author: O’Connell, J.

text:
    State of Connecticut v. Hollis Wilson, Sr.
    (12294)
    O’Connell, Laveey and Landau, Js.
    Argued February 14
    decision released June 20, 1995

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

      Frederick W. Fawcett, assistant state’s attorney, with whom, on the brief, were Donald A. Browne, state’s attorney, and Gerard P. Eisenman, assistant state’s attorney, for the appellee (state).
   O’Connell, J.

The defendant appeals from the judgment of conviction, after a jury trial, of sexual assault in the first degree in violation of General Statutes § 53a-70 (a) (1) and burglary in the second degree in violation of General Statutes §. 53a-102 (a).

The following issues were briefed by the parties: (1) whether the jury selection process relating to peremptory challenges violated the defendant’s state constitutional rights; (2) whether the trial court improperly instructed the jury on the state’s burden of proof and the defendant’s presumption of innocence; (3) whether the state’s attorney was guilty of prose-cutorial misconduct; (4) whether the evidence was insufficient to find the defendant guilty of burglary in the second degree; (5) whether the composition of the jury pool violated the defendant’s rights; and (6) whether the impaneling of an all female jury violated the defendant’s constitutional rights. We affirm the judgment of the trial court.

The jury could reasonably have found the following facts. The victim lived in Bridgeport with her two young children and her boyfriend. At about 8 p.m. on May 7, 1991, she put her children to bed and reclined on a separate bed in the same room to watch television. The victim’s boyfriend was not at home. About fifteen minutes later, she heard someone in the apartment and then saw the defendant, whom she had known for two months, standing in the bedroom doorway. She had not admitted him into the apartment. The defendant, after refusing to leave, sexually assaulted her. The defendant testified on his own behalf and claimed that intercourse with the victim had been consensual.

I

The defendant’s first claim arises out of jury selection and the exercise of peremptory challenges, particularly as such challenges apply to the selection of alternate jurors. The defendant here could peremp-tively challenge six jurors if alternates were not to be chosen and eight jurors if alternates were to be chosen. See footnotes 5 and 6. At the conclusion of the first day of jury selection, four jurors had been selected, and the defendant had exercised five peremptory challenges.

On the second day of jury selection, the defendant inquired as to whether alternate jurors would be selected. The judge replied, “We’ll pick two alternates so that you have three challenges left and you can use them any way you like. You don’t have to save [them] for alternates if you don’t choose to.”

After the sixth regular juror had been selected, the defendant had used seven peremptory challenges. Three more venirepersons were questioned, but none was chosen to be an alternate, and the defendant did not use his remaining challenge. At this point, the trial court announced that they would proceed to trial without alternates.

The defendant asseverates that he was vested with a state constitutional right to eight challenges, all of which could have been used selecting the regular jurors — that is, the additional challenges were not to be exercised only during alternate jury selection. We need not decide whether the two additional challenges were for the alternates only, nor do we need to decide the effect of the trial court’s giving permission to use all of the challenges at any point the parties desired.

Because this claim was not raised at trial, the defendant seeks appellate review under State v. Golding, 213 Conn. 233, 239-40, 567 A.2d 823 (1989). The defendant fails, however, to satisfy the second prong of Golding, which requires that the defendant demonstrate that the claim is of constitutional magnitude.

Analysis of the authority for peremptory challenges shows that this is not a constitutional issue. Our state constitution establishes the right to peremptory challenges in both civil and criminal trials but provides that the number of such challenges is to be established by statute. Conn. Const., amend. IV. Pursuant to this constitutional mandate, the legislature provided by statute for peremptory challenges in criminal prosecutions, with the number of challenges depending on the maximum sentence that could be imposed in the case. General Statutes § 54-82g. The legislature also provided for alternate jurors and for peremptory challenges during their selection. General Statutes § 54-82h.

We conclude that, although the right to peremptory challenges is constitutional, the number of such challenges to which a defendant is entitled is statutory. The defendant’s claim does not concern his right to peremptory challenges but the number to which he was entitled. Consequently, this unpreserved claim raises a statutory, not constitutional, issue and, therefore, does not qualify for Golding review.

II

In his brief, defense counsel conceded that on several occasions, our Supreme Court has approved the jury instruction that was given in this case pertaining to presumption of innocence and burden of proof. At oral argument, he conceded that this claim had not been preserved for appellate review. Under these circumstances we will not review this claim.

III

Defense counsel informed the appellate court that, although it was briefed, he would not argue the prose-cutorial misconduct claim. Our examination of the record discloses that the claim does not constitute a pattern of repeated, strident and serious misconduct. An isolated brief episode does not warrant reversal. State v. Smith, 209 Conn. 423, 428, 551 A.2d 742 (1988). The claim has no merit.

IV

As to the fourth claim, defense counsel claimed that the evidence was insufficient to convict the defendant of burglary in the second degree because it failed to prove that the alleged burglary occurred at “night.” General Statutes § 53a-102 provides that “[a] person is guilty of burglary in the second degree when he enters or remains unlawfully in a dwelling at night with intent to commit a crime therein.” (Emphasis added.) The only element at issue in this claim is the requirement that the crime occur at night.

“Night” is defined by statute as “the period between thirty minutes after sunset and thirty minutes before sunrise.” General Statutes § 53a-100 (a) (3). The parties stipulated that on the day of the crime sunset occurred at 7:56 p.m. Therefore, as defined by statute, night began at 8:26 p.m. The victim put the children to bed at about 8 p.m., the defendant entered the apartment at about 8:15 p.m. We appreciate that these time periods are estimates, and, therefore, it is problematic that the evidence would support a conviction for entering the premises at night. Defense counsel concedes, however, that it was sufficient to allow the jury to infer that the crime took more than eleven minutes to complete, and, therefore, that the defendant remained in the dwelling at night. The evidence supports this concession.

We conclude, that the evidence was sufficient to sustain the conviction of burglary in the second degree.

V

Because the fifth and sixth claims, which were presented by the defendant pro se, both implicate the gender of the jurors, we will consider them together. In his brief, the defendant characterized the fifth issue as follows: “The court erred in excluding all potential males from the jury which resulted in the impaneling of an all female jury, which violated the defendant’s Fourteenth Amendment rights.” The defendant’s characterization of the issue, in his brief, together with his discussion of the peremptory challenges to individual jurors, makes it clear that he is attempting to raise a Batson claim. Batson v. Kentucky, 476 U.S. 79, 106 S. Ct. 1712, 90 L. Ed. 2d 69 (1986).

The defendant, however, has failed to present us with an adequate record to review his claim of gender based discrimination in the exercise of peremptory challenges. The defendant failed to raise his Batson claim at the appropriate time in the trial court. Lacking such a claim, the trial court did not conduct a Batson inquiry, which might have established a prime facie case and created a record for appellate review. See State v. Rodriguez, 37 Conn. App. 589, 596-98, 658 A.2d 98 (1995). Accordingly, we decline to review the defendant’s Batson claim on the ground that he failed to raise the matter during the voir dire and has thus failed to preserve the issue properly for appellate review.

We turn now to the claim that the composition of the jury pool violated the defendant’s rights. Unlike the previous issue, this is not a Batson claim that peremptory challenges were exercised by the state with discriminatory intent. Rather, this is a claim that the jury array did not constitute a fair cross section of the community because of the underrepresentation of men, in violation of the fair cross section requirement enunciated in Taylor v. Louisiana, 419 U.S. 522, 95 S. Ct. 692, 42 L. Ed. 2d 83 (1975).

Our Supreme Court addressed a fair cross section claim in State v. Tillman, 220 Conn. 487, 600 A.2d 738 (1991), cert. denied, 505 U.S. 1207, 112 S. Ct. 3000, 120 L. Ed. 2d 876 (1992); see also State v. Nims, 180 Conn. 589, 430 A.2d 1306 (1980) (jury clerk improperly separated jury cards based on gender). In Tillman, the court analyzed a challenge to the jury array based on the defendant’s claim that it contained no black males like himself. The issue was raised during voir dire, and the trial court denied a motion directed to this issue in the absence of evidence that the jury clerk was choosing people’improperly. The court applied the three part test enunciated in Duren v. Missouri, 439 U.S. 357, 364, 99 S. Ct. 664, 58 L. Ed. 2d 579 (1979), to evaluate a constitutional challenge to the composition of a jury array. To establish a prima facie violation of the fair cross section requirement under Duren, “the defendant must show (1) that the group alleged to be excluded is a ‘distinctive’ group in the community; (2) that the representation of this group in venires from which juries are selected is not fair and reasonable in relation to the number of such persons in the community; and (3) that this underrepresentation is due to systematic exclusion of the group in the jury selection process.” Id. Once the defendant has established a prima facie case, the burden shifts to the state to prove that that the selection system resulting in a nonrepresen-tative array furthers a significant state interest. Id., 367-68; see also State v. Castonguay, 194 Conn. 416, 421-22, 481 A.2d 56 (1984).

There is a procedural bar to the reviewability of this claim. The defendant failed to comply with Practice Book § 842 which requires a challenge to the jury array to be made “within five days after notification of the hearing or trial date, unless the defect claimed has arisen subsequent to the time required to make such motion.” Although the defendant claims in his brief that he made it clear at trial while jurors were being impaneled, that an all female jury would be prejudicial, he gives no citation to the transcript of the voir dire on October 10 and 23 for this claim and we could find no reference to the raising of this issue until the sentencing hearing on December 11.

Accordingly, the defendant’s claim is untimely as a matter of state procedural law and we do not reach the merits of his constitutional claim that there was a disproportionate underrepresentation of men in the jury array.

Even if there were not a procedural bar to reaching the merits of this claim, it would fail under the third prong of the Duren analysis because the defendant has failed to demonstrate that any underrepresentation of males was the result of the systematic exclusion of men in the formation of the jury arrays. State v. Ellis, 232 Conn. 691, 700, 657 A.2d 1099 (1995).

The judgment is affirmed.

In this opinion the other judges concurred.

       General Statutes § 53a-70 (a) provides in relevant part: “A person is guilty of sexual assault in the first degree when such person (1) compels another person to engage in sexual intercourse by the use of force against such other person or a third person, or by the threat of use of force against such other person or against a third person which reasonably causes such person to fear physical injury to such person or a third person . . . .”

       General Statutes § 53a-102 provides in pertinent part: “burglary IN the second degree: class C felony, (a) A person is guilty of burglary in the second degree when he enters or remains unlawfully in a dwelling at night with intent to commit a crime therein.”

       The first four issues were briefed and argued by appointed counsel. With permission of the court, the defendant briefed issues five and six pro se. He was denied permission to argue these claims. See footnote 7.

       The constitution of Connecticut, article first, § 19, as amended by article fourth of the amendments provides: “The right of trial by jury shall remain inviolate, the number of such jurors, which shall not be less than six, to be established by law; but no person shall, for a capital offense, be tried by a jury of less than twelve jurors without his consent. In all civil and criminal actions tried by a jury, the parties shall have the right to challenge jurors peremptorily, the number of such challenges to be established, by law. The right to question each juror individually by counsel shall be inviolate.” (Emphasis added.)

       General Statutes § 54-82g provides in relevant part: “The accused may challenge peremptorily, in any criminal trial before the superior court for any offense punishable by death, twenty-five jurors; for any offense punishable by imprisonment for life, fifteen jurors; for any offense the punishment for which may be imprisonment for more than one year and for less than life, six jurors; and for any other offense, three jurors. . . .The state, on the trial of any criminal prosecution, may challenge peremptorily the same number of jurors as the accused.”

       General Statutes § 54-82h provides in relevant part: “alternate JURORS IN CRIMINAL CASES. PEREMPTORY CHALLENGES, (a) In any criminal prosecution to be tried to the jury in the superior court if it appears to the court that the trial is likely to be protracted, the court may, in its discretion, direct that, after a jury has been selected, two or more additional jurors shall be added to the jury panel, to be known as ‘alternate jurors’. Such alternate jurors shall have the same qualifications and be selected and subject to examination and challenge in the same manner and to the same extent as the jurors constituting the regular panel, provided, in any case when the court directs the selection of alternate jurors, the number of peremptory challenges allowed shall be as follows: In any criminal prosecution the state and the accused may each peremptorily challenge thirty jurors if the offense for which the accused is arraigned is punishable by death, eighteen jurors if the offense is punishable by life imprisonment, eight jurors if the offense is punishable by imprisonment for more than one year and for less than life, and four jurors in any other case.”

       When a defendant seeks to act as cocounsel with his attorney the status is known as hybrid representation. A defendant has no constitutional right to hybrid representation under either the state or federal constitution. State v. Gethers, 197 Conn. 369, 382-94, 497 A.2d 408 (1985). It is wholly within the court’s discretion whether to permit hybrid representation. State v. Frye, 224 Conn. 253, 256, 617 A.2d 1382 (1993).
      In the present case, the defendant wanted to raise issues that, in defense counsel’s professional opinion, should not be raised. There was no duplication of effort. The defendant filed a pro se appearance together with a copy of his well drafted brief specifically stating the issues he wanted to raise and also accompanied by a motion for permission to file the brief. Under these circumstances, we exercised our discretion and allowed the brief, and later a reply brief, to be filed but denied the defendant permission to present oral argument. This type of case must be decided case-by-case.


source: Caselaw Access Project

author: Landau, J.

license: Public Domain

text:
    New Milford Savings Bank v. R. Richard Roina, Trustee, et al.
    (12342)
    Landau, Schaller and Spear, Js.
    Argued March 21
    decision released June 20, 1995

      Peter J. Ottomano, for the appellants (defendants).

      Vincent P. McCarthy, with whom, on the brief, was Joseph P. Secóla, for the appellee (plaintiff).
   Landau, J.

In this foreclosure action, the defendants R. Richard Roina as trustee, John R. Fiore, Charles A. Fiore and Pat J. Cutrone (defendants) appeal from the judgments of the trial court granting the plaintiffs motion for summary judgment on the defendants’ counterclaim and granting the plaintiff’s motion for a deficiency judgment and supplemental judgment. The defendants claim that the trial court improperly granted summary judgment on their counterclaim. They also claim that General Statutes § 49-28, pursuant to which the trial court rendered the deficiency judgment, violates the due process clause of the federal and state constitutions. We affirm the judgments.

In 1987, the defendants sought land acquisition and road construction financing from the plaintiff for the purpose of purchasing a tract of land in Southbury and developing subdivisions thereon. A representative of the plaintiff informed the defendant that its procedure for financing the development of subdivisions was to provide financing for the land acquisition first and, in a second phase, to accept an application for refinancing to provide funds for road construction. On November 2,1987, the plaintiff issued a revised commitment letter to the defendants for a land acquisition loan in the amount of $2,340,000. In 1989, the plaintiff denied the defendants’ refinance application. The defendants thereafter defaulted on the first mortgage and the plaintiff commenced an action seeking to foreclose the defendants’ interest in the Southbury parcel of land.

I

The defendants first claim that the trial court improperly granted the plaintiff’s motion for summary judgment as to their counterclaim. Following the filing of the plaintiff’s complaint, the defendants filed a counterclaim alleging breach of an oral agreement, breach of the implied covenant of good faith and fair dealing, breach of fiduciary duty and a violation of the Connecticut Unfair Trade Practices Act (CUTPA), General Statutes § 42-110a et seq. After the trial court severed the actions, the foreclosure action proceeded to judgment of foreclosure by sale. The court thereafter granted the plaintiff’s motion for summary judgment on the defendants’ counterclaim.

In support of their claim that summary judgment was improper, the defendants argue that a genuine issue of material fact existed concerning the bank’s good faith and fair dealing with respect to their refinancing application. The defendants assert that their application was denied in bad faith in that the plaintiff’s officers manipulated the appraisal of the property. The plaintiff responds that the defendants pleaded a breach of an oral agreement, not a bad faith denial. The plaintiff asserts that because no issue of material fact regarding the breach of an oral agreement existed, it was entitled to summary judgment. At the hearing on the summary judgment motion, the defendants changed the tenor of their argument and claimed for the first time a bad faith denial of their refinancing application. In the course of that hearing, the defendants admitted that no oral agreement existed. The plaintiff now argues that because the defendants never moved to amend their counterclaim to include allegations supporting a bad faith denial claim, they were compelled to litigate the breach of an oral agreement claim. Further, because the defendants admitted that no oral agreement existed, the trial court correctly granted summary judgment on the counterclaim. We agree with the plaintiff.

“The standard for appellate review of a trial court’s decision to grant a summary judgment motion is well established. Practice Book § 384 provides that summary judgment ‘shall be rendered forthwith if the pleadings, affidavits and any other proof submitted show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.’ Connecticut Bank & Trust Co. v. Carriage Lane Associates, 219 Conn. 772, 780-81, 595 A.2d 334 (1991); Lees v. Middlesex Ins. Co., 219 Conn. 644, 650, 594 A.2d 952 (1991). ‘ “ ‘Although the party seeking summary judgment has the burden of showing the nonexistence of any material fact; D.H.R. Construction Co. v. Donnelly, 180 Conn. 430, 434, 429 A.2d 908 (1980); a party opposing summary judgment must substantiate its adverse claim by showing that there is a genuine issue of material fact, together with the evidence disclosing the existence of such an issue. Practice Book §§ 380, 381; Burns v. Hartford Hospital, [192 Conn. 451, 455, 472 A.2d 1257 (1984)]. In deciding a motion for summary judgment, the trial court must view the evidence in the light most favorable to the non-moving party. Town Bank & Trust Co. v. Benson, 176 Conn. 304, 309, 407 A.2d 971 (1978).’ Strada v. Connecticut Newspapers, Inc., 193 Conn. 313, 317, 477 A.2d 1005 (1984). ‘The test is whether a party would be entitled to a directed verdict on the same facts.’ Batick v. Seymour, 186 Conn. 632, 647, 443 A.2d 471 (1982).” ’ Connecticut Bank & Trust Co. v. Carriage Lane Associates, supra, 781, citing Connell v. Colwell, 214 Conn. 242,246-47, 571 A.2d 116 (1990).” Trotta v. Branford, 26 Conn. App. 407, 409-10, 601 A.2d 1036 (1992).

“The purpose of a complaint [or counterclaim] is to limit the issues at trial, and it is calculated to prevent surprise. Farrell v. St. Vincent’s Hospital, 203 Conn. 554, 557, 525 A.2d 954 (1987). It must provide adequate notice of the facts claimed and the issues to be tried. Tedesco v. Stamford, 215 Conn. 450, 459, 576 A.2d 1273 (1990). In order to surmount a motion for summary judgment, a party must demonstrate that there exists a genuine issue of material fact. Connecticut Bank & Trust Co. v. Carriage Lane Associates, supra, [219 Conn. 781], citing Connell v. Colwell, [supra, 214 Conn. 246-47]. Demonstrating a genuine issue requires a showing of evidentiary facts or substantial evidence outside the pleadings from which material facts alleged in the pleadings can be warrantably inferred. United Oil Co. v. Urban Redevelopment Commission, 158 Conn. 364, 378-79, 260 A.2d 596 (1969). A material fact is one that will make a difference in the result of the case. Hammer v. Lumberman’s Mutual Casualty Co., 214 Conn. 573, 578, 573 A.2d 699 (1990). To establish the existence of a material fact, it is not enough for the party opposing summary judgment merely to assert the existence of a disputed issue. Daily v. New Britain Machine Co., 200 Conn. 562, 569, 512 A.2d 893 (1986); Lopez v. United Nurseries, Inc., 3 Conn. App. 602, 606, 490 A.2d 1027 (1985). Such assertions are insufficient regardless of whether they are contained in a complaint or a brief. Kakadelis v. DeFabritis, 191 Conn. 276, 281, 464 A.2d 57 (1983). Further, unadmitted allegations in the pleadings do not constitute proof of the existence of a genuine issue as to any material fact on a motion for summary judgment. Paine Webber Jackson & Curtis v. Winters, 13 Conn. App. 712, 721, 539 A.2d 595, cert. denied, 200 Conn. 803, 545 A.2d 1100 (1988). ‘The issue must be one which the party opposing the motion is entitled to litigate under [its] pleadings and the mere existence of a factual dispute apart from the pleadings is not enough to preclude summary judgment.’ Shuster v. Buckley, 5 Conn. App. 473, 477, 500 A.2d 240 (1985).” Trotta v. Branford, supra, 26 Conn. App. 412-13.

A review of the defendants’ counterclaim reveals that they alleged facts supporting a claim that the plaintiff made and breached an oral agreement to finance the second phase of the project. Nowhere in the counterclaim can we find allegations to the effect that the plaintiff or its representatives manipulated appraisal reports so as to justify a bad faith denial of the refinancing application. As the defendants themselves acknowledge, the two claims are distinct and, consequently, require different factual allegations. Despite the contents of their counterclaim, which they never amended, the defendants argued at the summary judgment hearing that a genuine issue of material fact as to a bad faith denial existed. Because the defendants made no allegations as to this issue, however, we conclude that there was no genuine issue of material fact as to the bank’s good faith and fair dealing that should have been resolved at trial. Moreover, in that the defendants conceded that no oral agreement existed, they presented no evidence to the trial court from which it could have warrantably inferred the existence of a genuine issue of material fact that the defendants were entitled to litigate. The trial court properly granted the plaintiff's motion for summary judgment.

II

The defendants’ second claim, an attack upon the constitutionality of § 49-28 as applied by the trial court in this case, is unavailing in light of our Supreme Court’s ruling in New England Savings Bank v. Lopez, 227 Conn. 270, 630 A.2d 1010 (1993). The defendants’ argument here is identical to the one pressed in Lopez — that due process requires that before a deficiency judgment is rendered pursuant to § 49-28, an evidentiary hearing must be held to establish the fair market value of the mortgaged property when foreclosure is by sale and the only bidder is the mortgagee. The Lopez court held that “state law does not provide a basis for a substantive due process interest in the fair market value of property sold at a foreclosure sale. Absent such a substantive interest, the defendants’ procedural due process claim must fail.” Id., 282.

The defendants here make their argument under both the federal and state due process clauses. Although the court’s reasoning in Lopez was premised on the fourteenth amendment to the United States constitution, our Supreme Court has held that “the due process provisions of the state and federal constitutions generally have the same meaning and impose similar constitutional limitations.” Keogh v. Bridgeport, 187 Conn. 53, 59-60, 444 A.2d 225 (1982). Consequently, we conclude that the defendants’ second claim is without merit.

The judgments are affirmed.

In this opinion the other judges concurred.

       General Statutes § 49-28 provides: “If the proceeds of the sale are not sufficient to pay in full the amount secured by any mortgage or lien thereby foreclosed, the deficiency shall be determined, and thereupon judgment may be rendered in the cause for the deficiency against any party liable to pay the same who is a party to the cause and has been served with process or has appeared therein, and all persons liable to pay the debt secured by the mortgage or lien may be made parties; but all other proceedings for the collection of the debt shall be stayed during the pendency of the foreclosure suit, and, if a deficiency judgment is finally rendered therein, the other proceedings shall forthwith abate. If the property has sold for less than the appraisal provided for in section 49-25, no judgment shall be rendered in the suit or in any other for the unpaid portion of the debt or debts of the party or parties upon whose motion the sale was ordered, nor shall the same be collected by any other means than from the proceeds of the sale until one-half of the difference between the appraised value and the selling price has been credited upon the debt or debts as of the date of sale; and, when there are two or more debts to which it is to be applied, it shall be apportioned between them.”

       The defendants brought their counterclaim in four counts: breach of an oral agreement to lend money; breach of the implied covenant of good faith and fair dealing; breach of fiduciary duty; and a violation of CUTP A. The defendants abandoned the third count at the summary judgment hearing. There is no dispute that the first count provides the factual predicate for the remaining counts of the counterclaim. If, in fact, there was no oral agreement to lend money, or if there was no genuine issue before the trial court regarding the existence of such an oral agreement, summary judgment was proper as to all counts of the counterclaim.

       See footnote 1.


text:
    State of Connecticut v. Philip Collins
    (11250)
    Landau, Schaller and Spear, Js.
    Argued March 21
    decision released June 20, 1995

      Mark D. Phillips, special public defender, for the appellant (defendant).

      Carolyn K. Longstreth, assistant state’s attorney, with whom, on the brief, was Eugene Callahan, state’s attorney, for the appellee (state).
   Landau, J.

The defendant appeals from the judgment of conviction, rendered after a jury trial, of assault in the second degree in violation of General Statutes § 53a-60 (a) (2) and carrying a pistol without a permit in violation of General Statutes § 29-35. He claims that the trial court improperly (1) failed to be present in the courtroom during the voir dire process, (2) overruled his challenge for cause and refused to permit his exercise of a peremptory challenge with respect to a particular juror, (3) instructed the jury on the issue of identification, (4) failed to conduct a hearing on the issue of juror note-taking during the course of the trial so as to determine whether the defendant was entitled to a mistrial and (5) denied the defendant’s motion to suppress identification evidence.

The jury could have reasonably found the following facts. On the evening of May 25,1991, Eric Goethe was in the vicinity of Perry Street in Stamford when he became involved in an argument with Mike Litt, an acquaintance. After the police arrived and ordered them to leave, Litt left but returned later with several friends. Eric Goethe telephoned his brother, Dwayne Goethe, who drove to Perry Street, picked him up and drove to the south end of Stamford where they met friends. Followed by friends in separate cars, they returned to the area of Perry Street, where Eric Goethe confronted Litt. As the two faced each other, an individual later identified as the defendant came up behind Eric Goethe. After an exchange of words between the two, the defendant pulled out a handgun and fired two shots, hitting Eric Goethe’s feet.

I

Invoking this court’s decision in State v. Patterson, 31 Conn. App. 278, 624 A.2d 1146 (1993), rev’d, 230 Conn. 385, 645 A.2d 535 (1994), the defendant asserts that the absence of the trial judge from the voir dire proceedings constitutes per se reversible error. He requests review of this unpreserved claim pursuant to State v. Evans, 165 Conn. 61, 327 A.2d 576 (1973), and State v. Golding, 213 Conn. 233, 567 A.2d 823 (1989).

The following facts are relevant to our disposition of this claim. After the trial judge introduced counsel to the panel of venirepersons and gave a preliminary charge, he excused himself to deal with other court business. Neither the defendant nor the state objected. During the defendant’s examination of prospective jurors, the state objected to certain questions and requested that the judge be summoned. In response, the defendant withdrew or rephrased each question such that the parties did not summon the judge.

The defendant’s first claim is controlled by our recent decision in State v. Lopez, 37 Conn. App. 509, 657 A.2d 647 (1995). In that case, we recognized that in State v. Patterson, 230 Conn. 385, 390, 645 A.2d 535 (1994), our Supreme Court held that “even assuming that the trial judge must be present in the courtroom throughout the voir dire of a criminal trial, the defendant can waive such a requirement.”

“As to what constitutes a valid waiver in cases where the judge is not present during the voir dire process in a criminal trial, the court stated that ‘[t]he waiver can be made by counsel, and it will ordinarily be inferred from the absence of an objection.’ [State v. Patterson, supra, 230 Conn. 396.] In Patterson, the court found that the presence of certain facts indicated a valid waiver. The defendant was represented by counsel and had prior experience with the criminal justice system. The defendant had acquiesced each time the judge left the courtroom and had requested the court’s presence only when a judicial determination needed to be made. Further, the defendant did not object to the judge’s absence during the voir dire. Id.” State v. Lopez, supra, 37 Conn. App. 512-13.

As in Lopez, “[t]he issue thus becomes whether the defendant waived the right to have the judge present during the voir dire proceedings. The record indicates a valid waiver in this case. The defendant was represented by counsel and did not object to the judge’s absence. The only time the judge’s presence was requested by the defendant was when a judicial determination needed to be made. Accordingly, we conclude that the trial court acted properly.” Id., 513.

II

The defendant next claims that the trial court improperly refused to excuse for cause a juror who, after being accepted by both parties, observed handcuffs, shackles and prison clothes in a room from which he had previously seen the defendant exit. He also claims that the trial court improperly refused to permit him to exercise a peremptory challenge as to that juror.

Jack Hansen was the first venireperson questioned and accepted by both parties. During the voir dire, he responded that he had attended graduate school at Columbia University and was at the time of the trial an adjunct professor of educational psychology at that school. He stated that he had an open mind and would have to consider all the evidence before accepting the testimony of law enforcement officials. Hansen also asserted his strong belief in the presumption of innocence and stated that, if the evidence did not show guilt beyond a reasonable doubt, he would vote for acquittal even though he thought the defendant was probably guilty.

Several days later, and before Hansen was sworn as a juror, the defendant learned that Hansen had observed the handcuffs and other indicia of custody. On the basis of this information, the defendant challenged Hansen for cause. The court overruled the challenge and instead indicated that, upon completion of the jury selection, including the selection of an additional alternate-, the court would supervise a supplemental voir dire of Hansen.

At the supplemental voir dire, Hansen stated that he did observe the items, but could not “imagine how that has any bearing on whether or not [the defendant] is innocent or guilty.” He explained that he would have no difficulty divorcing the incident from his mind intellectually, but acknowledged that, according to his training as a psychologist, it is more difficult to divorce one’s emotions from one’s decisions. For this reason, he stated, “I will make the extra effort to do so . . . I want to be fair to [the defendant] and I also want to be fair to society so I want to make those judgments and decisions based on what evidence we hear and not on emotional reaction.” The court subsequently overruled the defendant’s renewed challenge for cause and denied his request to exercise a peremptory challenge.

“The trial court has discretion to determine the competency of a juror to serve. General Statutes § 54-82f. On appeal, therefore, we may reverse the trial court’s denial of a request to excuse a juror for cause only upon a showing of abuse of discretion resulting in prejudice to one of the parties.” State v. Crafts, 226 Conn. 237, 259, 627 A.2d 877 (1993). Our review of the record indicates that the trial court acted well within its discretion in considering and overruling the defendant’s challenge for cause. By the conclusion of the supplemental voir dire, the court had sufficient reason to believe that Hansen would be a fair-minded juror with no preconceived opinion as to the defendant’s culpability.

The defendant also argues that the court improperly refused to permit his exercise of a peremptory challenge with respect to Hansen. Once a juror has been accepted by both parties, the absolute right to exercise a peremptory challenge is lost. Walczak v. Daniel, 148 Conn. 592, 596-97, 172 A.2d 915 (1961); DeCarlo v. Frame, 134 Conn. 530, 535, 58 A.2d 846 (1948); State v. Potter, 18 Conn. 166, 176 (1846). The trial court may, however, “in its discretion permit such a challenge to be made at any time before the jury is sworn.” Walczak v. Daniel, supra, 597, quoting DeCarlo v. Frame, supra, 535. See also State v. Potter, supra, 176, in which our Supreme Court stated that “[o]ur practice gives one advantage to the prisoner, that if anything new has occurred since the juror was directed to take his seat as juror, the party will not be absolutely precluded from taking the benefit of it, as he is in England after he is sworn, unless by consent. Tyndal’s Case, Cro. Car. 291-2.”

In this case, the trial court appropriately exercised its discretion. At the conclusion of the supplemental voir dire, the court stated that “Mr. Hansen is probably one of the most outstanding jurors that I have ever come in contact with. I think that he understands the process. I think that he would be abundantly fair. . . . I’m completely satisfied that he will make an outstanding juror for the state and for the defense and I see no reason for me exercising my discretion to disqualify him or excuse him . . . .” Our review of the record in this case convinces us that the trial court did not abuse its discretion in determining that the defendant would suffer no prejudice as a result of the incident in question and, consequently, in refusing to permit the defendant to exercise a belated peremptory challenge.

Ill

The defendant next claims that the trial court improperly instructed the jury on the issue of identification. Specifically, he argues that the court failed to include in its instructions his requested Telf aire charge.

The defendant filed a request to charge on the issue of identification, which did not invoke Telfaire, but which did request the court to instruct the jury to consider (1) an identification witness’ opportunity to observe the offender, including the length of time available and the lighting conditions, (2) whether the witness had seen the offender in the past, (3) the extent to which the identification was the product of his own recollection, as may be determined from the strength of the identification, the length of time that had elapsed since the crime and other circumstances surrounding the identification, (4) the credibility of the identification witness, and (5) the fact that the state must prove identification beyond a reasonable doubt.

“ 'It is not error for a trial court to refuse to charge a jury in the exact words of a requested instruction, as long as the requested charge is given in substance. . . .’” (Citations omitted.) State v. Fenn, 16 Conn. App. 318, 328, 547 A.2d 576, cert. denied, 209 Conn. 822, 551 A.2d 757 (1988), cert. denied, 488 U.S. 1031, 109 S. Ct. 841, 102 L. Ed. 2d 973 (1989), quoting State v. Jenkins, 8 Conn. App. 35, 40, 510 A.2d 1370 (1986).

Here, although the trial court’s charge to the jury did not mirror the defendant’s request to charge, it did cover the substantive points requested by him. Further, an examination of the charge as a whole reveals that the court’s instructions were clear, accurate, complete, comprehensive, and furnished sufficient guidance to the jury. See State v. Hardison, 16 Conn. App. 142, 146, 546 A.2d 968 (1988). Because we find that the “salient principles of the court’s charge adequately covered the dangers of misidentification”; (citations omitted; internal quotation marks omitted) State v. Graham, 21 Conn. App. 688, 714, 575 A.2d 1057, cert. denied, 216 Conn. 805, 577 A.2d 1063 (1990); we conclude that the defendant’s claim is without merit.

IV

The defendant next faults the trial court for failing to hold a hearing or to declare a mistrial, both sua sponte, on the basis of juror note-taking. He asserts that the note-taking constituted juror misconduct, which deprived him of his constitutional right to a fair trial by an impartial jury.

During the first day of jury deliberations, it came to the court’s attention that several of the jurors had taken notes during the course of the trial. The court instructed the jury that the taking of notes and their use in deliberations was prohibited. A sheriff then collected the notes, which were made available to counsel and marked as exhibits. After the jury retired, the defendant objected to the court’s failure to instruct the jury earlier in the trial not to take notes. The defendant, however, made no motion for a mistrial and did not request a hearing on the issue.

While our Supreme Court has held that a trial court has discretion to permit note-taking by jurors; see Esaw v. Friedman, 217 Conn. 553, 559, 586 A.2d 1161 (1991); our appellate courts have not squarely addressed the question of whether note-taking by jurors during trial, without permission and with no direction by the trial court, constitutes juror misconduct. Cf. Klingeman v. McCay, 25 Conn. App. 217, 594 A.2d 18, cert. denied, 220 Conn. 910, 597 A.2d 333 (1991) (juror wrote thoughts about case and read to other jurors).

No doubt may be assigned to the rule that “ ‘[t]he jury room cannot be guarded with too much vigilance and jealousy. Courts must reject all evidence not received on the trial, and must repel every foreign influence, which may affect the minds of the jury.’ ” Esaw v. Friedman, supra, 217 Conn. 559, quoting Clark v. Whitaker, 18 Conn. 543, 549 (1847). Neither Clark nor its progeny, Gimelli v. Waterbury Cadillac Co., 109 Conn. 722, 727, 145 A. 563 (1929), however, “can properly be read as bearing on the issue of note-taking by jurors; it can hardly be said that a juror’s own notes, reflecting the thoughts or questions that may have arisen in his mind during the trial or reflecting his attempts to preserve in writing his recollections of the evidence, constitute a ‘foreign influence, which may affect the minds of the jury.’ Clark v. Whitaker, supra [549].” Esaw v. Friedman, supra; 559. in the case at hand, most of the juror’s notes merely recount the testimony elicited at trial. The one exception is a notation that reflects the writer’s thoughts about certain evidence in a manner suggesting reasoning favorable to the defendant. Unlike in Esaw, however, the trial court did not exercise its discretion and permit the jurors to take notes, nor did it caution the jurors as to how to take and utilize such notes.

Where juror misconduct is at issue, “ ‘[t]he rule extracted from the cases seems to be, that however improper such conduct may have been, yet if it does not appear that it was occasioned by the prevailing party, or anyone in his behalf; if it [does] not indicate any improper bias upon the juror’s mind, and the court cannot see, that it either had, or might have had, an effect unfavorable to the party moving for a new trial; the verdict ought not to be set aside.’ Pettibone v. Phelps, 13 Conn. 445, 450 (1840); State v. Watkins, 9 Conn. 46, 51 (1831).” State v. Asherman, 193 Conn. 695, 735-36, 478 A.2d 227 (1984), cert. denied, 470 U.S. 1050, 105 S. Ct. 1749, 84 L. Ed. 2d 814 (1985).

“Juror misconduct which results in substantial prejudice to the defendant is not to be tolerated. But not every irregularity in a juror’s conduct compels reversal. ‘The dereliction must be such as to deprive the defendant of the continued, objective and disinterested judgment of the juror, thereby foreclosing the accused’s right to a fair trial.’ Nelson v. United States, 378 A.2d 657, 660 (D.C. 1977); United States v. Fay, 238 F.Sup. 1005, 1007 (S.D.N.Y. 1965). Consideration of extrinsic evidence is presumptively prejudicial because it implicates the defendant’s constitutional right to a fair trial before an impartial jury. State v. McCall, 187 Conn. 73, 80, 444 A.2d 896 (1982).” State v, Asherman, supra, 193 Conn. 736. “ ‘Accordingly, when a juror passes beyond the record evidence in reaching a decision, whether a new trial will be granted depends upon the magnitude of the juror’s deviation from his proper role, the degree to which the accused was deprived of the benefits of the constitutional and statutory safeguards, and the likelihood that the impropriety influenced the jury’s verdict. All of these elements must be weighed in determining whether there is a reasonable possibility that the defendant’s right to a fair trial has been prejudiced.’ State v. Graham, 422 So. 2d 123, 132 (La. 1982).” Id., 739-40.

Assuming, without deciding, that the jurors’ notes constitute extrinsic evidence and that the claim is one of constitutional magnitude, we are convinced that the state has shown that the defendant was not prejudiced pursuant to the three part balancing test set out by the Asherman court. To begin with, the note-taking by the jurors, while improper because not permitted by the trial court, was a slight and insignificant deviation from their proper role. In Esaw v. Friedman, supra, 217 Conn. 563, for example, the court held that “the benefits [of juror note-taking] are substantial enough to allow trial judges to decide, in each case, whether note-taking should be permitted.”

The degree to which the defendant was deprived of the benefits of constitutional and statutory safeguards was clearly minimal. Because the impact on the defendant’s constitutional rights could be adequately evaluated by simply reviewing the contents of the notes, we conclude on review that the trial court could reasonably have decided that further inquiry, in the form of a hearing, would serve no purpose. Also, the fact that the defendant made no request for a hearing to determine the nature and extent of the alleged jury misconduct seriously undermines his claim that his constitutional and statutory rights were impacted.

Finally, we examine the likelihood that the impropriety influenced the jury’s verdict. In light of the fact that the trial court took effective curative action by taking the notes away from the jury early in the deliberations and giving an appropriate instruction on the reason for the prohibition, we cannot conclude that the note-taking influenced the jury’s verdict.

“Not every incident of juror misconduct requires a new trial. See, e.g., United States v. Klee, 494 F.2d 394, 396 (9th Cir.), cert. denied, 419 U.S. 835, 95 S. Ct. 62, 42 L. Ed. 2d 61 (1974), and cases there cited; State v. Asherman, [supra, 193 Conn. 736]. The test for a new trial is ‘ “whether or not the misconduct has prejudiced the defendant to the extent that he has not received a fair trial.” ’ State v. McCall, [187 Conn. 73, 77, 444 A.2d 896 (1982)], quoting United States v. Klee, supra [396]; see also United States v. Hendrix, 549 F.2d 1225 (9th Cir.), cert. denied, 434 U.S. 818, 98 S. Ct. 58, 54 L. Ed. 2d 74, reh. denied, 434 U.S. 960, 98 S. Ct. 493, 54 L. Ed. 2d 321 (1977).” State v. Cubano, 203 Conn. 81, 91, 523 A.2d 495 (1987). “When a wise and experienced judge, who presided at the trial and observed the jury, comes to such a conclusion, it is not for us to upset it. The trial judge ‘was in a better position than we are to determine whether what happened was prejudicial. . . ” (Citations omitted.) United States v. Klee, supra, 396.

Applying the balancing test set forth above in Asher-man, we conclude that the jurors’ note-taking did not so jeopardize the fairness of the defendant’s trial as to require the trial court to declare a mistrial sua sponte or to hold a hearing to determine if the note-taking should have resulted in a mistrial. We should continue to be circumspect in overturning on appeal the action of a trial court in failing to grant sua sponte a mistrial.

V

The defendant’s final claim is that the trial court violated his right to due process of law by denying his motion to suppress identification evidence. He argues that the photographic arrays from which the victim and his brother initially identified him were impermissibly suggestive. He also asserts that these identifications were unreliable.

The following facts are pertinent to this claim. Prior to the beginning of the trial, the defendant moved to suppress evidence of photographic identifications made by the victim, Eric Goethe, and his brother, Dwayne Goethe. At the hearing on the motion, Eric Goethe testified that at the time of the shooting he was able to see his assailant adequately because the area was lit by streetlamps and lights on nearby buildings. Moreover, the assailant stood only a few feet away from both Eric and Dwayne Goethe.

Three days after the shooting, a Stamford police officer presented Eric Goethe with an array of eight photographs that had been assembled on the basis of Eric Goethe’s description of his assailant. Each photograph was of a black male and was taken from the same distance. Eric Goethe looked at the photographs one by one and, when he came to the picture of the defendant, stated that it was the person who had shot him.

Dwayne Goethe testified at the suppression hearing that he recognized his brother’s assailant as someone he had known before the shooting. Three days after the incident, Dwayne Goethe was presented with a photographic array that included the same seven pictures of other individuals and a different copy of the defendant’s photograph. After looking through the array twice, Dwayne Goethe identified the defendant without hesitation. The trial court denied the defendant’s motion to suppress, finding that the arrays were not impermissibly suggestive and that the identifications were reliable.

“ ‘To determine whether a pretrial identification procedure, such as the photographic array in this case, violated a defendant’s due process rights, “the required inquiry is made on an ad hoc basis and is two-pronged: first, it must be determined whether the identification procedure was unnecessarily suggestive; and second, if it is found to have been so, it must be determined whether the identification was nevertheless reliable based on an examination of the ‘totality of the circumstances.’ ” State v. Theriault, 182 Conn. 366, 371-72, 438 A.2d 432 (1980).’ State v. Howard, 221 Conn. 447, 453, 604 A.2d 1294 (1992); see also State v. Tatum, 219 Conn. 721, 727, 595 A.2d 322 (1991); State v. Outlaw, 216 Conn. 492, 501, 582 A.2d 751 (1990). An identification procedure is unnecessarily suggestive only if it gives rise to a very substantial likelihood of irreparable misidentification. State v. Outlaw, supra, 501; State v. Milner, 206 Conn. 512, 534-35, 539 A.2d 80 (1988); State v. Boscarino, 204 Conn. 714, 725, 529 A.2d 1260 (1987). The defendant bears the burden of proving both that the identification procedures were unnecessarily suggestive and that the resulting identification was unreliable. State v. Payne, 219 Conn. 93, 106, 591 A.2d 1246 (1991); State v. Milner, supra, 535; State v. Boscarino, supra, 725; State v. Williams, 203 Conn. 159, 173-74, 523 A.2d 1284 (1987); State v. Aversa, 197 Conn. 685, 693, 501 A.2d 370 (1985).” State v. White, 229 Conn. 125, 161-62, 640 A.2d 572 (1994).

In this case, the defendant claims that the arrays were unnecessarily suggestive due to the fact that in his photograph, his likeness was smaller than those in the photographs of the other seven individuals. Also, he asserts that only six of the men depicted had facial hair and that he was one of the two clean-shaven subjects. “ ‘Any array composed of different individuals must necessarily contain certain differences.’ State v. Vaughn, 199 Conn. 557, 564, 508 A.2d 430 (1986). . . . Differences in the size and color composition of photographs ‘in and of themselves do not render an array . . . unnecessarily suggestive.’ State v. McKnight, 191 Conn. 564, 571, 469 A.2d 397 (1983); State v. Davis, 175 Conn. 250, 254, 397 A.2d 1347 (1978).” (Citations omitted.) State v. Boscarino, supra, 204 Conn. 726-27.

In both arrays, the defendant’s photograph was shown with those of other black males who appeared to be approximately his age and whose physical traits were not so radically different from the defendant’s as to make his photograph distinctive. We conclude, therefore, that the defendant failed to carry his burden of proving that the identification procedure gave rise to a very substantial likelihood of irreparable mis-identification. Because we conclude that the arrays used to identify the defendant were not unnecessarily suggestive, we need not consider whether the identifications were nevertheless reliable. State v. White, supra, 229 Conn. 164; State v. Boscarino, supra, 204 Conn. 726.

The judgment is affirmed.

In this opinion the other judges concurred.

       General Statutes § 53a-60 (a) provides in pertinent part: “A person is guilty of assault in the second degree when ... (2) with intent to cause physical injury to another person, he causes such injury to such person or to a third person by means of a deadly weapon or a dangerous instrument J)

       General Statutes § 29-35 provides in pertinent part: “(a) 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. . . .”

       “As we stated in State v. Cox, 36 Conn. App. 463, 466, 652 A.2d 520 (1994), this decision is not to be read too broadly as its precedent applies only to criminal cases in which the judge was absent from voir dire, pursuant to a valid waiver, prior to July 26, 1994. ‘Despite its ruling on this court’s Patterson decision, the Supreme Court, acting under its supervisory power, declared “that henceforth the trial judge must continuously be present to oversee voir dire in a criminal case. Because this requirement is imposed by [the Supreme Court] pursuant to its supervisory power, the requirement cannot be waived by either party in future criminal cases.” State v. Patterson, supra, 230 Conn. 400.’ State v. Cox, supra, 466.” State v. Lopez, supra, 37 Conn. App. 513 n.4.

       The defendant also presses a claim of judicial misconduct. At the supplemental voir dire, the trial court asked Hansen, “What if I were to tell you that [the items in the room] aren’t [the defendant’s]?” Hansen answered that he would accept the court’s statement as truth. After Hansen had left the courtroom, the court added, “I have said, and I say again for the record, that the clothing and the vestitures, the handcuffs Mr. Hansen described that he saw in the deliberating room did not belong to this accused.” The defendant claims that “this obvious falsehood further tainted the proceeding, as well as this juror and constituted judicial misconduct.” Considering this claim in light of the standard set out in State v. Smith, 200 Conn. 544, 549, 512 A.2d 884 (1986), we must conclude that the trial court’s statements did not constitute judicial misconduct. The court did not “assume a position of advocacy, real or apparent . . . and [did not display] . . . hostility or skepticism toward the defendant’s case, or . . . approbation for the prosecution’s. . . .” (Citations omitted.) Id.

       A Telfaire charge instructs the jury to consider, in evaluating eyewitness identifications, the adequacy of the witness’ opportunity and capaity to observe the offender, the length of time available for the witness to observe the offender, the proximity of the witness to the offender, whether the witness had seen or known this person in the past, whether the identification was the product of the witness’ own recollection, and the credibility of the witness. United States v. Telfaire, 469 F.2d 552, 558-59 (D.C. Cir. 1972); see State v. Hardison, 16 Conn. App. 142, 146 n.4, 546 A.2d 968 (1988).

       The court charged the jury in pertinent part: “Now the state must prove beyond a reasonable doubt that not only was the offense committed as alleged in the information but that the defendant was the person who committed it. You must be satisfied . . . beyond a reasonable doubt of the accuracy of the identification of the defendant before you may convict him. On the issue of identification, you should take into account the following: You should consider whether or not the victim and his brother had the opportunity to observe the features which they described in court; the conditions under which they made those observations; the time they had to view the perpetrator of the crime and the distance between them and the perpetrator of the crime and whether the witness knew the person before the incident in question. You should also take into account the circumstances under which they first viewed and identified the defendant, the suggestibility of the procedure used in that viewing and all other facts which you find relating to the reliability or lack of reliability of the identification of the defendant.” Earlier in the charge, the court addressed the issue of credibility of witnesses.

         Although in other circumstances such nonaction by the defendant might preclude appellate review, in this case we exercise our discretion to consider the defendant’s claim, as it is in the interests of justice and public welfare to do so. See Kavanewsky v. Zoning Board of Appeals, 160 Conn. 397, 401, 279 A.2d 567 (1971).

       The Esaw court indicated that when a trial court decides to permit a jury to take notes, it “should instruct the jurors that their notes are merely aids to their memories and should not be given precedence over their independent recollection of the evidence, that a juror who has not taken notes should rely on his recollection of the evidence and should not be influenced by the fact that other jurors have done so, and that they should not allow their note-taking to distract then from paying proper attention to the evidence presented to them.” Esaw v. Friedman, supra, 217 Conn. 563.

       There is no claim in this case that the alleged juror misconduct was occasioned by either party.

       “Indeed, the American Bar Association Standards for Criminal Justice provide that jurors should have the right to do so even without the permission of the trial judge. ‘Jurors may take notes regarding the evidence presented to them and keep these notes with them when they retire for their deliberations. Such notes should be treated as confidential between the juror making them and the other jurors.’ III A.B.A. Standards for Criminal Justice (2d Ed. 1980) § 15-3.2. The commentary to this section states that ‘[t]he thrust of this standard is to permit note taking by jurors as a matter of right without permission of the court.’ III A.B.A. Standards for Criminal Justice, supra, § 15-3.2; id., commentary, p. 15.84. By contrast, rule 513 (e) of the Uniform Rules of Criminal Procedure leaves the matter to the trial court’s discretion. See III A.B.A. Standards for Criminal Justice, supra.” Esaw v. Friedman, supra, 217 Conn. 560-62.

       The court instructed the jury as follows: “The taking of notes, and their use in deliberations is prohibited. The reason it’s prohibited is — written notes tend to take on a greater significance, in the jury room than they may deserve. . . . [T]here are good note takers, and there are bad note takers. They also tend to cause a mind set, in the person of the taker of the notes.”


author: Heiman, J.

text:
    Christine Wilson v. David Wilson
    (13192)
    Poti, Heiman and Hennessy, Js.
    Argued February 15
    decision released June 27, 1995

      Robin C. Murphy, with whom was Mildred Doody, for the appellant (plaintiff).

      David Wilson, pro se, the appellee (defendant).

      Lynn Jenkins, for the minor child.
   Heiman, J.

In this dissolution action, the plaintiff appeals from the postjudgment orders of the trial court interpreting the judgment of dissolution as providing the defendant with the right to unsupervised visitation with the parties’ minor child and finding the plaintiff in contempt of violating the orders of visitation. On appeal, the plaintiff claims that the trial court improperly (1) interpreted the judgment of dissolution by (a) failing to consider the circumstances surrounding the entry of the order and (b) creating an impermissible prospective modification of visitation, which could not be based on the best interests of the child, and (2) found the plaintiff in contempt (a) when the plaintiff reasonably believed she was not obligated to allow visitation, (b) without considering the circumstances surrounding the violation of the court order and (c) based on remarks made by counsel. We affirm the judgment of the trial court.

An understanding of the following facts is necessary for the proper resolution of this appeal. The marriage between the parties was dissolved, after trial, on April 29,1993. Custody of the one minor daughter of the marriage was committed to the plaintiff. The defendant was granted rights of visitation in the judgment as follows: “[T]he defendant father [is to] have supervised visitation with the minor child for a period of six months. . . . Visitation to occur on Saturdays or Sundays from ten to six and may be flexible to allow supervisors to participate.”

On June 17, 1993, the defendant filed the first of a series of motions for contempt, alleging that the plaintiff had wilfully refused to allow him visitation with his child. A hearing was held on August 16,1993, at which the defendant informed the court that the child was removed by the supervisor from the May 23,1993 visitation when the defendant drank a beer in front of the child. The defendant further informed the court that the original order did not prohibit drinking during visitations and that he had not been allowed to see the child since that incident. The plaintiff then represented to the court that the child was afraid of the defendant and refused to call or see him. The trial court did not find the plaintiff in contempt at that time, but referred the case to family relations for a visitation study.

On November 26, 1993, the defendant filed a second motion for contempt, alleging again that the plaintiff had denied him visitation with the minor child since May 23, 1993, that the plaintiff had changed residences at least twice since the date of dissolution for the purpose of defeating the defendant’s exercise of his right to visitation, and that the defendant and the minor child had been denied telephone contact since July 31, 1993.

By motion dated December 13, 1993, the plaintiff sought an order of the court modifying the original visitation order in light of the defendant’s drinking during his visit with the child on May 23,1993. The plaintiff conceded in her motion for modification that no visitation had been afforded to the defendant since May 23, 1993, and claimed that, as a result of the defendant’s “past physical violence and destructive behavior while under the influence of alcohol, the minor child is afraid to be with her father when he is drinking.” The plaintiff sought an order that supervised visitation take place at Southern Connecticut State University.

Hearings were scheduled on each of these motions on December 13, 1993. On that day, counsel for the plaintiff requested a continuance of one week because counsel for the minor child and the child’s therapist were unavailable. The trial court continued the hearings to December 20, 1993. In granting the continuance, the trial court made clear that the original order regarding visitation was still in force until modified and admonished both parties that neither had a right to violate that order because they disagreed with it. The defendant then asked the trial court to clarify the provisions of the original order. Upon obtaining a copy of the transcript of the dissolution proceedings, the trial court read to the parties the original order as to visitation. The trial court interpreted this order to require that the defendant’s visits with the minor child be supervised for the first six months and that the supervised aspect of those visitations lapsed after the passage of that period. After finding that six months had passed since the entry of the original order, the trial court ordered that the defendant have visitation with the minor child on December 19, 1993, from 10 a.m. to 6 p.m.

The parties returned to court on December 20,1993. At that time, the defendant filed a third motion for contempt claiming that the plaintiff had denied him the right of unsupervised visitation that was to have occurred on December 19. The trial court found the plaintiff to be in contempt both as to the original order of visitation as well as to its order of unsupervised visitation that was to have taken place on December 19, 1993. The trial court imposed sanctions of $25 for each week that visitation was withheld under the original order plus $300 for defying its specific order of visitation for December 19, 1993.

The trial court further ordered that the defendant was to have unsupervised visitation each Sunday with the minor child during the hours originally ordered. Because the child had not been allowed to see her father for such a long time, the trial court further ordered that the defendant was to have supervised visitation with the minor child on Christmas Day to allow the child and father to be reacquainted. In addition, the trial court ordered that neither party was to drink alcohol in the presence of the minor child and that neither party was to remove the child from the state of Connecticut.

On January 10, 1994, the plaintiff appealed to this court. Pending the appeal, the plaintiff moved that the orders of the trial court be stayed, that the original judgment be opened and modified, and that the finding of contempt be reconsidered. In support of her motion to open and modify, the plaintiff claimed that the original order, as interpreted by the trial court, constituted an improper prospective modification of visitation. The trial court held a hearing on these motions that included testimony concerning the behavior of the child and the events of visitation subsequent to the order of the trial court for unsupervised visitation.

During the hearing, the trial court orally granted the plaintiffs motion for reconsideration of the finding of contempt insofar as the number of weeks to which sanctions were attached. Because a hearing on contempt was held on August 16, 1993, but no finding of contempt was made at that time, the trial court reduced its finding of contempt to encompass only those weeks after August 16, 1993. The trial court also denied the plaintiffs motion for modification, finding that there was no substantial change in circumstances.

A written memorandum of decision was issued on April 4,1994, denying the plaintiffs motion for stay. In this memorandum, the trial court specifically found that there was no credible evidence that the child’s anger and aggression were caused by visitation with the defendant. In addition, the trial court found that the child was loving and affectionate with the defendant during his visits and that unsupervised visitation was in the best interest of the child. The trial court found that the original order of visitation did not constitute an invalid prospective modification.

I

The plaintiff first asserts that the trial court improperly interpreted the original order of visitation to provide for supervised visitation for a period of six months and automatically to become an order of unsupervised visitation at the end of the six month period. The improprieties claimed are that the trial court failed to consider the circumstances surrounding the entry of the original order and that such an interpretation created an impermissible prospective modification in violation of the holdings of Emerick v. Emerick, 5 Conn. App. 649, 502 A.2d 933 (1985), cert. dismissed, 200 Conn. 804, 510 A.2d 192 (1986), and Guss v. Guss, 1 Conn. App. 356, 472 A.2d 790 (1984). We are unpersuaded that either claim represents an issue in the present posture of this appeal.

It is statutorily incumbent upon a court entering orders concerning custody or visitation or a modification of such order to be guided by the best interests of the child. See Gallo v. Gallo, 184 Conn. 36, 41-42, 440 A.2d 782 (1981); Busa v. Busa, 24 Conn. App. 426, 428, 589 A.2d 370 (1991). We review any order of the trial court concerning an order of visitation under the standard of whether in entering the order that it did, it abused its discretion in making that order. El Idrissi v. El Idrissi, 173 Conn. 295, 300-301, 377 A.2d 330 (1977).

While the trial court found that the original order envisioned a period of supervised visitation for the initial period of six months from the date of the decree of dissolution and that after that period the visitation with the defendant would be unsupervised, we need not concern ourselves with whether that constituted a correct interpretation of the original order. The trial court found affirmatively that it was in the best interests of the child that she enjoy unsupervised visitation with her father. Thus, given that finding by the trial court, it is inconsequential whether the trial court properly interpreted the original order, or whether the original order as interpreted included an anticipatory modification of the visitation order. Consequently, our focus must be on the issue of whether the order of the trial court constituted an abuse of discretion. Gallo v. Gallo, supra, 184 Conn. 43. We conclude that it did not.

On December 20, 1993, the trial court entered an order permitting supervised visitation on Christmas Day, and unsupervised visitation thereafter. Subsequently, on January 7,1994, the plaintiff sought a stay of the order of unsupervised visitation, claiming that a stay of the order of unsupervised visitation would be in the best.interests of the minor child. The trial court afforded a full evidentiary hearing on the motion.

The trial court heard conflicting evidence from the parties and their witnesses regarding the visitation that the defendant had with the minor child subsequent to the court’s orders of December 20,1993. On the basis of the evidence, the trial court found that the child exhibited no fear or anxiety in the presence of the defendant, appeared to be very happy in his company, and behaved appropriately with him. The trial court also found that the defendant did not use alcohol in the presence of the minor child. The trial court concluded from the evidence before it that the child displayed greater affection to the defendant since the commencement of unsupervised visitation and, from the evidence presented, found that unsupervised visitation is in the best interests of the child.

The decision of the trial court was, therefore, amply supported by the evidence and we conclude that the trial court did not abuse its discretion.

II

The plaintiff next claims that the trial court improperly found the plaintiff in contempt (1) when the plaintiff reasonably believed she was not obligated to allow visitation, (2) without considering the circumstances surrounding the violation of the December 13, 1993 court order, and (3) on the basis of remarks made by counsel. We are unpersuaded.

In reviewing each of the plaintiff’s claimed improprieties concerning the finding of contempt, we are guided by standards that limit our review. “[0]ur review [of a finding of civil contempt] is technically limited to ‘questions of jurisdiction such as whether the court had authority to impose the punishment inflicted and whether the act or acts for which the penalty was imposed could constitute a contempt.’ . . . This limitation originates because by its very nature the court’s contempt power . . . must be balanced against the contemnor’s fundamental rights and, for this reason, there exists the present mechanism for the eventual review of errors which allegedly infringe on these rights. . . . We have found a civil contempt to be improper or erroneous because: the injunction on which it was based was vague and indefinite . . . the findings on which it was based were ambiguous and irreconcilable . . . the contemnor’s constitutional rights were not properly safeguarded . . . the penalties imposed were criminal rather than civil in nature . . . and the contemnor, through no fault of his own, was unable to obey the court’s order.” (Citations omitted.) Papa v. New Haven Federation of Teachers, 186 Conn. 725, 731-32, 444 A.2d 196 (1982); see also Dunham v. Dunham, 217 Conn. 24, 29-30, 584 A.2d 445 (1991).

“ ‘Although . . . plenary review of civil contempt orders extends to some issues that are not truly jurisdictional, its emphasis on fundamental rights underscores the proposition that the grounds for any appeal from a contempt order are more restricted than would be the case in an ordinary plenary appeal from a civil judgment.’ ” Commissioner of Health Services v. Youth Challenge of Greater Hartford, Inc., 219 Conn. 657, 666, 594 A.2d 958 (1991), quoting Dunham v. Dunham, supra, 217 Conn. 29-30; see also Tomasso Bros., Inc. v. October Twenty-Four, Inc., 230 Conn. 641, 658, 646 A.2d 133 (1994).

A

The plaintiff first asserts that the trial court incorrectly found the plaintiff to be in contempt when she reasonably believed that she was not obligated to allow the defendant visitation with their minor child. In support of this claim, the plaintiff points to her testimony before the trial court on December 20, 1993, that she believed that the August 16 contempt hearing resulted in the visitations’ being put on hold until the study ordered could be completed by family relations. We find the plaintiff’s argument to be without merit.

The following additional facts are necessary for the resolution of this issue. On February 4,1994, the plaintiff requested an articulation by the trial court of its decisions on December 13 and 20, 1993. In response to the motion for articulation, the trial court specifically found that the minor child did not become upset upon seeing the defendant drink a beer on May 23, 1993. In addition, the trial court found that the plaintiff’s belief that visitation was put on hold until completion of the family relations study was not supported by the transcript of the August 16 proceedings.

In light of the specific finding by the trial court that the plaintiff could not have reasonably believed that the original visitation order had been put on hold, we need not determine whether a reasonable belief that an order of the court need not be obeyed presents a valid defense to a motion for contempt. Instead, we need determine only whether the trial court’s finding of fact was clearly erroneous. Commissioner of Health Services v. Youth Challenge of Greater Hartford, Inc., supra, 219 Conn. 666. “The trial court’s findings are binding upon this court unless they are clearly erroneous in light of the evidence and the pleadings in the record as a whole. ... We cannot retry the facts or pass on the credibility of the witnesses.” (Internal quotation marks omitted.) Id., 666-67, quoting Nor’easter Group, Inc. v. Colossale Concrete, Inc., 207 Conn. 468, 473, 542 A.2d 692 (1988).

We cannot say that the finding of the trial court was clearly erroneous. On August 16,1993, the trial court did not hold the plaintiff in contempt, but decided to refer the case to family relations for a visitation study. This order said nothing to imply that the original order of the court was suspended until such time as that study was completed. In deciding the second motion for contempt, the trial court, therefore, reasonably concluded that the plaintiff could not reasonably believe that she was no longer required to obey the order of the court concerning visitation. We will not disturb this finding on appeal.

B

The plaintiff next asserts that the trial court improperly failed to consider the circumstances surrounding the plaintiff’s violation of the December 13,1993 order that the defendant have unsupervised visitation the following Sunday, December 19,1993. The plaintiff claims that the trial court incorrectly applied the holding of Tufano v. Tufano, 18 Conn. App. 119, 556 A.2d 1036 (1989), without considering the circumstances surrounding the violation. We find the plaintiff’s claim to be without merit.

The following facts are necessary for the resolution of this issue. On December 20,1993, the defendant testified that the plaintiff called him on the morning of December 19, and informed him that the visitation ordered by the court would not take place. The plaintiff then testified that the child became anxious when the plaintiff informed her of the court’s order and asked if she had to go with her father. The plaintiff further stated that the child became increasingly agitated throughout the week, showing various signs of stress such as anger and aggression. By Saturday night, the child’s anxiety escalated and on Sunday morning she suffered a “full fledged” asthma attack. It was at this point that the plaintiff called the defendant and told him that the child was fearful of him and that she would not make the child available for visitation. The trial court then found the plaintiff in wilful contempt.

On February 16, 1993, hearings were held on the plaintiff’s motion for reconsideration of the finding of contempt. At that time, counsel for the plaintiff reiterated the plaintiff’s claim that she was unable to allow visitation due to the child’s level of anxiety. The trial court then inquired of counsel how the plaintiff’s situation was different than that in Tufano v. Tufano, supra, 18 Conn. App. 119. Counsel for the plaintiff replied that the circumstances in Tufano were more extreme than the conduct of the present plaintiff.

We agree with the plaintiff that a court may not find a person in contempt without considering the circumstances surrounding the violation to determine whether such violation was wilful. See id., 124; Marcil v. Marcil, 4 Conn. App. 403, 405, 494 A.2d 620 (1985). Despite the plaintiff’s claims to the contrary, our review of the transcripts of the proceedings in this case establish that the trial court gave thorough consideration to the circumstances surrounding the plaintiff’s violation of the court’s order of visitation. A full evidentiary hearing was held on December 20, 1993, at which the plaintiff presented extensive testimony regarding the effect that she claimed the court’s order had on her daughter. The trial court did not, however, find the plaintiff’s claims that the defendant’s visitation and drinking had upset the child to be credible. The fact that the trial court cited the holding of this court in Tufano at both the hearing on the motion for contempt and the motion for consideration indicates clearly that the trial court was aware of its duties under Tufano and applied its holding correctly.

C

The plaintiff’s final claimed impropriety regarding the trial court’s finding of contempt is that the trial court incorrectly based that finding on the representations of the plaintiff’s counsel. We again find no error.

The following facts are necessary for the resolution of this issue. At the December 13 hearing on the defendant’s motions for contempt, counsel for the plaintiff stated that the plaintiff was unable to comply with the orders of the court as they pertained to visitation. On December 20, 1993, the trial court asked the plaintiff directly whether she had heard its order for visitation and its warning regarding noncompliance with that order. The plaintiff responded that she had.

Our cases have consistently held that a finding of contempt for conduct that has allegedly occurred outside the presence of the court may not be based solely on unsworn representations of counsel. Cologne v. Westfarms Associates, 197 Conn. 141, 154, 496 A.2d 476 (1985); Nelson v. Nelson, 13 Conn. App. 355, 367, 536 A.2d 985 (1988). “[D]ue process requires a trial-like hearing be held, in which an opportunity is provided to present evidence and to cross-examine adverse witnesses.” (Internal quotation marks omitted.) Cologne v. Westfarms Associates, supra, 154.

The trial court’s finding of contempt here was not based solely on the representations of the plaintiff’s counsel. The trial court was careful to confirm those representations with the plaintiff while the plaintiff was under oath. The trial court properly held a “trial-like hearing” in which the plaintiff was able to present evidence concerning whether her violation of the court’s order was wilful.

The judgment is affirmed.

In this opinion the other judges concurred.

       On April 8,1994, the plaintiff sought review by this court of the action of the trial court in denying the stay. See Practice Book § 4053. We granted review of the action of the trial court but denied the relief sought by the plaintiff.

       We note, however, that the plaintiff’s claim that the original order constitutes an invalid prospective modification of visitation is without merit. In Guss and Emerick, the appellants challenged orders that provided that custody would shift automatically if the child was removed from Connecticut. In Emerick v. Emerick, supra, 5 Conn. App. 659, we stated: “ ‘A child’s best interests . . . cannot be prospectively determined.’ Guss v. Guss, supra, [1 Conn. App.] 360-61. The judicial hands of a future court cannot be bound by an earlier court’s determination that the best interests of a child as to custody remain constant. A transfer of custody cannot be automatically accomplished upon the happening of a future event, in this case, removal of the child from Connecticut.” Here, visitation does not change from supervised to unsupervised upon the happening of a future event that acts as a condition subsequent to the original order. The trial court instead determined as of the time of the dissolution that it would be in the best interests of the child that the visitations with her father be supervised for a transitional period of six months before the visitations would be unsupervised. As such, the plaintiff’s reliance on Guss and Emerick is misplaced.

       General Statutes § 46b-56 (b) provides in pertinent part: “In making or modifying any order with respect to custody or visitation, the court shall (1) be guided by the best interests of the child, giving consideration to the wishes of the child if the child is of sufficient age and capable of forming an intelligent preference, provided in making the initial order the court may take into consideration the causes for dissolution of the marriage or legal separation if such causes are relevant in a determination of the best interests of the child . . . .”

       We note that the attorney for the minor child addressed the issue of whether the finding by the trial court that unsupervised visitation is in the best interests of the child rendered the plaintiffs appeal moot. In her brief, counsel urges us to find that the plaintiffs appeal is not moot, but does not contend that the trial court’s finding should be disregarded. We resolve this case not on the basis of mootness but on the basis that the finding by the trial court that unsupervised visitation is in the best interests of the child did not constitute an abuse of the trial court’s considerable discretion in fashioning proper orders of visitation.

       Specifically, the trial court pointed to that part of the August 16 transcript where the court stated: “Well, I can certainly make an order Mr. Wilson that there be no drinking before or during visitation. I mean, I think that’s appropriate with a six year old child and if you have that order along with the supervised visitation, I mean, I would think your child is protected.” The trial court then concluded: “A review of the transcript of August 16, 1993, shows that the visitation order was not put on hold until the family relations study was done.”

       The plaintiff claims that support for her position is found in Calway v. Calway, 26 Conn. App. 737, 603 A.2d 434 (1992), and Tatro v. Tatro, 24 Conn. App. 180, 587 A.2d 154 (1991), which held that a person may not be held in contempt of an order of which he or she could not have been aware. The plaintiff has not, however, provided us with any cases that hold that a person who reasonably believes that he or she need not comply with an order is immune from contempt for violating that order.

       The plaintiff points specifically to the following comments of the trial court at the hearing on the plaintiffs motion for reconsideration: “So, you’re saying that when somebody is brought in for contempt of court for not allowing visitation, that the court should look at all of the surrounding facts that are involved, what the reasons were for not allowing the visitation and even though the nonallowance could have been in direct and knowing violation of a court order, if the court feels that the existing order should not have been complied with because of the surrounding circumstances, the court should not find someone in contempt? . . . Even though Tufano teaches us that an order may not be disobeyed simply because the alleged contemnor believes it should not be obeyed?”

       In Tufano, this court affirmed a trial court finding that the plaintiff mother was in wilful contempt of visitation orders. In that case, visitation rights were awarded to the paternal grandparents. The plaintiff denied the grandparents visitation, claiming that the child did not want to visit with them. Upon a finding of contempt, the plaintiff appealed to this court, claiming that her violation of the visitation orders was not wilful because the child did not want to go and because a psychologist who treated the child advised her that the child should not be forced to go. In affirming the trial court's finding of wilful contempt, we stated: “There is no privilege to disobey a court’s order because the alleged contemnor believes that it is invalid. ... A fortiori, such an order may not be disobeyed simply because the alleged contemnor believes that it should not be obeyed. A contempt proceeding does not open to reconsideration the legal or factual basis of the order alleged to have been disobeyed and thus become a retrial of the original controversy. . . . The plaintiff had the power to obey the orders of the trial court, and that court did not err in finding that her violations of its orders were wilful.” (Citations omitted.) Tufano v. Tufano, supra, 18 Conn. App. 124.

       The following colloquy occurred between the trial court and the plaintiff: “The Court: Were you present in court when I pointed out that court orders had to be complied with last week?


author: Foti, J. Landau, J.,

text:
    State of Connecticut v. Paul B. Wohler
    (11030)
    Foti, Laveey and Landau, Js.

      Submitted February 15
    decision released June 27, 1995

      Arthur P. Meisler, for the appellant (defendant).

      Leah Hawley, assistant state’s attorney, with whom, on the brief, were Mark Solak, state’s attorney, and Mark Stabile, assistant state’s attorney, for the appellee (state).
   Foti, J.

This matter is before us on remand from our Supreme Court. We previously considered it in State v. Wohler, 30 Conn. App. 571, 621 A.2d 751 (1993), rev’d, 231 Conn. 411, 650 A.2d 168 (1994) (remanded for disposition of issues raised by defendant).

The defendant appeals from the judgment of conviction, rendered after a trial to the court, of larceny in the fifth degree by theft of services in violation of General Statutes §§ 53a-125a (a) and 53a-119 (7) (F).The defendant claims that the trial court improperly determined that the evidence was sufficient to prove him guilty beyond a reasonable doubt of the crime charged. We affirm the judgment of the trial court.

The sole issue is whether the evidence was sufficient for the trial court to have concluded that the defendant had not been entitled to the use of the labor and equipment employed to replace the water service at 76/82 South Street or that he had acted with the intent to benefit the homeowner at the address.

The review of a sufficiency of the evidence claim involves a two part analysis. First, we construe the evidence in the light most favorable to sustaining the verdict or upholding the trial court’s finding of guilt. Second, we determine whether, from that evidence and all the reasonable inferences that it yields, a trier of fact could reasonably have concluded that the defendant was guilty beyond a reasonable doubt. State v. Wideman, 36 Conn. App. 190, 202, 650 A.2d 571 (1994), cert. denied, 232 Conn. 903, 653 A.2d 192 (1995). To determine whether there was a basis in the evidence to support the trial court’s conclusions, we must review the findings as set forth in the oral decision. If the oral findings are insufficient and no articulation is requested and furnished, we may also examine pertinent portions of the trial transcript.

In its oral decision, the trial court concluded that the defendant, knowing that he was not entitled to the use of the labor and equipment, and having control over such, used it with the intent to derive a substantial benefit to a third person, thereby giving the homeowner a financial benefit. The trial court reviewed the testimony of two witnesses, commented on their credibility and on the evidence presented. The court found “that the problem that was engendered by trying to serve two masters here ended up in the temptation of pushing the limits hedging on what the rules did allow and extending this way beyond what any other contractor would have been allowed to do.”

Our standard in reviewing the conclusions of the trier of fact, whether it be a judge or a jury, is limited. State v. Evans, 203 Conn. 212, 238, 523 A.2d 1306 (1987). It is the province of the court, as trier of fact, to draw all reasonable and logical inferences from the facts as it finds them to exist. State v. Gray, 221 Conn. 713, 721, 607 A.2d 391, cert. denied, 506 U.S. 872, 113 S. Ct. 207, 121 L. Ed. 2d 148 (1992). The trial court also has the sole and absolute responsibility to weigh conflicting evidence and to determine the credibility of the witnesses; State v. Pinnock, 220 Conn. 765, 778-79, 601 A.2d 521 (1992); it can accept some, none or all of the evidence presented. State v. Raguseo, 225 Conn. 114, 124, 622 A.2d 519 (1993).

In reviewing a sufficiency of the evidence claim in a court trial, a reviewing court must determine whether the trial court’s findings of fact could reasonably have been drawn from the evidence presented, and whether, based on those facts as reasonably found, the cumulative effect of the evidence established guilt beyond a reasonable doubt. We will construe the evidence in the light most favorable to sustaining the trial court’s judgment and will affirm the court’s conclusion if reasonably supported by the evidence and logical inferences drawn therefrom. State v. Evans, supra, 203 Conn. 238. After applying these principles to our review of the record, we conclude that the evidence presented, together with reasonable inferences drawn from it, was sufficient for the trial court to have reasonably found proved beyond a reasonable doubt that the defendant was guilty.

The judgment is affirmed.

In this opinion Lavery, J., concurred.

Landau, J.,

concurring. Although I concur in the result, I write separately because I disagree with the majority’s granting of review of this issue. The majority concludes that, in reviewing a sufficiency of the evidence claim, “[i]f the oral findings are insufficient and no articulation is requested and furnished, we may also examine pertinent portions of the trial transcript.” Regardless, as I stated in my previous dissent, “[b]ecause of the conflicting findings made by the [trial] court regarding the intent of the defendant, I believe that review is effectively impossible. ... I maintain that the majority cannot review the merits of this appeal based on a sufficiency analysis. ‘Either we adhere to the rules or we do not adhere to them.’ Osborne v. Osborne, 2 Conn. App. 635, 639, 482 A.2d 77 (1984). By positing this, I do not seek to place form over substance. This being a sufficiency claim, however, the very essence of the question is framed by parameters set in the trial court’s findings. For us to require any less diminishes the effectiveness of judicial review.” State v. Wohler, 30 Conn. App. 571, 579-80, 621 A.2d 751 (1993) (Landau, J., dissenting).

Absent compliance by the trial court with Practice Book § 4059 and by the appellant with Practice Book § 4061, the appellate tribunal cannot ascertain the reasoning and findings on which the decision is based. See footnote 2 of the majority opinion.

       For a recitation of the facts as the court might have reasonably found, refer to State v. Wohler, supra, 30 Conn. App. 571. The oral arguments were heard on December 14, 1992; on December 28, 1992, the defendant filed a signed transcript of the court’s oral ruling in an attempt to comply with Practice Book § 4059.

       It is the appellant’s responsibility to furnish an adequate appellate record. Practice Book § 4061; Cottiero v. Ifkovic, 35 Conn. App. 682, 686, 647 A.2d 9, cert. denied, 231 Conn. 938, 651 A.2d 262 (1994). As a general principle of appellate jurisprudence, it is the appellant’s duty to provide a record on which reversible error maybe predicated. Curry v. Burns, 225 Conn. 782, 790, 626 A.2d 719 (1993).

       During the sentencing phase, the trial court commented, “I don’t think when . . . he . . . started out on this enterprise . . . that ¡he was] going to use this as a means to embezzle money or goods or services or anything from the town. I don’t think that was ¡his] intent; they were going to make some money on the side. But, I have to say that I think there was a lot of impropriety that may not be illegal, but it did take place here. . . . Again, I think there was no malicious intent to start out, you didn’t have anything against the town; you weren’t trying to make an illegal buck, but I think it worked out that way in the end.”

      “[The Plaintiff]: Yes, I was, Your Honor.
      “The Court: You heard my admonition when I made the statement?
      “[The Plaintiff]: Yes, Your Honor. I just wasn’t able to go; I could not do it.
      “The Court: Did any attorney tell you that you had the right to disregard my statements since last Monday?
      “[The Plaintiff]: No, Your Honor.”

       This case differs from State v. Roy, 233 Conn. 211, 658 A.2d 566 (1995). In Roy, our Supreme Court held that an unpreserved sufficiency of the evidence claim was nonetheless reviewable in light of the due process guaranteed by the United States constitution. The problem with the defendant’s claim in this case is not that it is unpreserved, but that the record is inadequate for us to consider it properly.