author: SPEAR, J.

text:
    STATE OF CONNECTICUT v. DAVID WRIGHT
    (AC 18649)
    Lavery, Landau and Spear, Js.

      Argued October 28, 1999
    officially released June 6, 2000

      Kirstin B. Coffin, for the appellant (defendant).

      John A. East III, assistant state’s attorney, with whom, on the brief, were John A. Connelly, state’s attorney, and Robin Lipsky, assistant state’s attorney, for the appellee (state).

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

   Opinion

SPEAR, J.

The defendant, David Wright, appeals from the judgment of the trial court, rendered after a juiy trial, of possession of a narcotic substance with the intent to sell in violation of General Statutes § 21a-278 (a), possession of a narcotic substance with intent to sell in violation of General Statutes § 2 la-277 (a)* * and possession of a narcotic substance with the intent to sell within 1500 feet of a school in violation of General Statutes § 21a-278a (b). The defendant claims that the court improperly (1) denied his motion to suppress statements that he allegedly made during the arrest, (2) denied his motion to suppress tangible evidence, (3) overruled his objection to a map offered into evidence by the state, (4) denied his motion for judgment of acquittal and (5) denied his motion in limine seeking to preclude the prosecution from impeaching him by introducing his prior felony record. We affirm the judgment of the trial court.

The jury reasonably could have found the following facts. On July 28, 1996, Officers William Fox and Henry Racki of the Waterbury police department were patrolling Walnut Street and the surrounding area. At approximately 10:30 p.m., the officers drove onto Walnut Street and immediately smelled the odor of burning marijuana through the open window of their police cruiser. They saw four to five young males standing on the sidewalk near the homes at 19 through 23 Walnut Street. While driving past the group, Fox saw one of the young men smoking a cigarette-like object. The officers decided to circle back to Walnut Street to further investigate the group. When they returned, the young men were standing in the same place, and both officers noticed the same strong odor of marijuana. Fox drove past the group for the second time and quickly turned into the driveway of 23 Walnut Street.

The officers got out of the cruiser and walked toward the group, which was about fifteen feet from them. The men became visibly tense and stepped back from one another as the officers approached. No one in the group immediately attempted to flee. The defendant, however, turned and began to walk in the direction of 19 Walnut Street. Fox, who was carrying a flashlight, walked past the group of young men and followed the defendant. Racki maintained a distance of approximately ten feet between himself and Fox at all times.

When he was approximately ten feet from the defendant, Fox loudly commanded, “Stop! Police!” The defendant ignored Fox and continued walking toward 19 Walnut Street. With the aid of his flashlight, Fox was able to see a plastic bag in the defendant’s right hand. Fox increased his pace and closed the distance between him and the defendant to approximately six feet. The defendant then entered the driveway of 19 Walnut Street and walked directly toward a garbage can that was approximately fifteen feet from the end of the driveway and near the front of the house. Fox, who was still following the defendant closely, was able to see that the defendant still possessed the bag that Fox had seen earlier. When the defendant reached the garbage can, Fox saw him dip his right hand into the can, then pull it out and spin around to display his empty hands. The defendant then addressed Fox and Racki, stating, “What’s up?” or, “What’s going on?”

Fox approached the garbage can and retrieved a clear plastic bag that was in plain view on top of the refuse. The bag contained twenty-six smaller ziplocked bags, each of which contained freebase cocaine, also known as crack.

After Fox confiscated the drugs, he placed the defendant under arrest, charging him with possession of cocaine with intent to sell. The defendant stated that the bag was not his and that the officers did not have the right to enter his property without a search warrant. The officers searched the defendant and found $1130. While the officers were taking the defendant to the police car, the defendant asked Fox not to arrest him in connection with the drugs and said that he would make it worth his while.

The jury returned verdicts of guilty on all three counts of the information. This appeal followed.

I

The defendant first claims that the court improperly denied his motion to suppress statements that he allegedly made during and after his arrest. The defendant, who was not read his Miranda rights at the time of his arrest, claims that the statements resulted from a custodial interrogation in violation of Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966). We do not agree.

“Our Supreme Court has consistently held that ‘two conditions must exist before a criminal suspect is entitled to Miranda warnings: (1) the defendant must be in the custody of law enforcement officials; and (2) the defendant must be subjected to interrogation. State v. Burak, 201 Conn. 517, 531, 518 A.2d 639 (1986); State v. Doehrer, 200 Conn. 642, 646, 513 A.2d 58 (1986); State v. Brown, 199 Conn. 47, 51, 505 A.2d 1225 (1986).’ State v. Copeland, 205 Conn. 201, 206, 530 A.2d 603 (1987).” State v. Jackson, 28 Conn. App. 721, 725, 613 A.2d 846, cert. denied, 224 Conn. 904, 615 A.2d 1045 (1992). In this case, there is no question that the defendant was in the custody of law enforcement officials for Miranda purposes. The state also concedes, and the record reflects, that the officers did not advise the defendant of his Miranda rights. The sole issue is whether the defendant was subjected to interrogation at the time he made the statements.

“The term interrogation under Miranda refers both to express questioning and to any words or actions on the part of the police that the police should know are reasonably likely to elicit an incriminating response from the suspect. State v. Vitale, 197 Conn. 396, 411, 497 A.2d 956 (1985), quoting Rhode Island v. Innis, 446 U.S. 291, [301], 100 S. Ct. 1682, 64 L. Ed. 2d 297 (1980). A statement which is not elicited as a result of interrogation, but is given freely and voluntarily without any compelling influence, is admissible in evidence. State v. Copeland, supra, [205 Conn.] 207. It is the defendant’s burden to show that he was interrogated. State v. Doe-hrer, supra, [200 Conn.] 647.” (Internal quotation marks omitted.) State v. Jackson, supra, 28 Conn. App. 725.

The defendant claims that Fox’s act of picking up the bag of crack cocaine in front of the defendant was coercive conduct designed to elicit an incriminating response. The defendant cites State v. Krajger, 182 Conn. 497, 438 A.2d 745 (1980), for this proposition, but the facts of Krajger are far different from those here.

In Krajger, our Supreme Court held that the action of a police officer constituted custodial interrogation for Miranda purposes when the officer held up a jacket in front of the defendant’s cell and stated, “Bella, this is your jacket. You left it here last time you were here when you ran out of the building.” (Internal quotation marks omitted.) Id., 499 and n.2. The defendant responded, “Yes, that’s my jacket.” Id., 499. The court further stated that “[although the query was not posed in the form of a question, it clearly was interrogation in that the police conduct was reasonably likely to elicit an incriminating response.” (Internal quotation marks omitted.) Id., 499 n.2.

Fox testified at the suppression hearing as follows: “I picked up the bag. There was—two of the smaller bags were falling out of the bag. I picked them up and put them in. At that time I stated something to the effect [of], ‘[Racki], watch him.’ I searched a little bit more in the garbage can. I swirled it around. There was no other plastic bags. There was no other what appeared to be narcotics in there, and at that time I placed [the defendant] under arrest.” The defendant claims that this testimony supports his assertion.

Fox’s conduct in picking up the bag from the garbage can in the presence of the defendant was not designed to elicit an incriminating response. To hold otherwise would unduly inhibit any law enforcement officer from retrieving the objects of his investigation in the presence of a suspect. There is nothing in the testimony that suggests that Fox, by his actions, was attempting to elicit any kind of response from the defendant. Because there was no interrogation, the defendant’s statements were not subject to suppression pursuant to Miranda.

II

The defendant next claims that the court improperly denied his motion to suppress the drugs seized by the police officer because the seizure violated the defendant’s rights under the fourth amendment to the United States constitution and under article first, § 7, of the constitution of Connecticut. After examining the totality of the circumstances, the court, in its memorandum of decision denying the motion, found that “Fox had a reasonable and articulable suspicion that the defendant was engaging in or about to [engage] in criminal activity, namely possession or sale of illegal drugs. . . . Thus, Officer Fox’s commands to halt were justified and his plain view of the defendant’s disposal of the plastic bag into the garbage can in a public area justified its retrieving.” We agree with the trial court.

“Under both the federal and state constitutions, police may detain an individual for investigative purposes if there is a reasonable and articulable suspicion that the individual is engaged in or about to engage in criminal activity. State v. Lamme, 216 Conn. 172, 184, 579 A.2d 484 (1990). [T]he police officer must be able to point to specific and articulable facts which, taken together with rational inferences from those facts, reasonably warrant that [stop]. Terry v. Ohio, 392 U.S. 1, 21, 88 S. Ct. 1868, 20 L. Ed. 2d 889 (1968). Reasonable suspicion is a less demanding standard than probable cause not only in the sense that reasonable suspicion can be established with information that is different in quantity or content than that required to establish probable cause, but also in the sense that reasonable suspicion can arise from information that is less rehable to show probable cause. Alabama v. White, [496 U.S. 325, 330, 110 S. Ct. 2412, 110 L. Ed. 2d 301 (1990)]. State v. Cofield, 220 Conn. 38, 47-48, 595 A.2d 1349 (1991).” (Internal quotation marks omitted.) State v. Groomes, 232 Conn. 455, 467-68, 656 A.2d 646 (1995).

“ ‘A court reviewing the legality of a stop must therefore examine the specific information available to the police officer at the time of the initial intrusion and any rational inferences to be derived therefrom.’ State v. Oquendo, [223 Conn. 635, 654, 613 A.2d 1300 (1992)]. ‘The determination of whether a reasonable and articu-lable suspicion exists involves a two-part analysis: (1) whether the underlying factual findings of the trial court are clearly erroneous; and (2) whether the conclusion that those facts gave rise to such a suspicion is legally correct.’ State v. Kyles, 221 Conn. 643, 660, 607 A.2d 355 (1992).” State v. Groomes, supra, 232 Conn. 468. We conclude that the facts found by the trial court reasonably and adequately support its conclusion.

In denying the motion to suppress, the court found the facts that previously were recited. The court also found that the defendant never was interrogated by the police. The parties stipulated that the defendant resided at 19 Walnut Street and that the open garbage can was adjacent to the building in the driveway. Upon review, we conclude that the fact-finding by the trial court was supported by the evidence and was not clearly erroneous. We must now determine whether the court’s conclusion that those facts gave rise to a reasonable and articulable suspicion was legally correct.

The facts support a reasonable and articulable suspicion that one or more of the members of the group of young men was engaged in criminal activity, namely, the possession of marijuana. Such suspicion reasonably can be based on the strong odor of marijuana coming from where the young men were standing. While the standard for reasonable suspicion is less demanding than that required to show probable cause; id.; other courts have concluded that the odor of marijuana alone can satisfy the more demanding probable cause requirement. See State v. Longo, 243 Conn. 732, 738-39 n.6, 708 A.2d 1354 (1998).

Furthermore, the defendant’s flight, coupled with the odor of marijuana, support the reasonable suspicion that the defendant might have been engaged in illegal activity. Although the defendant did not actually turn and run, he did immediately turn and walk away from the area where the odor of marijuana was detected by Fox. Flight from the police properly can be considered in determining whether a reasonable and articulable basis of suspicion exists where the defendant flees before the police attempt to stop him. See Illinois v. Wardlow, 528 U.S. 119, 120 S. Ct. 673, 676, 145 L. Ed. 2d 570 (2000); State v. Groomes, supra, 232 Conn. 471-72; State v. Rodriguez, 14 Conn. App. 574, 578, 542 A.2d 342 (1988). We conclude that the defendant’s actions, along with the odor of marijuana, provided the police with a reasonable and articulable suspicion that a crime was being committed, thereby justifying the investigative stop.

The defendant also claims that the search of the garbage can on his property was not proper because it does not come within any of the recognized exceptions to the search warrant requirement. “It is a basic principle of constitutional law that ‘searches conducted outside the judicial process, without prior approval by judge or magistrate, are per se unreasonable under the Fourth Amendment—subject only to a few specifically established and well-delineated exceptions.’ . . . Katz v. United States, 389 U.S. 347, 357, 88 S. Ct. 507, 19 L. Ed. 2d 576 (1967); see Coolidge v. New Hampshire, 403 U.S. 443, 455-56, 91 S. Ct. 2022, 29 L. Ed. 2d 564 (1971).” (Emphasis in original.) State v. Januszewski, 182 Conn. 142, 151-52, 438 A.2d 679 (1980), cert. denied, 453 U.S. 922, 101 S. Ct. 3159, 69 L. Ed. 2d 1005 (1981). One such exception is the plain view doctrine.

“In Coolidge v. New Hampshire, supra, [403 U.S. 443], the United States Supreme Court held that in certain circumstances a warrantless seizure by police of an item that comes within plain view during their lawful search of a private area may be reasonable under the fourth amendment. . . . The plain view exception to the warrant requirement is based upon the premise that the police need not ignore incriminating evidence in plain view while they are . . . entitled to be in a position to view the items seized. . . . Three requirements must be met to invoke the plain view doctrine: First, the items seized must be in the plain view of the police, second the initial intrusion that enabled the police to view the items seized must have been lawful; and [third] the police must have had probable cause to believe that these items were contraband or stolen goods.” (Citations omitted; internal quotation marks omitted.) State v. Holmes, 51 Conn. App. 217, 220-21, 721 A.2d 1195 (1998), cert. denied, 248 Conn. 904, 731 A.2d 309 (1999).

First, we note that the bag of crack cocaine was discarded into an open garbage can in the plain view of Fox. The area outside the defendant’s home exposed to public view is a public space and is not subject to fourth amendment protection. See State v. Santiago, 224 Conn. 494, 500, 619 A.2d 1132 (1993). The defendant makes much of the fact that Fox testified that he was not able to identify drugs in the hand of the defendant, but rather, he could only state that the defendant was holding a plastic bag in his right hand. This argument is unavailing. Fox saw the defendant place his right hand into the open garbage can. Fox then immediately observed in the garbage can a plastic bag containing what later was determined to be cocaine. Second, Fox was lawfully on the property on the basis of his reasonable and articulable suspicion that an illegal activity was occurring, as previously discussed.

Finally, Fox had probable cause to believe that the bag the defendant carried and placed in the garbage can contained drugs on the basis of the odor of burning marijuana that Fox smelled when he first observed the defendant, as well as on the basis of the defendant’s evasive action in retreating to his property. The court properly denied the defendant’s motion to suppress.

Ill

The defendant next claims that the court improperly overruled his objection to the map offered into evidence by the state to establish that the defendant possessed a narcotic substance with the intent to sell within 1500 feet of a school in violation of § 21a-278a (b). We disagree.

The state must prove that the defendant intended to sell the drugs in his possession in a location that is within 1500 feet of a school. See State v. Knight, 56 Conn. App. 845, 850, 747 A.2d 13 (2000). To meet its burden, the state sought to introduce into evidence a computer generated engineering map showing that 19 Walnut Street was 1125 feet from St. Mary’s Elementary School. To authenticate the map, the state offered the testimony of Stephen Santovasi, a geographic information system technician who was employed by the city of Waterbury.

The defendant argues that the map clearly was introduced for the truth of the matter asserted therein, that is, that 19 Walnut Street was within 1500 feet of a school. Consequently, the defendant argues that the map should have been excluded as hearsay.

“The appropriate standard of review in cases concerning the admissibility of evidence is limited to whether the trial court abused its discretion. . . . It is generally accepted that a trial court has broad discretion in ruling on the admissibility of evidence and appellate courts will ordinarily not disturb a trial court’s ruling on admissibility of evidence unless a clear abuse of discretion is shown. . . . Every reasonable presumption should be given in favor of the correctness of the court’s ruling in determining whether there has been an abuse of discretion. Reversal is required only when an injustice appears to have occurred.” (Citations omitted; internal quotation marks omitted.) State v. Kirker, 47 Conn. App. 612, 615-16, 707 A.2d 303, cert. denied, 244 Conn. 914, 713 A.2d 831 (1998).

“Our Supreme Court has called a map no more than the pictorial representation of the testimony of the witness through whom it was offered into evidence. . . . Any inaccuracies of the exhibit do not raise a question of admissibility, but rather a question of what weight the jury will afford it. . . . The admissibility of a map is similar to the admissibility of a photograph in that the trial court should examine whether the exhibit aids the jury in understanding the evidence. . . . The trial court in ruling on admissibility is concerned with whether the map is relevant and whether it will assist the jury in understanding the testimony.” (Citations omitted; internal quotation marks omitted.) Id., 616.

Through his testimony, Santovasi indicated that he went to the actual locations depicted on the map to determine the actual locations and then entered the data into the computer that generated the map. He further testified that the program utilized to generate the map included formulas created by others to generate the distance between the school and the location where the defendant was arrested. He also testified that the coordination method that is the basis for the entire system was checked by the state of Connecticut and private engineering companies. He pointed out that the coordination system was not, in fact, displayed on the map entered into evidence, but the result was checked against the coordination system. Finally, he testified that the map was a fair and accurate representation of the distance from St. Mary’s school to 19 Walnut Street.

The defendant makes much of the fact that Santovasi did not actually calculate the distance between the school and 19 Walnut Street with a tape measure and that he assumed that the mathematical formulas correctly calculated the distance. Use of a tape measure is not required. The court determined that the map would aid the jury in its determination of whether the defendant committed the offense within 1500 feet of a school. Inaccuracies, if any, go to the question of what weight the jury might assign to the map, not to the map’s admissibility. The court properly admitted the map into evidence.

IV

The defendant next claims that the court improperly denied his motion for a judgment of acquittal. The defendant’s primary argument is that the evidence was insufficient because the jury could only speculate as to who placed the drugs in the garbage can. The defendant points to Fox’s testimony that he did not see drugs in the defendant’s hand, but rather, only aplastic bag. Fox also testified that there were several other persons near the garbage can around the time that the defendant was arrested. The defendant argues that any one of them could have thrown the drugs into the garbage can prior to the defendant’s alleged actions.

“In reviewing a sufficiency of the evidence claim, we apply a two-part 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. ... In evaluating evidence, the trier of fact is not required to accept as dispositive those inferences that are consistent with the defendant’s innocence. . . . The trier may draw whatever inferences from the evidence or facts established by the evidence it deems to be reasonable and logical. . . . State v. Delgado, 247 Conn. 616, 620-21, 725 A.2d 306 (1999).” (Citations omitted; internal quotation marks omitted.) State v. DeCaro, 252 Conn. 229, 239, 745 A.2d 800 (2000).

“Finally, [a]s we have often noted, proof beyond a reasonable doubt does not mean proof beyond all possible doubt . . . nor does proof beyond a reasonable doubt require acceptance of every hypothesis of innocence posed by the defendant that, had it been found credible by the trier, would have resulted in an acquittal. ... On appeal, we do not ask whether there is a reasonable view of the evidence that would support a reasonable hypothesis of innocence. We ask, instead, whether there is a reasonable view of the evidence that supports thejuiy’s verdict of guilty. . . . State v. Delgado, supra, 247 Conn. 621.” (Internal quotation marks omitted.) State v. DeCaro, supra, 252 Conn. 240.

We are not persuaded by the defendant’s argument. The jury was not asked to speculate, but was called on to draw a reasonable inference from the evidence introduced at trial. In our view, the jury reasonably concluded that the bag observed in the defendant’s hand immediately before he dipped his hand into the garbage can was the same bag that was retrieved by Fox.

V

The defendant’s final claim is that the court improperly denied his motion in limine seeking to preclude the introduction of his prior felony convictions, should he testify. The defendant relies on Practice Book § 741 (3), now § 40-11, which, at the time that the request was made, required the state to provide “promptly, but no later than forty five days from the filing of the request . . . [cjopies of the defendant’s prior criminal record . . . .’’The defendant asserts that because his discovery request was eighteen months old and the trial was already underway when the state proffered the defendant’s criminal history, he was harmed to the extent that he did not know whether he should testify until the middle of his trial. We disagree.

On August 8, 1996, the defendant filed a discovery motion seeking the disclosure by the state of “complete details concerning any prior crime or alleged ‘bad act’ of the defendant which the state intends to use either in rebuttal or in its case-in-chief at trial, either to impeach the defendant’s credibility as a witness or to identify the defendant as the perpetrator of the crime here at issue . . . .” On February 10, 1998, the date that the evidentiary portion of the trial commenced, the state disclosed that the defendant had a felony record in North Carolina for possession of cocaine.

The defendant, on February 11, 1998, made an oral motion in limine to preclude the state from using the information at trial. At the hearing on his oral motion, the defendant argued that the disclosure of this information at such a late date was inherently prejudicial. The state explained that it initially complied with the discovery request and provided a lengthy record of the defendant’s criminal activities in Connecticut, New Jersey and North Carolina. The defendant suggested that the record provided by the state was not correct. Because the defendant’s name is rather common, the state investigated each of the offenses listed to discern if any might be incorrect. The court denied the motion in limine.

“Generally, ‘[t]rial courts have wide discretion with regai’d to evidentiary issues and their rulings will be reversed only if there has been an abuse of discretion or a manifest injustice appears to have occurred. State v. Robinson, 227 Conn. 711, 732, 631 A.2d 288 (1993). Every reasonable presumption will be made in favor of upholding the trial court’s ruling, and it will be overturned only for a manifest abuse of discretion. State v. Kulmac, 230 Conn. 43, 61, 644 A.2d 887 (1994).’ State v. Gracia, 51 Conn. App. 4, 15-16, 719 A.2d 1196 (1998).” Olson v. Accessory Controls & Equipment Corp., 54 Conn. App. 506, 526, 735 A.2d 881, cert. granted on other grounds, 251 Conn. 917, 740 A.2d 864 (1999).

The defendant urges us to view the forty-five day requirement as if it were a per se rule, the violation of which would require the trial court to rule against the state. The defendant fails to recognize the importance of the language in the rule that provides for judicial discretion to extend the time requirement for good cause shown. Furthermore, the defendant cites no case law to support his proposition. The record shows that the state proffered an explanation for the delay, which the court accepted as reasonable. We conclude that the court did not abuse its discretion.

The judgment is affirmed.

In this opinion the other judges concurred.

       General Statutes § 21a-278 (a) provides: “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 one or more preparations, compounds, mixtures or substances containing an aggregate weight of one ounce or more of heroin, methadone or cocaine or an aggregate weight of one-half gram or more of cocaine in a free-base form or a substance containing five milligrams or more of lysergic, acid diethylamide, except as authorized in this chapter, and who is not, at the time of such action, a drug-dependent person, shall be imprisoned for a minimum term of not less than five years nor more than twenty years; and, a maximum term of life imprisonment The execution of the mandatory minimum sentence imposed by the provisions of this subsection shall not be suspended except the court may suspend the execution of such mandatory minimum sentence if at the time of the commission of the offense (1) such person was under the age of eighteen years or, (2) such person’s mental capacity was significantly impaired but not so impaired as to constitute a defense to prosecution.”

       General Statutes § 21a-277 (a) provides: “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.”

       General Statutes § 21a-278a (b) provides: “Any person who violates section 21a-277 or 21a-278 by manufacturing, distributing, selling, prescribing, dispensing, compounding, transporting with the intent to seE or dispense, possessing with the intent to seE or dispense, offering, giving or administering to another person any controEed substance in or on, or within one thousand five hundred feet of, the real property comprising a pubhc or private elementary or secondary school, a pubhc housing project or a Ecensed chUd day care center, as defined in section 19a-77, that is identified as a cldld day care center by a sign posted in a conspicuous place shaE be imprisoned for a term of three years, which shaE not be suspended and shaE be in addition and consecutive to any term of imprisonment imposed for violation of section 21a-277 or 21a-278. To constitute a violation of this subsection, an act of transporting or possessing a controEed substance shaE be with intent to seE or dispense in or on, or within one thousand five hundred feet of, the real property comprising a pubhc or private elementary or secondary school, a pubhc,housing project or a hcensed chhd day care center, as defined in section 19a-77, that is identified as a clhld day care center by a sign posted in a conspicuous place. For the purposes of this subsection, ‘pubhc housing project’ means dwelling accommodations operated as a state or federahy subsidized multifamEy housing project by a housing authority, nonprofit corporation or municipal developer, as defined in section 8-39, pursuant to chapter 128 or by the Connecticut Housing Authority pursuant to chapter 129.”

       Richard Pinder, a physician, testified for the prosecution as an expert witness in the field of toxicology. Pinder testified that the material found in the ziplock bags totaled 14.82 grams and was determined to be freebase cocaine, also known as crack.

       The parties stipulated that the defendant resided at 19 Walnut Street.

         Fox testified that he did not charge the defendant with bribery because he did not take him seriously. He surmised that the defendant felt that he was in trouble and probably would say anything.

        Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).

       This questioning took place approximately five or ten minutes before the defendant was informed of his rights and interrogated. State v. Krajger, supra, 182 Conn. 499. The jacket had actually been found outside a murder victim’s home. Id. During the subsequent interrogation, the defendant denied ownership of the jacket. Id., 499-500. During the trial, however, the state introduced the officer’s testimony that the defendant had admitted ownership of the jacket. Id., 500.

       The facts found by the court are the same as those that the jury reasonably could have found from the evidence that was presented at trial.

       See United, States v. McSween, 53 F.3d 684, 686 (5th Cir.), cert. denied, 516 U.S. 874, 116 S. Ct. 199, 133 L. Ed. 2d 133 (1995); United States v. Nicholson, 17 F.3d 1294, 1297 (10th Cir. 1994); United States v. Reed, 882 F.2d 147, 149 (5th Cir. 1989); United States v. Haley, 669 F.2d 201, 203 (4th Cir.), cert. denied, 457 U.S. 1117, 102 S. Ct. 2928, 73 L. Ed. 2d 1329 (1982); United States v. Garcia-Rodriguez, 558 F.2d 956, 964 (9th Cir. 1977), cert. denied, 434 U.S. 1050, 98 S. Ct. 900, 54 L. Ed. 2d 802 (1978).

       Practice Book § 741, now § 40-11, provides in relevant part: “Upon written request by a defendant filed in accordance with Sec. 811 [now § 41-5] and without requiring any order of the judicial authority the prosecuting authority, subject to Sec. 785 et seq. [now § 40-40 et seq.], shall promptly, but no later than forty five days from the filing of the request, unless such time is extended by the judicial authority for good cause shown, disclose in writing the existence of and allow the defendant in accordance with Sec. 737A [now § 40-7], to inspect, copy, photograph and have reasonable tests made on any of the following items . . .
      “(3) Copies of the defendant’s prior criminal record, if any, which are within the possession, custody, or control of the prosecuting authority, the existence of which is known, or by the exercise of due diligence may become known, to the prosecuting authority . . . .”

       The court in its oral decision stated: “The timeliness argument is not supported by the facts here. The state, I think, has acted as well as it could to provide this information, and provided it on the basis of the defense request. As was indicated on the record before the trial started, that there was—we were still looking into all these things because of the complications that come with record transfers on an interstate basis. I’m not going to disallow this on the basis of timeliness.”


source: Caselaw Access Project

author: FOTI, J.

license: Public Domain

text:
    STATE OF CONNECTICUT v. KAREEM LEWIS
    (AC 19012)
    Foti, Hennessy and Healey, Js.

      Argued April 4
    officially released June 6, 2000

      Matthew T. Gilbride, special public defender, with whom, on the brief, was James A. Shanley, Jr., special public defender, for the appellant (defendant).

      Leon F. Dalbec, Jr., senior assistant state’s attorney, with whom, on the brief, were James E. Thomas, state’s attorney, and Victor Carlucci, Jr., assistant state’s attorney, for the appellee (state).
   Opinion

FOTI, J.

The defendant, Kareem Lewis, appeals from the judgment of the trial court revoking his probation and committing him to the custody of the commissioner of correction to serve the suspended portion of his sentence. On appeal, the defendant claims that the court improperly found him in violation of the terms of his probation pursuant to General Statutes § 53a-32, although he was not formally given notice of the statutory conditions of probation. We affirm the judgment of the trial court.

The following facts and procedural history are relevant to the resolution of this appeal. On January 21, 1998, the defendant pleaded guilty to one count of possession of narcotics with intent to sell in violation of General Statutes § 21a-277, with an agreed recommendation for a sentence of five years suspended with two years of probation, including special conditions. During the plea canvass, the defendant acknowledged that he understood the plea agreement and further understood that if he violated the probation he could be made to serve the five years that were suspended. In imposing sentence, the court explained the special conditions of probation, which the defendant stated that he understood and agreed to obey. One of the conditions was that he was not to use or possess or have control of any “dangerous instruments or dangerous weapons . . . .” Thereafter, the court directed that when released “downstairs,” the defendant should return to the “second floor, out the hallway, and go see probation and sign the conditions of your probation.”

The defendant, however, was not released from confinement at the courthouse, but was released the following day. As a result, he did not speak to a probation officer or sign any conditions of probation.

On February 10, 1998, less than three weeks after being placed on probation, the defendant was arrested and charged with robbery in the first degree in violation of General Statutes § 53a-134. Thereafter, the defendant was arrested on a warrant for violation of probation on the basis of the facts underlying his arrest for armed robbery. Following his denial of the violation, the defendant was given a probation revocation hearing in which evidence was presented showing that he was apprehended at gunpoint, holding a folding knife in its open position after having robbed an individual at knifepoint. The court rejected the defendant’s argument that he could not be found in violation of his probation because he never was told that the commission of a felony while on probation would constitute a violation of that probation. The court found that the state had sustained its burden of proof that the defendant had violated an inherent condition of his probation by committing a felony a mere twenty days after having been released on probation.

The defendant argues that General Statutes § 53a-30x directs the court to cause a copy of the order of probation to be delivered to the defendant, and General Statutes § 54-108 directs the probation officer to furnish each person placed on probation with a written statement of the conditions of probation and to instruct him regarding those conditions. In light of that, he argues, it is difficult to understand how those sections are discretionary and not mandatory. He claims that his due process rights therefore were violated and that in the interest of justice and fairness, the judgment should be reversed.

“An appellate court’s review of an order revoking probation is to determine whether the trial court abused its discretion . . . and we must review the reasonableness of the two findings: whether the defendant violated the conditions of probation, and whether he should be incarcerated because the rehabilitative purpose of probation cannot continue to be served.” (Citation omitted.) State v. Wright, 24 Conn. App. 575, 579, 590 A.2d 486 (1991).

“A revocation of probation proceeding based upon a violation of a criminal law need not be deferred until after a disposition of the charges underlying the arrest because the purpose of a probation revocation hearing is to determine whether a defendant’s conduct constituted an act sufficient to support a revocation of probation; Payne v. Robinson, 10 Conn. App. 395, 523 A.2d 917 (1987) [aff'd, 207 Conn. 565, 541 A.2d 504, cert. denied, 488 U.S. 898, 109 S. Ct. 242, 102 L. Ed. 2d 230 (1988)]; rather than whether the defendant had, beyond a reasonable doubt, violated a criminal law. The proof of the conduct at the hearing need not be sufficient to sustain a violation of a criminal law. Id., 402.” State v. Smith, 18 Conn. App. 368, 370 n.l, 558 A.2d 257 (1989); see also State v. Deptula, 34 Conn. App. 1, 5, 639 A.2d 1049 (1994) (state does not need criminal conviction to establish probation violation arising out of criminal conduct). “In a probation violation proceeding, all that is required is enough to satisfy the court within its sound judicial discretion that the probationer has not met the terms of his probation.” Payne v. Robinson, supra, 403.

In this matter, the defendant does not claim that the state failed to prove by a preponderance of the evidence that he violated a condition of his probation, i.e., that his conduct constituted an act sufficient to support a revocation of probation or that the court’s finding was clearly erroneous. Instead, he argues either that as a matter of law, he could not have violated his probation or that the court abused its discretion by not excusing him from his probation violation because of insufficient notice.

Due process does not require that the defendant, in a revocation of probation proceeding based on criminal activity, be aware of the conditions of probation. “In such a case, knowledge of the criminal law is imputed to the probationer, as is an understanding that violation of the law will lead to the revocation of probation. On the other hand, where the proscribed acts are not criminal, due process mandates that the [defendant] cannot be subject to a forfeiture of his liberty for those acts unless he is given prior fair warning.” United States v. Dane, 570 F.2d 840, 844 (9th Cir. 1977), cert. denied, 436 U.S. 959, 98 S. Ct. 3075, 57 L. Ed. 2d 1124 (1978). An inherent condition of any probation is that the probationer not commit further violations of the criminal law while on probation. “It is universally held that the commission of a felony violates a condition inherent in every probation order.” State v. Roberson, 165 Conn. 73, 77, 327 A.2d 556 (1973). The general conditions of probation are presumed as an integral part of probation. State v. Wright, supra, 24 Conn. App. 577.

“In State v. White, 169 Conn. 223, 237, 363 A.2d 143, cert. denied, 423 U.S. 1025, 96 S. Ct. 469, 46 L. Ed. 2d 399 (1975), the defendant argued that the trial court’s failure to deliver a written copy of the conditions of probation to him, pursuant to ... § 53a-30 (a), invalidated the revocation of his probation. Our Supreme Court concluded that the claim was without merit because the statute does not provide a penalty for the failure of the court to deliver to the defendant a copy of the probation conditions and because the defendant did not claim that he was unaware that if he violated the relevant condition, his probation would be subject to revocation. Id., 238. The White court concluded that the statute was directory and that ‘it would make a mockery of the statute to say failure to deliver standard conditions of probation renders probation invalid under the facts of this case.’ Id.

“Section 54-108 provides in relevant part that probation officers ‘shall furnish to each person released under their supervision a written statement of the conditions of probation and shall instruct him regarding the same. . . .’ Section 54-108 does not provide a remedy for the failure of the probation officer to comply with the statute.” State v. Martinez, 55 Conn. App. 622, 626-27, 739 A.2d 721 (1999). “[W]e conclude that § 54-108 is directory and not mandatory, and that violation of the statute by the probation officer does not excuse the defendant from the requirement that he not violate a condition of probation.” Id.

Had the sentencing court merely placed the defendant on probation without saying anything further, the commission of a felony nevertheless would constitute a violation sufficient to authorize revocation of probation. State v. Hoffler, 55 Conn. App. 210, 216-17, 738 A.2d 1145, cert. denied, 251 Conn. 923, 742 A.2d 360 (1999). The defendant was not entitled to “fair warning” that committing new crimes is a violation of probation. Id., 217. We conclude, therefore, that the defendant’s due process rights were not violated and that the court did not abuse its discretion in finding the defendant in violation of his probation.

The judgment is affirmed.

In this opinion the other judges concurred.

       General Statutes § 53a-30 (a) provides in relevant part: “The court shall cause a copy of any such order to be delivered to the defendant and to the probation officer, if any.”

       We find it unnecessary to address whether, in placing the defendant on probation, the sentencing court’s order of the special condition that he not have, use or possess or have under his “dominion or control any . . . dangerous instruments or dangerous weapons” might have constituted sufficient notice, if such was required.


author: SCHALLER, J.

text:
    IN RE SHYINA B.

    (AC 19721)
    Schaller, Hennessy and Daly, Js.

      Argued January 18
    officially released June 6, 2000

      Eliot D. Prescott, assistant attorney general, with whom were Carolyn A. Signorelli, assistant attorney general, and, on the brief, Richard Blumenthal, attorney general, and Susan T. Pearlman, assistant attorney general, for the appellant (petitioner).

      Cynthia Hartwell-Russell, for the appellees (inter-venors).

      Elizabeth A. Edwards, with whom was Christine B. O’Sullivan, for the appellee (respondent mother).

      Amy L. A. Klein, for the minor child.

       In accordance with the spirit and intent of General Statutes § 46b-142 (b) and Practice Book § 79-3, the names of the parties involved in this appeal are not disclosed. The records and papers of this case shall be open for inspection only to persons having a proper interest therein and upon order of the Appellate Court.

   Opinion

SCHALLER, J.

The commissioner of children and families (commissioner) appeals from the judgment of the trial court granting custody and guardianship of the minor child, Shyina B., to the intervenors, her maternal uncle and aunt. On appeal, the commissioner claims that the court improperly applied the best interest of the child standard when it (1) imposed a legal presumption that Shyina’s placement with the intervenors was in her best interest, (2) sought to remedy the commissioner’s denial of the intervenors’ request to be licensed as foster parents of Shyina and (3) considered the race of the intervenors. We affirm the judgment of the trial court.

The following facts and procedural history are relevant to our disposition of this appeal. Shyina was born while her mother was awaiting trial for the murder of Shyina’s half-sister. Shyina’s mother subsequently was convicted of manslaughter in the first degree and sentenced to twenty years in prison. Because Shyina’s mother was incarcerated at the time of Shyina’s birth, the commissioner immediately obtained an order of temporary custody and placed Shyina with a foster family. At that time, the commissioner filed a neglect petition with respect to Shyina.

Shortly after the birth of Shyina, the intervenors learned of her birth and contacted the commissioner to declare themselves available as a placement resource for Shyina. The commissioner informed the intervenors that because the intervening aunt had a “record” with the department, placement with the intervenors would be problematic. The intervenors requested a copy of the record, but were told it was unavailable. The commissioner later told the intervenors that because of the record, Shyina could not be placed with them and that they could seek custody of her by moving to intervene if they so desired. The intervenors moved to intervene, and on January 6,1998, by agreement, the court granted the motion for the dispositional phase only.

On January 16,1998, the court granted the intervenors visitation rights with respect to Shyina. On July 9,1998, the intervenors moved for custody and guardianship of Shyina. On August 18, 1998, the court adjudicated Shy-ina uncared for because she was homeless. The case was continued to September 16, 1998, when a disposi-tional hearing commenced. In a memorandum of decision dated June 9, 1999, the court recognized two available options with respect to the placement of Shy-ina: She could be committed to the custody of the commissioner, in which case she would remain in the care of the foster family, or her custody and guardianship could be granted to the intervenors. The court concluded that while both homes would be “fit, comfortable and safe settings for Shyina,” a fair preponderance of the evidence showed that granting custody and guardianship of her to the intervenors would be in the child’s best interest. This appeal followed. On July 20, 1999, in response to a motion by the commissioner, the court articulated its memorandum of decision. Additional facts will be set forth as necessary in the context of the commissioner’s claims.

I

The commissioner claims first that the court improperly applied the best interest of the child standard when it imposed a legal presumption that Shyina’s placement with the intervenors was in her best interest even though the relatives are not her parents, and that the commissioner, therefore, was required to rebut that presumption to persuade the court that Shyina should remain in the foster home. Because we conclude that the court did not impose such a presumption, we need not address its propriety.

In support of this claim, the commissioner relies on portions of the court’s memorandum of decision. In its memorandum of decision, the court stated that the “factor which weighs most heavily in favor of the disposition of a transfer of custody and guardianship to the [intervenors] is their close and strong biological tie to Shyina, her family and her mother.” The court stated that “if at all possible, Shyina is entitled to be raised with her family, including her biological relatives” and, as expounded in its articulation, that “[o]n the other hand, depriving Shyina of [her right to live with] her biological relatives, when it has not been shown that placement with them would be detrimental to her, would certainly not be in her long-term best interests.” (Internal quotation marks omitted.)

Read in isolation, these statements appear to support the commissioner’s contention. Our review of the entire memorandum of decision, however, leads us to the contrary conclusion. At the outset, the court properly observed that in the search for an appropriate custodial placement, what is in the best interest of the child shall prevail; General Statutes § 46b-57; Cappetta v. Cappetta, 196 Conn. 10, 16, 490 A.2d 996 (1985); as shown by a fair preponderance of the evidence. In re Joshua Z., 26 Conn. App. 58, 63, 597 A.2d 842, cert. denied, 221 Conn. 901, 600 A.2d 1028 (1991).

The court found that the foster home provided “a safe and nurturing environment” for Shyina and, if that was the only choice, “it would be a wonderful selection.” The court also found that the intervenors’ home provided “a safe, nurturing and appropriate environment for Shyina.” These findings precede, in the memorandum of decision, the statements cited by the commissioner, which demonstrate that the court’s initial determination was not that placement with the inter-venors was presumptively in Shyina’s best interest, but rather that both placements were desirable. Having made that determination, the court proceeded to weigh the alternatives, which is the context in which it made the challenged statements.

That the court did not impose a presumption is further shown by its response to the commissioner’s motion for articulation. The court stated: “The relevant language . . . reads as follows: ‘On the other hand, depriving Shyina of her biological relatives, when it has not been shown that placement with them would be detrimental to her, would certainly not be in her long-term best interests.’ This portion of the decision must be read in the context of the decision as a whole. First, it is difficult to understand exactly what the state means by its claimed inquiry. The court did not apply any standard to Shyina’s placement other than what would be in her best interest. That standard was announced to the parties at the inception of the trial, was stated by the state in its memorandum of law in support of proposed findings of fact and held by the court to be the only standard defining the disposition of this case. Necessarily, what is expressed as affecting that standard, whether it be advantageous or detrimental, cannot be viewed as replacing that standard. It must be viewed in the context of how the specific facts and findings affect the ultimate standard of best interest. Secondly, the prefacing words, ‘on the other hand,’ indicate to the reader that the text relates to a prior point in the decision, here to the first full paragraph on page 15. The court, in this area of the opinion, is weighing the respective alternate options and setting out its reasoning for the ultimate decision of what is in Shyina’s best interest.” (Emphasis added.) We conclude that the court did not impose a presumption in favor of the intervenors as a placement resource. Because the commissioner’s claim depends on a contrary assertion, it must fail.

II

The commissioner claims next that the court improperly applied the best interest of the child standard when it sought to remedy the commissioner’s denial of the intervenors’ request to be licensed as foster parents and that such improper remedy, coupled with the alleged improper presumption previously discussed, undoubtedly affected the court’s decision to remove Shyina from the foster family and to place her with the interve-nors. As to the presumption, we concluded in part I of this opinion that it was not imposed by the court. As to the claim that the court “attempted to redress in the dispositive phase of [the] neglect proceeding what it perceived as [the commissioner’s] improper judgment refusing to license or certify the intervenors as foster parents,” we are not persuaded.

The following facts from the court’s memorandum of decision are undisputed. The intervenors came forward immediately upon learning of the premature birth of Shyina and expressed their desire to have her placed with them. Thereafter, they persisted in their endeavor. When they informed the commissioner of their intention, they were told that the aunt’s “record” would prohibit placement with them. The intervenors requested a copy of the record, and the commissioner responded that it was not then available. After the commissioner informed them that they could file a motion to intervene to get custody, the intervenors did so, appeared at every court hearing with their private attorney and made it consistently clear that they wanted to have Shyina placed with them.

The court found that the aunt’s record did not substantiate neglect and that the allegations contained therein were vague, indefinite and irrelevant to the issue of custody, but it found that the record was relevant to show why the commissioner refused to consider the intervenors as a viable placement resource. With that in mind, the court proceeded to examine the substance of the record, concluding, “It is clear to the court that [the commissioner] denied the [intervenors] the opportunity to be considered a placement resource for Shyina based upon this ‘record’ of [the aunt] even though [the] same was vague and indefinite, was based on facts that were not clear or substantiated and resulted in a conclusion (‘at risk’) that is no longer used by [the commissioner]. That denial, together with [the commissioner’s] failure to produce [the] ‘record’ for approximately seven months after it was used as a reason for denying the [intervenors] the right to be considered as a placement resource, was fundamentally unfair. . . . [This court finds that the commissioner’s] failure to even consider the [intervenors] based on the facts presented effectively deprived Shyina of an option that may have been in her best interest.” (Emphasis in original.)

Although the court found that the commissioner’s actions with respect to the intervenors were unfair, our review of the court’s memorandum of decision reveals that the court did not attempt to remedy that unfairness when it concluded that it was in Shyina’s best interest to be in the custody of the intervenors. Rather, the court’s use of the history was, in part, to illustrate that the record was unsubstantiated, thereby rebutting the commissioner’s position that Shyina should not be placed with the intervenors while supporting its own conclusion as to which placement would be in Shyina’s best interest. This is shown by the court’s statements that the “record” was “relevant to show why the commissioner refused to consider the intervenors as a viable placement resource” and that “[the commissioner’s] failure to even consider the [intervenors] based on the facts presented effectively deprived Shyina of an option that may have been in her best interest.” (Emphasis in original.) The court also utilized the history to demonstrate that from the time that they first learned of Shyi-na’s birth, and despite the commissioner’s refusal to consider them as an option, the intervenors persevered in their pursuit by hiring an attorney, attending all hearings and continuously expressing their desire to care for Shyina. In short, the court engaged in an assessment of the fitness of the intervenors as prospective custodians of Shyina. “The guiding principal in determining custody is the best interests of the child. . . . The best interests of the child include the child’s interests in sustained growth, development, well-being, and continuity and stability of its environment.” (Citations omitted; internal quotation marks omitted.) Schult v. Schult, 241 Conn. 767, 777, 699 A.2d 134 (1997). Whether the intervenors are fit to care for Shyina is clearly relevant to the court’s determination of the best interest of Shy-ina. The court, therefore, properly considered the history of the relationship between the intervenors and the commissioner in this case.

Ill

The commissioner claims finally that the court improperly considered the race of the intervenors when it applied the best interest of the child standard. We disagree.

Rodolfo Jose Rosado, a court-appointed psychologist, testified that “from a cultural aspect, with African-American and African-Caribbean families, [they] have long used extended family supports where children are surrounded by a variety of relatives who love them and take care of them, and they can develop attachments and enduring attachments with each [individual] and the attachments would be sustained despite geographical difference or differences of time. And that, because, people say, ‘We love you, you’re one of us,’ and, ‘We belong together.’ And even [though] a child may not have physical contact with the adults all the time, there is a feeling of mutual support in a sense of belonging [as] an affiliation.” In its memorandum of decision, the court stated: “In fact, the [intervenors’] family presents a good example of this phenomenon as they have, during the pendency of this action, actually taken into their home two children of [the aunt’s] sister . . . and have moved to Waterbury to secure a larger apartment to accommodate these children and the hopeful addition of Shyina.” The commissioner moved the court to articulate the “[r]elevance of Dr. Rosado’s testimony regarding [the] phenomenon of the cultures of African-Americans and African-Caribbeans utilizing extended family supports to the facts of the current case where the [intervenors] are a biracial couple . . . .’’The court responded: “Shyina, her mother . . . and her uncle . . . are all African-American people. They are from, and comprise a part of, an African-American family. Rosado testified to the phenomenon of extended family supports being utilized especially in African-American and African-Caribbean families. The relevance is clear, self-explanatory and requires no further clarification. Due weight was given to the testimony in light of the specific facts and circumstances of this case.”

The commissioner argues that “family support systems” have “no legal relevance” to what is in Shyina’s best interest. As we set forth in part II of this opinion, Shyina’s best interest includes her interest in “sustained growth, development, well-being, and continuity and stability of [her] environment.” Id. We conclude that the extent to which the intervenors’ family might contribute to the care of Shyina is relevant to those factors and, therefore, that it properly was considered by the court.

The judgment is affirmed.

In this opinion the other judges concurred.

       The commissioner ultimately produced the “record” pursuant to a court order.

       The motion for articulation in relevant part requested the court to state the “[l]egal basis for applying a standard of whether a change in placement would be ‘detrimental’ to Shyina.”


author: PER CURIAM.

text:
    WAYNE WHITE v. COMMISSIONER OF CORRECTION
    (AC 19117)
    Schaller, Mihalakos and Pellegrino, Js.
    Submitted on briefs April 3
    officially released June 6, 2000

      James A. Shanley, Jr., special public defender, filed a brief for the appellant (petitioner).

      Frederick W. Fawcett, assistant state’s attorney, filed a brief for the appellee (respondent).
   Opinion

PER CURIAM.

The petitioner, Wayne White, appeals following the habeas court’s denial of his petition for certification to appeal from that court’s denial of his petition for a writ of habeas corpus. He claims that the habeas court improperly determined that his trial counsel provided effective assistance. In his amended petition, the petitioner claims that his trial counsel was ineffective in failing to explain the amount of time the petitioner was likely to serve and his eligibility for parole when trial counsel conveyed plea bargain offers by the state. The habeas court denied the petition and denied the petitioner’s request for certification to appeal. Our examination of the record and briefs persuades us that the denial of the petition for certification was proper and the appeal should be dismissed.

In a habeas appeal, although this court cannot disturb the underlying facts found by the habeas court unless they are clearly erroneous, our review of whether the facts as found by the habeas court constituted a violation of the petitioner’s constitutional right to effective assistance of counsel is plenary. Johnson v. Commissioner of Correction, 36 Conn. App. 695, 700, 652 A.2d 1050, cert. denied, 233 Conn. 912, 659 A.2d 183 (1995). For the petitioner to prevail on his claim of ineffective assistance of counsel, he must establish both that his counsel’s performance was deficient and that there is a reasonable probability that, but for the counsel's mistakes, the result of the proceeding would have been different. Strickland v. Washington, 466 U.S. 668, 694, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984); Bunkley v. Commissioner of Correction, 222 Conn. 444, 445, 610 A.2d 598 (1992). The petitioner has not satisfied this burden.

The habeas court’s dismissal of the petition for a writ of habeas corpus was based on a review of the petitioner’s claims and its findings that “the petitioner was aware that the robbery charge did fall within the 85 percent requirement of General Statutes § 54-125a (c) for parole and that the seven years to serve was never offered. Therefore, neither could have influenced his decision differently to have taken a plea rather than to finish trial.” Accordingly, the habeas court concluded that the petitioner had failed to carry the burden of proof required to establish that his trial counsel provided ineffective assistance.

After a review of the record and briefs, we conclude that the petitioner has failed to make a substantial showing that he has been denied a state or federal constitutional right and, further, has failed to sustain his burden of persuasion that the denial of certification to appeal was a clear abuse of discretion or that an injustice has been done. See Simms v. Warden, 230 Conn. 608, 612, 646 A.2d 126 (1994); Simms v. Warden, 229 Conn. 178, 189, 640 A.2d 601 (1994); Walker v. Commissioner of Correction, 38 Conn. App. 99,659 A.2d 195, cert. denied, 234 Conn. 920, 661 A.2d 100 (1995); see also Lozada v. Deeds, 498 U.S. 430, 431-32, 111 S. Ct. 860, 112 L. Ed. 2d 956 (1991).

We conclude that the habeas court had before it sufficient evidence to find as it did and that it did not abuse its discretion in denying the petition for certification to appeal.

The appeal is dismissed.

       Following a jury trial, the petitioner was convicted of robbery in the first degree in violation of General Statutes § 53a-134 (a) (4), assault in the third degree in violation of General Statutes § 53a-61 (a) (1), interfering with an officer in violation of General Statutes § 53a-167a (a) and illegal possession of a narcotic substance in violation of General Statutes § 21a-279 (a). The petitioner was sentenced to a total effective sentence of eighteen years, execution suspended after thirteen years with three years of probation. This court affirmed the conviction in State v. White, 47 Conn. App. 914, 702 A.2d 673 (1997).


author: FREEDMAN, J.

text:
    PAUL J. YAMIN v. SAVARESE AND SCHEFILITI, P.C.
    (AC 18966)
    Spear, Mihalakos and Freedman, Js.
    Argued December 6, 1999
    officially released June 13, 2000

      John A. Reed, with whom was Wesley W. Horton, for the plaintiff in error.

      Brenden P. Leydon, with whom, on the brief, were Joseph J. Capalbo II and Susan F. D’Elia, for the defendant in error.
   Opinion

FREEDMAN, J.

The plaintiff in error, attorney Paul J. Yamin, has filed a writ of error challenging the trial court’s order of sanctions against him. We conclude that the court’s order was proper. Accordingly, we affirm the order of the trial court.

The court found the following facts, which are not in dispute. The defendant in error, Savarese and Schefihti, P.C. (Savarese), aprofessional corporation of engineers and land surveyors, brought an action as a successor in interest to another professional corporation, Somers and Schefihti, P.C. (Somers), against the Stallion Corporation (Stallion). Yamin represented Stallion in the action. Savarese alleged in its complaint that it had succeeded to all of the assets of Somers, including the cause of action against Stallion. During the course of the action, Stallion, through Yamin, propounded interrogatories to Savarese. Interrogatory number five in a request dated March 26, 1997, provided, in its entirety, as follows: “State whether or not there are any documents transferring assets and liabilities or both from Somers and Schefihti, P.C. to Savarese and Schefihti, P.C.” The response, dated October 21, 1997, provided, in its entirety, as follows: “To the best of my knowledge, there are none.”

On November 24, 1997, Yamin filed a motion to dismiss the action, arguing that Savarese lacked standing to invoke the jurisdiction of the court. The motion stated in relevant part that “[i]n response to an inquiry as to whether or not there was a transfer of assets and liabilities from Somers and Schefiliti, P.C. to the plaintiff Savarese and Schefiliti, P.C., the response of the plaintiff was, ‘To the best of my knowledge, there are none.’ ” On December 10, 1997, Savarese filed an objection to the motion to dismiss, together with the affidavit of DomenicM. Schefiliti, the president of Savarese, certain exhibits and a memorandum of law. The objection claimed that the motion to dismiss contained a misstatement and pointed out that interrogatory number five did not ask whether there was a transfer of assets, but rather, whether there were documents evidencing the transfer. On February 9, 1998, the court denied the motion.

On February 19, 1998, Stallion, through Yamin, filed a “motion in limine re issue of successor in interest of [Savarese] to Somers & Schefiliti, P.C.” This motion sought to exclude at trial all evidence that Savarese was a successor in interest to Somers. The motion stated in relevant part that on March 26, 1997, interrogatories were “sent to [Savarese] requesting information as to the transfer of assets and liabilities [from] Somers & Schefiliti, P.C. to . . . Savarese & Schefiliti, P.C.” and that the response of Savarese was “ ‘[t]o the best of my knowledge, there are none.’ ” Savarese filed an objection to the motion in limine and filed the motion for sanctions that is the subject of the present writ of error.

As the court noted, the motion for sanctions set forth the misstatements made in both the motion to dismiss and the motion in limine, and the steps that Savarese had to take to bring the misrepresentations to the attention of the court. The motion requested relief, including an award of attorney’s fees incurred by Savarese in opposing both motions. Following a hearing, the court found that Yamin had violated rule 3.3 (a) (l) of the Rules of Professional Conduct and Practice Book § 4-2, by knowingly misstating the content of interrogatory number five. The court therefore ordered Yamin to pay attorney’s fees to Savarese in the amount of $1905. Yamin then filed the present writ of error.

Yamin contends before this court that he could not have knowingly misrepresented interrogatory number five to the court because the interrogatory was before the court as an exhibit attached to his memorandum of law. Yamin further argues that the memorandum of law submitted with the motion to dismiss clearly indicated that interrogatory number five referred to the absence of documents regarding the transfer of assets. With regard to the motion in limine, Yamin argues that his intent, given the interrogatory response, was to prevent Savarese from introducing documentary evidence that showed a transfer of assets. Yamin further argues that the motion in limine was procedurally proper following the denial of the motion to dismiss. We disagree with Yamin’s claims.

“The trial court has the authority to regulate the conduct of attorneys and has a duty to enforce the standards of conduct regarding attorneys.” Bergeron v. Madder, 225 Conn. 391, 397, 623 A.2d 489 (1993). The court further has the inherent power to discipline members of the bar and “to provide for the imposition of reasonable sanctions to compel the observance of its rales.” (Internal quotation marks omitted.) Gionfrido v. Wharf Realty, Inc., 193 Conn. 28, 33, 474 A.2d 787 (1984). “[T]he task of determining whether sanctions should be imposed is inherently fact bound, and requires carefully circumscribed discretion to be exercised by the trial court.” (Internal quotation marks omitted.) Double I Ltd. Partnership v. Plan & Zoning Commission, 218 Conn. 65, 84, 588 A.2d 624 (1991). We review the record to determine whether the court has abused this discretion. Id.

The court found that Yamin had “clearly . . . violated both rale 3.3 (a) (1) and Practice Book § 4-2.” The court went on to find that “[i]n the motion to dismiss and the motion in limine, both of which are based on interrogatory number five and its response, he knowingly misstated the content of the interrogatory. There was no good ground to support either motion. The misstatement in the motion in limine is particularly egregious because it was made only ten days after the court had denied [Stallion’s] motion to dismiss, thereby clearly rejecting the merit of [Stallion’s] claim.”

On the basis of our review of the record, we conclude that the court reasonably could have found that the sanctions order was appropriate. The court found, following the hearing, that Yamin had knowingly misstated the content of interrogatory number five in both the motion to dismiss and the motion in limine. The court did not abuse its discretion in granting Savarese’s motion for sanctions.

The judgment is affirmed.

In this opinion the other judges concurred.

       Savarese stated, in its objection to the motion to dismiss, that “[Stallion] has misstated a discovery response submitted by [Savarese] by saying that [Savarese] has denied a transfer of assets from the predecessor corporation to [Savarese]. What [Savarese] actually said was that there is no written record demonstrating such a transfer, so far as [Savarese] knows. This is apparent from a cursory glance of Interrogatory #5 of [Stallion’s] March 26, 1997 discovery request.”
      Domenic M. Schefiliti, in his affidavit attached to the opposition to the motion to dismiss, stated in relevant part:
      “1.1 am the President of [Savarese] and as such I am fully familiar with the facts giving rise to this action.
      “2.1 was also the President of the corporation known as Somers & Schefi-liti, P.C., which was dissolved on or about October 1,1991. (A certified copy of its certificate of dissolution is attached hereto as Exhibit ‘A.’)
      “3. It is untrue that there was no transfer of assets from Somers & Schefiliti, P.C. to [Savarese], as is claimed by Attorney Yamin.

      “4. Mr. Yamin’s discovery request of March 26, 1997 (Interrogatory #5) merely asked me if there were any documents showing a transfer of assets from the first corporation to its successor, and I truthfully responded that, to the best of my knowledge, there were none. (A copy of this Interrogatory is attached hereto as Exhibit ‘B.’)” (Emphasis in original.)

       Rule 3.3 (a) (1) of the Rules of Professional Conduct provides in relevant part: “A lawyer shall not knowingly ... (1) Make a false statement of material fact or law to a tribunal . . . .”

       Practice Book § 4-2 provides: “(a) Every pleading and other paper of a party represented by an attorney shall be signed by at least one attorney of record in the attorney’s individual name. A party who is not represented by an attorney shall sign his or her pleadings and other papers. The name of the attorney or party who signs such document shall be legibly typed or printed beneath the signature.
      “(b) The signing of any pleading, motion, objection or request shall constitute a certificate that the signer has read such document, that to the best of the signer’s knowledge, information and belief there is good ground to support it, and that it is not interposed for delay. Each pleading and every other court-filed document signed by an attorney or party shall set forth the signer’s telephone number and mailing address.”


author: SPALLONE, J.

text:
    MARK S. URICH v. RICHARD FISH
    (AC 18334)
    Lavery, Landau and Spallone, Js.

      Argued February 25
    officially released June 13, 2000

      Max F. Brunswick, for the appellant-appellee (plaintiff).

      K. Wynne Bohonnon, for the appellee-appellant (defendant).

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

   Opinion

SPALLONE, J.

The plaintiff, Mark S. Urich, sought damages from the defendant, Richard Fish, for the defendant’s alleged breach of a contract to purchase a yacht from the plaintiff. The plaintiff claimed that there remained due a $20,000 balance of the purchase price. The defendant filed a counterclaim alleging that certain equipment was missing from the boat when he took delivery. The trial court rendered judgment for the plaintiff on the complaint and for the defendant on the counterclaim. The plaintiff appeals, claiming that the trial court improperly (1) rendered judgment for the defendant on the counterclaim because the yacht was sold “as is” and the defendant accepted same, (2) allowed hearsay into evidence, (3) placed a hearsay limitation with respect to an exhibit at trial and then considered the exhibit without limitation in reaching its decision, (4) awarded punitive damages in the amount of $7000 and (5) awarded both punitive damages and attorney’s fees.

In his cross appeal, the defendant contends that the trial court improperly (1) determined that the contract price for the vessel was $474,000 and (2) refused to allow the defendant to present evidence of attorney’s fees and costs on its award of damages to the defendant for the plaintiffs violation of the Connecticut Unfair Trade Practices Act (CUTPA), General Statutes § 42-110a et seq. We affirm the judgment on the plaintiffs complaint. We reverse the judgment on the defendant’s counterclaim and remand the case for a new trial.

The following facts are relevant to this appeal. In a contract dated February 26, 1993, the plaintiff agreed to sell to the defendant a yacht for $460,000. Subsequently, the price of the yacht was increased to $474,000. The broker who handled the sale, however, inadvertently delivered title to the yacht to the defendant, despite the fact that the defendant’s payment was $20,000 less than the agreed upon price.

The plaintiff, thereafter, brought an action to recover from the defendant the balance due on the sale. The defendant filed a counterclaim, alleging that a number of items that should have been included in the sale of the yacht were missing. The court rendered judgment for the plaintiff in the amount of $20,000, the amount due on the $474,000 sale price. On the counterclaim, the court found that approximately $10,000 worth of items were missing from the yacht when the defendant took delivery and awarded the defendant damages for the missing items. Because of the missing items, the court additionally found that the plaintiff had violated CUTPA and awarded the defendant punitive damages and attorney’s fees. Both parties now appeal.

I

A

In his first claim, the plaintiff asserts that the court improperly rendered judgment for the defendant on the counterclaim because the vessel was sold “as is” under the contract. The plaintiff relies on paragraph fifteen of the contract, which states as follows: “Information available on the vessel is believed to be correct and the broker offers such information in good faith but does not and cannot guarantee the accuracy of this information. After the provisions contained herein have been complied with and this transaction has been consummated, it is understood and agreed by the buyer that he has accepted the vessel ‘as is’ and no warranty, either expressed or implied, and no representation as to the condition of said vessel has been made or is binding upon the broker.”

The trial court expressly construed paragraph fifteen as having been incorporated in the contract for the benefit of the broker and, as such, it had no applicability as to the terms of the sale between the plaintiff and the defendant. A fair reading of paragraph fifteen supports the court’s conclusion that the language therein insulates only the broker from any liability as to the condition of the yacht. The obligations expressed in the contract between the parties are not affected by this disclaimer of the broker. The plaintiffs first claim is without merit.

B

The plaintiffs second and third claims involve the court’s decision to allow into evidence a listing for the sale of the yacht between the plaintiff and Charles Irwin, a broker, which listing the court used to determine what items were missing from the yacht when the defendant took delivery. First, the plaintiff claims that the listing was hearsay and should not have been admitted into evidence. Second, the plaintiff claims that the manner in which the court admitted the evidence deprived the plaintiff of procedural due process. Without ruling on the underlying admissibility of the evidence, we conclude that the manner .in which the evidence was allowed constituted a violation of the plaintiff’s right to due process.

At trial, the court agreed with the plaintiff that the listing was inadmissible hearsay but allowed the listing for the limited purpose of showing what the defendant relied on as to the equipment that was included in the purchase price of the yacht. After the trial and after the filing of briefs by the parties, the court reversed itself and stated that the entire Irwin listing was admissible without limitation. The plaintiff objects to this action of the trial judge as violative of the plaintiff’s right to a fair trial. We agree.

The court initially admitted the Irwin listing for the sole purpose of indicating what the defendant had relied on and not for the purpose of showing what the plaintiff represented was on the boat and included in the sale. Relying on the court’s ruling, the plaintiff did not address the Irwin listing, nor was it referred to in the plaintiff’s brief submitted at the conclusion of the evidence. The plaintiff was not given an opportunity to challenge the court’s use of the listing as evidence of what items the plaintiff represented would be on the yacht and included in the sale.

Fundamental tenets of due process require that all persons directly concerned in the result of an adjudication be given reasonable notice and opportunity to present their claims or defenses. Kron v. Thelen, 178 Conn. 189, 193, 423 A.2d 857 (1979). “It is the settled rule of this jurisdiction, if indeed it may not be safely called an established principle of general jurisprudence, that no court will proceed to the adjudication of a matter involving conflicting rights and interests, until all persons directly concerned in the event have been actually or constructively notified of the pendency of the proceeding, and given reasonable opportunity to appear and be heard.” (Internal quotation marks omitted.) Win-ick v. Winick, 153 Conn. 294, 298, 216 A.2d 185 (1965). “It is fundamental in properjudicial administration that no matter shall be decided unless the parties have fair notice that it will be presented in sufficient time to prepare themselves upon the issue.” (Internal quotation marks omitted.) Id., 298-99.

The plaintiff relied on the ruling of the court. Consequently, any change in the court’s ruling without notice deprived him of a fair trial. Accordingly, the judgment for the defendant on the counterclaim is reversed and a new trial is ordered.

C

The plaintiffs fourth and fifth claims are directed to the award of punitive damages and counsel fees after the court found a violation, by the plaintiff, of CUTPA. Because we reverse the court’s judgment for the defendant on the counterclaim, we need not address the CUTPA claim. On retrial, if the court finds in favor of the defendant, it should determine whether the transaction between the plaintiff and defendant falls within the scope of CUTPA.

II

A

In his cross appeal, the defendant asserts that the trial court improperly found that the modification of the contract price from $460,000 to $474,000 was supported by adequate consideration. We disagree.

We conclude that the price increase was supported by adequate consideration, namely the addition of a tender, a small motorized dinghy, to the yacht. A review of the record, transcripts and briefs clearly indicates that a tender was not included in the original contract for the sale of the yacht. When the defendant agreed to the increased price to $474,000, however, a tender was included. There was sufficient consideration to support the court’s finding that the sales price of the yacht was bilaterally increased to $474,000. See Thermoglaze, Inc. v. Morningside Gardens Co., 23 Conn. App. 741, 745-46, 583 A.2d 1331, cert. denied, 217 Conn. 811, 587 A.2d 153 (1991).

B

As to the second claim, the defendant complains that the trial court acted improperly when it failed to afford him a hearing to determine the correct allotment of attorney’s fees and costs. As we indicated in our analysis of the plaintiffs claims, because we are reversing the judgment underlying the award of counsel fees and punitive damages, we need not address the defendant’s claim. On the defendant’s cross appeal, the judgment on the plaintiffs complaint is affirmed. On the plaintiffs appeal, the judgment on the defendant’s counterclaim is reversed and the case is remanded for a new trial.

In this opinion the other judges concurred.

       In fact, the defendant lost the tender at sea and was reimbursed $7000 from an insurance policy.


author: LANDAU, J.

text:
    ALAN MARIS v. PAMELA JO MCGRATH
    (AC 18119)
    Foti, Landau and Daly, Js.
    Argued February 24
    officially released June 13, 2000

      Thomas M. DeLillo, with whom, on the brief, was James E. Mattem, for the appellant (plaintiff).

      Jeremiah Donovan, for the appellee (defendant).
   Opinion

LANDAU, J.

The plaintiff, Alan Maris, appeals from the judgment rendered by the trial court in favor of the defendant, Pamela Jo McGrath, following a trial to the court. On appeal, the plaintiff claims that the court improperly (1) awarded attorney’s fees to the defendant under the circumstances of this case and (2) exercised its discretion by rejecting the plaintiffs claim of unjust enrichment.

The following facts and procedural history are necessary for the resolution of this appeal. The plaintiff brought the present action against the defendant, his former girlfriend, claiming that moneys he deposited into their joint credit union account and expended to remodel her home while they were living there together were loans. The operative complaint alleged in count one, a breach of contract; in count two, unjust enrichment; in count three, replevin; and in count four, a constructive trust. The defendant filed an answer, special defenses and a counterclaim alleging in count one, a breach of contract; in count two, trespass; and in count three, theft.

In a thoughtful and well reasoned memorandum of decision, the trial court found the following facts. In 1985, the defendant began working as a dental assistant at the orthodontic offices of the plaintiff and his partner, Kenneth Carlough. She eventually began dating the plaintiff. After they agreed to live together, the parties worked out a financial arrangement in which the defendant transformed her individual credit union account into a joint account with the plaintiff. Both parties deposited moneys into the joint account and the defendant paid out moneys from that account to cover expenses. The parties lived two weeks a month at the defendant’s home and two weeks a month at the plaintiffs home.

By the summer of 1990, the parties’ relationship had caused a problem at the orthodontic offices. Carlough was uncomfortable supervising a woman who was the equivalent of his partner’s wife. The plaintiff promised the defendant that if she left her employment in his orthodontic practice, he would provide for her material wants and needs for the remainder of her life.

When the relationship ended in 1992, the defendant transformed the joint account into a personal account and returned to the plaintiff $3500 from the account that belonged to him. The plaintiff claimed that all the moneys he had deposited into the joint account had been loans. Of the twenty-three checks deposited into the account, nineteen were made payable to the financial institution and four to the defendant. The plaintiff had made various notations in the memorandum section of the checks. The court found that “[t]he most significant of [the plaintiffs] notations is on exhibit [eleven], a check ... on which [the plaintiff] wrote the word ‘loan’ in the memorandum section. The check was not deposited until five days after it was dated; [the defendant] denies having seen the word ‘loan’ on the check when she signed it. The court finds that [the plaintiff] wrote the word into the memorandum section after [the defendant] had signed the check but before [the plaintiff] had deposited it.”

Taking up the issues before us in reverse order, we affirm the judgment of the trial court.

I

The plaintiff claims that the trial court abused its discretion by concluding that the defendant was not unjustly enriched. “Unjust enrichment applies wherever justice requires compensation to be given for property or services rendered under a contract, and no remedy is available by an action on the contract. 5 S. Williston, Contracts (Rev. Ed.) § 1479.” (Internal quotation marks omitted.) Hartford Whalers Hockey Club v. Uniroyal Goodrich Tire Co., 231 Conn. 276, 282, 649 A.2d 518 (1994). “[L]ack of a remedy under the contract is a precondition for recovery based upon unjust enrichment.” Id., 284.

“[T]he determinations of whether a particular [set of circumstances] was unjust and whether the defendant was benefited are essentially factual findings for the trial court that are subject only to a limited scope of review on appeal. Stabenau v. Cairelli, 22 Conn. App. 578, 581, 577 A.2d 1130 (1990). Those findings must stand, therefore, unless they axe clearly erroneous or involve an abuse of discretion. Id. This limited scope of review is consistent with the general proposition that equitable determinations that depend on the balancing of many factors are committed to the sound discretion of the trial court. Reynolds v. Ramos, 188 Conn. 316, 321, 449 A.2d 182 (1982) .... Hartford Whalers Hockey Club v. Uniroyal Goodrich Tire Co., supra, 231 Conn. 283.” (Internal quotation marks omitted.) McNeil v. Riccio, 45 Conn. App. 466, 475-76, 696 A.2d 1050 (1997).

Here, the court found that there was no contract between the parties as to the moneys deposited in the joint account and expended on the defendant’s house. As the court sagely pointed out, “[m]uch of the case hinges on credibility. [The plaintiff] asserts that [the defendant] made an oral promise to repay the moneys which [the plaintiff] was depositing into their joint account and amounts which he expended on her house and that she promised that she would execute a document providing that those moneys would be paid back from the proceeds of the sale of her home whenever she should sell it. [The defendant] denies that [the plaintiffs] deposits . . . were loans.

“The defendant has offered testimony from four people who, other than his daughter, know [the plaintiff] best: the orthodontist with whom [the plaintiff] began his practice . . . his partner during most of his career . . . his former best friend . . . and the [defendant] with whom he had a long-term romantic relationship .... Each has testified that [the plaintiffs] character for veracity is miserable; some have testified that his reputation for veracity in the community of orthodontists is miserable. . . . The court finds that their shared view that [the plaintiff] cannot be trusted is compelling evidence indeed. The plaintiff himself has offered no evidence to contradict this character evidence.

“The plaintiff seeks to blunt the force of this compelling testimony by pointing out that each of the witnesses has been involved in financial disputes with him .... That is, the plaintiff claims that these witnesses described him as untrustworthy as a result of a bias against him. These people have spent years suffering from [the plaintiffs] duplicity; they do not trust him; their ill feeling toward [the plaintiff] is not based on bias, but rather on the very fact about which they testified: they bear ill will toward [the plaintiff] because he cannot be trusted.”

The court further found that the plaintiffs testimony was contradicted on a number of points, sometimes by his own words. The court accepted the testimony of the plaintiffs accountant that the plaintiff had a practice of keeping careful records and documenting transactions. The court therefore found that the plaintiff “was being untruthful when he testified that he and [the defendant] agreed that the amounts of money that he was depositing into their joint checking account were loans and that they simply never got around to producing any written loan document.”

“[T]he trial court, as trier of fact, determined who and what to believe and the weight to be accorded the evidence. The sifting and weighing of evidence is peculiarly the function of the trier. [N]othing in our law is more elementary than that the trier is the final judge of the credibility of witnesses and of the weight to be accorded to their testimony. . . . The trier is free to accept or reject, in whole or in part, the testimony offered by either party. . . . Cook v. Bieluch, 32 Conn. App. 537, 549-50, 629 A.2d 1175, cert. denied, 228 Conn. 910, 635 A.2d 1229 (1993). . . . Baretta v. T & T Structural, Inc., 42 Conn. App. 522, 527, 681 A.2d 359 (1996).” (Internal quotation marks omitted.) Sheam v. Sheam, 50 Conn. App. 225, 231, 717 A.2d 793 (1998). We have constantly held to the rule that we will not judge the credibility of witnesses or substitute our judgment for that of the trial court. We fail to see a reason why we should do so here.

II

In his remaining claim, the plaintiff asserts that the court improperly awarded attorney’s fees under the circumstances of this case. He first points out, quite appropriately, that Connecticut follows the general rule of law known as the American rule, under which attorney’s fees and ordinary expenses and burdens of litigation are not awarded to successful parties unless there is a contractual or statutory exception. See Chrysler Corp. v. Maiocco, 209 Conn. 579, 590, 552 A.2d 1207 (1989). The general rule that prevents a party from recovering attorney’s fees does not apply, however, to situations in which the opposing party has acted in bad faith, vexatiously, wantonly or for oppressive reasons. CFM of Connecticut, Inc. v. Chowdhury, 239 Conn. 375, 394, 685 A.2d 1108 (1996), overruled in part on other grounds, State v. Salmon, 250 Conn. 147, 155-56, 735 A.2d 333 (1999). “[The American] rule does not apply, however, where the opposing party has acted in bad faith. Roadway Express, Inc. v. Piper, [447 U.S. 752, 765-66, 100 S. Ct. 2455, 65 L. Ed. 2d 488 (1980)]. It is generally accepted that the court has the inherent authority to assess attorney’s fees when the losing party has acted in bad faith, vexatiously, wantonly or for oppressive reasons. Id., 766; Dow Chemical Pacific Ltd. v. Rascator Maritime S.A., 782 F.2d 329, 344 (2d Cir. 1986). This bad faith exception applies, not only to the filing of an action, but also in the conduct of the litigation. Roadway Express, Inc. v. Piper, supra, 766, quoting Hall v. Cole, 412 U.S. 1, 15, 93 S. Ct. 1943, 36 L. Ed. 2d 702 (1973). It applies both to the party and his counsel. Roadway Express, Inc. v. Piper, supra [766]. Moreover, the trial court must make a specific finding as to whether counsel’s [or a party’s] conduct . . . constituted or was tantamount to bad faith . . . .” (Internal quotation marks omitted.) CFM of Connecticut, Inc. v. Chowdhury, supra, 394.

Although Chowdhury involved an appeal by an attorney against whom sanctions had been imposed for bad faith pleadings, the test enunciated in that case as to whether a claim is colorable is instructive for purposes of the present appeal. The test can be couched in terms to measure the conduct of a party as well as an attorney. A claim is colorable, for purposes of the bad faith exception to the American rule, if a reasonable person, given his or her first hand knowledge of the underlying matter, could have concluded that the facts supporting the claim might be established. See id., 394-95.

In its initial memorandum of decision, the trial court stated that “the court finds [that attorney’s fees] should be awarded to the defendant for defending a case which the court finds to be totally without merit.” The court then stated that it would “entertain a motion to determine the amount of attorney’s fees to be awarded to the defendant.”

It is clear to this court that the trial court awarded the defendant attorney’s fees because the plaintiffs case lacked merit. In a supplemental memorandum of decision on the defendant’s motion for attorney’s fees, the court stated in part: “The defendant has filed a motion to recover attorney’s fees based on her claim that the plaintiffs action was brought in bad faith in a retaliatory manner designed to cause misery to a woman with whom he had previously been involved. . . . [T]he court heard oral argument on the issue and counsel were given an opportunity to file briefs. The amount filed was $15,218.86. . . . The plaintiff claims that his action was colorable and that the defendant failed to prove that the claims were brought for improper purpose. On the contrary, the court in its decision found that the plaintiffs claims were totally false and that his testimony was not truthful. This was not a matter of two good faith litigants as claimed by plaintiff. Accordingly, the court must agree with the defendant that the facts in this case require an award of attorney’s fees.”

In light of the court’s findings of fact, it is apparent that a reasonable person could not have come to the conclusion that the plaintiff could prevail. The plaintiff knew that the defendant had never promised to execute a document providing that moneys he put in the joint account would be paid back from the proceeds of the sale of her house, that he had written the word loan in the memorandum section of the check after the defendant had signed it, and that the allegations on which he grounded his action were false. There is ample evidence in the record to support the court’s findings and ultimate conclusions. The court appropriately rejected the plaintiffs argument that the action had been brought for proper purposes. This was purely recreational litigation brought by a plaintiff against a woman with whom he had had a long term relationship. The trial court therefore did not abuse its discretion in awarding attorney’s fees to the defendant.

The judgment is affirmed.

In this opinion the other judges concurred.

       With respect to the counterclaims, the court found that the defendant had established a breach of contract but failed to prove damages. The court also found that the defendant failed to carry her burden of proof on the trespass and theft counts. The court also ruled in favor of the plaintiff on several other counts of the counterclaim.

       The plaintiff did not appeal from the court’s judgment as to count one, which sounded in breach of contract, count three, replevin, and count four, constructive trust.

       As further evidence of the plaintiffs having brought the action for an improper purpose, the original complaint alleged that the amount of the so called loan was $55,700. When the defendant alleged the special defense of the statute of frauds requiring a writing “upon any agreement for a loan in an amount which exceeds fifty thousand dollars”; General Statutes § 52-550 (a) (6); the plaintiff amended his complaint to allege that the amount of the loan was only $48,864.