text:
    IN RE ALEXANDER C.

    (AC 19883)
    Lavery, C. J., and Foti and Healey, Js.

      Argued September 21
    officially released October 31, 2000

      Valerie Alexander, with whom was William R. Kin-loch, for the appellant (respondent).

      Jonathan W. A. Ruhe, with whom, on the brief, were Barbara J. Ruhe and Jennifer L. Breuer, legal intern, for the appellees (intervening grandparents).

       In accordance with the spirit and intent of General Statutes § 46b-142 (b) and Practice Book § 79-3, the names of the parties involved in this appeal are not disclosed. The records and papers of this case shall be open for inspection only to persons having a proper interest therein and upon order of the Appellate Court.

   Opinion

LAVERY, C. J.

The respondent mother appeals from the judgment of the trial court denying her motion to transfer guardianship of her minor child to her from her parents. On appeal, the respondent claims that (1) the court’s decision was against the weight of the evidence, (2) she was prejudiced by the refusal of the grandparents to follow the orders of the court, (3) the child was prejudiced by the refusal of the grandparents to follow the orders of the court and (4) the court in its decision ignored the best interests of the child. We affirm the judgment of the trial court.

The facts relevant to the disposition of this appeal are as follows. On November 20, 1992, Alexander, then four months old, was removed from the respondent’s care by the department of children and families (department) and placed in foster care. Alexander was adjudicated a neglected child on April 13, 1993, and his guardianship was transferred to his maternal grandparents, who have provided for his daily care since that time. The respondent has had contact, both informally and by court order, with Alexander throughout the years.

On June 19, 1998, the respondent filed a motion to open and transfer guardianship of her son from his maternal grandparents to herself. Subsequently, the respondent filed a motion for unsupervised visitation. The court heard five days of testimony from the respondent, the grandparents and twelve other witnesses, and was presented with twenty-nine exhibits. In its November 27, 1998 memorandum of decision, the court found that “[f]rom the evidence to date, [the respondent] has demonstrated the commitment, skills and understanding to become a full-time parent to Alexander in the near future.” The court, however, concluded that “without the increasing and unsupervised visitation recommended by [the department] and [Robert D. Meier, a court-appointed psychologist-evaluator], it is premature to return guardianship of Alexander to his mother . . . .” The court then granted the respondent’s motion for unsupervised visitation, entered interim orders and continued the hearing on the motion to transfer the guardianship until March 1, 1999, for final disposition.

Starting on March 1, 1999, the court heard an additional four days of testimony and received additional exhibits from both parties. The trial concluded on May 24, 1999. In its June 21, 1999 memorandum of decision, the court stressed the inability of the parties to cooperate, the recent marriage of the mother, her planned move to New York City and the obvious hostilities between the grandparents and the mother, but stated that “the specifics of the hostilities that exist between [the respondent] and her parents do not focus on what is in the best interest of this child.” The court then examined the testimony of two psychologists who have been involved in this case. They both testified that the child’s grandparents are his psychological parents, and the court found their testimony credible.

The court found that Michael Pines, a licensed clinical psychologist, with whom the grandparents had consulted in their care of Alexander, had seen the child since approximately June, 1998. Although he advocated in 1997 for increased access between Alexander and his mother, in the final stage of the trial, he stated that the child has an “anxious attachment” problem and that it is clear that the grandparents are the “psychological parents” of the child. He also explained that there was a “significant increase in [Alexander’s] anxiety and insecurity most notably since the overnight [unsupervised] visitation.” In Pines’ professional opinion, a transfer in guardianship would not be in the best interests of the child.

The court also found that Meier, the court-appointed psychologist-evaluator, reviewed the relationship between the respondent, her parents and Alexander several times since 1995. Although his November, 1998 written report suggested that reunification between Alexander and his mother be granted, in 1999 it was his opinion that the mother was not the “psychological parent of her child . . . [and that in] his opinion, returning the child to her care on a full-time basis would require Alexander to make significant adjustments. Alexander would need to be supported by therapy to guide him through the adjustment issues that would inevitably be expected to arise.”

The four issues on appeal can be consolidated into whether the court acted in the best interest of the child. In this case, there was sufficient evidence that the court’s decision was in the best interest of the child.

“The burden is clearly upon the persons applying for the revocation of commitment to allege and prove that cause for commitment no longer exists. Once that has been established, the inquiry becomes whether a continuation of the commitment will nevertheless serve the child’s best interests.” (Internal quotation marks omitted.) In re Cesar G., 56 Conn. App. 289, 292-93, 742 A.2d 428 (2000). “[T]he primary focus of the court is the best interests of the child, the child’s interest in sustained growth, development, well-being, and in the continuity and stability of its environment.” Cappetta v. Cappetta, 196 Conn. 10, 16, 490 A.2d 996 (1985).

“[ I]n deciding what is in the best interest of the child, the court is vested with broad discretion. The trial court had the advantage of observing the parties and witnesses. [T]he authority to exercise the judicial discretion under the circumstances revealed by the finding is not conferred upon this court, but upon the trial court, and . . . we are not privileged to usurp that authority or to substitute ourselves for the trial court. ... A mere difference of opinion or judgment cannot justify our intervention. Nothing short of a conviction that the action of the trial court is one which discloses a clear abuse of discretion can warrant our interference.” (Internal quotation marks omitted.) Kearney v. State, 174 Conn. 244, 252, 386 A.2d 223 (1978). “In determining whether there has been an abuse of discretion, the ultimate issue is whether the court could reasonably conclude as it did.” (Internal quotations marks omitted.) Simmons v. Simmons, 244 Conn. 158, 175, 708 A.2d 949 (1998); Ignacio v. Montana-Ignacio, 57 Conn. App. 647, 648, 750 A.2d 491 (2000).

We conclude, on the basis of the evidence presented to the trial court, that the court reasonably concluded that it was in the best interest of the child that guardianship remain with the maternal grandparents with continued visitation with the mother. Accordingly, the court did not abuse its discretion in denying the respondent’s motion for transfer of guardianship.

The judgment is affirmed.

In this opinion the other judges concurred.

       Alexander’s grandparents had consulted with Pines in the past, but Pines never actually examined or met Alexander until 1998.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    CARLTON JOLLEY v. COMMISSIONER OF CORRECTION
    (AC 19955)
    Laveiy, C. J., and Foti and Dupont, Js.
    Submitted on briefs September 15
    officially released October 31, 2000

      Carlton Jolley, pro se, the appellant (petitioner), filed a brief.

      Richard Blumenthal, attorney general, and Richard T. Biggar, assistant attorney general, filed a brief for the appellee (respondent).
   Opinion

PER CURIAM.

The petitioner, Carlton Jolley, appeals from the judgment rendered by the habeas court denying his petition seeking reinstatement of statutory good time credit. We affirm the judgment of the habeas court.

A prison inmate can be deprived of his statutory good time credit only if he is offered procedural due process protection. See Superintendent v. Hill, 472 U.S. 445, 453, 105 S. Ct. 2768, 86 L. Ed. 2d 356 (1985); Wolff v. McDonnell, 418 U.S. 539, 558, 94 S. Ct. 2963, 41 L. Ed. 2d 935 (1974). Thus, when a prison inmate is threatened with a loss of statutory good time credits, the inmate must receive (1) advanced written notice of the disciplinary charges, (2) an opportunity, when consistent with institutional safety and correctional goals, to call witnesses and to present documentary evidence in his defense and (3) a written statement by the fact finder of the evidence relied on and the reasons for the disciplinary action. See Wolff v. McDonnell, supra, 563-67.

Due process is satisfied if the prison disciplinary board shows some evidence that supports the revocation of good time credit. See Superintendent v. Hill, supra, 472 U.S. 455. “Ascertaining whether this standard is satisfied does not require examination of the entire record, independent assessment of the credibility of witnesses, or weighing of the evidence. Instead, the relevant question is whether there is any evidence in the record that could support the conclusion reached by the disciplinary board.” Id., 455-56.

In this case, the disciplinary reports submitted against the petitioner accorded him the requisite procedural safeguards to satisfy his due process rights. Our review of the entire record leads us to conclude that the court properly reviewed the prison disciplinary board’s decision that resulted in the petitioner’s loss of 769 total days of statutory good time credit.

The judgment is affirmed.

       See General Statutes § 18-7a.


author: ZARELLA, J.

text:
    STATE OF CONNECTICUT v. ANTHONY TORRES
    (AC 18754)
    Mihalalcos, Zarella and O’Connell, Js.
    Argued March 20
    officially released November 7, 2000

      Avery S. Chapman, special public defender, for the appellant (defendant).

      Bruce R. Lockwood, deputy assistant state’s attorney, with whom, on the brief, were John A. Connelly, state’s attorney, and Cara Eschuk, senior assistant state’s attorney, for the appellee (state).
   Opinion

ZARELLA, J.

The defendant, Anthony Torres, appeals from the judgments of conviction, rendered after a juiy trial, of ten counts of sexual assault in the first degree in violation of General Statutes § 53a-70 (a) and four counts of risk of injury to a child in violation of General Statutes § 53-21. The defendant claims that the trial court improperly (1) allowed the fiance of one of the victims to sit next to the victim during her testimony, (2) allowed one of the victims to sit back in her chair during her testimony, thereby obstructing the defendant’s view of her and (3) admitted constancy of accusation evidence. We affirm the judgments of the trial court.

The jury reasonably could have found the following facts. The defendant resided with the victims, D and J, and their mother for approximately eight years prior to his arrest, during which time the defendant often looked after D and J while their mother was at work. D was bom in September, 1980, and J was bom in February, 1978. The defendant was bom in April, 1957.

For a period of almost six years, from October, 1990, to March, 1996, the defendant sexually assaulted D and J on numerous occasions. Both victims feared the defendant and what he might do to them if they told anyone about the abuse. On one occasion, the defendant threatened D by holding a knife to her neck and telling her that he would kill her if she told anyone about the abuse. At the time of this incident, D was twelve years old. The defendant also threatened J by using a weapon if she refused to have sex with him.

When D was fourteen years old, she told her mother that she was being sexually abused by the defendant. Although the victims’ mother confronted the defendant with the allegations, which he denied, the victims’ mother did not report or otherwise pursue the allegations. The defendant continued to sexually abuse D and J.

In March, 1996, D told a school friend about an incident in which the defendant performed oral sex on her. Upon the urging of her friend, D reported the incident to a school counselor. D told the counselor that both she and her sister were being sexually abused by the defendant. When the school counselor questioned J, she admitted that she too was being sexually abused by the defendant.

D and J were taken to the hospital for physical examinations. Thereafter, both D and J spoke with an investigator from the department of children and families. D and J also gave statements to police from the Waterbury police department in which they alleged that they had been sexually abused by the defendant. The defendant was charged with the sexual abuse of D and J and, after a jury trial, was convicted of ten counts of sexual assault in the first degree and four counts of risk of injury to a child. This appeal followed.

I

The defendant first claims that the court improperly permitted J’s fiance to sit next to her throughout her testimony. The defendant argues that the court should have held an evidentiary hearing at which the state was required to demonstrate by clear and convincing evidence that such an arrangement was necessary. The defendant further argues that the fiance’s presence impermissibly bolstered the witness’ credibility. We disagree.

At trial, J was called as a witness. Upon entering the foyer of the courtroom, she broke down and cried, “No, no, no.” J refused to proceed into the courtroom to testify. The court thereafter excused the jury and took a recess. The state then made a motion to the court seeking special accommodations for J’s testimony. Although the court did not hold an evidentiary hearing, as the defendant requested, the court heard the parties’ respective arguments on the state’s motion. The court thereafter granted the state’s request to allow J’s fiance to sit outside the witness box and next to J during her testimony.

A

The defendant argues that the court was required to hold an evidentiary hearing in which the state had to prove by clear and convincing evidence that J required special accommodations. The defendant argues that the state’s failure to prove such a necessity by clear and convincing evidence, coupled with the court’s decision allowing J’s fiance to sit next to her during her testimony, violated his constitutional right to confrontation.

It is important to note that the defendant recognizes that General Statutes § 54-86g is inapplicable to the present situation. The defendant claims, however, that the statute and the case law interpreting the statute are helpful in analyzing the present matter. The defendant cites State v. Jarzbek, 204 Conn. 683, 529 A.2d 1245 (1987), cert. denied, 484 U.S. 1061, 108 S. Ct. 1017, 98 L. Ed. 2d 982 (1988), and State v. Menzies, 26 Conn. App. 674, 603 A.2d 419, cert. denied, 221 Conn. 924, 608 A.2d 690 (1992), in support of his position.

In Jarzbek, the defendant was charged with risk of injury to or impairing the morals of a child and sexual assault in the fourth degree. See State v. Jarzbek, supra, 204 Conn. 684. The state sought permission of the trial court to take the testimony of the minor victim by videotape outside the physical presence of the defendant. Id., 685. The court granted the state permission, and the videotaped testimony was entered into evidence. Id., 687.

On appeal, the defendant claimed that the court’s order concerning the videotaped testimony violated his constitutional right to confront the witnesses against him and to be present at trial. Id., 689. Our Supreme Court held that “a trial court must determine, at an evidentiary hearing, whether the state has demonstrated a compelling need for excluding the defendant from the witness room during the videotaping of a minor victim’s testimony. In order to satisfy its burden of proving compelling need, the state must show that the minor victim would be so intimidated, or otherwise inhibited, by the physical presence of the defendant that the trustworthiness of the victim’s testimony would be seriously called into question. Furthermore, the state bears the burden of proving such compelling need by clear and convincing evidence. . . . Although the trial court may consider the well-being of the witness as a significant factor in its analysis, the state cannot prove need simply by demonstrating that the victim would suffer some harm if forced to testify in the presence of the accused. We reiterate that, in light of the constitutional right of confrontation at stake here, the primary focus of the trial court’s inquiry must be on the reliability of the minor victim’s testimony, not on the injury that the victim may suffer by testifying in the presence of the accused.” (Citations omitted.) Id., 704-705.

In the present case, unlike in Jarzbek, the defendant’s right to confront the witnesses against him, face to face, was not impaired by the special arrangements allowed by the court, nor was his right to cross-examine the witness impaired in any way. The defendant remained in the courtroom throughout the two days of J’s testimony. Accordingly, we find the defendant’s reliance on Jarz-bek misplaced.

The defendant’s reliance on Menzies is slightly more compelling, but still unavailing. In Menzies, the state filed a motion for special procedures pursuant to General Statutes § 54-86g (b); see State v. Menzies, 26 Conn. App. 686; to which the defendant objected. The defendant specifically objected to the state’s request that the witness’ guardian ad litem be allowed to sit next to the child witness during her testimony on the ground that the guardian’s presence enhanced the credibility of and heightened the sympathy for the witness. Id., 691. The trial court granted the state’s request after holding an evidentiary hearing in which the court found that the state had sustained its burden by clear and convincing evidence. Id., 690.

Notwithstanding that the trial court held an eviden-tiary hearing, we did not conclude in Menzies that subsection (b) of § 54-86g requires one. We stated: “Although the Jarzbek court concluded that General Statutes § 54-86g (a) requires that there be an eviden-tiary hearing prior to the court’s adoption of the procedures outlined therein, no such similar requirement has yet been adopted with respect to the procedures outlined in subsection (b). Because the parties have not raised the issue of whether subsection (b) requires an evidentiary hearing, and because a full evidentiary hearing was conducted here, we need not address that question.” Id., 689 n.13.

As previously noted, § 54-86g is inapplicable to the present case. We therefore need not decide whether § 54-86g (b) also requires an evidentiary hearing. Accordingly, we conclude that the defendant’s reliance on Menzies is misplaced.

B

The defendant further argues that the presence of J’s fiance impermissibly bolstered the witness’ credibility. We disagree. The court’s decision to allow J’s fiance to sit outside the witness box and next to her during her testimony falls well within the court’s broad discretion to ensure a fair trial and to administer justice.

“The function of the court in a criminal trial is to conduct a fair and impartial proceeding.” (Internal quotation marks omitted.) State v. Jupin, 26 Conn. App. 331, 348, 602 A.2d 12, cert. denied, 221 Conn. 914, 603 A.2d 404 (1992). “A trial judge in a criminal case may take all steps reasonably necessary lor the orderly progress of the trial. . . . When the rights of those other than the parties are implicated, [t]he trial judge has the responsibility for safeguarding both the rights of the accused and the interests of the public in the administration of criminal justice.” (Citations omitted; internal quotation marks omitted.) Id., 349. Moreover, “[t]he [ability] of a witness [to testify reliably] is a matter peculiarly within the discretion of the trial court and its ruling will be disturbed only in a clear case of abuse or of some error in law;” (Internal quotation marks omitted.) In re Brandon W., 56 Conn. App. 418, 426, 747 A.2d 526 (2000).

The evidence adequately supports the court’s decision to allow J’s fiance to be seated next to the witness during her testimony. The court based its decision on testimony concerning J’s mental capacity and the court’s own observations of J’s distress and anxiety about testifying. Implicit in the court’s decision is the finding that J required the accommodation in order to provide testimony.

Moreover, the court’s cautionary instructions to the jury and to J’s fiance limited the possibility that the presence of the fiance would bolster J’s testimony. The court ordered J’s fiance to refrain from communicating with J in any way while she testified. The court also instructed the juiy to disregard the fiance’s presence and not to take any inference whatsoever from his presence. Presented with these circumstances, we cannot conclude that the presence of J’s fiance bolstered J’s testimony. Accordingly, the court’s decision was not an abuse of its broad discretion to ensure a fair and impartial trial.

II

The defendant next claims that the court improperly permitted J to sit back in the witness chair, out of view of the defendant, during her testimony. We conclude that the record is inadequate for our review.

It is incumbent upon the appellant to take the necessary steps to provide an adequate record for appellate review. See Practice Book § 60-5; Walton v. New Hartford, 223 Conn. 155, 164-65, 612 A.2d 1153 (1992). “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).

At trial, the defendant did not make an offer of proof as to whether he could see the witness from where he was seated. During the court’s consideration of whether the witness would be allowed to testify under special circumstances, defense counsel indicated that the witness needed to move forward in order for him to see her. The court asked defense counsel to move and position himself so that he could see the witness. Defense counsel did so and then remarked that the defendant should also have the right to view the witness. Defense counsel did not make, however, an offer of proof concerning the defendant’s inability to see the witness. Defense counsel’s inability to see the witness and his subsequent acquiesce to move to see her do not translate into the defendant’s inability to see the witness. Further, the witness testified over a period of two days, and, during that time, the defendant made no objection claiming that he could not see the witness.

The defendant’s failure to make an offer of proof at trial or to file a motion for rectification of the record to reflect that his view of the witness was obstructed results in a record that is inadequate for our review. Accordingly, we decline to review the defendant’s claim.

Ill

Lastly, the defendant claims that the court improperly admitted constancy of accusation evidence. We do not agree.

“The constancy of accusation doctrine is an exception to the hearsay rule and has existed in Connecticut since 1830.” State v. Grenier, 55 Conn. App. 630, 646, 739 A.2d 751 (1999), cert. granted on other grounds, 252 Conn. 931, 746 A.2d 794 (2000). “It is well settled that the doctrine of constancy of accusation does not violate an accused’s constitutional right to confrontation ... or due process.” (Citation omitted.) State v. Cansler, 54 Conn. App. 819, 824, 738 A.2d 1095 (1999). “The doctrine originally was premised on the arguably inaccurate premise that, if a woman had been sexually assaulted, it would be natural for her to confide in others.” (Internal quotation marks omitted.) State v. Orhan, 52 Conn. App. 231, 238, 726 A.2d 629 (1999).

“In determining whether to permit [constancy of accusation] testimony, the trial court must balance the probative value of the evidence against any prejudice to the defendant.” (Internal quotation marks omitted.) Id., 239. “[Constancy of accusation evidence is not admissible unless the victim has testified, and is subject to cross-examination, concerning the crime and the identity of the person or persons to whom the victim has reported the crime . . . .” State v. Troupe, 237 Conn. 284, 293, 677 A.2d 917 (1996); see also State v. Lindstrom, 46 Conn. App. 810, 816, 702 A.2d 410, cert. denied, 243 Conn. 947, 704 A.2d 802 (1997). “[W]hether evidence is admissible under the constancy of accusation doctrine is an evidentiary question that will be overturned on appeal only where there was an abuse of discretion and a showing by the defendant of substantial prejudice or injustice.” (Internal quotation marks omitted.) State v. Orhan, supra, 52 Conn. App. 243.

At trial, the state offered certain statements made by the victims to others that the defendant had sexually assaulted them. Those statements were admitted, and the court gave the jury specific instructions that the evidence was “admitted solely to corroborate or not corroborate the complainant’s testimony in court; to be considered by you only in determining the weight and credibility you will accord their testimony given here in this courtroom.”

The defendant claims that the constancy of accusation evidence was improperly admitted because the testimony did not satisfy the “indicia of reliability” standard set forth in Ohio v. Roberts, 448 U.S. 56, 100 S. Ct. 2531, 65 L. Ed. 2d 597 (1980). The defendant’s reliance on Roberts is misplaced.

In Roberts, the United States Supreme Court clarified that the confrontation clause ordinarily envisions “a personal examination and cross-examination of the witness, in which the accused has an opportunity, not only of testing the recollection and sifting the conscience of the witness, but of compelling him to stand face to face with the jury in order that they may look at him, and judge by his demeanor upon the stand and the manner in which he gives his testimony whether he is worthy of belief. Mattox v. United States, [156 U.S. 237, 242-43, 15 S. Ct. 337, 39 L. Ed. 409 (1895)]. These means of testing accuracy are so important that the absence of proper confrontation at trial calls into question the ultimate integrity of the fact-finding process. Chambers v. Mississippi, 410 U.S. 284, 93 S. Ct. 1038, 35 L. Ed. 2d 297 (1973), quoting Berger v. California, 393 U.S. 314, 315, 89 S. Ct. 540, 21 L. Ed. 2d 508 (1969).” (Internal quotation marks omitted.) Ohio v. Roberts, supra, 448 U.S. 63-64.

The Roberts court announced a two part test for determining whether former testimony may be admitted without infringing on a criminal defendant’s right of confrontation. “That test requires (1) demonstration that the witness is unavailable to testify at trial, and (2) adequate indicia of reliability of the previous testimony.” State v. Williams, 231 Conn. 235, 248, 645 A.2d 999 (1994). The “indicia of reliability” analysis, therefore, arises only when a witness is unavailable to testify. In the present case, J was available to testify. In fact, she testified at trial for two days.

The defendant further claims that the constancy of accusation evidence was more prejudicial than probative because “[t]he jury utilized such statements of proof of the facts at issue, and not just merely as corroborative of the complaining party.” Notwithstanding the defendant’s claim, the court specifically instructed the jury that the evidence was to be used only to corroborate the victim’s testimony. The defendant does not offer any evidence that the jury utilized the statements in any way other than instructed and we will not assume any such misuse. The defendant has failed to show that a substantial prejudice or injustice has resulted from the constancy of accusation evidence. We conclude, therefore, that the court did not abuse its discretion in admitting the constancy of accusation evidence.

The judgments are affirmed.

In this opinion the other judges concurred.

       General Statutes § 53a-70 (a) provides in relevant part: “A person is guilty of sexual assault in the first degree when such person (1) compels another person to engage in sexual intercourse by the use of force against such other person or a third person, or by the threat of use of force against such other person or against a third person which reasonably causes such person to fear physical injury to such person or a third person, or (2) engages in sexual intercourse with another person and such other person is under thirteen years of age and the actor is more than two years older than such person . . .

       General Statutes § 53-21 provides in relevant part: “Any person who (1) wilfully or unlawfully causes or permits any child under the age of sixteen years to be placed in such a situation that the life or limb of such child is endangered, the health of such child is likely to be injured or 1he morals of such child are likely to be impaired, or does any act likely to impair the health or morals of any such child, or (2) has contact with the intimate parts, as defined in section 53a-65, of a child under the age of sixteen years or subjects a child under the age of sixteen years of age to contact with the intimate parts of such person, in a sexual and indecent manner likely to impair the health or morals of such child . . . shall be guilty of a class G felony.”
      Section 53-21 was amended during the period of the defendant’s allegedly criminal actions, adding subdivision (2) effective October 1, 1995.

       Although the defendant also contends that “the court erred by admitting medical records without redacting certain statements contained therein,” he has not briefed the issue. “Where an issue is merely mentioned, but not briefed beyond a bare assertion of the claim, it is deemed to have been waived.” (Internal quotation marks omitted.) Commission on Human Rights & Opportunities v. Truelove & MacLean, Inc., 238 Conn. 337, 344 n.11, 680 A.2d 1261 (1996). We therefore do not address the issue of whether the court erred in admitting the medical records.

       General Statutes § 54-86g provides in relevant part: “(a) In any criminal prosecution of an offense involving assault, sexual assault or abuse of a child twelve years of age or younger, the court may, upon motion of the attorney for any party, order that the testimony of the child be taken in a room other than the courtroom .... Only the judge, the defendant, the attorneys for the defendant and for the state, persons necessary to operate the equipment and any person who would contribute to the welfare and well-being of the child may be present in the room with the child during his testimony, except that the court may order the defendant excluded from the room or screened from the sight and hearing of the child only if the state proves, by clear and convincing evidence, that the child would be so intimidated, or otherwise inhibited, by the physical presence of the defendant that a compelling need exists to take the testimony of the child outside the physical presence of the defendant in order to insure the reliability of such testimony. If the defendant is excluded from the room or screened from the sight and hearing of the child, the court shall ensure that the defendant is able to observe and hear the testimony of the child, but that the child cannot see or hear the defendant. . . .
      “(b) In any criminal prosecution of an offense involving assault, sexual assault or abuse of a child twelve years of age or younger, the court may, upon motion of the attorney for any party, order that the following procedures be used when the testimony of the child is taken: (1) Persons shall be prohibited from entering and leaving the courtroom during the child’s testimony; (2) an adult who is known to the child and with whom the child feels comfortable shall be permitted to sit in close proximity to the child during the child’s testimony, provided such person shall not obscure the child from the view of the defendant or the trier of fact . . .

       The defendant correctly recognizes that § 54-86g applies only to witness victims who are under thirteen years of age.

       The court in Jarzbek noted that “[a]lthough the [trial] court did not rely on General Statutes § 54-86g, because that statute did not become effective until after the initiation of this action, the videotaping procedure it approved is essentially the same procedure now prescribed by § 54-86g [a].’’ State v. Jarzbek, supra, 204 Conn. 686 n.2.

       Prior to J’s testimony, the state called the school psychologist, who testified that J was “educable mentally retarded. ” This conclusion was drawn from the results of certain testing of J.

       The following colloquy occurred at trial:
      “The Court: All right, based upon the testimony you heard from the witness this morning, the first witness, with respect to special circumstances regarding the witness [J] and based upon my own observation of the stress and anxiety that she exhibited upon entering the courtroom, I am going to allow these special provisions to be made to assist her in testifying today. I will allow [J’s fiance] to sit where he is seated next to the witness and the witness stand. You are not to communicate in anyway with [J]. Do you understand that, sir?
      “[J’s Fiance]: Yes, Your Honor.
      “The Court: All right. You cannot talk to her at all. You can’t give her any signals or signs or anything. You are simply sitting there for moral support and nothing more. And that will help you, [J]?”

       The court instructed the jury as follows: “Now, you’ll . . . note for the record that we have our witness on the witness stand and there is a young man who is sitting next to the witness. That young man is . . . identified as the fiance of the witness. You are not to infer anything at all by the fact— you’re ordered not to infer anything at all by the fact that [he] is sitting alongside the witness. You are not to infer anything if he is to make any facial expressions or any gestures of any kind. You are to totally disregard that. He is sitting there for support of the witness and no other reason, and you are not to draw any inferences at all from his presence here today. Okay?”

       The following colloquy occurred:
      “[Defense Counsel]: Yes, Your Honor. I’ll segment my comments to two issues. Logistically, I need to pull forward so I can see her because I can’t see her.
      “The Court: Well, I’m going to ask then that you move your—relocate yourself so you’ll be able to see her.
      “[Defense Counsel]: Okay.
      “The Court: All right?
      “[Defense Counsel]: My client certainly I think should have a right to be able to view this witness.
      “The Court: There is no such right accorded either under our constitution or mu statutes. The right of confrontation does not include the right to see the witness, and our appellate courts have been clear on that.
      “[Defense Counsel]: Note my exception to that, but moving along . . . .”


author: PELLEGRINO, J.

text:
    STATE OF CONNECTICUT v. JAMES T. WILLIAMS
    (AC 19680)
    Spear, Pellegrino and Peters, Js.

      Argued June 9
    officially released November 7, 2000

      Felix Esposito, special public defender, for the appellant (defendant).

      Peter Anthopolos, special deputy assistant state’s attorney, with whom, on the brief, were Michael Dear-ington, state’s attorney, and Laura DeLeo, assistant state’s attorney, for the appellee (state).
   Opinion

PELLEGRINO, J.

The defendant, James T. Williams, appeals from the judgment of conviction rendered following his guilty plea under the Alford doctrine to the crimes of attempt to commit assault in the second degree in violation of General Statutes §§ 53a-49 and 53a-60, and reckless burning in violation of General Statutes § 53a-114. He claims that the trial court improperly accepted his plea because he was not apprised of the elements of the crimes and, therefore, his plea was not made knowingly and voluntarily. We affirm the judgment of the trial court.

The following facts and procedural history are relevant to our resolution of this claim. The court accepted the defendant’s plea of guilty to the crimes charged. He later was sentenced, within the parameters of his plea agreement, to six years incarceration, suspended after thirty months, and three years probation. He did not seek to withdraw his plea at that time.

The underlying facts that gave rise to the criminal charges, although not admitted by the defendant, are not in dispute. Following an argument with the defendant, the victim, while resting on her bed, felt something hot in the area of her genitalia. When she raised her head, she saw the defendant holding a cigarette lighter to her groin area and observed that her pants were on fire. There were bum marks on her pants and on the bedclothes. At the time of this incident, the victim’s five children were asleep in another bedroom.

During the plea canvass conducted by the court at the time the defendant made his Alford plea, the defendant was apprised of all of his constitutional rights, which he acknowledged he was voluntarily waiving, and the maximum penalties for the charges to which he pleaded. He was not, however, advised of the elements of the crimes with which he was charged, nor did the court conduct an inquiry as to whether he was aware of them. The state does not dispute that the canvass was devoid of any specific reference to the elements of the crimes, and it is this issue that is the subject of the present appeal.

The defendant did not preserve his claim for review on appeal. Under our procedure, to preserve his claim after the plea was accepted, the defendant would have to move to withdraw his plea. A defendant “shall” be allowed, under the provisions of Practice Book § 39-26, to withdraw his or her plea on proof of one of the grounds listed in Practice Book § 39-27. Practice Book § 39-27 (1) permits a plea to be withdrawn if it was accepted without substantial compliance with Practice Book § 39-19. Practice Book § 39-19 provides, inter alia, for an explanation of the “nature of the charge . . . .” The defendant did not invoke the provisions of § 39-26, however, and, therefore has not preserved his claim of a violation of § 39-19. Practice Book § 39-26 expressly provides in relevant part: “A defendant may not withdraw his or her plea after the conclusion of the proceeding at which the sentence was imposed.” The defendant here did not seek to withdraw his plea prior to sentencing.

The defendant concedes that he failed to preserve his right to review of his claim on appeal, yet urges that we review it under the doctrine enunciated in State v. Golding, 213 Conn. 233, 239-40, 567 A.2d 823 (1989), which is reserved for those extraordinary and exceptional circumstances when a denial of review would deprive a defendant of a fundamental constitutional right. In Golding, our Supreme Court held that “a defendant can prevail on a claim of constitutional error not preserved at trial only if all of the following conditions are met: (1) the record is adequate to review the alleged claim of error; (2) the claim is of constitutional magnitude alleging the violation of a fundamental right; (3) the alleged constitutional violation clearly exists and clearly deprived the defendant of a fair trial; and (4) if subject to harmless error analysis, the state has failed to demonstrate harmlessness of the alleged constitutional violation beyond a reasonable doubt. (Emphasis in original.) Id. “The first two questions relate to whether a defendant’s claim is reviewable, and the last two relate to the substance of the actual review.” State v. Newton, 8 Conn. App. 528, 531, 513 A.2d 1261 (1986).

On appeal, the claim for review must meet all four prongs of the Golding analysis to be successful. State v. Krzywicki, 39 Conn. App. 832, 836, 668 A.2d 387 (1995). “We are free, however, to dispose of the claim by focusing on the condition that appears most relevant under the circumstances of the case.” State v. Andrews, 29 Conn. App. 533, 537, 616 A.2d 1148 (1992), cert. denied, 224 Conn. 924, 618 A.2d 531 (1993); see State v. Pinnock, 220 Conn. 765, 778, 601 A.2d 521 (1992). Because the defendant failed to demonstrate that a constitutional violation clearly exists and clearly deprived him of a fair trial, his claim fails to satisfy the third condition of Golding. See State v. Coleman, 52 Conn. App. 466, 473, 727 A.2d 246, cert. denied, 249 Conn. 902, 732 A.2d 776 (1999).

The defendant argues that the court, by failing to advise him of the elements of the crimes with which he was charged, deprived him of a fundamental constitutional right and that he is, therefore, entitled to review under Golding. Our Supreme Court, in State v. Badgett, 200 Conn. 412, 418, 512 A.2d 160, cert. denied, 479 U.S. 940, 107 S. Ct. 423, 93 L. Ed. 2d 373 (1986), held that “[t]o the extent that the defendant’s claim implicates the failure of the trial court to apprise him of the constitutionally mandated requirements for a valid plea . . . his claim is properly reviewable despite the absence of a timely motion to withdraw the plea. . . . While the federal constitution requires that the record of the plea canvass indicate the voluntariness of any waiver of . . . three core constitutional rights ... it does not require that the trial court go beyond these constitutional minima. ... A defendant can voluntarily and understandingly waive these rights without literal compliance with the prophylactic safeguards of Practice Book [§§ 39-19 and 39-20]. Therefore . . . precise compliance with the provisions [of the Practice Book] is not constitutionally required. [The court’s analysis, therefore, should] focus on whether the federal constitutional principles . . . were satisfied rather than on meticulous compliance with the provisions of the Practice Book.” (Citations omitted; emphasis added; internal quotation marks omitted.)

In this case, the defendant was advised of his core constitutional rights. The defendant nonetheless argues that we should not read Badgett as limiting the constitutional requirements to only three so called core constitutional rights. He argues that this court has, in considering claims of deficient plea waivers, expanded the “constitutional requirements.” He points to State v. Loyd, 8 Conn. App. 491, 540 A.2d 1058 (1986), cert. denied, 203 Conn. 801, 522 A.2d 293 (1987), State v. Joyner, 6 Conn. App. 469, 506 A.2d 561 (1986), and State v. Alicea, 41 Conn. App. 47, 54, 674 A.2d 468 (1996), in support of this contention.

We are bound by our Supreme Court’s decision in Badgett, which requires us to focus our inquiry “on whether the federal constitutional principles of [Boykin v. Alabama, 395 U.S. 238, 243, 89 S. Ct. 1709, 23 L. Ed. 2d 274 (1969)] were satisfied rather than on meticulous compliance with the provisions of the Practice Book.” State v. Badgett, supra, 200 Conn. 418. Boykin requires that before accepting a defendant’s plea, a trial court must inform him of three core constitutional rights: His right to be free of compulsory self-incrimination, and his rights to a jury trial and to confront his accusers. Boykin v. Alabama, supra, 243; State v. Badgett, supra, 418. Neither Boykin nor Badgett, however, requires a trial court to inform a defendant of the elements of the charges against him.

Therefore, the defendant cannot prevail on his unpre-served claim unless he establishes that the court’s failure to inform him of the elements of the crimes with which he was charged violated one of the three core constitutional rights identified in Boykin and deprived him of a fair trial. In State v. Loyd, supra, 8 Conn. App. 494B, the trial court’s failure to inform the defendant of the minimum sentences for each of the crimes with which he was charged was of constitutional dimension because the “essential holding of Boykin is that an accused must be equipped with a full understanding of what a guilty plea connotes and of its consequences.” Thus, in Loyd it was shown under the circumstances of that case that the requirement of Practice Book § 711 (2), now § 39-19 (2), that the court discuss with the defendant the mandatory minimum sentence for the crime charged was of constitutional magnitude.

The United States Supreme Court has stated that where a trial court does not inform a defendant during a plea proceeding about the elements of the crime charged, “even without such an express representation, it may be appropriate to presume that in most cases defense counsel routinely explain the nature of the offense in sufficient detail to give the accused notice of what he is being asked to admit.” Henderson v. Morgan, 426 U.S. 637, 647, 96 S. Ct. 2253, 49 L. Ed. 2d 108 (1976); see Marshall v. Lonberger, 459 U.S. 422, 436-37, 103 S. Ct. 843, 74 L. Ed. 2d 646 (1983) (“under Henderson, [defendant] must be presumed to have been informed, either by his lawyers or at one of the presentencing proceedings, of the charges on which he was indicted”); Oppel v. Meachum, 851 F.2d 34, 38 (2d Cir.), cert. denied, 488 U.S. 911, 109 S. Ct. 266, 102 L. Ed. 2d 254 (1988) (“under Henderson v. Morgan [supra, 647], it is normally presumed that the defendant is informed by his attorney of the charges against him and the elements of those charges”).

In this case, there seems to be little question that the defendant was aware of the nature of the charges and their elements in reaching his decision to enter an Alford plea. It is apparent from our review of the record that the defendant here, in deciding to enter an Alford plea, was apprised by his counsel of the elements of the offenses with which he was charged so as to demonstrate to him that the state could prove each of the elements beyond a reasonable doubt. For the defendant to arrive at that decision, he must have been aware of the factual claims of the victim and decided that her testimony would satisfy all of the elements of the offenses with which he was charged.

Having the advice of his attorney, the defendant believed that the state had enough evidence to convict him. Assuming that a jury would believe the testimony of the victim, even though he disagreed with the victim’s version of the facts, the defendant was satisfied that he would be convicted and therefore entered his Alford plea. He understood that the court’s acceptance of the plea would constitute a finding of guilt. The defendant was aware of the state’s allegations and asked through his counsel that the facts not be read aloud in court because “[h]e’s aware of what the facts are. I’d rather save him the embarrassment and the victim the embarrassment.” His plea was accepted and he was found guilty of the offenses charged on January 29, 1999. The matter was then continued for the presentence report and he was sentenced on May 14, 1999, almost three months after he entered his plea. Sufficient time had elapsed for the defendant to consider the plea bargain and its consequences. Despite this time lapse and the opportunity for reflection, the defendant did not seek to withdraw his plea. It was only after he was sentenced that the defendant filed the present appeal and raised the claim that the trial court failed to make specific reference to the elements of the crimes with which he was charged.

The plea canvass was comprehensive. After the defendant entered his plea, the court stated: “Now, once again, I’ve read the facts of the [police] report .... I’ve read the victim’s statement. 1 understand that you disagree with some of what is being said against you, but what you’ve decided to do is . . . accept this recommendation for a [capped] sentence of [six years incarceration, suspended after three years, with three years of probation], rather than risk a trial where you might get convicted and spend more time in jail than that which is being recommended as a maximum. Is that why you’re pleading guilty, sir?” The defendant answered: “Yes.” The court then asked the defendant whether he knew “of any reasons why [the court] should not accept the plea,” to which the defendant’s attorney answered: “No.” Accordingly, the defendant is not able to establish that a constitutional violation clearly exists and clearly deprived him of a fair trial. He, therefore, cannot satisfy the third prong of Golding and cannot prevail on appeal.

The judgment is affirmed.

In this opinion the other judges concurred.

       North Carolina v. Alford, 400 U.S. 25, 91 S. Ct. 160, 27 L. Ed. 2d 162 (1970).

       The agreement called tor a maximum sentence of six years incarceration, suspended after three years, with three years of probation. The defendant, under the plea agreement, was permitted to argue for less time, but the court did explain at the time the plea was accepted: “You may get less time than that maximum sentence. You may not.”

       This refers to the right, enunciated in Boykin v. Alabama, 395 U.S. 238, 243, 89 S. Ct. 1709, 23 L. Ed. 2d 274 (1969), to know that a plea operates as a waiver of the fundamental constitutional rights regarding a jury trial, confrontation and self-incrimination. According to Boykin, the trial court must inform the defendant of these rights prior to accepting a plea for the plea to be knowingly, voluntarily and intelligently made. Id.

       During the plea canvass, the court asked the defendant if he understood that “you’re giving up certain legal rights, among them your right to a trial before a court or a jury . . . your right not to be compelled to incriminate yourself . . . [and] your right to confront and cross-examine witnesses, present your own witnesses, testify yourself . . . [and] to present any defense to these charges. Do you understand you’re waiving these rights and [that] no trial will take place?” The defendant responded: “Right.”

       Both Joyner and Alicea concerned appeals from the denial of a motion to withdraw a guilty plea. There was no need, therefore, to request review under Golding. The issue in Joyner was whether the trial court complied with the provisions of our rules of practice. This court found in Joyner that the trial court had not complied with the rules of practice and remanded the matter to the trial court. Similarly, Alicea concerned an appeal from the denial of a motion to withdraw a guilty plea where the record indicated that the trial court had not complied with the rules of practice. State v. Alicea, supra, 41 Conn. App. 53-54.

       During the plea canvass, the defendant stated himself or through his counsel that, inter alia, he (1) had had enough time to speak with his attorney, (2) understood the factual basis for the charges, (3) understood that by entering a plea under North Carolina v. Alford, 400 U.S. 25, 91 S. Ct. 160, 27 L. Ed. 2d 162 (1970), he was waiving his privilege against compelled self-incrimination and his rights to confront and cross-examine witnesses, and to have a trial by jury, (4) was satisfied with the representation provided by his attorney and (5) knew of no reason why the court should not accept the defendant’s guilty plea.


text:
    CHAIRMAN, BOARD OF EDUCATION OF THE TOWN OF DARIEN, ET AL. v. FREEDOM OF INFORMATION COMMISSION ET AL.
    (AC 19114)
    Landau, Zarella and O’Connell, Js.
    Argued March 21
    officially released November 7, 2000

      Sheila A. Huddleston, with whom, on the brief, were Charles L. Howard and Thomas B. Mooney, for the appellants (plaintiffs).

      Victor R. Perpetua, appellate attorney, with whom, on the brief, was Mitchell W. Pearlman, general counsel, for the appellee (named defendant).
   Opinion

ZARELLA, J.

The plaintiffs, the chairman of the board of education of the town of Darien and the board of education of the town of Darien (collectively, board), appeal from the judgment of the trial court dismissing their appeal from a decision by the defendant freedom of information commission (commission). The board claims that the court improperly concluded that (1) the board lacks standing to assert the confidentiality of certain preliminary documents used in an evaluation of the superintendent of schools, (2) the preliminary documents are not exempt from disclosure, (3) the board lacks standing to assert the confidentiality of the final evaluation document and (4) the disclosure of a confidential personnel evaluation is not a per se invasion of personal privacy. We reverse the judgment of the trial court.

The following facts and procedural history are relevant to our determination of this appeal. The board is a public agency charged with overseeing the operation of the public schools in the town of Darien. Pursuant to General Statutes § 10-157 (a), the board conducted an annual evaluation of the superintendent of schools for the 1995-96 school year. As part of the evaluation process, each board member prepared a written preliminary assessment of the superintendent’s performance during the preceding school year. Those preliminary notes were utilized in preparing the final written evaluation that was shared with the superintendent during an executive session of the board. See General Statutes (Rev. to 1997) § l-18a (e), now § 1-200 (6). At an open meeting following the evaluation, the board voted five to four to renew the superintendent’s contract.

In a letter to the chairperson of the board, dated January 1, 1997, the defendant Walter J. Casey requested “copies of all records related to the Board of Education’s evaluation of Darien’s Superintendent of Schools .... This should include but not be limited to records related to interim steps in the evaluation process.” By letter dated February 10, 1997, the board denied Casey’s request because the evaluation was conducted as a confidential process pursuant to board policy.

Casey appealed to the commission, alleging that the board’s refusal to disclose the requested materials violated the Freedom of Information Act (act), General Statutes (Rev. to 1997) § 1-7 et seq., now § 1-200 et seq. A hearing was held before Clifton A. Leonhardt, who had been designated by the commission as the hearing officer for the case. On September 18,1997, the hearing officer issued a proposed final decision, which the commission adopted as its final decision on October 22, 1997. The final decision required the board to disclose all of the requested materials.

The board appealed from the commission’s decision to the Superior Court. The court affirmed the commission’s decision and dismissed the appeal. The court upheld the commission’s finding that the board lacked standing to assert the superintendent’s personal privacy exemption under General Statutes (Rev. to 1997) § 1-19 (b), now § 1-210 (b). This appeal followed.

After the initial oral argument before this court, we ordered supplemental briefs on the following issue: When a request under the act seeks disclosure from a public agency of documents that would arguably constitute an invasion of an employee’s personal privacy, is notice to the employee under General Statutes (Rev. to 1997) § l-20a (b), now § 1-214 (b), a prerequisite to the commission’s issuing an order requiring disclosure of said documents? In its supplemental brief, the board states that the superintendent did not receive notice of Casey’s request or of the proceedings before the commission. The commission also acknowledges in its supplemental brief that there is no evidence that the superintendent received notice. Nevertheless, the commission asserts that in this case, “the close legal and administrative relationship between the superintendent and her board” obviates the notice requirement of § 1-20a (b), now § 1-214 (b). We disagree.

The board’s initial claim is that the court improperly determined that because the superintendent failed to object to the disclosure of her evaluation, the board lacks standing to assert the personal privacy exemption under § 1-19, now § 1-210. This claim raises the disposi-tive issue of whether the superintendent received notice of Casey’s request for the disclosure of her evaluation or of the proceedings before the commission.

Pursuant to § l-20a, now § 1-214, a public agency must provide notice to an employee whose personnel, medical or similar files have been requested if the agency reasonably believes that the disclosure of such records would legally constitute an invasion of privacy. Additionally, General Statutes (Rev. to 1997) § l-21i (b) (1), now § 1-206 (b) (1), requires the commission to order “the public agency to notify any employee whose records are the subject of an appeal ... of the commission’s proceedings and, if any such employee . . . has filed an objection under said subsection (c) [of § 1-20a, now § 1-214], the agency shall provide the required notice to such employee ... by certified mail, return receipt requested or by hand delivery with a signed receipt. . . .”

Section l-21j-32 (a), now § 1-21J-34 (a), of the Regulations of Connecticut State Agencies provides in relevant part: “Except when the commission [or the presiding officer] shall otherwise direct, the commission shall give written notice of a hearing in any pending matter to all parties, to all persons who have been permitted to participate as intervenors, to all persons otherwise required by statute to be notified, and to such other persons as have filed with the commission their written request for notice of hearing in a particular matter. . . .” This statutory and regulatory scheme ensures that notice of proceedings before the commission will be given to the employee whose records are at issue, even if notice was not given at the time of the initial request. We conclude, therefore, that the commission must ensure that the employee has received notice of its proceedings where the employer has failed to give the required notice pursuant to §§ l-20a, now § 1-214, and 1-2 li, now § 1-206.

The parties concede in their respective supplemental briefs that, the superintendent did not receive the requisite notice. The board failed to comply with an order of the commission to provide notice of the hearing to the superintendent. Furthermore, the commission found that despite the mandatory language of § l-20a (b), now § 1-214 (b), “no evidence was introduced at the hearing to show that notice was given to the superintendent . . . and ... to show that the superintendent did, in fact, object to disclosure of the evaluation records.” The commission further found that “[§ l-20a (b) and (c), now § 1-214 (b) and (c)] contemplated that the right to assert the invasion of personal privacy exemption was placed in the employee whose privacy is at issue and that the respondents who failed to give the statutorily required notice to the employee do not have standing to assert the exemption.” Notwithstanding those findings, the commission ordered that “in the absence of meeting the burden of proving an exemption, the evaluation records should be disclosed.”

Our Supreme Court has held that an investigative file of a sexual harassment complaint constitutes a file similar to a personnel file and, as such, may be disclosed pursuant to the act. Connecticut Alcohol & Drug Abuse Commission v. Freedom of Information Commission, 233 Conn. 28, 37-38, 657 A.2d 630 (1995). The court in Connecticut Alcohol & Drug Abuse Commission also held that the subject of the investigative file, in addition to the complaining individual, should be given the opportunity to show that the disclosure of the file would constitute an invasion of her privacy. After finding that the subject of the investigative file did not receive notice of the commission’s proceedings pursuant to § 1-2 li (b) (1), now § 1-206 (b) (1), the court ordered the matter remanded to the commission, in part, “so that proper notice and an opportunity to intervene may be given to the subject of the investigation, and for a subsequent determination as to whether release of the investigation file would constitute an invasion of the privacy of the complaining officer or the subject of the investigation.” Id., 44.

“Connecticut courts have considered a person’s reasonable expectation of privacy and the potential for embarrassment as significant factors in determining if disclosure [of public records] would constitute an invasion of privacy.” (Internal quotation marks omitted.) West Hartford v. Freedom of Information Commission, 218 Conn. 256, 263, 588 A.2d 1368 (1991). Accordingly, our Supreme Court in West Hartford held that retired municipal employees should be given the opportunity to show that they have a reasonable expectation of privacy in their addresses, which were the subject of a request pursuant to the act, before the commission makes a disclosure determination. Id., 264-65. “After all, it is an individual’s personal privacy that § 1-19 (b) (2) purports to protect.” Id., 265. The superintendent of the Darien public schools, if she so desires, should be afforded no less of an opportunity to prove that the disclosure of her performance evaluation would constitute an invasion of her privacy.

The judgment is reversed and the case is remanded with direction to vacate the commission’s order of disclosure and to remand the case to the commission with direction that proper notice be given to the superintendent of schools and for a new hearing at which the superintendent of schools will be afforded the opportunity to prove whether the disclosure of the requested documents would cause an invasion of her personal privacy.

In this opinion the other judges concurred.

       Walter J. Casey, who requested the information that is the subject of this appeal, is the other defendant in this action.

       General Statutes § 10-157 (a) provides in relevant part: “Any local or regional board of education shall provide for the supervision of the schools under its control by a superintendent who shall serve as the chief executive officer of the board. . . . The board of education shall evaluate the performance of the superintendent annually in accordance with guidelines and criteria mutually determined and agreed to by such board and such superintendent.”

       General Statutes (Rev. to 1997) § l-18a (e), now § 1-200 (6), provides in relevant part: “ ‘Executive sessions’ means a meeting of a public agency at which the public is excluded for one or more of the following purposes: (1) Discussion concerning the appointment, employment, performance, evaluation, health or dismissal of a public officer or employee, provided that such individual may require that discussion be held at an open meeting . . . .”

       The board identified the final written evaluation of the superintendent and the preliminary notes of each board member as the only documents subject to Casey’s request. The disclosure of those documents is at issue in the present appeal.

       Section B (C) (6) of the board policy provides in relevant part: “The Board and Superintendent shall meet no later than mid June to discuss the Board’s evaluation of the Superintendent. All evaluation meetings shall be in executive session, and all evaluation reports shall be considered confidential in accordance with Connecticut General Statutes.”

       See footnote 3.

       General Statutes (Rev. to 1997) § 1-19 (b), now § 1-210 (b), provides in relevant part: “Nothing in [the Freedom of Information Act] shall be construed to require disclosure of ... (2) personnel or medical files and similar files the disclosure of which would constitute an invasion of personal privacy . . . .”

       General Statutes (Rev. to 1997) § l-20a, now § 1-214, provides in relevant part: “(b) Whenever a public agency receives a request to inspect or copy records contained in any of its employees’ personnel or medical files and similar files and the agency reasonably believes that the disclosure of such records would legally constitute an invasion of privacy, the agency shall immediately notify in writing (1) each employee concerned ....

        “(c) A public agency which has provided notice under subsection (b) of this section shall disclose the records requested unless it receives a written objection from the employee concerned . . . within seven business days from the receipt by the employee ... or, if there is no evidence of receipt of written notice, not later than nine business days from the date the notice is actually mailed, sent, posted or otherwise given. Each objection filed under this subsection shall be on a form prescribed by the public agency, which shall consist of a statement to be signed by the employee . . . under the penalties of false statement, that to the best of his knowledge, information and belief there is good ground to support it and that the objection is not interposed for delay. Upon the filing of an objection as provided in this subsection, the agency shall not disclose the requested records unless ordered to do so by the Freedom of Information Commission pursuant to section l-21i [now § 1-206]. . . .” (Emphasis added.)

       The commission does not dispute that the board declined to disclose the superintendent’s evaluation records because the board believed that such disclosure would legally constitute an invasion of privacy.


text:
    ROBERT MIKULA v. FIRST NATIONAL SUPERMARKETS, INC., ET AL.
    (AC 19640)
    Foti, Zarella and Dupont, Js.
    Argued September 12
    officially released November 7, 2000

      Brian E. Prindle, for the appellants (defendant Shaw’s Supermarkets, Inc., et al.).

      Steven H. Cousins, with whom, on the brief, was Mark A. Goldsmith, for the appellee (plaintiff).

      Nancy E. Berdon, for the appellees (defendant Travelers Insurance Company et al.).

      Richard L. Aiken, Jr., with whom, on the brief, was Kristen L. Frazier, for the appellee (defendant Mac Risk Management, Inc., et al.).
   Opinion

ZARELLA, J.

Two of the defendants in this appeal, Shaw’s Supermarkets, Inc. (Shaw’s), and Sedgwick James of Connecticut, the administrator of Shaw’s self-insurance plan, appeal from the decision of the workers’ compensation review board (board) affirming a finding by the workers’ compensation commissioner (commissioner) that the plaintiff, Robert Mikula, sustained an injury arising out of and in the course of his employment with Shaw’s in 1997 and is entitled to compensation for partial disability under General Statutes § 31-308 (a). The defendants claim that the board improperly affirmed the commissioner’s determination because the record does not contain (1) sufficient evidence to support the commissioner’s conclusion that a compensable injury had occurred and (2) evidence of proper job searches or other evidence sufficient to support the commissioner’s determination that the plaintiff is entitled to benefits. We conclude that the board properly affirmed the commissioner’s findings.

In the finding and award, the commissioner found the following facts. The plaintiff commenced work as a grocery clerk for First National Supermarkets, Inc. (First National), in October, 1986. On December 20, 1988, the plaintiff injured his back while stocking shelves during the course of his employment. Eric M. Garver, an orthopedist who subsequently treated the plaintiff, assessed a 10 percent permanent partial impairment of the plaintiffs back. The plaintiff received compensation for his impairment through a voluntary agreement in 1992. In January, 1993, the plaintiff rein-jured his back while stocking shelves. That injury also was compensated through a voluntary agreement. Franklin Robinson, a neurosurgeon, determined that the plaintiff had advanced degenerative disc disease and could handle light work, but would risk further injury if he lifted loads greater than fifteen to twenty pounds. On March 7,1994, the plaintiff returned to light work, but no longer stocked shelves.

In October, 1996, the plaintiff was laid off as a result of a corporate merger between First National and Shaw’s. In April, 1997, Shaw’s hired the plaintiff to perform work similar to the work he had performed for First National, including stocking shelves. On May 27, 1997, the plaintiff suffered persistent pain in his back while removing merchandise from a pallet and placing it onto a dolly. He immediately notified his supervisor and went home. Although the plaintiff returned to work the following day, his pain became progressively worse. On June 4, 1997, Garver treated the plaintiff, and prescribed physical therapy and medication. On the basis of his examination, Garver opined that the plaintiff could handle light work.

According to his testimony, the plaintiff sought light work but was unable to find any. He also applied for unemployment compensation but was denied benefits. On the basis of his medical reports, Garver found the plaintiff to be temporarily totally disabled. Aside from a $2000 advance from First National’s workers’ compensation carrier, Travelers Insurance Company, the plaintiff has received no benefits since May 27, 1997.

After a hearing, the commissioner determined that the plaintiff had suffered a back injury that arose out of and in the course of his employment, with Shaw’s. Further, the commissioner found that the plaintiff was temporarily partially disabled and unable to find light work. The commissioner, therefore, ordered the defendants to pay the plaintiff compensation for the period from May 28, 1997, to November 20, 1997, and to pay for the plaintiffs medical bills, the cost of a back brace, the cost of physical therapy and interest on unpaid compensation.

The defendants appealed to the boar d from the commissioner’s decision. In an opinion dated May 11, 1999, the board affirmed the commissioner’s decision that the plaintiff suffered an injury while working for Shaw’s and that he was entitled to benefits under § 31-308 (a). This appeal followed. Additional facts will be set forth as they become relevant in the context of the defendants’ claims.

I

The defendants first claim that the board improperly affirmed the commissioner’s finding that the plaintiff sustained an injury arising out of and in the course of his employment with Shaw’s on May 27,1997. We disagree.

The defendants claim that the plaintiff did not suffer any accidental injury that could be located as to time and place. The defendants argue that the plaintiff suffered only an “activation” of his prior injury when he was performing duties beyond his medical limitations. Further, the defendants analogize the facts of this case to the facts of Dinck v. Gellatly Construction Co., 132 Conn. 479, 482-83, 45 A.2d 585 (1946), which our Supreme Court remanded for further proceedings because the record was insufficient to determine whether the plaintiffs injury was caused by the work he was performing. The commissioner in Dinck had determined that the plaintiff was injured when he moved a gas tank, slipped and his knee gave out. Id., 480. On appeal to the trial court, however, that court removed the finding that the plaintiff had slipped and concluded, therefore, that there was no causal connection between the injury and his employment. Id., 480-81.

Under General Statutes § 31-275 (16) (A), a claimant’s injury must fall within the following definition: An “accidental injury which may be definitely located as to the time when and the place where the accident occurred, [and] an injury to an employee which is causally connected with his employment . . . .”

The defendants’ reliance on Dinck is misplaced. Unlike the situation in that case, in which there was no causal connection between the plaintiffs injury and his employment, the subordinate facts in this case indicate that the plaintiffs injury was directly caused by his lifting merchandise from a pallet during his employment ■with Shaw’s. On May 27,1997, as a result of such lifting, the plaintiff felt persistent pain in his back, reported it to his supervisor and went home. Those facts were sufficient to permit the commissioner’s conclusion that the plaintiff suffered an accidental injury that was specifically located as to the time and place of its occurrence.

“[ T]he power and duty of determining the facts rests on the commissioner, the trier of facts. . . . [0]n review of the commissioner’s findings, the [review board] does not retry the facts nor hear evidence. It considers no evidence other than that certified to it by the commissioner, and then for the limited purpose of determining whether or not the finding should be corrected, or whether there was any evidence to support in law the conclusions reached.” (Internal quotation marks omitted.) Tovish v. Gerber Electronics, 32 Conn. App. 595, 598-99, 630 A.2d 136 (1993), appeal dismissed, 229 Conn. 587, 642 A.2d 721 (1994). The commissioner’s finding cannot be altered “unless the record discloses that the finding includes facts found without evidence or fails to include material facts which are admitted or undisputed.” (Internal quotations marks omitted.) Id., 599.

“[ I]n determining whether a particular injury arose out of and in the course of employment, the [commissioner] must necessarily draw an inference from what he has found to be basic facts. ... If supported by evidence and not inconsistent with the law, the [commissioner’s] inference that an injury did or did not arise out of and in the course of employment is conclusive. . . . The [commissioner] alone is charged with the duty of initially selecting the inference which seems most reasonable and his choice, if otherwise sustainable, may not be disturbed by a reviewing court.” (Citations omitted; internal quotation marks omitted.) Fair v. People’s Savings Bank, 207 Conn. 535, 539-40, 542 A.2d 1118 (1988).

On the basis of our review, we conclude that the board properly affirmed the commissioner’s determination that the plaintiff suffered an accidental injury that was specifically located as to the time and place of its occurrence.

II

The defendants next claim that the board improperly affirmed the commissioner’s finding that the plaintiff is entitled to compensation for partial disability from May 28, 1997, through November 20, 1997, pursuant to § 31-308 (a). We disagree.

The following additional facts are necessary to the determination of this issue. According to his testimony, the plaintiff unsuccessfully sought light work employment with Shaw’s. The plaintiff also sought light work elsewhere, but his search was unavailing.

We reiterate that “[t]he power and duty of determining the facts rests on the commissioner, the trier of facts. . . . The conclusions drawn by him from the facts found must stand unless they result from an incorrect application of the law to the subordinate facts or from an inference illegally or unreasonably drawn from them.” (Citation omitted; internal quotation marks omitted.) Six v. Thomas O’Connor & Co., 235 Conn. 790, 798-99, 669 A.2d 1214 (1996). We will not disturb a finding of fact unless it is clearly erroneous. See Practice Book § 60-5.

To receive full compensation for partial disability under § 31-308 (a), a plaintiff must satisfy the following three-pronged test: “(1) the physician attending an injured employee certifies that the employee is unable to perform his usual work but is able to perform other work, (2) the employee is ready and willing to perform other work in the same locality and (3) no other work is available . . . .” General Statutes § 31-308 (a).

The defendants contend that the plaintiff failed to meet his burden of proof as to the three part test in § 31-308 (a) and further argue that he failed to show that there was no other work available. As to the latter claim, the plaintiff testified that he sought employment with Shaw’s as well as with other employers for light work and that he was unsuccessful in securing a job. In light of those facts, we conclude that the commissioner’s decision that the plaintiff was entitled to benefits pursuant to § 31-308 (a) was supported by the evidence.

The commissioner’s determination was based on a correct application of the law to the facts and, therefore, the board properly upheld the commissioner’s decision. We are bound, as is the board, by the facts found by the commissioner. Because the facts are supported by the evidence and are not inconsistent with the law, we will not disturb them.

The decision of the workers’ compensation review board is affirmed.

In this opinion the other judges concurred.

       The other defendants, First National Supermarkets, Inc., Travelers Insurance Company and MAC Risk Management, Inc., request that this court affirm the decision of the workers’ compensation review board. The other defendants in this appeal are Shaw’s Supermarkets, Inc., and Sedgwick James of Connecticut. In this opinion, we refer to Shaw’s Supermarkets, Inc., and Sedgwick James of Connecticut as the defendants.

       General Statutes § 31-308 (a) provides in relevant part: “If any injury for which compensation is provided under the provisions of this chapter results in partial incapacity, the injured employee shall be paid a weekly compensation equal to seventy-five per cent of the difference between the wages currently earned by an employee in a position comparable to the position held by the injured employee before his injury, after such wages have been reduced by any deduction for federal or state taxes, or both, and for the federal Insurance Contributions Act in accordance with section 31-310, and the amount he is able to earn after the injury, alter such amount has been reduced by any deduction for federal or state taxes, or both, and for the federal Insurance Contributions Act in accordance with section 31-310, except, that when (1) the physician attending an injured employee certifies that the employee is unable to perform his usual work but is able to perform other work, (2) the employee is ready and willing to perform other work in the same locality and (3) no other work is available, the employee shall be paid his full weekly compensation subject to the provisions of this section. Compensation paid under this subsection shall not be more than one hundred per cent, raised to the next even dollar, of the average weekly earnings of production and related workers in manufacturing in the state, as determined in accordance with the provisions of section 31-309, and shall continue during the period of partial incapacity, but no longer than five hundred twenty weeks. If the employer procures employment for an injured employee that is suitable to his capacity, the wages offered in such employment shall be taken as the earning capacity of the injured employee during the period of the employment.”

       As to the first prong of the three-part test in § 31-308 (a), Garver, the plaintiffs attending physician, certified that the plaintiff could not perform his usual work but could perform light work. As to the second prong, the plaintiff manifested his willingness to perform other work in the locality by seeking employment with Shaw’s and other employers.

       The following colloquy occurred:
      “[Defense Counsel]: And that’s, then, what you were trying to do when you contacted Shaw’s, correct? You were trying to go back on light duty?
      “[Plaintiff],: That’s correct.
      “[Defense Counsel}: And [Shaw’s] for whatever reason didn’t provide you with light duty?
      “[Plaintiff]: That’s correct.
      “[Defense Counsel]: During that time-period, did you look for work anywhere other than Shaw’s?
      “[Plaintiff]: Yes, I did.’’


text:
    MICHAEL SELVAGGI ET AL. v. RICHARD MIRON ET AL.
    (AC 20069)
    Schaller, Zarella and Pellegrino, Js.
    Submitted on briefs September 15
    officially released November 7, 2000

      James R. Miron filed a brief for the appellant (defendant Ann Miron).

      Kevin W. Finch filed a brief for the appellees (plaintiffs).
   Opinion

PER CURIAM.

In this appeal, the defendant Ann Miron claims that the trial court (1) incorrectly placed on her the burden of proving that any debt she owed to the plaintiffs, Michael Selvaggi and Monument Setting Company, Inc., was fully discharged and (2) improperly concluded that she was a partner in Lakeview Monument Company, whose business relations with the plaintiffs gave rise to the underlying collection action that led to this appeal. We affirm the judgment of the trial court.

I

The defendant first claims that the court improperly placed on her the burden of proving that any debt she owed to the plaintiffs had been fully discharged. We disagree.

“The issue of whether the court held the parties to the proper standard of proof is a question of law. When issues in [an] appeal concern a question of law, this court reviews such claims de novo.” (Internal quotation marks omitted.) Satti v. Kozek, 58 Conn. App. 768, 771, 755 A.2d 333 (2000).

Practice Book § 10-50 provides in relevant part: “No facts may be proved under either a general or special denial except such as show that the plaintiffs statements of fact are untrue. Facts which are consistent with such statements but show, notwithstanding, that the plaintiff has no cause of action, must be specially alleged. Thus . . . payment (even though nonpayment is alleged by the plaintiff) . . . must be specially pleaded . . . .” The burden of proving the special defense of payment rests upon the defendant. See New England Savings Bank v. Bedford Realty Corp., 246 Conn. 594, 606 n.10, 717 A.2d 713 (1998); Stanley v. M. H. Rhodes, Inc., 140 Conn. 689, 697, 103 A.2d 143 (1954); Curley v. Marzullo, 127 Conn. 354, 359, 17 A.2d 10 (1940); Apuzzo v. Hoer, 125 Conn. 196, 203, 4 A.2d 424 (1939); Pieri v. Bristol, 43 Conn. App. 435, 441, 683 A.2d 414 (1996). “To the extent that the defendant’s claim of payment was a defense, it properly should have been pleaded as such.” (Internal quotation marks omitted.) Bennett v. Automobile Ins. Co. of Hartford, 32 Conn. App. 617, 623, 630 A.2d 149 (1993), rev’d on other grounds, 230 Conn. 795, 646 A.2d 806 (1994). We conclude, therefore, that the court properly placed the burden on the defendant to prove that she had made payment to the plaintiffs.

II

The defendant next claims that the court improperly concluded that she was a partner in Lakeview Monument Company. We disagree.

“Appellate review of findings of fact is limited to deciding whether such findings were clearly erroneous. ... A finding of fact is clearly erroneous when there is no evidence in the record to support it ... or when although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed.” (Internal quotation marks omitted.) Granger v. A. Aiudi & Sons, 60 Conn. App. 36,41, 758 A.2d 417 (2000).

The court adopted the report of the attorney trial referee in which the referee found that the defendant and Richard Miron were the proprietors of Lakeview Monument Company from 1974 to March 6, 1992. Our review of the entire record leads us to conclude that the court properly determined that the defendant was a partner in Lakeview Monument Company.

The judgment is affirmed.

       Richard Miron, also a defendant in this action, is not a party to this appeal. We therefore refer in this opinion to Ann Miron as the defendant.