, reserving the right to appeal pursuant to § 54-94a. He was free to refuse the offer and to exercise his constitutional right to a trial. Instead, he chose to accept it, knowingly and freely, with the advice and assistance of an attorney, and with a full understanding of the consequences of entering such a plea, as explained to him by the trial court.

As long as the defendant is free to accept or reject the offer, there is no element of punishment or retaliation. Bordenkircher v. Hayes, 434 U.S. 357, 363, 98 S. Ct. 663, 54 L. Ed. 2d 604 (1978). By entering his plea of nolo contendere pursuant to § 54-94a, he accepted the condition of the statute that “[t]he 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 . . . .” A review of the plea canvass reveals that the defendant expressly stated that he understood that the only issue he could raise on appeal was whether the trial court improperly denied his motion to suppress.

Further, the defendant’s written and signed plea of nolo contendere offered pursuant to § 54-94a specifically stated that the plea was being entered on the condition that he had the right to take an appeal, with the following motion reserved for review: “Denial of motion to suppress by Judge Gill.” We conclude, therefore, that the defendant does not have the right to raise on appeal the issue he asks us to review. Accordingly, we will not review his claim.

The judgment is affirmed.

In this opinion LANDAU, J., concurred.

SHEA, J.,

dissenting. I agree with part I of the majority opinion, which upholds the denial of the motion to suppress. I disagree with part II, however, in which the majority refuses to address the claim of the defendant that his constitutional right to due process of law was violated when the trial court sentenced him to one additional year of confinement because he insisted on a judicial determination of his motion to suppress. I believe that the defendant’s claim satisfies the criteria established by State v. Golding, 213 Conn. 233, 239-40, 567 A.2d 823 (1989), for appellate review of unpreserved claims of constitutional error and also presents an occasion for the exercise of our supervisory authority over proceedings on appeal. I conclude that the additional year of confinement imposed on the defendant as a penalty for exercising his lawful right to pursue his motion to suppress is contrary to due process of law and, therefore, invalid.

The majority does not dispute the defendant’s claim that the trial court added one additional year- to his sentence for the crime as a penalty for pursuing his motion to suppress because the state has suggested no other explanation for the plea bargain offer of eight years made by the trial court if that motion was abandoned but nine years if the motion was denied after a hearing. The majority maintains, however, that the defendant’s constitutional claim cannot be reviewed in this appeal because the statute authorizing an appeal from the denial of a motion to suppress, General Statutes § 54~94a, provides that “[t]he 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 or the motion to dismiss. ...”

I

I agree with the defendant that his claim that the trial court imposed one additional year of imprisonment on him because he refused to relinquish his right to a judicial determination of his motion to suppress satisfies the criteria established by State v. Golding, supra, 213 Conn. 239-40, for appellate review of unpreserved claims: “[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.)

The majority does not maintain that the defendant’s claimed violation of his right to due process of law does not satisfy the four Golding criteria for appellate review of unpreserved claims. Instead, it contends that such review is not available in an appeal pursuant to § 54-94a because of the provision in that statute limiting the issue on appeal to “whether it was proper for the court to have denied the motion to suppress” and the defendant’s acceptance of a plea agreement providing for a nine year sentence with a right to appeal the ruling on his motion. Implicitly, the majority regards § 54-94a as a restriction on the jurisdiction of an appellate court to consider issues raised in an appeal that are not specified in the statute. It relies on decisions involving nolo contendere pleas pursuant to § 54-94a in which defendants have attempted unsuccessfully to raise issues other than those specified, such as State v. Madera, 198 Conn. 92, 99, 503 A.2d 136 (1985), State v. Sebastian, 41 Conn. App. 530, 534, 677 A.2d 437, cert. denied, 238 Conn. 906, 679 A.2d 365 (1996), and State v. Cedric S., 51 Conn. App. 539, 540, 722 A.2d 299 (1999). In none of those cases, however, was it claimed that the issues the defendant sought to raise qualified for review pursuant to State v. Golding, supra, 213 Conn. 239-40. In two of them, Madera and Sebastian, the court recognized that the authority of an appellate court over proceedings on appeal was not subject to the restriction of § 54-94a on the issues to be considered on appeal. “The question remains whether we should exercise our inherent supervisory authority over the administration of justice . . . and adopt a procedure that would allow criminal defendants to enter pleas based upon conditions other than those specified in § 54-94a.” (Citations omitted.) State v. Madera, supra, 99-100. “[I]n appropriate circumstances we will exercise our powers of supervision and control over proceedings on appeal in the spirit of the purpose of our rules, namely to facilitate business and advance justice.” State v. Sebastian, supra, 537-38.

This court has explicitly rejected the view of the majority that § 54-94a restricts the subject matter jurisdiction of an appellate court to consider issues involved in an appeal beyond those specified in the statute. “When viewed in light of the definition of subject matter jurisdiction and the statutes that create such jurisdiction, it becomes clear that § 54-94a neither confers nor curtails appellate subject matter jurisdiction.” State v. Piorkowski, 37 Conn. App. 252, 258, 656 A.2d 1046 (1995), rev’d on other grounds, 236 Conn. 388, 672 A.2d 921 (1996). Our Supreme Court has adopted the same position: “We agree with the defendant and the Appellate Court that § 54-94a is not a subject matter jurisdictional statute.” State v. Piorkowski, 236 Conn. 388, 400, 672 A.2d 921 (1996). It is clear, therefore, that this court has jurisdiction to consider an unpreseived claim that a sentence violates a defendant’s constitutional rights if the Golding criteria are satisfied or if the claim presents an appropriate occasion for the exercise of our supervisory authority over proceedings on appeal. I believe the defendant’s claim that his right to due process of law was violated by the sentence imposed qualifies for appellate review on both those grounds.

II

“To punish a person because he has done what the law plainly allows him to do is a due process violation of the most basic sort . . . .” (Citation omitted.) Bordenkircher v. Hayes, 434 U.S. 357, 363, 98 S. Ct. 663, 54 L. Ed. 2d 604 (1978). Nevertheless, courts have implicitly or explicitly approved tactics used by prosecutors in offering various inducements to persuade defendants to waive their constitutional rights to a trial or appeal by pleading guilty. “Whatever might be the situation in an ideal world, the fact is that the guilty plea and the often concomitant plea bargain are important components of this country’s criminal justice system.” Blackledge v. Allison, 431 U.S. 63, 71, 97 S. Ct. 1621, 52 L. Ed. 2d 136 (1977). The many considerations that ultimately result in a plea bargain agreed on by the parties seldom áppear on the record and are usually irrelevant after a guilty plea has been accepted by the court.

This case, however, involves the burdening of the defendant’s constitutional and statutory right to a judicial determination of his motion to suppress by a penalty imposed by the trial court of one additional year of imprisonment for exercising that right. It is commonplace in the plea bargaining process for defendants to waive similar, rights, such as the right to a jury trial or to an appeal, at the behest of the prosecutor in reaching plea agreements. A defendant is free to waive his rights to achieve the most favorable disposition of his case that is available. A prosecutor may use what leverage he has in attempting to obtain guilty pleas in most cases to expedite the movement of cases through the criminal justice system. Normally, without any participation by the trial court in the plea bargaining process, the result is a guilty plea with an agreed sentencing recommendation fitting within the standard parameters. Once an agreement is reached and a guilty plea is accepted by the trial court, the various factors that produce that result have no further significance. The case is concluded except for the actual sentencing judgment.

In this case, no such final conclusion was reached because the defendant entered a plea of nolo conten-dere, reserving his right to appellate review of the denial of his motion to suppress pursuant to § 54-94a. This is not simply a case of plea bargaining between the prosecutor and the defendant with no restraints on either party, as the majority maintains. The record makes it clear that the court was the agent that burdened the defendant’s right to a judicial determination of his motion to suppress by sentencing him to one additional year of confinement for exercising that right. Although Bordenkircher v. Hayes, supra, 434 U.S. 357, relied on by the majority, appears to give prosecutors carte blanche in the plea bargaining process, it provides no shield for judges. I agree with the defendant that the additional year added to his sentence was contrary to due process of law because it was punishment for doing “what the law plainly allow[ed] him to do . . . .” (Citation omitted.) Id., 363.

Ill

“Section 54-94a is intended to promote judicial economy by allowing the parties to litigate a suppression or dismissal issue fully in the trial court, and thereafter allowing the defendant to obtain review of an adverse ruling without the parties’ or the court’s expending additional resources.” (Internal quotation marks omitted.) State v. Piorkowski, supra, 236 Conn. 402, quoting State v. Piorkowski, supra, 37 Conn. App. 259. Quite apart from whether the imposition of a penalty of one additional year of imprisonment for pursuing the motion to suppress in the trial court violates the defendant’s right of due process, it is evident that such a penalty is inconsistent with the legislative purpose of § 54-94a to promote judicial economy. If the penalty were five or ten years of additional imprisonment instead of the fairly modest one year imposed on this defendant, few defendants would attempt to use that statute to preserve their right to appellate review of the denial of a motion to suppress. They could simply proceed to trial and appeal from the judgment of conviction, raising the denial of the motion as a ground for reversal as well as making other claims. The salutary purpose of § 54-94a in expediting the disposition of criminal cases would be thwarted and the statute might become a dead letter.

This case presents an appropriate occasion for the exercise of our supervisory authority over proceedings on appeal “to facilitate business and advance justice.” State v. Sebastian, supra, 41 Conn. App. 537-38. As an appellate court, we ought not to permit trial courts to penalize the exercise of a defendant’s right to a judicial determination of his motion to suppress evidence claimed to have been obtained illegally. The legislature has enacted § 54-94a to encourage defendants to use the expedited procedure it provides for resolving a case where the only substantial issue is the validity of a search or the admissibility of a confession. I believe that imposing additional punishment on a defendant who seeks a judicial determination of his motion to suppress will thwart the legislative purpose of that enactment.

       General Statutes § 21a-278 (a) provides in relevant part: “Any person who manufactures, distributes, sells, prescribes, dispenses, compounds, transports with the intent to sell or dispense, possesses with the intent to sell or dispense, offers, gives or administers to another person one or more preparations, compounds, mixtures or substances containing an aggregate weight of one ounce or more of heroin, methadone or cocaine or an aggregate weight of one-half gram or more of cocaine in afree-base form or a substance containing five milligrams or more of lysergic acid diethylamide, except as authorized in this chapter, and who is not, at the time of such action, a drug-dependent person, shall be imprisoned for a minimum term of not less than five years nor more than twenty years; and, a maximum term of life imprisonment. . . .”

       General Statutes § 54-94a provides: “When a defendant, prior to the commencement of trial, 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, motion to suppress statements and evidence based on the involuntariness of a statement or motion to dismiss, 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 or the motion to dismiss. A plea of nolo contendere by a defendant under this section shall not constitute a waiver by the defendant of nopjurisdictional defects in the criminal prosecution.”

       The colloquy between the trial court and the defendant was as follows:
      “[The Court]: Now, in this matter, Mr. Revelo, I offered you eight years to serve in jail. You understand that? Si or no? And you want to have a hearing on a motion to suppress, right?
      “The Defendant: Yes.

        “The Court: And if you lose that motion and you want to plead, it’s nine years, not eight years. You understand that?
      “The Defendant: Yes.”

       The motion to suppress the evidence obtained from the search of the defendant’s apartment was heard and decided by a,judge different from the one who imposed the sentence.

       During the plea canvass, the court inquired of the defendant as follows:
      “The Court: Now, the agreement is nine years; do you understand that?
      "[The Defendant]: Yes. . . .
      “The Court: You filed a written plea of nolo contendere. It’s a conditional plea of nolo contendere in that you want the right to take an appeal from Judge Gill's denial of your motion to suppress evidence based on [an unreasonable] search or seizure; do you understand that?
      “[The Defendant]: Yes.
      “The Court: And the issue to be considered in such an appeal is solely, and limited to, whether it was proper for the court to have denied the motion to suppress. Do you understand that?
      “[The Defendant]: Yes.

        “The Court: Okay. You pleaded no contest. You’re not admitting that the drugs were yours. You’ve entered your plea to accept the sentence of nine years rather than go to trial where you acknowledged the state would have had substantial evidence to convict you and if convicted, you could have received a more severe penalty; do you understand that?
      “[The Defendant]: Yes.”

       The plea, dated August 28, 1997, was accepted by the trial court and was conditioned pursuant to § 54-94a.

       The use of the first person singular by the trial court, suggests that the court was engaged in plea bargaining in presenting the options of an eight or nine year sentence to the defendant depending on whether he pursued or abandoned his motion to suppress. Judicial participation in the plea bargaining process has been disapproved. State v. Fullwood, 194 Conn. 573, 580-81, 484 A.2d 435 (1984); State v. Gradzik, 193 Conn. 35, 47, 475 A.2d 269 (1984). We presume, however, that the court was merely reciting an offer that had been made by the prosecutor.

       See footnote 2 of the majority opinion.


author: SULLIVAN, J.

text:
    STATE OF CONNECTICUT v. CLYDE MACK
    (AC 16245)
    Lavery, Spear and Sullivan, Js.
    Argued May 3
    officially released October 12, 1999

      Neal Cone, assistant public defender, for the appellant (defendant).

      Bruce R. Lockwood, deputy assistant state’s attorney, with whom, on the brief, were Michael Dearington, state’s attorney, and John Waddock, senior assistant state’s attorney, for the appellee (state).
   Opinion

SULLIVAN, J.

The defendant, Clyde Mack, appeals from the judgment of the trial court granting his probation officer’s motion for revocation of his probation. On appeal, the defendant claims that the trial court (1) lacked subject matter jurisdiction to hear and determine the motion to revoke his probation and (2) exceeded its authority in revoking his probation. We reverse the judgment of the trial court.

The following facts and procedural history are relevant to the resolution of this appeal. On November 20, 1987, the defendant was sentenced to four years incarceration, execution suspended, with four years probation for possession of narcotics under General Statutes § 21a-279 (a). The defendant’s probationary term began on that date.

On January 18,1991, the defendant was arrested and charged with narcotics violations that allegedly had occurred on that date and on October 16, 1990. On February 13, 1992, the defendant pleaded guilty to possession of cocaine in violation of § 21a-279 (a), possession of cocaine with intent to sell by a person who is not drug-dependent in violation of General Statutes § 21a-278 (b) and conspiracy to sell cocaine by a person who is not drug-dependent in violation of General Statutes §§ 21a-278 (b) and 53a-48 (a). On April 9, 1992, the defendant’s probation officer filed a motion pursuant to Practice Book § 943, now § 43-29, alleging that the defendant’s 1992 offenses constituted a violation of the terms of the probation that he was serving for his 1987 conviction. On May 8, 1992, the trial court determined that the defendant violated the conditions of his probation, revoked probation and sentenced him to the remaining four years on the 1987 conviction. This appeal followed.

I

The defendant first claims that the trial court was without subject matter jurisdiction to hear and determine the motion for revocation of probation because he was not on probation at the time of the disposition hearing. We disagree.

“Subject matter jurisdiction involves the authority of a court to adjudicate the type of controversy presented by the action before it. 1 Restatement (Second), Judgments § 11. A court does not truly lack subject matter jurisdiction if it has competence to entertain the action before it’ Monroe v. Monroe, 177 Conn. 173, 185, 413 A.2d 819, appeal dismissed, 444 U.S. 801, 100 S. Ct. 20, 62 L. Ed. 2d 14 (1979). Once it is determined that a tribunal has authority or competence to decide the class of cases to which the action belongs, the issue of subject matter jurisdiction is resolved in favor of entertaining the action.” Craig v. Bronson, 202 Conn. 93, 101, 520 A.2d 155 (1987).

“A court may raise the issue of its subject matter jurisdiction sua sponte and must dismiss the case if it finds subject matter jurisdiction to be lacking. Park City Hospital v. Commission on Hospitals & Health Care, 210 Conn. 697, 702, 556 A.2d 602 (1989). [ 0 ]nce the question of lack of jurisdiction of a court is raised, [it] must be disposed of no matter in what form it is presented . . . and the court must fully resolve it before proceeding further with the case. . . . Castro v. Viera, 207 Conn. 420, 429, 541 A.2d 1216 (1988). The question of whether the court has such jurisdiction, however, must be informed by the established principle that every presumption is to be indulged in favor of jurisdiction. Lauer v. Zoning Commission, 220 Conn. 455, 460, 600 A.2d 310 (1991).” (Internal quotation marks omitted.) State v. Carey, 222 Conn. 299, 305, 610 A.2d 1147 (1992), on appeal after remand, 228 Conn. 487, 636 A.2d 840 (1994).

Our Supreme Court, in Amodio v. Amodio, 247 Conn. 724, 727-28, 724 A.2d 1084 (1999), distinguished between a trial court’s “jurisdiction” and its “authority to act” under a particular statute and found, in that case, that the trial court had subject matter jurisdiction to decide whether the defendant’s support obligation should be modified. The Supreme Court reasoned that “[although related, the court’s authority to actpursuant to a statute is different from its subject matter jurisdiction. ‘The power of the court to hear and determine, which is implicit in jurisdiction, is not to be confused with the way in which that power must be exercised in order to comply with the terms of the statute.’ Bailey v. Mars, 138 Conn. 593, 601, 87 A.2d 388 (1952) Amodio v. Amodio, supra, 728.

“The Superior Court hearing a criminal matter acquires subject matter jurisdiction from its authority as ‘a constitutional court of unlimited jurisdiction. Conn. Const., art. 5, § 1.’ ” State v. Carey, supra, 222 Conn. 305-306. “Because [r] evocation is a continuing consequence of the original conviction from which probation was granted . . . and the inherent authority to convict and sentence a defendant flows from the authority to adjudicate a criminal cause of action, the subject matter jurisdiction over a probation revocation proceeding derives from the original presentment of the information.” (Citation omitted; internal quotation marks omitted.) Id., 306.

We conclude, therefore, that the trial court had subject matter jurisdiction over the defendant’s probation revocation.

II

The defendant next argues that the trial court lacked the authority to revoke his probation because he was no longer on probation when the motion to revoke his probation was filed. We agree.

The motion to revoke the defendant’s probation was brought pursuant Practice Book § 943, now § 43-29, which provides in relevant part that “[i]n cases where the revocation of probation is based upon a conviction for a new offense and the defendant is before the court or is being held in custody pursuant to that conviction, the revocation proceeding may be initiated by a motion to the court by a probation officer .... If the defendant admits the violation or the judicial authority finds from the evidence that the defendant committed the violation, the judicial authority may make any disposition authorized by law. ...”

In State v. Egan, 9 Conn. App. 59, 514 A.2d 394, cert. denied, 201 Conn. 811, 516 A.2d 886 (1986), the state initiated a revocation procedure under § 943 for criminal acts committed during the defendant’s probationary term. After the defendant’s probationary period had ended, the trial court found that a condition of his probation had been violated by the criminal acts committed during the period of probation and, therefore, revoked the defendant’s sentence of probation and imposed a sentence of imprisonment.

In Egan, this court reversed the trial court’s judgment revoking the defendant’s probation. Id., 73. “Pursuant to General Statutes § 53a-31 (b), the running of the probationary period is tolled where the revocation is commenced pursuant to the provisions of General Statutes § 53a-32.: There is, in contrast, no comparable statutory provision which tolls the running of the probationary period where the procedures outlined in Practice Book § 943 are used. Accordingly, where the state chooses to proceed solely under the provisions of § 943, the sentence of probation is not tolled, and the state must, therefore, not only commence the revocation, but also complete it, during the sentence of probation.” Id.

In Egan, the defendant’s probation was in effect when the motion for revocation was filed, but the probation had expired by the time the decision on it was rendered. Here, the motion to revoke the defendant’s probation was filed on April 9, 1992, well after his probationary term had expired. It is undisputed that the provisions of § 53a-32 were not followed.

We conclude, therefore, that, although the trial court had subject matter jurisdiction, it lacked the authority to revoke the defendant’s probation because the period of probation had expired before the revocation motion was filed. “Once a sentence has been fully served, it may not be increased.” Id.

The judgment revoking the defendant’s probation is reversed and the case is remanded with direction to render judgment denying the motion for revocation.

In this opinion the other judges concurred.

       The defendant’s appeal form indicates that he also appealed from his narcotics convictions. No issue as to those convictions was raised, and any challenge to them is deemed abandoned.

       The defendant also was sentenced for the 1992 convictions to a total effective term of twenty years incarceration consecutive to the four years relative to the violation of probation.

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

       The state concedes that the defendant’s probation revocation was invalid under the facts of this case because the state failed to initiate and complete the revocation proceeding before the probationary term had expired.


author: DUPONT, J.

text:
    ARTHUR MILLMAN v. SHERI PAIGE ET AL.
    (AC 18374)
    Landau, Hennessy and Dupont, Js.

      Argued May 26
    officially released October 12, 1999

      Geoffrey S. Brandner, with whom, on the brief, was John L. Ponzini, for the appellant (named defendant).

      Patrick J. Fitzgerald.for the appellee (plaintiff).
   Opinion

DUPONT, J.

The sole issue in this appeal is whether an action “in the nature of a bill of interpleader” brought pursuant to General Statutes § 52-484 by a person claiming an interest in money in the possession of another person who also claims an interest in the proceeds should be dismissed. The trial court denied a motion to dismiss filed by the named defendant, Sheri Paige, an attorney and the interested possessor of the property, and rendered an interlocutory judgment of inteipleader for the plaintiff from which Paige has appealed. We affirm the judgment of the trial court.

Paige is holding in a trustee account the proceeds of a settlement she effected for a client who was previously represented in the same matter by the plaintiff, Arthur Millman, also an attorney, and by the other defendant attorneys. All of the attorneys were parties in the trial court and all parties have an interest in the proceeds.

Paige claims that § 52-484 cannot be utilized to bring this action and that the plaintiff instead should have filed an action against Paige and impleaded the other defendants. The trial court determined that it had subject matter jurisdiction pursuant to § 52-484 because portions of the same fund were claimed by each of the parties and the claims derived from a common source. The court held that the action was not a bill of inter-pleader but an action in the nature of interpleader, which allows the plaintiff to have an interest in the subject matter money. The difference between the two types of actions, according to the trial court, is that, in an action in the nature of interpleader, the plaintiff can seek alternative equitable relief and does not have to be a disinterested stakeholder, whereas in a bill of inter-pleader, the plaintiff must be disinterested.

The trial court read the plain words of the statute as allowing “any of the persons claiming the [money or other property in the possession of any person to] bring a complaint in equity, in the nature of a bill of inter-pleader . . . .” General Statutes § 52-484. Because the plaintiff was one of three persons claiming money that was in the possession of another interested claimant, the court refused to dismiss the action. The court also relied on Loda v. H. K. Sargeant & Associates, Inc., 188 Conn. 69, 74, 448 A.2d 812 (1982), in which an action for interpleader was maintained by a plaintiff who was not the possessor of the property, but who claimed an interest in moneys held by one of the defendants who was a disinterested party. The only difference between Loda, and the present case is that, in Loda, the stakeholder defendant, claimed nothing from the funds it held except attorney’s fees and, in this case, Paige, the stakeholder defendant, claims a portion of the fee collected in settlement of her client’s claim. In both cases, the plaintiffs were not possessors of the property in question but claimed an interest in the money held by one defendant and sought statutory relief under § 52-484 in an action in the nature of interpleader.

The purpose of an interpleader action is to bring all adverse claimants together in a single action for an adjudication of all matters in controversy related to a particular fund to which the adverse claimants seek entitlement. 2 E. Stephenson, Connecticut Civil Procedure (2d Ed. 1970) § 263, p. 1088. The statute provides that if anyone possesses property claimed by two or more persons, the possessor “or any of the persons claiming the same, may bring a complaint in equity . . . .” (Emphasis added.) General Statutes § 52-484. Here, the plaintiff is a person claiming an interest in property in the possession of another and has named the interested stakeholder and both other claimants as parties. The statute does not require that the possessor bring the action but allows any person claiming an interest in property in the possession of another to bring the action.

It is clear that a claimant not in possession of the disputed money or property may be a plaintiff. Loda v. H. K. Sargeant & Associates, Inc., supra, 188 Conn. 74. The question, however, is whether § 52-484 authorizes an action by a claimant in a situation where the possessor of the property is not disinterested but has an interest in a portion of the property.

The classic interpleader action existing in equity, prior to the enactment of the statute, was brought by a disinterested stakeholder to establish the undivided ownership of money or property claimed by two or more entities or individuals. Id., 69; Crozier v. Zaboori, 14 Conn. App. 457, 459-60 n.2, 541 A.2d 531 (1988). After the passage of the forerunner to § 52-484 in 1893, the rule that an interpleader action be maintained only by a stakeholder with no interest in the disposition of the fund was relaxed. Union Trust Co. v. Stamford Trust Co., 72 Conn. 86, 91, 43 A. 555 (1899). After enactment of the legislation, actions in the nature of inter-pleader included those involving plaintiffs as possessors of property with an interest in the property that was less than the total, and courts were permitted in a single action to determine all the questions that might arise among those interested in as well as entitled to the property. Id., 93-94. Whenever several persons might all be entitled to participate in a common fund held by one of them, the statute authorizes an action in the nature of interpleader and a distribution of the funds by the trial court. Century Indemnity Co. v. Kof-sky, 115 Conn. 193, 200, 161 A. 101 (1932).

Section 52-484 does not preclude an action by an interested nonpossessor in which all claimants, including an interested possessor, as defendants, seek all or a portion of the amount being held by one of the defendants. The equitable purpose of the statute is to give all those interested or entitled to all or a portion of a fund held by another an oppoitunity to resolve all questions in a single action. We conclude that the trial court correctly rendered an interlocutory judgment of interpleader.

The judgment is affirmed.

In this opinion the other judges concurred.

       General Statutes § 52-484 provides: “Action in nature of interpleader. Whenever any person has, or is alleged to have, any money or other property in his possession which is claimed by two or more persons, either he, or any of the persons claiming the same, may bring a complaint in equity, in the nature of a bill of interpleader, to any court which by law has equitable jurisdiction of the parties and amount in controversy, making all persons parties who claim to be entitled to or interested in such money or other property. Such court shall hear and determine all questions which may arise in the case, may tax costs at its discretion and, under the rules applicable to an action of interpleader, may allow to one or more of the parties a reasonable sum or sums for counsel fees and disbursements, payable out of such fund or property; but no such allowance shall be made unless it has been claimed by the party in his complaint or answer.”

       An interlocutory judgment for interpleader is a final judgment and may be appealed immediately. Kerite Co. v. Alpha Employment Agency, Inc., 166 Conn. 432, 437-38, 352 A.2d 288 (1974); Yankee Millwork Sash & Door Co. v. Bienkowski, 43 Conn. App. 471, 474, 683 A.2d 743 (1996).

       The other two defendant attorneys are Jonathan E. Spodniek and Richard Bortolot. They also claim an interest in the proceeds of the settlement but did not appeal from the judgment of the trial court. Spodniek, Bortolot and the plaintiff objected to Paige’s motion to dismiss, agreeing that the action is allowable under § 52-484.

       In Crozier v. Zaboori, 14 Conn. App. 457, 459-60 n.2, 541 A.2d 531 (1988), there is dicta in a footnote that might be read as disallowing interpleader actions brought by anyone other than a disinterested stakeholder. As dicta, it is not binding on this court in the resolution of this appeal. Moreover, Crozier did not involve an analysis of § 52-484. The footnote properly indicates that if a stakeholder is disinterested, the stakeholder has no appealable interest injudicial orders rendered as between codefendants who both claim all of the stake. Id.


text:
    STATE OF CONNECTICUT v. DARRELL JONES
    (AC 17689)
    Schaller, Spear and Dupont, Js.
    Submitted on briefs May 2
    officially released October 12, 1999

      James A. Shanley, Jr., special public defender, filed a brief for the appellant (defendant).

      James E. Thomas, state’s attorney, Vicki Melchiorre, senior assistant state’s attorney, and Margaret Gaffney Radionovas, assistant state’s attorney, filed a brief for the appellee (state).
   Opinion

DUPONT, J.

The defendant, Darrell Jones, appeals from the judgment of the trial court revoking his probation and committing him to the custody of the commissioner of correction for six years. On appeal, the defendant claims that (1) the judgment revoking his probation should be set aside because he was acquitted of the criminal charges that formed one of the bases of the trial court’s finding of a probation violation and (2) the court improperly based its probation violation finding on the defendant’s violation of a condition of probation that had terminated by operation of law. We affirm the judgment of the trial court.

The following facts and procedural history are relevant to the resolution of this appeal. The defendant pleaded guilty under the Alford doctrine to a charge of robbery in the second degree in violation of General Statutes § 53a-135, and on December 30, 1991, was sentenced to six years imprisonment, execution suspended, and placed on probation for three years with special conditions.

On December 19, 1994, the defendant was charged with violating the conditions of probation by failing to pay the ordered restitution and because he had tested positive for and admitted to using cocaine. The trial court found that the defendant violated his probation, vacated the previous sentence, sentenced him to six years, execution suspended, and placed the defendant on probation for two year’s. The conditions of the defendant’s probation were that he pay restitution to the victim of $210 within one week, pay restitution to Aetna Insurance Company (Aetna) according to a payment schedule set by the court, undergo random drug testing and treatment as needed and remain drug free. The defendant signed the conditions of his probation.

On July 13, 1996, the defendant was arrested on charges of larceny in the sixth degree and issuing a bad check.* *On August 9, 1996, the defendant was arrested on charges of sexual assault in the first degree, reckless endangerment in the first degree, unlawful restraint in the first degree and risk of injury to a child. Thereafter, an arrest warrant was issued on November 4, 1996, on the ground that he had violated the conditions of his probation. The warrant alleged that the defendant had failed to pay restitution of $210 and $8000 and had violated criminal laws, as evidenced by his arrests on July 13 and August 9, 1996. The defendant was subsequently arrested.

The trial court held a hearing on two successive days, September 11 and 12, 1997. At the hearing, the state presented two witnesses and the defendant elected not to testify or present any other evidence. The court found that the state established by a fair preponderance of the evidence that there had been a violation of several conditions of probation, including the condition inherent in every probation order that the probationer not violate the criminal law; see State v. Wright, 24 Conn. App. 575, 576, 590 A.2d 486 (1991); based on the defendant’s commission of the felonies of sexual assault in the first degree, unlawful restraint, risk of injury to a child and possession of drugs. The court also found that the defendant violated other conditions of his probation. These conditions included his failure to pay in full the restitution of $210, his failure to pay restitution to Aetna of $8000 and his failure to remain drug free.

The trial court concluded that the defendant should be incarcerated because the rehabilitative purpose of probation could no longer be served and that the commission of several acts presented to the court was sufficient to support a revocation of probation. The court vacated the defendant’s previous sentence and sentenced him to be committed to the custody of the commissioner of correction for a period of six years with no probation. Thereafter, the defendant filed a motion for a new hearing on the violation of probation charges. The court held a hearing on the motion on October 1, 1997. At the hearing, the defendant’s counsel informed the court that the defendant had been tried and acquitted of all charges in connection with the alleged sexual assault, and that he sought a new hearing based on newly discovered evidence. The court denied the defendant’s motion. On October 9, 1997, the defendant filed this appeal from the judgment finding that he violated the conditions of his probation and revoking his probation. On October 29, 1997, the court filed an addendum memorandum of decision restating its findings and conclusions.

“To support a finding of probation violation, the evidence must induce a reasonable belief that it is more probable than not that the defendant has violated a condition of his or her probation. ... In making its factual determination, the trial court is entitled to draw reasonable and logical inferences from the evidence. . . . This court may reverse the trial court’s initial factual determination that a condition of probation has been violated only if we determine that such a finding was clearly erroneous. ... A finding of fact is clearly erroneous when there is no evidence to support it . . . or when although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed. ... In making this determination, every reasonable presumption must be given in favor of the trial court’s ruling .... State v. Welch, 40 Conn. App. 395, 400-401, 671 A.2d 379, cert. denied, 236 Conn. 918, 673 A.2d 1145 (1996).” (Citations omitted; internal quotation marks omitted.) State v. Rollins, 51 Conn. App. 478, 482, 723 A.2d 817 (1999).

The defendant first claims that he was entitled to a finding that he had not violated his probation because he was eventually acquitted at trial. We disagree.

The state argues that we should decline to review this claim because the defendant failed to preserve it. The defendant claims that he preserved this claim and, in the alternative, that this court should review his claim pursuant to State v. Golding, 213 Conn. 233, 239-40, 567 A.2d 823 (1989). We conclude that under either alternative, the claim fails.

This claim is controlled by our recent decision in State v. Rollins, supra, 51 Conn. App. 478. The defendant in Rollins similarly claimed that he should be acquitted of the probation violation charge because he was eventually acquitted at trial. We rejected that claim and concluded that the trial court’s finding of a violation of probation was not clearly erroneous. Id., 483. In rejecting the defendant’s claim in that case, we noted that “[i]n a criminal proceeding, substantive guilt must be established beyond a reasonable doubt; a probation violation need be proven only by a preponderance of the evidence.” Id.; see also State v. Davis, 229 Conn. 285, 295, 641 A.2d 370 (1994).

In Rollins, we held: “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; Payne v. Robinson, 10 Conn. App. 395, 523 A.2d 917 (1987) [aff'd, 207 Conn. 565, 541 A.2d 504, cert. denied, 488 U.S. 898, 109 S. Ct. 242, 102 L. Ed. 2d 230 (1988)]; rather than whether the defendant had, beyond a reasonable doubt, violated a criminal law. The proof of the conduct at the hearing need not be sufficient to sustain a violation of a criminal law. ... In a probation violation proceeding, all that is required is enough to satisfy the court within its sound judicial discretion that the probationer has not met the terms of his probation. Payne v. Robinson, supra, 403.” (Citations omitted; internal quotation marks omitted.) State v. Rollins, supra, 51 Conn. App. 484.

Here, the trial court found, by a preponderance of the evidence, that the defendant violated a condition of his probation by committing felonies, thereby violating criminal laws of the state of Connecticut. This finding was supported by testimony at the revocation hearing and is not clearly erroneous. The defendant’s acquittal of those charges in a subsequent criminal trial does not affect the trial court’s finding in this probation revocation hearing.

The defendant next claims that the trial court improperly found that he violated his probation by failing to pay restitution of $8000 to Aetna because, according to the defendant, this condition of his probation had expired by operation of law. In light of our finding as to the defendant’s first claim, we need not reach this issue. The trial court found that the defendant violated a condition of his probation by committing felonies. We do not disturb that finding. Thus, even if we agreed with the defendant’s second claim, the probation violation finding would stand. Furthermore, we note that the probation violation finding also was premised on the defendant’s violation of other conditions of his probation, namely, his failure to pay in full restitution of $210 and his failure to remain drug free. The defendant does not challenge those findings on appeal.

The judgment is affirmed.

In this opinion the other judges concurred.

       The defendant does not challenge the finding of the trial court as to the second phase of the probation revocation hearing, namely, the finding that the rehabilitative purpose of probation had failed. See State v. Davis, 229 Conn. 285, 290, 641 A.2d 370 (1994) (probation revocation hearing has two components, whether defendant violated condition of probation and whether probationary status should be revoked). Thus, we are concerned with only the first component, that is, the determination of whether there has been a violation of a condition of probation, and not with the court’s discretionary determination of whether probation was properly revoked.

       “ ‘Under North Carolina v. Alford, 400 U.S. 25, 91 S. Ct. 160, 27 L. Ed. 2d 162 (1970), a criminal defendant is not required to admit his guilt, but consents to being punished as if he were guilty to avoid the risk of proceeding to trial.’ Commissioner of Correction v. Gordon, 228 Conn. 384, 385 n.1, 636 A.2d 799 (1994). ‘A guilty plea under the Alford doctrine is a judicial oxymoron in that the defendant does not admit guilt but acknowledges that the state’s evidence against him is so strong that he is prepared to accept the entry of a guilty plea nevertheless.’ State v. Palmer, 196 Conn. 157, 169 n.3, 491 A.2d 1075 (1985).” State v. Daniels, 248 Conn. 64, 66-67 n.2, 726 A.2d 520 (1999) (en banc).

       The conditions of the defendant’s probation were that he get a full-time job, receive substance abuse evaluation and treatment, remain drug free, pay restitution to the victim of $250 within ninety days and pay restitution to Aetna Insurance Company of $8000 in connection with a condition of probation from a previous offense.

       On April 15, 1997, the defendant pleaded guilty to the charge of issuing a bad check and was sentenced to three months incarceration, execution suspended, and placed on probation for one year with the special condition that he make restitution of $150 on the check.

       Although the defendant’s July 13, 1996 arrest was included in the arrest warrant application as a ground for his violation of probation, evidence concerning his conviction for issuing a bad check was not considered at the violation of probation hearing.

       In Wright, this court noted that “ ‘[i]t is universally held that the commission of a felony violates a condition inherent in every probation order. . . . Had the sentencing court in this case merely placed the defendant on probation and said no more, commission of a felony would nevertheless constitute a violation sufficient to authorize revocation of probation.’ . . . State v. Roberson, 166 Conn. 73, 77, 327 A.2d 556 (1973).” State v. Wright, supra, 24 Conn. App. 577 n.1.
      Here, the defendant concedes in his brief that one of the conditions of his probation was that he not violate any criminal law of the state of Connecticut.