author: BORDEN, J.

text:
    RADCLIFFE RAYNOR v. COMMISSIONER OF CORRECTION
    (AC 29544)
    Flynn, C. J., and DiPentima and Borden, Js.

      Argued September 3
    officially released November 3, 2009

      Sarah F. Summons, special public defender, for the appellant (petitioner).

      Robert J. Seheinblum, senior assistant state’s attorney, with whom, on the brief, were Gail P. Hardy, state’s attorney, and Erik T. Lohr, former assistant state’s attorney, for the appellee (respondent).
   Opinion

BORDEN, J.

The petitioner, Radcliffe Raynor, appeals, following a grant of certification to appeal by the habeas court, from the judgment of the court denying his petition for a writ of habeas corpus in which he claimed ineffective assistance of trial counsel in his criminal trial. The petitioner claims that the court improperly concluded that his trial counsel was not ineffective in (1) failing properly to prepare for and to investigate prior to trial and (2) failing to recall a certain witness in the criminal trial. We conclude that the first claim is not properly before us and that the court properly rejected the second claim. Accordingly, we affirm the judgment of the habeas court.

The petitioner was convicted, after a juiy trial, of sexual assault in the first degree in violation of General Statutes § 53a-70 (a) (1), sexual assault in the second degree in violation of General Statutes § 53a-71 (a) (1), and risk of injury to a child in violation of General Statutes (Rev. to 1999) § 53-21 (2). He was sentenced by the trial court to a total effective term of fifteen years imprisonment. On direct appeal, this court affirmed the judgment of conviction. State v. Raynor, 84 Conn. App. 749, 854 A.2d 1133, cert. denied, 271 Conn. 935, 861 A. 2d 511 (2004). Thereafter, the petitioner brought this petition, which the habeas court after an evidentiary hearing, denied. This appeal followed.

On the direct appeal, this court summarized the facts underlying the petitioner’s conviction as follows. “In November, 1999, the thirteen year old victim resided with her mother in an apartment in Hartford. The victim and her mother regularly attended a church located next door to their apartment. One night in November, the victim’s mother left the apartment to attend a meeting at the church, leaving the victim alone. On her way to the church office, the victim’s mother encountered the [petitioner], a relative, who asked to use the telephone in the apartment. After initially denying the [petitioner’s] request to use the telephone, the victim’s mother asked the victim to open the door to the apartment for the [petitioner]. The [petitioner] indicated to the victim’s mother that he would stay with the victim until she returned from the church meeting. The victim’s mother told the [petitioner] that that would be good and that she would return in about one and one-half hours.

“After opening the door to the apartment for the [petitioner], the victim went to her room to watch television while the [petitioner] used the telephone in the living room. After the [petitioner] finished using the telephone, he entered the victim’s bedroom. The [petitioner] began to speak to the victim about his wife. As he did so, the [petitioner] stood toward the end of the victim’s bed as she was lying on it. After speaking with the victim about his wife, the [petitioner] asked the victim to give him a hug. The victim then stood up from her bed and hugged the [petitioner]. She sat down on the edge of her bed. The [petitioner] asked the victim to hug him again and the victim complied, although this time, she described the hug as ‘uncomfortable’ because she could feel the [petitioner’s] ‘private part.’ The [petitioner] pushed the victim down on her bed. While holding both of the victim’s hands with one of his hands, the [petitioner] pulled down the victim’s pajamas and underwear. As the victim screamed and told him to stop, the [petitioner] used his legs to open the victim’s legs and inserted his penis inside her vagina. After the [petitioner] removed his penis from the victim’s vagina, the victim could see ‘white stuff coming out of his penis onto the carpet and the bed. The [petitioner] went into the bathroom and subsequently left the apartment.

“The victim subsequently went to the bathroom and noticed that, at a time when she was not having her period, blood was coming from her vagina. The victim put on a sanitary pad and went back to her room. Before the victim’s mother returned home from church, the [petitioner] called to apologize and to tell the victim that she should not tell her mother what had happened because his life was in her hands, that it would cause a big problem for the family and that no one would believe her. When the victim’s mother did arrive home from church, the victim was still in her room. The victim’s mother came into the victim’s room and inquired why the victim had not responded to her when she called her from the living room. The victim’s mother noticed a sanitary pad wrapper in the bathroom. The victim’s mother asked the victim why, after the victim had had her menstrual period two weeks earlier, she again seemed to ‘be on her period.’ The victim did not relate to her mother at that time the incident that had just occurred with the [petitioner] and instead responded that she had been ‘playing’ with herself.

“The victim did not tell anyone of the incident with the [petitioner] until sometime after Christmas in late December, 1999, or early January, 2000. At that time, the victim told her cousin that she needed to go to a doctor because she thought something was wrong with her. The victim then disclosed to her cousin [S] that the [petitioner] had raped her. The victim’s cousin told her mother, the victim’s maternal aunt, who then told the victim’s mother that the [petitioner] had raped the victim.

“After learning that the victim had been sexually assaulted, the victim’s mother took her to the emergency room at Saint Francis Hospital and Medical Center in Hartford. There, the victim was given a medical examination, and the incident between the victim and the [petitioner] was reported to the police. The victim subsequently was interviewed by a specialist working primarily with child victims of sexual abuse. That interview was observed by Steven DiBella, a sergeant with the Hartford police department’s detective division. During the interview, the victim described the incident that occurred between her and the [petitioner] the previous November. After further investigation and interviews, DiBella arrested the [petitioner] on June 21, 2000.” Id., 750-53.

Among the claims raised on direct appeal, all of which this court rejected, were claims that the trial court improperly had admitted certain evidence of prior misconduct by the petitioner. That evidence consisted of the following.

D, a thirteen year old female friend of the victim, testified that on one occasion when she called the victim’s apartment, the petitioner answered the telephone and, instead of giving the telephone to the victim, asked D her name and age. When D asked whether the victim was there, the petitioner said that she had the wrong number. D ended the call and called back; the victim answered the telephone and told D that the petitioner had answered the telephone. D also testified regarding another occasion when she was on the front porch of the victim’s house and the petitioner approached in a car. The petitioner yelled to her and asked her how old she was. When she responded that she was too young for him, he answered that she was not too young for him.

The victim and her mother also testified about an incident involving another female Mend of the victim. They witnessed the petitioner holding onto the friend while she attempted to repel the petitioner.

J, another thirteen year old female friend of the victim, testified that when she and the victim were in the seventh grade, they accompanied the petitioner to a Sears, Roebuck and Company store to retrieve a car belonging to the victim’s mother. While she was alone in the car with the petitioner, he asked her whether she had a boyfriend and whether she was a virgin, and asked to perform oral sex on her. The petitioner told her that she “had a nice body for being very young,” and that he was going to have sex with K, another thirteen year old girl whom she knew. (Internal quotation marks omitted.) Id., 755. J testified further that the petitioner began to touch her on her chest and tried to put his hand between her legs, stopping only after she slapped his hand away.

Finally, DiBella, the investigating officer on the case, testified, in response to a question by the petitioner on cross-examination and a further question by the state on redirect examination, that S, the victim’s cousin, had told him that the petitioner had a “thing for young girls.” (Internal quotation marks omitted.) Id., 754. Immediately after DiBella’s testimony, the court characterized the testimony to the jury as “sort of thirdhand . . . statements made about the misconduct on the part of the [petitioner] involving other persons,” which the jury could consider only on the issues of intent and motive. (Internal quotation marks omitted.) Id.

In its final instructions, the court instructed the jury that it could consider the testimony of D, of the victim and her mother regarding the petitioner’s conduct with the victim’s female friend, and the testimony of J only on the issues of the petitioner’s intent and motive, and for no other purpose. The court did not refer to DiBella’s testimony in those instructions.

In his amended petition for a writ of habeas corpus, the petitioner presented two counts. In the first count, he alleged that his trial counsel was ineffective in that she failed to prepare adequately for trial by failing to locate and to subpoena certain defense witnesses, failed to present favorable evidence by failing to rebut DiBel-la’s testimony regarding the testimony of S that the petitioner had an interest in young girls, improperly opened the door to DiBella’s testimony, failed to rebut certain medical evidence regarding the victim and failed properly to preserve certain issues for appellate review. In the second count, the petitioner claimed that he was actually innocent of the crimes of which he was convicted.

At the hearing on the petition, the petitioner testified and also presented the testimony of his girlfriend, Bob-bette Cassanova, and of S. The petitioner denied engaging in any sexual misconduct with any of the prior misconduct witnesses and denied engaging in sex with the victim. Cassanova testified that she had told the petitioner’s trial counsel that S denied having told DiBe-11a that the petitioner had an interest in young girls. S testified that she had not told DiBella that the petitioner was interested in young girls. Neither the petitioner nor the respondent, the commissioner of correction, called trial counsel as a witness, although she was available. The respondent did not call any witnesses. In his post-hearing brief, the petitioner made only two claims: (1) that his trial counsel’s performance was ineffective because she had not recalled S to rebut DiBella’s testimony that S had told him that the petitioner had a “thing for young girls”; (internal quotation marks omitted) id.; and (2) that the respondent’s failure to call trial counsel as a witness should cause the court to draw an adverse inference against the respondent and to infer, therefore, that her testimony would have been unfavorable to the respondent.

In its memorandum of decision, the court first found that, with regard to the petitioner’s second count, he had not established his actual innocence. With regard to the petitioner’s first count, namely, ineffective assistance of trial counsel, the court found it unnecessary to consider the adequacy of counsel’s performance because the petitioner “has failed to undermine this court’s confidence in the outcome of the underlying trial and has, therefore, not proven that he was in any way prejudiced by his counsel’s performance.” In this connection, the court noted that with respect to the petitioner’s claim that his trial counsel was ineffective by failing to recall S, “[t]here was ample evidence presented during the trial that the petitioner ‘had a thing for young girls’ that was considered by the jury, as instructed by the court, for purposes of motive and intent.”

As the court aptly noted, for a petitioner to prevail on a claim of ineffective assistance of counsel under Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984), he must establish both that counsel’s representation fell below an objective standard of reasonableness and that counsel’s deficient performance prejudiced the defense. The prejudice prong “requires showing that counsel’s errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable. . . . The defendant must show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome.” (Internal quotation marks omitted.) Valentin v. Commissioner of Correction, 94 Conn. App. 751, 755, 895 A.2d 242 (2006). Accordingly, the court denied the petition because the petitioner had failed to prevail under the second prong of Strickland.

Although on appeal the petitioner claims that his counsel was ineffective in (1) failing to prepare for and to investigate prior to trial and (2) failing to recall S to rebut DiBella’s testimony that she had told him that the petitioner had a “thing for young girls”; (internal quotation marks omitted.) State v. Raynor, supra, 84 Conn. App. 754; we conclude that the only claim properly before us is the second of these two claims. That is the only claim that he made to the habeas court in his posttriai brief that relates to the court’s determination of a lack of prejudice, which was the determining factor in the court’s decision. The petitioner’s failure to brief his first claim to the habeas court, namely, improper preparation and investigation by trial counsel, resulted in an abandonment of that claim. “[Reviewing courts are not required to review issues that have been improperly presented to th[e] court through an inadequate brief. . . . Analysis, rather than mere abstract assertion, is required in order to avoid abandoning an issue by failure to brief the issue properly. . . . Where a claim is asserted in the statement of issues but thereafter receives only cursory attention in the brief without discussion or citation of authorities, it is deemed to be abandoned. . . . These same principles apply to claims raised in the trial court. . . . Connecticut Light & Power Co. v. Dept. of Public Utility Control, 266 Conn. 108, 120, 830 A.2d 1121 (2003).” (Emphasis in original; internal quotation marks omitted.) Lewis v. Commissioner of Correction, 89 Conn. App. 850, 869, 877 A.2d 11, cert. denied, 275 Conn. 905, 882 A.2d 672 (2005); see also Collins v. Goldberg, 28 Conn. App. 733, 738, 611 A.2d 938 (1992) (failure to brief certain claims set forth in complaint constituted abandonment of claims in trial court). Thus, it is entirely understandable and proper that with respect to the claim of ineffective assistance of counsel, trial counsel’s failure to recall S for rebuttal purposes is the only claim that the habeas court addressed, and, therefore, the only claim that is properly before us on appeal.

We turn, therefore, to the propriety of the determination of the court that the petitioner failed to show prejudice from his trial counsel’s failure to recall S to rebut DiBella’s testimony that S had told him that the petitioner had a “thing for young girls.” (Internal quotation marks omitted.) State v. Raynor, supra, 84 Conn. App. 754. We agree with the court that the petitioner has failed to satisfy the second prong of Strickland.

First, there was more than ample evidence from the other prior misconduct evidence witnesses, namely, the victim, her mother, D and J, from which the jury could have inferred that the petitioner had a strong interest in young girls. DiBella’s testimony was merely cumulative of that other evidence. Consequently, S’s testimony that she did not tell DiBella that the petitioner had a “thing for young girls”; (internal quotation marks omitted) id.; which the petitioner complains should have been adduced by his trial counsel, would only have rebutted evidence that was cumulative of other evidence that was left unrebutted. Second, that other evidence was much more direct and persuasive than DiBella’s testimony, which the trial court characterized for the jury as “sort of thirdhand” testimony; (internal quotation marks omitted) id.; and to which the trial court did not even refer in its final jury instructions. S’s testimony would not have rebutted much more persuasive evidence to the same effect and was by its nature of only marginal weight as compared to that other evidence. We conclude, therefore, that the evidence on which the petitioner relies is not the kind of evidence that probably would have led to a different result and that undermines our confidence in the jury’s verdict.

The judgment is affirmed.

In this opinion the other judges concurred.

       In accordance with our policy of protecting the privacy interests of the victims of sexual abuse and the crime of risk of injury to a child, we decline to identify the victim or others through whom the victim’s identity may be ascertained. See General Statutes § 54-86e.

       The claim in the petitioner’s posttriai brief that the court should draw an inference adverse to the respondent because of the respondent’s failure to call the petitioner’s trial counsel would, even if meritorious, relate only to the adequacy of counsel’s performance. It would have no relevance to the court’s critical determination regarding the lack of prejudice. Thus, there was no need for the court to address that claim.

       In this connection, we note that the petitioner does not challenge on appeal the court’s rejection of his claim of actual innocence. Furthermore, to the extent tha! he appears to raise other claims on appeal, namely, ineffective assistance of his habeas counsel and erroneous admission of the prior misconduct evidence at the criminal trial, those claims clearly are beyond the proper province of the habeas petition.


source: Caselaw Access Project

author: WEST, J.

license: Public Domain

text:
    STATE OF CONNECTICUT v. BRANDEN HOLLOWAY
    (AC 29051)
    DiPentima, Lavine and West, Js.

      Argued May 18
    officially released November 10, 2009

      Mark Rademacher, assistant public defender, for the appellant (defendant).

      Timothy J. Sugrue, senior assistant state’s attorney, with whom, on the brief, were David I. Cohen, state’s attorney, and Rita M. Shair and Richard Colangelo, senior assistant state’s attorneys, for the appellee (state).
   Opinion

WEST, J.

The defendant, Branden Holloway, appeals from the judgment of conviction, rendered after a jury trial, of criminal possession of a pistol or revolver in violation of General Statutes § 53a-217c (a) (1), possession of a weapon in a motor vehicle in violation of General Statutes § 29-38, possession of narcotics with intent to sell by a person who is not drug-dependent in violation of General Statutes § 2 la-278 (b) and possession of narcotics with intent to sell within 1500 feet of a public housing project in violation of General Statutes § 21a-278a(b). The defendant makes several claims on appeal. First, he claims that the court improperly removed from the jury the determination of whether he met the statutory definition of a drug-dependent person. Next, the defendant claims that the court improperly admitted evidence of his prior misconduct. The defendant also claims that the court improperly failed to instruct the jury on the doctrine of nonexclusive possession with regard to the pistol or revolver. Next, the defendant claims that there is insufficient evidence to support his conviction of possession of a weapon in a motor vehicle. Last, the defendant claims that the court imposed an improper sentence for his conviction of criminal possession of a pistol or revolver. We affirm in part and reverse in part the judgment of the trial court.

The jury reasonably could have found the following facts. On the morning of November 28, 2005, Sergeant William Lowe, Detective Mark Lepore and Officer Terrance Blake of the Norwalk police department were assigned to locate and to arrest the defendant pursuant to a warrant for a violation of probation. The three police officers, traveling together in an unmarked police cruiser and dressed in plain clothes, headed to the area surrounding the Colonial Village public housing project—the area they were assigned to search. They were aware that the defendant likely was driving a black Hyundai for which they had the license plate number. The officers drove to a parking area behind a strip mall located at 280 Connecticut Avenue, across the street from Colonial Village. As the officers approached this area, Blake, who was driving, saw a black Hyundai parked perpendicular to a wall. The license plate number matched the one that the officers were given, and Blake parked so that the Hyundai was blocked by the cruiser. Parked next to the Hyundai was a white Nissan Sentra, in which Frank Bruno was seated. The defendant was walking from his vehicle to the Nissan as the officers approached; he was between the two vehicles as the officers exited the cruiser.

Upon exiting the cruiser, the officers identified themselves, drew their revolvers, ordered the defendant to stop and put his hands up and informed him that he was under arrest. The defendant did not comply and moved toward the wall adjacent to where his car was parked. Lepore walked to one side of the Hyundai while Blake walked between the Nissan and the Hyundai in an effort to cut off any means of escape for the defendant. Lowe, who noticed that Bruno was attempting to swallow something that Lowe believed to be packaged cocaine, approached the Nissan and, through the driver’s side window, attempted to stop Bruno from swallowing the contraband by grasping him by the jaw. As Lowe confronted Bruno, Lepore and Blake attempted to place the defendant under arrest and to handcuff him. The defendant became verbally abusive and resisted their efforts to handcuff him by kicking and elbowing the officers, tensing his arms, thrashing his body and limbs about and wrestling with the officers. During this struggle, Lepore, in an effort to gain control of the defendant, punched him multiple times on the back and upper arms. This had no discernible effect because the defendant continued to resist the officers.

At one point during the struggle with the defendant, Blake released his grip on him and retrieved a Taser gun from Lepore’s utility belt. Blake warned the defendant twice that if he did not stop resisting, he would be immobilized with the Taser gun. When the defendant did not comply, Blake shot him with the Taser gun in the back after which the defendant fell to the ground and was handcuffed. Soon after the defendant was subdued, Blake searched him and retrieved from his left front pants pocket a plastic bag containing twelve bags of a white powdery substance. Subsequent chemical testing conducted by Lepore and then by Rafal Miel-guj, a department of public safety chemist, confirmed that the substance was cocaine. Mielguj determined that the cocaine seized from the defendant weighed approximately seventeen grams and was divided into the twelve bags in amounts varying from about one third of a gram to more than five grams.

During the struggle with the defendant, Lepore radioed for backup assistance. Greg Scully, a Norwalk police officer, responded to Lepore’s call. Upon arriving at the scene, Scully saw a man later identified as Sean Sullivan, the defendant’s cousin, who was carrying a small gray plastic bag, run from the area. Previously, Sullivan had been seated in the Hyundai during the officers’ interactions with the defendant and Bruno. As the defendant was being handcuffed, Sullivan exited the Hyundai and ran away. Scully pursued Sullivan in his vehicle. At no time prior did Lowe, Lepore or Blake observe Sullivan in the Hyundai. Soon after he started pursuing Sullivan, Scully exited his vehicle and continued to pursue him on foot. Scully then tackled and subdued Sullivan. Scully found a loaded nine millimeter Tech-9 handgun along with an instruction manual for the weapon inside the gray plastic bag.

The jury subsequently found the defendant guilty of criminal possession of a pistol or revolver, possession of a weapon in a motor vehicle, possession of narcotics with intent to sell by a person who is not drug-dependent and possession of narcotics with intent to sell within 1500 feet of a public housing project. The court imposed a total effective sentence of fifteen years incarceration. This appeal followed. Further facts will be set forth as necessary.

I

The defendant first claims that the court improperly removed from the jury the determination of whether he met the statutory definition of a drug-dependent person. As a result, the defendant contends, the court denied the defendant his constitutional rights to present a defense and to have issues of fact decided by a jury. The defendant asserts, therefore, that his conviction of both possession of narcotics with intent to sell by a person who is not drug-dependent and possession of narcotics with intent to sell within 1500 feet of a public housing project should be reversed and remanded for a new trial.

The state concedes that the court improperly removed from the jury the determination of whether the defendant met the statutory definition of a drug-dependent person. The state, however, argues that the remedy sought by the defendant is inappropriate. The state contends that this court should reverse the defendant’s conviction of possession of narcotics with intent to sell by a person who is not drug-dependent only and remand the case with direction to modify that conviction to reflect the lesser included offense of sale of narcotics in violation of General Statutes § 21a-277 (a). We disagree with both parties and reverse only the conviction of possession of narcotics with intent to sell by a person who is not drug-dependent and remand the case for a new trial on that charge.

A

Our Supreme Court has stated that a “trial court should instruct the jury concerning the issue of drug dependency and [a] defendant’s burden of proof if it determines that there is any foundation in the evidence, no matter how weak or incredible . . . .” (Internal quotation marks omitted.) State v. Hart, 221 Conn. 595, 613, 605 A.2d 1366 (1992). Here, the defendant presented evidence of drug dependency. First, the defendant testified that he smoked marijuana on a daily basis and used phencyclidine, otherwise known as PCP, on a weekly basis. The defendant also presented as a full exhibit a discharge summary from his stay at Norwalk Hospital subsequent to his arrest. That summary stated that the defendant had a “[hjistory of daily marijuana use and weekly PCP use.” It also stated that a urinalysis showed a positive result for the presence of marijuana and PCP. The defendant’s grandmother also testified that she had been aware of his marijuana use and had once seen him under the influence of drugs. The defendant also called as a witness Edward Conway, a probation officer personally familiar with the defendant and his probation file. Conway testified that the defendant had submitted to a urinalysis as a part of his conditions of probation. He testified that it was positive for drug use. Conway also testified that as a result of that positive test, the office of adult probation referred the defendant for substance abuse treatment at Connecticut Renaissance. Last, Conway testified that one of the reasons that the violation of probation warrant was issued was that the defendant tested positive for drug use and was non-compliant with substance abuse treatment. Furthermore, Bruno and Jourden Huertas, the defendant’s brother, also testified that the defendant regularly used marijuana and PCP.

During the testimony of James Gadzik, a trauma surgeon who treated the defendant while he was an inpatient at Norwalk Hospital, the defendant attempted to admit into evidence a psychological assessment performed by Sheila Devlin-Craane, a nurse practitioner of psychiatry. That assessment was ordered as a result of the defendant’s having tested positive for drug use after his admission to Norwalk Hospital and was part of his hospital records. Devlin-Craane’s assessment indicated that the defendant was dependent on PCP and abused marijuana. The court, however, sustained the state’s objection to its admission and, outside the presence of the jury, stated: “Under our law currently, as I understand it, for the purpose of proving that the defendant is drug-dependent . . . you must present evidence from a mental health professional trained in the application of the diagnostic criteria using [the most recent edition of the Diagnostic and Statistical Manual of Mental Disorders of the American Psychiatric Association (DSM-IV)] with respect to the satisfaction of the criteria for drug dependency.” The court observed that the assessment likely was based on the defendant’s representations regarding his drug use rather than the criteria set out in the DSM-IV and stated that “whether that makes him . . . dependent or not requires an expert.”

The court, furthermore, in its charge to the jury, stated: “The defendant has the burden of proving drug dependency by a preponderance of the evidence. Proof by a preponderance of the evidence means considering all the evidence fairly and impartially, enough evidence to produce in your minds a reasonable belief that what is sought to be proven is more likely true than not. . . . I had indicated earlier to the defendant that he had not even presented any evidence under this special defense. And I would have ordinarily ruled that there was no issue on that question, and you may presume that the state does not have to prove he was [not] drug-dependent; you can rely on the assumption. But, because he did introduce some evidence, I am now indicating that whatever evidence [he] did introduce does not meet that standard. The state does not have to prove as a matter of fact that the defendant was drug-dependent; the state may rely on the presumption that he wasn’t drug-dependent. ” (Emphasis added.) We conclude that the court did improperly remove from the jury the determination of whether the defendant met the statutory definition of a drug-dependent person.

B

Although we conclude that the court improperly removed from the jury the determination of whether the defendant met the statutory definition of a drug-dependent person, we must now determine the appropriate remedy. The state argues that it is entitled to a modification of the judgment to reflect a conviction of the lesser included offense of sale of narcotics. State v. Sanseverino, 291 Conn. 574, 590-98, 969 A.2d 710 (2009) (en banc), a case in which the issue of whether, and if so, under what circumstances, an appellate court of this state may order the modification of a judgment to reflect a conviction of a lesser included offense, is instructive to our resolution of the state’s claim. In Sanseverino, the defendant, after a jury trial, had been convicted of, inter alia, kidnapping in the first degree in violation of General Statutes § 53a-92 (a) (2) (A). The state, in its motion for reconsideration, argued, among other things, that it was entitled either to retry the defendant for kidnapping or a judgment of conviction of unlawful restraint in the second degree in violation of General Statutes § 53a-96, as a lesser offense included within kidnapping in the first degree. State v. Sansever-ino, supra, 579. Our Supreme Court agreed with the state that it was entitled either to retry the defendant or to a modification of the judgment. Id. In doing so, however, the court stated that it “disagreefd] with the state that the broad issue presented by the state’s . . . claim [of] whether, and if so, when, an appellate court may order the modification of a judgment in the manner requested in the present case, is settled in this state.” Id., 593.

Our Supreme Court explained that “[i]ndeed, this court never has addressed [that] issue directly. Moreover, there is a distinct split of authority on [that] question among both state and federal courts. Some courts have held that it is appropriate for an appellate court to order the modification of a judgment to reflect a conviction of a lesser included offense, even in the absence of a jury instruction on that lesser offense, when it is not unfair to the defendant to do so. . . . Other courts have barred such a modification unless the jury has been instructed on the lesser included offense.” (Citations omitted.) Id., 593-94. The court concluded that under the “unique circumstances” in Sanseverino, the state was entitled to the modification of the judgment that it sought. Id., 595. The court reached that conclusion for four express reasons, “each of which [was] integral to [its] decision.” Id. First, there was no reason for the court to believe that the state opted against seeking a jury instruction on the lesser included offense for strategic purposes. Second, the defendant had benefited from the intervening change in the law that resulted from the court’s decision in State v. Salamon, 287 Conn. 509, 949 A.2d 1092 (2008). Third, the defendant did not file an objection to the state’s request for modification. Finally, the court concluded that it was not unfair to the defendant to impose a conviction of the lesser included offense. State v. Sanseverino, supra, 291 Conn. 595. The court emphasized that “it intimate[d] no view as to whether the state would be entitled to such a modification in the absence of any one of the factors that are present in [that] case.” (Emphasis added.) Id., 596 n.18. It further referenced “the fact that [it] limitfed] [its] holding to the particular facts and procedural history of [that] case, and that [it] decline [d] to decide the broader issue presented, namely, under what particular circumstances is it appropriate for an appellate court to require the conviction of a lesser included offense upon reversal of a conviction of the greater offense.” Id., 597 n.18.

In the defendant’s appeal, each of the factors detailed in Sanseverino are not present. First, we consider the factor that there ought to be no reason for this court to believe that the state opted against seeking a jury instruction on the lesser included offense for strategic purposes. See id., 595. We conclude, much as our Supreme Court concluded in Sanseverino, that there was no purpose for the state to seek an instruction on the lesser included offense, and, therefore, a fortiori, there could not have been a strategic purpose. This is so for several reasons. The state was aware that the court considered, wrongly, that an expert witness was required to establish the defendant’s drug dependence. The state participated in the argument involving the defendant’s attempt to admit into evidence Devlin-Craane’s assessment. Therefore, the state knew of the court’s ruling concerning the issue of the defendant’s evidence of drug dependency before the court charged the jury and, therefore, had no reason to seek an instruction on the lesser included offense. Supporting this conclusion is the fact that in its charge to the jury, the court stated that it “had indicated earlier to the defendant that he had not even presented any evidence under this special defense.” This indicates that the state also was aware, prior to the court’s instructing the jury, that the defendant had not met his burden of producing evidence, in the court’s opinion, of his drug dependence, sufficient to require that the court give such an instruction to the jury and that the court would allow the state to rely on the presumption that the defendant was not drug-dependent. Although we conclude that the state had no reason to seek an instruction on the lesser included offense, and, consequently, the state’s failure to do so was not possibly the product of a strategic decision, we conclude that under the circumstances present here, that factor cannot weigh in favor of the state. This is so, in large part, because that circumstance clearly was predicated on the court’s error and not on an unforeseeable, intervening change in the law, as was the case in Sanseverino.

We also conclude that the remaining factors detailed in Sanseverino do not favor the state’s position. There was no intervening change in the law that inured to the benefit of the defendant; the defendant objects to the modification of his conviction; and we cannot conclude, on the basis of the record before us, that it would be fair to modify the judgment to reflect the lesser included offense. See State v. Sanseverino, supra, 291 Conn. 595. The unusual circumstances of this case lead us to conclude that it is inappropriate for this court to order a modification of the judgment to reflect a conviction of the lesser included offense of sale of narcotics. Accordingly, we reverse the conviction of possession of narcotics with intent to sell by a person who is not drug-dependent and remand the case for a new trial on that charge.

II

The defendant next claims that the court improperly admitted evidence of his prior misconduct. Specifically, the defendant contends that the court abused its discretion in admitting testimony concerning various shootings that occurred prior to his arrest because the incidents were not material to the issue of whether he had knowledge of the gun having been in his car. The defendant further argues that the prejudicial nature of the evidence outweighed its probative value. The state contends that the evidence at issue in this claim was not objected to on the same grounds asserted on appeal, and, therefore, the claim is not reviewable by this court. We agree with the state.

The defendant claims that the court abused its discretion in admitting testimony concerning various shootings that occurred prior to his arrest. Our standard of review of a claim that a court improperly admitted evidence is well established. “The trial court’s ruling on the admissibility of evidence is entitled to great deference. . . . [T]he trial court has broad discretion in ruling on the admissibility ... of evidence . . . [and its] ruling on evidentiary matters will be overturned only upon a showing of a clear abuse of the court’s discretion. . . . We will make every reasonable presumption in favor of upholding the trial court’s ruling, and only upset it for a manifest abuse of discretion. . . . Moreover, evidentiary rulings will be overturned on appeal only where there was an abuse of discretion and a showing by the defendant of substantial prejudice or injustice.” (Internal quotation marks omitted.) State v. Colon, 272 Conn. 106, 180, 864 A.2d 666 (2004), cert. denied, 546 U.S. 848, 126 S. Ct. 102, 163 L. Ed. 2d 116 (2005). “Our review [however] of evidentiary rulings made by the trial court is limited to the specific legal ground raised in the objection. Practice Book [§§ 60-5 and 5-5]; State v. Rothenberg, 195 Conn. 253, 262, 487 A.2d 545 (1985); State v. Braman, 191 Conn. 670, 684-85, 469 A.2d 760 (1983). The reason for this rule is clear: it is to alert the trial court to an error while there is time to correct it; State v. Rothenberg, supra, 263; State v. Jones, 193 Conn. 70, 88, 475 A.2d 1087 (1984); and to give the opposing party an opportunity to argue against the objection at trial. To permit a party to raise a different ground on appeal than was raised during trial would amount to ‘trial by ambuscade,’ unfair both to the trial court and to the opposing party. State v. Brice, 186 Conn. 449, 457, 442 A.2d 906 (1982); State v. DeGennaro, 147 Conn. 296, 304, 160 A.2d 480, cert. denied, 364 U.S. 873, 81 S. Ct. 116, 5 L. Ed. 2d 95 (1960).” State v. Baptiste, 114 Conn. App. 750, 769, 970 A.2d 816 (2009).

During his cross-examination of Sullivan, the prosecutor read into the record portions of Sullivan’s written statement made to police after his arrest. Those portions read into the record concerned a November 27, 2005 shooting at the Carlton Court public housing project. See footnote 10 of this opinion. The defendant argues on appeal that he objected to the prosecutor’s reading into the record Sullivan’s statement and Huer-tas’ testimony concerning two shooting incidents on the ground that they were evidence of prior misconduct that was inadmissible to prove the defendant’s bad character or criminal tendencies and that their limited probative value was far outweighed by their prejudicial effects. Our review of the trial transcripts clearly establishes that the legal grounds raised by the defendant in both his objections to the prosecutor’s reading into the record Sullivan’s written statement and Huertas’ testimony were not that the evidence concerned inadmissible prior misconduct. As for Sullivan’s statement, the defendant objected because the prosecutor was reading into the record a statement that was not admitted as evidence at that point. Concerning Huertas’ testimony, the defendant objected when the prosecutor asked Huertas if two named individuals were with him during a November 27, 2005 shooting on Westport Avenue in Norwalk. See footnote 10 of this opinion. The defendant expressly stated that the bases for the objection were relevance and that the question was beyond the scope of direct examination, and the state withdrew that question. Because our review of the court’s rulings on those objections is limited to the specific legal grounds raised in the objection; see State v. Baptiste, supra, 114 Conn. App. 769; and inasmuch as the defendant did not object on the grounds that the proffered evidence was inadmissible prior misconduct, we will not review these claims.

Ill

The defendant next claims that the court improperly failed to instruct the jury on the doctrine of nonexclusive possession with regard to the pistol or revolver. As a result of this failure, he argues, it is reasonably possible that the jury was misled and thereby impermis-sibly inferred that he constructively possessed the pistol or revolver solely because he was present in the automobile. We disagree.

The defendant failed either to request a charge on nonexclusive possession or to object to the instruction as given. That circumstance renders his claim unpreserved. See State v. Boyd, 115 Conn. App. 556, 562, 973 A.2d 138, cert. denied, 293 Conn. 912, 978 A.2d 1110 (2009); Practice Book § 42-16. He therefore seeks to prevail pursuant to State v. Golding, 213 Conn. 233, 239-40, 567 A.2d 823 (1989). The record is adequate for review, and the claim is of constitutional magnitude, alleging the violation of a fundamental right. “[I]tis . . . constitutionally axiomatic that the jury be instructed on the essential elements of a crime charged. . . . Consequently, the failure to instruct a jury on an element of a crime deprives a defendant of the right to have the jury told what crimes he is actually being tried for and what the essential elements of those crimes are.” (Internal quotation marks omitted.) State v. Fleming, 111 Conn. App. 337, 350, 958 A.2d 1271 (2008), cert. denied, 290 Conn. 903, 962 A.2d 794 (2009). The defendant, however, has not demonstrated that a constitutional violation clearly exists and that he was clearly deprived of a fair trial. We therefore conclude that his claim is without merit.

Our standard of review with regard to claims of instructional error is well established. “[I]ndividual jury instructions should not be judged in artificial isolation, but must be viewed in the context of the overall charge. . . . The pertinent test is whether the charge, read in its entirety, fairly presents the case to the jury in such a way that injustice is not done to either party under the established rules of law. . . . Thus, [t]he whole charge must be considered from the standpoint of its effect on the [jurors] in guiding them to the proper verdict . . . and not critically dissected in a microscopic search for possible error. . . . Where . . . the challenged jury instructions involve a constitutional right, the applicable standard of review is whether there is a reasonable possibility that the jury was misled in reaching its verdict.” (Citation omitted; internal quotation marks omitted.) State v. Boyd, supra, 115 Conn. App. 562-63.

The defendant does not argue that the court improperly instructed the jury with regard to the elements of the crime of criminal possession of a pistol or revolver. Instead, he contends that, under the facts and circumstances of this case, the court, sua sponte, should have instructed the jury on the doctrine of nonexclusive possession. We conclude, following a thorough review of the entire jury charge, in light of the evidence presented at trial, that the court properly instructed the jury on the elements of the crime.

The jury reasonably could not have been misled by the court’s charge in the manner asserted by the defendant. The court clearly instructed the jury that to find that the defendant had constructive possession of the pistol or revolver it would have to determine that he had knowledge of the nature of the weapon, of its presence within the vehicle and was in a position to exercise dominion and control over the weapon. Importantly, the court instructed the jury not only that the defendant had to have such knowledge, but also that he must have acted intentionally. In another portion of the jury instruction, the court explained fully the definition of intent. “[Focusing] on [a] defendant’s knowledge and control and intentional action with regard to [a] firearm [in a jury instruction] properly direct[s] the jury and preclude [s] it from considering that the mere presence of the defendant was enough to satisfy the elements of the crime.” Id., 564. As a result, the given instruction, though not explicitly addressing nonexclusive possession, nonetheless covered the most important protective elements of a charge on the doctrine: the defendant’s knowledge and intent to possess the weapon. See State v. Williams, 258 Conn. 1, 12, 778 A.2d 186 (2001) (to establish possession of firearm for conviction under § 53a-217 by constructive possession, state required to prove beyond reasonable doubt defendant exercised intentional dominion and control over firearm and had knowledge of its character).

Last, this is not a case in which the court declined a requested instruction; the defendant made no request of the court to charge the jury on the doctrine of nonexclusive possession. A defendant’s right to due process is implicated by a court’s failure to instruct the jury on the essential elements of the crime charged. State v. Cote, 286 Conn. 603, 626, 945 A.2d 412 (2008). “A trial court [however] has no independent obligation to instruct, sua sponte, on general principles of law relevant to all issues raised in evidence .... Rather, it is the responsibility of the parties to help the court in fashioning an appropriate charge.” (Citation omitted; internal quotation marks omitted.) State v. Arena, 235 Conn. 67, 75, 663 A.2d 972 (1995); see also State v. Crawley, 93 Conn. App. 548, 568, 889 A.2d 930 (rejecting defendant’s claim that court sua sponte should have instructed jury on doctrine of nonexclusive possession where defendant failed to request such charge and failed to object to its absence), cert. denied, 277 Conn. 925,895 A.2d 799 (2006). Because we conclude that the defendant has not demonstrated that a constitutional violation clearly existed, depriving him of a fair trial, his claim must fail. See State v. Golding, supra, 213 Conn. 240.

IV

The defendant claims that there is insufficient evidence to support his conviction of possession of a weapon in a motor vehicle. Specifically, he claims that the state failed to prove beyond a reasonable doubt that neither occupant of the vehicle had a proper permit to carry the pistol or revolver. We disagree.

In State v. Smith, 9 Conn. App. 330, 338, 518 A.2d 956 (1986), we noted that the lack of a proper permit is an essential element for a violation of § 29-38 that the state must prove beyond a reasonable doubt. At trial, the defendant stipulated that he had no permit for the weapon. The state, however, pursuant to § 29-38 must also prove that no one else in the vehicle had a proper permit to carry the weapon. See State v. Mebane, 17 Conn. App. 243, 246, 551 A.2d 1268, cert. denied, 210 Conn. 811, 556 A.2d 609, cert. denied, 492 U.S. 919, 109 S. Ct. 3245, 106 L. Ed. 2d 591 (1989). The defendant asserts on appeal that the only evidence that Sullivan, the co-occupant of the vehicle, did not have a proper permit for the weapon was Sullivan’s testimony that he had pleaded guilty to carrying a pistol or revolver without a permit in violation of General Statutes § 29-35. The defendant argues that, because of hearsay concerns, “[t]he fact that one or more persons jointly charged with the commission of a crime pleaded guilty is not admissible on the trial of another person so charged, to establish that the crime was committed.” State v. Pikul, 150 Conn. 195, 198, 187 A.2d 442 (1962). We are not persuaded.

The facts present in this appeal are distinguishable from those in Pikul, and, therefore, its holding is inapplicable here. Sullivan testified at the defendant’s trial that he had pleaded guilty to carrying a pistol or revolver without a permit while the defendant was convicted of possession of a weapon in a motor vehicle. Simply put, this is not the situation where one or more persons were charged with the commission of a crime. Sullivan and the defendant were charged with the commission of two distinct crimes that merely had the overlapping element of proof that no one charged, or present in the vehicle, had a proper permit for the weapon. Sullivan’s testimony only related to his admission that he had pleaded guilty to a separate charge and was not hearsay evidence concerning the defendant’s guilt. Cf. State v. Ortiz, 280 Conn. 686, 704 n.13, 911 A.2d 1055 (2006) (“a plea of guilty is, in effect, merely a confession of guilt which, having been made by one of those charged with the crime, can be no more than hearsay as to another who is so charged” [emphasis added; internal quotation marks omitted]); see also State v. Gargano, 99 Conn. 103, 108, 121 A. 657 (1923) (“[t]he confession involved in a plea of guilty in court by one [jointly charged with the accused of] a crime, is as much hearsay as if the confession were made out of court”).

The defendant also asserts that the evidence was admitted for impeachment purposes only and therefore could not properly have been used by the jury for the substantive purpose of proving that Sullivan did not have apermit for the weapon. The defendant mischaracterizes the nature of the testimony. Sullivan was a defense witness. Although a party may impeach his own witness in the same manner as an opposing party’s witness; State v. McCarthy, 105 Conn. App. 596, 613, 939 A.2d 1195, cert. denied, 286 Conn. 913, 944 A.2d 983 (2008); our review of the transcripts clearly establishes that the puipose of Sullivan’s testimony regarding his guilty plea was to establish that the defendant did not possess nor was aware of the presence of the weapon in the vehicle. In short, it was offered to substantively establish that Sullivan was the owner of the gun. Because a guilty plea is “a confession which admits that the accused did various acts”; (internal quotation marks omitted) State v. Nelson, 221 Conn. App. 635, 641, 605 A.2d 1381 (1992); and the testimony was offered as proof that Sullivan engaged in those acts and not to impeach him, it was properly before the jury as proof that he had no proper permit for the weapon. Therefore, this claim fails.

V

Last, the defendant claims that the court imposed an improper sentence for his conviction for criminal possession of a pistol or revolver. Specifically, he contends that the court mistakenly imposed a sentence of five years incarceration, two of which were mandatory, for his conviction of criminal possession of a pistol or revolver pursuant to § 53a-217c (a) (1), which has no minimum mandatory sentence. The state concedes, and we agree, that the court erred in its sentencing of the defendant for his conviction of criminal possession of a pistol or revolver. Because it is axiomatic that this court is vested with the authority to remand a case for resentencing; see, e.g., State v. Hanson, 210 Conn. 519, 556 A.2d 1007 (1989); State v. Carpenter, 19 Conn. App. 48, 562 A.2d 35, cert. denied, 213 Conn. 804, 567 A.2d 834 (1989); the appropriate remedy for this claim is a remand to the trial court with direction to resentence the defendant. See State v. Dennis, 30 Conn. App. 416, 426, 621 A.2d 292, cert. denied, 226 Conn. 901, 625 A.2d 1376 (1993).

The judgment is reversed as to the conviction of possession of narcotics with intent to sell by a person who is not drug-dependent and the case is remanded for a new trial on that charge only; the judgment is reversed as to the sentence imposed on the conviction of criminal possession of a pistol or revolver and the case is remanded with direction to resentence the defendant on that charge only. The judgment is affirmed in all other respects.

In this opinion the other judges concurred.

       Subsequent to his arrest, the defendant was admitted to Norwalk Hospital for injuries he sustained during his struggle with police.

       Whether a defendant is a drug-dependent person as defined in General Statutes § 21a-240 (18) is a question of fact. State v. Ray, 290 Conn. 602, 631, 966 A.2d 148 (2009). Under §§ 21a-278 (b) and 21a-240 (18), the defendant was required to prove by a preponderance of the evidence that at the time of the offense, he had a “psychoactive substance dependence on drugs as that condition is defined in the most recent edition of the ‘Diagnostic and Statistical Manual of Mental Disorders’ of the American Psychiatric Association . . . .” General Statutes § 21a-240 (18).

       The defendant also claims, for the first time in his reply brief, that he is entitled to a new trial on the conviction of those crimes because the court’s improper ruling was a constitutional error amounting to a denial of his right to present the defense that he lacked the intent to sell the narcotics.
      “It is a well established principle that arguments cannot be raised for the first time in a reply brief. . . . Arguments first presented in a reply brief impair the opposing party’s opportunity to reply in writing.” (Citations omitted; internal quotation marks omitted.) State v. Rosario, 113 Conn. App. 79, 93, 966 A.2d 249, cert. denied, 291 Conn. 912, 969 A.2d 176 (2009). Accordingly, we decline to review his claim.

       The jury requested reinstruction on that charge. The court reinstructed the jury, stating, in relevant part: “The defendant has the burden of proving drug dependency by a preponderance of the evidence, meaning it’s more likely than not that is so by the proof he has presented and when the better and weightier evidence is in the defendant’s favor. Now, as I recall, there is no evidence presented with regard to the diagnostic—DSM-IV, there [was] no expert called. The defendant did indicate that [he] and other witnesses had used marijuana and other drugs, but not narcotic—not cocaine. I had earlier indicated ... to the defense counsel that it’s my function to determine whether or not the fact that the defendant has presented adequate information. And my function is to determine that what was presented was not adequate. . . . And the element of drug dependency, [that the defendant was not a] drug-dependent person is established adequately.”

       The record reveals that the court did not instruct the jury on the lesser included offense of possession of narcotics with intent to sell under § 21a-277 (a). See State v. Bradley, 60 Conn. App. 545, 760 A.2d 520 (§ 21a-277 [a] is lesser offense included within § 21a-278 [b]), cert. denied, 255 Conn. 921, 763 A 2d 1042 (2000).

        State v. Sanseverino, 291 Conn. 574, came to our Supreme Court on the state’s motion for reconsideration en banc. Id., 577. In its opinion after reconsideration, our Supreme Court explained that “[i]n State v. Sanseverino, 287 Conn. 608, 949 A.2d 1156 (2008), this court, concluded, inter alia, that the defendant, Paolino Sanseverino, was entitled to reversal of his first degree kidnapping conviction in light of our decision in State v. Salomon, 287 Conn. 509, 949 A.2d 1092 (2008). In particular, we determined, in accordance with Salomon, that the defendant was entitled to a jury instruction that he could not be convicted of the crime of kidnapping unless the jury found beyond a reasonable doubt that the restraint involved in the commission of that crime was not merely incidental to and necessary for the commission of another crime against the victim, in this case, sexual assault in the first degree. State v. Sanseverino, supra, 624-26. We also held that the state was barred from retrying the defendant on the kidnapping charge because we concluded, on the basis of our review of the record, that no reasonable jury could have found that the restraint used by the defendant in the commission of the kidnapping was not incidental to and necessary for the commission of the sexual assault. See id., 625.” State v. Sanseverino, supra, 577-78.

       This was so, the court explained, “because prior to the unforeseeable change in the law following the defendant’s trial [that resulted from the court’s decision in State v. Salamon, 287 Conn. 509, 949 A.2d 1092 (2008); see footnote 6 of this opinion] the state had no reason to seek a lesser included offense instruction, and, consequently, the state’s failure to do so cannot possibly have been the product of a strategic decision.” State v. Sanseverino, supra, 291 Conn. 595.

       In State v. Ray, 290 Conn. 602, 966 A.2d 148 (2009), our Supreme Court faced a situation analogous to that which we face in this appeal. In Ray, the defendant appealed from the judgments of conviction, rendered after a trial to the court, of sale of narcotics by a person who is not drug-dependent in violation of § 21a-278 (b), claiming, inter alia, that the court improperly found that he had not met his burden of proving his drug dependency. Id., 605-606. In Ray, the trial court concluded that the defendant had not presented sufficient evidence of drug dependency to present the issue to the fact finder. Id., 607. As a result, our Supreme Court concluded, “the trial court, applied an improper evidentiary standard in determining whether the defendant was drug-dependent, as defined in § 21a-240 (18).” Id., 633.
      The court noted that “[ajlthough this conclusion ordinarily would require a remand to the trial court so that the court may apply the correct standard, we conclude that, on the basis of the evidence presented, no reasonable fact finder could conclude that the defendant was not drug-dependent .... Accordingly, we conclude that, as a matter of law, the defendant met his burden of proving that he was a drug-dependent person under § 21a-278 (b).” Id., 633-34. The court reversed the convictions under § 21a-278 and remanded the case to the trial court with direction to modify those convictions to reflect the lesser included offense of sale of narcotics in violation of § 21a-277 (a) and for resentencing. Id., 634. It is clear that the court made its decision to reverse the defendant’s convictions with direction to modify the judgments to reflect the lesser included offense “ [b] ecause [it] concluded that the trial court improperly found that the defendant was not drug-dependent”; id.; and that he had met that burden as a matter of law.
      In the present case, we cannot conclude, on the basis of the evidence, that the defendant met his burden of proving that he was a drug-dependent person under § 21a-278 (b) as a matter of law. This conclusion, however, is pre.dicated on the exclusion from evidence of the clinical assessment prepared by Devlin-Craane, in which she diagnosed him as dependent on PCP, the defendant’s most compelling evidence of his alleged drug dependency. As a result, we determine that the result reached in Ray should not be replicated here. This conclusion is supported by the fact that the defendant in Ray also met at least one of the factors announced by our Supreme Court in Sanseverino that is not present here. The defendant in Ray specifically sought modification of his convictions to reflect the lesser included offense—a circumstance absent in this case.

       The defendant also argues that his conviction of possession of narcotics with intent to sell within 1500 feet of a public housing project should also be reversed as a result of the court improperly removing from the jury the determination of whether he was drug-dependent. This claim has no merit. General Statutes § 21a-278a (b) is bereft of any reference to drug dependency as a mitigating factor of the crime it prohibits. Moreover, the defendant’s claim that his conviction under § 21a-278a (b) requires a predicate conviction under, in this case, § 21a-278 is also without merit. This is so because “[i]n State v. Player, 58 Conn. App. 592, 597, 753 A.2d 947 (2000), relying on State v. Denby, [235 Conn. 477, 668 A.2d 682 (1995)] along with the plain language of § 21a-278a and the legislative history associated therewith, we concluded that § 21a-278a creates a separate substantive offense and that it is not merely a penalty enhancement provision. See also State v. Barber, 64 Conn. App. 659, 675-76, 781 A.2d 464, cert. denied, 258 Conn. 925, 783 A.2d 1030 (2001). We explained that the legislative history of § 21a-278a (b) reveals that in enacting this statute, the legislature expressed its intent to create a separate substantive offense. State v. Player, supra, 597; see also State v. Barber, supra, 675-76.” Charles v. Commissioner of Correction, 112 Conn. App. 349, 353, 962 A.2d 868, cert. denied, 290 Conn. 922, 966 A.2d 235 (2009).

       Our review of the record reveals that there were three shootings that Sullivan and Huertas testified about. Sullivan testified about a shooting that took place the night before his and the defendant’s arrest. That shooting occurred near the Carlton Court public housing project on November 27, 2005. Huertas testified concerning two shootings, one that took place on Perry Avenue in Norwalk on November 25, 2005, and another that occurred on Westport Avenue in Norwalk on November 27, 2005.

       The jury was instructed, in relevant part,, as follows: “The element here that the state must prove beyond a reasonable doubt, then, is that he was in possession of a pistol or revolver as claimed by the state. A person is in possession of a pistol or revolver when, he knowingly has control or dominion over that pistol or revolver. It is the state’s claim that the defendant knowingly had that pistol or revolver, that it was there for his use, and that he knew there was a pistol or revolver in the vehicle and that he had been convicted of a felony. Of course, the defense claims that he had no knowledge of the contents, that it belonged to the—to his cousin, and that he wasn’t even there when the pistol or revolver was placed in the vehicle.
      “The state claims that . . . Sullivan brought the pistol or revolver in, opened the back door while the defendant was sitting there, placed the item in the rear and then went around to sit in the passenger side. That’s the evidence that’s available for you with regard to this pistol or revolver. It was the defendant’s car, according to the state, or . . . [the] defendant was the primary user of the car, although it was registered in the name of the defendant’s grandmother.
      “The defendant, the state claims, was aware of the pistol or revolver in the car, it was there for his purposes, and that can be inferred from the circumstances surrounding the bag, the appearance of the bag and where it was placed and when it was placed. . . .
      “But for this particular count, the state must prove that the defendant did in fact have control or dominion, possession of this weapon, that he knew it was a weapon, that he knew it was there, and the state must prove it was a weapon—a pistol or revolver with a barrel of less than twelve inches, and that he was previously convicted of a felony. If you find that established, that he had possession of this weapon, this firearm, that he knew it was a firearm, he knew it was there, he had control over it and that he was previously convicted of a felony, you would be warranted in finding the defendant guilty of that first count. (Emphasis added.)

       “Where the defendant is not in exclusive possession of the premises where the [illegal item is] found, it may not be inferred that [the defendant] knew of the presence of the [illegal item] and had control of [it], unless there are other incriminating statements or circumstances tending to buttress such an inference. . . . Stated otherwise, [t]he doctrine of nonexclusive possession provides that where there exists access by two or more people to the [contraband] in question, there must be something more than the mere fact that [contraband was] found to support the inference that the [contraband was] in the possession or control of the defendant. . . . Thus, the charge is appropriate in circumstances where the defendant has possession of the premises along with at least one other individual.” (Citation omitted; internal quotation marks omitted.) State v. Crawley, 93 Conn. App. 548, 566-67 n.9, 889 A.2d 930, cert. denied, 277 Conn. 925, 895 A.2d 799 (2006).

       The defendant also seeks to prevail on his claim under the plain error doctrine. See Practice Book § 60-5. “It is . . . well established that plain error review is reserved for truly extraordinary situations where the existence of the error is so obvious that it affects the fairness and integrity of and public confidence in the judicial proceedings. ... A defendant cannot prevail under [the plain error doctrine] . . . unless he demonstrates that the claimed error is both so clear and so harmful that a failure to reverse the judgment would result in manifest injustice.” (Internal quotation marks omitted.) State v. Jackson, 73 Conn. App. 338, 386, 808 A.2d 388, cert. denied, 262 Conn. 929, 814 A.2d 381 (2002). Having concluded that the defendant was not deprived of a fair trial when the court did not sua sponte instruct the jury on nonexclusive possession, we also conclude that the claim does not warrant application of the plain error doctrine. See State v. Boyd, supra, 115 Conn. App. 566 n.6.

       The defendant, in the same portion of his brief, also argues that the court improperly instructed the jury regarding the state’s burden in proving the charge of possession of a weapon in a motor vehicle. The defendant’s analysis in that section of his brief was dedicated entirely to his claim that the court, improperly failed to instruct the jury on the doctrine of nonexclusive possession with regard to the firearm.
      “We repeatedly have stated 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 failure to brief the issue properly. . . . Where a claim is asserted in the statement of issues but thereafter receives only cursory attention in the brief without substantive discussion or citation of authorities, it is deemed to be abandoned.” (Internal quotation marks omitted.) Taylor v. Mucci, 288 Conn. 379, 383 n.4, 952 A.2d 776 (2008). We therefore decline to review this instructional claim because it was briefed inadequately.

       Although the defendant was convicted of criminal possession of a firearm in violation of § 53a-217c (a) (1), that conviction is not relevant to this issue. This is so because for the defendant to have been convicted for violating § 53a-217c (a) (1), the state did not have to prove that no one in the motor vehicle had a lawful permit for the firearm.

       General Statutes § 53a-217, titled, “Criminal possession of a firearm or electronic defense weapon: Class D felony,” does contain a minimum mandatory sentence. It provides in relevant part: “(b) Criminal possession of a firearm or electronic defense weapon is a class D felony, for which two years of the sentence imposed may not be suspended or reduced by the court.” General Statutes § 53a-217 (b).


author: HENNESSY, J. BEACH, J.,

text:
    GHASSAN SALEH v. RIBEIRO TRUCKING, LLC, ET AL.
    (AC 29825)
    Beach, Robinson and Hennessy, Js.
    Argued March 9
    officially released November 10, 2009

      Richard C. Mahoney, with whom were Stephanie S. Baier and Allan M. Rothenberg, for the appellant (plaintiff).

      Michael Feldman, with whom was Kasey Procko Burchman, for the appellees (defendants).
   Opinion

HENNESSY, J.

The plaintiff, Ghassan Saleh, appeals from the judgment of the trial court, which set aside the jury verdict and ordered a new trial on the issue of damages after he refused to accept a court-ordered remittitur. The plaintiffs sole claim on appeal is that the court improperly ordered the remittitur in the absence of any reason to determine that the verdict was against the weight of the evidence, shocked the sense of justice or was based on partiality, prejudice, mistake or corruption. We reverse the judgment and remand the case to the trial court with direction to reinstate the jury verdict.

The following facts are relevant to the plaintiffs appeal. On the morning of March 28, 2003, the plaintiff, while driving on Interstate 91 in Hartford in his Nissan Altima, was rear-ended by a van that had been rear-ended by a tractor trailer truck. The tractor trailer was owned at that time by the defendant Ribeiro Trucking, LLC. The force of the impact caused damage to the right rear bumper and trunk areas of the plaintiffs car. The plaintiff complained of neck, back and shoulder pain at the scene of the incident and, as a result, was brought to Hartford Hospital by ambulance where X rays were taken of his neck and shoulder. The plaintiff then followed up with his regular physician, William Spector, at his first opportunity on April 9, 2003, and again on April 15, 2003. Spector prescribed pain and anti-inflammatory medication to the plaintiff and referred him to an orthopedist, Paul Filippini. The plaintiff testified that he returned to work as a car salesman a few days after the accident but was in pain all day long. The plaintiff saw Filippini for the first of twelve visits on April 29, 2003. At this appointment, Filippini prescribed physical therapy for the neck and back injuries in addition to medications. Physical therapy commenced on May 8, 2003, and ended on June 24, 2003, because it was not helpful to the plaintiff. On January 22, 2004, Filippini assessed the plaintiffs permanency of injury. He determined that the plaintiff had a 7.5 to 10 percent injury to the right shoulder and a 7.5 percent injury to the lumbar- spine.

On January 19, 2005, the plaintiff saw Anthony Spi-nella, an orthopedic surgeon, to see if there was anything else that could be done for his injuries. He had an injection into his shoulder that eased the pain but did not improve its function. Spinella had assessed the plaintiffs permanency of injury at 10 percent for the shoulder, and an additional 5 percent for both the neck and back for a total of 15 percent with respect to the accident.

At the time of trial, the plaintiff continued to take pain medications and muscle relaxers and was required to see Spector every two weeks for pain management. The plaintiff testified that he must take medication to work during the day to try to minimize discomfort and, to sleep at night, he also must take medication. He testified that he is in constant pain that he rates an eight on a scale from one to ten and can no longer live a normal life, including doing work around his house. The parties stipulated that the plaintiffs life expectancy is 15.8 years. The defendant admitted liability for the accident. The jury returned with a verdict of $12,132.31 in economic damages and $687,868 in noneconomic damages for a total of $700,000.31 in damages.

Following the verdict, counsel for the defense filed a motion for remittitur of the noneconomic damages as well as a separate motion to set aside the verdict. The plaintiff filed an objection to these motions. On April 4, 2008, the court issued a memorandum of decision, granting the motion for remittitur and ordering a remittitur of $503,608, thus reducing the award to $184,260, and rendered judgment in the total amount of $191,392.31. In its memorandum of decision, the court found that the noneconomic award “does not fall within the necessarily uncertain limits of fair and reasonable compensation. Further, it so shocks the conscience as to compel the conclusion that it was due to partiality, prejudice or mistake.” The court found that the permanency rating of the plaintiffs cervical spine, which prior to the accident was 10 percent, is now 15 percent, that the rating of the lumbar spine was 10 percent and is now 17.5 percent and that the rating of the shoulder is 10 percent for atotal of 42.5 percent. The court found that based on the percentages of permanent partial disability and the plaintiffs stipulated life expectancy of 15.8 years, the jury reasonably could have awarded the plaintiff $74,260 for the injury. Regarding pain and suffering, the court found that the plaintiff could be awarded compensation for pain and suffering only from the date of the accident until he was given a permanency rating in October, 2006. The court further found that for the first two months after the accident, the jury reasonably could have found that the plaintiff was entitled to $5000 a month, and then for the next forty months he was entitled to $2500 a month for a total pain and suffering award of $110,000.

The plaintiff filed his appeal on April 22, 2008. The defendant filed a motion for articulation or rectification on June 26, 2008, requesting that the court add to its judgment that, pursuant to General Statutes § 52-216a, “[should] the plaintiff agree to [the remittitur ordered by the court], a judgment will enter in the amount of $191,392.31. If the remittitur is not accepted, the defendant’s motion to set aside the verdict will be granted, the jury award will be set aside and a new trial will be ordered. ” The court granted the motion on July 22,2008.

Our analysis of the plaintiffs claim is guided by certain governing principles. “First, the amount of an award [of damages] is a matter peculiarly within the province of the trier of facts. . . . Second, the court should not interfere with the jury’s determination except when the verdict is plainly excessive or exorbitant. . . . The ultimate test which must be applied to the verdict by the trial court is whether the jury’s award falls somewhere within the necessarily uncertain limits of just damages or whether the size of the verdict so shocks the sense of justice as to compel the conclusion that the jury [was] influenced by partiality, prejudice, mistake or corruption. . . . Third, the ruling of the trial court on the motion to set aside the verdict as excessive is entitled to great weight and every reasonable presumption should be given in favor of its correctness. . . . The court’s broad power to order a remittitur should be exercised only when it is manifest that the jury [has] included items of damage which are contrary to law, not supported by proof, or contrary to the court’s explicit and unchallenged instructions. . . . The relevant inquiry is whether the verdict falls within the necessarily uncertain limits of fair and reasonable compensation or whether it so shocks the conscience as to compel the conclusion that it was due to partiality, prejudice or mistake.” (Citations omitted; internal quotation marks omitted.) Tomczuk v. Alvarez, 184 Conn. 182, 187-88, 439 A.2d 935 (1981). Furthermore, “[t]he decision whether to reduce a jury verdict because it is excessive as a matter of law [within the meaning of § 52-216a] rests solely within the discretion of the trial court. . . . [Consequently], the proper standard of review of a trial court’s decision to grant or deny a motion to set aside a verdict as excessive as a matter of law is that of an abuse of discretion.” (Citation omitted; internal quotation marks omitted.) Mulligan v. Rioux, 229 Conn. 716, 753, 643 A.2d 1226 (1994), on appeal after remand, 38 Conn. App. 546, 662 A.2d 153 (1995).

“[Although the trial court has abroad legal discretion in this area, it is not without its limits.” Wickers v. Hatch, 252 Conn. 174, 189, 745 A.2d 789 (2000). “Litigants have a constitutional right to have factual issues resolved by the jury. . . . This right embraces the determination of damages when there is room for a reasonable difference of opinion among fair-minded persons as to the amount that should be awarded.” (Internal quotation marks omitted.) Ham v. Greene, 248 Conn. 508, 536, 729 A.2d 740, cert. denied, 528 U.S. 929, 120 S. Ct. 326, 145 L. Ed. 2d 254 (1999). “The award of damages for pain and suffering is peculiarly within the province of the trier [of fact].” Manning v. Michael, 188 Conn. 607, 616, 452 A.2d 1157 (1982). “The fact that it is difficult to measure pain and suffering in terms of money does not prevent a recovery ... as long as there is a reasonable basis in the record for that recovery.” (Citations omitted.) Leabo v. Leninski, 2 Conn. App. 715, 727, 484 A.2d 239 (1984), on appeal after remand, 9 Conn. App. 299, 518 A.2d 667 (1986), cert. denied, 202 Conn. 806, 520 A.2d 1286 (1987). Furthermore, “[t]he size of the verdict alone does not determine whether it is excessive.” (Internal quotation marks omitted.) Ham v. Greene, supra, 536.

Thus, “[i]n ruling on the motion for remittitur, the trial court was obliged to view the evidence in the light most favorable to the plaintiff in determining whether the verdict returned was reasonably supported thereby.” (Internal quotation marks omitted.) Eisenbach v. Downey, 45 Conn. App. 165, 184, 694 A.2d 1376, cert. denied, 241 Conn. 926, 696 A.2d 1264 (1997). “A conclusion that the jury exercised merely poor judgment is an insufficient basis for ordering a remittitur.” Johnson v. Chaves, 78 Conn. App. 342, 346, 826 A.2d 1286, cert. denied, 266 Conn. 911, 832 A.2d 70 (2003). “Proper compensation for noneconomic damages cannot be computed by a mathematical formula, and there is no precise rule for the assessment of damages. See Campbell v. Gould, 194 Conn. 35, 40, 478 A.2d 596 (1984). The plaintiff need not prove damages with mathematical exactitude; rather, the plaintiff must provide sufficient evidence for the trier to make a fair and reasonable estimate. Willow Springs Condominium Assn., Inc. v. Seventh BRT Development Corp., 245 Conn. 1, 65, 717 A.2d 77 (1998). A generous award of noneconomic damages should be sustained if it does not shock the sense of justice. Campbell v. Gould, supra, 40.

“The fact that the jury returns a verdict in excess of what the trial judge would have awarded does not alone establish that the verdict was excessive. . . . [T]he court should not act as the seventh juror with absolute veto power. Whether the court would have reached a different [result] is not in itself decisive. . . . The court’s proper function is to determine whether the evidence, reviewed in a light most favorable to the prevailing party, reasonably supports the jury’s verdict. . . . Id., 41. In determining whether the court abused its discretion, therefore, we must examine the evidential basis of the verdict itself .... Wichers v. Hatch, supra, 252 Conn. 188. [T]he court’s action cannot be reviewed in a vacuum. The evidential underpinnings of the verdict itself must be examined. . . . Id., 189.” (Internal quotation marks omitted.) Johnson v. Chaves, supra, 78 Conn. App. 347.

The court did not find that the verdict was contrary to the law. The court instead found that the verdict shocks the conscience. In determining what the jury could have reasonably awarded the plaintiff, the court attempted to attach a mathematical formula to what should have been awarded. The court did not follow its directive to determine whether the evidence, reviewed in a light most favorable to the prevailing party, reasonably supports the jury’s verdict.

What is more problematic is the court’s refusal to allow the plaintiff any compensation for his pain and suffering that occurred after he was given apermanency rating and for his future life expectancy. It was within the province of the jury, on the basis of the evidence that the plaintiff was in a constant state of pain almost five years after the accident, to award him damages for pain and suffering after the date permanency was found, which was October, 2006, according to the court. It was reasonable for the jury to award compensation for pain and suffering beyond the date of permanency because the testimony of the plaintiff was that about eighteen months after the date of permanency, he was still in a state of constant pain. The jury is allowed to determine the reliability of witnesses, and it clearly believed the testimony of the plaintiff. The determination of how much noneconomic damages should be awarded is particularly within the jury’s duties, and without a plainly excessive verdict based on the evidence, the verdict should stand. It was an abuse of the court’s discretion to take away that determination from the jury when it is not clear that the jury did not follow the court’s instructions and when it is not clear that the verdict was not based on the weight of the evidence.

This judgment is reversed and the case is remanded with direction to reinstate the jury verdict and to render judgment accordingly.

In this opinion ROBINSON, J., concurred.

BEACH, J.,

concurring. I concur in the well reasoned opinion of the majority and agree that the judgment of the trial court setting aside the jury’s verdict should be reversed and the case remanded to the trial court with direction to reinstate the jury’s verdict. I write separately to discuss the standard of review used in appeals from decisions granting or denying motions to set aside verdicts that are claimed to be excessive.

Our black letter law teaches us that the trial court is to accord great deference to the jury’s verdict. The court should set aside a verdict, and perhaps suggest a remittitur, only when the jury could not reasonably have reached its verdict. Stated alternatively, a verdict should be set aside only when the amount so shocks the conscience as to compel the conclusion that the verdict was due to partiality, prejudice or mistake. See Mahon v. B.V. Unitron Mfg., Inc., 284 Conn. 645, 661-62, 935 A.2d 1004 (2007). If the verdict finds some basis in the evidence, as viewed in the light most favorable to sustaining the verdict, the trial court is not to set aside the verdict. See, e.g., Campbell v. Gould, 194 Conn. 35, 39-41, 478 A.2d 596 (1984); Johnson v. Chaves, 78 Conn. App. 342, 346-47, 826 A.2d 1286, cert. denied, 266 Conn. 911, 832 A.2d 70 (2003). Parties, after all, do have constitutionally protected rights, in these circumstances, to have damages decided by a jury rather than by the court.

Appellate courts do not review the decision of the jury but rather review the action of the trial court in setting aside the verdict. See Campbell v. Gould, supra, 194 Conn. 39 (“Where . . . the trial judge disagrees with the verdict of the jury, a vexing question often arises. . . . When this occurs, we review the action of the judge in setting the verdict aside rather than that of the jury in rendering it.” [Citation omitted; internal quotation marks omitted.]); but see Johnson v. Chaves, supra, 78 Conn. App. 347. The reviewing court is to defer to the discretion of the trial court because the trial court has viewed the witnesses and has assessed credibility. The trial court’s exercise of discretion is not to be disturbed in the absence of clear abuse. See, e.g., Wichers v. Hatch, 252 Conn. 174, 187-89, 745 A.2d 789 (2000); Childs v. Bainer, 235 Conn. 107, 113, 663 A.2d 398 (1995); Gladu v. Sousa, 52 Conn. App. 796, 799, 727 A.2d 1286 (1999), appeal dismissed, 252 Conn. 190, 745 A.2d 798 (2000).

The appellate review of whether the trial court has abused its discretion in its action on a motion to set aside a verdict typically includes an analysis of the evidence and the jury’s verdict, with an eye toward determining whether the jury’s verdict could have been based on the evidence. See, e.g., Campbell v. Gould, supra, 194 Conn. 35. The purpose of the appellate exercise has been to determine whether the jury’s verdict was within the necessarily broad range of “fair and reasonable compensation”; id., 39; or whether the verdict was so excessive as to compel the conclusion that it was reached impermissibly. See, e.g., id., 41-42; Gladu v. Sousa, supra, 52 Conn. App. 799-800.

It is not clear from the case law whether appellate review of excessiveness is plenary or rather whether the trial court’s determination is entitled to deference. The reviewing court clearly ought to engage in an evi-dentiary analysis to determine whether the trial court abused its discretion in its action on the motion. It would appear reasonable to suggest that unless exces-siveness or inadequacy, or lack of excessiveness or inadequacy, is crystal clear on the basis of an independent appellate review, then the action of the trial court should be affirmed if the trial court applied the appropriate standards.

In the case at hand, the majority of this court finds that the trial court did not appear to have reviewed all of the evidence with an eye toward sustaining the verdict. I agree with that assessment: the application of improper standards constitutes an abuse of discretion, and this court need not defer to the trial court ruling. An independent analysis of the evidence does not yield the crystal clear conclusion that the jury found damages without a sufficient evidentiary basis. As stated by the majority, the jury presumably could have found that the plaintiffs life was wracked with pain, lack of sleep and the inability to perform many of the usual activities of daily living. Reversion to the jury’s verdict, then, is not prohibited by our independent review of the evidence. We do not have before us a situation in which the trial court has applied proper standards in setting aside a verdict, in which case any significant doubt regarding excessiveness would presumably be resolved by deferring to the trial court.

I respectfully concur in the majority opinion.

       Also named as defendants were Cabbage Transport, Inc., Vincente VirolaRodriguez and Oscar Quezada. For convenience, we refer to Ribeiro Trucking, LLC, as the defendant in this opinion.

       Prior to the accident, the plaintiff had apreexisting 10 percent permanent injury to his back and neck from previous work and car accidents. The plaintiff testified that these previous injuries were not affecting him consistently and that he was able to work with only occasional minor discomfort.

       The court further reduced the economic damages by $5000 due to collateral source payments to which the parties stipulated. As a result of this stipulation, the economic damages were reduced to $7132.31.

       See Mahon v. B.V. Unitron Mfg., Inc., 284 Conn. 645, 661-62, 935 A.2d 1004 (2007) (“First, the amount of an award [of damages] is a matter peculiarly within the province of the trier of facts. . . . Second, the court should not interfere with the jury’s determination except when the verdict is plainly excessive or exorbitant.” [Internal quotation marks omitted.]).

       The “shocks the conscience” test is particularly appropriate in considering amounts awarded for noneconomic damages in personal injury cases. In situations in which damages may be found with more precision, a more narrow test may be appropriate.

       Article first, § 19, of the Connecticut constitution, as amended by article four of the amendments, provides in relevant part: “The right of trial by jury shall remain inviolate . . . .” “[T]he right to a trial by jury encompasses the right to have the jury pass upon the factual issue of damages . . . ." (Citations omitted; internal quotation marks omitted.) Bartholomew v. Schweizer, 217 Conn. 671, 683, 587 A.2d 1014 (1991).

       Some of the authority cited arises from cases in which it was claimed that the verdict should have been set aside on the ground of inadequacy rather than excessiveness. The analysis as to the standards to be applied by the trial court and the appellate court seems to be the same.

       For the purpose of this concurrence, I am considering only the trial court’s action in setting aside the verdict. I am not considering the action setting the amount of the remittitur.

       There may be situations in which a trial court uses improper standards in setting aside a verdict, but the verdict is still clearly excessive. Suppose, for example, that in this case the jury had awarded $10 million. Even without deference to the trial court, this court presumably could, were the issue properly presented, uphold the trial court’s judgment setting aside the verdict.