author: ALVORD, J.

text:
    CUSTOMERS BANK v. JODIE M. BOXER ET AL.
    (AC 35465)
    Gruendel, Robinson and Alvord, Js.

    Argued November 18, 2013
    officially released March 4, 2014

      Abram J. Heisler, for the appellant (defendant Carlton Tucker).

      Andrew P. Barsom, with whom, on the brief, was Alena C. Gfeller, for the appellee (plaintiff).

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

   Opinion

ALVORD, J.

The defendant Carlton Tucker appeals from the trial court’s judgment of immediate possession in favor of the plaintiff, Customers Bank. On appeal, the defendant claims that the court erred in finding that he was not a bona fide tenant as defined by Title VII of the Helping Families Save Their Homes Act of 2009, known as the Protecting Tenants at Foreclosure Act of 2009, Pub. L. No. 111-22, §§ 701-704, 123 Stat. 1660 (PTFA). We affirm the judgment of the trial court.

The record reveals the following facts and procedural history. The plaintiff acquired title to 426 Westover Road, Stamford (property) from Westover Enterprise, LLC (prior owner) on February 23,2012, via a judgment of strict foreclosure. The defendant was a resident of the property when the plaintiff took possession. The plaintiff initially exercised its right to terminate the tenancy of the defendant by serving him with a notice to quit on April 2, 2012, that required the defendant to quit possession of the property on or before July 3, 2012 (first notice). Following the service of the first notice, the defendant did not contact the plaintiff, tender rent or use and occupancy payments to the plaintiff or the prior owner, and “failed, neglected, and/or refused to provide proof of a valid lease agreement.” On or about May 7, 2012, the plaintiff served the defendant with a supplemental notice to quit, revoking the first notice and directing the defendant to quit possession of the property on or before May 15, 2012 (second notice). The defendant did not quit possession of the property at that time.

Thereafter, in late May, 2012, the plaintiff commenced this action against the defendant. In the second count of its operative complaint, the plaintiff alleged that the defendant’s right or privilege to occupy the property had terminated. The plaintiff asserted that the defendant was not a “ ‘bona fide’ [tenant] under the ambit of the [PTFA] ” due to the defendant’s failure to “produce any lease which sets forth an arm’s-length transaction to enter such tenancy and requires payment of rent that is not substantially less than the fair market rent of the subject property . . . .” On September 6, 2012, the court ordered the defendant to make use and occupancy payments of $4000 per month. The defendant did not comply with that order and failed to make any of the use and occupancy payments, and, thus, judgment for possession was rendered in the plaintiff’s favor on September 27, 2012. The defendant filed a motion to open the judgment, which the court granted on October 16, 2012. The defendant subsequently filed an answer and special defenses, asserting that the plaintiff failed to provide ninety days’ notice to the defendant as required by the PTFA.

On November 8, 2012, the defendant stipulated to the plaintiffs ability to prove its prima facie case under count two of the complaint, and the trial was bifurcated to allow the defendant to present evidence regarding the pleaded special defenses, namely, the applicability of the PTFA. The court heard evidence regarding the defendant’s special defense on November 15, 2012. Testimony revealed that there was a six month written lease between the prior owner of the property and the defendant for a term of tenancy beginning on January 19, 2012, and ending on June 31, 2012, that provided for monthly rental payments of $5000. The defendant testified that he did not make any rental payments to the prior owner of the property, and the prior owner testified that he never received any rent from the defendant. Instead, the defendant and the prior owner both testified that they modified the six month written lease via an oral agreement, whereby “in lieu of the $5000, being that the property needed work,” the defendant “would do some things there to maintain the property.” The defendant stated that he undertook certain expenses in connection with his occupancy of the property, including repairing a fence on the property, painting the interior and exterior of the premises, and filling the oil tank. On the basis of this oral agreement with the prior owner, the defendant argued that he is a bona fide tenant under the PTFA, and that the plaintiff should have provided him with a ninety day notice to quit.

At the conclusion of evidence, the trial court ordered the parties to file simultaneous briefs on January 3, 2013, regarding the applicability of the PTFA. In a written memorandum of decision released on February 28, 2013, the trial court rendered judgment for immediate possession in favor of the plaintiff. In its decision, the court concluded that the defendant “ha[s] failed to maintain [his] burden of proof with respect to the alleged defenses by, most notably, failing to prove the third prong of the test for establishing [his] status as a bona fide [tenant] under the [PTFA],” and therefore the PTFA was inapplicable. This appeal followed.

On appeal, the defendant argues that the court “erred in stating that the defendant did not assert sufficient facts to trigger the ninety day notice required by the [PTFA].” The defendant specifically challenges the court’s ruling that the defendant’s “expenditures in improving the property could not constitute proof of a bona fide lease pursuant to the [PTFA] ” and urges us to interpret the act broadly. We disagree and affirm the judgment of the trial court.

Our review of the defendant’s claim of error first requires us to determine what constitutes a bona fide tenant and lease pursuant to the PTFA. Accordingly, we begin with a statutory analysis of the PTFA. “Issues of statutory construction raise questions of law, over which we exercise plenary review. . . . The process of statutory interpretation involves the determination of the meaning of the statutory language as applied to the facts of the case, including the question of whether the language does so apply. ... In seeking to determine that meaning, General Statutes § l-2z directs us first to consider the text of the statute itself and its relationship to other statutes. If, after examining such text and considering such relationship, the meaning of such text is plain and unambiguous and does not yield absurd or unworkable results, extratextual evidence of the meaning of the statute shall not be considered.” (Internal quotation marks omitted.) Doctor's Associates, Inc. v. Windham, 146 Conn. App. 768, 783-84, 81 A.3d 230 (2013).

“Moreover, [t]his court will not reverse the factual findings of the trial court unless they are clearly erroneous. ... A finding of fact is clearly erroneous when there is no evidence in the record to support it . . . or when although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed. ... In making this determination, every reasonable presumption must be given in favor of the trial court’s ruling.” (Internal quotation marks omitted.) Petrucelli v. Travelers Property Casualty Ins. Co., 146 Conn. App. 631, 636, 79 A.3d 895 (2013).

The PTFA provides in relevant part that “[i]n the case of any foreclosure on a federally-related mortgage loan or on any dwelling or residential real property after the date of enactment of this title, any immediate successor in interest in such property pursuant to the foreclosure shall assume such interest subject to . . . the provision, by such successor in interest of a notice to vacate to any bona fide tenant at least [ninety] days before the effective date of such notice . . . (Emphasis added.) Pub. L. No. 111-22, § 702 (a). The PTFA establishes a tripartite conjunctive test for establishing a bona fide lease or tenancy: “(1) the mortgagor or the child, spouse, or parent of the mortgagor under the contract is not the tenant; (2) the lease or tenancy was the result of an arms-length transaction; and (3) the lease or tenancy requires the receipt of rent that is not substantially less than fair market rent for the property or the unit’s rent is reduced or subsidized due to a Federal, State or local subsidy.” (Emphasis added.) Pub. L. No. 111-22, § 702 (b). At trial and now on appeal, the parties dispute whether the defendant’s tenancy satisfies the third prong of the test and whether “rent” within the PTFA can include funds spent improving the premises in lieu of rental payments. This issue is one of first impression for this court.

The PTFA does not define the term “receipt of rent.” Nevertheless, we turn to our General Statutes for guidance as the PTFA does not preempt state law with respect to the requirements of eviction proceedings. See Federal National Mortgage Assn. v. Williams, United States District Court, Docket No. CIV. S-l1-3067 (KJM) (E.D. Cal. January 4, 2012) (“federal coruts have held that the [PTFA] does not create a federal private right of action, but indeed provides directives to state courts”); Federal National Mortgage Assn. v. Hammond, United States District Court, Docket No. 11-00867 GAF (OPX) (C.D. Cal. June 22, 2011) (“[t]he PTFA is not a recognized area of complete preemption”); Nativi v. Deutsche Bank National Trust Co., United States District Court, Docket No. 09-06096 (PVT) (N.D. Cal. May 24, 2010) (“[t]he PTFA was intended to allow tenants who are victims of the foreclosing crisis a protection that can be used in the state courts to combat unlawful evictions”).

General Statutes § 47a-l (h) defines “rent” as “all periodic payments to be made to the landlord under the rental agreement.” Black’s Law Dictionary defines “payment” as “[t]he money or other valuable thing so delivered in satisfaction of an obligation.” Black’s Law Dictionary (9th Ed. 2009); see also Commission on Human Rights & Opportunities ex rel. Arnold v. Forvil, 302 Conn. 263, 274, 25 A.3d 632 (2011) (citing to definition of payment in Black’s Law Dictionary in order to reach conclusion that “to constitute income, something does not need to be money; rather, it can be something else of value”). Accordingly, we consider a bona fide lease or tenancy for purposes of applying the PTFA in Connecticut to be a lease or tenancy that requires the receipt of periodic monetary payments or periodic payments of something of value, to the landlord in satisfaction of the tenant’s obligation, “that [are] not substantially less than fair market rent for the property or the unit’s rent is reduced or subsidized due to a Federal, State or local subsidy.” (Emphasis added.) Pub. L. No. 111-22, § 702 (b). Applying the law to these facts, the defendant must establish that the oral agreement for repairs and improvements in lieu of rent required the receipt of periodic payments of something of value delivered to the prior owner in satisfaction of the defendant’s obligation and that the value was reasonably commensurate with the fair market rent of the property. Failure to establish either of these elements renders the PTFA inapplicable.

On the basis of the testimony of the defendant and the prior owner, as well as the other evidence before it, the trial court found that “the [defendant] ha[s] not established [that] the value of the repairs or improvements was commensurate with the fair market value” rent of the property. “[I]t is well established that [i]t is within the province of the trial court, when sitting as the fact finder, to weigh the evidence presented and determine the credibility and effect to be given the evidence.” (Internal quotation marks omitted.) Rutka v. Meriden, 145 Conn. App. 202, 211-12, 75 A.3d 722 (2013). Our review of the record reveals that there was sufficient evidence to support the trial court’s conclusion. Accordingly, the defendant failed to establish that his lease or tenancy required the receipt of rent that was not substantially less than fair market rent for the property, and the court properly concluded that he did not qualify for the protections of the PTFA.

The judgment is affirmed.

In this opinion the other judges concurred.

       Jodie M. Boxer and Rose Tucker were also named as defendants in the action brought by the plaintiff. On September 27, 2012, a motion for default for failure to appear was granted as to Boxer and the case was withdrawn by the plaintiff as to Rose Tucker. Neither defendant is a party to this appeal. We therefore refer in this opinion to Carlton Tucker as the defendant.

       Initially set to expire on December 31, 2012, the PTFA was extended to December 31, 2014, by the Dodd-Frank Wall Street Reform and Consumer Protection Act, Pub. L. No. 111-203, § 1484, 124 Stat. 2204 (2010).

       The plaintiff initially brought a three count complaint against the defendant. In its first count, the plaintiff alleged nonpayment, and in its third count, the plaintiff alleged that the defendant’s tenancy had expired by lapse of time. The plaintiff subsequently withdrew these counts.

       The defendant raised four special defenses in total. When agreeing to stipulate to the provisions of the plaintiffs second count, however, he stated that the “crux of [his] defense” was the PTFA and whether the required ninety days’ notice was given.

       The defendant has raised his claim under the PTFA in a special defense, and “the general rule is that a defendant who pleads a special defense bears the burden on that issue . . . .” National Publishing Co. v. Hartford Fire Ins. Co., 287 Conn. 664, 673, 949 A.2d 1203 (2008). Furthermore, he has stipulated to the plaintiffs ability to prove its prima facie case that “[t]o the extent the [defendant] once had a right or privilege to occupy [the property], [that] right or privilege has since terminated by virtue of the judgment of strict foreclosure and absolute vesting of the title [to the property] in the plaintiff . . . and the plaintiffs service of [the second notice].”

       The defendant could not provide the exact date of this oral agreement with the prior owner, other than stating that it “was around the time that we signed the lease.” He also testified that he thought that they might have “entered into the agreement prior to the signing of the lease.” Similarly, the prior owner testified that he and the defendant entered into their oral agreement “[ajround the same—same week or two” when the written lease was signed.

       The defendant testified that he spent $7150 to repair the fence and $11,750 to paint the interior and exterior of the premises. The defendant submitted an “invoice” for the repair of the fence, which listed a “shipped to” date of March 1,2012, and an “estimate” for the painting of the premises, which was dated August 2,2012. Both the invoice and the estimate included the notation that they were paid in cash. The defendant also submitted an invoice dated June 1, 2012, for $3709.38 for oil, which consisted of a “[b]alance [b]rought [forward” of $3655.55 and “[fjinance [c]harges” totaling $53.83. There was no evidence as to whether the defendant paid this invoice.

       We note that although the written lease states that any modifications to the agreement must be in writing signed by the defendant and the prior owner, the record reveals that both the defendant and the prior owner agreed that the written lease was modified by their oral agreement to allow the defendant to spend funds improving the property in lieu of rental payments, and that the defendant was occupying the property pursuant to the oral agreement. “Under the general rules applicable to oral modification of written contracts, in the absence of statutory restrictions a written lease may be subsequently modified as to the amount of rent, by oral agreement.” Baier v. Smith, 120 Conn. 568, 571, 181 A. 618 (1935); see also Taft Realty Corp. v. Yorkhaven Enterprises, Inc., 146 Conn. 338, 342, 150 A.2d 597 (1959) (“[t]he rent provided in a written lease may even be changed by a subsequent parol agreement”).

       General Statutes § 47a-l (i) defines “rental agreement” in relevant part as “all agreements, written or oral, and valid rules and regulations . . . embodying the terms and conditions concerning the use and occupancy of a dwelling unit or premises.”

       The trial court considered the fair market rent of the property to be “at least $4500 on a monthly basis,” but did not make an explicit finding of the exact amount.


source: Caselaw Access Project

author: BISHOP, J.

license: Public Domain

text:
    MARCO CAMACHO v. COMMISSIONER OF CORRECTION
    (AC 34678)
    Robinson, Sheldon and Bishop, Js.

    Argued December 6, 2013
    officially released March 4, 2014

      Joseph Visone, assigned counsel, for the appellant (petitioner).

      Ronald G. Weller, senior assistant state’s attorney, with whom, on the brief, were Brian Preleski, state’s attorney, and Angela R. Macchiarulo, senior assistant state’s attorney, for the appellee (respondent).

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

   Opinion

BISHOP, J.

The petitioner, Marco Camacho, appeals from the judgment of the habeas court denying his petition for a writ of habeas corpus. The petitioner claims that the court erred in finding that his appellate counsel did not render ineffective assistance by failing to challenge the propriety of: (1) the admission, at trial, of a 911 tape recording from the victim; and (2) reference made by the prosecutor at trial to the petitioner’s nickname, “Killer.” We affirm the judgment of the habeas court.

The petitioner was charged with and, following a jury trial, convicted of four counts of murder in violation of General Statutes § 53a-54a, four counts of felony murder in violation of General Statutes § 53a-54c, one count of tampering with evidence in violation of General Statutes § 53a-155, one count of larceny in the first degree in violation of General Statutes § 53a-122 (a) (3), one count of robbery in the first degree in violation of General Statutes § 53a-134 (a) (1), one count of possession of narcotics with intent to sell in violation of General Statutes § 21a-277 (a), one count of possession of a stolen firearm in violation of General Statutes § 53a-212, and one count of conspiracy to commit the crimes of murder, possession of narcotics with intent to sell, robbery in the first degree, larceny in the first degree, and tampering with evidence in violation of General Statutes §§ 53a-48, 53a-54a (b), 21a-277 (a), 53a-134 (a) (1), 53a-122 (a) (3), and 53a-155, respectively. Following the conviction, the trial court sentenced the petitioner to a total effective term of 260 years imprisonment. The petitioner unsuccessfully appealed from his conviction. State v. Camacho, 282 Conn. 328, 924 A.2d 99, cert. denied, 552 U.S. 956, 128 S. Ct. 388, 169 L. Ed. 2d 273 (2007).

The facts set out by the court in Camacho provide the evidentiary backdrop for the issues before us. “At approximately 8:30 p.m., on September 25, 1996, a Southington police department emergency dispatcher received a 911 call from 932 Shuttle Meadow Road, the residence of Nick Votino. Responding to the call, the police discovered four persons dead from gunshot wounds in the master bedroom: Nick Votino, his daughter, Joanne Votino, Lynn Suszynski and Wayne Barrows.

“Police found evidence of recent cocaine use at the crime scene, and Votino, Suszynski and Barrows all tested positive for cocaine in toxicology tests performed in conjunction with their autopsies. Police also found crack cocaine, drug paraphernalia and a large quantity of a cutting agent used in the process of making crack cocaine.

“Weeks before the murders, in the beginning of September, 1996, the [petitioner] and Eric Henry, with whom the [petitioner] sold drugs, were living in the Southington home of Henry’s girlfriend, Raquel Martin. . . . The [petitioner] and Henry had been using Martin’s residence as the base of operations to sell crack cocaine. Previously, the [petitioner] had been supplying Henry with drugs to sell, and had moved into Martin’s house in order to facilitate his drug dealing business. The [petitioner] and Henry became partners, with the [petitioner] supplying the drugs and Henry supplying protection as well as expanding the [petitioner’s] market with his own group of acquaintances. Additionally, Votino had been selling drugs for the [petitioner]. As a result of his own drug habit, Votino had become indebted to the [petitioner] in the amount of $400. The [petitioner] had taken a necklace belonging to Votino as collateral on the debt. . . .

“[On September 25,1996, at] approximately 4:30 p.m., Martin drove the [petitioner] and Henry to Votino’s house because the [petitioner] wanted to discuss the debt that Votino owed him. Martin, who waited in the living room while the [petitioner], Henry and Votino spoke in the kitchen, overheard Votino say that he had $200 worth of crack cocaine left to sell, but would need more to sell in order to pay off his debt to the [petitioner]. . . . The [petitioner] told Votino that he would come back later that night with more drugs for Votino to sell, and warned that Votino had better be home and have sold some of the drugs he already had before the [petitioner] returned.

“Thereafter, Martin drove the [petitioner] and Henry to the [petitioner’s] mother’s house in New Britain where the [petitioner] picked up some clothing in a black backpack. When they returned to Martin’s house, the [petitioner] paged his drug supplier, Pedro Ramirez, and he and Henry went to meet him. The [petitioner] purchased crack cocaine from Ramirez and told Ramirez he was about to ‘stick somebody up,’ which Ramirez took to mean that the [petitioner] intended to rob someone.

“After the [petitioner] and Henry had returned to Martin’s house, the [petitioner] entered Martin’s bedroom with a gun in a small black pouch, gloves and bullets. The [petitioner] then put the bullets in the gun, wiped down the gun and put it back into the pouch. Henry took the gun from the [petitioner] and put it in the waistband of his pants. The [petitioner] and Henry then left in Martin’s car for Votino’s house.

“Approximately one-half hour after they had left Martin’s house, Henry telephoned Martin from Votino’s bedroom and told her that he and the [petitioner] would be returning to her house shortly. Martin heard sounds of a party-like atmosphere and Votino’s voice in the background. At the same time, unbeknownst to the [petitioner] and Henry, Joanne Votino was in her bedroom speaking on the telephone to her boyfriend, Demond Johnson. Johnson heard four or five loud noises that he thought sounded like gunshots, followed by Joanne Votino yelling, ‘[w]hat’s going on,’ and banging on the door to the master bedroom. Johnson then heard Joanne Votino scream, ‘[o]h my God,’ followed by a loud thump as she fell to the ground, as a result of being shot. Joanne Votino screamed Johnson’s name and told him to call 911, which he did. . . .

“Although he had fled the state, the [petitioner] stayed in contact with a number of people in Connecticut, trying to determine how much the police knew and how to cover his tracks. ... On Tuesday, October 1, 1996, the [petitioner] surrendered to police at his aunt’s house in Beaufort, South Carolina, where he had fled . . . .” (Footnote omitted.) Id., 333-41.

The petitioner filed a petition for a writ of habeas corpus on July 10, 2007. In the amended petition dated August 16,2011, the petitioner alleged: (1) in count one, that his constitutional right to a public trial was violated; (2) in count two, that his constitutional right to be present during the trial was violated; (3) in count three, that his constitutional right to an impartial jury was violated; (4) in count four, that his constitutional right to confrontation was violated; (5) in count five, that his constitutional rights to due process and a fair trial were violated; (6) in count six, that his constitutional right to the effective assistance of trial counsel was violated; and (7) in count seven, that his constitutional right to the effective assistance of appellate counsel was violated. The respondent, the Commissioner of Correction, filed a return on August 17,2011, generally denying the allegations in the petition and raising the special defenses of procedural default and res judicata as to counts one through five. On September 9, 2011, the respondent filed a motion to dismiss counts one, two, and three on the ground of procedural default, and counts four and five on the ground of res judicata or, alternatively, procedural default. In response, the court dismissed counts one through three on the ground of procedural default, and count four on the ground of res judicata. The court did not, however, dismiss count five, as it found neither res judicata nor procedural default to apply given the allegations in the petition. Camacho v. Warden, Superior Court, judicial district of Tolland, Docket No. CV-07-4001839 (October 24, 2011). The matter was tried to the court, Newson, J., on the remaining three counts on September 12, 14, and 23, 2011, and January 5, 2012. On April 30, 2012, the court denied the petition for a writ of habeas corpus. The petitioner filed a petition for certification to appeal on May 7, 2012, which was granted by the court. Because the petitioner appeals only from the court’s denial of his claims as they relate to appellate counsel, we confine our review to the claims set forth in the seventh count. Additional facts will be set forth as necessary.

As noted, the petitioner contends that the court erred in finding that appellate counsel did not render ineffective assistance by failing to argue that the petitioner’s due process rights were violated by: (1) the admission at trial of a 911 tape recording of the victim’s call for assistance; and (2) reference by the prosecutor at trial to the petitioner as “Killer.”

We first address decisional law that is applicable to the issues presented for review and the standard that sets the contours of our assessment on review. “In Strickland v. Washington, 466 U.S. 668, 671, 104 S. Ct. 2062, 80 L. Ed. 2d 674 (1984), the United States Supreme Court articulated a two part analysis for evaluating constitutional claims of ineffective assistance of counsel. First, the defendant must show that counsel’s performance was deficient. This requires showing that counsel made errors so serious that counsel was not functioning as the counsel guaranteed the defendant by the Sixth Amendment. Second, the defendant must show that the deficient performance prejudiced the defense. This requires showing that counsel’s errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable. . . . Our Supreme Court has adopted that two part analysis in reviewing claims of ineffective assistance of appellate counsel.

“The first part of the Strickland analysis requires the petitioner to establish that appellate counsel’s representation fell below an objective standard of reasonableness considering all of the circumstances. ... [A] court must indulge a strong presumption that counsel’s conduct falls within the wide range of reasonable professional assistance; that is, the defendant must overcome the presumption that, under the circumstances, the challenged action might be considered sound trial strategy. . . . The right to counsel is not the right to perfect representation. . . . While an appellate advocate must provide effective assistance, he is not under an obligation to raise every conceivable issue. A brief that raises every colorable issue runs the risk of burying good arguments ... in a verbal mound made up of strong and weak contentions. . . . Indeed, [ejxperi-enced advocates since time beyond memory have emphasized the importance of winnowing out weaker arguments on appeal and focusing on one central issue if possible, or at most on a few key issues. . . . Most cases present only one, two, or three significant questions. . . . The effect of adding weak arguments will be to dilute the force of the stronger ones. . . . Our Supreme Court has stated that [i]t is possible to leave out a dispositive issue on appeal and nevertheless, to have furnished a petitioner with adequate counsel under the sixth amendment. . . . Finally, [i]f the issues not raised by his appellate counsel lack merit, [the petitioner] cannot sustain even the first part of this dual burden since the failure to pursue unmeritorious claims cannot be considered conduct falling below the level of reasonably competent representation.” (Citations omitted; internal quotation marks omitted.) Mozell v. Commissioner of Correction, 87 Conn. App. 560, 562-64, 867 A.2d 51, cert. denied, 273 Conn. 934, 875 A.2d 543 (2005).

“For claims of ineffective assistance of appellate counsel, we must assess whether there is a reasonable probability that, but for appellate counsel’s failure to raise the issue on appeal, the petitioner would have prevailed in his direct appeal, i.e., reversal of his conviction or granting of a new trial. . . . [T]o determine whether a habeas petitioner had a reasonable probability of prevailing on appeal, a reviewing court necessarily analyzes the merits of the underlying claimed error in accordance with the appropriate appellate standard for measuring harm.” (Internal quotation marks omitted.) Moody v. Commissioner of Correction, 127 Conn. App. 293, 301, 14 A.3d 408, cert. denied, 300 Conn. 943, 17 A.3d 478 (2011).

Our review of the judgment of the habeas court is carefully circumscribed. “The habeas court is afforded broad discretion in making its factual findings, and those findings will not be disturbed unless they are clearly erroneous. . . . Historical facts constitute a recital of external events and the credibility of their narrators. . . . Accordingly, [t]he habeas judge, as the trier of facts, is the sole arbiter of the credibility of witnesses and the weight to be given to their testimony. . . . The application of the habeas court’s factual findings to the pertinent legal standard, however, presents a mixed question of law and fact, which is subject to plenary review.” (Citations omitted; internal quotation marks omitted.) Gaines v. Commissioner of Correction, 306 Conn. 664, 677, 61 A.3d 948 (2012).

The law governing a petitioner’s claim of ineffective assistance of counsel for failure to raise claims on appeal is well established. “The determination of which issues to present, and which issues not to present, on an appeal is by its nature a determination committed to the expertise of appellate counsel, and not to his client. ... By that determination, appellate counsel seeks to focus the concern of the appellate court on those issues which he deems to be most persuasive, and thus does appellate counsel most effectively present his Ghent’s appeal.” (Citation omitted.) Valeriano v. Bronson, 12 Conn. App. 386, 390, 630 A.2d 1100 (1987), aff'd, 209 Conn. 76, 646 A.2d 1380 (1988). “[A] habeas court wih not, with the benefit of hindsight, second-guess the tactical decisions of appellate counsel. Legal contentions, like the currency, depreciate through over-issue. . . . [Multiplying assignments will dilute and weaken a good case and will not save a bad one. . . . The effect of adding weak arguments will be to dilute the force of the stronger ones.” (Internal quotation marks omitted.) Farnum v. Commissioner of Correction, 118 Conn. App. 670, 679, 984 A.2d 1126 (2009), cert. denied, 295 Conn. 905, 989 A.2d 119 (2010). We also note that “[i]t is all too tempting for a defendant to second-guess counsel’s assistance after conviction or adverse sentence, and it is all too easy for a court, examining counsel’s defense after it has proved unsuccessful, to conclude that a particular act or omission of counsel was unreasonable. ... A fair assessment of attorney performance requires that every effort be made to eliminate the distorting effects of hindsight, to reconstruct the circumstances of counsel’s challenged conduct, and to evaluate the conduct from counsel’s perspective at the time.” (Citation omitted.) Strickland v. Washington, supra, 466 U.S. 689. With the general principles that guide our review in mind, we turn, now, to an assessment of the particular claims.

I

The petitioner first contends that the habeas court erred by finding that appellate counsel did not render ineffective assistance for failing to argue that the petitioner’s right to due process was violated by the admission of a 911 tape recording into evidence. Specifically, the petitioner contends that “[w]hen the cumulative effects of the improperly admitted [911 tape], coupled with the prosecutor’s remarks, are viewed as a whole, the habeas court’s reliance on the adequacy of curative instructions fails . . . because the cumulative effect of errors committed at trial may be so severe that they cannot be erased from the jurors’ minds with nothing more than a limiting instruction.” We are unpersuaded.

During the petitioner’s criminal trial, the state introduced a 911 tape recording of Joanne Votino’s call to police that she made after she had been shot and during which she can be heard gasping for breath, unable to talk. The habeas court noted that the petitioner’s trial counsel objected to the admission of the tape on relevancy grounds and on the ground that its prejudicial effect outweighed its probative value but, after argument, the court admitted the tape as a full exhibit. The tape was played during trial and was replayed by the prosecutor during the rebuttal portion of the state’s closing argument. On direct appeal, the petitioner did not assert that the admission of the 911 tape was error; rather, counsel argued only that playing the tape during closing argument by the prosecutor constituted misconduct. This claim failed on review. State v. Camacho, supra, 282 Conn. 377-78.

During the habeas trial, appellate counsel testified that while she considered raising a distinct issue concerning the admission of the tape at trial, she decided, instead, to limit the scope of the appeal to the issues she perceived to be her strongest. As a consequence, she decided to focus exclusively on the following issues: (1) a claim that it was error for the court to have admitted hearsay statements made by Henry to Martin and Fusco; and (2) a claim of prosecutorial misconduct. With regard to the admission of the 911 tape recording, counsel testified that, while “I could have robed [such a claim] in constitutional garb, I think the best I could do with it was to bring it through the [prosecutorial] misconduct claim.”

On the basis of our review, we find no fault with the habeas court’s decision that the petitioner was not deprived of the effective assistance of appellate counsel by failing to challenge the admission of the 911 tape recording on review. As noted by the habeas court, the determination of which issues to raise on appeal is a matter of tactics and strategy best left to the discretion of appellate counsel, and such determinations will not be overturned on review unless a reviewing court is convinced that there was not a reasonable basis for them. See United States ex rel. Roche v. Scully, 739 F.2d 739, 742 (2d Cir. 1984) (“A fair assessment of attorney performance requires that every effort be made to eliminate the distorting effects of hindsight, to reconstruct the circumstances of counsel’s challenged conduct, and to evaluate the conduct from counsel’s perspective at the time. Because of the difficulties inherent in making the evaluation, a court must indulge a strong presumption that counsel’s conduct falls within the wide range of reasonable professional assistance; that is, the defendant must overcome the presumption that, under the circumstances, the challenged action might be considered sound trial strategy.” [Internal quotation marks omitted.]); Alterisi v. Commissioner of Correction, 145 Conn. App. 218, 232, 77 A.3d 748 (stating there is strong presumption of reasonableness that attaches to appellate counsel’s tactical decisions), cert. denied, 310 Conn. 933, 78 A.3d 859 (2013). The petitioner has failed to prove that counsel’s strategy on appeal “fell below an objective standard of reasonableness . . . .” Mozell v. Commissioner of Correction, supra, 87 Conn. App. 563. In sum, on the record before us, we conclude that the habeas court did not abuse its discretion in determining that appellate counsel’s decision to forgo raising this issue on appeal was reasonable.

II

The petitioner next claims that the habeas court erred in finding that appellate counsel did not render ineffective assistance for failing to argue that the petitioner’s right to due process was violated by the repeated reference to the petitioner’s nickname, “Killer,” at trial. Specifically, the petitioner argues that the court “failed to consider the cumulative effects on [his] right to a fair trial when the reference to the nickname ‘Killer’ was evaluated in light of the prejudicial effects the 911 tape had on the jury ... as well as the effects on the jury that resulted from the prosecutor’s over-reach during closing argument . . . .” See State v. Camacho, supra, 282 Conn. 382. We disagree.

The following additional facts are relevant to our resolution of this claim. Prior to the beginning of the criminal trial, the court granted the petitioner’s motion to exclude any reference at trial to his nickname, “Killer.” At trial, the state called Martin as a witness. During direct examination, the prosecutor questioned Martin as to whether she knew the petitioner by name. Martin replied that the petitioner was known by Marco, Camacho, and “Killer.” Defense counsel immediately moved for a mistrial and the jury was excused. Out of the jury’s presence, a discussion arose between the court and the parties during which Martin confirmed that the prosecutor had told her not to mention the nickname “Killer” during her testimony. Martin claimed, instead, that she had simply been confused by the question regarding the petitioner’s name. The court denied the petitioner’s motion for a mistrial while instructing Martin not to refer to the petitioner as “Killer” again. When the jury returned, the court gave a curative instruction that the jury should disregard the nickname completely, that the use of the nickname should be stricken from the record, and that the jury should not take the nickname into consideration in its deliberations. Thereafter, Martin testified for two more days without again referring to the petitioner as “Killer.”

Approximately six weeks later, the state recalled Martin as a witness. During direct examination, the prosecutor asked Martin about discussions she had had with Henry after the murders, and, in responding, Martin once again referred to the petitioner as “Killer.” When defense counsel objected, the jury was excused, and counsel moved for a mistrial for the second time. In the jury’s absence, Martin apologized to the court and explained that her use of the nickname had been unintended. The court found that Martin’s use of the nickname was accidental and “not so prejudicial to warrant a mistrial.” Accordingly, the court denied the petitioner’s motion and, when the jury returned, gave a second curative instruction concerning the reference to the petitioner by his nickname, “Killer.” On appeal, appellate counsel did not challenge the court’s denial of either motion for a mistrial.

In addition to Martin’s references to the petitioner as “Killer,” the court chastised the prosecutor for telling the jury that he was submitting a document “with the exception of the nickname.” Defense counsel immediately moved for a mistrial, but the court denied the motion. The court told the prosecutor that “[i]t was not good judgment to mention that in front of the jury.”

At the habeas trial, appellate counsel testified that she recalled considering the multiple references to the petitioner as “Killer” throughout trial as a potential claim on appeal. Ultimately, however, she stated that she determined that a claim concerning the use of the nickname by Martin and the prosecutor at trial would be a “difficult, claim to make.”

As noted, each time Martin used the term “Killer,” the court gave a curative instruction to the jury. “We are mindful that curative instructions are not a cure-all for every improper event that may transpire during a trial. . . . The likely effectiveness of such a remedy is dependent on the magnitude of the impropriety to which it is directed.” (Citation omitted.) State v. Nance, 119 Conn. App. 392, 406, 987 A.2d 376, cert. denied, 295 Conn. 924, 991 A.2d 569 (2010). Importantly, “absent clear evidence to the contrary, we presume that the jury followed the court’s instructions.” Id., 405. “While the remedy of a mistrial is permitted under the rules of practice, it is not favored. ... If curative action can obviate the prejudice, the drastic remedy of a mistrial should be avoided. . . . The general rule in Connecticut is that a mistrial is granted only where it is apparent to the court that as a result of some occurrence during trial a party has been denied the opportunity for a fair trial. . . . The trial court enjoys wide discretion in deciding whether a mistrial is warranted . . . and its evaluation as to events occurring before the jury is to be accorded the highest deference. . . . Every reasonable presumption will be given in favor of the trial court’s ruling . . . because the trial court, which has a firsthand impression of the jury, is in the best position to evaluate the critical question of whether the juror’s or jurors’ exposure has prejudiced a defendant. ... It is only when an abuse of discretion is manifest or where an injustice appears to have been done that a reversal will result from the trial court’s exercise of discretion. ... A reviewing court gives great weight to curative instructions in assessing error.” (Internal quotation marks omitted.) State v. Boykin, 74 Conn. App. 679, 685-86, 813 A.2d 143, cert. denied, 263 Conn. 901, 819 A.2d 837 (2003).

In support of his claim, the petitioner relies on our decision in State v. Williams, 41 Conn. App. 180, 190, 674 A.2d 1372, cert. denied, 237 Conn. 925, 677 A.2d 950 (1996), for the proposition that the cumulative effect of errors committed at trial may be so serious that no curative instruction reasonably could be expected to remove their prejudicial impact. Here, the record reflects that the trial took approximately six weeks during which Martin made reference to the petitioner as “Killer” twice and the prosecutor made oblique reference to the term once. Although the use of this term by the witness and the reference to it by the prosecutor at trial was inappropriate, we do not fault the habeas court in concluding, on the basis of this record, that the petitioner had failed to demonstrate that these missteps by the witness and the prosecutor so prejudiced the jury that a mistrial was warranted.

The judgment is affirmed.

In this opinion the other judges concurred.

       As our Supreme Court did on direct appeal, we refer to Nick Votino by Ms last name and to Joanne Votino by her full name. State v. Camacho, supra, 282 Conn. 333 n.9.

       There is some confusion concerning whether the petitioner’s second issue was properly preserved at trial as, in our Supreme Court’s opinion on direct appeal, the court stated that the 911 tape was admitted without objection. State v. Camacho, supra, 282 Conn. 377. In this habeas matter, both counsel and the court reflected their belief that the petitioner’s trial counsel had, in fact, objected to the admission of the 911 tape on the grounds of relevance and on the ground that its probative value was outweighed by its likely prejudicial impact. We need not resolve that confusion in the record, however, in order to resolve the question of whether appellate counsel was ineffective for her failure to assert that the admission violated the petitioner’s constitutional right to due process and a fair trial, as, under State v. Golding, 213 Conn. 233, 567 A.2d 823 (1989), counsel could have at least asserted that the issue, whether or not preserved, could be reviewed on appeal if it did, indeed, implicate a constitutional right. From the record of the habeas hearing, we infer that appellate counsel was not convinced that she could successfully elevate this evidentiary claim to a constitutional one, and, therefore, she decided instead to focus on the issues that she thought had greater viability.


author: SHELDON, J.

text:
    STATE OF CONNECTICUT v. DEAN BRIAN LEBLANC
    (AC 34814)
    Beach, Robinson and Sheldon, Js.

      Argued December 9, 2013
    officially released March 4, 2014

      Laila Haswell, assistant public defender, for the appellant (defendant).

      Emily D. Trudeau, special deputy assistant state’s attorney, with whom, on the brief, were GailP. Hardy, state’s attorney, Adam B. Scott, supervisory assistant state’s attorney, and Alexander Beck, deputy assistant state’s attorney, for the appellee (state).

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

   Opinion

SHELDON, J.

The defendant, Dean Brian LeBlanc, appeals from the judgment of conviction rendered against him after a jury trial on charges of operating a motor vehicle while under the influence of alcohol in violation of General Statutes § 14-227a (a) (1) and operating a motor vehicle while having an elevated blood alcohol content in violation of § 14-227a (a) (2). The defendant claims that the trial court erred in denying his motion to suppress evidence regarding his refusal to perform a field sobriety test and that, in admitting evidence of his refusal, the court violated his constitutional privilege against self-incrimination. We conclude that even if the challenged evidence was improperly admitted, its admission was harmless beyond a reasonable doubt. Accordingly, we affirm the judgment of the trial court.

On the basis of the testimony and evidence adduced at trial, the jury reasonably could have found the following facts. On March 22, 2010, Demetria Jackson was sitting in her car in the parking lot of a strip mall in South Windsor, waiting to pick up a take-out order that she had placed with a restaurant in that plaza. When she exited her vehicle, the defendant walked out of the adjacent bar and, as he walked to his vehicle, he uttered an incomprehensible comment. Jackson ignored the defendant and continued into the restaurant to retrieve her order, while the defendant proceeded toward the door of the vehicle parked next to hers.

When Jackson returned to her car, she observed the defendant still standing next to his vehicle. She smelled a strong odor of alcohol and observed that the defendant was having difficulty inserting his key into the door lock of his vehicle. Jackson drove away, stopping at a point nearby to further observe the defendant. Concerned that the defendant was about to drive a vehicle while intoxicated, Jackson called 911. While on the telephone, she observed the defendant start his vehicle and begin to drive. She testified that he was not operating the vehicle in “a steady movement, but almost like someone was stepping on the gas and then stepping on the brake.” The defendant continued operating the vehicle, as if attempting to get to the exit of the parking lot, but he “kept turning back around as if he couldn’t make his way toward the exit . . . almost like the motion that a figure eight would make.” Jackson testified that the defendant “continued sort of driving . . . as if he were trying to find the exit or just driving in the parking lot” until another man exited the bar and approached the defendant’s vehicle. The defendant stopped and parked his vehicle, and began to converse with the other man until police Officer Kevin Geraci arrived.

Upon his arrival at the scene, Geraci noticed that the defendant’s vehicle was parked crookedly, with its brake lights on. Geraci activated the emergency lights on his patrol car, exited the car, and approached the defendant’s vehicle. As he approached, the defendant’s brake lights went off. Geraci first asked the other man who had been speaking with the defendant if he had been driving. The man stated that he had not been driving and walked away. Thereafter, when Geraci walked up to the window of the defendant’s vehicle, the defendant immediately declared, “I wasn’t driving. The keys weren’t in the ignition.” At that point, Geraci had not yet asked the defendant anything. Geraci smelled a strong odor of alcohol emanating from the defendant’s vehicle, and therefore asked the defendant for his driver’s license and vehicle registration. The defendant responded, “Why? I wasn’t driving.” Geraci repeated the same request to the defendant about one-half dozen times, to which, on each occasion, the defendant repeated the same response.

Eventually, Geraci told the defendant to get out of his vehicle. After the defendant complied with this order, Geraci conducted what he described as “a weapon’s patdown [of the defendant] for safety purposes.” In so doing, Geraci could smell the strong odor of alcohol on the defendant’s breath, and thus asked him to take a field sobriety test. In response, the defendant told Geraci that he was not driving because he was drunk. The defendant repeated that he was not driving three or four times, and further told Geraci that he “never left— never drove off the parking lot.” Geraci interpreted the defendant’s responses as a refusal to take the field sobriety test, and therefore placed the defendant under arrest. Two chemical alcohol tests were later administered on the defendant, which produced blood alcohol levels of 0.172 and 0.17, respectively. The defendant was charged with operating a motor vehicle while under the influence of alcohol in violation of § 14-227a (a) (1) and operating a motor vehicle while having an elevated blood alcohol content in violation of § 14-227a (a) (2).

Prior to trial, on October 17, 2011, the defendant filed a motion in limine seeking to suppress evidence of the fact that he had refused to take a field sobriety test. On March 16, 2012, during the trial, the court excused the jury and held a hearing on the defendant’s motion. The sole witness at the hearing was Geraci, who testified to his interaction with the defendant that led to the defendant’s arrest. His testimony regarding that interaction was not contested by the defendant in terms of its factual accuracy. During oral argument on his motion to suppress, the defendant expanded the scope of his motion to include a challenge to his earlier statement that he had not been driving. The defendant challenged the admissibility of his refusal to take the field sobriety test on the legal ground that his refusal and his statements were testimonial in nature and were compelled by Geraci, and thus its admission violated his constitutional privilege against self-incrimination. The court denied the defendant’s motion and the trial proceeded.

The defendant was convicted of both charges of operating under the influence. Following the conviction, the state filed a part B information charging the defendant as a subsequent offender in violation of § 14-227a (g) (2), to which the defendant entered a plea of nolo contendere. The trial court merged the two operating under the influence counts and sentenced the defendant to two years incarceration, execution suspended after 450 days, and three years probation. After trial, the defendant sought an articulation of the trial court’s decision denying his motion to suppress. In response, the court issued an articulation in which it concluded that the.defendant’s refusal to take a field sobriety test was neither compelled nor testimonial. This appeal followed.

The defendant claims that the trial court erred in not suppressing the following: Geraci’s testimony that the defendant had refused to perform a field sobriety test; the defendant’s statement, “Why? I wasn’t driving,” in response to Geraci’s request that he perform a field sobriety test; and his subsequent admission to Geraci that he was drunk. The defendant claims that the evidence was improperly admitted because it was testimonial and compelled, and thus obtained in violation of his constitutional privilege against self-incrimination. The state disagrees with the defendant, arguing that the challenged evidence was neither testimonial nor compelled. It further contends that even if the evidence was inadmissible, any error in admitting it into evidence was harmless beyond a reasonable doubt. We agree with the state that any error by the trial court in admitting the challenged evidence was harmless beyond a reasonable doubt.

“[W]hen an improper evidentiary ruling is not constitutional in nature, the defendant bears the burden of demonstrating that the error was harmful. . . . [W]hether [the improper admission of a witness’ testimony] is harmless in a particular case depends upon a number of factors, such as the importance of the witness’ testimony in the prosecution’s case, whether the testimony was cumulative, the presence or absence of evidence corroborating or contradicting the testimony of the witness on material points, the extent of cross-examination otherwise permitted, and, of course, the overall strength of the prosecution’s case. . . . Most importantly, we must examine the impact of the [improperly admitted] evidence on the trier of fact and the result of the trial. . . . [T]he proper standard for determining whether an erroneous evidentiary ruling is harmless should be whether the jury’s verdict was substantially swayed by the error. . . . Accordingly, a nonconstitutional error is harmless when an appellate court has a fair assurance that the error did not substantially affect the verdict. . . . The harmless error doctrine is rooted in the fundamental purpose of the criminal justice system, namely, to convict the guilty and acquit the innocent. . . . Therefore, whether an error is harmful depends on its impact on the trier of fact and the result of the case. . . . This court has held in a number of cases that when there is independent overwhelming evidence of guilt, a constitutional error would be rendered harmless beyond a reasonable doubt. . . . When an [evidentiary] impropriety is of constitutional proportions, the state bears the burden of proving that the error was harmless beyond a reasonable doubt. . . . [W]e must examine the impact of the evidence on the trier of fact and the result of the trial. ... If the evidence may have had a tendency to influence the judgment of the jury, it cannot be considered harmless. . . . That determination must be made in light of the entire record [including the strength of the state’s case without the evidence admitted in error].” (Citation omitted; internal quotation marks omitted.) State v. Coccomo, 302 Conn. 664, 716-18, 31 A.3d 1012 (2011).

As noted, the evidence challenged by the defendant concerned his refusal to take the field sobriety test. That evidence, however, which he claims violated his privilege against self-incrimination, is incriminating only as to his intoxication, not as to whether he operated the vehicle. The evidence of the defendant’s intoxication was abundant. Both Jackson and Geraci testified that the defendant smelled of alcohol and that his speech was slurred. The state submitted the results of two blood alcohol tests taken after the defendant was arrested, both indicating a blood alcohol level more than twice the legal limit. Thus, the evidence that the defendant sought to suppress was cumulative of other intoxication evidence submitted by the state.

Moreover, the defendant did not contest at trial the fact that he was intoxicated. He claimed, rather, that he had not been driving his vehicle, a claim that is belied by Jackson’s testimony and his own unchallenged statement to Geraci that he never got the car out of the parking lot. Because the evidence challenged by the defendant incriminated him only as to intoxication, and his intoxication was not an issue at trial, we conclude that even if the court improperly admitted the evidence challenged by the defendant, a question that we need not reach, the admission of that evidence was harmless beyond a reasonable doubt.

The judgment is affirmed.

In this opinion the other judges concurred.

       The defendant has not challenged the legality of the patdown.


text:
    STATE OF CONNECTICUT v. KACEY LEWIS
    (AC 35389)
    Beach, Sheldon and Foti, Js.
    Argued November 21, 2013
    officially released March 4, 2014

      Christopher Y Duby, assigned counsel, for the appellant (defendant).

      Mitchell S. Brody, senior assistant state’s attorney, with whom, on the brief, were Maureen Platt, state’s attorney, and David A. Gulick, assistant state’s attorney, for the appellee (state).
   Opinion

SHELDON, J.

The defendant, Kacey Lewis, was convicted, after a jury trial, of assault in the third degree in violation of General Statutes § 53a-61 (a) (1), kidnapping in the first degree in violation of General Statutes § 53a-92 (a) (2) (A), interfering with an officer in violation of General Statutes § 53a-167a (a), and possession of narcotics in violation of General Statutes § 21a-279 (a). The defendant now appeals from his conviction of kidnapping in the first degree, claiming that the evidence adduced at trial was insufficient to support that conviction under the rule of State v. Salamon, 287 Conn. 509, 949 A.2d 1092 (2008), because any restraint imposed by him on the victim was merely incidental to the assault. We affirm the judgment of the trial court.

On the basis of the evidence presented at trial, the jury reasonably could have found the following facts. Early in the evening of July 20, 2009, the defendant and his girlfriend, Alana Thompson, drove around the streets of Waterbury trying to sell heroin. The defendant eventually parked the car he was driving, his sister’s 2008 Nissan Altima, near East Liberty Street and South Main Street, at which time he and Thompson separated. When they parted company, Thompson told the defendant that she was going to try to sell some of his heroin on her own. The two agreed that they would meet back later where he had parked the car.

When Thompson later returned to the car, the defendant was not there. She then walked away and encountered a friend of hers named Anna, who was driving around looking for drugs. Thompson got into Anna’s car and called the defendant, who reproached her for not being at their meeting place. Thompson and the defendant again agreed to meet where the defendant had parked his sister’s car, but Thompson stayed with Anna, who drove them to her home where they “got high.”

Approximately one hour later, Thompson got a ride to her aunt’s house on Willow Street. On the way, she listened to several voice mail messages from the defendant, in which he expressed his anger with her. Upon arriving at her aunt’s house, Thompson learned that the defendant had stopped by there earlier, looking for her.

After about five or ten minutes at her aunt’s house, Thompson left with an acquaintance, Amanda Blouin, who walked with her down Willow Street to the parking lot of the comer store, where they encountered a drug dealer known to them as “Nono.” Nono, in turn, walked with them to Hillside Avenue, where they stood on the sidewalk, conversing with one another, until the defendant rapidly drove his sister’s car up onto the curb alongside them. The defendant quickly alighted from the car and approached Thompson, who was standing on the passenger side of the car, saying, “Bitch, come here.” In response, Thompson moved away from him, going around the car in the other direction. At some point, the defendant caught up with Thompson and grabbed her by her shirt and hair, punched her in the face, and tried to pull her to the car. She broke free of the defendant’s grasp and tried to flee to a nearby store, but the defendant followed her and grabbed her again by her shirt and hair. Thompson attempted to resist the defendant’s efforts and dropped to the ground to try to prevent him from getting her to the car. The defendant, however, persisted in his efforts to subdue her, dragging her approximately ten feet back toward the car. When they got back to the car, the defendant maintained his grip of Thompson’s hair with one hand, “holding [her] down [so that she] couldn’t get up.” Then he attempted three times to open the passenger side door of the car with his other hand to force Thompson inside. Each time he did so, Thompson kicked the door shut to prevent the defendant from forcing her into the car. Two plain clothes police officers driving a white sport utility vehicle arrived at the scene, and the defendant let go of Thompson.

Following the defendant’s conviction, the court sentenced him to a total effective sentence of twenty-five years incarceration, execution suspended after fifteen years, followed by five years probation. This appeal followed.

The defendant claims that the evidence adduced at trial was insufficient to support his kidnapping conviction. “In reviewing a sufficiency of the evidence claim, we construe the evidence in the light most favorable to sustaining the verdict, and then determine whether from the facts so construed and the inferences reasonably drawn therefrom, the trier of fact reasonably could have concluded that the cumulative force of the evidence established guilt beyond a reasonable doubt.. . . On appeal, we do not ask whether there is a reasonable view of the evidence that would support a reasonable hypothesis of innocence. We ask, instead, whether there is a reasonable view of the evidence that supports the [trier’s] verdict of guilty.” (Citation omitted; internal quotation marks omitted.) State v. Bennett, 307 Conn. 758, 763, 59 A.3d 221 (2013).

Section 53a-92 (a) defines kidnapping in the first degree, in relevant part, as follows: “A person is guilty of kidnapping in the first degree when he abducts another person and ... (2) he restrains the person abducted with intent to (A) inflict physical injury upon him or violate or abuse him sexually . . . Based upon the language of § 53a-92 (a), the essential elements of kidnapping in the first degree have long been held to be the abduction of another person and the restraint of that person with the intent to inflict physical injury upon him.

In recent years, however, our Supreme Court has determined that, when a defendant engages in conduct that would otherwise constitute the crime of kidnapping in the first degree in the course of committing another substantive criminal offense, § 53a-92 (a) requires proof of an additional element, to wit: that the defendant “intend[ed] to prevent the victim’s liberation for a longer period of time or to a greater degree than that which is necessary to commit the other crime.” State v. Salamon, supra, 287 Conn. 542. The court explained that “a defendant may be convicted of both kidnapping and another substantive crime [only] if, at any time prior to, during or after the commission of that other crime, the victim is moved or confined in a way that has independent criminal significance, that is, the victim was restrained to an extent exceeding that which was necessary to accomplish or complete the other crime. Whether the movement or confinement of the victim is merely incidental to and necessary for another crime will depend on the particular facts and circumstances of each case. Consequently, when the evidence reasonably supports a finding that the restraint was not merely incidental to the commission of some other, separate crime, the ultimate factual determination must be made by the jury. For purposes of making that determination, the jury should be instructed to consider the various relevant factors, including the nature and duration of the victim’s movement or confinement by the defendant, whether that movement or confinement occurred during the commission of the separate offense, whether the restraint was inherent in the nature of the separate offense, whether the restraint prevented the victim from summoning assistance, whether the restraint reduced the defendant’s risk of detection and whether the restraint created a significant danger or increased the victim’s risk of harm independent of that posed by the separate offense.” (Emphasis omitted; footnote omitted.) Id., 547-48.

In this case, the defendant claims that the state failed to present sufficient evidence to support his conviction for kidnapping in the first degree because it failed to prove that he restrained Thompson for a longer period of time or to a greater degree than necessary to commit the separate crime of assault in the third degree against her. Section 53a-61 (a) (1) provides in relevant part: “A person is guilty of assault in the third degree when . . . [w]ith intent to cause physical injury to another person, he causes such injury to such person . . . .” The defendant argues that he is entitled to a judgment of acquittal on the charge of kidnapping in the first degree because the state failed to adduce sufficient evidence to prove beyond a reasonable doubt that he restrained Thompson for any longer or to any extent greater than necessary to intentionally inflict physical injury upon her.

In his brief to this court, the defendant has acknowledged that “it is uncontroverted that the defendant struck Thompson, [and thus that] there is no dispute concerning his guilt to [the assault] offense.” The defendant argues, however, that he committed no “separate offense” at the time of the assault and that he restrained Thompson’s movement for only “exceedingly short” periods of time. It is true, of course, as our Supreme Court has recognized, that “there conceivably could be factual situations in which charging a defendant with kidnapping based [on] the most miniscule [movement or duration of confinement] would result in an absurd and unconscionable result . . . .” (Internal quotation marks omitted.) State v. Winot, 294 Conn. 753, 765, 988 A.2d 188 (2010). This case, however, does not involve one of those situations.

Here, the evidence shows that, after the defendant initially punched Thompson in such a manner that the jury reasonably could have found him guilty, on that basis alone, of assault in the third degree, which required only proof that he intentionally caused her pain, and thus physical injury, he then made a prolonged and physically violent effort to restrain her in order to force her into his sister’s waiting car. To that end, when Thompson broke free from the defendant after being punched and fled toward a nearby store, he chased after her, grabbed her by her hair and dragged her along the ground to the side of the car, where, while maintaining his grip on her hair and holding her down, he repeatedly attempted to open the door so he could force her inside. The jury reasonably could have construed that conduct as wholly separate from, and not merely incidental to, the preceding assault of which it also convicted him. That evidence, which supported the claim that the defendant intended to prevent Thompson’s liberation, also was sufficient to establish that the restraint he imposed upon her exceeded that which was necessary to constitute assault in the third degree. We thus conclude that the evidence was sufficient to support the defendant’s kidnapping conviction.

The judgment is affirmed.

In this opinion the other judges concurred.

       The defendant was acquitted of two counts of assault of public safety personnel in violation of General Statutes § 53a-167c (a) (1).

       Because the defendant challenges only his kidnapping conviction, we need not set forth the facts underlying his other convictions.