text:
    ANN B. LUNN v. CUMMINGS AND LOCKWOOD
    (AC 18523)
    Lavery, Schaller and Vertefeuille, Js.
    Argued September 20, 1999
    officially released January 18, 2000

      John R. Williams, for the appellant (plaintiff).

      Thomas J. Rechen, for the appellee (defendant).
   Opinion

LAVERY, J.

The plaintiff, Ann B. Lunn, appeals from the judgment of the trial court rendered on the granting of the defendant’s motion for summary judgment in this legal malpractice action. On appeal, the plaintiff claims that the trial court improperly determined that no jury could conclude that (1) she had commenced her cause of action within the time limitation of General Statutes § 52-584b and (2) the defendant’s negligence caused her to suffer damages. The defendant’s counterstatement of the issues raises two alternate bases on which to affirm the judgment. We need address only one of those grounds to resolve this appeal, specifically, whether a February 13, 1985 letter seeking approval to partition the real property at issue in this case constituted a “title certificate or opinion” within the meaning of § 52-584b. Because we hold, as a matter of law, that the letter is not a “title certificate or opinion” within the meaning of the statute, we affirm the judgment of the trial court.

The following facts and procedural history are relevant to our resolution of the plaintiffs appeal. In 1983, the plaintiff and her neighbor retained William H. Atkinson, an attorney and partner in the defendant law firm, Cummings and Lockwood, to represent them in the acquisition of certain real property (land) located between their respective properties and Scott’s Cove in the Tokeneke section of Darien. The plaintiffs property and that of her neighbor were separated from the land by Contentment Island Road. The plaintiff and her neighbor acquired the land, approximately four acres, as tenants in common.

The land had been part of the estate of Robert Cudd, who had acquired it in 1950 from Norton, Inc. (Norton), a real estate development corporation. The deed conveying the land to Cudd contained a restrictive covenant running with the land, which provided in part that the “premises are not to be . . . subdivided for the purpose of sale or transfer . . . unless approval [is] first obtained” from Norton acting through one of its officers or its successor or assignee.

By 1975, Norton had sold its last parcel of land in the area. Norton, acting by its treasurer, Richard P. McGrath, who was one of the defendant’s partners, and Hope Norton Iaccacci, executed a power of attorney and assignment, which forms the basis of the plaintiffs claim. The power of attorney and assignment states that “ [i]n the event that either or both of the undersigned are unavailable at any time and for any reason to consent to or approve any matter relating to Tokeneke, in the Town of Darien, County of Fairfield and State of Connecticut, by virtue of any covenant, restriction or agreement (or equitable effect thereof) appearing in the Land Records of Darien and requiring the approval of one or both of the undersigned, we hereby appoint any then-partner of the [defendant] firm . . . (acting alone, without the necessity for approval by his or her firm) our true and lawful attomey-in-fact and our successor in interest and our assignee for the purpose of giving such consent or approval.” The power of attorney was recorded in the Darien land records on March 1, 1976.

Approximately one year after they acquired the land, the plaintiff and her neighbor again sought Atkinson’s legal services because they wanted to partition the land. As part of his representation, Atkinson, among other things, wrote a letter dated February 13, 1985, to the president of the Tokeneke Association (association), a nonstock corporation to which Norton had assigned its rights and interest in and to the roadways, drives and avenues in Tokeneke, seeking approval for the plaintiff and her neighbor to partition the land. The association, through its president, granted the plaintiff and her neighbor permission to partition the land.

In 1986, the plaintiff retained an attorney not affiliated with the defendant to represent her in obtaining the necessary approvals to build a single-family dwelling on her portion of the partitioned land. In 1990, the plaintiff applied to the association for approval to build a dwelling on the land. The association denied the application. The plaintiff, thereafter, sought judicial review of the denial. The Superior Court upheld the association’s denial. See Lunn v. Tokeneke Assn., Inc., Superior Court, judicial district of Fairfield, Docket No. 281517 (March 3,1992). On appeal, our Supreme Court affirmed the trial court’s judgment. Lunn v. Tokeneke Assn., Inc., 227 Conn. 601, 630 A.2d 1335 (1993).

The plaintiff commenced this action against the defendant in December, 1994, alleging “negligent and/or reckless and/or wanton misconduct in the preparation, execution and delivery of an attorney’s title opinion.”* ** The plaintiff alleged that the letter asserted that “the Tokeneke Association, and only the Tokeneke Association, had the power to execute approvals in accordance with the restrictive covenant.” The malpractice or negligence alleged by the plaintiff was that Atkinson’s letter did not say that any partner in the defendant law firm could have executed the approval. The plaintiff alleged that if she had known that fact, she would not have applied to the association for approval of her subdivision plan. Because the association refused to permit her to build a dwelling, the plaintiff allegedly incurred substantial litigation fees and is unable to build on the land until the restrictions expire in 2000.

As special defenses to the plaintiffs complaint, the defendant alleged that the letter was not a title opinion within the meaning of § 52-584b and that the plaintiffs cause of action was barred by the statute of limitations set forth in § 52-584b. The defendant subsequently filed a motion for summary judgment, claiming that there were no genuine issues of material fact in that (1) the plaintiff did not receive an opinion letter from the defendant asserting that only the association had the power to grant approvals under the restrictive covenant, (2) the plaintiffs claims were barred by the three year statute of limitations for legal malpractice pursuant to General Statutes § 52-577 and (3) the plaintiffs claim that she was damaged by her reliance on the letter was far too speculative to create any issue of fact for trial. In a thorough and thoughtful memorandum of decision, the court granted the defendant’s motion for summary judgment. Although the court questioned whether the letter constituted a title opinion, it assumed arguendo that it did and ruled that the plaintiff’s cause of action had not been commenced within the time permitted under either § 52-584b or § 52-577 and did not reach the issue of whether the letter was an opinion letter within the meaning of § 52-584b. On appeal, the defendant argues, as an alternate ground on which to affirm the judgment; see Practice Book § 63-4 (1) (A); that the letter was not an opinion letter. We affirm the judgment on the ground that the letter is not a title opinion or certificate within the meaning of § 52-584b.

“Our standard of review of a trial court’s decision to grant a motion for summary judgment is well established. Zichichi v. Middlesex Memorial Hospital, 204 Conn. 399, 402, 528 A.2d 805 (1987). Practice Book § [17-49] requires that judgment shall be rendered forthwith if the pleadings, affidavits and any other proof submitted show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. A material fact is a fact that will make a difference in the result of the case. See Hammer v. Lumberman’s Mutual Casualty Co., 214 Conn. 573, 578, 573 A.2d 699 (1990). The facts at issue are those alleged in the pleadings. See Plouffe v. New York, N.H. & H.R. Co., 160 Conn. 482, 489, 280 A.2d 359 (1971). The party seeking summary judgment has the burden of showing the absence of any genuine issue as to all material facts, which, under applicable principles of substantive law, entitle him to a judgment as a matter of law. . . . D.H.R. Construction Co. v. Donnelly, 180 Conn. 430, 434, 429 A.2d 908 (1980). The party opposing such a motion must provide an evidentiary foundation to demonstrate the existence of a genuine issue of material fact. See Practice Book §§ [17-44] and [17-45]. In deciding a motion for summary judgment, the trial court must view the evidence in the light most favorable to the nonmoving party. . . . The test is whether a party would be entitled to a directed verdict on the same facts. . . . Connell v. Colwell, 214 Conn. 242, 246-47, 571 A.2d 116 (1990). A motion for summary judgment is properly granted if it raises at least one legally sufficient defense that would bar the plaintiffs claim and involves no triable issue of fact. Perille v. Raybestos-Manhattan Europe, Inc., 196 Conn. 529, 543, 494 A.2d 555 (1985).” (Internal quotation marks omitted.) Beebe v. East Haddam, 48 Conn. App. 60, 64, 708 A.2d 231 (1998).

Section 52-584b provides in relevant part that “no action . . . against an attorney to recover for injury caused ... in the preparation of and the execution and delivery of an attorney’s title certificate or opinion, or the title search in connection therewith . . . shall be brought but within two years . . . .” (Emphasis added.) The statute does not define “title certificate or opinion.” We turn then to the well established tenets of statutory interpretation. See Cotto v. United Technologies Corp., 251 Conn. 1, 6, 738 A.2d 623 (1999).

“Statutory construction is a question of law and therefore our review is plenary.” (Internal quotation marks omitted.) Mack v. LaValley, 55 Conn. App. 150, 165, 738 A.2d 718, cert. denied, 251 Conn. 928, 742 A.2d 363 (1999). “The process of statutory interpretation involves a reasoned search for the intention of the legislature. Frillici v. Westport, 231 Conn. 418, 431, 650 A.2d 557 (1994). In other words, we seek to determine, in a reasoned manner, the meaning of the statutory language as applied to the facts of this case, including the question of whether the language actually does apply. In seeking to determine that meaning, we look to the words of the statute itself, to the legislative history and circumstances surrounding its enactment, to the legislative policy it was designed to implement, and to its relationship to existing legislation and common law principles governing the same general subject matter.” (Internal quotation marks omitted.) United Illuminating Co. v. New Haven, 240 Conn. 422, 431, 692 A.2d 742 (1997).

In construing § 52-584b, “we must start with the language employed by the legislature. United Illuminating Co. v. Groppo, 220 Conn. 749, 756, 601 A.2d 1005 (1992). Generally, when the language of a statute is plain and unambiguous, we need look no further than the words themselves because we assume that the language expresses the legislature’s intent. American Universal Ins. Co. v. DelGreco, 205 Conn. 178, 193, 530 A.2d 171 (1987).” (Internal quotation marks omitted.) Southington v. Commercial Union Ins. Co., 54 Conn. App. 328, 333, 735 A.2d 835, cert. granted on other grounds, 251 Conn. 906, 738 A.2d 1093 (1999). “The words of a statute are to be given their commonly approved meaning unless a contrary intent is clearly expressed.” (Internal quotation marks omitted.) Peabody N.E., Inc. v. Dept. of Transportation, 250 Conn. 105, 122, 735 A.2d 782 (1999). “In construing a statute, common sense must be used and courts must assume that a reasonable and rational result was intended.” Norwich Land Co. v. Public Utilities Commission, 170 Conn. 1, 4, 363 A.2d 1386 (1975).

We may resolve the issue by examining the relevant words of the statute, which are “title certificate or opinion.” The nouns certificate and opinion are modified by the word title. For the purposes of this opinion, therefore, we must determine the meaning of title, which is not defined in our statutes. There is, however, common law that guides us in ascertaining the common meaning of the word title.

“[Wjhen we have construed ‘owner’ in the context of real estate, we have defined the term with reference to title. When we say, a man has the title to . . . [property], we mean, he is the owner of it; and vice versa.” (Internal quotation marks omitted.) Warner v. Leslie-Elliott Constructors, Inc., 194 Conn. 129, 137, 479 A.2d 231 (1984). “Ownership is an essential incident of title and ‘according to the commonly approved usage of the language’ (General Statutes § 1-1), an owner is ‘one that owns; one that has the legal or rightful title whether the possessor or not.’ Webster, Third New International Dictionary.” Consolidated Diesel Electric Corp. v. Stamford, 156 Conn. 33, 38, 238 A.2d 410 (1968); see Julian v. Liberty Mutual Ins. Co., 43 Conn. App. 281, 284-85, 682 A.2d 611 (196) (dictionary definitions of title involve ownership of property).

A title opinion concerns the validity of title to real property. It is distinct from an abstract of title, “which merely recites what the land records disclose without giving opinion or advice as to the legal effect of what is found . . . .” (Internal quotation marks omitted.) Grievance Committee v. Payne, 128 Conn. 325, 331, 22 A.2d 623 (1941). Nonlawyers are forbidden “ ‘from rendering any oral or written opinions as to the validity or invalidity of titles to real estate ....’” Id., 328.

Numerous authorities have provided general descriptions and examples of title opinions. “[T]he opinion should be a plain statement of what appears in more cryptic form on the examiner’s work-sheet. ... It should show the party for whom the report is made, the period covered by the examination, whether made from an accompanying abstract ... or from the original records aided by an identified abstract or search-sheet. It should not mention every irregularity but only those which destroy or detract from marketability, and those which indicate more than ordinary business risk. However, a marketable title is all that the client can usually insist upon and is just what he will expect if versed in real property transactions.” 4 American Law of Property (1952) § 18.99, p. 847; see also General Statutes § 47-33b; N. North & D. Van Buren, Real Estate Titles and Conveyancing (Rev. Ed. 1940) pp. 197-203; G. Warvelle, A Practical Treatise on Abstracts and Examinations of Title to Real Property (1883) pp. 558-61.

We in no way intend our brief review of the structure and content of a title opinion to be exhaustive. It is, however, sufficient for us to determine, as a matter of law, that the letter is not a title opinion or certificate within the meaning of § 52-584b. The letter does not give an opinion as to the validity or marketability of the title to the land. It was not written in conjunction with the transfer of the land. It was written subsequent to the plaintiffs having acquired the land from the Cudd estate. At the time they purchased the land, the plaintiff and her neighbor did not receive a certificate of title or a title opinion from the defendant. The plaintiff and her neighbor purchased a title insurance policy on the property.

In 1984, the plaintiff and her neighbor represented to the Darien planning and zoning commission and to their neighbors, as well as to the association, that they were not seeking to divide their land for approval as building sites, but that they planned to maintain the property with an “attractive open view” and that the properties were to be considered annexations to their residential properties across the street. Lunn v. Tokeneke Assn., Inc., supra, 227 Conn. 603-605. Atkinson did the job that he was retained to do, to partition the property as scenic annexes to the property of the plaintiff and her neighbor across the street. The letter was intended to gain the association’s approval for the plaintiff and her neighbor to partition the land and was successful in that regard. For these reasons, we affirm the trial court’s decision to grant the motion for summary judgment.

The judgment is affirmed.

In this opinion the other judges concurred.

       General Statutes § 52-584b provides in relevant part: “Notwithstanding any provision of the general statutes, no action, whether in contract, tort or otherwise, against an attorney to recover for injury caused by negligence or by reckless or wanton misconduct in the preparation of and the execution and delivery of an attorney’s title certificate or opinion, or the title search in connection therewith, shall be brought but within two years from the date when the injury is first sustained or discovered or in the exercise of reasonable care should have been discovered, except that no such action may be brought more than ten years from the date of such delivery. . . .”

       The court noted that the power of attorney granted to the defendant was effective only in the event that McGrath or Iaccacci were unavailable to act. The restrictive covenant provided that approval may be obtained from the president, treasurer or successor of Norton, or the assignee of its rights and interest in and to the roads, ways, drives and avenues at Tokeneke.

       The letter, addressed to Warren MacKenzie, president of the association, states: “I understand that you are the President of the Tokeneke Association. I recently represented Mrs. James Glanville and Mrs. James Lunn in connection with the acquisition of a parcel of land measuring about four acres belonging to the estate of Robert Cudd and located opposite the Lunn and Glanville residences on Contentment Island Road. The property was purchased in the name of Mrs. Lunn and Mrs. Glanville as a single parcel. We have obtained approval from the Planning Commission to file the enclosed map in the Land Records and to effect a partition between Mrs. Lunn and Mrs. Glanville in accordance with that map. There is a restrictive covenant on the property which was imposed in a deed from Norton, Inc. to Robert L. Cudd dated October 10, 1950 recorded in the Darien Land Records in Book 147 at Page 363. The restrictive covenant provides that the premises are not to be subdivided for the purpose of sale or transfer unless approval first be obtained from Norton, Inc. or the assignee of Norton, Inc.’s right in and to the roads, drives etc., in Tokeneke. The restrictive covenant continues until January 1, 2000. A prior approval of a subdivision for purposes of selling a parcel from the original Cudd tract was obtained in October of 1969. The parcel approved has most recently been owned, according to our records, by Mr. and Mrs. Luellen A. Wilkins.
      “In view of the fact that the approved map contains notes indicating that the parcels to be deeded to Mrs. Lunn and Mrs. Glanville are not approved as building sites, but are to be annexed to their existing house lots, I do not feel that this division is one which the restrictive covenant was intended to govern. Nonetheless, in order to avoid any uncertainty with respect to the division which we are about to make, we would like to obtain the Tokeneke Association’s approval for the division as shown on the map. I enclose a form of letter which Mrs. Glanville and Mrs. Lunn would appreciate having signed.
      “If there axe any questions concerning the request, please do not hesitate to call me.”

       The letter from the association dated March 18, 1985, states: “In accordance with the restrictive covenants contained in a Deed from Norton, Inc. to Robert L. Cudd dated October 10,1950 and recorded in the Land Records of the Town of Darien, Connecticut in Book 147 at Page 363, the Tokeneke Association, as the successor to Norton, Inc. of said corporation’s right and interest in the roadways, drives and avenues at Tokeneke in the said Town of Darien, hereby approves the division of the property on the west side of Contentment Island Road into Parcels 1A and 2A as shown on a certain map entitled, ‘Properties of Ann B. Lunn & Nancy Glanville Darien, Conn.,’ prepared by S. E. Minor & Co., Inc. dated October 27, 1983 which map is to be filed in the office of the Darien Town Clerk.
      “It is understood that the approval given herein is not intended as a waiver of any other restrictive covenant contained in the Deed referred to above, nor a waiver of the right of the undersigned to require approval of any further division of either Parcels 1A or 2A as shown on said map.”

       When the plaintiff and her neighbor sought permission to partition the land, they represented that they wanted to preserve the land as open space to maintain the natural environment and scenic view.

       Paragraph one of the plaintiffs complaint alleges: “This is an action against a firm of attorneys for negligent and/or reckless and/or wanton misconduct in the preparation, execution and delivery of an attorney’s title opinion.”

       Paragraph eight of the plaintiffs complaint alleges: “On February 13, 1985, the defendant, acting through the said William H. Atkinson in his capacity as a partner in the defendant law firm, having first conducted a title search in connection therewith, prepared, executed and delivered to the plaintiff and to Warren MacKenzie, Esq., the President of the Tokeneke Association, an opinion letter asserting that the Tokeneke Association, and only the Tokeneke Association, had the power to execute approvals in accordance with the restrictive covenant described in Paragraph 4 of this Complaint.”

       The defendant’s third special defense alleges: “To the best of Defendant’s knowledge, the letter dated February 13,1985, addressed to Warren McKenzie, Esq., by Defendant’s partner William H. Atkinson, a copy of which is attached as Exhibit A and incorporated by reference and made a part hereof, is the only document relevant to the subject matter of this action signed on behalf of Defendant on or about that date. Said letter dated February-13, 1985 is not ‘an attorney’s title certificate or opinion, or the title search in connection therewith’ within the meaning of General Statutes § 52-584b.”

       For the sake of argument, the trial court assumed that the letter was an opinion letter but concluded that this lawsuit was not “brought but within two years from the date when the injury is first sustained or discovered or in the exercise of reasonable care should have been discovered.”

       The court concluded that the plaintiff did not commence her cause of action within the time permitted by § 52-577. The plaintiff did not challenge that conclusion on appeal.

       "The difference between an abstract of title, with a certificate of search of records and investigation, and a statement setting forth an opinion of the validity of title to such real estate is clearly stated by Thompson on Abstracts and Titles [(2d Ed.) §§] 209 and 810.” Land Title Abstract & Trust Co. v. Dworken, 129 Ohio St. 23, 33, 193 N.E. 650 (1934).

       "The purpose of an examination of title is to secure for the attorney’s client a title which is in fact marketable, even though marketability may not be determined from the land records, subject to no other encumbrances than those expressly allowed by the client’s contract. Objections to the marketability of the title should be made only when irregularities or defects can reasonably be deemed to present a real and substantial probability of litigation or loss.” Connecticut Bar Association, Connecticut Standards of Title (1999) § 1.1.

       Atkinson attested to those facts in an affidavit that the defendant submitted in support of its motion for summary judgment. The plaintiff did not submit an affidavit or evidence to challenge those facts.


source: Caselaw Access Project

author: O’CONNELL, C. J.

license: Public Domain

text:
    STATEWIDE GRIEVANCE COMMITTEE v. CHRISTOPHER C. FOUNTAIN
    (AC 18854)
    O’Connell, C. J., and Foü and Vertefeuille, Js.
    Argued October 28, 1999
    officially released January 18, 2000

      Robert A. Brooks, with whom was Mario R. Borelli, for the appellant (defendant).

      Maureen A. Horgan, assistant bar counsel, for the appellee (plaintiff).
   Opinion

O’CONNELL, C. J.

The defendant, Christopher C. Fountain, appeals from the trial court’s judgment suspending his license to practice law for three months. The defendant claims that the imposition of this sanction was improper because (1) the suspension constituted punishment and (2) the length of the suspension amounted to an abuse of discretion. We affirm the judgment of the trial court.

The following facts are relevant to the resolution of this appeal. The defendant is a practicing attorney who was admitted to the bar of this state in 1983. In 1993, while representing a client in an arbitration proceeding before the National Association of Securities Dealers, Inc., the defendant forged the signature of an affiant and then notarized the affidavit. Thereafter, he forwarded the affidavit to the opposing counsel in the arbitration proceeding. At the time of this misconduct, the defendant was dependent on alcohol.

On May 2, 1994, the opposing attorney filed a complaint with the statewide grievance committee (committee). On July 29, 1994, the grievance panel for the judicial district of Stamford-Norwalk found probable cause to believe that the defendant violated the Rules of Professional Conduct (rules). On October 19, 1995, the committee voted to file a presentment in the Superior Court. On December 31, 1997, the presentment proceeding commenced, and the committee sought the suspension of the defendant’s license to practice law for not less than one year. At the time of the presentment, the defendant’s drinking problem had been under control for more than four years. The court considered this fact along with the committee’s suspension recommendation and other factors before imposing a lighter sanction of suspension from the practice of law for three months.

I

The defendant first claims that the object of a disciplinary hearing is to protect the public rather than to punish an attorney and that, because he was a rehabilitated alcoholic as of the date of the presentment proceeding, the sanction by the trial court was purely punitive and therefore improper. We do not agree.

Our analysis begins with a review of the legal principles that govern attorney disciplinary proceedings. The regulation of attorney disciplinary matters exists within the broader framework of the relationship between attorneys and the judiciary. Statewide Grievance Committee v. Rozbicki, 211 Conn. 232, 237, 558 A.2d 986 (1989). An attorney, as an officer of the court, is continually accountable to the court for the manner in which the privilege to practice law is exercised and is subject to the court’s discipline. Id., 237-38. Because the image of a dishonest lawyer is very difficult to erase from the public mind-set, attorneys are expected to be leading citizens who act with candor and honesty at all times. Statewide Grievance Committee v. Presnick, 18 Conn. App. 316, 324, 559 A.2d 220 (1989). An attorney is admitted to the practice of law on the implied condition that the continuation of this right depends on remaining a fit and safe person to exercise it. In re Peck, 88 Conn. 447, 450, 91 A. 274 (1914). When an attorney, by misconduct in any capacity, becomes unfit or unsafe to be entrusted with the responsibilities and obligations of the profession, the right to continue in the enjoyment of the profession may be suspended. Id., 451. It is paramount that an attorney be upright and trustworthy and “resolve to be honest at all events; and if [he or she] cannot be an honest lawyer, [he or she should] resolve to be honest without being a lawyer.” 2 A. Lincoln, Collected Works of Abraham Lincoln (R. Basler ed., 1953), p. 82.

A court disciplining an attorney does so not to punish the attorney, but rather to safeguard the administration of justice and to protect the public from the misconduct or unfitness of those who are members of the legal profession. In re Durant, 80 Conn. 140, 147, 67 A. 497 (1907). Inherent in this process is a large degree of judicial discretion. Grievance Committee v. Broder, 112 Conn. 263, 266, 152 A. 292 (1930). A court is free to determine in each case, as may seem best in light of the entire record before it, whether a sanction is appropriate and, if so, what that sanction should be. Statewide Grievance Committee v. Shluger, 230 Conn. 668, 678-79, 646 A.2d 781 (1994). Accordingly, a court may accomplish the goal of protecting the public and the courts by imposing a sanction that deters other attorneys from engaging in similar misconduct.

The defendant claims that the suspension of his license to practice law can be viewed only as punishment and therefore was not proper. The defendant, however, stipulated that his misconduct violated 8.4 (4) of the rules. The court found that the defendant’s actions also violated 3.4 (2) and 8.4 (l) and (3) of the rales, and that his actions involved a dishonest motive. The court considered these violations in determining whether a sanction was appropriate, properly focusing on public policy considerations rather than on punishment.

Although the defendant claims that the court punished him, he is unable to point to any evidence that the court was being punitive. He nevertheless argues that punishment may be inferred because the court did not fully explain why the suspension was necessary to protect the public or to safeguard the administration of justice. He suggests that we establish a rule requiring trial courts to analyze not only why a particular sanction is necessary, but also why the sanction is not punishment. We see no need to implement such a burdensome rule, considering that the court here properly analyzed the issue, and its memorandum of decision reflected its knowledge and understanding of the legal principles involved in attorney disciplinary proceedings. This court may assume, therefore, that the trial court acted properly and considered all applicable legal principles before rendering judgment. See Rosenblit v. Danaher, 206 Conn. 125, 134, 537 A.2d 145 (1988). Accordingly, we are persuaded that the court properly determined that a suspension would safeguard the administration of justice and protect the public, and was, therefore, appropriate.

II

The defendant next argues that even if a sanction was warranted, the imposition of the three month suspension constituted an abuse of discretion. We do not agree.

The court had inherent judicial power to determine an appropriate sanction in light of the entire record before it and was free to act as it deemed best in the administration of justice. Statewide Grievance Committee v. Glass, 46 Conn. App. 472, 478, 699 A.2d 1058 (1997). In cases involving the discipline of an attorney, this court must defer to the discretion of the trial court as the fact finder because it is in the best position to evaluate the evidence. Id., 479. Whether this court would have imposed a different sanction is not relevant. Rather, we must determine whether the trial court abused its discretion in determining the nature of the sanction. Id. We may reverse the court’s decision in this regard only if that decision was unreasonable, unconscionable or arbitrary, and was made without proper consideration of the facts and law pertaining to the matter submitted. Id., 480.

Courts considering sanctions against attorneys measure the defendant’s conduct against the rules. Although the rules define misconduct, they do not provide guidance for determining what sanctions are appropriate. Id., 480-81. Connecticut courts reviewing attorney misconduct, therefore, have consulted the American Bar Association’s Standards for Imposing Lawyer Sanctions (standards); see ABA-BNA Lawyers’ Manual on Professional Conduct, “Standards for Imposing Lawyer Sanctions,” pp. 01:801-54; which provide guidance. Statewide Grievance Committee v. Shluger, supra, 230 Conn. 673 n.10. Although the standards have not been officially adopted in Connecticut, they are used frequently by the Superior Court in evaluating attorney misconduct and in determining discipline, as they were by the court here. See Statewide Grievance Committee v. Spirer, 46 Conn. App. 450, 463-64, 699 A.2d 1047 (1997), rev’d on other grounds, 247 Conn. 762, 725 A.2d 948 (1999).

According to standard 3.0, a court imposing a sanction should consider the duty violated, the lawyer’s mental state, the actual or potential injury caused by the misconduct and the existence of aggravating or mitigating factors. Standards 6.1 and 6.12 provide that a suspension generally is appropriate in cases involving conduct that is prejudicial to the administration of justice or that involves dishonesty, fraud, deceit or misrepresentation.

In determining the appropriate sanction, the court explicitly considered several mitigating factors, including that (1) at the time of the misconduct the defendant was an alcoholic suffering from alcohol dependency, (2) this was a single act of misconduct rather than a pattern of misconduct and (3) the defendant had never previously been disciplined for misconduct. The court also noted in its memorandum of decision that at the time of the presentment, the defendant’s drinking problem had been under control for at least four years and that the presentment took place nearly five years after the act of misconduct.

After weighing these mitigating factors against the presence of one aggravating factor, namely that the defendant’s misconduct involved a dishonest motive, the court imposed a three month suspension. Although this suspension was substantially lighter than that requested by the committee, the defendant nevertheless claims that it constituted an abuse of discretion because the court did not give sufficient weight to the mitigating factors. It is clear, however, that the court gave substantial weight to the presence of the mitigating factors. The term of the suspension was one fourth of that requested by the committee and was less than that provided for in the standards. Standard 2.3, titled, “Suspension,” provides in relevant part that “suspension should be for a period of time equal to or greater than six months . . . .” The court, exercising its broad discretion, departed from this standard in the defendant’s favor. Accordingly, we are persuaded that the court did not abuse its discretion when it imposed the three month suspension.

Before we conclude, however, we will address the defendant’s concern that our ruling may discourage attorneys with substance abuse problems from seeking treatment. The defendant asserted at oral argument that a decision in his favor would be positive for the members of the bar as well because attorneys would understand that if they deal with their substance abuse problems, they would not be punished for so doing. Although we encourage all who suffer from drug and alcohol dependency to deal with their problems, we want to make it clear that the more appropriate time to deal with such issues is prior to the occurrence of misconduct rather than afterward. An attorney who seeks treatment without having violated the rules will not be disciplined for so doing. An attorney who gains control over his or her substance abuse problems only after committing misconduct, however, may be disciplined, not because the attorney is in treatment but rather because the attorney’s conduct necessitates that result to protect our courts and the public. We will not excuse conduct that brings disrepute to the legal profession merely because an attorney, subsequent to the conduct, gains control over his or her addiction. We endeavor, therefore, to advise each member of the bar that substance abuse treatment should be used as a sword to cut off misconduct before it occurs rather than as a shield to insulate misdeeds.

The judgment is affirmed.

In this opinion the other judges concurred.

       Each judicial district has one or more grievance panels consisting of two members of the bar and one layperson, all of whom are appointed by the Superior Court. The committee refers complaints to a panel, which then investigates and determines whether probable cause exists. Somers v. Statewide Grievance Committee, 245 Conn. 277, 282 n.9, 715 A.2d 712 (1998).

       The rules, which were adopted in 1986 by the judges of the Superior Court, govern the professional rights and obligations of attorneys practicing within Connecticut. Somers v. Statewide Grievance Committee, 245 Conn. 277, 278 n.1, 715 A.2d 712 (1998). The rules were renumbered as part of the Practice Book revision of 1998. In this decision, we refer to the revised rules.

       Rule 8.4 provides in relevant part: “It is professional misconduct for a lawyer to . . .
      “(4) Engage in conduct that is prejudicial to the administration of justice

       Rule 3.4 provides in relevant part: “A lawyer shall not . . .
      “(2) Falsify evidence . . . .”

       Rule 8.4 provides in relevant part: “It is professional misconduct for a lawyer to . . .
      “(1) Violate or attempt to violate the Rules of Professional Conduct. . . .”

       Rule 8.4 provides in relevant part: “It is professional misconduct for a lawyer to . . .
      “(3) Engage in conduct involving dishonesty, fraud, deceit or misrepresentation . . . .”

       At oral argument the defendant claimed that it was an abuse of the trial court’s discretion to conclude under the facts of this case that he acted with a dishonest motive or with intent. The defendant’s motive for filing the false affidavit, however, raises factual questions requiring careful consideration of circumstantial evidence. See State v. Diaz, 237 Conn. 518,541,679 A.2d 902 (1996) (“[o]rdinarily, intent can only be inferred by circumstantial evidence; it. may be and usually is inferred . . . from conduct”). Our review of the court’s factual findings is limited to a determination of whether those findings are “clearly erroneous in view of the reliable, probative, and substantial evidence on the whole record.” (Internal quotation marks omitted.) Lewis v. Statewide Grievance Committee, 235 Conn. 693, 697, 669 A.2d 1202 (1996). We hold that this finding was not clearly erroneous.

       The court, in its memorandum of decision, noted: “The [trial] court is very well aware of the necessity of enforcing our disciplinary rules. I believe that the improvement of the image of the profession in the eyes of the public must be the single most essential goal of the profession. Without the confidence of those who use the legal system, our profession as we know it is in danger. Unless the public believes we are policing ourselves honestly, fairly and with due regard for the interests of those whom we serve, our right to do so will one day be stripped from us.”

       After determining that the defendant had violated the rules, the court stated: “[A] court charged with imposing sanctions on an errant attorney must always carefully evaluate the facts and circumstances leading to and surrounding a particular violation. Our task is not to mete out punishment to an offender, but [to act so] that the administration of justice may be safeguarded and the courts and the public protected from the misconduct or unfitness of those who are licensed to perform the important functions of the legal profession. ... It befalls this court, then, to determine whether the acts or the conduct of the [defendant], considering the circumstances under which he committed them, and considering the [defendant’s] character and fitness to practice law, are sufficient to warrant his suspension therefrom.”

       Standard 9.2 provides that the presence of aggravating factors may justify an increase in the degree of discipline to be imposed. Under standard 9.22 (b), a dishonest or selfish motive is an aggravating factor.

       Standard 9.3 provides that the presence of mitigating factors may justify a reduction in the degree of discipline to be imposed. Under standard 9.32, mitigating factors include the absence of a prior disciplinary record, alcoholism and a delay in the disciplinary process.

       As discussed in part I of this opinion, the defendant stipulated that his misconduct was prejudicial to the administration of justice and the court found that he had acted with a dishonest motive.


author: LAVERY, J.

text:
    STATE OF CONNECTICUT v. ANTHONY HICKS
    (AC 17854)
    Lavery, Hennessy and Vertefeuille, Js.
    Argued October 27, 1999
    officially released January 18, 2000

      Michael A. D’Onofrio, special public defender, for the appellant (defendant).

      Margaret Gaffney Radionovas, assistant state’s attorney, with whom, on the brief, were Scott J. Murphy, state’s attorney, and Brian Preleski, assistant state’s attorney, for the appellee (state).
   Opinion

LAVERY, J.

The defendant, Anthony Hicks, appeals from the judgment of conviction, rendered after a jury trial, of sale of a narcotic substance in violation of General Statutes § 21a-277 (a). The defendant claims that (1) the evidence was insufficient to support his conviction and (2) the prosecutor committed misconduct during closing argument. We affirm the judgment of the trial court.

The jury reasonably could have found the following facts. On the evening of December 12, 1995, the Connecticut state police statewide narcotics task force coordinated apian with the Bristol police department to purchase crack cocaine from the defendant. Detective Matthew Barnwell of the task force telephoned the defendant at a number listed in the defendant’s name. A male whose voice Barnwell did not recognize answered the telephone. Barnwell asked if he could purchase crack cocaine and was told, “No problem, come on by.” Barnwell drove to the defendant’s residence and wore a body wire so that officers assisting him could hear Barnwell.

Barnwell knocked on the door, and a Hispanic female let him into the apartment. Inside, Barnwell observed the defendant sitting on a couch using a telephone. Barnwell acknowledged the defendant, who responded, “Huh,” and made a hand signal. The defendant motioned to the female, who then went to a coffee table in front of the defendant, opened the table’s doors and removed a plastic bag containing small plastic bags with a white, rock-like substance inside. The female then handed the bag to the defendant. The defendant, in turn, removed two of the smaller bags containing the white, rock-like substance and gave them to Barnwell. Barnwell then paid the defendant $100. Officers at the scene field tested the substance, which showed a positive result for the presence of cocaine.

I

The defendant claims that there was insufficient evidence to establish beyond a reasonable doubt that he transferred and sold crack cocaine to the undercover detective in violation of § 21a-277 (a). We disagree.

The defendant acknowledges that he failed to preserve his claim of evidentiary insufficiency but, as an alternative to proper preservation, requests review under State v. Golding, 213 Conn. 233, 567 A.2d 823 (1989). “Our Supreme Court, following the dictate of the United States Supreme Court in Jackson v. Virginia, 443 U.S. 307, 316, 99 S. Ct. 2781, 61 L. Ed. 2d 560 (1979), has held that ‘any defendant found guilty on the basis of insufficient evidence has been deprived of a constitutional right, and would therefore necessarily meet the four prongs of Golding.' State v. Adams, 225 Conn. 270, 276 n.3, 623 A.2d 42 (1993).” State v. Patterson, 35 Conn. App. 405, 411 n.7, 646 A.2d 258, cert. denied, 231 Conn. 930, 649 A.2d 254 (1994). Accordingly, we conclude that no practical reason exists to engage in a Golding analysis of a sufficiency of the evidence claim and, thus, review this challenge as we do any other properly preserved claim. See id.

General Statutes § 21a-240 (50) defines sale, insofar as it applies to illegal drug transactions, as “any form of delivery which includes barter, exchange or gift, or offer therefor, and each such transaction made by any person whether as principal, proprietor, agent, servant or employee. . . .’’The definition of sale is quite broad and intended to encompass a variety of situations. See State v. Avila, 166 Conn. 569, 580 n.1, 353 A.2d 776 (1974).

The defendant relies on State v. Mierez, 24 Conn. App. 543, 550-54, 590 A.2d 469, cert. denied, 219 Conn. 910, 593 A.2d 136 (1991), in which this court held that the evidence presented was insufficient to sustain a conviction because of the lack of evidence of a sale or transmission of narcotics by the defendant. In Mierez, the defendant was obseived by police performing what appeared to be narcotics transactions on a sidewalk curb. Id., 546. Two or three times, the defendant was observed approaching stopped cars and exchanging unidentifiable small items with the drivers. Id. Police apprehended the defendant and found a white powder later determined to be narcotics in his possession. Id., 546-47.

This court overturned the conviction, stating that “[t]he officers who engaged in the surveillance of the defendant’s activities described the items that they claimed were given by the defendant to others only as small objects. Likewise, they were unable to give any better description of the items that the defendant received in return. No evidence was offered to show where on his person the defendant obtained the small objects that he allegedly passed. No evidence was produced that he took these objects from the same area in the front of his pants from which the glassine bag was seized, or from the small of his back at the waistband of his trousers where the newspaper fold was located. In short, the state did not produce any evidence to connect the seized narcotics with the activities of the defendant.” Id., 551-52.

Similarly, in State v. Arbelo, 37 Conn. App. 156, 655 A.2d 263 (1995), we overturned a conviction because of the absence of evidence of a drug sale. “The weakness in the state’s case here is that no state’s witness saw money pass from [the purported purchaser] to the defendant, nor did any state’s witness see any drugs pass from the defendant to [the purported purchaser]. Additionally, there is a paucity of circumstantial evidence supporting the state’s theory that the brief contact between the defendant and [the purported purchaser] resulted in a drug sale.” Id., 160; see State v. Davis, 38 Conn. App. 621, 625-29, 662 A.2d 812, cert. denied, 235 Conn. 919, 665 A.2d 907 (1995) (primary flaw in state’s case was that it offered no witnesses who actually saw drugs pass between alleged buyer and seller).

Significant differences exist between the facts in Mierez and its progeny and the present case. In Mierez, Arbelo and Davis, no witnesses existed who actually viewed the transmission of narcotics between one party and another. In contrast, not only did Barnwell witness the entire transaction, but he was the undercover buyer who actually purchased the narcotics. Barnwell viewed exactly what was being passed to him during the transaction, which was shown to be narcotics through various laboratory tests. See State v. Hall, 165 Conn. 599, 601-602, 345 A.2d 17 (1973) (defendant handed narcotics directly to undercover police officer).

We agree with the state that sufficient evidence exists •to support the defendant’s conviction. The jury reasonably could have found that the defendant’s motions to the female in the room combined with her response could constitute a nonverbal command to retrieve narcotics from the coffee table. There is sufficient evidence to conclude that the female removed the drugs from the table and gave them to the defendant, who then gave them directly to the undercover detective in exchange for money. Barnwell testified that he had absolutely no doubt that it was the defendant who consummated the drug transaction. These facts and their supporting reasonable inferences constitute sufficient evidence that reasonably could lead a jury to conclude that the defendant sold the crack cocaine to Barnwell, thus meeting the requirements of § 2 la-277 (a).

II

The defendant contends that the state improperly commented on the credibility of witnesses and his failure to testify such that he was deprived of his fundamental right to a fair trial pursuant to the fifth and fourteenth amendments to the United States constitution and article first, § 8, of the constitution of Connecticut. We are not persuaded.

Before we address the defendant’s contentions, we note that these claims of prosecutorial misconduct were not preserved at trial. Accordingly, the defendant seeks review under State v. Golding, supra, 213 Conn. 239-40.

“[T]o deprive a defendant of his constitutional right to a fair trial . . . the prosecutor’s conduct must have so infected the trial with unfairness as to make the resulting conviction a denial of due process. . . . We do not focus alone, however, on the conduct of the prosecutor. The fairness of the trial and not the culpability of the prosecutor is the standard for analyzing the constitutional due process claims of criminal defendants alleging prosecutorial misconduct.” (Internal quotation marks omitted.) State v. Chasse, 51 Conn. App. 345, 355, 721 A.2d 1212 (1998), cert. denied, 247 Conn. 960, 723 A.2d 816 (1999); see State v. Correa, 241 Conn. 322, 356-57, 696 A.2d 944 (1997).

“In determining whether this claim of prosecutorial misconduct deprived the defendant of his due process right to a fair trial, we must first decide whether the prosecutor’s remarks were, in fact, improper, and, if so, whether they substantially prejudiced the defendant. State v. Provost, 49 Conn. App. 56, 64-65, 713 A.2d 879, cert. granted on other grounds, 247 Conn. 914, 722 A.2d 808 (1998); see also State v. Oehman, 212 Conn. 325, 336, 562 A.2d 493 (1989). In doing so, we have focused on several factors, [i]ncluded among those factors are the extent to which the misconduct was invited by defense conduct or argument; State v. Falcone, 191 Conn. 12, 23, 463 A.2d 558 (1983); the severity of the misconduct; see United States v. Modica, 663 F.2d 1173, 1181 (2d Cir. 1981) [cert. denied, 456 U.S. 989, 102 S. Ct. 2269, 73 L. Ed. 2d 1284 (1982)]; the frequency of the misconduct; State v. Couture, 194 Conn. 530, 562-63, 482 A.2d 300 (1984), cert. denied, 469 U.S. 1192, 105 S. Ct. 967, 83 L. Ed. 2d 971 (1985); see State v. Doehrer, [200 Conn. 642, 654, 513 A.2d 58 (1986)]; State v. Palmer, [196 Conn. 157, 164, 491 A.2d 1075 (1985)]; the centrality of the misconduct to the critical issues in the case; Hawthorne v. United States, 476 A.2d 164, 172 (D.C. App. 1984); the strength of the curative measures adopted; United States v. Modica, supra, 1181; Harris v. United States, 402 F.2d 656, 657 n.1 (D.C. Cir. 1968); State v. Doehrer, supra, 654; and the strength of the state’s case. See United States v. Modica, supra, 1181; State v. Couture, supra, 564; see also State v. Glenn, 194 Conn. 483, 492, 481 A.2d 741 (1984).” (Internal quotation marks omitted.) State v. Chasse, supra, 51 Conn. App. 355-56.

We do not scrutinize each individual comment in a vacuum, but rather, “we must review the comments complained of in the context of the entire trial.” State v. Robinson, 227 Conn. 711, 746, 631 A.2d 288 (1993). Accordingly, “the burden [falls] on the defendant to demonstrate that the remarks were so prejudicial that he was deprived of a fair trial and the entire proceedings were tainted.” Id.

A

We turn to the defendant’s argument that the prosecutor improperly commented on the credibility of Barn-well’s testimony. “The prosecutor may not express his own opinion, either directly or indirectly, as to the credibility of witnesses. . . . Nor may he express his opinion, directly or indirectly, as to the guilt of the defendant. . . . Such expressions of personal opinion are a form of unsworn and unchecked testimony. . . . These expressions of opinion are particularly difficult for the jury to ignore because of the special position held by the prosecutor. . . . The jury is aware that he has prepared and presented the case and consequently, may have access to matters not in evidence . . . which the jury may infer to have precipitated the personal opinions.” (Citations omitted.) State v. Williams, 204 Conn. 523, 541-44, 529 A.2d 653 (1987).

During closing argument to the jury, the prosecutor stated in relevant part: “Now, the case hinges on Detective Barnwell and your believing Detective Barnwell . . . and if you don’t believe him, if you thought that he wasn’t telling the truth, if you thought that he was lying, then you ought not to convict [the defendant], but I don’t believe that you have the facts before you that would indicate he wasn’t telling the truth or would point out that he is lying or trying to frame [the defendant], or any of those things ... if you remember what his testimony was in essence.” (Emphasis added.) The prosecutor then summarized Barnwell’s testimony, discussed the chain of possession of the seized drug evidence and stated: “We find out again that these items tested positive for the presence of cocaine. So that, in a nutshell, is the basis for that first issue, that is, that he sold a narcotic substance, being cocaine, to another person, that being Detective Barnwell . . . who was working in an undercover capacity that day. The state presented that evidence. The evidence was credible. There hasn’t been any evidence that would cause you to believe that there was some kind of conspiracy to frame him or anything like that (Emphasis added.)

Our review of the record leads us to conclude that the alleged misconduct did not rise to the level of substantial prejudice. No pattern or practice of misconduct existed with regard to the prosecutor’s statement of evidential credibility. Indeed, a prosecutor may properly comment on the credibility of a witness where, as here, “the comment reflects reasonable inferences from the evidence adduced at trial.” Jenkins v. Commissioner of Correction, 52 Conn. App. 385, 401, 726 A.2d 657, cert. denied, 249 Conn. 920, 733 A.2d 233 (1999). Finally, “[t]he mere use of phrases such as T submit,’ T find,’ or T believe’ does not constitute improper argument.” Id., 400. The prosecutor neither personally guaranteed the witness’ credibility nor implied that he had knowledge of the witness’ credibility outside the record.

B

We next turn to the defendant’s argument that the prosecutor made an improper reference that indirectly commented on the defendant’s failure to testily. “It is well settled that comment by the prosecuting attorney . . . on the defendant’s failure to testify is prohibited by the fifth amendment to the United States constitution. Griffin v. California, 380 U.S. 609, 615, 85 S. Ct, 1229, 14 L. Ed. 2d 106, reh. denied, 381 U.S. 957, 85 S. Ct. 1797, 14 L. Ed. 2d 730 (1965).” State v. Arline, 223 Conn. 52, 66, 612 A.2d 755 (1992). “As we repeatedly have stated, [i]n determining whether a prosecutor’s comments have encroached upon a defendant’s [fifth amendment] right to remain silent, we ask: Was the language used manifestly intended to be, or was it of such character that the jury would naturally and necessarily take it to be a comment on the failure of the accused to testify?” (Internal quotation marks omitted.) State v. Lemon, 248 Conn. 652, 659, 731 A.2d 271 (1999); see General Statutes § 54-84. To determine the natural and necessary impact on the jury, the court looks to the context in which the statement was made. State v. Satchwell, 244 Conn. 547, 571, 710 A.2d 1348 (1998). In addition, some leeway is permitted to account for zeal of counsel in the heat of argument that commonly exists at trial. Id. Indeed, “closing arguments of counsel . . . are seldom carefully constructed in toto before the event; improvisation frequently results in syntax left imperfect and meaning less than crystal clear. While these general observations in no way justify prosecutorial misconduct, they do suggest that a court should not lightly infer that a prosecutor intends an ambiguous remark to have its most damaging meaning or that a jury, sitting through a lengthy exhortation, will draw that meaning from the plethora of less damaging interpretations.” Donnelly v. DeChristoforo, 416 U.S. 637, 646-47, 94 S. Ct. 1868, 40 L. Ed. 2d 431 (1974).

The challenged remarks are: “Now, you also have to remember that if the defense concedes that this transaction took place and that it was cocaine and all of this other stuff, but it wasn’t [the defendant] that did it, I would like you to think about two things. The first thing is that there is not a scintilla of evidence that anyone else did it because Detective Barnwell was the guy who testified and he was absolutely certain that it was [the defendant] who sold him the drugs. Nor have you been provided with any motive that Detective Barnwell would have to lie, nor have you ever been given any reason he would have to be mistaken. Certainly, it’s not a mistaken identity case.” (Emphasis added.)

The prosecutor’s comments were not improper. The challenged remarks were “comment by the prosecutor on the overall quality of the defendant’s evidence [that did] not [call] specific attention to the failure of the accused to testify.” State v. Magnotti, 198 Conn. 209, 220, 502 A.2d 404 (1986). “The accused, by his failure to testify, cannot insulate himself from general comment on the weakness of his case, even though his failure so to testify may be perceived by the jury as having contributed to the general weakness about which comment is made.” Id. Also, the prosecutor’s statement that there was “not a scintilla of evidence that anyone else did it” may reasonably refer to the fact that the jury never heard any evidence offered by defense counsel, not the defendant himself, that contradicted the prosecutor’s evidence that pointed to the defendant as the individual who committed the crime. See State v. Marra, 222 Conn. 506, 535, 610 A.2d 1113 (1992). The prosecutor’s relatively general comments do not rise to the improper level of specific, repeated, rhetorical questions to which only the defendant could supply the answers. See State v. Correia, 33 Conn. App. 457, 467-68, 636 A.2d 860, cert. denied, 229 Conn. 911, 642 A.2d 1208, cert. denied, 513 U.S. 898, 115 S. Ct. 253, 130 L. Ed. 2d 174 (1994); State v. Allen, 9 Conn. App. 169, 178-81, 517 A.2d 1043 (1986), rev’d on other grounds, 205 Conn. 370, 533 A.2d 559 (1987).

The prosecutor’s closing argument does not naturally or necessarily lead the jury to conclude that he was commenting on the defendant’s failure to testify. We hold, therefore, that the prosecutor’s argument did not infringe on the defendant’s constitutional right to a fair trial.

The judgment is affirmed.

In this opinion the other judges concurred.

       General Statutes § 21a-277 provides in relevant part: “Penalty for illegal manufacture, distribution, sale, prescription, dispensing, (a) Any person who manufactures, distributes, sells, prescribes, dispenses, compounds, transports with the intent to sell or dispense, possesses with the intent to sell or dispense, offers, gives or administers to another person any controlled substance which is a hallucinogenic substance other than marijuana, or a narcotic substance, except, as authorized in this chapter, for a first offense, shall be imprisoned not more than fifteen years and may be fined not more than fifty thousand dollars or be both fined and imprisoned; and for a second offense shall be imprisoned not more than thirty years and may be fined not more than one hundred thousand dollars, or be both fined and imprisoned; and for each subsequent offense, shall be imprisoned not more than thirty years and may be fined not more than two hundred fifty thousand dollars, or be both fined and imprisoned. ...”

       “In State v. Golding, [supra, 213 Conn. 239-40] . . . [our Supreme Court] stated that a defendant can prevail on a claim of constitutional error not preserved at trial only if all of the following conditions are met: (1) the record is adequate to review the alleged claim of error; (2) the claim is of constitutional magnitude alleging the violation of a fundamental right; (3) the alleged constitutional violation clearly exists and clearly deprived the defendant of a fair trial; and (4) if subject to harmless error analysis, the state has failed to demonstrate harmlessness of the alleged constitutional violation beyond a reasonable doubt. . . . [The court] noted that [it] would remain free to dispose of the claim by focusing on whichever condition is most relevant in the particular circumstances.” (Citations omitted; internal quotation marks omitted.) State v. Watlington, 216 Conn. 188, 192, 579 A.2d 490 (1990).

       See footnote 2.

       Moreover, it is important to note that as with other challenges made here, the defendant did not object and failed to ask for any curative instruction with regard to this issue. “The defendant, therefore, presumably did not regard those remarks . . . as seriously prejudicial at trial.” State v. Cox, 50 Conn. App. 175, 180, 718 A.2d 60 (1998), aff'd, 251 Conn. 54, 738 A.2d 652 (1999).


author: CRETELLA, J.

text:
    STATE OF CONNECTICUT v. TODD BRANHAM
    (AC 18065)
    Foti, Spear and Cretella, Js.
    Argued November 2, 1999
    officially released January 18, 2000

      Jayne F. Kennedy, assistant public defender, for the appellant (defendant).

      Marjorie Allen Dauster, assistant state’s attorney, with whom, on the brief, were Michael Dearington, state’s attorney, and Laura D. DeLeo, assistant state’s attorney, for the appellee (state).
   Opinion

CRETELLA, J.

The defendant, Todd Branham, appeals from the judgment of conviction, rendered after a jury trial, of four counts of risk of injury to a child in violation of General Statutes (Rev. to 1993) § 53-21 and one count of assault in the third degree in violation of General Statutes § 53U-61, claiming that (1) the trial court improperly denied his motion for judgment of acquittal on counts three, four and five of the substitute information because there was insufficient evidence to support the conviction, and (2) that § 53-21 is unconstitutionally vague on its face and as applied to the facts of this case. We affirm the judgment of the trial court.

The jury reasonably could have found the following facts. The defendant is the father of three children, Tyjuan, Robert and Demetrius. At the time of the incident in question, all of the children were under the age of four. During the early evening hours on September 25, 1993, the children’s mother, Robin Moorehead, had requested that the defendant, who did not reside with Moorehead and the children, watch the children while she went out for approximately one hour. Upon her return after about one hour, Moorehead discovered that although the children were asleep in their beds, the defendant was not in the apartment. Moorehead was told by individuals who were in the hallway of the apartment building that the defendant had left the apartment as soon as she had left. Once she ascertained that the defendant had left the apartment shortly after she did, leaving the three children alone with no other adult in the apartment, Moorehead called and filed a report with the New Haven police department.

I

The defendant claims first that the court improperly denied his motion for judgment of acquittal on counts three, four and five because there was insufficient evidence to support his conviction. We disagree.

“The standards by which we review claims of insufficient evidence are well established. When reviewing a sufficiency of the evidence claim, our courts apply a two-prong test. First, we construe the evidence in the light most favorable to sustaining the verdict. Second, we determine whether upon the facts so construed and the inferences reasonably drawn therefrom the jury reasonably could have concluded that the cumulative force of the evidence established guilt beyond a reasonable doubt. . . . State v. Jacques, 53 Conn. App. 507, 520, 733 A.2d 242 (1999).” (Internal quotation marks omitted.) State v. White, 55 Conn. App. 412, 416, 740 A.2d 399, cert. denied, 252 Conn. 908, 743 A.2d 621 (1999).

In the present case, the defendant left his three young children unattended in their apartment for approximately one hour and subsequently was charged with violating § 53-21, which applies where an individual wilfully or unlawfully causes or permits any child under the age of sixteen years to be placed in such a situation that the life or limb of such child is endangered or the child’s health is likely to be injured. In support of his insufficiency claim, the defendant argues that there was no evidence as to the length of time that the children were left alone. The defendant cannot prevail on that argument, however, because the amount of time the children were left unattended is not a necessary element of the offense. Moreover, even if it were a necessary element, the jury reasonably could have inferred from the testimony of the children’s mother that the children had been left alone for as long as one hour. We note further that it is “the absolute right and responsibility of the jury ... to determine the credibility of the witnesses. . . . We cannot retry the facts or pass on the credibility of the witnesses.” (Citation omitted; internal quotation marks omitted.) Id., 417. The jury, therefore, was entitled to believe the mother’s testimony regarding the length of time the children were unattended.

Furthermore, the jury reasonably could infer that the children, ages three and one-half, two and one, were seriously at risk of likely injury to their health or that their lives or limbs were endangered when they were left unattended in the apartment. There was sufficient evidence for the jury to conclude beyond a reasonable doubt that the physical well-being of the children was put at risk when the defendant left them in a dangerous situation, i.e., alone in the apartment, thereby exposing them to injury.

Viewing the evidence in the light most favorable to sustaining the verdict, we conclude that the jury reasonably could have concluded from the facts and the inferences reasonably drawn therefrom that the evidence established beyond a reasonable doubt that the defendant subjected the children to a risk of injury. Therefore, the court properly denied his motion for judgment of acquittal as to counts three, four and five of the substitute information.

II

The defendant’s second claim is that § 53-21 is unconstitutionally vague on its face and as applied to the particular facts of this case. We disagree.

While this claim was not preserved at trial, we will review it under the guidelines set forth in State v. Golding, 213 Conn. 233, 567 A.2d 823 (1989), because the claim of unconstitutional vagueness implicates the fundamental due process right to fair warning of the applicability of § 53-21. See State v. Evans, 165 Conn. 61, 327 A.2d 576 (1973). As a general rule, when a statute is attacked as void for vagueness, its validity is determined by its application to the particular facts at issue. Village of Hoffman Estates v. Flipside, Hoffman Estates, Inc., 455 U.S. 489, 495, 102 S. Ct. 1186, 71 L. Ed. 2d 362 (1982); State v. Pickering, 180 Conn. 54, 57, 428 A.2d 322 (1980). In challenging the constitutionality of a statute, the defendant bears the heavy burden of establishing beyond a reasonable doubt that the statute is in fact unconstitutional. State v. Hernandez, 204 Conn. 377, 385, 528 A.2d 794 (1987). On appeal, a court will indulge in every presumption in favor of a statute’s constitutionality. State v. Jason B., 248 Conn. 543, 556, 729 A.2d 760 (1999). If a penal statute provides fair warning, it will survive a vagueness attack. State v. Pickering, supra, 61.

“If the meaning of a statute can be fairly ascertained a statute will not be void for vagueness since [m]any statutes will have some inherent vagueness . . . .” (Internal quotation marks omitted.) Id., 62. This court must “also look to see whether a person of ordinary intelligence would reasonably know what acts are permitted or prohibited by the use of his common sense and ordinary understanding.” State v. Erzen, 29 Conn. App. 591, 594, 617 A.2d 177 (1992).

In State v. Schriver, 207 Conn. 456, 457, 542 A.2d 686 (1988), a defendant was convicted of violating § 53-21 for following the thirteen year old victim, grabbing her around her waist and stating, “ ‘Don’t worry, all I want to do is feel you.’ ” In Schriver, our Supreme Court determined that § 53-21 was facially vague because it “fail[ed] to articulate a definite standard for determining whether the conduct of the defendant in this case is permitted or prohibited.” Id., 461. The court stated further that “ ‘ [a]ny act’ may violate the statute so long as it is ‘likely to impair’ a minor’s health or morals. Standing alone, the phrase ‘any act’ provides no guidance to potential violators, police officers or juries, particularly because specific intent is not an element of the offense as charged in this case. . . . Nor is the focus of the statute measurably narrowed by the phrase ‘likely to impair.’ In its ordinary meaning, this phrase would seem to authorize police officers and jurors to determine culpability subjectively, on an ad hoc basis. Rather than providing objective certainty, this phrase compounds the vagueness of the statute because it invites jurors to base criminal liability on their own moral predilections and personal predictions of likely harm. . . . [Section] 53-21 fails to manifest minimal guidelines by which innocent acts can be objectively and foreseeably distinguished from conduct that violates the statute. The ‘absence of any ascertainable standard for inclusion and exclusion is precisely what offends the Due Process Clause. . . . Clearly, the constitutionality of § 53-21 depends upon a determination of the extent to which prior decisions of this court have supplied sufficient guidelines to save the statute from its facial invalidity.” (Citations omitted.) Id., 461-62.

While the Schriver court ultimately determined that § 53-21 was unconstitutionally vague as applied to the facts of that case, finding that the defendant “had no reasonable opportunity to know that his conduct was prohibited”; id., 466; the defendant in the present case will not enjoy the same result. Prior decisions of this court and our Supreme Court have supplied sufficient guidelines that afforded the defendant reasonable notice that his conduct was prohibited and, therefore, preclude § 53-21 from being found facially invalid.

The statute sets forth two different types of behavior that are likely to injure a child physically or to impair the child’s morals: (1) deliberate indifference to, acquiescence in or the creation of a situation inimical to the child’s moral or physical welfare, and (2) acts directly perpetrated on the person of the child and injurious to his or her moral or physical well-being. State v. Dennis, 150 Conn. 245, 250, 188 A.2d 65 (1963). The defendant here was charged under the first category, namely, creating a situation that endangered the lives or limbs of the children or risked injury to their health. Prior cases have held that a defendant who knowingly fails to provide for the protection of a child when that child is under the care of the defendant creates a situation that endangers the physical well-being of the child and, thus, falls within the ambit of the statute. See, e.g., State v. George, 37 Conn. App. 388, 390-92, 656 A.2d 232 (1995) (leaving seventeen month old child unattended in apartment created situation risking injury to child’s health and life or limb); see also, e.g., State v. Tyler-Barcomb, 197 Conn. 666, 668-69, 500 A.2d 1324 (1985), cert. denied, 475 U.S. 1109, 106 S. Ct. 1518, 89 L. Ed. 2d 916 (1986) (not unreasonable for jury to conclude that defendant violated § 53-21 by failing to prevent further sexual abuse to her daughter despite being aware that abuse was occurring and by having sexual intercourse with abuser in daughter’s presence).

Furthermore, while this court recognizes that the children in this case did not sustain any actual injury as a result of the defendant’s absence, the statute covers the situation where there need only be a risk of injury for the defendant to be convicted. See State v. Williams, 18 Conn. App. 477, 479, 558 A.2d 1026, cert. denied, 212 Conn. 809, 564 A.2d 1073 (1989); State v. Apostle, 8 Conn. App. 216, 243, 512 A.2d 947 (1986).

Those cases and numerous others provided sufficient guidelines that gave the defendant fair warning that leaving his three young children unattended created a situation that endangered their lives and limbs. Therefore, we conclude that § 53-21, as applied to the defendant’s conduct in the present case, is constitutional because it provided sufficient notice to him that his conduct was prohibited. See State v. Pickering, supra, 180 Conn. 62.

The judgment is affirmed.

In this opinion the other judges concurred.

       Although the defendant was convicted of one count of assault in the third degree in violation of § 53a-61 and four counts of risk of injury to a child in violation of § 53-21, on appeal he presents issues that relate only to his conviction on the three counts of risk of injury to a child that were based on allegations that he placed children under the age of sixteen in a situation where their lives, limbs or health were likely to be injured or their morals impaired. Accordingly, our discussion will be limited to the defendant’s claims as to three of the four risk of injury counts.
      General Statutes (Rev. to 1993) § 53-21 provides in relevant part: “Any person who wilfully or unlawfully causes or permits any child under the age of sixteen years to be placed in such a situation that its life or limb is endangered, or its health is likely to be injured, or its morals likely to be impaired . . . shall be fined not more than five hundred dollars or imprisoned not more than ten years or both.”

       Aside from the common items in a home that often prove hazardous to toddlers, there was testimony that these toddlers were known to leave their apartment to look for their mother when she used the telephone downstairs. In addition, there was testimony presented that the individuals in the hallway who informed Moorehead that the defendant had left as soon as she had left were drug dealers.

       In State v. Golding, supra, 213 Conn. 239-40, our Supreme Court held that “a defendant can prevail on a claim of constitutional error not preserved at, irial only if all of the following conditions are met: (1) the record is adequate to review 1 he alleged claim of error; (2) the claim is of constitutional magnitude alleging the violation of a fundamental right; (3) the alleged constitutional violation (dearly exists and clearly deprived the defendant of a fair trial; and (4) if subject to harmless error analysis, the state has failed to demonstrate harmlessness of the alleged constitutional violation beyond a reasonable doubt.'’