author: HENNESSY, J.

text:
    JAY MCLAUGHLIN v. STANLEY SMORON ET AL.
    (AC 19651)
    Foti, Schaller and Hennessy, Js.

      Argued November 29, 2000
    officially released March 20, 2001

      Leonard A. Fasano, for the appellants (defendants).

      Kathryn Calibey, for the appellee (plaintiff).
   Opinion

HENNESSY, J.

The defendants, Stanley Smoron and Josephine Smoron, appeal following the trial court’s denial of their motion to open a default judgment. They claim that the court improperly found that (1) a final judgment had been rendered in favor of the plaintiff, Jay McLaughlin, (2) there was no reasonable cause to allow the judgment to be opened as to the defendant Stanley Smoron and (3) there was no reasonable cause to allow the judgment to be opened as to the defendant Josephine Smoron. We affirm the judgment of the trial court.

The court reasonably could have found the following facts. On October 23,1991, the plaintiff was proceeding eastbound in his automobile on Spring Street in Southington when he collided with a cow that was standing in the middle of the road. The defendants owned the cow and also own a farm adjoining Spring Street. The cow had wandered off their farm and into the road. As a result of the collision, the plaintiff was seriously injured and the cow was killed.

The plaintiff brought a negligence action against the defendants seeking damages for the injuries he suffered from the collision with the cow. The defendants failed to appear, and the plaintiff moved for a default judgment, which the court granted. The plaintiff then proceeded to a hearing on the issue of damages and, on August 23, 1995, he was awarded $385,000. On March 29, 1996, the defendants filed a motion to open the August 23, 1995 judgment. That motion, however, was not heard. On April 19, 1996, Stanley Smoron died, and the defendants’ counsel withdrew from the case shortly after he had filed the motion to open. More than two years later, on September 8, 1998, the defendants’ present counsel reclaimed the March 29, 1996 motion to open the judgment, which the court denied. The defendants then moved for reconsideration, which the court also denied.

I

The defendants first claim that the court improperly found that a final judgment had been rendered in favor of the plaintiff in this matter. Specifically, the defendants claim that the plaintiff failed to notify them of the August 23,1995judgment pursuant to Practice Book § 17-22 and that notice is a condition precedent to the judgment becoming final. The defendants argue that because the judgment is not final and because a judgment can be opened only within four months after it has been rendered pursuant to General Statutes § 52-212, the court lacks jurisdiction to entertain the motion to open. As a result, the defendants claim, because the plaintiff cannot cure the defect, as the time has long passed, he must reclaim the matter for a hearing in damages to obtain a final judgment.

The plaintiff argues, however, that the defendants received notice of the judgment from the clerk of the court after the hearing in damages. The plaintiff also claims that the defendants received proper notice by virtue of a letter that the plaintiffs counsel had sent to them for the purpose of collecting on the August 23, 1995 judgment. The court rejected both arguments. The court found that the evidence did not sufficiently support the plaintiffs claim that the defendants received notice of the August 23, 1995 judgment against them in the manner required by Practice Book § 17-22. The court thus concluded that the defendants’ motion to open was timely. We agree.

Practice Book § 17-22 provides: “A notice of every nonsuit for failure to enter an appearance or judgment after default for failure to enter an appearance, which notice includes the terms of the judgment, shall be mailed within ten days of the entry of judgment by counsel of the prevailing party to the party against whom it is directed and a copy of such notice shall be sent to the clerk’s office. Proof of service shall be in accordance with Section 10-14.” (Emphasis added.) Further, this court held in a similar case that “[a]lthough [notice] was dated two and one-half years after the judgment was rendered against the defendants, this delay does not constitute a jurisdictional defect. At the most, where a defendant does not otherwise have notice of a default judgment, such a delay would merely extend the time in which the defendant could move to set aside the judgment.” DiSimone v. Vitello, 6 Conn. App. 390, 393, 505 A.2d 745 (1986); see also Fontaine v. Thomas, 51 Conn. App. 77, 80 n.3, 720 A.2d 264 (1998).

In this case, the plaintiffs counsel did not send proper notice as required by Practice Book § 17-22. Practice Book § 17-22 clearly requires “counsel of the prevailing party” to send notice to “the party against whom [judgment] is directed” in a timely fashion. Here, only the clerk of the court gave notice. Further, the plaintiff did not introduce into evidence the letter that he had sent to the defendants that allegedly set forth the information required by the rules of practice. The court could not, therefore, consider it. Thus, even though the defendants reclaimed the motion to open more than two years after the original motion had been filed, the defendants’ motion to open was timely because the plaintiffs counsel did not give proper notice to the defendants pursuant to Practice Book § 17-22.

The court, after ruling that the defendants timely filed their motion to open, determined whether the defendants had complied with the requirements of Practice Book § 17-43 (a). Practice Book § 17-43 (a) provides in relevant part: “Any judgment rendered or decree passed upon a default . . . may be set aside . . . upon the written motion of any party or person prejudiced thereby, showing reasonable cause, or that a good cause of action or defense in whole or in part existed at the time of rendition of such judgment . . . and that the plaintiff or the defendant was prevented by mistake, accident or other reasonable cause from prosecuting or appearing to make the same. . . .”

“Our review of a denial of a motion to open a default judgment rests on the requirements of General Statutes § 52-212. Practice Book § 377 [now § 17-43 (a)] is almost identical to the statutory language. To obtain relief from a judgment rendered after default a two pronged test must be satisfied. The aggrieved person must show reasonable cause, or that a good defense existed at the time of the judgment, and that the movant was prevented by mistake, accident or other reasonable cause from making the defense. ... In granting or refusing an application to open a judgment, the trial court is required to exercise a sound judicial discretion and its decision will be set aside only for an abuse of such discretion.” (Citations omitted, internal quotation marks omitted.) Cholewinski v. Conway, 14 Conn. App. 236, 240-41, 540 A.2d 391 (1988).

The defendants argue that they were unable to appear as a direct result of their mental incompetency. As such, they claim that reasonable cause exists for their conduct and that the court should have granted the motion to open the judgment. To address the defendants’ claim properly, we must individually examine each of the defendants’ arguments.

II

The defendant Stanley Smoron claims that the court improperly found that there was no reasonable cause to allow the judgment to be opened as to him. Specifically, he claims that he was incompetent at the time that the court entered the default judgment against him, and that his incompetency satisfies the “other reasonable cause” requirement of Practice Book § 17-43 (a) and explains his failure to appear. He argues that Harry E. Morgan, a geriatric psychiatrist, evaluated him at the request of the commissioner of human resources as part of an application by the state for an involuntary conservatorship. Stanley Smoron emphasizes that one of Morgan’s conclusions was that he was “incapable of engaging in appropriate planned legal representation in a consistent manner that can protect him.” That conclusion provides the basis for Stanley Smoron’s argument. We are not persuaded.

The plaintiff contends that the Probate Court never acted on or adopted the psychiatrist’s evaluation, even though it was part of the probate file. He further contends that the date of the report, September 14, 1992, was too far removed in time from the period that Stanley Smoron was claiming that mental incompetency prevented him from appearing to defend himself against the plaintiffs action. He also argues that neither the state nor the Probate Court proceeded with a hearing for an involuntary conservatorship, but rather the Probate Court granted his petition for a voluntary conservatorship and, approximately one year later, on October 29,1993, granted his request to terminate the conservatorship.

The court found that Stanley Smoron received notice from the court on April 15, 1995, of the default against him for his failure to appear and that he took no action to appear and to defend against the judgment that was entered on August 23, 1995. The court also found that he was under no conservatorship for almost two years before the judgment was entered and, consequently, the court could not find any reasonable cause for his failure to appear and to defend the action. We agree with the trial court.

In a criminal proceeding, the law presumes that a defendant is competent and places the burden to show otherwise on the party alleging incompetence. See General Statutes § 54-56d. The courts have followed this presumption of competence in the civil arena. Kirwan v. State, 168 Conn. 498, 503, 363 A.2d 56 (1975) (in action to recover damages for false imprisonment and negligent medical care, court presumed plaintiff competent and capable of pursuing his case in courts, and allegation of insanity not enough); Twichell v. Guite, 53 Conn. App. 42, 48, 51, 728 A.2d 1121 (1999) (in strict foreclosure action, court concluded that defendant presumed competent and capable of defending case brought against her and that allegation of mental incompetency not enough).

Stanley Smoron has not produced any evidence that would convince a court that he was mentally incompetent to the extent that he could not appear in the case brought against him. It is also significant that he did not provide any reference to a more current psychiatric report other than the evaluation by his geriatric psychiatrist that was dated September 14,1992. There also was evidence presented that his voluntary conservatorship had ended long before he was required to file his appearance in the present action. We conclude, therefore, that the court did not abuse its discretion in denying the motion to open the judgment as to the defendant Stanley Smoron.

Ill

The defendant Josephine Smoron also claims that the court improperly found that there was no reasonable cause to allow the judgment to be opened as to her. Specifically, she argues that she was legally incompetent because she was under the total domination and control of her brother, Stanley, the codefendant in this matter. As a result, because of his objection, she did not appear' in this action to defend herself. We, again, are not persuaded.

Although Josephine Smoron’s counsel put forth this argument, there was no testimony placed before the court to corroborate these claims. The court concluded: “Based upon the evidence in the record, and which was presented at the hearing . . . [t]he court finds that at all times relevant to whether Josephine Smoron had ‘reasonable cause’ to not appear and defend in this action, she was legally competent.” The court further concluded that on the basis of the record before it, there existed “no reasonable cause to open the judgment as to Josephine Smoron.” We agree.

Other than the statements of her attorney, which do not constitute evidence to be used by the court, there were no facts placed in evidence to support Josephine Smoron’s position. We cannot, therefore, conclude that the court abused its discretion in denying the motion to open the judgment as to the defendant Josephine Smoron.

The judgment is affirmed.

In this opinion the other judges concurred.

       Stanley Smoron is deceased and his estate has been substituted for him as the codefendant in this appeal. For purposes of this opinion, Stanley Smoron will be referred to as a defendant.

       Practice Book § 17-22 provides: “'A notice of every nonsuit for failure to enter an appearance or judgment after default for failure to enter an appearance, which notice includes the terms of the judgment, shall be mailed within ten days of the entry of judgment by counsel of the prevailing party to the party against whom it is directed and a copy of such notice shail be sent to the clerk’s office. Proof of service shall be in accordance with Section 10-14.”

       Although the defendants claim that the judgment of the court is not final because the failure to give notice pursuant to Practice Book § 17-22 is a condition precedent to the judgment becoming final, they offer no case law or statutory law to support that argument, nor does our research reveal any.

       General Statutes § 52-212 (a) provides: “Any judgment rendered or decree passed upon a default or nonsuit in the Superior Court may be set aside, within four months following the date on which it was rendered or passed, and the case reinstated on the docket, on such terms in respect to costs as the court deems reasonable, upon the complaint or written motion of any party or person prejudiced thereby, showing reasonable cause, or that a good cause of action or defense in whole or in part existed at the time of the rendition of the judgment or the passage of the decree, and that the plaintiff or defendant was prevented by mistake, accident or other reasonable cause from prosecuting the action or making the defense.”

       The defendants also claim that they submitted an affidavit from an expert in accident reconstruction that demonstrates that the plaintiff was speeding at the time of the accident. The defendants argue that their defense is that the plaintiffs speed contributed to the cause of the accident. The defendants claim that because the court did not discuss this “good defense,” it implicitly ruled in their favor on that part of the test under Practice Book § 17-43 (a). We do not find that argument persuasive. The court made no finding on that claim. We are not persuaded that silence, as displayed here, is equal to an affirmation of the proffered defense.

       The court, on April 13, 1995, sent to the defendants notice of a default for failure to appear. After a hearing in damages was held, the court sent notice of the judgment of default for failure to appear to the defendants on September 11, 1995.

       The Probate Court granted Stanley Smoron’s request for a voluntary conservatorship of his estate, not his person.

       Josephine Smoron’s attorney argued that he had witnesses available to testily to the deplorable conditions under which the Smorons were living and to show that Stanley Smoron was a domineering and sometimes violent man who controlled Josephine. The court stated: “Okay, I don’t feel it necessary at this point to have witness testimony.” Josephine Smoron’s attorney did not object, nor did he make any request to call his witnesses at that time or at any other time after that.

       The record reflects the fact that Josephine Smoron engaged legal counsel to represent her interests in legal proceedings, she served as conservatrix during the year of her brother’s voluntary conservatorship, and she was appointed and served as executrix of her brother’s estate.


source: Caselaw Access Project

author: SPEAR, J.

license: Public Domain

text:
    STATE OF CONNECTICUT v. JOSHUA E. TURNER
    (AC 18934)
    Landau, Spear and Daly, Js.

      Argued October 26, 2000
    officially released March 20, 2001

      Sheila A. Huddleston, special public defender, with whom were Amy R. Kirschbaum, special public defender, and, on the brief, James W. Bergenn, special public defender, for the appellant (defendant).

      Robert M. Spector, deputy assistant state’s attorney, with whom, on the brief, were Jonathan C. Benedict, state’s attorney, and Nicholas Joseph Bove, Jr., senior assistant state’s attorney, for the appellee (state).
   Opinion

SPEAR, J.

The defendant, Joshua E. Turner, appeals from the judgment of conviction, rendered after a jury trial, of carrying a pistol without a permit in violation of General Statutes (Rev. to 1997) § 29-35 (a), having a weapon in a motor vehicle in violation of General Statutes (Rev. to 1997) § 29-38, altering or removing identification marks from a pistol in violation of General Statutes (Rev. to 1997) § 29-36 and interfering with an officer in violation of General Statutes § 53a-167a (a).

The defendant claims that the court improperly (1) excluded evidence at trial that corroborated his testimony and impeached critical testimony by the state’s key witness, (2) instructed the jury regarding the presumption set forth in § 29-36, thus depriving him of his due process rights, (3) accepted the jury’s finding that there was sufficient evidence to support an inference that he altered the identification mark of a gun allegedly in his possession and (4) denied his motion to suppress unlawfully seized evidence. We reverse the judgment of the trial court and order a new trial because we agree with certain of the defendant’s evidentiary claims and his claim as to the improper jury instruction. We also will review the remaining claims because they are likely to arise in the new trial.

The following facts were found by the trial court after a hearing on the defendant’s motion to suppress and include facts that the jury reasonably could have found. In the early morning of June 17, 1997, Officer Paul Nikola and Lieutenant Adam Radzimirski of the Bridgeport police department were conducting surveillance of a known drug house at 1406 Stratford Avenue in Bridgeport. Nikola previously had made numerous drug related arrests and seizures in the neighborhood. Using “night vision” binoculars to enhance his view, Nikola hid behind a dumpster in the rear yard of the house while Radzimirski waited in a marked police cruiser two blocks away.

Radzimirski had obtained information that narcotics were being sold from a window facing an alleyway on the west side of the house. That night, Nikola observed several individuals walk through the alleyway, approach the window, knock on the window and say a number. Each time, he saw a hand come out of the window and exchange something for paper money, and, each time, the person in the alleyway appeared to hide something before walking away.

At approximately 3 a.m., the defendant drove to the alleyway entrance, got out of his car, walked through the alleyway, knocked on the window and stated, “It’s me.” The defendant took nothing from the window, and no hand came out of the window. The defendant then proceeded to the rear of the house and, using his own set of keys to unlock the back door, went inside. Thirty-five to forty-five seconds later, he emerged from the house carrying a plastic bag. After locking the door, the defendant returned to the alleyway entrance, looked up and down Stratford Avenue, and placed the bag underneath his coat. He then stepped into the street, entered his vehicle and began to back down Stratford Avenue in the wrong direction.

Nikola radioed his observations to Radzimirski, but by the time Radzimirski reached Stratford Avenue, the defendant’s car was in motion. Radzimirski followed the defendant and, believing his actions to be suspect, attempted to stop him by activating his overhead lights. When the defendant refused to pull over and accelerated instead, Radzimirski pursued him onto Interstate 95 heading north.

Radzimirski radioed the direction of his pursuit to Officer John Meyer, who was patrolling the area, and Meyer took up a position at the exit thirty ramp. When the defendant got off the highway at exit thirty, Meyer activated his siren and flashing lights, and became the primary pursuit vehicle, with Radzimirski following close behind. The vehicle chase ended when the defendant’s car failed to negotiate a left turn onto Main Street in Stratford and came to a halt on the front lawn of a business establishment.

At that point, the defendant got out of his car and started running along Main Street. Meyer drove across Main Street in front of the defendant to make him slow down. The defendant attempted to jump over the hood of Meyer’s cruiser, which had come to a stop, but made contact with the hood during the jump. Meyer saw two items fall to the ground. Meyer then chased the defendant by foot for approximately 100 yards, tackled him and brought him to the ground just after Radzimirski arrived and positioned his vehicle to block the defendant’s flight. Thereafter, the officers handcuffed and arrested the defendant.

Meyer went back to secure the area where the vehicle chase had ended. He looked for the fallen items and found a shoe and a large, clear, plastic zip-lock bag, which had dropped onto the ground near the front of his cruiser. Inside the bag was a pistol wrapped in newspaper and a clip containing live rounds of ammunition. Meyer observed that the gun’s serial number had been drilled or scratched out so that it was unreadable.

We now turn to the defendant’s version of events to establish the context for his evidentiary claims. The defendant testified that he had just finished working as a disc jockey at one party and was heading to a job at another party in a building adjacent to the alleyway. Since he knew that the building had no working toilet, he went into the alleyway to urinate. When he emerged from the alleyway, he noticed a police car approaching. The police car came directly toward him and drove onto the sidewalk to “fence him in.” In doing so, one of the tires ran over his right foot and broke three bones. Radzimirski then got out of the police car and asked the defendant where the drugs were. When the defendant said that he did not have any drugs, Radzimirski patted him down, found nothing and told him to leave.

The defendant drove away and soon became aware that he was being followed by another vehicle, but did not realize initially that the vehicle was a police car. Two blocks later, when the vehicle activated its flashing lights, the defendant became frightened because he had just been injured by a police officer. He therefore increased his speed and headed for Interstate 95. Radzimirski continued to pursue him, and when the defendant exited Interstate 95, Meyer joined in the chase.

The defendant testified that although he did not stop immediately after exiting the highway, he stopped voluntarily for a traffic light at the intersection of Main Street and Access Road. There, Meyer approached the defendant’s car and ordered him to put his hands on the steering wheel. After the defendant complied, Meyer told him to put his hands out the window. Meyer then pulled him from the car and hit him in the face with a nightstick, causing a laceration. At trial, the defendant testified that the police planted a gun on him after they stopped him. He denied that he was carrying a package containing a gun when the police ran over his foot, pursued him in a police car and arrested him. He also denied that he had been involved in a foot chase. He admitted, however, that he did not have a pistol permit.

It is undisputed that the officers transported the defendant to Bridgeport Hospital after his arrest. Physicians in the emergency room treated him for three broken bones in his foot and a laceration on his face, which required several stitches.

The state charged the defendant with carrying a pistol without a permit, having a weapon in a motor vehicle, altering or removing the identification marks from a pistol and interfering with an officer. The court denied the defendant’s motion to suppress the items seized by the police during his arrest, and a jury convicted him on all four counts. This appeal followed.

I

The defendant first claims that he was deprived of his constitutional rights to confrontation and to present a defense as guaranteed by the sixth amendment to the United States constitution and article first, § 8, of the constitution of Connecticut because the court improperly excluded evidence at trial that corroborated the defendant’s testimony and impeached critical testimony by the state’s key witnesses. Specifically, the defendant claims that the court improperly precluded him from (1) testifying as to his postarrest hospitalization, (2) eliciting testimony from Radzimirski and Meyer regarding his foot injuries and hospitalization, (3) introducing hospital records documenting his foot injuries and (4) eliciting detailed testimony from Radzimirski or Meyer regarding fingerprints. We conclude that, except as to the fingerprint testimony, the court abused its discretion in ruling to preclude the evidence and that preclusion of the evidence was prejudicial to the defendant. It therefore is unnecessary for us to reach the defendant’s related constitutional claims. See State v. Valentine, 240 Conn. 395, 399, 692 A.2d 727 (1997).

“It is well settled that [t]he trial court’s ruling on the admissibility of evidence is entitled to great deference. . . . [T]he trial court has broad discretion in ruling on the admissibility ... of evidence. . . . [Its] ruling on evidentiary matters will be overturned only upon a showing of a clear abuse of the court’s discretion. . . . We will make every reasonable presumption in favor of upholding the trial court’s ruling, and only upset it for a manifest abuse of discretion. . . . Moreover, evidentiary rulings will be overturned on appeal only where there was ... a showing by the defendant of substantial prejudice or injustice.” (Citations omitted; emphasis in original; internal quotation marks omitted.) Gaudio v. Griffin Health Services Corp., 249 Conn. 523, 546^7, 733 A.2d 197 (1999).

A

The defendant claims that the court improperly excluded his testimony, testimony from the two arresting officers, and records from the hospital regarding his foot injuries and postarrest hospitalization. He argues that the excluded testimony and records were relevant to whether the foot chase occurred, to when the police apprehended him and to the charge of interfering with an officer. The defendant further argues that the excluded testimony and hospital records relate to the larger question of the officers’ credibility in the eyes of the jury and, consequently, which party’s version of the incident the jury should believe. The defendant, therefore, argues that the foot chase, by implication, is relevant to the gun charges as well as to the interference charge. We agree.

“Relevant evidence is evidence that has a logical tendency to aid the trier in the determination of an issue. . . . One fact is relevant to another if in the common course of events the existence of one, alone or with other facts, renders the existence of the other either more certain or more probable. . . . Evidence is irrelevant or too remote if there is such a want of open and visible connection between the evidentiary and principal facts that, all things considered, the former is not worthy or safe to be admitted in the proof of the latter.

. . . Evidence is not rendered inadmissible because it is not conclusive. All that is required is that the evidence tend to support a relevant fact even to a slight degree, so long as it is not prejudicial or merely cumulative. . . . State v. Coleman, 241 Conn. 784, 788-89, 699 A.2d 91 (1997).” (Emphasis in original; internal quotation marks omitted.) State v. DeCaro, 252 Conn. 229, 257, 745 A.2d 800 (2000).

The following additional facts are necessary to our resolution of the defendant’s claim. At trial, defense counsel attempted to cross-examine Radzimirski and Meyer about the defendant’s foot injuries, facial lacerations and the events following his arrest. The court sustained the state’s objections, however, on the ground that such testimony was irrelevant, immaterial or beyond the scope of direct examination. Defense counsel then called Radzimirski and Meyer as witnesses for the defense to testify about their knowledge of the defendant’s injuries, pain and postarrest hospitalization. Following counsel’s offer of proof, the court again sustained the state’s objections on the grounds of relevancy and materiality. The defendant also attempted to testify in his defense as to the postarrest hospitalization, but the court sustained the state’s objections even after the state had cross-examined the defendant as to whether he took himself to the hospital immediately following his arrest. On redirect, the defendant managed to state that Meyer had taken him to the hospital only because the court failed to rule on the state’s objection to that testimony. In addition, the court refused to admit into evidence the defendant’s June 17, 1997 hospital records on the ground that they were not relevant. The records contained notes indicating that the defendant suffered three broken bones in his right foot on the night of his arrest and that the injury occurred when a “car wheel” ran over his foot. Finally, the court did not allow the defendant to cross-examine Radzimirski during the state’s rebuttal case regarding the standard procedure to be followed in dealing with injuries the defendant might have suffered that night.

On the basis of our review of the record, we conclude that the officers’ testimony concerning the defendant’s foot injuries and hospital treatment on the night of the incident might have led the jury to doubt the defendant’s ability to flee from Meyer by running for 100 yards prior to being tackled and subdued, thus casting doubt on other aspects of the officers’ story. Although it is true that the defendant himself offered testimony on those matters, absent the excluded evidence there was no other evidence to support his version of events that night. The prosecutor exploited that lack of corroborating testimony in his closing argument to the jury when he repeatedly portrayed the defendant as a “liar” and his story as a complete “fabrication.” Where a court erroneously excludes relevant evidence, the state compounds the harm to the defendant when it asks the jury to reject the defendant’s claim based on the lack of such evidence. State v. Carter, 228 Conn. 412, 428-29, 636 A.2d 821 (1994).

Relying in part on State v. Cepeda, 51 Conn. App. 409, 723 A.2d 331, cert, denied, 248 Conn. 912, 732 A.2d 180 (1999), the state argues that the court properly excluded testimony and records regarding the defendant’s injuries because the injuries and their subsequent treatment were not relevant to the underlying charges. The state asserts that the hospital records constituted, at best, extrinsic evidence offered to impeach the officers’ testimony on a collateral issue. The state contends that the relevant issues were whether the defendant possessed a gun, whether he altered the serial number on the gun and whether he interfered with the police by engaging them in a high speed vehicle chase. According to the state, the foot chase was not relevant to the interference charge because the defendant’s criminal conduct was complete before the foot chase occurred.

Elsewhere in its brief, however, the state identifies one of the six “important, relevant issues” in the case as “whether the defendant ever engaged the officers in a foot chase.” Moreover, both the prosecution’s request to charge the jury and the subsequent jury instructions specifically referred to the foot chase, not the vehicle chase, as evidentiary support for the charge of interfering with an officer.

In Cepeda, the court excluded as irrelevant the testimony of a witness that the victim’s brother had stabbed the defendant’s brother during a melee involving at least six men. The court explained that such testimony did not implicate the defendant or the victim and was not connected to the “crucial issue” of whether the defendant shot the victim. Id., 418. Here, by contrast, the defendant alleges that his foot injuries prevented him from engaging in the foot chase altogether. The foot chase is a material element of the interference charge, not only because the prosecution expressly conceded that it was in its proposed juiy instructions, but also because the alleged foot chase satisfies the elements of resisting and endangering an officer. See General Statutes § 53a-167a.

Moreover, if the jury were to conclude that the foot chase did not occur, the gun charges could not be supported because the officers claimed that the bag containing the gun was dropped during the foot chase and its contents were revealed only after it was recovered and opened by the officers. Furthermore, the state concedes in its brief that the unwrapping of the plastic bag to expose the gun and its altered identification marks after the gun was dropped is relevant to the underlying charges. “All that is required is that the evidence tend to support a relevant fact even to a slight degree, so long as it is not prejudicial or merely cumulative;” (Emphasis in original; internal quotation marks omitted.) State v. DeCaro, supra, 252 Conn. 257. Here, evidence regarding the defendant’s injuries and hospitalization arguably tends to support his assertion that Radzimirski’s vehicle ran over his foot and that he could not have engaged in the foot chase. Such evidence is relevant to each of the charges against the defendant.

The state also claims that admission of the hospital records and additional testimony by the officers regarding the defendant’s foot injuries was unnecessary because the defendant himself testified as to his injuries and because the injuries are consistent with both parties’ versions of the incident. Those claims are disingenuous.

During its closing argument to the jury, the state repeatedly called the defendant a liar and told the jury that his testimony had been truthful only with respect to his birth date and his admission that he did not have a gun permit. Additional testimony and evidence regarding the defendant’s injuries might have assisted the jury in assessing the credibility of the officers and the defendant, and prevented the state from urging the jury to regard the defendant’s story as a complete fabrication.

The state’s argument that the foot injuries are irrelevant because they are consistent with both versions of the incident also has no merit because it is the relevance of the injuries that is significant, not the fact that the injuries may have been consistent with both stories. Moreover, the state cites no authority for the proposition that evidence consistent with two conflicting versions of the facts is necessarily irrelevant.

The state finally argues that any error that might have occurred was harmless because the excluded testimony was cumulative, had minimal probative value and there was overwhelming evidence of the defendant’s guilt. We do not agree.

The effect of excluding evidence bearing on the ability of the defendant to participate in the foot chase, a material element in the charge of interference but also relevant to the gun charges, was potentially significant. Although the defendant testified as to his foot injuries and hospitalization, the state in its closing argument to the jury asserted that the defendant was a liar and that his story was a complete fabrication. Absent additional testimony corroborating the defendant’s version of the incident, the state’s closing argument made the disputed testimony and hospital records absolutely essential to the defendant’s case. Accordingly, we do not consider such evidence cumulative or insignificant. Finally, evidence of the defendant’s guilt was not overwhelming because the state’s case rested solely on the officers’ testimony.

On the basis of our review of the record, and making every reasonable presumption in favor of upholding the court’s evidentiary rulings, we conclude that the court, by precluding records and testimony regarding the defendant’s injuries and postarrest hospitalization, manifestly abused its discretion and improperly prevented inquiry into a legitimate area of relevant concern. The defendant’s alleged 100 yard dash constituted a material element of the charge of interfering with an officer. In addition, the state based all three gun charges on the allegation that the defendant dropped a package containing the gun as he leaped over a police car and sprinted away. Accordingly, an assessment of the defendant’s physical ability to sprint for 100 yards was relevant to all four charges against him.

Because the court’s evidentiary rulings were harmful to the defendant on each count of his conviction, he is entitled to a new trial on all four counts.

B

The defendant also claims that the court improperly excluded testimony regarding the state’s failure to produce fingerprint evidence. He argues that three of the four charges against him required the state to prove that he had possessed the gun and that, if the police had performed fingerprint testing on the gun but failed to produce the fingeiprint evidence, the defendant could have obtained a negative inference instruction. Such an instruction would have allowed the jury to infer that the state did not introduce the fingeiprint evidence because the evidence would not have supported the state’s contention that the defendant possessed the gun. He, therefore, asserts that he was precluded from establishing the necessary factual predicate for requesting the instruction. This claim has no merit.

The following additional facts are necessary to our resolution of the defendant’s claim. The state presented no evidence that the defendant’s fingerprints were found on the gun or the plastic bag. At trial, the defendant elicited testimony from Meyer on cross-examination that he had not done fingerprint testing on the gun. When the defendant asked Meyer if anyone else had done fingerprint testing on the gun, the state objected. The court sustained the objection as irrelevant and beyond the scope of Meyer’s direct testimony. When the defendant called Meyer as a witness in his own case and attempted to elicit similar testimony, the court again sustained the state’s objection.

The court also precluded the defense from asking Radzimirski if he personally had tested the weapon for fingerprints. Thereafter, defense counsel made an offer of proof in which he informed the court that because the defendant would testify that he had not possessed the gun, additional testimony relating to fingerprint analysis on the gun was relevant. Defense counsel further indicated that he would request a negative inference instruction on the failure of the police to subject the gun to fingerprint analysis.

We conclude, after a careful review of the record, that the court did not abuse its discretion by ruling to exclude additional testimony by the officers regarding fingerprint testing. Such testimony was not relevant because evidence of fingerprints was not required to support any of the three gun possession charges. Possession is established by showing dominion and control over the object possessed. State v. Longo, 243 Conn. 732, 742, 708 A.2d 1354 (1998). Here, as the defendant conceded during oral argument before this court, the state based its case exclusively on evidence of dominion and control, namely, that the officers observed the defendant carry a gun away from 1406 Stratford Avenue, place it inside his coat, get into his car and discard it during a foot chase. Moreover, there would be no reason to expect the defendant’s fingerprints to be on the gun because, during the entire time that the officers allegedly observed him in possession of the gun, it was wrapped in newspaper and plastic.

The defendant nonetheless argues that fingerprint evidence was particularly relevant to the charge of altering an identification mark and that, absent evidence that the defendant touched the gun, a properly instructed jury should have concluded that the state failed to prove the alteration charge. We disagree.

Pursuant to § 29-36, “[t]he possession of any pistol or revolver upon which any identifying mark, number or name has been altered, removed or obliterated shall be prima facie evidence that the person owning or in possession of such pistol or revolver has altered, removed or obliterated the same.” “In criminal law, the word possession generally denotes an intentional control of a designated thing accompanied by knowledge of its character.” (Internal quotation marks omitted.) State v. Hobson, 8 Conn. App. 13, 24, 511 A.2d 348, cert, denied, 201 Conn. 808, 515 A.2d 379 (1986), cert, denied, 480 U.S. 917, 107 S. Ct. 1370, 94 L. Ed. 2d 686 (1987). Accordingly, once the jury determined that the defendant possessed the gun, it did not need fingerprint evidence to conclude that the defendant altered the identification mark, and additional testimony as to fingerprints would have been irrelevant.

II

The defendant next claims that the court improperly instructed the jury regarding the presumption contained in § 29-36 that his possession of the gun was prima facie evidence that he altered its identification marks. The defendant argues that because the court’s instructions contained the phrase “prima facie proof’ instead of “prima facie evidence” in referring to the statutory requirement, the instructions created an unconstitutional mandatory presumption that deprived him of his right to due process. Having failed to object to the instructions at trial, he now seeks review under State v. Golding, 213 Conn. 233, 567 A.2d 823 (1989).

Under Golding, “a defendant can prevail on a claim of constitutional error not preserved at trial only if all of the following conditions are met: (1) the record is adequate to review the alleged claim of error; (2) the claim is of constitutional magnitude alleging the violation of a fundamental right; (3) the alleged constitutional violation clearly exists and clearly deprived the defendant of a fair trial; and (4) if subject to harmless error analysis, the state has failed to demonstrate harmlessness of the alleged constitutional violation beyond a reasonable doubt.” (Emphasis in original.) Id., 239^10. “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). In this case, the record is adequate for review, and the defendant’s claim is of constitutional magnitude. Even more significantly, the state concedes that the court improperly instructed the jury.

In its charge to the jury, the court quoted § 29-36 in its entirety; see footnote 3; and stated: “Possession means intentional dominion and control over an object. In this case, a firearm with scratched off identification numbers. Keep in mind that the mere presence in the vicinity of a firearm, however, is not enough to establish possession. However, in this situation, the state has argued that the defendant, by carrying the package and in his course of conduct while carrying it, that is, the pursuit from the police, clearly demonstrate [d] that he was in possession of the firearm and that his possession of it is prima facie proof that he had altered, obliterated the identification marks or had knowledge of the marks being removed. On the other hand, the defendant argues that since he never picked up the package, he never had possession of the pistol.

“Now, if you find that the state has proven these elements beyond a reasonable doubt, then you should find the defendant guilty. On the other hand, if you find that the state has failed to prove beyond a reasonable doubt any one of the elements, you should find the defendant not guilty.” (Emphasis added.)

The state concedes that the instruction misled the jury because the court interpreted the inference in § 29-36 to be mandatory. Under the principles articulated in State v. Francis, 246 Conn. 339, 717 A.2d 696 (1998), the instruction thus constitutes reversible error, and the defendant is entitled to a new trial on this claim. Accordingly, we conclude that the defendant is entitled to a new trial on this claim with instructions that the statutory inference is permissive and not mandatory.

Ill

The defendant next claims that the presumption contained in § 29-36, upon which the court instructed the jury, is unconstitutional as applied to the facts of this case. He argues that the presumption is tenuous because he was not yet twenty-one years old at the time of his arrest and could not have been the original owner of the forty-six year old handgun. He also argues that the police did not claim to have seen him carrying the package with the gun into the building at 1406 Stratford Avenue and that the state presented no evidence that he had ever seen or held the gun at any other time. The defendant, therefore, argues that the statutory inference of alteration was based solely on the predicate fact of possession, and that only if other facts and circumstances support the fact of possession is it permissible to instruct a jury that it may draw such an inference. Although the defendant did not raise that issue at trial, he now seeks review under Stale v. Golding, supra, 213 Conn. 239-40.

We conclude, pursuant to Golding, that the record is adequate for review and the defendant’s claim is of constitutional magnitude. The defendant has failed, however, to demonstrate a clear constitutional violation that clearly deprived him of a fair trial and, thus, has failed to satisfy the third prong of Golding.

[A] criminal statutory presumption must be regarded as irrational or arbitrary, and hence unconstitutional, unless it can at least be said with substantial assurance that the presumed fact is more likely than not to flow from the proved fact on which it is made to depend.” (Internal quotation marks omitted.) State v. Strickland, 42 Conn. App. 768, 775, 682 A.2d 521 (1996), rev’d on other grounds, 243 Conn. 339, 703 A.2d 109 (1997). “When reviewing the constitutionality of a permissive inference, we consider whether under the facts of the case, there is no rational way the trier could make the connection permitted by the inference . . . [f]or only in that situation is there any risk that an explanation of the permissible inference to a jury, or its use by a jury, has caused the presumptively rational factfinder to make an erroneous factual determination.” (Internal quotation marks omitted.) State v. Francis, supra, 246 Conn. 356.

Here, a jury relying on the state’s version of the facts reasonably could have inferred that the defendant both possessed and altered the gun. Although the defendant could not have been the original owner of the gun, he apparently was familiar with the occupants and contents of the house at 1406 Stratford Avenue because he identified himself to the person at the window by announcing, “It’s me,” and had his own key to unlock the back door. The fact that he remained in the house for little more than thirty seconds before coming out with the bag in his hand also suggests that he entered the house for the express purpose of picking up the bag and knew it contained the gun. The jury, therefore, reasonably could have inferred from the defendant’s possession of the gun that he obliterated the identification marks at some time prior to the early morning hours of the day in question. We, accordingly, conclude that the presumption contained in § 29-36 is not arbitrary, tenuous or unconstitutional as applied to the facts of this case.

IV

In his final claim, the defendant contends that the court improperly denied his motion to suppress unlawfully seized evidence. We do not agree.

“Our standard of review of a trial court’s findings and conclusions in connection with a motion to suppress is well defined. A finding of fact will not be disturbed unless it is clearly erroneous in view of the evidence and pleadings in the whole record .... [W]here the legal conclusions of the court are challenged, we must determine whether they are legally and logically correct and whether they find support in the facts set out in the memorandum of decision . . . .” (Internal quotation marks omitted.) State v. Boyd, 57 Conn. App. 176, 180, 749 A.2d 637, cert, denied, 253 Conn. 912, 754 A.2d 162 (2000).

A

The defendant claims that the state violated his rights under the fourth amendment to the United States constitution and article first, §§ 7 and 9, of the constitution of Connecticut when Radzimirski initiated the pursuit without a reasonable and articulable suspicion to justify an investigatory stop. The defendant argues that Radzimirski was acting on a hunch, or mere suspicion, because of the time of day and the character of the neighborhood, and that this was not enough to detain him. He contends that Radzimirski’s reasons for stopping the defendant rested solely on the information he purportedly received from Nikola, but that Nikola did not know the defendant, did not see the defendant make a drug transaction, had no idea whether the defendant lived in the building and did not know where the door at the rear of the building led. He argues that he simply was in the wrong place at the wrong time and that the court’s decision not to suppress evidence unlawfully seized was clearly erroneous. We disagree.

The following additional facts and procedural history are necessary for our resolution of the defendant’s claim. The court conducted an evidentiary hearing on the defendant’s motion to suppress and made findings of fact on the basis of the evidence it deemed credible. The court did not consider the defendant’s flight in determining whether the police officers had a reasonable and articulable suspicion to stop the defendant because the defendant did not flee until Radzimirski turned on his vehicle’s flashing lights. The court did find, however, that “in light of the totality of circumstances, the general suspicion of illegal activity based on Nikola’s observation became particularized on the defendant and provided a reasonable and objective basis for Radzimirski to follow the defendant. There were specific and identifiable facts which, when taken together, warranted the officer’s suspicion that the defendant was engaged in criminal activity.” The court accordingly concluded that Radzimirski had a reasonable and articulable suspicion to detain the defendant.

“Under both the federal and state constitutions, police may detain an individual for investigative purposes if there is a reasonable and articulable suspicion that the individual is engaged in or about to engage in criminal activity. ... A court reviewing the legality of a stop must examine the specific information available to the police officer at the time of the detention and any rational inferences that may be drawn therefrom.” (Citation omitted; internal quotation marks omitted.) State v. Rivera, 56 Conn. App. 182, 185, 742 A.2d 387 (1999), cert, denied, 252 Conn. 927, 746 A.2d 791 (2000).

“The determination of whether a reasonable and articulable suspicion exists involves a two-part analysis: (1) whether the underlying factual findings of the trial court are clearly erroneous; and (2) whether the conclusion that those facts gave rise to such a suspicion is legally correct. . . . The trial court’s conclusions must stand unless they are legally and logically inconsistent with the facts. . . .

“Article first, §§ 7 and 9 of our state constitution permit a police officer in appropriate circumstances and in an appropriate manner to detain an individual for investigative purposes even though there is no probable cause to make an arrest. ... In determining whether the detention was justified in a given case, a court must consider if [bjased upon the whole picture the detaining officers [had] a particularized and objective basis for suspecting the particular person stopped of criminal activity. ... A court reviewing the legality of a stop must therefore examine the specific information available to the police officer at the time of the initial intrusion and any rational inferences to be derived therefrom. . . . These standards, which mirror those set forth by the United States Supreme Court in Terry v. Ohio, [392 U.S. 1, 88 S. Ct. 1868, 20 L. Ed. 2d 889 (1968)], with regard to fourth amendment analysis, govern the legality of investigatory detentions under article first, §§ 7 and 9 of our state constitution. . . .

“Police have the right to stop for investigation short of arrest where a police officer observes unusual conduct which leads him reasonably to conclude in light of his experience that criminal activity may be afoot. . . . [I]n justifying the particular intrusion the police officer must be able to point to specific and articulable facts which, taken together with rational inferences from those facts, reasonably warrant that intrusion. ... [A] police officer’s decision to detain an individual for investigatory purposes must be predicated on more than a mere hunch. ... An investigatory stop must be justified by some objective manifestation that the person stopped is, or is about to be, engaged in criminal activity.” (Citations omitted; internal quotation marks omitted.) State v. Lipscomb, 58 Conn. App. 267, 271-73, 753 A.2d 415, cert, granted, 254 Conn. 932, 761 A.2d 756 (2000).

Although the reputation of an area as high crime, standing alone, does not justify an arbitrary stop, the police may take the type of area into account. State v. Scully, 195 Conn. 668, 678-79 n.15, 490 A.2d 984 (1985). “The character of the neighborhood and the officer’s knowledge of narcotics distributions in the area may properly be considered.” State v. Moreland, 23 Conn. App. 495, 497, 582 A.2d 212 (1990). Moreover, while flight is an appropriate consideration before the police attempt to stop a fleeing suspect; State v. Groomes, 232 Conn. 455, 471, 656 A.2d 646 (1995); flight is an inappropriate consideration where it was provoked by police conduct. State v. Oquendo, 223 Conn. 635, 655-56, 613 A.2d 1300 (1992).

“A brief stop of a suspicious individual, in order to determine his identity or to maintain the status quo momentarily while obtaining more information, may be most reasonable in light of the facts known to the officer at the time. . . . The results of the initial stop may arouse further suspicion or may dispel the questions in the officer’s mind.” (Citations omitted; internal quotation marks omitted.) State v. Rodriguez, 239 Conn. 235, 247, 684 A.2d 1165 (1996).

We conclude that the court’s factual findings concerning the motion to suppress were not clearly erroneous and that its legal conclusions find support in the record. The court properly found that it could not consider the defendant’s flight in deciding whether the officers had a reasonable and articulable basis of suspicion because the defendant fled after Radzimirski activated his vehicle’s flashing lights. The court also properly found that the officers were justified in harboring an initial generalized suspicion of illegal activity at the location, which became specific when Nikola observed several people walk into the alleyway toward the window of the house and make a transaction of some kind. The defendant’s actions justifiably heightened Nikola’s suspicion when the defendant walked through the alleyway, approached the window and said, “It’s me,” entered the house, exited the house carrying a plastic bag with something inside, returned to the alleyway entrance, looked up and down the street, placed the bag underneath his coat, reentered his car and began to back down Stratford Avenue in the wrong direction. Nikola radioed his observations to Radzimirski, who could then rely on specific and identifiable facts that, together with rational inferences drawn therefrom, provided him with a particularized and objective basis for suspecting that criminal activity was afoot. See State v. Waz, 240 Conn. 365, 373 n.14, 692 A.2d 1217 (1997). Accordingly, the court’s conclusions were legally and logically correct, and were properly supported by the facts set forth in its memorandum of decision.

The defendant argues that under the reasoning of two recent cases, State v. Donahue, 251 Conn. 636, 742 A.2d 775 (1999) (en banc), cert, denied, 531 U.S. 924, 121 S. Ct. 299, 148 L. Ed. 2d 240 (2000), and State v. Lipscomb, supra, 58 Conn. App. 267, the court had no basis for concluding that Meyer and Radzimirski had a reasonable and articulable suspicion to detain the defendant because the defendant’s actions were as consistent with innocence as they were with criminal activity. We do not agree.

In Donahue, in which the defendant turned his vehicle abruptly into a deserted parking lot in the early morning in an area that had experienced a recent dramatic increase in crime, our Supreme Court concluded that the totality of the circumstances did not give rise to reasonable suspicion on the part of the arresting police officer because the defendant had not committed any traffic violation, had not been driving erratically and had not exhibited any furtive conduct or exited the vehicle. State v. Donahue, supra, 251 Conn. 647. Moreover, the vehicle itself had not been the subject of a police investigation. Id. In Lipscomb, in which the defendant stopped his car in an area that had a reputation for prostitution and picked up a woman whom one of the officers believed to be a prostitute, we held that the woman’s actions of waving to the defendant and entering his car did not amount to furtive conduct warranting police intrusion. State v. Lipscomb, supra, 58 Conn. App. 274. In each case, the court concluded that the observed behavior was not criminal and did not form the proper basis for a rational inference rising to the level of a reasonable suspicion.

Here, by contrast, we are persuaded that the defendant’s presence in a known drug area, in combination with the apparent drug activity that preceded his arrival in the alleyway and his own questionable behavior thereafter, was sufficient to support the court’s conclusion that the officers had a reasonable and articulable suspicion for an investigatory stop. We therefore reject the defendant’s argument that his alleged actions were similar to the type of conduct observed by the police officers in Donahue and Lipscomb, and we conclude that the court properly denied the defendant’s motion to suppress.

B

The defendant finally argues that the court improperly admitted the handgun into evidence because he did not abandon the handgun. He argues that the court should not have deemed the gun abandoned because his alleged actions were the direct result of an illegal attempt to detain him. We do not agree.

In its memorandum of decision on the motion to suppress, the court reasoned that “[t]he defendant was not coerced into dropping the items, nor were the items the fruit of an illegal stop. They were recovered after a stop based on reasonable suspicion and, as a result, the abandonment was not tainted. Therefore, the seizure of the discarded items was proper because the items were abandoned . . . [and] the defendant had no . . . privacy interest in the items.”

“[W]here the presence of the police is lawful and the discard [of property] occurs in a public place where the defendant cannot reasonably have any continued expectancy of privacy in the discarded property, the property will be deemed abandoned for purposes of search and seizure. . . . Conversely, where a person has disposed of property in response to ... an illegal [seizure or search by police], courts have not hesitated to hold that property inadmissible.” (Citations omitted; emphasis in original; internal quotation marks omitted.) State v. Oquendo, supra, 223 Conn. 658.

Because we agree with the court that the officers had a reasonable and articulable suspicion to detain the defendant, we also agree that the discarded gun was not the tainted fruit of an illegal search, as the defendant suggests, but abandoned property. Accordingly, the court properly admitted the gun into evidence, and we decline to address the defendant’s final claim that the gun was not seized pursuant to a lawful arrest.

The judgment is reversed and the case is remanded for a new trial.

In this opinion the other judges concurred.

       General Statutes (Rev. to 1997) § 29-35 (a) provides in relevant part: “No person shall carry any pistol or revolver upon his person, except when such person is within his dwelling house or place of business, without a permit to carry the same issued as provided in section 29-28. . . .”

       General Statutes (Rev. to 1997) § 29-38 provides in relevant part: “Any person who knowingly has, in any vehicle owned, operated or occupied by him, any weapon for which a proper permit has not been issued ... or has not registered such weapon as required . . . shall be fined not more than one thousand dollars or imprisoned not more than five years or both, and the presence of any such weapon in any vehicle shall be prima facie evidence of a violation of this section by the owner, operator and each occupant thereof. . . .”

       General Statutes (Rev. to 1997) § 29-36 provides: “No person shall alter, remove or obliterate the name of any maker or model or any maker’s number or other mark of identification on any pistol or revolver. The possession of any pistol or revolver upon which any identifying mark, number or name has been altered, removed or obliterated shall be prima facie evidence that the person owning or in possession of such pistol or revolver has altered, removed or obliterated the same.”

       General Statutes § 53a-167 a (a) provides: “A person is guilty of interfering with an officer when he obstructs, resists, hinders or endangers any peace officer or fireman in the performance of his duties.”

       The state claims that the defendant could have sustained the ii\juries when he crashed into the police cruiser during the foot chase and was tackled face down on the pavement.

       In Francis, our Supreme Court reiterated that “[t]he Due Process Clause of the Fourteenth Amendment protects the accused against conviction except upon proof beyond a reasonable doubt of every fact necessary to constitute the crime with which he is charged. . . . This bedrock, axiomatic and elementary [constitutional] principle . . . prohibits the State from using evidentiary presumptions in a jury charge that have the effect of relieving the State of its burden of persuasion beyond a reasonable doubt of every essential element of a crime. . . .
      “A mandatory presumption instructs the jury that it must infer the presumed fact if the State proves certain predicate facts. A permissive inference suggests to the jury that a possible conclusion may be drawn if the State

        proves predicate facts, but does not require the jury to draw that conclusion.
      “Mandatory presumptions . . . violate the Due Process Clause if they relieve the State of the burden of persuasion on an element of an offense.
      ... A permissive inference does not relieve the State of its burden of persuasion because it still requires the State to convince the jury that the suggested conclusion should be inferred based on the predicate facts proved.
      . . . State v. Gerardi, [237 Conn. 348,356-57, 677 A.2d 937 (1996)]. This court previously has stated that presumptions will be construed as permissive inferences in order to preserve them in a constitutional manner.” (Internal quotation marks omitted.) State v. Francis, supra, 246 Conn. 354.

       In the defendant’s brief, the table of contents identifies the claim as one of sufficiency of the evidence. In the statement of issues and the text, however, the defendant claims that the presumption in § 29-36 is unconstitutional as applied to the facts of this case. Were we to consider the claim as one of sufficiency of the evidence, we would follow the reasoning in State v. Francis, supra, 246 Conn. 352-56, in which our Supreme Court was asked to consider a sufficiency of the evidence claim in conjunction with a claim that the jury had reached its verdict on the basis of an improper instruction concerning the parties’ respective burdens of proof pursuant to § 29-36. In Francis, the court concluded that “[i]n light of our interpretation of the presumption in § 29-36 as permissive and not mandatory, we conclude that the jury reached its verdict based on an improper instruction concerning the force and weight of this presumption. Consequently, although the standard governing our review of sufficiency of the evidence is to evaluate the evidence construing it in the light most favorable to sustaining the facts expressly and impliedly found by the jury ... we cannot presume the sufficiency of the evidence on which the jury based its verdict in light of the improper instruction. . . . We cannot presume that the jury would have reached the same conclusion had it been properly instructed on the law. Accordingly, we need not reach the defendant’s sufficiency claim.” (Citation omitted; internal quotation marks omitted.) Id., 355 n.17. For the reasons stated in Francis, we similarly decline to review the defendant’s claim as one of sufficiency of the evidence.

       The factual findings are summarized at the beginning of this opinion.

       Our Supreme Court granted certification to appeal on October 12, 2000, on the issue of whether an investigative stop of the defendant’s vehicle was justified by reasonable suspicion.


author: DUPONT, J.

text:
    STATE OF CONNECTICUT v. EDWARD HEDMAN
    (AC 19834)
    Mihalakos, Zarella and Dupont, Js.

      Argued November 30, 2000 —
    officially released March 20, 2001

      Martin Zeldis, assistant public defender, for the appellant (defendant).

      SusannE. Gill, senior assistant state’s attorney, with whom, on the brief, were Jonathan C. Benedict, state’s attorney, and Robert Brennan, assistant state’s attorney, for the appellee (state).
   Opinion

DUPONT, J.

After a hearing in this revocation of probation case, the court found the defendant, Edward Hedman, in violation of his probation, revoked it and sentenced him to the unserved remainder of the term of his original sentence. The court found that the defendant had violated the condition of probation that required him to obtain alcohol abuse testing, treatment and counseling.

The sole issue on appeal is whether the right of allocution as prescribed by Practice Book § 43-10 (1) and (3) required the trial court affirmatively to offer the defendant an opportunity to address the court personally before it imposed sentence in the dispositional phase of the probation revocation hearing. The defendant claims that the right of allocution requires a court to ask a defendant if the defendant wishes to make a statement in his or her own behalf if the defendant has not requested permission to make such a statement. The defendant further claims that the right is not satisfied by permitting the defendant’s counsel to speak for the defendant or by asking the defendant’s counsel if he or she wants to speak for the defendant. We agree with the defendant.

The defendant did not preserve the issue but claims that it is reviewable, nevertheless, under the principles of State v. Golding, 213 Conn. 233, 239-40, 567 A.2d 823 (1989), the plain error doctrine or our general supervisory powers. We conclude that the claim is reviewable under the plain error doctrine.

A probation hearing has two distinct components. First, “the court conducts an adversarial evidentiary hearing to determine whether the defendant has indeed violated a condition of probation. . . . Second, if the evidence supports a violation, the court exercises its discretion and determines whether the beneficial, rehabilitative purposes of probation are still being served or whether the need to protect the public outweighs the probationer’s interest in liberty.” (Citations omitted.) State v. Reilly, 60 Conn. App. 716, 725-26, 760 A.2d 1001 (2000). Thus, an appellate court will affirm a reinstatement of an original sentence or an order of incarceration absent a manifest abuse of discretion or injustice requiring reversal. Id., 726. In the present case, the defendant claims that an injustice has occurred.

We are concerned here solely with the dispositional phase of the violation of probation hearing. The defendant did not ask the court for permission to speak before it imposed the sentence. The court did ask counsel for the state and defense counsel if they wished to speak. Defense counsel did not state in his remarks that the defendant waived his right to allocution. The defendant claims that the court violated his right to allocution when it did not ask him if he personally wanted to address the court. The defendant claims further that Practice Book § 43-10 requires us to vacate the sentence imposed and to order a new dispositional sentencing proceeding before a different court. No Connecticut case has afforded an interpretation of Practice Book § 43-10 against a backdrop of facts similar to those of this case.

We must determine the correct interpretation of the words of Practice Book § 43-10, which provides in relevant part that “[t]he judicial authority shall afford the parties an opportunity to be heard . . . [and] shall allow the defendant a reasonable opportunity to make a personal statement in his or her own behalf and to present any information in mitigation of the sentence. . . .” Phrased differently, the question is whether the trial court has an affirmative duty to ask the defendant at sentencing if he wants to say anything or if the rules of practice require the trial court to allow the defendant an opportunity to speak only upon the request of the defendant or his attorney. The words of the rules of practice and Connecticut case law make clear that, at the very least, the defendant has the latter right. State v. Mourning, 249 Conn. 242, 248, 733 A.2d 181 (1999); State v. Strickland, 243 Conn. 339, 354, 703 A.2d 109 (1997).

It also is settled that Practice Book § 43-10 (3) applies during a violation of probation hearing. State v. Strickland, supra, 243 Conn. 354. Moreover, if the court orders the defendant to serve the balance of his sentence immediately after it finds a violation and then adjourns for the day immediately after imposition of that sentence, the court has deprived the defendant of a reasonable opportunity to exercise the right of allocution. State v. Johnson, 50 Conn. App. 46, 50, 717 A.2d 786, cert, denied, 247 Conn. 923, 722 A.2d 811 (1998). Johnson also determined that neither the defendant’s testimony nor his counsel’s argument during the first component of the hearing satisfies the right of allocution. If the defendant is entitled to a new hearing of the dispositional phase, a different judge should conduct that hearing. See id., 51; see also State v. Strickland, supra, 354. An appellate court of Connecticut has not yet decided, however, whether Practice Book § 43-10 (1) or (3) mandates that a trial court inquire of a defendant whether the defendant wants to speak before it imposes sentence during the dispositional phase of the violation of probation hearing.

We now turn to whether a plain error review is warranted and, if so, whether the defendant can prevail on his claim that plain error exists. If a statute imposes a duty, the failure to comply with that statute may constitute plain error. See State v. Yurch, 229 Conn. 516, 521, 641 A.2d 1387, cert, denied, 513 U.S. 965, 115 S. Ct. 430, 130 L. Ed. 2d 343 (1994); State v. Thurman, 10 Conn. App. 302, 308-309, 523 A.2d 891, cert, denied, 204 Conn. 805, 528 A.2d 1152 (1987). “Where the legislature has chosen specific means to effectuate a fundamental right, failure to follow the mandatory provisions of the statute is plain error, reviewable by this court.” State v. Burke, 182 Conn. 330, 331-32, 438 A.2d 93 (1980). The failure to follow a procedural rule prescribing court procedures can also constitute plain error. State v. Johnson, 214 Conn. 161, 171 n.10, 571 A.2d 79 (1990); State v. Pina, 185 Conn. 473, 482, 440 A.2d 962 (1981); State v. Tinsley, 59 Conn. App. 4, 18, 755 A.2d 368, cert, denied, 254 Conn. 938, 761 A.2d 765 (2000); State v. Robins, 34 Conn. App. 694, 706, 643 A.2d 881 (1994), affd, 233 Conn. 527, 660 A.2d 738 (1995). When a rule effectuates a fundamental right, noncompliance with its mandatory requirements will require a plain error review. A plain error review does not necessarily require the conclusion that a defendant will prevail in the claim that plain error exists.

Ordinarily, a fundamental right is equated with an implied or explicit constitutional right. See Zapata, v. Burns, 207 Conn. 496, 505-506, 542 A.2d 700 (1988). A right is not fundamental if it has no protection in either the state or federal constitution, a statute or the common law. See Liistro v. Robinson, 170 Conn. 116, 124-25, 365 A.2d 109 (1976). In this case, Practice Book § 43-10 codifies the common-law right of allocution, which is a fundamental right when raised on direct appeal. Green v. United States, 365 U.S. 301, 304, 81 S. Ct. 653, 5 L. Ed. 2d 670 (1961); see Hill v. United States, 368 U.S. 424, 428-29, 82 S. Ct. 468, 7 L. Ed. 2d 417 (1962). Prior to codification by rule, the right had existed at common law since 1689. Green v. United States, supra, 304. Our rule, as does Federal Rule of Criminal Procedure 32 (a), “explicitly affords the defendant two rights: to make a statement in his own behalf, and to present any information in mitigation of punishment.” (Emphasis added; internal quotation marks omitted.) Id.

In determining if a right is fundamental, judges must look to the “traditions and [collective] conscience of our people . . . .” Snyder v. Massachusetts, 291 U.S. 97, 105, 54 S. Ct. 330, 78 L. Ed. 674 (1934); see Griswold v. Connecticut, 381 U.S. 479, 487, 85 S. Ct. 1678, 14 L. Ed. 2d 510 (1965) (Goldberg, J., concurring). Griswold concerns a fundamental, or implicit constitutional right of privacy, which rests on the fundamental right of personal liberty. The right of allocution is fundamental because it affects personal liberty, although it is not a right guaranteed by the federal constitution. The right of allocution rests instead on the traditions of the common law.

According to Ballentine’s Law Dictionary (3d Ed. 1969), allocution is the traditional formal inquiry under the common law, which exists by statute in some jurisdictions, and directs the court to ask defendants before sentencing if they have anything to say before the court pronounces sentence. Although Strickland strongly supports the accuracy of that definition; State v. Strickland, supra, 243 Conn. 343; the facts of Strickland relate to a situation where the defendant sought to speak but the court denied him that opportunity, although it had asked defense counsel if he had anything to say. Id., 342-43. In State v. Strickland, supra, 346, our Supreme Court, quoting Green v. United States, supra, 365 U.S. 304, stated: “The most persuasive counsel may not be able to speak for a defendant as the defendant might, with halting eloquence, speak for himself.” (Internal quotation marks omitted.)

In the present case, the court did not deny a request by the defendant for an opportunity to speak, nor did it inquire of the defendant if he wished to speak before sentencing. We rely on the principles of Strickland and the cases of Green v. United States, supra, 365 U.S. 301, and Hill v. United States, supra, 368 U.S. 424, to hold that Practice Book § 43-10 (3) requires that a trial court personally address a defendant and ask if he wants to say anything in his own behalf or to present any information in mitigation of sentence before it imposes sentence.

Unlike the present case, Green and Hill do not involve direct appeals from the imposition of sentence. They involved actions brought some years after sentencing on the ground that the sentences were illegal under rule 35 of the Federal Rules of Criminal Procedure. Both cases acknowledge the right of allocution as including the right of a defendant personally to receive an invitation from the trial judge to speak prior to sentencing pursuant to Federal Rule of Criminal Procedure 32 (a). In 1961 and 1962, the relevant dates of both the Green and Hill decisions, rule 32 (a) was nearly identical to Practice Book § 43-10 (3).

The federal rule provided that before imposing sentence, the court “shall afford the defendant an opportunity to make a statement in his own behalf and to present any information in mitigation of punishment.” The only differences between the two rules is that the Connecticut rule modifies the word “opportunity” with the word “reasonable,” modifies the word “statement” with “personal” and substitutes the word “sentence” for “punishment.” The Connecticut rule’s provision for a personal statement provides an even more compelling reason to conclude that only the defendant can provide a statement to the court than the words of the federal rule as it existed when the United States Supreme Court decided Hill and Green.

The similarity of language between Practice Book § 43-10 and the federal rule, as interpreted in Green and approved in Hill, persuades us to conclude, as the United States Supreme Court did, that allocution includes a defendant’s right to speak after a personal invitation from the court. At common law, a court’s failure to ask the defendant if he had anything to say before sentencing required reversal. Green v. United States, supra, 365 U.S. 304. Changes in criminal procedure may have lessened the need for the common-law rule, but many states have codified the rule by statute or by rule because reasons still exist for the protection of that right. Id.; State v. Strickland, supra, 243 Conn. 344-45. Connecticut has codified the common law in Practice Book § 43-10 in the same manner as the federal courts codified the common law in Federal Rule of Criminal Procedure 32 (a) as it existed in 1961 and, subsequently, in rule 32 (c) (3) (C). We find the federal cases interpreting the federal rule persuasive in the interpretation of our own rule of practice on the same subject and, therefore, conclude that a plain error review is required.

The present case does not lend itself to a traditional analysis of whether a defendant can prevail on the merits of his claim that plain error exists, requiring remedial action. See State v. Day, 233 Conn. 813, 849-52, 661 A.2d 539 (1995). The existence of plain error ordinarily requires an affirmative answer to the question of whether a failure to reverse a judgment will result in injustice or whether a particular trial error so affected the result of the trial as to create an injustice. We are not here concerned with any errors during a trial, but with an omission of a right mandated by the rules of practice, which omission occurred posttrial.

It is not every case that requires a harmless error analysis to determine if the plain error involved requires reversal. It would be reasonable to conclude that the principle of harmless error may be inconsistent with the language of a rule of practice enacted for the protection of a common-law right. See State v. Sinclair, 197 Conn. 574, 585, 500 A.2d 539 (1985). Some plain errors, such as those involving structural defects, are not subject to harmless error analysis. State v. Day, supra, 233 Conn. 823 n.6. We conclude that the omission in this case is not subject to a harmful error analysis because the omission can never be harmless. See State v. Suplicki, 33 Conn. App. 126, 130, 634 A.2d 1179 (1993), cert, denied, 229 Conn. 920, 642 A.2d 1216 (1994).

In the present case, we can never know what the defendant might have said prior to sentencing or how his statement might have affected the court. Where there is an absence of a procedure that is mandated by rules or statutes that are based on constitutional or fundamental rights, automatic reversal may be necessary without any harmless error analysis. See State v. Carter, 182 Conn. 580, 581, 438 A.2d 778 (1980); State v. Burke, supra, 182 Conn. 333-34; State v. Suplicki, supra, 33 Conn. App. 130. When the plain error is not grounded, however, in a constitutional or fundamental right, although it is mandated by rule or statute, a harmless error analysis is required. State v. Day, supra, 233 Conn. 848-50. When an appellate court undertakes a harmless error analysis, the state bears the burden of proving the harmlessness of the error beyond a reasonable doubt. State v. Yurch, supra, 229 Conn. 523.

In the present case, even if we assume a harmless error analysis is required, we conclude that the state cannot satisfy its burden. The question is whether, as a matter of law, the state can show that the court’s failure to give the defendant the opportunity to speak prior to sentencing did not influence the sentence. See State v. Cohane, 193 Conn. 474, 485-86, 479 A.2d 763, cert, denied, 469 U.S. 990, 105 S. Ct. 397, 83 L. Ed. 2d 331 (1984); State v. Thurman, supra, 10 Conn. App. 313. In this case, the court sentenced the defendant to the entire unserved remainder of his sentence. We cannot conclude that the court’s sentence would have remained the same, uninfluenced by the defendant, had the court asked him to speak in mitigation of the entire sentence and had the defendant spoken directly to the court in his own words.

The most recent Connecticut Supreme Court case discussing the right of allocution is State v. Strickland, supra, 243 Conn. 339. That case cites Practice Book § 919 (3), the predecessor rule to Practice Book § 43-10, and determines that it applies to violation of probation hearings. State v. Strickland, supra, 346-50. Strickland forcefully argues for the right of allocution and relies on Green in support of its conclusion. Id., 343-46. The court in Strickland also cites those sections of Green that unequivocally state that the right requires a trial court to inquire of the defendant personally as to whether the defendant wants to speak prior to sentencing. Id., 345-46; see Green v. United States, supra, 365 U.S. 304. Just as Strickland held that the denial of a request to speak before sentencing requires an automatic remand for resentencing, we hold that the failure to inquire of the defendant if he had anything to say before sentencing requires an automatic remand for resentencing.

Strickland does not cite State v. Carr, 172 Conn. 458, 374 A.2d 1107 (1977), which held that a sentencing court’s denial of the request of a defendant represented by counsel to address the court prior to sentencing was not an omission of constitutional dimension. Carr did not interpret the Connecticut rule of practice because the forerunner of the rule, namely, Practice Book § 2330 (2), did not apply to its facts. That section is identical to Practice Book § 43-10 (3), but § 2330 (2) did not become effective until October 1,1976, which was subsequent to the date of the defendant’s sentencing in Carr. The Carr case, therefore, did not involve a Practice Book rule that codified the common-law right of allocution because no such rule existed at the time of its events.

Carr acknowledges, however, that rule 32 (a) of the Federal Rules of Criminal Procedure requires that the defendant be given an opportunity to speak in his own behalf before sentencing. Statev. Carr, supra, 172 Conn. 474. Carr also states that if the omission of the right of allocution is held to be reversible error, a reversal applies to the sentence only and relief is limited to a remand for reimposition of sentence after allocution has been offered. Id. Although Carr correctly determines that United States v. Hill, supra, 368 U.S. 428, does not hold that the procedural right is constitutional, it does not speak to the issue of the present case, which is whether Practice Book § 43-10 (3) requires a court specifically to ask a defendant if he wants to speak on his own behalf prior to sentencing and, if the court does not, whether resentencing is necessary. See State v. Carr, supra, 475.

Strickland does not cite Carr, perhaps because the right of allocution had not yet been codified by rule in Connecticut until 1976, and was not, therefore, applicable to Carr. The two cases can thus be read compatibly, but it is Strickland on which we rely for its strong endorsement of Green, and, thus, its sub silentio approval of the proposition that our rule of practice and the very similar federal rule require that the sentencing court ask defendants if they want to speak in their own behalf prior to sentencing. Those cases that discuss plain error, where automatic reversal is not required, speak to whether the error is so obvious as to affect the fairness, integrity and public confidence in judicial proceedings. Failure to follow United States Supreme Court precedent does not enhance public confidence in a judicial proceeding, which confidence is least threatened when we follow both our rules of practice relating to fundamental or constitutional rights and federal precedent. See State v. Thurman, supra, 10 Conn. App. 316.

The judgment is reversed only as to the imposition of the sentence and the case is remanded for further proceedings, before a different court, in which that court shall address the defendant personally to determine whether he wants to exercise his right of allocution prior to the court’s imposition of sentence. The judgment is affirmed in all other respects.

In this opinion the other judges concurred.

       Ample evidence supported the court’s finding of a violation and neither party disputes that finding.

        Golding review requires, inter alia, the presence of a state or federal constitutional claim. State v. Golding, supra, 213 Conn. 239-40. The defendant here is not entitled to Golding review on the basis of a violation of a federal constitutional right because a violation of a procedural rule of practice regarding allocution is not jurisdictional or constitutional. Hill v. United States, 368 U.S. 424, 428, 82 S. Ct. 468, 7 L. Ed. 2d 417 (1962). Although there is no federal constitutional right involved in this case, there may be a state constitutional right. Article first, § 8, of the constitution of Connecticut provides in relevant part that “[i]n all criminal prosecutions, the accused shall have a right to be heard by himself and by counsel . . . .” (Emphasis added.) The courts have not yet inteipreted that section to include the right of allocution but have interpreted it as guaranteeing the right of self-representation. State v. Day, 233 Conn. 813, 820, 661 A.2d 539 (1995). In view of our conclusion that the present case warrants plain error review, we do not reach the question of whether article first, § 8, of the constitution of Connecticut would, as the defendant argues, provide a basis for Golding review.

       In State v. Johnson, 50 Conn. App. 46, 48, 717 A.2d 786, cert, denied, 247 Conn. 923, 722 A.2d 811 (1998), we reviewed a claim involving the right of allocution under our general supervisory powers. In that case, at the time the defendant requested an opportunity to speak at the dispositional phase of his probation revocation hearing, our Supreme Court had not yet decided State v. Strickland, 243 Conn. 339, 354, 703 A.2d 109 (1997), which established that the right of allocution exists during a violation of probation hearing. In the present case, the hearing occurred after our Supreme Court, decided Strickland. Although we need not determine whether the present case warrants review under our general supervisory powers, we note that we could elect to conduct such a review because of the nature and significance of the issue. See West Hartford Interfaith Coalition, Inc. v. Town

        Council, 228 Conn. 498, 507, 636 A.2d 1342 (1994); State v. Johnson, supra, 49; see also Practice Book § 60-2.

         Practice Book § 43-10 provides in relevant part: “Before imposing a sentence or making any other disposition after the acceptance of a plea of guilty or nolo contendere or upon a verdict or finding of guilty, the judicial authority shall, upon the date previously determined for sentencing, conduct a sentencing hearing as follows:
      “(1) The judicial authority shall afford the parties an opportunity to be heard and, in its discretion, to present evidence on any matter relevant to the disposition, and to explain or controvert the presentence investigation report, the alternate incarceration assessment report or any other document relied upon by the judicial authority in imposing sentence. . . .
      * ** *
      “(3) The judicial authority shall allow the defendant a reasonable opportunity to make a personal statement in his or her own behalf and to present any information in mitigation of the sentence. . . .”

       Our holding in the present case is limited to timely direct appeals from the imposition of sentence.

       Federal Rule of Criminal Procedure 32 (a) was amended in 1966 to provide that the court “shall address the defendant personally and ask him if he wishes to make a statement in his own behalf . . . .” The advisory committee’s note on the amendment states that it wrote “into the rule the holding of the Supreme Court,” and the committee cites both Green and Hill. Green establishes that it is an inflexible requirement under rule 32 (a) that a trial court specifically address the defendant before imposing sentence. Hill, decided during the next Supreme Court term, reiterates that interpretation but does not conclude that a violation of the rule renders a sentence illegal.

        State v. Carr, supra, 172 Conn. 458, does not cite United States v. Green, supra, 365 U.S. 301, and State v. Strickland, supra, 243 Conn. 339, does not cite United States v. Hill, supra, 368 U.S. 424.


author: O’CONNELL, J.

text:
    RICHARD BLAKE v. COMMISSIONER OF CORRECTION
    (AC 20891)
    Lavery, C. J., and Spear and O’Connell, Js.
    Submitted on briefs January 12
    officially released March 20, 2001

      Michael J. Boyle filed a brief for the appellant (petitioner).

      John A. Connelly, state’s attorney, Joy K. Fausey, deputy assistant state’s attorney, and Jack Fischer, assistant state’s attorney, filed a brief for the appellee (respondent).
   Opinion

O’CONNELL, J.

The petitioner appeals from the judgment rendered by the habeas court denying his petition for certification to appeal to this court following the denial of his petition for a writ of habeas corpus. The petitioner had been convicted of one count of possession of marijuana with intent to sell in violation of General Statutes § 21a-277 (b). His conviction was based on his plea of guilty pursuant to the doctrine of North Carolina v. Alford, 400 U.S. 25, 37, 91 S. Ct. 160, 27 L. Ed. 2d 162 (1970). He sought a writ of habeas corpus on the grounds of ineffective assistance of counsel and that his Alford plea was not constitutionally valid because the trial court did not adequately advise him that by offering the plea he was waiving his right to confront witnesses. The habeas court denied his petition for a writ of habeas corpus and also denied his petition for certification to appeal.

“In order for a plea of guilty to be constitutionally valid, the record must affirmatively disclose that the defendant entered the plea voluntarily and intelligently.” (Internal quotation marks omitted.) State v. Suggs, 194 Conn. 223, 226, 478 A.2d 1008 (1984). Practice Book § 39-19 (5) requires, inter alia, that the trial court address the defendant personally and determine that he fully understands that he has the right to confront and to cross-examine the witnesses against him. Literal compliance with our rules of practice is not required. 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). In this case, the habeas court examined the record of the petitioner’s plea and concluded that the trial court’s canvass of that plea passed constitutional muster.

“Faced with the habeas court’s denial of certification to appeal, a petitioner’s first burden is to demonstrate that the habeas court’s ruling constituted an abuse of discretion. ... If the petitioner succeeds in surmounting that hurdle, the petitioner must then demonstrate that the judgment of the habeas court should be reversed on its merits.” (Citations omitted.) Simms v. Warden, 230 Conn. 608, 612, 646 A.2d 126 (1994). After a thorough review of the record and briefs, we conclude that the petitioner has failed to make a substantial showing that he was denied a state or federal constitutional right and, further, that he has failed to sustain his burden of persuasion that the denial of certification to appeal from the denial of his habeas corpus petition was a clear abuse of discretion or that an injustice has been done. See Simms v. Warden, supra, 230 Conn. 612; Simms v. Warden, 229 Conn. 178, 189, 640 A.2d 601 (1994); Walker v. Commissioner of Correction, 38 Conn. App. 99, 100, 659 A.2d 195, cert, denied, 234 Conn. 920, 661 A.2d 100 (1995); see also Lozada v. Deeds, 498 U.S. 430, 431-32, 111 S. Ct. 860,112 L. Ed. 2d 956 (1991).

The appeal is dismissed.

In this opinion the other judges concurred.

       Practice Book § 39-19 provides in relevant part: “The judicial authority shall not accept the plea without first addressing the defendant personally and determining that he . . . fully understands . . . (5) . . . that he . . . has the right ... to confront and cross-examine witnesses against him


author: LAVERY, C. J.

text:
    STATE OF CONNECTICUT v. STEPHEN CASSIDY
    (AC 20455)
    Lavery, C. J., and Mihalakos and Stoughton, Js.

      Argued January 24
    officially released March 20, 2001

      Del Atwell, special public defender, for the appellant (defendant).

      Timothy J. Sugrue, senior assistant state’s attorney, with whom, on the brief, were Jonathan C. Benedict, state’s attorney, Maureen Platt Temchin, assistant state’s attorney, and Peter Anthopolos, former special deputy assistant state’s attorney, for the appellee (state).
   Opinion

LAVERY, C. J.

The defendant, Stephen Cassidy, appeals from the judgment of the trial court sentencing him to the statutory maximum for the crime of violation of probation. The defendant claims that the court improperly (1) imposed the maximum sentence and (2) failed to allow him to withdraw his guilty plea to the violation of probation charge. We reverse the judgment of the trial court.

The following facts are necessary for our resolution of this appeal. In 1993, the defendant was convicted of failure to appear in the first degree, robbeiy in the first degree, kidnapping in the first degree and unlawful restraint in the first degree. On appeal, our Supreme Court reversed the judgment of conviction and ordered a new trial on all but the failure to appear charge. On December 19,1996, the defendant pleaded guilty to the crimes of failure to appear in the first degree in violation of General Statutes § 53a-172 (a), robbery in the first degree in violation of General Statutes § 53a-134 (a) (3) and unlawful restraint in the first degree in violation of General Statutes § 53a-95 (a). The parties agree that the court sentenced the defendant to a total effective sentence of ten years, execution suspended after five years, with five years probation.

The defendant was released from custody in December, 1996. On July 16,1997, the state filed an information charging the defendant pursuant to General Statutes § 53a-32 with violating the conditions of his probation. On August 14,1997, the state and the defendant entered into an oral plea agreement whereby the defendant agreed to plead guilty to a violation of probation. In return, the state agreed to recommend a sentence of six years imprisonment. On August 14,1997, at the plea canvass, the state, the defendant’s attorney and the court improperly advised the defendant that he was subject to a maximum sentence of ten years, when in fact, there were only five years remaining on his previously imposed sentence. In accordance with the plea agreement, the defendant pleaded guilty to the charge and accepted the court’s sentence of six years imprisonment.

Sometime thereafter, but prior to September 21,1999, the defendant filed a motion to correct the sentence. He argued that his six year sentence was illegal because it exceeded the five year suspended time imposed in the original sentence. On September 21,1999, the court granted the defendant’s motion to correct the sentence and reduced the term of incarceration to five years, the maximum time allowable. The defendant then requested permission to withdraw his guilty plea because he had based his admission on an agreement that he would receive less than the maximum sentence. The court, however, did not allow the defendant to withdraw his plea. The defendant thereafter filed the present appeal.

On appeal, the defendant claims that his plea was involuntary because the court misinformed him of the penalty on the charges against him, that his plea was induced by that misinformation and was, therefore, improperly accepted by the court. We agree.

The state concedes that the defendant is entitled to withdraw his admission to the violation of probation charge. Although we are not bound by a party’s concession; State v. Coleman, 41 Conn. App. 255, 275 n.19, 675 A.2d 887 (1996), rev’d on other grounds, 242 Conn. 523, 700 A.2d 14 (1997); in this case we agree with the state. The court should have allowed the defendant to withdraw the plea that he made subsequent to receiving incorrect information in regard to the maximum penalty. Because we conclude that the court improperly denied the defendant’s motion to withdraw his guilty plea, we need not address the defendant’s remaining claims.

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

In this opinion the other judges concurred.

        State v. Cassidy, 236 Conn. 112,120, 672 A.2d 899, cert, denied, 519 U.S. 910, 117 S. Ct. 273, 136 L. Ed. 2d 196 (1996), overruled in part on other grounds, State v. Alexander, 254 Conn. 290, 296, 755 A.2d 868 (2000).