author: LAVINE, J.

text:
    L. LYNNE HALL v. STANLEY BERGMAN ET AL.
    (AC 26856)
    (AC 26858)
    (AC 27011)
    McLachlan, Harper and Lavine, Js.

      Argued November 16,2007
    officially released April 1, 2008

      Susan M. Phillips, for the appellant in AC 26856 and the appellee in AC 26858 and AC 27011 (plaintiff).

      Rene Gerard Martineau, for the appellant in AC 26858 and AC 27011 (defendant Stuart Cohn) and for the appellees in AC 26856 (substitute defendant Betsey Henley Cohn et al.).
   Opinion

LAVINE, J.

In these appeals, the plaintiff, L. Lynne Hall, appeals from the judgment rendered, following a jury trial, in favor of the defendant Rhoda Cohn, and the defendant Stuart Cohn appeals from the judgment to the extent that it set aside the verdict as to him and ordered a new trial. In her appeal (AC 26856), the plaintiff claims that (1) there was insufficient evidence to establish the special defense of reliance on the advice of counsel with respect to the vexatious litigation count and (2) the court improperly failed to set aside the verdict in favor of Rhoda Cohn. In his appeals (AC 26585 and AC 27011), Stuart Cohn claims that the court improperly consulted handwritten notations on jury forms when setting aside the verdict as to him and ordered a new trial. We affirm the judgment of the trial court.

The following procedural history is relevant to the parties’ appeals. The plaintiff commenced this action on December 6, 2000, against Stanley Bergman, trustee, Rhoda Cohn, Stuart Cohn and The Joel Cohn Revocable Trust (trust). Bergman and Rhoda Cohn were trustees of the trust, and Stuart Cohn is the beneficiary of the trust. At all times relevant, the trust was the owner of a condominium known as 16-18-20 Temple Court in New Haven (condominium), which is handicapped accessible and equipped. The second amended complaint, which is the operative complaint, contained five counts. Count one alleged unjust enrichment against the defendants; count two alleged vexatious litigation against Rhoda Cohn; count three alleged negligent infliction of emotional distress and physical harm against the defendants; and count four alleged intentional infliction of emotional distress and physical harm against the defendants. Count five alleged a violation of the Connecticut Unfair Trade Practices Act; General Statutes § 42-110a et seq.; but that count was withdrawn at trial. The plaintiff sought damages of at least $3,708,000.

The factual allegations of the plaintiffs complaint follow. In May, 1995, Rhoda Cohn approached the plaintiff and informed her that Stuart Cohn, her son, and his wife were divorcing and vacating the condominium. Because the condominium had been constructed to accommodate a person with physical impairments, the plaintiff alleged that Rhoda Cohn thought that the condominium would be suitable for the plaintiff, who suffered from a physical disability. The plaintiff alleged that in August, 1995, she entered into a long-term lease agreement for the condominium with Stuart Cohn, who was acting as agent for the trust. Approximately two years later, Rhoda Cohn, acting as trustee, decided to sell the condominium and engaged Stuart Cohn to approach the plaintiff with an offer to purchase the condominium. According to the plaintiffs allegations, when she refused to purchase the condominium, Rhoda Cohn instituted a summary process action against her, which was dismissed. Thereafter, Stuart Cohn commenced a second summary process action to evict the plaintiff from the condominium. The plaintiff alleged, among other things, that Stuart Cohn threatened her, violated court orders with respect to her, sexually assaulted her, sabotaged assistive technology devices, misappropriated her personal and professional identity, and in the summer of 1999 permitted a family of a different race to live in the condominium to compel the plaintiff to purchase the premises. The plaintiff also alleged that the defendants had been unjustly enriched because she had made certain improvements to the condominium. The jury initially returned verdict forms that did not comply with the court’s instructions. The typewritten form concerning Rhoda Cohn stated: “We, the jury, find in favor of defendant Rhoda Cohn in the above-captioned case.” It also contained the following words in script:

“Count One: Unjust Enrichment
“Count Two: Vexatious Litigation
“Count Three: Negligent Infliction of Hamtr”

The jury also initially returned two verdict forms concerning Stuart Cohn. One of the forms contained the following typewritten statement: “We, the jury, find in favor of defendant Stuart Cohn in the above captioned case,” but it also contained the handwritten words, “Count One: Unjust Enrichment.” The second verdict form contained typewritten language with handwritten figures: “We, the jury, find that defendant Stuart Cohn is liable to plaintiff L. Lynne Hall and award damages as follows: 1. Economic damages $ 0.00 2. Non-economic damages $ 0.00 3. Total damages (1) plus (2) 0.00.” The verdict form also contained the following handwritten language:

“Count Three: Negligent Infliction of harm, (a), (d)
“Count Four: Intentional. Infliction of harm (a), (d)”

Following a sidebar conversation with counsel, the court informed the jury that the verdict forms did not comply with the court’s instructions, which were to return one verdict with respect to each defendant. The court asked the foreperson if he understood the instructions, and the foreperson responded that he did. The court then sent the jury back into the jury room with a clean set of jury forms and instructions to write out any questions the jury may have with respect to completing the verdict forms.

Thereafter, the jury returned its verdict a second time. The jury found in favor of Rhoda Cohn. It found Stuart Cohn liable to the plaintiff but awarded neither economic nor noneconomic damages. The court accepted the jury’s verdict. Counsel for the plaintiff stated that the verdict with respect to Stuart Cohn was inconsistent because the jury found in favor of the plaintiff but awarded her no damages. He stated that the plaintiff was entitled to nominal damages, at least. The court ordered the plaintiff to submit a motion to that effect within ten days. The defendants’ counsel also made an oral motion for a mistrial, which the court denied.

On May 27, 2005, the plaintiff filed a motion to set aside the verdict as to Rhoda Cohn. The court denied the motion. The plaintiff also filed a motion for additur and, in the alternative, a motion to set aside the verdict and for a new trial as to Stuart Cohn. On July 6,2006, the court ordered an additur of $2000, which the plaintiff rejected. On August 3, 2005, the court set aside the jury’s verdict as to Stuart Cohn and ordered a new trial as to both liability and damages. These appeals followed. Additional facts will be discussed as necessary.

I

AC 26856

In her appeal, the plaintiff claims that the court improperly (1) gave an instruction on the special defense of reliance on the advice of counsel and (2) failed to declare a mistrial or set aside the verdict as to Rhoda Cohn. We disagree.

A

The plaintiffs first claim is that the court improperly gave an instruction on the advice of counsel special defense asserted by Rhoda Cohn in response to the plaintiffs claim of vexatious litigation because there was insufficient evidence to warrant the giving of such a charge. The executors argue that the claim is not reviewable because the plaintiff did not preserve the claim at trial. We agree with the executors.

In her principal brief, the plaintiff failed to note that she had not preserved the claim at trial, and she did not request that the claim be reviewed pursuant to any doctrine in exception to the preservation rule. In their brief, the executors note that the plaintiff failed to preserve the issue for appeal by submitting a request to charge on the issue of advice of counsel or by objecting to the charge as given. See Practice Book § 16-20. They also note that the plaintiff failed to ask for a directed verdict on the issue of the special defense. The executors opine that this court’s review is limited to the plain error rule. See Practice Book § 60-5.

In her reply brief, the plaintiff acknowledges that the claim was not preserved pursuant to our rules of practice but asks this court to consider her claim pursuant to the plain error doctrine. She concedes, however, that it is the policy of our appellate courts not to consider plain error when it is raised for the first time in a reply brief. See, e.g., Embalmers’ Supply Co. v. Giannitti, 103 Conn. App. 20, 61, 929 A.2d 729, cert. denied, 284 Conn. 931, 934 A.2d 246 (2007). The plaintiffs concession is appropriate, and for that reason, we decline to review the claim.

B

The plaintiffs second claim is that the court improperly denied her motion to set aside the verdict in favor of Rhoda Cohn on the basis of inconsistent jury forms. We disagree.

The following facts are relevant to the plaintiffs claim. The jury returned seriatim two sets of verdict forms. After the jury returned its first set, the court addressed the jury: “Ladies and gentlemen, I’ve examined your verdict forms. They are not in compliance with the court’s instructions, which require that in the case of each defendant, you are to return one verdict. So, for example, in the case of Rhoda Cohn, you are to return either a plaintiffs verdict form or a defendant’s verdict form. I have—we will mark this as court exhibits. What I have here are four verdict forms, three are filled out. It’s not clear as to what exactly your verdict is, so I’m going to send you back and give you clean sets. Mister foreman, do you think—do you understand what the court is asking?” The foreman responded in the affirmative. The court reminded the jury that its instructions were in the copy of the court’s charge, which the jury had in the jury room. The court then stated: “So, I’ll ask the jury to retire again to deliberation, and we will provide you a clean set of all four verdict forms, and you are to return only two. One in the case of each defendant.”

Counsel then approached the bench for a sidebar conference. Once again, the court instructed the jury. “Thank you for your patience, ladies and gentlemen. Let me just add two things. First, we are just going to mark these for exhibits, and then we will send them back to the jury room. Second, if you have any specific question about how to fill out the verdict form, given the conclusions you’ve reached, you should put those in writing, and I’ll tiy to address them as specifically as possible. I’m not saying that you have to do that, but I’m just reminding you that you may do that if you wish. So, I’ll ask the juiy to retire, and we’ll stay in session for just a minute.” The first set of jury forms, which the court did not accept, were marked as court exhibit five.

The court then addressed counsel, stating, “I’ve discussed the procedure with counsel at the sidebar, and I think we’re in agreement that what I asked the jury to do is appropriate.” Both counsel agreed with the court’s statement. Shortly thereafter, the jury returned a verdict in favor of Rhoda Cohn and a verdict in favor of the plaintiff with regard to Stuart Cohn but awarding the plaintiff no economic or noneconomic damages. The court accepted the verdicts on the basis of the jury poll and excused the jury.

Immediately after the jury was dismissed, counsel for the plaintiff stated that the verdicts were inconsistent and that the plaintiff was entitled to nominal damages. The court agreed to permit the plaintiff to file a written motion for nominal damages. Thereafter, counsel for the plaintiff made an oral motion for a mistrial. Counsel for the defendants stated that there was no basis for a mistrial. The court ruled as follows: “The request for a mistrial is denied. There’s nothing inconsistent in the jury’s verdict, the jury was instructed to decide the case of each defendant separately; they have done so. We clearly contemplated in the instructions that we agreed to that the jury could render a plaintiffs verdict in one case and a defendant’s verdict in another.

“Furthermore, to the extent that counsel may be referring to the fact that the jury had apparently found liability against Mr. Cohn but no damages, or did so in their ultimate verdict, that is consistent with their first verdict forms, which seem to suggest that that’s what they wanted to do. It’s also in accordance with the instructions of the court, that the parties agreed upon, that it is the plaintiffs burden to prove damages, and that means two things. One, that she was in fact damaged, she suffered damages, and, two, that the damages were the proximate cause of any wrongdoing by [Stuart Cohn]. We don’t know which of the two the jury concluded, but either conclusion would be a permissible basis for a finding that [Stuart Cohn] might have been liable but no damages should be awarded. So, at this point, at least, I see no basis for a mistrial, and the motion is denied.”

The essence of the plaintiffs claim on appeal is that the jury was confused by the verdict forms and that the court’s instruction with regard to them did not clarify matters. After the court declined to accept the jury’s first set of verdict forms, the court consulted with counsel on the way to proceed. Not only did the plaintiffs counsel voice no objection to the maimer in which the court instructed the jury and sent it back for further deliberations, but counsel also approved of the maimer in which the court handled the problem. This court has stated on many occasions that a party “may not pursue one course of action at trial for tactical reasons and later on appeal argue that the path he rejected should now be open to him.” (Internal quotation marks omitted.) State v. Barber, 64 Conn. App. 659, 670, 781 A.2d 464, cert. denied, 258 Conn. 925, 783 A.2d 1030 (2001).

That portion of the judgment that was rendered in favor of Rhoda Cohn, therefore, is affirmed.

II

AC 26858 and AC 27011

Stuart Cohn appeals challenging the court’s setting aside the verdict as to him and ordering a new trial. See footnote 3. On appeal, he claims that the court improperly set aside the verdict because (1) it considered the handwritten language on the first set of verdict forms, and (2) the verdict was reasonable under the pleadings and evidence presented. We are not persuaded by the claims. Because they are intertwined, we will address them as one.

In part IB, we set out in detail the procedural history surrounding the two sets of verdict forms submitted by the jury. Only the verdict form concerning Stuart Cohn is at issue. The jury form accepted by the court stated: “We, the jury, find that defendant Stuart Cohn is hable to plaintiff L. Lynne Hall and award damages as follows:

“1. Economic damages $ 0.00
“2. Noneconomic damages $ 0.00
“3. Total damages (1) plus (2) $ 0.00”

After noting that the verdict was inconsistent, the plaintiff suggested that an additur was appropriate, given the jury’s finding that Stuart Cohn was liable to the plaintiff. The court permitted the parties to submit briefs on the issue. The plaintiff made an oral motion for a mistrial on the basis of an inconsistent verdict. The court denied the motion. Thereafter, the plaintiff filed a written motion for an additur or, in the alternative, a motion for a new trial on the basis of a verdict that was inadequate, contrary to law and against the evidence because the jury awarded her no damages. The plaintiff sought a new trial as to damages only.

In ruling on the motion for additur, the court stated its view that “the jury made a legal mistake, and, therefore, some level of additur is appropriate. The jury initially returned a plaintiffs verdict form against defendant Stuart Cohn that awarded zero damages and contained a note at the bottom that read, ‘count three: negligent infliction of harm (a), (d); count four: intentional infliction of harm (a), (d).’ The jury also returned a defendant’s verdict form for Stuart Cohn that contained a note reading, ‘count one: unjust enrichment.’ The court sent the jury back with instructions to return only one verdict form—either plaintiffs or defendant’s—in the case of Stuart Cohn. Shortly thereafter, the jury returned with the plaintiffs verdict form that awarded zero damages and made no additional notations,” prompting the following observations from the court: “The court does not know the basis of the jury’s ultimate verdict with certainty. Further, both sides agreed to submit the case to the jury with general verdict forms rather than with interrogatories that might have disclosed the count or counts upon which the jury based its verdict for the plaintiff. However, from the initial verdict forms returned by the jury, it appears most likely that the jury found in the plaintiffs favor on count three, alleging negligent infliction of emotional distress . . . and count four, alleging intentional infliction of emotional distress ....

“These two torts require proof that the plaintiff suffered emotional distress—and ‘severe’ emotional distress in the case of the intentional tort—proximately caused by [Stuart Cohn’s] conduct, and the court so instructed the jury. . . . Thus, in order for the juiy to have found Stuart Cohn liable for either of these torts, the jury necessarily had to find that he caused the plaintiff some amount of emotional distress. The jury was mistaken in not attaching any monetary value to this emotional distress. . . . The plaintiff is therefore entitled to an additur. . . .

“In determining the amount of additur, the court must give considerable deference to the jury, which appears to have stated, albeit awkwardly, that the plaintiff was entitled only to, at most, the minimum amount of damages. The court concurs, based on its own observation of the trial and evaluation of the witnesses. In general, the court did not find the plaintiff to be a credible witness, either on liability or damages. Although she produced medical testimony to support her claims of emotional distress, that testimony depended almost entirely on her own exaggerated and in some cases fanciful reports of the underlying facts.

“Those same medical reports, however, did make occasional references to the plaintiffs delusional thinking, her grandiosity and her perception of being persecuted. To the court, this testimony provided a better explanation for the plaintiffs claims than the defendant’s behavior. Further, the plaintiff herself testified about the presence of a multitude of stressful and sometimes traumatic events in her life, all of which were independent of the defendant’s conduct, that could have contributed to any emotional distress that she experienced during the time period in question. For all these reasons, the plaintiff is entitled only to a modest additur. The court orders an additur of $2000.”

“ [T]he proper appellate standard of review when considering the action of a trial court granting or denying a motion to set aside a verdict . . . [is] the abuse of discretion standard. . . . hi determining whether there has been an abuse of discretion, every reasonable presumption should be given in favor of the correctness of the court’s ruling. . . . Reversal is required only where an abuse of discretion is manifest or where injustice appears to have been done. . . . We do not . . . determine whether a conclusion different from the one reached could have been reached. ... A verdict must stand if it is one that a jury reasonably could have returned and the trial court had accepted.” (Internal quotation marks omitted.) Bosco v. Regan, 102 Conn. App. 686, 694, 927 A.2d 325, cert. denied, 284 Conn. 914, 931 A.2d 931 (2007). “Generally, we review a decision of the trial court setting aside the verdict and ordering an additur to determine whether the trial court properly exercised its discretion. . . . When, however, the trial court concludes, as a matter of law, that it is compelled to act in a particular fashion, plenary review is appropriate.” (Internal quotation marks omitted.) Right v. Breen, 277 Conn. 364, 371, 890 A.2d 1287 (2006).

On appeal, Stuart Cohn argues that the parties agreed to submit the case to the jury with verdict forms that would produce a general verdict. No interrogatories were submitted to the jury pursuant to Practice Book § 16-18. Moreover, after the jury returned the first set of jury forms, because they did not conform with the court’s instructions, counsel for the parties and the court agreed that the first set of verdict forms would be marked for identification and that a fresh set of verdict forms would be given to the jury when it returned to the jury room for further deliberations as instructed by the court. The substance of Stuart Cohn’s argument is that the court improperly consulted the first set of jury forms to interpret the meaning of the jury’s second set of verdict forms when deciding the plaintiffs motion to set aside the verdict and, thus, denied the parties a general verdict. We agree that the court improperly consulted the first set of verdict forms when it decided the plaintiffs motion to set aside the verdict but conclude that the court properly set aside the verdict on the basis of the general verdict rule. This court may affirm the judgment of the trial court even though it may have been founded on an improper reason. See Stapleton v. Lombardo, 151 Conn. 414, 417, 198 A.2d 697 (1964).

In our jurisprudence, it has long been the rule to exclude “as immaterial, evidence as to the expressions and arguments of the jurors in their deliberations and evidence as to their own motives, beliefs, mistakes and mental operations generally, in arriving at their verdict. . . . That rule has been aptly described as applying the parol evidence rule to a jury’s verdict, so that their outward verdict as finally and formally made, and not their prior and private intentions, is taken as exclusively-constituting the act.” (Citation omitted; internal quotation marks omitted.) Aillon v. State, 168 Conn. 541, 550, 363 A.2d 49 (1975).

In this case, the parties agreed not to submit interrogatories to the jury. They were, therefore, seeking a general verdict. The court rejected the first set of verdict forms the jury returned and sent the jury back to continue deliberations and complete a fresh set of verdict forms. When the jury completed the second set of verdict forms, it returned general verdicts, which are the verdicts the court accepted. When the court consulted the first set of verdict forms to decide the plaintiffs written motion to set aside the verdict, it in effect utilized the first set of verdict forms as if they were interrogatories to construe the meaning of the jury’s having found in favor of the plaintiff as to Stuart Cohn but awarding her no damages.

If the jury initially had followed the court’s instruction on completing the verdict forms, there would have been but one set of verdict forms, and nothing more, for the court to consider. The fact that the jury first returned nonconforming verdict forms that were not accepted by the court does not change the basis on which the court should have decided the plaintiffs motion for additur or to set aside the verdict. The court accepted only one set of verdict forms, and those were the only verdict forms it should have considered when ruling on the plaintiffs motions. While it is understandable that the court wanted to evaluate everything before it when deciding the motion to set aside the verdict, we conclude that in doing so it, in effect, considered an aspect of the jury’s deliberations. We therefore conclude that it was improper for the court to consider the handwritten notations on the first set of verdict forms. That conclusion, however, does not complete our analysis.

“Under the general verdict rule, if a jury renders a general verdict for one party, and [the party raising a claim of error on appeal did not request] interrogatories, an appellate court will presume that the jury found every issue in favor of the prevailing party. . . . Thus, in a case in which the general verdict rule operates, if any ground for the verdict is proper, the verdict must stand; only if every ground is improper does the verdict fall. . . . The rule rests on the policy of the conservation of judicial resources, at both the appellate and trial levels.” (Emphasis added; internal quotation marks omitted.) Cavaliere v. Olmsted, 98 Conn. App. 343, 347, 909 A.2d 52 (2006). “Where two or more counts have been alleged in a complaint . . . the defendant has the right to save himself from the implication of a general verdict by seeking from the jury answers to apt and proper interrogatories.” (Internal quotation marks omitted.) Hackling v. Casbro Construction of Rhode Island, 67 Conn. App. 286, 296, 786 A.2d 1214 (2001).

As previously noted, Stuart Cohn did not request that interrogatories be submitted to the jury. As to him, the jury returned a general verdict finding in favor of the plaintiff. We must presume, therefore, that the jury found eveiy issue for the plaintiff. See, e.g., Cuartas v. Greenwich, 14 Conn. App. 370, 372, 540 A.2d 1071, cert. denied, 209 Conn. 803, 548 A.2d 436 (1988). The question is whether the juiy’s verdict was inconsistent as to the plaintiff’s allegations, which included two tort claims. In order to prevail on those claims, the plaintiff needed to prove duty, breach, proximate cause and damages. See, e.g., Angiolillo v. Buckmiller, 102 Conn. App. 697, 711, 927 A.2d 312, cert. denied, 284 Conn. 927, 934 A.2d 243 (2007). The court so instructed the jury. The jury, despite finding every issue for the plaintiff, awarded her neither economic nor noneconomic damages.

“[T]he decision to set aside the verdict entails the exercise of a broad legal discretion that, in the absence of clear abuse, we shall not disturb. ... In our review of the exercise of this discretion, we accord great weight to the trial court’s decision ... so long as the trial court’s exercise of its discretion does not infringe on the constitutional rights of the litigants to have issues of fact determined by a jury. . . . This right is an obviously immovable limitation on the legal discretion of the court to set aside a verdict . . . .” (Citations omitted; internal quotation marks omitted.) Ginsberg v. Fusaro, 225 Conn. 420, 425, 623 A.2d 1014 (1993).

“[T]he role of the trial court on a motion to set aside the jury’s verdict is not to sit as a seventh juror, but, rather, to decide whether, viewing the evidence in the light most favorable to the prevailing party, the jury could reasonably have reached the verdict that it did.” (Internal quotation marks omitted.) Purzycki v. Fair-field, 44 Conn. App. 359, 362, 689 A.2d 504 (1997), rev’d on other grounds, 244 Conn. 101, 708 A.2d 937 (1998). “A verdict is not defective as a matter of law as long as it contains an intelligible finding so that its meaning is clear. ... A verdict will be deemed intelligible if it clearly manifests the intent of the jury.” (Citation omitted; internal quotation marks omitted.) Tisdale v. Riverside Cemetery Assn., 78 Conn. App. 250, 257, 826 A.2d 232, cert. denied, 266 Conn. 909, 832 A.2d 74 (2003). “[A] verdict finding the issues for the party seeking to recover damages but awarding zero damages [is] inherently ambiguous.” Ginsberg v. Fusaro, supra, 225 Conn. 425.

In this case, the jury found in favor of the plaintiff but awarded her zero damages. “An explicitly stated award of zero damages differs from an award of nominal damages. A plaintiffs verdict with a nominal damage award ordinarily suggests that the jury found that despite the defendant’s liability, the plaintiff failed to prove damages. . . . The jury’s intent in rendering a plaintiffs verdict with zero damages ... is far less clear.” (Citations omitted; emphasis in original.) Malmberg v. Lopez, 208 Conn. 675, 681-82, 546 A.2d 264 (1988).

“[T]he amount of a damage award is a matter peculiarly within the province of the trier of fact . . . and [i]f, on the evidence, the jury could reasonably have decided as [it] did, [the reviewing court] will not find error in the trial court’s acceptance of the verdict .... The trial court’s decision is significant because the trial judge has had the same opportunity as the jury to view the witnesses, to assess their credibility and to determine the weight that should be given to their evidence. Moreover, the trial judge can gauge the tenor of the trial, as we, on the written record, cannot, and can detect those factors, if any, that could improperly have influenced the jury. . . . Our task is to determine whether the total damages awarded falls somewhere within the necessarily uncertain limits of fair and reasonable compensation in the particular case.” (Citation omitted; internal quotation marks omitted.) Hughes v. Lamay, 89 Conn. App. 378, 384, 873 A.2d 1055, cert. denied, 275 Conn. 922, 883 A.2d 1244 (2005).

In considering the plaintiffs posttrial motion for additur, or in the alternative a motion to set aside the verdict, the court concluded that the jury had made a mistake by finding in favor of the plaintiff but awarding her zero damages. In analyzing the evidence presented at trial, the court found, as noted, that the plaintiff was not credible as to either liability or damages. See footnote 5. The court awarded the plaintiff a nominal additur, which the plaintiff rejected. We therefore conclude that the court properly set aside the verdict and ordered a new trial as to the issues of liability and damages because the verdict is inconsistent. See Malmberg v. Lopez, supra, 208 Conn. 681.

The judgment is affirmed.

In this opinion the other judges concurred.

       Rhoda Cohn died during the pendency of these appeals, and Betsey Henley Cohn and William C. G. Swift, Jr., executors of the estate of Rhoda Cohn, were substituted as defendants. See General Statutes § 52-599. In this opinion, we refer to them as the executors.

       Stuart Cohn filed two appeals. He first appealed to our Supreme Court, but realizing that such an appeal was improper, he filed an appeal in this court (AC 26858). Our Supreme Court transferred the appeal improperly filed there to this court, where it was renumbered (AC 27011). Stuart Cohn’s appeals have been consolidated and are redundant.

       Stuart Cohn’s appeals were filed pursuant to General Statutes § 52-263, which provides that an appeal may be filed after a trial court’s granting of a motion to set aside a verdict.

       The plaintiff withdrew the claims against Bergman prior to trial and presented no evidence against the trust at trial. Bergman and the trust are not parties to these appeals. In this opinion, we refer to Rhoda Cohn and Stuart Cohn as the defendants.

       In ruling on the plaintiffs posttrial motions, the court stated that it concurred with the jury’s verdict as to damages “based on its own observations of the trial and evaluation of the witnesses. In general, the court did not find the plaintiff to be a credible witness, either on liability or damages.”

       During trial, the plaintiffs counsel conceded that that there was no long-term lease for the condominium. The evidence at trial demonstrated that the plaintiff had a month-to-month lease to reside in a portion of the condominium and that Stuart Cohn maintained possession and control over the remainder of the condominium. In the summer of 1999, Stuart Cohn permitted family friends, who happen to be African-American, to live in the condominium during a heat wave because they had no air conditioning. The summary process action brought by Rhoda Cohn was dismissed. Thereafter, Stuart Cohn brought a summary process action against the plaintiff, which was resolved by way of a negotiated settlement.
      The jury also heard evidence that the trustees decided to sell the condominium because it was too large and expensive for the family’s needs at the time. Rhoda Cohn sought to evict the plaintiff in order to make the condominium saleable but told the plaintiff that she was free to purchase it. The plaintiff did not have the means to do so. The plaintiff claimed that Stuart Cohn took her dog from her, but the police report indicates that Stuart Cohn called the police because the dog was without food and water.
      There was evidence that the plaintiff had significant financial problems, a celibate marriage to a Roman Catholic priest, had been shot at while leaving the Yale Law School and had been run off an interstate highway, either Interstate 84 or Interstate 91. It was unclear whether she was accusing an assistant attorney general for the state of Maryland with respect to the gunshots and traffic incident. Stuart Cohn testified that at times he did not use good judgment with respect to the plaintiff but that he never threatened her, tampered with her possessions or damaged her equipment, and he denied her other allegations of wrongdoing. Moreover, the plaintiffs psychiatrists questioned her veracity, openness and candor. In its memorandum of decision regarding the posttrial motions, the court referred to the plaintiffs testimony about “a multitude of stressful and sometimes traumatic events in her life, all of which were independent of [Stuart Cohn’s] conduct . . . .”

       The line containing count three had been crossed out.

       No party claims that it was improper for the court to instruct the jury to return for further deliberations. See Practice Book § 16-17.

       Stuart Cohn did not object to the additur.

       Rhoda Cohn alleged by way of a second special defense to the second count of the plaintiffs complaint: “The decision to initiate and the manner in which the Summary Process Actions were pursued in good faith and based upon the legal advice of counsel and the undersigned defendants had no reason to believe such advice was biased or improper in any way or manner.”

       The plaintiff notes that the substance of the charge given was correct legally.

       See footnote 1.

       At the conclusion of the presentation of evidence, the court asked counsel if motions for directed verdicts were being considered. There was an agreement between the parties not to pursue motions for a directed verdict.

       This court repeatedly has stated that plain error is not a rule of review-ability but a rule of reversal reserved for those cases in which the trial court’s error is so obvious that it affects the integrity of and the public’s confidence in the judicial system. See State v. Smith, 275 Conn. 205, 239-40, 881 A.2d 160 (2005). The situation presented here is not one of those cases.

       In her reply brief, the plaintiff made several arguments in an effort to demonstrate that the claim, in fact, had been preserved at trial. Her arguments are fact based, and their novel positions are not supported by citation to legal authority. First, the plaintiff argued that this court should overlook her failure to raise plain error in her principal brief because her appellate counsel was not trial counsel, and the case on which her claim is founded was not decided until after judgment in this case was rendered. Counsel is presumed to be qualified for the representation undertaken.
      The plaintiff further argued that it was not necessary for trial counsel to do more than what he did to preserve the issue regarding the advice of counsel instruction for appellate review. In the supplemental request to charge she filed after Stuart Cohn requested that the court give an instruction on the advice of counsel special defense, the plaintiff asked the court to give an instruction on vexatious litigation. She requested that the court charge that “[o]nce you have determined that the plaintiff has met her burden of proof on the Vexatious Litigation Claim, you may then move on to the issue of damages.” She concedes that “[n]otably absent is the statement ‘and the advice of counsel defense is inapplicable.’ ” The supplemental request to charge, the plaintiff argues, was sufficient to preserve the issue for review. The argument overlooks the purpose of a request to charge. See Practice Book § 16-23.
      The plaintiffs claim on appeal is that there was insufficient evidence to warrant the court’s instructing the jury on the advice of counsel special defense. In order to preserve that claim, the plaintiff had to bring it to the court’s attention by either objecting to an instruction requested by the opposing party or by objecting to the instruction given by the court immediately after it was given. This permits the court to review the charge and make modifications, if necessary, in order to avoid instructional error. This policy reason also underscores why her claim of instructional error was not preserved by the motion to set aside the verdict as to Rhoda Cohn in which the plaintiff stated “[tjhere was no evidence in support of the special defense of [advice] of counsel because there was no reliance.”
      Moreover, a charge on a point of law is to be given if there is sufficient evidence to warrant it. See, e.g., State v. Montanez, 277 Conn. 735, 747-48, 894 A.2d 928 (2006). In her brief, the plaintiff has not argued that there was no evidence on the advice of counsel special defense. Indeed, the record reflects that Rhoda Cohn and Stuart Margolis, the attorney who represented her in the summary process action, both testified about the matter. The substance of the plaintiff’s claim, therefore, is not that the court’s instruction was not warranted but that she disagrees with the weight of the evidence. A weight of the evidence argument as to whether an instruction was warranted, however, is not one that will support a claim that the court improperly instructed the jury.

       In its principal charge to the jury, the court gave the following instruction with regard to the verdict forms: “There is a plaintiffs verdict form and a defendant’s verdict form in the case against Rhoda Cohn and the same in the case against Stuart Cohn. The process is almost self-explanatory. In the event that, after your deliberations, you find liability against both defendants on any of the counts, you should fill out both plaintiff’s verdict forms. In the event that you find liability against one defendant on any of the counts but not the other defendant, you should fill out one plaintiffs verdict form and one defendant’s verdict form, as applicable. In the event that you find no liability against either defendant on any of the counts, you should fill out both defendants’ verdict forms. When you return to. court with a verdict, you will be asked to hand the clerk the two verdict forms that you have filled out.”

       Immediately after the jury was excused, the following colloquy occurred between the court and counsel:
      “[The Plaintiffs Counsel]: I think nominal damages have to be addressed either by the court or by the jury. . . .
      “[The Defendants’ Counsel]: ... I believe that the jury rendered its fair verdict—and I think it could be understood that counsel wants to ask His Honor for a nominal award. I have no objection to that, obviously.
      “The Court: With his asking or with the court awarding.
      “[The Defendants’ Counsel]: With his asking or with the court’s awarding. .. .
      “The Court: So, I’ll entertain a motion for nominal damages from the plaintiff and consider it.”
      The plaintiff, thereafter, filed a motion to set aside the verdict as to Rhoda Cohn on the ground that the verdict was against the weight of the evidence.

       We also note that the basis of the claim raised on appeal was not addressed in the plaintiffs posttrial motion to set aside the verdict, which was predicated on an insufficiency of the evidence claim. In denying that motion, the court, which was present throughout trial, found that the evidence amply supported the jury’s verdict as to Rhoda Cohn.

       The amounts were handwritten onto the verdict form.

       The court’s memorandum of decision contains the following footnote: “From the note at the bottom of the first set of jury verdicts, it is arguable that the jury rested its findings of liability on specifications (a) and (d) of both the infliction of harm counts. In specification (a), the plaintiff alleged that [Stuart Cohn] made ‘threats to kill and/or harm the plaintiff, including a threat in March, 1998, by Stuart Cohn to the plaintiff that ‘[y]ou’re dead.’ In specification (d), the plaintiff alleged that [Stuart Cohn] had committed a ‘theft of the plaintiffs dog in October, 1998, and November, 1999.’ ”

       Practice Book § 16-18 provides: “The judicial authority may submit to the jury written interrogatories for the purpose of explaining or limiting a general verdict, which shall be answered and delivered to the clerk as a part of the verdict. The clerk will take the verdict and then the answers to the several interrogatories, and thereafter the clerk will take the judicial authority’s acceptance of the verdict returned and the questions as answered, and proceed according to the usual practice. The judicial authority will not accept a verdict until the interrogatories which are essential to the verdict have been answered.”


source: Caselaw Access Project

author: FLYNN, C. J.

license: Public Domain

text:
    STATE OF CONNECTICUT v. KEENAN CORLEY
    (AC 27647)
    Flynn, C. J., and Lavine and Beach, Js.
    Argued January 8
    officially released April 1, 2008

      Raymond L. Durelli, special public defender, for the appellant (defendant).

      Frederick W. Fawcett, supervisory assistant state’s attorney, with whom, on the brief, were Jonathan C. Benedict, state’s attorney, and C. Robert Satti, Jr., senior assistant state’s attorney, for the appellee (state).
   Opinion

FLYNN, C. J.

The defendant, Keenan Corley, 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) (2), assault in the first degree in violation of General Statutes § 53a-59 (a) (5), conspiracy to commit robbery in the first degree in violation of General Statutes §§ 53a-48 and 53a-134 (a) (2), and carrying a pistol without a permit in violation of General Statutes § 29-35 (a). On appeal, the defendant claims that the court improperly (1) denied him the right to a unanimous jury verdict on the charge of robbery in the first degree by instructing the jury on three distinct theories of criminal liability and (2) rejected his offers of proof on third party culpability. The state concedes that the defendant is entitled to a new trial on the charge of robbery in the first degree because the court improperly charged the jury on various theories of criminal liability related to that charge. We agree with the parties that the conviction of robbery in the first degree must be reversed and a new trial ordered on that count, but we disagree with the defendant’s remaining claim. We therefore affirm in part and reverse in part the judgment of the trial court.

The following facts are relevant to our resolution of the defendant’s claims on appeal. On the night of April 23, 2004, Wilson Morel was working in the Guayama Market in Bridgeport, which was owned by his brother, when two masked men entered the market. Both men were wearing black clothing. One of the men, whose voice Morel recognized as being the defendant’s, put a gun to Morel’s head and demanded that he not move. The defendant instructed Morel to turn over everything that he had in his pants pockets. Morel did not comply, and the defendant removed a chain from Morel’s neck. The second man took approximately $800 from the store cash register, and both men ran from the store. Another employee, Elizer Meran, attempted to grab one of the men, but he was unsuccessful. Carlos Soler, a customer in the store at the time of the robbery, saw both men leave the store, and both he and Meran attempted to chase the men. They both saw these men enter a black Acura Integra with a “for sale” sign affixed to it. Meran was able to see part of the license plate, which included the numbers 204. Soler also saw Lius Lainez sitting in a parked car outside of the market, and he told Lainez that the market had just been robbed. Lainez attempted to drive in front of the Acura. The defendant removed his mask and fired two to three gunshots. One of the bullets went through the windshield of Lainez’ automobile and struck Lainez in his left shoulder. The defendant and the other robber then drove away from the scene.

After an investigation, the police arrested the defendant, and he was charged with two counts of robbery in the first degree in violation of § 53a-134 (a) (2), two counts of attempt to commit assault in the first degree in violation of General Statutes §§ 53a-49 and 53a-59 (a) (1), and one count of assault in the first degree in violation of § 53a-59 (a) (5), one count of conspiracy to commit robbery in the first degree in violation of §§ 53a-48 and 53a-134 (a) (2) and one count of carrying a pistol without a permit in violation of § 29-35 (a). Following a trial by jury, the defendant was convicted of one count each of robbeiy in the first degree, assault in the first degree, conspiracy to commit robbery in the first degree and carrying a pistol without a permit. The court sentenced the defendant to a total effective sentence of twenty years imprisonment, with five years of special parole. This appeal followed.

I

The defendant claims that the court’s instructions regarding robbery in the first degree allowed for a non-unanimous verdict in that the court instructed the jury that he could be found guilty of robbery in the first degree either as a principal, as an accessory or as a coconspirator. The state concedes that the defendant is entitled to prevail on his claim because the court’s instruction in this case virtually was identical to the instruction found improper by our Supreme Court in State v. Martinez, 278 Conn. 598, 900 A.2d 485 (2006), which held that “accessory liability and coconspiratorial liability, although both relat[ed] to vicarious liability principles generally, are conceptually distinct ways to commit a crime.” Id., 618. We conclude that Martinez governs this situation and that further discussion of our Supreme Court’s clear holding would simply “gild the lily” and would serve no useful purpose here. Cf. State v. Samuel, 94 Conn. App. 715, 721, 894 A.2d 363, cert. denied, 278 Conn. 911, 899 A.2d 39 (2006). Accordingly, the defendant’s conviction of robbery in the first degree must be reversed and a new trial ordered on that charge.

II

The defendant next claims that he is entitled to a new trial on all charges because the court violated his right to put on a defense when it improperly rejected his offers of proof demonstrating third party culpability. The defendant argues that the testimony about third party culpability that he sought to introduce, although highly circumstantial in nature, was not speculative and, therefore, should have been admitted. We disagree.

We first set forth the standards governing the admissibility of third party culpability evidence. “It is well established that a defendant has a right to introduce evidence that indicates that someone other than the defendant committed the crime with which the defendant has been charged. . . . The defendant must, however, present evidence that directly connects a third party to the crime. ... It is not enough to show that another had the motive to commit the crime . . . nor is it enough to raise a bare suspicion that some other person may have committed the crime of which the defendant is accused. . . . The admissibility of evidence of third party culpability is governed by the rules relating to relevancy. . . . Relevant evidence is evidence having any tendency to make the existence of any fact that is material to the determination of the proceeding more probable or less probable than it would be without the evidence. . . . Accordingly, in explaining the requirement that the proffered evidence establish a direct connection to a third party, rather than raise merely a bare suspicion regarding a third party, we have stated: Such evidence is relevant, exculpatory evidence, rather than merely tenuous evidence of third party culpability [introduced by a defendant] in an attempt to divert from himself the evidence of guilt. ... In other words, evidence that establishes a direct connection between a third party and the charged offense is relevant to the central question before the jury, namely, whether a reasonable doubt exists as to whether the defendant committed the offense. Evidence that would raise only a bare suspicion that a third party, rather than the defendant, committed the charged offense would not be relevant to the juiy’s determination. A trial court’s decision, therefore, that third party culpability evidence proffered by the defendant is admissible, necessarily entails a determination that the proffered evidence is relevant to the jury’s determination of whether a reasonable doubt exists as to the defendant’s guilt.” (Citations omitted; internal quotation marks omitted.) State v. Arroyo, 284 Conn. 597, 609-10, 935 A.2d 975 (2007).

Out of the presence of the jury, as to his offer of proof on his third party culpability claim, the defendant presented to the court the testimony of two individuals, Hafi Edge and David Hackney. Edge testified that in April or May, 2004, he, Hackney and two female friends were in Edge’s apartment at approximately 10:30 p.m. when Iroquois Alston and another male, whom Edge did not know, entered the apartment carrying a bag full of Bacardi rum bottles. Edge asked Alston where he had gotten so much rum, and Alston responded that they had just done a “jux.” Alston was wearing a black do-rag and a black Mecca hoodie, and the other male was wearing a red do-rag and a red Mecca hoodie. Edge described Alston as a dark black male, between five feet, eight inches tall and five feet, nine inches tall, stocky with shoulder length dreadlocks, a beard and a mustache. He described the other male as dark, approximately six feet tall, with short twists or braids in his hair.

Approximately one hour after Alston and the other male arrived, the defendant also arrived at Edge’s apartment. He was driving his old, green automobile, with the number “88” on the side of it. After visiting for a while, Alston and the other male left the apartment, asking Edge if it was okay for them to leave behind their hoodies, to which Edge responded affirmatively. They also left without taking the automobile in which they had arrived, a black Acura, owned by someone known as “Pretty Rick. ” Edge also stated that the last he knew, Alston was in jail for some other crime. Hackney testified that he was at Edge’s apartment when Alston and another male, whom Hackney did not know, arrived one night “last year” and that Alston and the other male left their hoodies behind at Edge’s apartment when they left that evening.

The defendant argues that he “attempted to introduce the evidence that on the evening in question, two individuals arrived at Edge’s apartment carrying a bag of Bacardi rum, the two individuals matched the description given by one of the witnesses at the Guayama Market, both individuals were wearing similar clothing to that described by the witnesses at the market and the two individuals were driving the same make, model and color of the vehicle used by the individuals to rob the market. The excluded evidence deprived the defendant of the benefit of a ‘pro defense’ inference suggesting that he was not guilty as charged.” He further argues that “Edge’s testimony, and to a lesser degree Hackney’s testimony, clearly connected Alston and his companion to the crime with sufficient directness to satisfy the rules of relevancy.” We disagree.

In assessing the defendant’s offer of proof, although rejecting it primarily on the ground that Edge’s testimony was not admissible as a declaration against the penal interests of the declarant, the court also stated in relevant part: “According to the witness, Mr. Edge, [Alston] wanted to celebrate a recent robbery with a bottle of Bacardi. Also, according to the witness, Mr. Edge, the defendant . . . later joined the group at [Edge’s] apartment. [Alston] and the second person asked to leave their hoodies at the apartment. [Alston] allegedly . . . drove a black Acura owned by Rick to the apartment .... There was no date given for this meeting, only April or May. There was no evidence that it was a Guayama Market. The date is uncertain and the venue is unidentifiable . . . .” The court also held in relation to Hackney’s testimony that it did not “see any relevance to [the testimony] as far as the culpability of third parties is concerned. [The testimony] does not even really . . . raise itself to the level of mere suspicion.” We agree that this offer of proof merely was speculative, and, therefore, the evidence was inadmissible.

Although evidence of a strong physical resemblance between the defendant and a third party, whom the defendant alleges to be responsible for the crimes with which the defendant has been charged, can be highly relevant; see State v. Echols, 203 Conn. 385, 394, 524 A.2d 1143 (1987); a defendant proposing such third party culpability evidence must demonstrate that the evidence is corroborative rather than merely coincidental for it to be admissible. See State v. Baker, 50 Conn. App. 268, 279, 718 A.2d 450 (“[u]nless [a] direct connection exists it is within the sound discretion of the trial court to refuse to admit such evidence when it simply affords a possible ground of possible suspicion against another person” [internal quotation marks omitted]), cert. denied, 247 Conn. 937, 722 A.2d 1216 (1998).

Here, although the proposed evidence may have shown that Alston bore a physical resemblance to the defendant, there was no evidence that Alston and the other male were involved in the events that took place at the Guayama Market on the night of April 23, 2004. Edge had little recollection of the date that Alston and the other male came to his home with the full bag containing bottles of rum other than that it was, “like, between April or May, not later.” Edge also testified on cross-examination, however, that “[i]t was hot outside . . . where you didn’t have to wear no hoodies and sweaters.” Hackney merely stated that it was some time “last year.” As for the black Acura, Edge testified that Alston and the other male arrived in that vehicle and left it there for “[e]xactly” three days.

We conclude that the evidence proffered by the defendant in support of his third party culpability claim did nothing more than raise a mere suspicion that Alston and the other male might have been involved. The defendant failed to provide a direct connection between these men and the commission of the charged crimes. “Evidence that would raise only a bare suspicion that a third party, rather than the defendant, committed the charged offense would not be relevant to the jury’s determination.” State v. Arroyo, supra, 284 Conn. 610. Accordingly, we conclude that the court did not abuse its discretion in excluding the proffered evidence.

The judgment is reversed as to the conviction of robbery in the first degree and the case is remanded for a new trial on that charge. The judgment is affirmed in all other respects.

In this opinion the other judges concurred.

       The defendant specifically withdrew his remaining claims at oral argument, thus permitting us to concentrate on his well argued and strongest appellate issues.

       At oral argument, supervisory assistant state’s attorney Frederick W. Fawcett explained that our Supreme Court in State v. Martinez, 278 Conn. 598, 900 A.2d 485 (2006), which was decided after the trial of the defendant in the present case, held that it is improper for a trial court to give the jury an instruction that expressly sanctions a nonunanimous verdict on conceptually distinct theories of liability. He concedes that the instruction in this case virtually was identical to the instruction in Martinez.

        Attorney Fawcett, who argued the Martinez case before the Supreme Court, very eloquently informed us that as he was arguing that case on behalf of the state, “[he] saw that cloud of defeat come over [him] as [he] looked up at the ceiling and saw that . . . beautiful painting up there, sort of, covered by that cloud of defeat. Which does happen occasionally.” We take this time to commend the state for being forthright with regard to this issue. Its concession serves the ends of justice and obviates the need for this court to address at length this claim in which the decision of our highest court must guide us.

       Edge explained that a “jux” is a street term for robbery.

       Edge also testified that a couple of weeks later, Alston admitted to him that he and the other male, who had gone to Edge’s apartment, were responsible for the crimes for which the defendant had been charged and that Alston was trying to raise some money to pay the defendant’s bond. The defendant concedes that the statements allegedly made to Edge by Alston would not have been admissible, as they are hearsay. He therefore makes no claim related to this portion of Edge’s testimony.

       We also note that at trial, Officer Clive Higgins of the Bridgeport police department testified that ablack Acura, bearing license plate number 204TAV was parked at 102 Horace Street in Bridgeport the day after the robbery. Inside this vehicle was a for sale sign bearing a telephone number and the name Ricky. The defendant also went to 102 Horace Street the day after the robbery. Officer Jason Amato, also of the Bridgeport police department, testified that he remembered seeing this Acura three times and that every time he saw it, the defendant had been a passenger in it. Amato also remembered that the last two times he saw the Acura, there was a for sale sign on it.
      In this case, there also were two eyewitnesses. Morel, who was familiar with the defendant, testified that although he could not see the robbers’ faces, he recognized the defendant’s voice. He also testified that both robbers were wearing black hoodies. Lainez testified that although he initially declined to identify the defendant from a photographic array and told the police that he could not identify the suspects, he did so “because [he] didn’t want any problems.” Lainez further testified that he, in fact, did know who the suspect was. He then identified the defendant as one of the suspects. He also testified that both men were wearing black hoodies.


text:
    CITY OF NEW HAVEN v. AFSCME, COUNCIL 15, LOCAL 530
    (AC 28321)
    Flynn, C. J., and McLachlan and Beach, Js.

      Argued January 8
    officially released April 1, 2008

      Patricia A. Cofrancesco, with whom, on the brief, was Kenneth DeLorenzo, for the appellant (defendant).

      Laoise King, assistant corporation counsel, for the appellee (plaintiff).
   Opinion

FLYNN, C. J.

The issue raised in this appeal is whether the trial court properly granted an application to vacate an arbitration award sustaining a grievance by a New Haven police officer. The defendant, AFSCME, Council 15, Local 530, appeals from the judgment of the trial court denying its motion to confirm the arbitration award and granting the application of the plaintiff, the city of New Haven, to vacate the award. On appeal, the defendant claims that in vacating the award, the court improperly concluded that the arbitrator exceeded his authority in rendering the award. We agree with the defendant and reverse the judgment of the trial court.

The following facts and procedural history are relevant to our resolution of the appeal. The plaintiff and the defendant are parties to a collective bargaining agreement that covers the period from July 1, 2004, to June 30, 2008. On November 8, 2004, Elliot Rosa, a patrol officer with the New Haven police department and the union member on whose behalf the defendant commenced the present action, was attacked in an elevator by an assailant wielding a knife. Rosa drew his service weapon and shot and killed the assailant. This incident, which occurred at about the same time as other fatal shootings involving New Haven police officers, spurred a great deal of negative publicity that was directed at the police department and at Rosa.

Immediately after the incident, New Haven police Chief Francesco Ortiz removed Rosa from his assignment as a patrol officer. Rosa was placed on administrative duty, which, unlike the position of a patrol officer, does not present an opportunity for an officer to earn additional income by working overtime hours and extra duty assignments. After receiving assistance from various state agencies, including the state police, Michael Dearington, the state’s attorney for the judicial district of New Haven, issued a detailed and comprehensive report to the chief state’s attorney about the events of November 8, 2004. In the report, Dearington concluded that Rosa’s use of deadly force in causing the victim’s death was both reasonable and justified, and Rosa was exonerated of any wrongdoing.

In June, 2005, Charles A. Opsahl, a clinical psychologist, conducted a fitness for duty evaluation of Rosa. In his July 8, 2005 report, Opsahl stated, inter alia, that “Rosa is ready to resume the duties of a police officer with strong recommendation that he return to some type of psychological counseling . . . .” After Opsahl’s fitness for duty evaluation, Rosa refused to participate in counseling, and Ortiz did not permit Rosa to resume his assignment as a patrol officer, keeping him instead on administrative duty.

The defendant filed a grievance on behalf of Rosa following Ortiz’ continued refusal to assign Rosa to patrol duty. In accordance with the collective bargaining agreement, the defendant pursued the remedies available through the plaintiffs grievance procedures. The parties failed to resolve the dispute, and, as a result, the matter proceeded to arbitration. In December, 2005, an arbitration hearing was conducted. Because the parties were unable to agree on a submission, they decided to empower the arbitrator to frame this issue. The arbitrator then framed the issue as follows: “What shall be the disposition of this grievance?” In their post-hearing arbitration briefs, the plaintiff and the defendant agreed on this statement of the issue.

On March 31, 2006, the arbitrator made various findings, concluding that the plaintiff violated article nineteen, the management rights clause of the collective bargaining agreement. Specifically, the arbitrator determined that the plaintiff unreasonably had exercised its management rights in violation of article nineteen “by continuing Elliot Rosa on Administrative Duty (including continuation of his ineligibility for overtime and Extra Duty work) beyond July 8, 2005,” the date on which Opsahl issued his fitness for duty report. The arbitrator issued the following remedy: “(1) Upon receipt of this award the [plaintiff] shall remove Rosa from Administrative Duty and assign him to his regular patrol duties including his normal schedule and restore his eligibility for overtime and extra duty. (2) Retroactive to July 8,2005 the [plaintiff] shall pay to Rosa $1,667 per month back pay, prorated for any partial month.”

On April 28, 2006, the plaintiff filed an application in the trial court to vacate the arbitration award. See General Statutes § 52-418. Thereafter, the defendant filed a motion to confirm the award. See General Statutes § 52-417. Following a hearing, the court issued a memorandum of decision vacating the arbitration award on the ground that the arbitrator exceeded his authority in finding a violation of article nineteen of the collective bargaining agreement. The court determined that the arbitrator improperly had encroached on the exclusive right of management to assign work and that “[e]venifthe [plaintiffs] decision was ultimately unwise or overly cautious, it was a determination entirely within the discretion of the management of the police department.” The court also denied the defendant’s motion to confirm the award. This appeal followed.

We begin by setting forth our well established standard of review of arbitration awards. “Judicial review of arbitral decisions is narrowly confined.” Stratford v. International Assn. of Firefighters, AFL-CIO, Local 998, 248 Conn. 108, 114, 728 A.2d 1063 (1999). When the submission to an arbitrator is unrestricted, as is the case before us, “the resulting award is not subject to de novo review even for errors of law so long as the award conforms to the submission. . . . Because we favor arbitration as a means of settling private disputes, we undertake judicial review of arbitration awards in a manner designed to minimize interference with an efficient and economical system of alternative dispute resolution. . . .

“Where the submission does not otherwise state, the [arbitrator is] empowered to decide factual and legal questions and an award cannot be vacated on the grounds that . . . the interpretation of the agreement by the [arbitrator] was erroneous. Courts will not review the evidence nor, where the submission is unrestricted, will they review the [arbitrator’s] decision of the legal questions involved.” (Citation omitted; internal quotation marks omitted.) State v. New England Health Care Employees Union, District 1199, AFL-CIO, 265 Conn. 771, 777-78, 830 A.2d 729 (2003). “Furthermore, in applying this general rule of deference to an arbitrator’s award, [e]very reasonable presumption and intendment will be made in favor of the [arbitral] award and of the arbitrators’ acts and proceedings.” (Internal quotation marks omitted.) Board of Education v. Civil Service Employees Affiliates, Local 760, 88 Conn. App. 559, 566-67, 870 A.2d 473 (2005).

“Our deference to arbitral awards is, however, not unlimited. General Statutes § [52-418 (a) (4)] provides in relevant part that an arbitration award may be vacated ‘if the [arbitrator has] exceeded [his] powers or so imperfectly executed them that a mutual, final and definite award upon the subject matter submitted was not made.’ ” Id., 567. The first part of § 52-418 (a) (4) is implicated in the present case. “[I]n our construction of § 52-418 (a) (4), we have, as a general matter, looked to a comparison of the award with the submission to determine whether the [arbitrator has] exceeded [his] powers.” (Internal quotation marks omitted.) Harty v. Cantor Fitzgerald & Co., 275 Conn. 72, 84, 881 A.2d 139 (2005); see also State v. New England Health Care Employees Union, District 1199, AFL-CIO, supra, 265 Conn. 778.

The defendant claims that the court, in vacating the arbitration award, improperly exceeded its standard of review of the award. Specifically, the defendant argues that the court improperly substituted its interpretative judgment for that of the arbitrator and improperly reviewed the evidence and found facts. In contrast, the plaintiff asserts that the court properly granted its application to vacate the arbitration award because the arbitrator had exceeded the scope of his authority by ignoring and altering article nineteen of the collective bargaining agreement and by imposing “his own personal view of the situation substituting that view for the chiefs . . . .” We agree with the defendant.

In the present case, the arbitrator framed the issue as: “What shall be the disposition of this grievance?” The parties agreed to that statement of the issue. As we stated previously, the grievance at issue concerned Oritz’ refusal to return Rosa to patrol duty after the investigations of the fatal shooting had exonerated Rosa and after Opsahl had determined that Rosa was ready to resume his patrol duties. An unrestricted submission, such as this, empowered the arbitrator to decide all factual and legal questions concerning the submission. State v. New England Health Care Employees Union, District 1199, AFL-CIO, supra, 265 Conn. 780-81. The court’s review of the award, therefore, was limited to determining whether the award conformed to the submission. Id.

The arbitrator, pursuant to the submission, was required to decide the disposition of the grievance. In making that decision, the arbitrator interpreted article nineteen of the collective bargaining agreement, which concerned management’s right to assign work. The arbitrator determined that a limitation of reasonableness was implicit in article nineteen, and, therefore, management must exercise its right to assign work in a reasonable manner. See generally F. Elkouri & E. Elkouri, How Arbitration Works (6th Ed. 2003) c. 9, pp. 479-80. On the basis of this interpretation of article nineteen, the arbitrator, in reviewing the facts and evidence before him, concluded that Ortiz’ exercise of his right to assign work was unreasonable and that it violated article nineteen of the collective bargaining agreement.

In its decision vacating the arbitration award, the court, rather than determining whether the award conformed to the submission, provided an independent interpretation of article nineteen—an interpretation different from that of the arbitrator. In effect, the court did not agree with the arbitrator’s interpretation of the management rights clause as containing a limitation of reasonableness. Relying on its interpretative judgment, the court concluded that even if Ortiz’ decision not to return Rosa to patrol duty “was ultimately unwise or overly cautious, it was a determination entirely within the discretion of the management . . . .”

Contrary to the plaintiffs assertion, the arbitrator did not alter or ignore article nineteen. The court’s interpretation of article nineteen, namely, that management’s right to assign work was not limited by a standard of reasonableness but, rather, was unfettered, was an interpretation that the arbitrator considered but rejected. The arbitrator, in deciding the disposition of the grievance, interpreted that provision of the collective bargaining agreement and found that it was limited by the doctrine of reasonableness. See Local 391, Council 4, AFSCME v. Dept. of Correction, 76 Conn. App. 15, 19, 817 A.2d 1279 (2003) (“Merely because an arbitral decision is not based on the express terms of a collective bargaining agreement does not mean that it is not properly derived from the agreement. An arbitrator is entitled to take cognizance of contract principles and draw on them for guidance in construing an agreement.

. . . Neither a misapplication of principles of contractual interpretation nor an erroneous interpretation of the agreement in question constitutes grounds for vacatur.” [Internal quotation marks omitted.]).

It is clear that the plaintiff and the court disagreed with the arbitrator’s interpretation of the management rights clause of the collective bargaining agreement. However, it is the arbitrator’s judgment that was bargained for, and the court may not substitute its judgment for that of the arbitrator merely because its interpretation of the agreement or contract at issue might differ from that of the arbitrator. See State v. New England Health Care Employees Union, District 1199, AFL-CIO, supra, 265 Conn. 780. Accordingly, we conclude that the court improperly substituted its interpretation of article nineteen of the collective bargaining agreement for that of the arbitrator.

The judgment of the trial court is reversed and the case is remanded to that court with direction to confirm the arbitrator’s award.

In this opinion the other judges concurred.

       In May, 2005, Rosa was evaluated by Mark J. Kirschner, a clinical psychologist. Rosa, however, did not cooperate with Kirschner during the evaluation because Rosa’s attorney in a civil lawsuit had advised him not to discuss the November 8, 2004 incident with anyone. After the evaluation, Rosa’s attorney informed him that he could discuss the events of November 8, 2004, in a fitness for duty evaluation. The plaintiff and the defendant then agreed to let Rosa participate in another psychological evaluation, which was conducted by Opsahl.

       Article three, § 2, of the collective bargaining agreement provides: “A grievance shall be considered to be a dispute between an employee and/or the Union and the City, and/or any of its agents, servants, employees, officials, boards or commissions concerning the interpretation and application of any of the provisions of this Agreement, including the discharge, suspension, demotion or other discipline of an employee.”

       Article three, § 4, of the collective bargaining agreement provides in relevant part: “The Union and the City, on behalf of themselves and their agents, servants, employees, officials, boards and commissions, hereby empower and confer upon the Connecticut Board of Mediation and Arbitration and the American Arbitration Association Arbitrator the following powers and authority:
      “(a) To interpret and apply the provisions of this Agreement. . . .
      “(c) To award the grievance and/or the Union a remedy if it sustains the grievance.
      “(d) The Arbitrator(s) jurisdiction to make an award shall be limited by the submission and confined to the interpretation and/or application of the provisions of this Agreement. The Arbitrator(s) shall not have the jurisdiction to make an award which has the effect of amending, altering, enlarging or ignoring the provisions of this Agreement in effect at the time of the occurrence of the grievance being arbitrated, nor shall the Arbitrator(s) have jurisdiction to determine that the parties have amended or supplemented this Agreement, unless such amendment and/or supplemental agreement has, in fact, been made.”

       Article nineteen ol' the collective bargaining agreement provides: “Except where the right of the employer to direct the work force is specifically relinquished, modified, or abridged by the terms of this Agreement or the State of Connecticut Municipal Employee Relations Act, the City shall have and retain the exclusive right to exercise all functions of management including, but not limited to directing the activities of the Department, determining the levels of service and methods of operation and the introduction of new equipment, the right to hire, layoff, transfer and promote, to discharge and otherwise discipline employees for just cause, to determine work schedules and assign work.”

       We note that the plaintiff never challenged the arbitrability of the subject matter of the grievance.

       In its application to vacate the arbitration award, the plaintiff claimed that the arbitrator had exceeded his powers and that the award violated public policy. The court granted the plaintiffs application to vacate, concluding that the arbitrator had exceeded his authority. The court did not address the claim that the award was against public policy, and the parties did not address that issue on appeal.

       General Statutes § 52-418 (a) provides: “Upon the application of any party to an arbitration, the superior court for the judicial district in which one of the parties resides or, in a controversy concerning land, for the judicial district in which the land is situated or, when the court is not in session, any judge thereof, shall make an order vacating the award if it finds any of the following defects: (1) If the award has been procured by corruption, fraud or undue means; (2) if there has been evident partiality or corruption on the part of any arbitrator; (3) if the arbitrators have been guilty of misconduct in refusing to postpone the hearing upon sufficient cause shown or in refusing to hear evidence pertinent and material to the controversy or of any other action by which the rights of any party have been prejudiced; or (4) if the arbitrators have exceeded their powers or so imperfectly executed them that a mutual, final and definite award upon the subject matter submitted was not made.”

       General Statutes § 52-417 provides: “At any time within one year after an award has been rendered and the parties to the arbitration notified thereof, any party to the arbitration may make application to the superior court for the judicial district in which one of the parties resides or, in a controversy concerning land, for the judicial district in which the land is situated or, when the court is not in session, to any judge thereof, for an order confirming the award. The court or judge shall grant such an order confirming the award unless the award is vacated, modified or corrected as prescribed in sections 52-418 and 52-419.”

       The parties do not dispute that the submission was unrestricted.

       The court, in vacating the arbitration award, concluded that the arbitrator exceeded his authority. We recognize, however, that a claim that an arbitrator has exceeded his powers “may be established under § 52-418 in either one of two ways: (1) the award fails to conform to the submission, or, in other words, falls outside the scope of the submission; or (2) the [arbitrator] manifestly disregarded the law.” Harty v. Cantor Fitzgerald & Co., 275 Conn. 72, 85, 881 A.2d 139 (2005). The parties in the present case do not address the issue of whether the arbitrator exceeded his authority by manifestly disregarding the law. Accordingly, we confine our analysis to determining whether the court properly vacated the award on the ground that the arbitrator exceeded his authority in failing to conform the award to the submission.

       “Arbitration and judicial decisions often cite the implied covenant of good faith and fair dealing [and] the doctrine serves as little more than an interpretive tool to aid arbitrators and judges in their case-by-case determinations of breaches of collective bargaining agreements. Arbitrators frequently use the implied covenant of good faith and fair dealing .... when the issue being arbitrated involves . . . aspects of reserved management rights. Essentially, the implied covenant of good faith and fair dealing serves as a springboard for a case-by-case determination of reasonableness. Thus, the covenant serves as the basis for the proposition that managerial discretion must be exercised reasonably and discretionary management decisions will be reviewed to determine if they were arbitrary, capricious, or discriminatory.” F. Elkouri & E. Elkouri, supra, pp. 479-80.


author: ROBINSON, J.

text:
    STATE OF CONNECTICUT v. AUDREY R. LONGO
    (AC 27600)
    Bishop, Haiper and Robinson, Js.

      Argued January 16
    officially released April 1, 2008

      GuyP. Soares, with whom was Salvatore C. DePiano, for the appellant (defendant).

      Bruce R. Lockwood, assistant state’s attorney, with whom, on the brief, were Jonathan C. Benedict, state’s attorney, and Roslyn Fleisher, former senior assistant state’s attorney, for the appellee (state).
   Opinion

ROBINSON, J.

The defendant, Audrey R. Longo, appeals from the judgment of conviction, rendered after a juiy trial, of operating a motor vehicle while under the influence of intoxicating liquor or drugs in violation of General Statutes (Rev. to 2005) § 14-227a (a). On appeal, the defendant claims that the court improperly (1) denied her motion for a judgment of acquittal and (2) permitted the jury to consider certain expert testimony. We affirm the judgment of the trial court.

The jury reasonably could have found the following facts. On August 17, 2005, at approximately 1:17 a.m., Darin Pavlik, a Connecticut state police trooper, observed a motor vehicle on Route 8 in Trumbull weaving back and forth and coming out of the traffic lane on three occasions. Pavlik effectuated a traffic stop and requested the operator of the vehicle, the defendant, to provide her driver’s license, registration and paperwork. Pavlik observed that the defendant’s eyes were bloodshot and detected a strong odor of alcohol coming from the inside of the vehicle. He asked the defendant where she was coming from and whether she had had anything to drink. She stated that she had been at a restaurant in Fairfield and that she had consumed two glasses of wine. She also denied being under the influence of any medication.

Pavlik then conducted three standard roadside sobriety tests. The defendant failed all three tests. On the basis of the defendant’s performance on the three sobriety tests, Pavlik placed her under arrest. He returned to the state police barracks with the defendant and observed her for a period of fifteen minutes. During questioning, the defendant stated that she had started drinking at 9:15 p.m., had two vodka drinks and was returning from a restaurant in Bridgeport

The defendant then agreed to take a breath test on the Intoxilyzer 5000. Her first test, conducted approximately fifty-eight minutes after Pavlik had stopped her, reported a blood alcohol content of 0.159 percent. The defendant subsequently took a second breath test with a result of 0.143 percent.

The state charged the defendant with violating subdivisions (1) and (2) of § 14-227a (a). The jury found the defendant guilty with respect to both subdivisions. Following this verdict, the court stated: “The defendant has now been convicted of two counts of operating under the influence. The court is of the opinion that those two counts merge for purposes of sentencing into a single count. I don’t believe there is any disagreement with counsel of that issue?” Both the prosecutor and defense counsel acknowledged on the record that they agreed with the court with respect to the merger of the two counts.

The court sentenced the defendant to a term of six months imprisonment, execution suspended, one year of probation with special conditions and a $1000 fine. This appeal followed. Additional facts will be set forth as necessary.

The defendant claims that the court improperly denied her motion for a judgment of acquittal. Specifically, she argues that the state “failed to provide any evidence or testimony as to whether the defendant had an elevated blood alcohol content by weight. The only evidence of elevated blood alcohol was presented by the state in the form of volume and not weight as required by the statute.” (Emphasis in original.) As a corollary to this claim, the defendant also maintains that the court’s failure to grant her motion for a judgment of acquittal allowed the jury impermissibly to consider the testimony from the state’s toxicologist regarding the result of the Intoxilyzer tests.

Even if we assume arguendo that the defendant’s argument is valid with respect to the sufficiency of the evidence as to the “per se” subdivision of § 14-227a (a), we conclude that, as a result of the merger of the convictions under both subdivisions, the defendant’s conviction with respect to the “behavioral” subdivision, (a) (1), remains valid and in effect. In other words, because the state presented sufficient evidence to demonstrate that the defendant had operated a motor vehicle while under the influence of intoxicating liquor in violation of § 14-227a (a) (1), we need not consider the defendant’s claim that the state failed to produce any evidence of an elevated blood alcohol content by weight. See State v. Pulaski, 71 Conn. App. 497, 505-506, 802 A.2d 233 (2002). Accordingly, we expressly decline to consider the defendant’s first issue on appeal.

We conclude that there was sufficient evidence to support the defendant’s conviction of violating § 14a-227a (a) (l). The jury heard evidence that Pavlik observed the defendant’s vehicle weaving out of a traffic lane on three occasions. The defendant’s eyes were bloodshot, and Pavlik detected a strong odor of alcohol coming from inside the defendant’s vehicle. The defendant initially told Pavlik that she had been coming from Fairfield and had two glasses of wine; later, she stated that she had been driving from Bridgeport and had consumed two vodka drinks. The defendant also failed three roadside sobriety tests administered by Pavlik. On the basis of this evidence, we conclude that there was sufficient evidence for the jury to find the defendant guilty of driving under the influence of liquor in violation of the behavioral subdivision of § 14-227a (a).

The defendant also claims that the court’s failure to grant her motion for a judgment of acquittal allowed the jury impermissibly to consider the testimony from the state’s toxicologist regarding the result of the Intoxilyzer tests in its assessment of the evidence regarding the second or behavioral count. She relies specifically on § 14-227a (c), which provides in relevant part: “In any prosecution for a violation of subdivision (1) of subsection (a) of this section, reliable evidence respecting the amount of alcohol in the defendant’s blood or urine at the time of the alleged offense, as shown by a chemical analysis of the defendant’s blood, breath or urine, otherwise admissible under subsection (b) of this section, shall be admissible only at the request of the defendant.” Although not stated clearly in the defendant’s brief, she appears to argue that the court improperly admitted into evidence her blood alcohol content as determined by the chemical analysis of her blood and that by not granting her motion for a judgment of acquittal, the jury was permitted to consider this evidence as to both counts. Thus, the defendant appears to claim that she was prejudiced by this scientific evidence, even though the court merged both counts. We conclude that this argument must fail for three reasons. First, the defendant failed to brief it adequately. Second, the claim is not preserved. Third, even if the issue had been briefed properly and preserved, it would fail on the merits.

The following additional facts are necessary for our discussion. Robert H. Powers, the director of controlled substances in the toxicology laboratory for the department of public safety testified on behalf of the state. Given the results of the defendant’s blood alcohol tests, Powers extrapolated her blood alcohol content to have been approximately 0.185 percent at the time she was operating her motor vehicle.

We begin by setting forth the applicable standard of review. “[0]ur standard of review for the trial court’s evidentiary rulings depends on whether the claimed error is of constitutional magnitude. . . . [I]f an [evidentiary] impropriety is of constitutional proportions, the state bears the burden of proving that the error was harmless beyond a reasonable doubt. . . . When an improper evidentiary ruling is not constitutional in nature, the defendant bears the burden of demonstrating that the error was harmful.” (Internal quotation marks omitted.) State v. Ramirez, 101 Conn. App. 283, 286-87, 921 A.2d 702, cert. denied, 283 Conn. 909, 928 A.2d 539 (2007), cert. denied, 552 U.S. 1109, 128 S. Ct. 895, 169 L. Ed. 2d 747 (2008); see also State v. Ortiz, 101 Conn. App. 411, 427, 922 A.2d 244, cert. denied, 283 Conn. 911, 928 A.2d 538 (2007).

The defendant has faded to brief which test applies for determining whether Power’s testimony was harmful. It is well established that “[w]e are not required to review issues that have been improperly presented to this court through an inadequate brief. . . . Analysis, rather than mere abstract assertion, is required in order to avoid abandoning an issue by failing to brief the issue properly.” (Internal quotation marks omitted.) State v. Blango, 103 Conn. App. 100, 116 n.11, 927 A.2d 964, cert. denied, 284 Conn. 919, 933 A.2d 721 (2007); see also State v. Klinger, 103 Conn. App. 163, 170, 927 A.2d 373 (2007).

Second, we note that the defendant failed to preserve this issue or request review pursuant to State v. Golding, 213 Conn. 233, 239-40, 567 A.2d 823 (1989), or the plain error doctrine embodied in Practice Book § 60-5. It is axiomatic that we do not consider unpreserved evidentiary claims. See State v. Epps, 105 Conn. App. 84, 98, 936 A.2d 701 (2007), cert. denied, 286 Conn. 903, 943 A.2d 1102 (2008). Further, we do not engage in a level of review, such as Golding or plain error, when it has not been requested by a party. See State v. Klinger, supra, 103 Conn. App. 169 (“[w]hen the parties have neither briefed nor argued plain error [or Golding review], we will not afford such review” [internal quotation marks omitted]).

Third, even if we were to consider the merits of the defendant’s argument, we would conclude that it is without merit. During its charge to the jury, the court stated: “A person is under the influence of an intoxicating liquor when, as a result of drinking such a beverage, that person’s mental, physical or nervous processes have become so affected that the person lacks to an appreciable degree the ability to function properly in relation to the operation of such person’s motor vehicle. Please note that with respect to this issue, and in deciding on your verdict as to [the behavioral count], you cannot consider the results of any chemical tests from the Intoxilyzer as evidence of the defendant’s guilt. That evidence was offered for a limited purpose only and is admissible only with respect to the allegations contained in [the per se count] of the information.” (Emphasis added.)

The court instructed the jury that it could consider and use the results of the chemical analysis of the defendant’s blood only with respect to the per se count. “[I]n the absence of an indication to the contrary, the jury is presumed to have followed [the trial court’s] curative instructions.” (Internal quotation marks omitted.) State v. Necaise, 97 Conn. App. 214, 225, 904 A.2d 245, cert. denied, 280 Conn. 942, 912 A.2d 478 (2006); see also State v. Howard, 88 Conn. App. 404, 418, 870 A.2d 8 (jury presumed to follow law as instructed by court), cert. denied, 275 Conn. 917, 883 A.2d 1250 (2005). We previously have concluded that appropriate limiting instructions regarding the use of chemical analysis serve as the proper safeguard in cases in which a defendant is charged with violating both subdivisions of § 14-227a (a). See State v. Gracia, 51 Conn. App. 4, 14-15, 719 A.2d 1196 (1998). Because the defendant has failed to demonstrate that the jury disobeyed the court’s clear and explicit limiting instruction, we would conclude that any error with respect to the per se count was harmless as to the conviction on the behavioral count.

The judgment is affirmed.

In this opinion the other judges concurred.

       General Statutes (Rev. to 2005) § 14-227a (a) provides in relevant part: “Operation while under the influence or while having an elevated blood alcohol content. No person shall operate a motor vehicle while under the influence of intoxicating liquor or any drug or both. A person commits the offense of operating a motor vehicle while under the influence of intoxicating liquor or any drug or both if such person operates a motor vehicle ... (1) while under the influence of intoxicating liquor or any drug or both, or (2) while such person has an elevated blood alcohol content. For the purposes of this section, ‘elevated blood alcohol content’ means a ratio of alcohol in the blood of such person that is eight-hundredths of one per cent or more of alcohol, by weight.”

       Pavlik testified that he conducted the horizontal gaze nystagmus test, the one leg stand test and the walk and turn test.

       Pavlik testified that the calibration and internal checks of the Intoxilyzer 5000 indicated that the machine was working properly at the time of the defendant’s breath tests.

       The state also charged the defendant with violating General Statutes § 14-236, which provides in relevant part: “When any highway has been divided into two or more clearly marked lanes for traffic, (1) a vehicle shall be driven as nearly as practicable entirely within a single lane and shall not be moved from such lane until the driver has ascertained that such movement can be made with safety . . . .” After the jury returned its verdict, the court found the defendant guilty of this traffic infraction. It then granted her an unconditional discharge as to that count.

       We previously have described General Statutes § 14-227a (a) (1) as the “behavioral” subdivision and § 14a-227a (a) (2) as the “per se” subdivision. See State v. Barber, 42 Conn. App. 589, 595, 681 A.2d 348 (1996); State v. Gilbert, 30 Conn. App. 428, 437, 620 A.2d 822 (1993), aff'd, 229 Conn. 228, 640 A.2d 61 (1994).

       In her brief, the defendant argues that aside from the testimony of the state’s toxicologist, “the state failed to provide any credible evidence that [her] physical or mental capabilities had been impaired to such a degree that she no longer had the ability to drive a vehicle with the cautious characteristic of a sober person of ordinary prudence under the same or similar circumstances.” We interpret this statement as a challenge to the sufficiency of the evidence with respect to the behavioral count of the information.
      During the trial, defense counsel conducted a spirited and strenuous attack on Pavlik’s testimony through cross-examination. Nevertheless, “[t]he determination of the credibility of a witness is solely the function of the jury. ... It is the trier of fact which determines the credibility of witnesses and the weight to be accorded their testimony.” (Citation omitted; internal quotation marks omitted.) State v. Iban C., 275 Conn. 624, 634, 881 A.2d 1005 (2005). In other words, it was for the jury, and not a court, to determine whether Pavlik’s testimony was credible.

       “Driving while under the influence of liquor means, under the law of Connecticut, that a driver had become so affected in his mental, physical or nervous processes that he lacked to an appreciable degree the ability to function properly in relation to the operation of his vehicle.” (Internal quotation marks omitted.) State v. Sunila, 98 Conn. App. 847, 852, 911 A.2d 773 (2006).

       It is undisputed that the defendant never requested that the results of the chemical analysis of her blood be admitted into evidence.

       The defendant did not raise an objection when Powers testified that the defendant’s blood alcohol content would have been approximately 0.185 percent at the time Pavlik stopped her vehicle. After the state rested, counsel for the defendant moved for a judgment of acquittal. The court denied this motion. Counsel then requested that the state be precluded from asking the defendant’s toxicologist “any questions regarding the weight of alcohol by volume or by weight because at this point it severely prejudices the outcome of this trial with this jury knowing that an appeal may be forthcoming on the second count.” The court declined to issue a “blanket prohibition against certain areas of inquiry” until the witness testified. The defendant ultimately did not offer the testimony of a toxicologist as her expert witness.