text:
    EFRAIN HERNANDEZ v. COMMISSIONER OF CORRECTION
    (AC 23477)
    Foti, West and DiPentima, Js.

      Argued February 19 —
    officially released May 4, 2004

      Kalisha R. Raphael, assistant public defender, with whom was Temmy AnnPieszak, chief of habeas corpus services, for the appellant (petitioner).

      Gerard P. Eisenman, senior assistant state’s attorney, for the appellee (respondent).
   Opinion

FOTI, J.

The petitioner, Efrain Hernandez, appeals following the habeas court’s denial of his petition for certification to appeal from the denial of his amended petition for a writ of habeas coipus. On appeal, the petitioner claims that the court improperly (1) denied his petition for certification to appeal, (2) concluded that he had effective assistance of counsel and (3) con-eluded that his plea was voluntary, knowing and intelligent. We agree with the petitioner and reverse the judgment of the habeas court.

The following facts and procedural history are relevant to the resolution of the petitioner’s claims. On July 26, 1993, the first day of testimony at the petitioner’s criminal trial, the petitioner withdrew his plea of not guilty and entered a plea of nolo contendere to one count of murder in violation of General Statutes § 53a-54a. On September 17, 1993, in accordance with the plea agreement, the petitioner was sentenced to a term of twenty-five years incarceration. On October 5, 1995, the petitioner filed a petition for a writ of habeas corpus, which he amended on July 6,1999, claiming ineffective assistance of counsel and that his plea was involuntary.

On January 31, 2002, the habeas court held a hearing on the petition. At the hearing, the petitioner testified that during a recess on the first day of testimony at the criminal trial, a plea offer was made by the state that entailed an agreed on sentence of twenty-five years in exchange for the petitioner’s plea. The petitioner further stated that his attorney, James J. Ruane, had advised him that he would be eligible for parole after serving 50 percent of his sentence. Last, the petitioner testified that the only reason he accepted the plea was that he would be eligible for parole and that had he known that he would be ineligible for parole, he would not have entered a plea of nolo contendere and would have continued with the trial.

Ruane also testified at the hearing on the petition. He testified that he had informed the petitioner “that on a twenty-five year sentence . . . his release would be governed by, at the time, what [he] thought was the parole authorities and, as a general rule, parole can be granted after serving half the sentence, but that their regulations change, and so it would be up to the parole board.” Ruane farther testified that although he is now aware that in 1992, there was no parole eligibility for a person convicted of murder, he was not aware of it at the time he advised the petitioner.

On May 29, 2002, the court issued a memorandum of decision denying the petitioner’s amended petition for a writ of habeas corpus, concluding that the petitioner had failed to show that he was prejudiced by counsel’s deficient performance. Although the court concluded that “Ruane’s performance fell below the standard of reasonableness under prevailing professional norms and that . . . [his] advice regarding the petitioner’s parole eligibility was deficient,” it also concluded that the petitioner failed “to affirmatively show that he would have proceeded with the trial had he known that he would be ineligible for parole .... [and that the] petitioner has not shown that but for counsel's deficient performance, the result of the proceedings would have been different.”

On June 7, 2002, the petitioner sought to appeal to this court from the habeas court’s judgment by filing a petition for certification to appeal, which the habeas court denied on August 30, 2002. On September 16, 2002, this appeal was filed. Additional facts relevant to the petitioner’s claims will be set forth as necessary.

We begin by setting forth our standard of review. “Generally, [t]he conclusions reached by the [habeas] court in its decision to dismiss the habeas petition are matters of law, subject to plenary review. . . . Thus, [w]here the legal conclusions of the court are challenged, we must determine whether they are legally and logically correct . . . and whether they find support in the facts that appear in the record. ... In a habeas appeal, although this court cannot disturb the underlying facts found by the habeas court unless they are clearly erroneous, our review of whether the facts as found by the habeas court constituted a violation of the petitioner’s constitutional right to effective assistance of counsel is plenary.” (Internal quotation marks omitted.) Perez v. Commissioner of Correction, 80 Conn. App. 96, 99, 832 A.2d 1210, cert. denied, 266 Conn. 934, 837 A.2d 805 (2003).

I

The petitioner first claims that the court improperly concluded that he had effective assistance of counsel. Specifically, the petitioner argues that the court improperly found that he was not prejudiced by Ruane’s deficient performance. We agree.

“In Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984), the United States Supreme Court enunciated the two requirements that must be met before a petitioner is entitled to reversal of a conviction due to ineffective assistance of counsel. First, the [petitioner] must show that counsel’s performance was deficient. . . . Second, the [petitioner] must show that the deficient performance prejudiced the defense. . . . Unless a [petitioner] makes both showings, it cannot be said that the conviction . . . resulted from a breakdown in the adversarial process that renders the result unreliable.” (Internal quotation marks omitted.) Henderson v. Commissioner of Correction, 80 Conn. App. 499, 503-504, 835 A.2d 1036 (2003) , cert. denied, 267 Conn. 918, 841 A.2d 1190 (2004) .

“For ineffectiveness claims resulting from guilty pleas, we apply the standard set forth in Hill v. Lockhart, 474 U.S. 52, 106 S. Ct. 366, 88 L. Ed. 2d 203 (1985), which modified Strickland’s prejudice prong. ... To satisfy the prejudice prong, the petitioner must show a reasonable probability that, but for counsel’s errors, he would not have pleaded guilty and would have insisted on going to trial.” (Internal quotation marks omitted.) Perez v. Commissioner of Correction, supra, 80 Conn. App. 99. “A reasonable probability is a probability sufficient to undermine confidence in the outcome. ... A different result must be sufficiently probable to undermine confidence in the actual outcome.” (Citation omitted; internal quotation marks omitted.) Falby v. Commissioner of Correction, 32 Conn. App. 438, 443, 629 A.2d 1154, cert. denied, 227 Conn. 927, 632 A.2d 703 (1993).

Here, the court concluded that the petitioner did not satisfy the second prong of the Hill-Strickland test requiring a showing of prejudice because the petitioner’s decision to enter a plea of nolo contendere was not based solely on parole eligibility, but rather on the likelihood that he would have been convicted of murder at trial and possibly subjected to an even longer sentence. The court’s conclusion is incorrect and finds no support in the record because a different result at trial was “sufficiently probable.” Specifically, we note that (1) the petitioner’s self-defense claim and (2) the exclusion of a state’s witness create a sufficient probability of a different result had the petitioner not entered a plea of nolo contendere and continued with the trial.

First, the petitioner’s self-defense claim creates a reasonable probability of a different result at trial. Specifically, the petitioner testified at the habeas trial that he was a former member of a gang and that members of the gang had been tiying to kill him since he left the gang. The petitioner further testified that on the date of the shooting at issue he saw an individual in the victim’s car with what appeared to be a gun and that he shot his gun at the victim’s car before the person in the car could shoot at him first. Additionally, Ruane testified that the petitioner was carrying a gun on the night of the incident and that he fired many times at the car as it was driving away, but he believed that the jury could find that he was acting in self-defense. Furthermore, Ruane testified that there was “bad blood” between the petitioner and the petitioner’s family and the victim’s family, which would bear on a self-defense claim, both positively and negatively. Although that testimony does not create a certainty that a self-defense claim would succeed at trial, we conclude that it does create a probability sufficient to undermine a murder conviction.

Next, the exclusion of testimony from one of the state’s two witnesses further supports the conclusion that there was a reasonable probability of a different result had the trial continued. Specifically, the state sought to introduce certain testimony of Ruben Gonzalez to prove the petitioner’s motive to commit murder, but the court, Ford, J., excluded that testimony because it was not relevant to motive and intent. Because the state was scheduled to call only two witnesses, the exclusion of the only testimony as to intent, which is an essential element in proving murder, creates a sufficient probability that had the petitioner continued with the trial, he would not have been convicted of murder.

For the foregoing reasons, we conclude that because there is a probability sufficient to undermine confidence in the murder conviction, it is reasonably, probable that, but for counsel’s deficiencies, the petitioner would not have entered a plea of nolo contendere and instead would have continued with the trial. We therefore conclude that the petitioner was prejudiced by counsel’s deficiencies and, furthermore, that he had ineffective assistance of counsel.

II

The petitioner next claims that his plea was involuntary because (1) his attorney erroneously advised him of his parole eligibility and (2) he believed he was entering a plea to a charge of manslaughter and not to the charge of murder. We agree with the petitioner’s first argument and, therefore, need not address the second claim.

“Guilty pleas must be intelligent, voluntary and knowing. ... A defendant must be aware of all direct consequences of his plea.” (Citation omitted.) Falby v. Commissioner of Correction, supra, 32 Conn. App. 444-45. Where “the petitioner relied on gross misadvice about an indirect consequence, his plea would have been involuntary, unintelligent and, therefore, invalid. . . . Examples of gross misadvice that invalidate a guilty plea include an attorney’s poor research and incorrect calculation of a defendant’s parole eligibility.” (Citation omitted.) Id., 446-47.

Here, the habeas court explicitly found, and we agree, that “Ruane’s performance fell below the standard of reasonableness under prevailing professional norms and that [his] advice regarding the petitioner’s parole eligibility was deficient.” For that reason, and for the reasons discussed in part I as to why a reasonable probability exists that, but for counsel's deficiencies, the petitioner would not have entered a plea of nolo contendere, we conclude that the court improperly determined that the petitioner’s plea was intelligent, voluntary and knowing.

The judgment is reversed and the case is remanded with direction to render judgment granting the petition for a writ of habeas corpus and for further proceedings in accordance with law.

In this opinion the other judges concurred.

       See General Statutes (Rev. to 1991) § 54-125a (b), which provides in relevant part: “No person convicted of any of the following offenses, which was committed on or after July 1, 1981, shall be eligible for parole under subsection (a) of this section . . . murder, as defined in section 53a-54a . . . .” The event at issue in this case took place in June, 1992.

       The court denied the petitioner’s petition for certification to appeal to this court. We agree with the petitioner that the issues raised in this appeal warrant review by this court and, accordingly, reach the merits of the appeal. See Copas v. Commissioner of Correction, 234 Conn. 139, 150-52, 662 A.2d 718 (1995).

       We note that the petitioner has satisfied the first prong of the Hill-Strickland test requiring a showing that counsel’s performance was deficient. Specifically, we agree with the court’s conclusion that “Ruane’s performance fell below the standard of reasonableness under prevailing professional norms and that [his] advice regarding the petitioner’s parole eligibility was deficient.” Because we conclude that the petitioner has satisfied the first prong of the Hill-Strickland test, we need only address the second prong.

       The court also based its conclusion on the notion that Ruane did not convey any certainty to the petitioner about the actual time he would have to serve because a parole board is not required to “ ‘consider any inmate’s eligibility for parole, even if he has fulfilled the statute’s . . . requirements.’ ” The court’s conclusion, however, is misguided and finds no support in the record. Even though the petitioner would not be guaranteed parole or consideration for parole if he were “eligible,” eligibility in general still puts the petitioner in a better position than he would have been in if he were statutorily ineligible, where he would have no chance of even being considered for parole status. The petitioner, therefore, was reasonable in basing his decision to plead on the fact that he would be “eligible” for parole even though he was not guaranteed that he would obtain it successfully or be considered for it.

       The petitioner’s belief that members of his former gang were trying to kill him was based on the fact that he had been shot at several times in 1992 by individuals the petitioner believed to be gang members. Further, because he feared for his safety, the petitioner began carrying a gun for protection after leaving the gang.

       We also note that the trial judge and the sentencing judge made comments that cast further doubt on whether a murder conviction would result if the trial continued. On the first day of trial, after the state put forward its last scheduled witness, the court, Ford, J., stated that “if all the facts are as is that we heard, and I accept them as true, the best you have is a manslaughter under the extreme indifference to [human life].” Next, at sentencing, the court, Damiani, J., stated that “[b]ased upon the facts of the case, if the case had gone to a conclusion through a trial, a jury could have come back with a guilty of manslaughter or they might have bought a self-defense.”


source: Caselaw Access Project

author: SCHALLER, J.

license: Public Domain

text:
    VIOLA NELSON v. MICHELE CHARLESWORTH
    (AC 23991)
    Schaller, West and DiPentima, Js.
    Submitted on briefs January 23 —
    officially released May 4, 2004

      Sheldon A. Messinger filed a brief for the appellant (plaintiff).

      Andrew B. Goodwin and Larry R. Levine filed a brief for the appellee (defendant).
   Opinion

SCHALLER, J.

The plaintiff, Viola Nelson, appeals following the trial court’s granting of the motion filed by the defendant, Michele Charlesworth, to open a prior judgment that had been rendered against him. On appeal, the plaintiff claims that the court improperly opened the judgment. We affirm the trial court’s order granting the defendant’s motion to open.

The facts and procedural history are as follows. The action arose from a motor vehicle accident that occurred in February, 2001. The plaintiffs attorney, Sheldon A. Messinger, contacted the defendant on March 7,2001. The defendant, in turn, advised her insurance carrier, Infinity Insurance Company (Infinity), of the plaintiffs representation. Additional communication occurred between Messinger and Infinity through September, 2001. On October 12, 2001, Messinger served the defendant with a complaint with a return date of December 11, 2001, and sent Infinity a copy of the complaint. After no response from Infinity or the defendant, the plaintiff, on January 18, 2002, filed a motion for default for failure to appear. The motion was granted on January 23, 2002. On April 3, 2002, the court awarded the plaintiff damages in the amount of $4200. On May 10, 2002, the court awarded costs, increasing the total award to $4555.

On June 7, 2002, Infinity contacted Messinger to discuss settlement. Throughout June, Messinger and Infinity engaged in settlement discussions, but failed to reach an agreement. At no time during the settlement negotiations did Messinger inform Infinity of the outstanding judgment. On August 13, 2002, Messinger sent a letter to Infinity, informing it of the judgment and the subsequently accrued interest. The defendant filed a motion to open the judgment on October 10,2002, which was granted on February 18, 2003. The court, in its decision to open the judgment, made the terse and direct statement that “[i]n the court’s view, plaintiffs counsel, under the circumstances of this case, should have disclosed to the defendant’s insurer that a default judgment had entered. Equity requires that this judgment be opened and set aside. See Connecticut Savings Bank v. Obenauf, 59 Conn. App. 351, 758 A.2d 363 (2000).” This appeal followed.

I

As a threshold issue, we must first determine whether we have jurisdiction. “Ordinarily, the granting of a motion to open a prior judgment is not a final judgment, and, therefore, not immediately appealable. . . . Our Supreme Court, however, has carved out an exception to that rule where a colorable claim is made that the trial court lacked the power to open a judgment.” (Citations omitted.) Richards v. Richards, 78 Conn. App. 734, 738, 829 A.2d 60, cert. denied, 266 Conn. 922, 835 A.2d 473 (2003). The plaintiff argues that Practice Book § 17-43 presents a bar to a court seeking to open a judgment after four months, absent a mistake or fraud. The plaintiff argues that there was no mistake or fraud present. It is undisputed that the motion to open was granted beyond the four month limitation. As this is a colorable claim that the court lacked the power to open the judgment, we have jurisdiction.

II

The plaintiff claims that the court improperly granted the motion to open the judgment. The plaintiff argues that General Statutes § 52-212a and Practice Book § 17-43 bar review of a judgment.

At the outset, we note our standard of review. “Whether proceeding under the common law or a statute, the action of a trial court in granting or refusing an application to open a judgment is, generally, within the judicial discretion of such court, and its action will not be disturbed on appeal unless it clearly appears that the trial court has abused its discretion.” (Internal quotation marks omitted.) Carr v. Fleet Bank, 73 Conn. App. 593, 594, 812 A.2d 14 (2002).

General Statutes § 52-212a provides in relevant part: “Unless otherwise provided by law and except in such cases in which the court has continuing jurisdiction, a civil judgment or decree rendered in the Superior Court may not be opened or set aside unless a motion to open or set aside is filed within four months following the date on which it was rendered or passed. . . .” Practice Book § 17-43 contains similar language. Courts have interpreted the phrase, “[ujnless otherwise provided by law,” as preserving the common-law authority of a court to open a judgment after the four month period. See In re Jonathan M., 255 Conn. 208, 238, 764 A.2d 739 (2001). “It is a well-established general rule that . . . a judgment rendered by the court . . . can subsequently be opened [after the four month limitation] . . . if it is shown that . . . the judgment, was obtained by fraud ... or because of mutual mistake.” (Internal quotation marks omitted.) Celanese Fiber v. Pic Yarns, Inc., 184 Conn. 461, 466, 440 A.2d 159 (1981). The common-law reasons for opening a judgment seek to preserve fairness and equity. Kim v. Magnotta, 249 Conn. 94, 109, 733 A.2d 809 (1999).

Fraud is defined as “[djeceit, deception, artifice, or trickery operating prejudicially on the rights of another, and so intended, by inducing him to part with property or surrender some legal right. . . . Anything calculated to deceive another to his prejudice and accomplishing the purpose, whether it be an act, a word, silence, the suppression of the truth, or other device contrary to the plain rules of common honesty.” (Citation omitted.) Bailentine’s Law Dictionary (3d Ed. 1969). To determine whether the court properly exercised its discretion, we must determine whether the conduct of the plaintiffs attorney was fraudulent, which then would allow the court to open the judgment for equitable reasons.

Although the judgment proper was not brought about by fraud, the finality of the judgment, that is, the running of the four month period, was vitiated by fraud. On June 25, 2002, the plaintiff, through her attorney, represented to Infinity that she was interested in settling the case. Implicit in such a statement, and the settlement negotiations thereafter, was that there was still a case to be settled, i.e., that the plaintiff had not already obtained a judgment against the defendant. The implicit representations by the plaintiffs attorney that the case was still pending and that he had not obtained a judgment could be considered fraud under the definition previously set forth, which would allow the court to exercise its equitable powers.

The fraudulent behavior by the plaintiffs attorney is further illustrated by examining the time that he chose to reveal the judgment to Infinity. Damages were awarded April 3, 2002, and he unveiled the judgment on August 13, 2002. Thus, it would appear that the plaintiffs attorney engaged in sham negotiations for four months and ten days, slightly longer than the four month deadline embodied in General Statutes § 52-212a and Practice Book § 17-43. As the plaintiffs attorney seemed willing to negotiate until just after the four month deadline, it is difficult to imagine that he was attempting to do anything other than to deceive Infinity.

That type of conduct has no place in our bar. Rule 4.1 of the Rules of Professional Conduct provides in relevant part: “In the course of representing a client a lawyer shall not knowingly ... (1) [m]ake a false statement of material fact or law to a third person . . . .” Although the issue before us is not whether the plaintiffs attorney violated rule 4.1, we note that through his actions, he appears to have disregarded the rule. His actions contribute to the deterioration of civility and collegiaiity and invite the scorn of the public on the bar. It was within the court’s discretion to hold that equitable considerations required that the judgment be opened.

The order granting the defendant’s motion to open the judgment is affirmed.

In this opinion the other judges concurred.

       The defendant, in her brief, asserts that Messinger made an offer of $5000 to settle the case and that the defendant made a counteroffer of $1600. The plaintiff, in her reply brief, disputes other facts offered by the defendant, but does not dispute the offers or their amounts. Notably, if the defendant’s assertion is to be credited, Messinger made an offer of $5000 when there was a $4555 judgment outstanding.


author: McLACHLAN, J.

text:
    JANET A. IRVING v. FIREHOUSE ASSOCIATES, LLC
    (AC 23792)
    Lavery, C. J., and McLachlan and Dupont, Js.

      Argued January 7 —
    officially released May 4, 2004

      Thomas E. Crosby, for the appellant (defendant).

      Gerald L. Garlick, with whom was Charles J. Irving, for the appellee (plaintiff).
   Opinion

McLACHLAN, J.

The defendant, Firehouse Associates, LLC, appeals from the trial court’s judgment rendered in accordance with a report by an attorney trial referee (referee) in a dispute with the plaintiff, Janet A. Irving, over a claimed right-of-way. The defendant claims on appeal that the court’s judgment in accordance with the referee’s report was improper because the court deprived the defendant of the opportunity to first file a transcript of the proceedings conducted before the referee and to file further objections to the report, as provided for by Practice Book § 19-18, despite requesting an extension of time within which to do so. We reverse the judgment of the trial court and remand the case for further proceedings consistent with this opinion.

The parties to this action are the owners of adjacent parcels of real estate located in Essex. In June, 2001, a dispute arose as to a right-of-way claimed by the plaintiff over the defendant’s land after the defendant erected a masonry retaining wall and other structures that allegedly altered the configuration and contour of the land and obstructed the right-of-way.

In a six count amended complaint, the plaintiff alleged that the defendant’s property was subject to a right-of-way in favor of her parcel pursuant to two separate deeds (counts one and two), that there existed easements by necessity (fourth count) and by implication (fifth count), and that the defendant maliciously obstructed her right-of-way (sixth count). The plaintiff sought a permanent injunction prohibiting the defendant from obstructing her right-of-way and requested damages. In response, the defendant filed an answer, eight special defenses and a two count counterclaim, the first count seeking to quiet title and the second claiming tortious interference with the defendant’s right to use the property.

The court referred the matter to a referee who, after conducting a hearing, filed a report and submitted a memorandum of decision. In his report, the referee found that the defendant’s property was subject to a right-of-way in favor of the plaintiff and that an injunction should be issued requiring the defendant to dismantle the masonry retaining wall, but that the plaintiff was not entitled to damages.

On October 8,2002, the defendant filed its preliminary objections to the referee’s report and a motion for extension of time to file the transcript of the hearing before the referee and to file further objections. The court granted the motion for an extension of time, permitting the defendant until November 21, 2002, to file the transcript and any additional objections. Although the extension period elapsed, the defendant never filed a transcript or further objections to the referee’s report, nor did it file a motion seeking additional time in which to do so. On December 16, 2002, the parties appeared before the court for a hearing on the defendant’s prelim-inaiy objections. At the hearing, the defendant informed the court that it had not yet procured a copy of the transcript and requested additional time to do so. The plaintiff did not dispute that the defendant had seasonably ordered the transcript from the court reporter. The court denied the defendant’s oral motion for a continuance to file the transcript and further objections, and overruled the defendant’s preliminary objections. The court then rendered judgment in accordance with the referee’s report. This appeal followed.

In a subsequent articulation of its decision, the court indicated that it overruled the defendant’s preliminary objections to the referee’s report based, in part, on the defendant’s failure to file a transcript with its objections, as required by Practice Book § 19-14.

The defendant claims on appeal that the court should have granted an additional continuance for the defendant to obtain and to file a transcript of the proceedings before the referee prior to rendering judgment in accordance with the referee’s report. The defendant claims, in particular, that by denying the motion for a continuance, the court inequitably prevented the defendant from satisfying the requirements of Practice Book § 19-14 and used the defendant’s noncompliance as a ground for oveixuling the defendant’s preliminary objections and rendering judgment in accordance with the report.

“A motion for continuance is addressed to the discretion of the trial court, and its ruling will not be overturned absent a showing of a clear abuse of that discretion. . . . We are especially hesitant to find an abuse of discretion where the court has denied a motion for continuance made on the day of trial. . . . Every reasonable presumption in favor of the proper exercise of the trial court’s discretion will be made.” (Citations omitted; internal quotation marks omitted.) Thode v. Thode, 190 Conn. 694, 697, 462 A.2d 4 (1983). In deciding whether to grant a continuance, the court of necessity balances several factors, including the importance of effective case flow management and the relative harm or prejudice to both parties. Id., 698. Absent a showing of actual prejudice, the court will not be found to have abused its discretion when denying the defendant’s motion for a continuance. Id.

The court correctly determined that Practice Book § 19-14 requires that a party objecting to the acceptance of a referee’s report “must file with the party’s objections a transcript of the evidence taken . . . ,” Practice Book § 19-14. The obvious purpose of that requirement is to present the court with the necessary transcripts of evidence to consider a party’s objection and to determine whether there is support in the record for the referee’s findings of fact. See Meadows v. Higgins, 249 Conn. 155, 170 n.10, 733 A.2d 172 (1999). In the present case, however, the court should have recognized that the defendant’s failure to comply with that requirement, despite its diligent efforts to comply, was due to circumstances beyond its control.

The record reveals that on October 11, 2002, well before the court’s December 16, 2002 hearing on the defendant’s preliminary objections, the defendant filed Form JD-ES-38 with the court reporter’s office, requesting a copy of the transcripts of the proceedings before the referee. In the court reporter’s acknowledgement of the request, the reporter estimated a delivery date of January 10, 2003. The record therefore establishes to our satisfaction that the defendant, through no fault of its own, was unable to provide a transcript to the court by December 16, 2002, and should have been granted a continuance to do so.

In denying the defendant’s request for a continuance, the court effectively prevented the defendant from complying with Practice Book § 19-14 and establishing the factual basis for its preliminary objections. It is fundamentally inequitable to fault or to punish the defendant for administrative delays in processing transcript requests. Such delays in the court reporter’s office are beyond the control of the parties and, unlike a situation in which a party is unwilling or derelict in his duty to comply with Practice Book § 19-14, should not serve as grounds to deny a party the opportunity to oppose a referee’s report meaningfully.

By denying the defendant a continuance to obtain and to file the transcript, the court unfairly prevented the defendant from satisfying Practice Book § 19-14, and fatally impaired the defendant’s ability to bolster its preliminary objections factually and successfully to oppose the acceptance of the referee’s report. Notwithstanding the great deference that must be accorded the court in addressing requests for continuance, we conclude that the prejudice suffered by the defendant by the denial of its motion was so great that the denial of the motion amounted to an abuse of discretion. Accordingly, we reverse the judgment of the trial court and remand the case to afford the defendant the opportunity to file the transcript of the hearing, file its final objections and for the court to hold a hearing thereon.

The judgment is reversed and the case is remanded for further proceedings consistent with this opinion.

In this opinion the other judges concurred.

       The plaintiff withdrew the third count of adverse possession at trial.

       By way of special defense, the defendant claimed that (1) the unity of title doctrine barred the plaintiffs claim of a right-of-way or an easement; (2) General Statutes § 47-37 and the applicable statute of limitations barred the plaintiffs claim of a right-of-way by prescriptive easement; (3) the plaintiffs claim of an easement, if one existed, was personal to a certain predecessor in interest and did not run with the land; (4) the plaintiff or her predecessors in interest abandoned any claim to a right-of-way or an easement; (5) to the extent that the plaintiff owns an easement or right-of-way over the defendant’s land, such easement or right-of-way is void and unenforceable because it is ambiguous as to certain particulars; (6) to the extent that the plaintiff owns an easement or right-of-way, such easement or right-of-way is limited to the reasonable uses that could have been made of it as of the date it was created; (7) the plaintiffs claims to an easement by implication or necessity are void and unenforceable because the plaintiff has other means of obtaining access to her property; and (8) the plaintiff is not entitled to attorney’s fees or punitive damages because she has failed to state a claim on which such relief can be awarded.

       Specifically, the referee found in favor of the plaintiff as to counts one and two of her complaint, and in favor of the defendant as to counts four, five and six. The referee also found that the defendant was entitled to judgment quieting and settling title to the property of the parties as to the right-of-way and found in favor of the plaintiff on the tortious interference counterclaim.

         On October 11, 2002, the plaintiff timely filed a response to the defendant’s preliminary objections to the referee’s report.

       Although the transcript indicates that the court rendered judgment in accordance with the referee’s report, the judgment file appears to be inconsistent with the referee’s memorandum of decision, which states that judgment was rendered in favor of the defendant with respect to the defendant’s first special defense.

       Practice Book § 19-14 provides: “A party may file objections to the acceptance of a report on the ground that conclusions of fact stated in it were not properly reached on the basis of the subordinate facts found, or that the committee or attorney trial referee erred in rulings on evidence or other rulings or that there are other reasons why the report should not be accepted. A party objecting on these grounds must file with the party’s objections a transcript of the evidence taken before the committee, except such portions as the parties may stipulate to omit.”

       We reach that conclusion notwithstanding the fact that the defendant could have moved for a further continuance after discovering that the court reporter’s office would be unable to process the transcript request prior to the date of the first continuance and prior to the December 16,2002 hearing. Although, as a general matter, the filing of an additional continuance is the practice that should be followed, we must, in the present case, consider the court’s comments at the time it granted the defendant’s initial motion for continuance. In granting the motion, the court stated: “Well, the motion for extension says they do need time. So, I’ll give them the extension to tile the additional objections with the transcript.” The plain import of that language is that the court sought to provide the defendant the opportunity to obtain a transcript. Although, at the prompting of the plaintiff, the court subsequently set a date of November 21, 2002 to obtain the transcript, the court’s initial comment still influences our conclusion.

       We note also that General Statutes § 51-61 (c) provides in relevant part: “Each official court reporter, assistant court reporter and monitor shall, when requested, furnish to . . . any party of record and to any other person, within a reasonable time, a transcript of the proceedings, or such portion thereof as may be desired . . . .”

       We note that the defendant raises three additional claims on appeal. The first is that the court should not have rendered judgment in accordance with the referee’s report because the report was filed more than 120 days after trial was completed. That claim is without merit and warrants no further discussion, given the well established timeliness guidelines for filing set forth in Practice Book § 7-17. Although the report was filed 122 days after the trial, the 120th day fell on a Saturday.
      We also do not address the defendant’s remaining two claims because each is dependent on the referee’s factual findings and, as such, requires a review by the trial court of the hearing transcript. Those claims were, therefore, not decided on the merits and should be considered by the court on rehearing when the court has the benefit of assessing the transcript.


author: LAVERY, C. J.

text:
    SHANA M. MOTHERWAY ET AL. v. JANICE L. GEARY
    (AC 24352)
    Lavery, C. X, and Foti and McLachlan, Js.

      Submitted on briefs January 23 —
    officially released May 4, 2004

      Paul W. Smith filed a brief for the appellant (defendant).

      Shana M. Motherway, pro se, and Edward J. Moth-erway, pro se, the appellees (plaintiffs), filed a brief.
   Opinion

LAVERY, C. J.

The defendant, Janice L. Geary, appeals from the judgment of the trial court awarding nominal damages of $1 on her counterclaim against the plaintiff Shana M. Motherway. On appeal, the defendant claims that the court improperly failed to award damages of $7500 on her counterclaim against the plaintiff under the liquidated damages provision of the real estate purchase contract (contract) existing between the parties. We disagree and, therefore, affirm the judgment of the trial court.

The court found the following relevant facts. The plaintiff and her husband, Edward J. Motherway, entered into the contract with the defendant, the owner of a single-family home in Suffield. The Motherways, after being advised by their inspection company of problems with the home’s boiler, notified the defendant of their concerns. The parties attempted to resolve the ensuing dispute, but the defendant did not permit Krupa Oil Company to conduct any further inspections of the boiler on behalf of the Motherways. The Motherways thereafter attempted to terminate the contract pursuant to paragraph nineteen of the contract.

The defendant refused to return to the Motherways their $7500 deposit and continued to attempt further negotiations regarding the boiler. Consequently, the Motherways filed a complaint against the defendant on January 16, 2003, alleging both that the defendant’s failure to return their deposit was a material breach of the contract and that the defendant’s fraudulent misrepresentation as to the condition of the boiler rendered the contract void ab initio. The defendant filed a counterclaim, contending that the Motherways had breached the contract in that they withdrew from it without cause and failed to satisfy the terms and conditions for termination under paragraph nineteen of the contract.

The court ruled in favor of Edward Motherway on both his claim for breach of contract and on the defendant’s counterclaim, finding that the Motherways had complied with the requirements of the contract, namely, that they provide the defendant with written notice of any inspection not meeting the standards established by the contract, together with a copy of the inspection report. The court also found that the Motherways were unable to reach an agreement with the defendant regarding the boiler and that they subsequently terminated the contract in a timely manner under paragraph nineteen. Moreover, the court found that the Moth-erways did not prove by clear and convincing evidence their allegations of fraud in connection with the disclosure of the condition of the property.

The court ordered the defendant to return to the Motherways their $7500 deposit with interest and found against the defendant on her counterclaim. At the request of the defendant, the court also entered a technical default against the plaintiff, who was not represented by counsel and who did not appear at trial due to child care obligations. The court, however, did not award any damages to the defendant on the default judgment due to its ruling in favor of Edward Moth-erway. Subsequently, the defendant filed a motion to reargue. On May 27, 2003, in response to that motion, the court awarded nominal damages of $1 to the defendant. It is that award that the defendant challenges on appeal.

The defendant claims that damages of $7500 should have been assessed on her counterclaim against the plaintiff in accordance with paragraph fourteen of the contract. She contends that under paragraph fourteen, she was entitled to retain the Motherways’ deposit as liquidated damages because they defaulted on the contract. The defendant argues that the court improperly found that the plaintiff had terminated the contract properly and, therefore, the defendant was not liable for breach of contract. We disagree.

We must first determine the proper standard of review. Normally, we review a court’s determination of damages under an abuse of discretion standard. See Barber v. Mulrooney, 61 Conn. App. 108, 111, 762 A.2d 520 (2000). When, however, a damages award is challenged on the basis of a question of law, our review is plenary. See First Federal Savings & Loan Assn. of Rochester v. Charter Appraisal Co., 247 Conn. 597, 603, 724 A.2d 497 (1999). Although the defendant casts her argument as a challenge to the court’s determination of damages, she actually is disputing the court’s interpretation of the contract. “Although ordinarily the question of contract interpretation, being a question of the parties’ intent, is a question of fact . . . [w]here there is definitive contract language, the determination of what the parties intended ... is a question of law.” (Internal quotation marks omitted.) Tallmadge Bros., Inc. v. Iroquois Gas Transmission System, L.P., 252 Conn. 479, 495, 746 A.2d 1277 (2000). We do not find ambiguity in the relevant contract language and will, therefore, apply plenary review.

The court found that Edward Motherway had demonstrated by a preponderance of the evidence that he and the plaintiff had satisfied the requirements for termination pursuant to paragraph nineteen of the contract. The evidence in the record clearly supports the court’s conclusion. The parties entered into the contract on October 16, 2002. According to paragraph nineteen, the Motherways had fourteen calendar days from that date in which to provide the defendant with a copy of an unsatisfactory inspection report, should there be one. On October 25, 2002, the Motherways provided such notice. The contract also afforded the Motherways with an additional three calendar days after providing notice in which to terminate the contract should the parties be unable to reach an agreement regarding an unsatis-factoiy inspection. They also complied with that provision in that they sent a letter to the defendant terminating the contract on October 30,2002. It is clear, therefore, that the Motherways satisfied all contract requirements for termination.

The defendant argues that the plaintiffs liability under the counterclaim is conclusively presumed due to the default judgment entered against her. Our Supreme Court has held that a default judgment entitles the prevailing party “at the very least ... to nominal damages.” DeBlasio v. Aetna Life & Casualty Co., 186 Conn. 398, 401, 441 A.2d 838 (1982). “The entry of a default constitutes an admission by the [defaulted party] of the truth of the facts alleged in the complaint.” Id., 400. That, however, does not relieve the defendant of her burden of proving damages. See id., 401; see also Baldwin v. Harmony Builders, Inc., 31 Conn. App. 242, 245-46, 624 A.2d 393 (1993). Accordingly, we must determine whether the amount of damages awarded by the court was proper. See Smith v. Snyder, 267 Conn. 456, 462 n.6, 839 A.2d 589 (2004).

We conclude that the defendant cannot satisfy her burden of proving damages. The defendant testified that she continued to maintain several mortgages on the property after the Motherways did not purchase the home. That is unpersuasive. We have already determined that the Motherways successfully terminated their contract with the defendant under paragraph nineteen. The defendant, therefore, was obligated under paragraph fourteen to return to the Motherways their deposit. Accordingly, it would be illogical for us to conclude that the plaintiff now owes $7500 to the defendant simply because of the default judgment that was entered against the plaintiff. Given the evidence, the court’s nominal award was proper.

The judgment is affirmed.

In this opinion the other judges concurred.

       The original action named two plaintiffs, Shana M. Motherway and her husband, Edward J. Motherway. The court found in favor of Edward Motherway and awarded him damages of $7500 plus interest. The court rendered a default judgment against Shana Motherway on the counterclaim for failure to appear. The claim raised by the defendant relates only to Shana Motherway, and we therefore refer to her as the plaintiff in this opinion.

       Paragraph nineteen of the contract provides in relevant part: “Buyer acknowledges that Buyer has had the opportunity to make a full and complete inspection of the Property, to the extent desired by Buyer. . . . Buyer must give Seller written notice of any inspection that does not meet the standards set forth below together with a copy of the inspection report, on or before 14 calendar days after the date that this Contract is fully executed (Inspection Contingency Date). If Buyer does not give Seller such notice, Seller shall have no responsibility or obligation concerning any condition to which this paragraph 19 applies. ... If an inspection report given by Buyer to Seller on or before the Inspection Contingency Date reveals that the Property does not meet the terms set forth below and Seller and Buyer cannot reach a mutually satisfactory agreement regarding these matters, then Buyer may terminate this Contract by giving Seller written notice of termination no later than 3 days after the Inspection Contingency Date. Failure by Buyer to . . . terminate releves Seller from all responsibility and obligation concerning any condition to which this paragraph 19 applies. If Buyer terminates this contract pursuant to Buyer’s rights under this paragraph 19, Buyer shall receive all deposited sums and the obligations of the parties under this Contract shall end . . . .”

       Paragraph fourteen of the contract provides in relevant part: “If Buyer defaults under this Contract and Seller is not in default, Buyer’s deposits shall be paid over to and retained by Seller as liquidated damages and both parties shall be relieved of further liability under this contract, except to the extent of Buyer’s obligations under Paragraph 19. If Seller defaults under this Contract and Buyer is not in default, Buyer shall be entitled to any and all remedies provided by law and equity . . . .”


author: BISHOP, J.

text:
    YVONNE BIRCH v. MARK WILLIAMS
    (AC 24005)
    Foti, Flynn and Bishop, Js.

      Argued February 26 —
    officially released May 4, 2004

      Neil Johnson, for the appellant (plaintiff).

      Jon L. Schoenhom, with whom, on the brief, was Matthew D. Dwyer, for the appellee (defendant).
   Opinion

BISHOP, J.

In this breach of contract and negligence action, the plaintiff, Yvonne Birch, appeals from the judgment of the trial court rendered in favor of the defendant, Mark Williams, in accordance with the findings of a fact finder to whom the matter had been referred. The plaintiff claims that the fact finder incorrectly allowed the defendant to testily in contradiction of judicial admissions that were made in his answer to the complaint and, therefore, the rendering of judgment by the court in accordance with the report was an abuse of discretion. After reviewing the file, we conclude that there was a significant procedural defect in the proceedings that undermines the integrity of the judgment. Consequently, we reverse the judgment of the trial court and remand the case for a new trial due to plain error, without reaching the issue initially raised on appeal.

The following facts and procedural history are relevant to our disposition of the plaintiffs appeal. On July 16, 2002, the plaintiff filed a two count complaint, alleging in the first count that the defendant had breached an oral contract to repair the transmission in her 1986 Chevrolet Monte Carlo and in the second count that the defendant negligently had repaired the transmission. The defendant, who appeared pro se, filed an answer in which he admitted that he had repaired the transmission defectively after having kept the car for approximately one year.

On November 14, 2002, the court, Hon. William R. Shaughnessy, Jr., judge trial referee, conducted a pretrial conference on the record. A transcript of the event discloses that Judge Shaughnessy indicated to the parties that if the case could not be settled on that date, it would be scheduled for another day and that if the parties could not reach a settlement in the morning, it would be heard by an attorney trial referee at 2 p.m. on the same day. Notwithstanding Judge Shaughnessy’s stated intention to refer the matter to an attorney trial referee, the record plainly indicates that the matter was heard, instead, by a fact finder. The transcript of the contested hearing on January 23, 2003, indicates that it was held before Mark A. Dubois, fact finder. The report issued by Dubois was captioned “fact finder’s report” and was signed by “Mark A. Dubois, fact finder.” The plaintiffs objection to the report was filed in accordance with Practice Book § 23-57, which governs fact finders. The trial court file indicates that when judgment was rendered on February 17, 2003, the court noted, “judgment is entered in accordance with the findings of the fact finder . . . .” Finally, the court file reflects that when coding the case, the clerk’s office noted that judgment had been entered after findings by a fact finder. It is clear, therefore, that the case was referred to and heard by a fact finder, and not by an attorney trial referee.

The referral to a fact finder gives rise to a fatal defect in the judgment. Pursuant to our rules of practice and relevant statutes, fact finders and attorney trial referees are governed by different authorities. See Rostenberg-Doern Co. v. Weiner, 17 Conn. App. 294, 298, 552 A.2d 827 (1989) (noting “jw]hile attorney referees appointed pursuant to General Statutes § 52-434a (4) are authorized to hear a broader assortment of disputes involving greater monetary value, those appointed pursuant to General Statutes § 52-549n are referred to as ‘fact-finders’ and possess less authority”). Practice Book § 23-53 provides in relevant part that “[t]he court, on its own motion, may refer to a fact finder any contract action pending in the superior court ... in which money damages only are claimed, which is based upon an express or implied promise to pay a definite sum, and in which the amount, legal interest or property in controversy is less than $50,000, exclusive of interest and costs. ...” (Emphasis added.) We note that there is no provision in our statutes or rules of practice for the referral of a noncontract action to a fact finder. The provision in our rules of practice relating to attorney trial referees, however, permits the court to refer any civil nonjury matter to an attorney trial referee with the consent of the parties. See Practice Book § 19-2A.

The defendant argues, nevertheless, that under our holding in Beizer v. Goepfert, 28 Conn. App. 693, 613 A.2d 1336, cert. denied, 224 Conn. 901, 615 A.2d 1044 (1992), cert. denied, 507 U.S. 973, 113 S. Ct. 1416, 122 L. Ed. 2d 786 (1993), an objection to an improper referral to a fact finder may be waived. To the contrary, an improper referral of a negligence claim to a fact finder cannot be waived. See McKeever v. von Reiter, 15 Conn. App. 194, 196, 544 A.2d 242 (1988).

The defendant’s reliance on Beizer is misplaced because Beizer did not involve the referral of a negligence claim to a fact finder. In Beizer, we found that a complaint that included a claim for tortious interference with a contract was, nevertheless, founded in contract because the tortious interference claim was an integral part of the contract claim. We reasoned that even though the tortious interference claim sounded in negligence, it was intertwined sufficiently with the plaintiffs contract claim to be viewed fairly as a contract claim. Thus, we concluded, the matter had been referred properly to a fact finder as a contract action. Beizer v. Goepfert, supra, 28 Conn. App. 700-703.

Accordingly, because Beizer did not involve two freestanding claims, one in contract and the other in tort, the fact finder’s jurisdiction was not implicated. Unlike Beizer, however, this case does involve two freestanding claims, one in contract and another in tort. Our response, therefore, is governed by our holding in McKeever v. von Reiter, supra, 15 Conn. App. 194.

In McKeever, we held that because a fact finder does not have jurisdiction to hear negligence actions, the court cannot render judgment in a negligence action pursuant to a fact finder’s report. Id., 196. As in McKeever, the underlying action sounds, in part, in negligence, and unlike the situation in Beizer, the negligence claim in the present action is not intertwined with the contract claim. Additionally, we note that the fact finder in the present action determined facts related to both the negligence and contract claims. It was therefore improper for the court to utilize the fact finder’s report as the basis of its judgment. Consequently, the rendering of judgment on the basis of the fact finder’s report was plain error.

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

In this opinion the other judges concurred.

       “[0]ur sua sponte invocation of plain error review is warranted when the following requirements are satisfied: (1) we discuss the rule and articulate why it is appropriate; and (2) we give the parties an opportunity to brief the issue.” State v. Washington, 39 Conn. App. 175, 179, 664 A.2d 1153 (1995). Subsequent to oral argument and at the request of this court, counsel filed supplemental briefs addressing the issue on which we decide this appeal.

       The form utilized by the clerk’s office provides several options for noting the basis on which judgment is entered, e.g., after trial to a jury, after a court trial, after a hearing by an attorney trial referee, after a hearing by a fact finder. Only the box on the form indicating judgment after a hearing by a fact finder was checked. Although that clerical action is not binding as to the nature of the hearing, we note that it is consistent with the court’s determination.

       General Statutes § 52-549n provides: “In accordance with the provisions of section 51-14, the judges of the Superior Court may make such rules as they deem necessary to provide a procedure in accordance with which the court, in its discretion, may refer to a fact-finder for proceedings authorized pursuant to this chapter, any contract action pending in the Superior Court, except claims under insurance contracts for uninsured and or underinsured motorist coverage, in which only money damages are claimed and which is based upon an express or implied promise to pay a definite sum, and in which the amount, legal interest or property in controversy is less than fifty thousand dollars exclusive of interest and costs. Such cases may be referred to a fact-finder only after the certificate of closed pleadings has been filed, no claim for a jury trial has been filed at the time of reference, and the time prescribed in section 52-215 for filing a jury trial claim within thirty days of the return day or within ten days after the issue of fact has been joined has expired.”

       Practice Book § 19-2A provides: “The court or judicial authority may refer to an attorney trial referee any civil nopjury case in which the issues have been closed, provided that the appearing parties or their counsel consent to the referral.”
      General Statutes (Rev. to 1999) § 52-434 (4), the pertinent statute, provides in relevant part: “In addition to the judge trial referees who are appointed pursuant to subdivision (1), (2) or (3) of this subsection, the Chief Justice may appoint, from qualified members of the bar of the state, who are electors and residents of this state, as many state referees as he may from time to time deem advisable or necessary. No appointment of a member of the bar may be for a term of more than three years. Notwithstanding the provisions of subsection (f) of this section, state referees appointed by the Chief Justice from members of the bar shall receive such reasonable compensation and expenses as may be determined by the Chief Justice.”

       Our Supreme Court has stated that a trial court’s failure to follow the mandatory provisions of a statute prescribing trial procedures or to follow a procedural rule constitutes plain error. State v. Johnson, 214 Conn. 161, 171 n.10, 571 A.2d 79 (1990); State v. Pina, 185 Conn. 473, 482, 440 A.2d 962 (1981); see also. Cummings & Lockwood v. Gray, 26 Conn. App. 293, 300, 600 A.2d 1040 (1991).


text:
    STATE OF CONNECTICUT v. JOHN DEARBORN
    (AC 22645)
    SchaUer, DiPentima and Hennessy, Js.

      Argued February 24 —
    officially released May 4, 2004

      James B. Streeto, assistant public defender, for the appellant (defendant).

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

SCHALLER, J.

The defendant, John Dearborn, appeals from the judgment of conviction, rendered after a jury trial, of robbery in the first degree in violation of General Statutes § 53a-134 (a) (4). On appeal, the defendant claims that (1) the trial court improperly admitted evidence of three other robberies, (2) the court improperly admitted physical evidence, (3) the state committed prosecutorial misconduct, thereby depriving him of a fair trial, and (4) the court improperly instructed the jury. We affirm the judgment of the trial court.

The jury reasonably could have found the following facts. At 1 a.m. on December 6, 1999, the defendant entered an Exxon gasoline station and convenience store in Fairfield. He approached the overnight clerk, who was working alone, and shouted at the clerk, instructing him not to look or he would shoot. Despite that admonition, the clerk observed that the defendant was wearing gray sweatpants and a black sweatshirt. The defendant also wore a maroon mask and had a paper bag over his right hand. The defendant told the clerk to open the cash register and then to lie down on the floor. The defendant continued to point his right hand, which was still covered by a paper bag, at the clerk and took the money from the register with his left hand. The defendant fled from the store, and the clerk called the police.

While the robbery was taking place, Officer Christopher Rubis of the Fairfield police department was patrolling the area. He noticed the defendant, who was approximately twenty to twenty-five feet away from the store. As Rubis slowed his patrol car, the defendant increased his walking speed and then suddenly began to run away. Rubis chased him, but was unable to catch him. Shortly thereafter, Rubis noticed a red minivan parked in a Gulf gasoline station. The minivan was parked differently from the rest of the cars in the lot and, although all of the other cars had condensation on their windows, the minivan did not. After further investigation, Rubis learned that the defendant’s wife was the primary user of the car. Further inquiries revealed that according to the Gulf station’s manager, the minivan did not belong at the station. Looking into the van, Rubis saw birth certificates belonging to the defendant’s children. At approximately 4 a.m., the police went to the defendant’s house where the defendant’s wife met them. She informed them that the defendant was not at home.

The police also searched the area of the defendant’s escape route. In a wooded area nearby, Rubis found a gray sweatshirt, a pair of black sweatpants and a brown paper bag. Forensic tests revealed that the sweatshirt contained head hair, some of which was similar to the defendant’s head hair. None of the hair on the sweatpants was similar to the defendant’s hair. The defendant later was arrested, charged and convicted. This appeal followed. Additional facts will be set forth as necessary.

I

The defendant claims that the court improperly admitted evidence of other crimes he allegedly committed, specifically three other robberies. The court admitted the evidence as prior misconduct based on grounds of common scheme, intent and identity. The defendant contests the admission on each ground and argues that the evidence was not sufficiently probative.

The following additional facts are necessary for the resolution of the defendant’s claim. Before trial, the state informed the defendant that it planned to introduce evidence of prior and subsequent misconduct. The state filed a motion in limine seeking to admit the evidence. The court held a hearing, and the state introduced evidence of three incidents of other crimes, specifically, robberies that had occurred in Shelton, Milford and Westport.

The Shelton robbery occurred on August 6, 1999, at a Subway sandwich store. The store was staffed by a single clerk who was preparing to close the store. The door to the store was locked, but a second employee, who was not scheduled to work that evening, used her key to enter the store to pick up her paycheck. At approximately 10:30 p.m., the defendant ran toward the store, opened the door, which had not been relocked, and ran to the register, where the clerk was standing and talking to the second employee. The clerk observed that the defendant was wearing jeans and a flannel shirt. The defendant also wore a nylon stocking mask over his face. His left hand was empty, but a brown paper bag covered his right hand.

After entering the store, the defendant pointed his right hand, still covered by the bag, at the clerk standing near the register. The defendant told the clerk to open the register; when the clerk hesitated, the defendant tinned toward the other employee and threatened to kill her. The clerk opened the register, the defendant reached over the counter and, with his left hand, grabbed money out of the drawer. The defendant then fled the store.

As the defendant ran out of the store and into the street, he ran in front of a woman who was driving an automobile. Their eyes met briefly, and the defendant continued to a red minivan that was parked across the street from the store. The defendant entered the minivan, drove onto the road and followed the woman’s vehicle. The defendant tried to pass her, but traffic forced his vehicle back into her lane. As a result, he forced her car off the road. Shortly thereafter, the woman wrote down the registration plate number of the defendant’s minivan. She later called the Shelton police.

The police investigated the minivan and discovered that it was registered to the defendant’s father-in-law, who explained that he had given it to his daughter to use. The police went to the defendant’s house where they observed the van. As the police were observing the van, the defendant came out of the house and moved the van a short distance. The police arrested the defendant. The woman whose vehicle had been forced off the road was taken to the defendant’s house, where she identified the defendant and the minivan. After searching the defendant’s house, the police found a flannel shirt, which was later identified by the store clerk and the employee as the one worn by the defendant.

The Westport robbery took place on December 4, 1999, at a Cumberland Farms convenience store. At approximately 11:30 p.m., a clerk was working alone in the store. The defendant entered the store wearing a sweatshirt, jeans and a mask that appeared to be a thick stocking mask. The defendant’s left hand was empty, but his right hand was covered by a paper bag. He told the clerk to open the cash register and threatened the clerk; the clerk complied with the defendant’s demand. The defendant reached into the register drawer with his left hand and took money. As soon as the defendant had the money, he left the store.

After the defendant left, the clerk called the police. The police responded with a canine unit, which followed the defendant’s scent to a parking lot behind the store. While following the dog, the police recovered a shirtsleeve, a paper bag and a cash register clip. Forensic testing on the sleeve revealed hair that was microscopically similar to that of the defendant and a mixture of DNA that included his DNA.

The Milford robbery occurred on July 6, 2000, at a Foodmart in Milford. At 3:30 a.m., a clerk was working alone in the store when the defendant entered wearing a baseball cap and a blue mask. The defendant wore a paper bag over his right hand. He grabbed the clerk and, pointing his right hand at the clerk, dragged him to the cash register and ordered him to open it. The clerk opened the cash register, and the defendant took money with his left hand. The defendant then ran out of the store.

The clerk called the police, who responded with a canine unit. The police located a baseball cap, a shirt and a blue mask that appeared to be cut from a shirtsleeve. DNA of the defendant, among others, was found on the sleeve and cap. In addition, each item contained hair similar to the defendant’s hair. The investigation also revealed that a customer who was at the store at approximately 12:30 a.m., had observed a red minivan outside the store. The customer later identified the minivan as similar to the minivan owned by the defendant’s father-in-law.

After a hearing, the court ruled that the evidence was admissible to show the defendant’s common plan or scheme, identity and intent. During the trial, the court gave the jury limiting instructions regarding the use of the evidence and also instructed the jury on that issue in its jury charge.

“The standard of review is clear. The admission of evidence of . . . uncharged misconduct is a decision properly within the discretion of the trial court. . . . [E]very reasonable presumption should be given in favor of the trial court’s ruling. . . . [T]he trial court’s decision will be reversed only where abuse of discretion is manifest or where an injustice appears to have been done.” (Internal quotation marks omitted.) State v. Aggen, 79 Conn. App. 263, 270-71, 829 A.2d 919 (2003). To be admissible under the Connecticut Code of Evidence, the uncharged misconduct must be relevant; Conn. Code Evid. § 4-1; to one of the exceptions; id., § 4-5 (b); to the general bar against uncharged misconduct. Id., § 4-5 (a); see also State v. Aggen, supra, 271. If it is relevant to one of the exceptions, then its probative value; Conn. Code Evid. § 4-1; must be greater than its prejudicial effect. Id., § 4-3; see also State v. Aggen, supra, 271.

Section 4-5 (b) of the Connecticut Code of Evidence specifies that uncharged misconduct may be admissible to prove, inter alia, “intent, identity, malice, motive, common plan or scheme, absence of mistake or accident, knowledge, a system of criminal activity, or an element of the crime, or to corroborate crucial prosecution testimony.” Evidence of identity consists of methods of committing crimes that are “sufficiently unique to warrant a reasonable inference that the person who performed one misdeed also did the other. . . . Much more is required than the fact that the offenses fall into the same class. The device used must be so unusual and distinctive as to be like a signature.” (Citations omitted; internal quotation marks omitted.) State v. Sierra, 213 Conn. 422, 430, 568 A.2d 448 (1990).

The uncharged misconduct evidence was sufficiently distinctive to constitute a signature. The evidence showed that the defendant used a paper bag to hide his right hand; used his left hand to take money from the registers; employed threats or actual violence to force employee compliance; employed a vehicle to get away from the scene, usually a red minivan; covered his face with a mask; targeted small food or convenience stores; robbed the stores at night; waited until there were a small number of employees present in the stores, usually only one employee; and, in three of the four robberies, discarded his clothing near the scene of the robbery.

Most of the factors, taken alone, would not constitute a unique method or signature. We are mindful, however, of our Supreme Court’s statement in State v. Figueroa, 235 Conn. 145, 164, 665 A.2d 63 (1995). “[T]he fact that some of the similarities between the offenses were legal or relatively common occurrences when standing alone does not . . . negate the uniqueness of the offenses when viewed as a whole. It is the distinctive combination of actions which forms the signature or modus operand! of the crime . . . and it is this criminal logo which justifies the inference that the individual who committed the first offense also committed the second. . . . The process of construing an inference of [identity . . . consists usually in adding together a number of circumstances, each of which by itself might be a feature of many objects, but all of which together make it more probable that they coexist in a single object only. Each additional circumstance reduces the chances of there being more than one object so associated. The process thus corresponds accurately to the general principle of relevancy.” (Citations omitted; internal quotation marks omitted.) Id. We view the characteristics of all the incidents in the aggregate, as we must, and they form a pattern that is relevant to the issue of identity. See State v. Mandrell, 199 Conn. 146, 151-52, 506 A.2d 100 (1986).

That evidence also was more probative than it was prejudicial. The probative value springs from the facts of the crime charged in this case. The defendant’s face was covered and, moreover, the identification of the defendant came largely from circumstantial evidence. The evidence of the other robberies, committed in a similar manner, tended to corroborate the identity of the defendant as the perpetrator of the charged offense. Regarding the prejudicial effect, the defendant argues that “[b]y presenting the evidence of three separate incidents, separated by a period of some months, the trial court enabled the prosecution to create the impression that the defendant was a one man crime wave in Fairfield County, the jurors’ own neighborhood.” The jury was instiucted, however, both during and at the close of the trial as to the proper use of the misconduct evidence. “Any prejudice was reduced by the court’s . . . limiting instructions to the jury.” State v. Aggen, supra, 79 Conn. App. 273. Jurors are presumed to follow the court’s instructions. State v. Tucker, 226 Conn. 618, 628, 629 A.2d 1067 (1993). The court did not abuse its discretion in admitting the evidence of uncharged misconduct.

II

The defendant also claims that the court improperly admitted into evidence a sweatshirt sleeve found after the Milford robbery. The defendant argues that the state failed to lay an adequate foundation for the sleeve because, at trial, one of the state’s witnesses did not give a clear description of the mask that had been cut from a shirt sleeve.

The following additional facts are necessary for the resolution of the defendant’s claim. At trial, the clerk involved in the Milford robbery testified that the defendant wore a blue mask. After the defendant took the money, he left the store and discarded his mask. When the police arrived, they used a police canine to track the defendant. While tracking the defendant, they located a baseball cap where the clerk indicated that the defendant had dropped it. When the police recovered the cap, they found a blue sleeve underneath it. When asked what the mask looked like, the clerk testified that the mask had “holes in it so you could see his eyes.” When shown a photograph of the mask, the clerk was unable to identify it. The court admitted the sleeve over the defendant’s objection.

The following day, the defendant renewed his objection. The state countered that the court could review the store’s surveillance videotape of the robbery to determine whether the recovered sleeve matched that in the videotape. After watching the videotape, the court overruled the defendant’s objection and stated that “[w]hile there may very well be some significant argument over whether the sleeve offered in the incident that took place in Milford, I believe on balance it goes to the weight rather than the admissibility of the item. . . . [NJumber one, [the item was] the same color, the color blue, which was indicated by [the clerk] and also appeared similar in color on the videotape. Number two, we can see on the videotape there’s nothing materially inconsistent with the description of [the clerk]. While we can’t see for sure whether the eyes are covered or not, it — a reasonable person could conclude that it was tied together in a bandana type style, which may or may not have covered the eyes, but which I think is a question of argument. WTiile [the clerk] did respond that the eyes were cut out, I think, again, given the context in which all the questions were asked, I think that’s a question of argument, and, of course, a hat and a sleeve were found in an area designated and pointed out by [the clerk] where he indicated that he saw the perpetrator taking off the mask as he was running away.” The court overruled the defendant’s objection.

We review the court’s decision to admit evidence only to determine whether the court abused its discretion. See State v. Corbin, 260 Conn. 730, 736-37, 799 A.2d 1056 (2002). To establish a foundation for admission, “[a]n item offered as real evidence must be positively identified as the actual item in question. This can be done by establishing unique or distinguishable configurations, marks, or other characteristics, or by satisfactory proof of the item’s chain of custody from the time of the incident to the time of trial.” (Internal quotation marks omitted.) Federal Deposit Ins. Corp. v. Carabetta, 55 Conn. App. 369, 373, 739 A.2d 301, cert. denied, 251 Conn. 927, 742 A.2d 362 (1999).

In the present case, the court had the opportunity to compare the challenged evidence with reference to the videotape of the robbery. The court also heard testimony from the clerk, who identified the color of the mask. Additionally, the court heard the testimony of the police officer, who indicated that the mask was found with the defendant’s baseball cap in the area identified by the clerk as the location where the defendant had dropped the mask. Because the court has the discretion to judge the credibility of the witnesses, as well as the videotape evidence, we cannot say it abused its discretion in admitting the evidence.

Ill

The defendant also claims that the state committed prosecutorial misconduct during its closing arguments, thereby depriving him of a fair trial. The defendant argues that the prosecutor improperly vouched for the credibility of witnesses and denigrated the role of defense counsel.

The following additional facts are necessary for the resolution of the defendant’s claim. At the beginning of the state’s closing arguments, the prosecutor stated that “what’s important to keep in mind is that this is argument. This is not fact, this is not sworn testimony, this is not law, this is our opinions. Ultimately, what’s important about this process right here is that anything that either I say to you or that [defense counsel] says to you during this phase is just that, it’s our opinion, it’s our argument to you. If we draw any reference whatsoever to any evidence presented in this case, what we remember about this case is not as important as what you remember, individually and collectively as a group.”

During the defendant’s closing argument, defense counsel stated, with regard to the woman’s identification of the defendant after the Shelton robbery, that “as for her identification [of] him being the man she saw, when she got to the scene late [during the] early morning hours, she had already been stroked by the police pretty good .... They picked her up, they took her here, they took her there. She gets to the scene . . . and what does she see? She sees a van there. She sees a lot of police, police cars.” Defense counsel continued along that line by arguing that the woman’s identification of the defendant took place under suggestive circumstances. At the end of the argument, defense counsel stated: “Just remember, don’t get snowed by everything that was said and given to you. Focus on the Fairfield case, reasonable doubt in the Fairfield case. They have no case.”

In rebuttal, the prosecutor began his argument by stating, “ ‘Don’t get snowed.’ ‘Don’t get snowed.’ Why do I feel that I’ve just listened to [defense counsel’s] closing, and it’s the old shell game. Go out to the comer, and the shells are sliding around. See if you can follow the pea. Lift up and see if you’ve found the pea at the end. Is that what [defense counsel] is asking you to consider? That this is the old shell game? I’ve stood before you several times now. I’ve laid out a case for you. I have presented evidence to you. I have argued some of it. I’m going to argue it now, in terms of the evidence, in detail. If you believe this is the old shell game, then you should acquit the defendant. If you believe that the evidence supports the state’s case, you should convict the defendant.”

The prosecutor also commented on the testimony of Officer Rubis: “Talk about being in the right place at the right time. Isn’t that what we pay our law enforcement to do, be in the right place at the right time? The man is coming down [the] Post Road, and he sees a guy coming out of the store. He’s already twenty, thirty feet from the door and he’s approaching the Post Road area, and [the officer], based upon good police instincts, says, ‘Something’s wrong here.’ No vehicle around, doesn’t appear to have anything in his hand. He’s kind of walking out toward the Post Road at this time of the night, and keep in mind, too, that the court took judicial notice of the fact that we’re talking about Monday night — Monday morning. . . . And [the officer] says, I see him, obviously he sees me, because, what happens? The gait picks up, he turns into a run, [the officer], following good police instincts, starts to pursue . . . .” Speaking about Officer Rubis’ reaction to the red minivan, the prosecutor later stated: “So, again, good police instinct, good police training, What does he do? He requests information on the registration.”

The prosecutor also spoke about the testimony of two expert witnesses he had presented, stating: “They’re the children that we all wish we had. I mean, academic credentials, achievements, honors. I offered them to you as experts in their field. The court adopted their expertise. ” In addition, the prosecutor spoke about the statistical probabilities of the DNA evidence and stated: “This isn’t coincidence, folks. This is evidence. This is exactly the evidence that [defense counsel] doesn’t want you to consider. [Defense counsel] asked you a lot of questions. He asked you a lot of questions about, ‘It could have been this? What do you think about that? Could have been this.’ And then he said to you, ‘But I’m not in the business of answering your questions.’ That’s my job. I’m in the business of answering your questions. I answer your questions through evidence. I answer your questions through law.”

In addition, the prosecutor spoke about the woman who identified the defendant after the Shelton robbery. After discussing the evidence showing that the woman had observed the license plate of the minivan, the prosecutor stated: “She went home. She had that discussion with her husband. ‘Don’t get involved,’ he said. She’s not that type of person not to be involved. She makes herself involved. She gives [the police] the [license] plate.” The prosecutor also stated that the woman must have had “keen observation” to notice some of the details about the minivan.

The defendant did not object to any of the statements by the prosecutor and now seeks review under the four familiar prongs of State v. Golding, 213 Conn. 233, 567 A.2d 823 (1989). Because the record is adequate for review and the defendant’s claim implicates his right to a fair trial, we will review the claim.

Our review of prosecutorial misconduct claims under Golding “is not intended to provide an avenue for the tactical sandbagging of our trial courts, but rather, to address gross prosecutorial improprieties that clearly have deprived a criminal defendant of his right to a fair trial.” (Emphasis added.) State v. Ceballos, 266 Conn. 364, 414-15, 832 A.2d 14 (2003). “The defendant bears the burden of proving that the prosecutor’s statements were improper . . . .” State v. Brown, 256 Conn. 291, 298, 772 A.2d 1107, cert. denied, 534 U.S. 1068, 122 S. Ct. 670, 151 L. Ed. 2d 584 (2001). “In argument before the jury, counsel may comment upon facts properly in evidence and upon reasonable inferences drawn therefrom.” State v. Kinsey, 173 Conn. 344, 348, 377 A.2d 1095 (1977). Prosecutors may not offer their opinions by vouching for the credibility or truthfulness of a witness. State v. Payne, 260 Conn. 446, 454, 797 A.2d 1088 (2002). We do not assume that every statement made by the prosecutor was intended to have its most damaging meaning. See Donnelly v. DeChristoforo, 416 U.S. 637, 647, 94 S. Ct. 1868, 40 L. Ed. 2d 431 (1974).

The defendant supports his claim with two distinct arguments: First, the prosecutor vouched for and bolstered the credibility of Officer Rubis, the woman who identified the defendant, and the experts; and second, the prosecutor denigrated the role of defense counsel by making the “shell game” comments.

A

The prosecutor’s statements about the “good” police work did not constitute improper vouching for the credibility of Officer Rubis. The defendant cites State v. Mills, 57 Conn. App. 202, 208, 748 A.2d 318, cert. denied, 253 Conn. 914, 915, 754 A.2d 163 (2000), for the proposition that a prosecutor may not offer an opinion on the quality of police work. Mills is distinguishable because the prosecutor’s statements in Mills were much more forceful and had no true basis in the evidence. See id., 208 n.11. Notably, in Mills, the prosecutor stressed the fact that the police knew that the defendant had committed the crime, and defense counsel objected to the prosecutor’s statement and made an oral motion for a mistrial. Id., 206 n.7, 208 n.11. Here, the challenged statements were not made in the context of assertions about how the police believed the defendant was guilty; rather, they suggested reasonable inferences that could be drawn from the evidence. When a man leaving a convenience store in the early hours of the morning starts to walk faster at the sight of a police officer and then flees, it can be argued to be good police work to investigate him. Similarly, if the police come upon a suspicious car in the area of a robbeiy, it may be good police work to check the registration. Prosecutorial statements asserting “good police work” have the potential to influence the jury and should be used with prudence and restraint, but the prosecutor’s arguments did not constitute misconduct in this case.

The prosecutor’s comments regarding the woman who observed the defendant during the Shelton robbery were proper. The statement, regarding the woman, that “[s]he’s not that type of person not to be involved,” was a reasonable inference drawn from the evidence because the woman’s husband had told her not to call the police, but she disregarded his opinion and called the police. She did, essentially, “get involved.” Similarly, the prosecutor’s statement that the woman had “keen observation” was based on the evidence. The statement came in the context of the prosecutor’s summation of the woman’s testimony regarding small details on the defendant’s registration plate.

The prosecutor’s comment that the experts were “the children that we all wish we had” was unnecessary and irrelevant. It does not rise to the level of misconduct, however, because the jury is “able to differentiate between argument on the evidence and attempts to persuade them to draw inferences in the state’s favor, on one hand, and improper unsworn testimony, with the suggestion of secret knowledge, on the other hand. The state’s attorney should not be put in the rhetorical straitjacket of always using the passive voice, or continually emphasizing that he is simply saying ‘I submit to you that this is what the evidence shows,’ or the like.” State v. Thompson, 266 Conn. 440, 465-66, 832 A.2d 626 (2003). No reasonable juror would believe that this was more than a hyperbolic comment on the achievements and credentials of the experts presented, especially given the statements that followed.

Thompson’s reasoning also applies to the prosecutor’s statement that “[t]his is exactly the evidence that [defense counsel] doesn’t want you to consider.” A juror would be able to determine that the prosecutor’s statement was simply a response to defense counsel’s statements regarding “don’t get snowed” and not an indication that the prosecutor believed that defense counsel was trying to fool the jurors. We are convinced that reasonable jurors are able to differentiate between lawyers’ ripostes and actual evidence. Even if we considered that statement to be improper, moreover, it would not rise to the level of gross prosecutorial misconduct.

The prosecutor’s statement that the court adopted the expertise of the state’s experts is troubling. That statement is susceptible to more than one interpretation, but we do not automatically attribute the most damaging meaning to statements. See Donnelly v. DeChristoforo, supra, 416 U.S. 647. We need not decipher the meaning of that statement, however, because even if we assume arguendo that the prosecutor intended the worst meaning, it would not rise to the level of gross prosecutorial misconduct that we could say clearly deprived the defendant of a fair trial.

B

The prosecutor’s comments about a “shell game” were not improper. The defendant simply misinterprets the trial transcript. The prosecutor was not referring to defense counsel in making the comments, but was referring to defense counsel’s characterization of the state’s case. We note further that the comment was in response to the defendant’s instruction to the jury, “don’t get snowed,” which opened the door for the state’s arguments. See State v. Ceballos, supra, 266 Conn. 405-406.

IV

The defendant finally claims that the court improperly instructed the jury regarding the meaning of reasonable doubt. The defendant concedes, as he must, that the instructions he challenges were held proper by our Supreme Court in cases such as State v. Velasco, 253 Conn. 210, 246-49, 751 A.2d 800 (2000), and State v. Griffin, 253 Conn. 195, 205-10, 749 A.2d 1192 (2000). We are bound by that precedent.

The judgment is affirmed.

In this opinion the other judges concurred.

       The defendant also was convicted under a part B information as a persistent felony offender.

       The jury was not informed of the disposition of any of the other incidents.

       Given the facts in this case and because the evidence was admissible as being relevant to identity, we need not address whether it was admissible as being relevant to common scheme or to intent. See State v. Mandrell, 199 Conn. 146, 151-53, 506 A.2d 100 (1986); see also State v. Murrell, 7 Conn. App. 75, 88, 507 A.2d 1033 (1986).

       Although the defendant was not seen getting into a vehicle in the Westport robbery, the police canine tracked the defendant’s scent to a parking lot where the scent abruptly stopped, which generally occurs when the subject being tracked enters a vehicle. Similarly, in the Milford robbery, the defendant’s red minivan was seen in the area shortly before the robbery.

       The experts presented testimony regarding the DNA evidence and hair evidence.