source: Caselaw Access Project

author: KELLER, J.

license: Public Domain

text:
    ROSARIO LAPPOSTATO v. GLENN TERK
    (AC 34733)
    DiPentima, C. J., and Keller and Bishop, Js.

      Argued March 20
    officially released June 18, 2013

      Salvatore Bonanno, with whom was Glenn T. Terk, for the appellant (defendant).

      Brennen C. Maki, for the appellee (plaintiff).
   Opinion

KELLER, J.

In this negligent misrepresentation action, the defendant, Glenn Terk, appeals from the judgment of the trial court awarding damages to the plaintiff, Rosario Lappostato, and denying the defendant’s postverdict motions. The defendant claims that the court improperly (1) denied his motion for a mistrial, (2) admitted into evidence certain exhibits over his objections, (3) denied his motion for remittitur, (4) denied his motions to set aside the verdict and for judgment notwithstanding the verdict, and (5) failed to conclude that the plaintiffs claims were barred by the applicable statute of limitations. We affirm the judgment of the trial court.

The following facts and procedural history are relevant to our resolution of this appeal. On April 9, 2010, the plaintiff initiated the action underlying this appeal by filing a complaint in which he alleged negligent misrepresentation by the defendant. The matter was tried to a jury on May 24, 25, 30 and 31, 2012. On the basis of the evidence and testimony presented at trial, the jury reasonably could have found the following facts. The defendant is an attorney in Wethersfield who has been in practice for more than thirty years. In 2007 and 2008, he represented Anthony Quintiliani in matters that involved Quintiliani’s attempts to obtain millions of dollars purportedly owed to him through international transactions. Before November, 2007, the plaintiff had loaned some money to Quintiliani, expecting to receive a return.

In November, 2007, after the plaintiff expressed reluctance to give Quintiliani more money, Quintiliani had the defendant call the plaintiff. The defendant reassured the plaintiff about the legitimacy of the transaction in which Quintiliani was involved but refused to give the plaintiff details about the transaction, claiming they were confidential. The plaintiff relied on these representations and began investing more of his money with Quintiliani. Following his conversation with the defendant, the plaintiff gave Quintiliani between $15,000 to $25,000 and continued to invest substantial sums of money with him over the course of the next year.

Starting in March, 2008, the defendant authored a series of letters relating to his representation of Quintil-iani in connection with his efforts to obtain money through international transactions. The defendant gave the first letter, dated March 12, 2008, to the plaintiff in person. The letter indicated that the defendant represented Quintiliani in connection with his receipt of a sum of money in excess of $5 million and stated that the defendant was in possession of certificates for the release of those funds, that the funds would be released upon the plaintiffs payment of a nonresident tax in the amount of $22,500 and that the funds would be wired to the defendant’s trustee account. The defendant did not investigate whether the certificates referenced in the letter were legitimate. Although the plaintiff did not wire $22,500 to the defendant’s trustee account, he ultimately did wire that amount to another account on April 16, 2008, in order to have the funds released. The plaintiff also wired $20,815 from his bank account on March 20, 2008, as payment for a nonresident tax so that a large sum of money could be released. In a letter to the plaintiff dated May 2, 2008, the defendant stated that he received confirmation that the funds would be wired to his trustee account within three to four days and that the plaintiff would receive a check from his office upon receipt of the funds.

In a May 15, 2008 letter to the plaintiff, the defendant described another transaction in which more than $9 million was to be wired to the defendant’s trustee account from an account in Quintiliani’s name at the Canadian Imperial Bank of Commerce. The defendant stated that the plaintiff would receive a check from his office upon the receipt of those funds. The defendant wrote to the plaintiff again on July 9, July 24 and August 4, 2008, in order to keep him updated regarding the status of the Canadian funds.

In a September 25, 2008 letter to the plaintiff, the defendant stated that Quintiliani informed him that a sum of money had arrived and that the plaintiff would be “repaid for [his] loans” the following day. Following his receipt of this letter and a conversation with the defendant in which he was told that $2200 was necessary to secure the release of $2 million, the plaintiff left $2200 in cash for Quintiliani at the defendant’s office.

The defendant also had in his file a fax addressed to a third party that referred to his representation of Quintiliani in connection with a transaction in which Quintiliani agreed to pay the third party $2 million in exchange for the third party’s payment of $225,000 that would be used to secure the release of $30 million from a private investor in Asia. Attached to the fax were several certificates that supposedly were required for the release of the funds. The certificates contained numerous spelling and typographical errors. The defendant did not determine whether the certificates were legitimate.

Approximately one year prior to the plaintiffs investment of any money, the defendant had conversations with Guilio Cessario—another individual who invested with Quintiliani—in which they discussed Quintiliani’s transactions and expressed concerns that Cessario’s investments were not legitimate and that Quintiliani was not being forthright. During one conversation, the defendant and Cessario “kind of laugh[ed]” about the fact that Cessario’s investment with Quintiliani was not going to come to fruition. Cessario told the defendant that he believed that his whole investment was a scam. The defendant never told the plaintiff about the content of this conversation. The defendant did not understand some of the transactions in which he represented Quin-tiliani, and he did not tell the plaintiff about this lack of understanding or that he had serious concerns about the transactions.

When the plaintiff inquired as to the status of his investments, the defendant told the plaintiff that he would take care of him and that he would be paid when the money came into the defendant’s trustee account. The defendant told the plaintiff that the things happening in his investment with Quintiliani were “true,” that he had nothing to worry about and that everything was “good.” In one conversation regarding the plaintiffs investment with Quintiliani, the defendant told the plaintiff that $100 million would be produced from his investment.

The plaintiff relied on the letters from the defendant and his discussions with the defendant in deciding to contribute money to the various investments with Quin-tiliani. The funds that were supposed to be transferred to the defendant’s account never arrived. The plaintiff never received a return payment for his investments. The defendant acknowledged that the Canadian bank transaction in which the plaintiff invested turned out to be a scam. The plaintiff did not discover that any of his investments with Quintiliani were a scam until sometime after Quintiliani died on October 11, 2008.

On May 31, 2012, the jury returned a verdict in favor of the plaintiff in the amount of $53,315. On June 7, 2012, the defendant filed a motion for remittitur, a motion to set aside the verdict and a motion for judgment notwithstanding the verdict. On June 19,2012, the court denied the defendant’s three postverdict motions and rendered judgment in favor of the plaintiff in accordance with the jury’s verdict. On the same day, the defendant appealed from the judgment of the court in which it accepted the jury’s verdict. OnJuly31,2012, the defendant amended his appeal to include a challenge to the judgment of the court denying his three June 7, 2012 postverdict motions. The amended appeal is presently before us. Additional facts will be set forth as necessary.

I

The defendant first claims that the court erred by denying his motion for a mistrial after the plaintiffs counsel violated the court’s order precluding any testimony or evidence referring to Nigeria or the phrase “Nigerian bank scam.” Specifically, the defendant claims that he was deprived of a fair trial when the court improperly allowed the plaintiff to publish to the jury and question a witness regarding an exhibit which contained references to Nigeria and a Nigerian bank in violation of the court’s order. We are not persuaded.

The following additional facts are relevant to our resolution of this claim. On May 23, 2012, the defendant filed a motion in limine requesting that the court prohibit the plaintiff from “referring to or entering into evidence any information, testimony or documents [referring] to the term ‘Nigerian Bank Scam’ or similar.” In his motion, the defendant stated that “[i]n all letters the defendant wrote to the plaintiff, reference was only made to the Canadian Imperial Bank of Commerce . . . never was any reference made to any other bank.” He claimed that any reference to “Nigerian Bank Scam” or “similar” would cause the jury to be unduly prejudiced against him, would confuse the jury as to what the letters written from the defendant to the plaintiff truly-purported and would inordinately inflame the passions of the jury against the defendant. Further, the defendant claimed that “[b]y limiting [the] evidence to the claims relating to the letters the defendant wrote to the plaintiff that reference only the [Canadian Imperial Bank of Commerce], [the trial court] will assure the defendant is afforded a fair trial . . . .”

On May 24, 2012, the court addressed the defendant’s motion, and the following colloquy took place outside the presence of the jury:

“The Court: I understand the allegation that, if true, would seem to be negligent misrepresentation. . . . But, I am well aware that the word, ‘Nigerian,’ is very well known as a place where scams take place. And I think it would be prejudicial to get into that. He doesn’t really—I mean, [in a letter the defendant wrote, dated June 30, 2009] there you say . . . ‘After Mr. Quintil-iani’s untimely death it was determined that he had been the victim of an Internet scam.’ But, that doesn’t say anything about Nigeria.
“[The Plaintiff’s Counsel]: . . . Your Honor, I don’t intend to use the word Nigeria. Although there are documents allegedly from Nigeria in [the defendant’s] file, and we’ll get into those during evidence. But I don’t intend to use the words, ‘Nigerian bank scam.’ But I think to prevent me from using the term, ‘bank scam,’ or ‘Internet scam’ ....
“The Court: . . . Well, I don’t see a problem with that. . . . Your motion in limine is as to Nigerian bank scam.
“[The Defendant’s Counsel]: . . . [I]f that’s the position, then, obviously, we have an agreement. . . . But I do have a problem if the claim is that somehow those letters and any representations he made, you know, at least from what I’ve seen in the evidence, connect anything to Nigeria; I think it’s this Canadian bank, and that’s it ... .
“The Court: I’m going to grant this motion in limine, no reference to Nigeria or Nigerian bank scam.”

While questioning the defendant on the first day of trial, the plaintiffs counsel offered into evidence exhibit 10, a financial transfer slip referencing $30.5 million that supposedly was to be transferred into the defendant’s client funds account for Quintiliani. The exhibit had the heading “Central Bank of Nigeria” and contained several other references to the country of Nigeria. The exhibit was offered as a document that was in the defendant’s file on Quintiliani and that, by its very appearance, should have given him notice of the questionable nature of Quintiliani’s transactions. The defendant’s counsel objected, in part, based on the court’s ruling on the motion in limine and argued that the exhibit was potentially prejudicial. The court overruled the defendant’s objection and admitted the document as a full exhibit after stating to the jury: “[I]t comes in not for the truth of what is on here, but just for the fact that it was in [the defendant’s] file, so he has knowledge of it, that’s all. That’s the only point of it.” After the exhibit was admitted, the exhibit was published to the jury by means of projecting the image on a screen. The plaintiffs counsel then asked the defendant the following question: “[T]his was a document purportedly from the Central Bank of Nigeria?” Shortly thereafter, the defendant’s counsel stated that the jury should be able to see the whole exhibit.

The plaintiffs counsel then offered exhibit 11, another financial transfer slip from Quintiliani referencing $4 million that was to be deposited into an account for the defendant. The exhibit contained the word “Nigeria.” Outside the presence of the jury, the defendant’s counsel objected, claiming a lack of relevance. The defendant’s counsel also stated: “One of the reasons that I asked the court to rule on that motion in limine is because, as we all know, and we discussed on the record, Your Honor, the term—this issue here involved a Canadian bank. So, to infect the claim with some kind of, you know, impression that there is some Nigerian stuff going on in the background I think is very prejudicial to my client, and His Honor moved to keep that out and I appreciate that.”

The court then stated: “[T]he motion in limine that I granted was not to talk about the Nigerian scam. I think you can still get into the fact that it comes from the Central Bank of Nigeria . . . .” Following some further discussion about the probative value of the exhibit, the following colloquy took place:

“The Court: All right. On plaintiffs exhibit 11, the objection is sustained. I don’t like the fact that it’s from Nigeria. In view of my ruling, I know the ruling before was on the—was on the Nigerian bank scam, but he says, ‘Or similar.’ And everyone knows that Nigeria is very generally a scam; it’s common knowledge. And on plaintiffs exhibit 10, I’m reversing my ruling and that is no longer a full exhibit. Exhibit 10 that was a full exhibit is now no longer, and the objection is sustained on that and on 11.
“[The Plaintiffs Counsel]: Your Honor, am I to understand that if the words ‘Nigeria’ or ‘Nigerian’ are redacted from those exhibits that they would then be acceptable?
“The Court: Yes.”

After ordering the redaction of all references to Nigeria in the exhibits at issue, the court stated: “I’m more concerned about Nigeria because it may not say Nigerian scam, but it’s Nigeria, and I think members of the jury probably know that Nigeria is known as a scam.” The court allowed the redacted versions of exhibits 10 and 11 to come into evidence.

At the beginning of the second day of trial, the defendant’s counsel moved for a mistrial based on the fact that the jury had seen the term “Central Bank of Nigeria” on the unredacted version of exhibit 10 while the plaintiffs counsel questioned the defendant. The court responded by stating: “[N]o objection in my mind was made to the word, ‘Nigeria,’ prior to my saying what I did about redaction. But, even so, I don’t think—I agree with what I did because I think it could be prejudicial, but I don’t think it rises to the issue or the fact of granting a mistrial.”

We begin by setting forth the applicable standard of review governing the defendant’s first claim. “Although the remedy of a mistrial is permitted under the rules of practice, it is not favored. [A] mistrial should be granted only as a result of some occurrence upon the trial of such a character that it is apparent to the court that because of it a party cannot have a fair trial . . . and the whole proceedings are vitiated. ... If curative action can obviate the prejudice, the drastic remedy of a mistrial should be avoided. . . .

“Appellate review of a trial court’s decision granting or denying a motion for a [mistrial] must take into account the trial judge’s superior opportunity to assess the proceedings over which he or she has personally presided. . . . Thus, [a] motion for a [mistrial] is addressed to the sound discretion of the trial court and is not to be granted except on substantial grounds. . . . In [its] review of the denial of a motion for [a] mistrial, [our Supreme Court has] recognized the broad discretion that is vested in the trial court to decide whether an occurrence at trial has so prejudiced a party that he or she can no longer receive a fair trial. The decision of the trial court is therefore reversible on appeal only if there has been an abuse of discretion.” (Citation omitted; internal quotation marks omitted.) State v. Reilly, 141 Conn. App. 562, 568, 61 A.3d 598 (2013).

The defendant argues that the court abused its discretion in denying his motion for a mistrial because the admission of the unredacted version of exhibit 10 violated the court’s ruling on his motion in limine such that it prejudiced his ability to receive a fair trial. He argues that the prejudicial effect of the exhibit was demonstrated by the court’s order on the motion in limine and the court’s repeated comments regarding the prejudicial effect of the word “Nigeria.” Further, he argues that the plaintiffs counsel’s reference to the Central Bank of Nigeria during his questioning of the defendant violated the ruling on the motion in limine and prejudiced his ability to receive a fair trial. The plaintiff argues that the defendant’s motion for a mistrial was misplaced in that the court’s order regarding the motion in limine was not violated because the order was limited to the phrase “Nigerian bank scam,” rather than any reference to the country of Nigeria. The plaintiff also argues that the defendant has failed to show that the introduction of the unredacted exhibit so prejudiced him that he could not receive a fair trial. We agree that the defendant has failed to demonstrate that he was so prejudiced as to be deprived of a fair trial.

Preliminarily, the record reflects that, at the time the court was considering the defendant’s objection to exhibit 10, there was some confusion about the language that was precluded by the court’s order on the motion in limine, possibly due to the fact that the court’s initial order granted the defendant broader protection than he had requested in his motion. In granting the motion in limine, however, the court stated that it thought the word “Nigerian” would be prejudicial and that there was to be “no reference to Nigeria or Nigerian bank scam.” Therefore, the publication of the unre-dacted exhibit and the plaintiffs counsel's question referring to Nigeria constituted a violation of the court’s order on the motion in limine. Consistent with its initial ruling on the motion in limine, the court also ordered the redaction of all references to the country of Nigeria after ruling on the defendant’s objection to exhibit 11.

We conclude that, even to the extent that the plaintiffs counsel violated the court’s order, any such violation did not so prejudice the defendant that he was unable to receive a fair trial. Although the unredacted version of the exhibit was published to the jury temporarily on a screen and the plaintiffs counsel asked one question that mentioned the country of Nigeria, shortly thereafter, the court ordered all references to Nigeria to be redacted from exhibit 10 and subsequent exhibits before they were given to the jury. Further, before the exhibit was redacted, the defendant’s counsel requested that the jury be allowed to see the whole exhibit, which undermines the defendant’s claim that the jury’s brief exposure to the exhibit deprived the defendant of a fair trial. Similarly, the defendant’s claim of prejudice is further undermined by the fact that his counsel failed to object to the plaintiffs counsel’s use of the phrase “Nigerian bank scam” during the voir dire of the jury. The record also reflects that, after the court’s eviden-tiary rulings, there were no further references to Nigeria in the presence of the jury. Therefore, the court properly concluded that any prejudice that may have been created by the publication of the exhibit and the plaintiffs counsel’s question about the same did not rise to the level that would warrant a mistrial. To demonstrate reversible error, it is not sufficient for the defendant merely to show that an evidentiary order was violated; instead, he must demonstrate that such an occurrence deprived him of a fair trial. See State v. Reilly, supra, 141 Conn. App. 568. While we recognize that any violation of a court order is improper, we are not persuaded that, in the context of the present case, any reference to the country of Nigeria was a per se prejudicial act that likely would arouse the emotions of the jury. Accordingly, the court did not abuse its discretion in denying the defendant’s motion for a mistrial.

II

The defendant next claims that the court improperly admitted into evidence several exhibits over his objection, such that he was deprived of a fair trial. Specifically, the defendant claims that he was prejudiced by the admission of fourteen different exhibits because they were irrelevant or lacked the proper foundation for admission into evidence. We are not persuaded.

The following additional facts are relevant to our resolution of this claim. When the plaintiff offered letters authored by the defendant relating to his representation of Quintiliani as exhibits 1 through 6, the defendant objected, claiming that the letters were not relevant and that there was no foundation to establish that the plaintiff relied on the letters to his detriment. The court overruled the defendant’s objection with respect to exhibits 1, 3, 4, 5 and 6 and admitted those letters subject to the plaintiff testifying that he relied on them. The court also stated: “Because this is a letter from [the defendant] . . . there’s no question as to foundation; it’s his or a copy of his letter.”

At the end of the plaintiffs case-in-chief, the defendant’s counsel renewed his objections to the letters and moved to strike the exhibits. The court denied the motion after stating: “As far as the foundation is concerned, I agree with [the plaintiffs counsel] that it’s an admission against party interest. So far as its relevance and the issue in negligent misrepresentation, he has to rely on it. I think evidence has been . . . presented that shows that [the plaintiff] relied on all of these letters. . . . What should [the defendant] have done; that’s for the jury to decide whether he was negligent in those regards.” With respect to exhibit 2, the court stated: “Well, [the defendant] sent a letter to his client to be utilized by his client. The obvious inference is that the client could send it out as a statement by [the defendant] that upon payment of $22,500 . . . Quintiliani will get $5 million. I think it goes to the weight, not the admissibility. The objection is overruled.”

The plaintiffs counsel also offered three official documents—exhibits 10, 11 and 12—that the defendant testified he received from Quintiliani. The defendant’s counsel objected to each exhibit, claiming that they were not relevant. When it initially admitted exhibit 10, the court stated to the jury that “it comes in not for the truth of what is on here, but just for the fact that it was in [the defendant’s] file, so he has knowledge of it, that’s all. That’s the only point of it. ” After addressing the defendant’s counsel’s objection based on the court’s order on the motion in limine, as discussed in part I of this opinion, the court considered his relevance objection and stated: “I think it is relevant to the fact that [the defendant] had in his files a ‘[n]ot paid,’ and he’s testified to that on exhibit 10 and exhibit 11. I don’t know that he’s testified, yet, but I assume that he will testify that he never got the $4 million. But I think that shows that, at least, on the dates you don’t know what date it was turned over to him by . . . Quintiliani. But you have to assume that it was certainly before the September date because one was July 15 and the other was the remittance date [of] April 7. So, I will allow 10 and 11, if [the appropriate redactions are made].” The court also admitted exhibit 12 and stated: “[0]kay. I want to make sure the jury understands that this is being offered not for the truth of it, because otherwise it would be hearsay, and so if you look at it you’re not to take what’s written there as truth. What it is offered for is to show that these documents were in [the defendant’s] file and that he was aware from these—should have been aware from these documents, that the moneys were never paid.”

The plaintiffs counsel offered, as exhibit 14, the previously referenced fax in which the defendant referred to his representation of Quintiliani in connection with a transaction in which Quintiliani agreed to pay the third party $2 million in exchange for the third party’s payment of $225,000 needed to secure the release of $30 million. The defendant’s counsel objected, claiming that the exhibit was not relevant. The court overruled the objection and admitted the exhibit in light of its earlier ruling outside the presence of the jury in which the court found that the basis for the defendant’s counsel’s relevance objection went to the weight of the exhibit, not to its admissibility.

The plaintiffs counsel also offered the previously referenced attachments—exhibits 15 through 18—that accompanied the fax written by the defendant. The attachments purported to be official documents that supposedly were required for the release of the funds. The fax and certificates were offered to demonstrate that the defendant should have known Quintiliani’s financial transactions were not legitimate in light of the numerous typographical and grammatical errors in the documents, which suggested they were fake. The defendant’s counsel objected to the admission of exhibit 16 on the ground of relevance. The court overruled the objection.

We first set forth the applicable standard of review and applicable law governing the defendant’s second claim. “[O]ur standard of review regarding challenges to a trial court’s evidentiary rulings is that these rulings will be overturned on appeal only where there was an abuse of discretion and a showing by the defendant of substantial prejudice or injustice. ... In reviewing claims that the trial court abused its discretion, great weight is given to the trial court’s decision and every reasonable presumption is given in favor of its correctness. . . . We will reverse the trial court’s ruling only if it could not reasonably conclude as it did.” (Internal quotation marks omitted.) Romprey v. Safeco Ins. Co. of America, 129 Conn. App. 481, 492, 21 A.3d 889, cert. granted on other grounds, 302 Conn. 934, 28 A.3d 991 (2011). “All relevant evidence is admissible . . . .” (Emphasis added.) Conn. Code Evid. § 4-2. “Relevant evidence means evidence having any tendency to make the existence of any fact that is material to the determination of the proceeding more probable or less probable than it would be without the evidence.” (Internal quotation marks omitted.) Conn. Code Evid. § 4-1.

We conclude that the court did not abuse its discretion by admitting the exhibits at issue in this claim. Each of the exhibits to which the defendant’s counsel objected was sufficiently probative of a material issue in the plaintiffs claim of negligent misrepresentation to satisfy the minimum evidentiary threshold of relevance. With respect to the letters admitted as exhibits 1 through 6, we agree with the court’s conclusion that enough evidence had been presented to establish that the plaintiff relied on the letters to his detriment. We also agree that the plaintiffs counsel had established a sufficient foundation for each letter, as the defendant testified that he wrote each letter to the plaintiff or to Quintiliani, and the plaintiff testified that he relied on them in deciding to invest with Quintiliani. The court reasonably could have concluded that the remaining exhibits were all relevant to the plaintiffs claims that the defendant knew or should have known that Quintil-iani’s investment plan was not legitimate and that he did not take reasonable care in making representations to the plaintiff. Making every reasonable presumption in favor of the correctness of the evidentiary rulings, we conclude that the court did not abuse its discretion.

III

The defendant also claims that the court improperly denied his motion for remittitur when the jury’s award of damages improperly included an amount of money that the plaintiff invested with Quintiliani when it was not disclosed previously in discovery. Specifically, the defendant claims that the jury’s award included this amount even though it was prohibited by an earlier ruling from the court that barred the plaintiff from claiming in damages a particular payment he made which was not disclosed in his responses to the defendant’s discovery request. We disagree.

The following additional facts are relevant to our resolution of this claim. During the direct examination of the plaintiff, when asked how much money he gave to Quintiliani after speaking with the defendant in November, 2007, the plaintiff provided the following testimony: “I don’t know, maybe [$15,000 to $20,000], you know, like, five, three at a time and everything,” and, “[a]fter November, like . . . $20,000. It could be $20,000, $25,000,1 don’t know.” Later during his examination, the following colloquy took place before the jury:

“The Court: Okay. Ladies and gentlemen, I have admitted plaintiffs exhibit 19, which is apparently a transfer of $7900. So, you can inquire about that. . . .
“[The Plaintiffs Counsel]: Rosario, I’m going to show you exhibit 19, which is now a full exhibit, and you told us earlier that you recognize it as your wire transfer?
“[The Plaintiff]: Yeah. . . .
“[The Plaintiffs Counsel]: Okay. And who, if anyone, did you rely on when you made your decision to wire that money?
“[The Plaintiff]: This other decision I made because ... I [talked] to [the defendant] [in] November and . . . [in] March . . . when I [saw] him in [person].”

The plaintiff also testified that, in March, 2008, he wired $20,815 from his bank account to China or England and that he relied on the defendant in deciding to do so. When asked about documentation of yet another transfer of money from the plaintiffs bank account, the plaintiff testified that he transferred $22,500 to China and that he relied on the defendant in deciding to do so. In addition, the plaintiff testified that, on September 25, 2008, he left $2200 with the defendant for Quintiliani after the defendant said that they needed $2200 to get a release of $2 million.

The plaintiffs counsel also offered into evidence one of the plaintiffs bank statements and questioned him about a $7800 cash withdrawal on April 15, 2008, that was reflected on his bank statement. In response, the defendant’s counsel objected, and the following colloquy ensued:

“[The Defendant’s Counsel]: Well, Your Honor, my objection is that the discovery that we got had no mention of this particular amount. And we can talk about it because I can show the discovery to counsel. No mention, and it didn’t. . . .
“[The Plaintiffs Counsel]: Well, Your Honor, these exhibits were [disclosed] long before trial. They have all been.
“[The Defendant’s Counsel]: Not that one.
“The Court: Excuse me. I’m admitting the document. I can change that when you two fellows go over it, on your own, not while we are all waiting on you.
“[The Defendant’s Counsel]: Understood, Judge.
“The Court: Determine whether or not the plaintiff complied with the discovery orders to turn that over. If the answer is no, then you can have it in there but the question is, you can’t claim it as a damage.”

Subsequently, the plaintiff testified that he withdrew the $7800 and gave that amount to Quintiliani because an earlier wire transfer did not go through. The defendant’s counsel did not request that references to the $7800 withdrawal be redacted from the exhibit or that the jury be instructed not to consider the withdrawal in its evaluation of damages. During his closing argument, the plaintiffs counsel did not refer to the $7800 when he enumerated the plaintiffs damages. In its order denying the defendant’s motion for remittitur, the court stated only the following: “Once liability [was] found, [the] amount was reasonable.”

We first set forth the applicable standard of review and legal principles governing the defendant’s third claim. General Statutes § 52-216a provides in relevant part: “If the court at the conclusion of the trial concludes that the verdict is excessive as a matter of law, it shall order a remittitur and, upon failure of the party so ordered to remit the amount ordered by the court, it shall set aside the verdict and order a new trial. . . .” Our Supreme Court “repeatedly [has] stated that the award of damages, in particular, is a matter peculiarly wdthin the province of the trier of facts. . . . For that reason, we consistently have held that a court should exercise its authority to order a remittitur rarely—only in the most exceptional of circumstances. . . .

“In determining whether to order remittitur, the trial court is required to review the evidence in the light most favorable to sustaining the verdict. . . . Upon completing that review, the court should not interfere with the jury’s determination except when the verdict is plainly excessive or exorbitant. . . . The ultimate test which must be applied to the verdict by the trial court is whether the jury’s award falls somewhere within the necessarily uncertain limits of just damages or whether the size of the verdict so shocks the sense of justice as to compel the conclusion that the jury [was] influenced by partiality, prejudice, mistake or corruption. . . . The court’s broad power to order a remittitur should be exercised only when it is manifest that the jury [has] included items of damage which are contrary to law, not supported by proof, or contrary to the court’s explicit and unchallenged instructions. . . .

“[T]he decision whether to reduce a jury verdict because it is excessive as a matter of law [within the meaning of § 52-216a] rests solely within the discretion of the trial court .... [Consequently], the proper standard of review of a trial court’s decision to grant or deny a motion to set aside a verdict as excessive as a matter of law is that of an abuse of discretion. . . . Accordingly, the ruling of the trial court on the motion to set aside the verdict as excessive is entitled to great weight and every reasonable presumption should be given in favor of its correctness.” (Citations omitted; internal quotation marks omitted.) Saleh v. Ribeiro Trucking, LLC, 303 Conn. 276, 280-82, 32 A.3d 318 (2011).

The defendant argues that the jury improperly included in its damages calculation the $7800 cash withdrawal reflected on the plaintiffs bank statement, which the defendant claims was not disclosed by the plaintiff in discovery. He argues that the jury’s damages award must have included this amount because, without it, the jury only had before it evidence of $46,615 in damages. The plaintiff argues that, in addition to the $7800 to which the defendant refers, there was sufficient evidence to demonstrate that, in reliance on the defendant’s representations, the plaintiff sustained an amount in damages that exceeded the jury award. He argues, therefore, that the jury award did not necessarily include the challenged $7800. We agree with the plaintiff.

On the basis of our thorough review of the record, we conclude that the court did not abuse its discretion by denying the defendant’s motion for remittitur. The jury had before it documentation and testimony from the plaintiff that, in reliance on the defendant’s representations, he disbursed between $15,000 and $25,000 in November, 2007; $20,815 in March, 2008; $22,500 on April 16, 2008; and $2200 on September 25, 2008. The total of these amounts ranges from $60,515 to $70,515 and did not necessarily include the challenged $7800. As the plaintiff correctly notes, the amount of the jury’s damages award was well under this range of expenditures and, therefore, could have been calculated without any consideration of the $7800. Moreover, even if the jury relied on the $7800 cash withdrawal in calculating its award of damages, we disagree with the defendant’s characterization of the court’s ruling on the plaintiffs bank statement and conclude that the jury properly could have considered the withdrawal in its assessment of damages. The court specifically admitted the bank statement into evidence, but then precluded the plaintiffs counsel from discussing in his closing argument the $7800 referenced on the statement to the extent that counsel had failed to disclose it during discovery. Further, the defendant’s counsel did not request a redaction of references to the $7800 or a curative instruction from the court. Although it was not mentioned in the plaintiffs closing argument, the jury still had before it the plaintiffs bank statement showing the $7800 cash withdrawal and the plaintiffs testimony that he gave that amount to Quintiliani to replace an earlier failed wire transfer that he attempted to make in reliance on the defendant’s representations. There is nothing in the record to suggest that the jury included items of damages that were contrary to the court’s instructions or unsupported by proof or that the jury was influenced by partiality, prejudice, mistake or corruption in calculating its award of damages. Accordingly, we conclude that the court did not abuse its discretion.

IV

The defendant also claims that the court improperly denied his motions to set aside the verdict and for judgment notwithstanding the verdict. The defendant claims that the court erred in denying his motions because the plaintiff failed to meet the requisite burden of proof to sustain a claim for negligent misrepresentation. Specifically, the defendant claims that the plaintiff failed to produce evidence of false statements by the defendant, of reliance by the plaintiff on such statements or of damages suffered by the plaintiff due to his reliance on misrepresentations of the defendant. We are not persuaded.

“The proper appellate standard of review when considering the action of a trial court in granting or denying a motion to set aside a verdict is the abuse of discretion standard. ... In determining whether there has been an abuse of discretion, every reasonable presumption should be given in favor of the correctness of the court’s ruling. . . . Reversal is required only [when] an abuse of discretion is manifest or [when] injustice appears to have been done. . . . [T]he role of the trial court on a motion to set aside the jury’s verdict is not to sit as [an added] juror . . . but, rather, to decide whether, viewing the evidence in the light most favorable to the prevailing party, the jury could reasonably have reached the verdict that it did. ... In reviewing the action of the trial court in denying [or granting a motion] . . . to set aside the verdict, our primary concern is to determine whether the court abused its discretion .... The trial court’s decision is significant because the trial judge has had the same opportunity as the jury to view the witnesses, to assess their credibility and to determine the weight that should be given to [the] evidence. Moreover, the trial judge can gauge the tenor of the trial, as [this court], on the written record, cannot, and can detect those factors, if any, that could improperly have influenced the jury.” (Citations omitted; internal quotation marks omitted.) Hall v. Bergman, 296 Conn. 169, 179, 994 A.2d 666 (2010). “Our standard of review for . . . motions to set aside a verdict and motions for judgment notwithstanding the verdict [is] the same.” (Internal quotation marks omitted.) Medcalf v. Washington Heights Condominium Assn., Inc., 57 Conn. App. 12, 15 n.2, 747 A.2d 532, cert. denied, 253 Conn. 923, 754 A.2d 797 (2000).

“Our Supreme Court has long recognized liability for negligent misrepresentation. [It has] held that even an innocent misrepresentation of fact may be actionable if the declarant has the means of knowing, ought to know, or has the duty of knowing the truth. . . . The governing principles are set forth in similar terms in § 552 of the Restatement Second of Torts (1977): One who, in the course of his business, profession or employment . . . supplies false information for the guidance of others in their business transactions, is subject to liability for pecuniary loss caused to them by their justifiable reliance upon the information, if he fails to exercise reasonable care or competence in obtaining or communicating the information. . . . Accordingly, an action for negligent misrepresentation requires a plaintiff to prove that (1) the defendant made a misrepresentation and (2) the plaintiff reasonably relied upon that misrepresentation. . . . Whether evidence supports a claim of . . . negligent misrepresentation is a question of fact.” (Emphasis in original; internal quotation marks omitted.) Savings Bank of Manchester v. Ralion Financial Services, Inc., 91 Conn. App. 386, 389-90, 881 A.2d 1035 (2005).

After thoroughly reviewing the record, we conclude that the jury reasonably could have reached its verdict after finding that the plaintiff sustained a pecuniary loss by reasonably and justifiably relying on the misrepresentations of the defendant that the defendant knew or should have known were false. This finding is supported by ample evidence in the record, including the defendant’s letters to the plaintiff about investing with Quin-tiliani; the plaintiffs testimony about his reliance on the defendant’s written and verbal assurances regarding the legitimacy of Quintiliani’s investment plans; testimony from Cessario about conversations in which he and the defendant discussed the illegitimacy of Quintil-iani’s investment plans; the error-laden documentation of Quintiliani’s investments; and the plaintiffs testimony about the significant sums of money that he paid toward the investments for which he never received a return. Accordingly, we conclude that the court did not abuse its discretion in denying the defendant’s motion to set aside the verdict and the motion for judgment notwithstanding the verdict.

V

Finally, the defendant claims that the court erred by failing to conclude that the plaintiffs claims were barred by the applicable statute of limitations set forth in General Statutes § 52-584. Specifically, the defendant claims that the court erred in failing to conclude that the statute of limitations barred the plaintiffs claim because the plaintiff failed to provide any evidence of a continuing course of conduct or evidence that the defendant owed a duty to the plaintiff. We decline to review the merits of the defendant’s claim.

The defendant has failed to identify any specific ruling by the court regarding the statute of limitations issue that he now raises on appeal. Further, we are unable to glean any such ruling from the record because the statute of limitations issue was, without objection, properly submitted to and decided by the jury. The defendant appears to claim that the mere absence of a ruling that the statute of limitations barred the plaintiffs claim demonstrated error by the court. Because he has failed to identify any discrete ruling by the court challenged on appeal and has not provided any analysis regarding the correctness of such a ruling, the defendant’s claim is inadequately briefed. Accordingly, we decline to review the merits of his claim. Carrillo v. Goldberg, 141 Conn. App. 299, 307 n.7, 61 A.3d 1164 (2013) (“For this court judiciously and efficiently to consider claims of error raised on appeal . . . the parties must clearly and fully set forth their arguments in their briefs. We do not reverse the judgment of a trial court on the basis of challenges to its rulings that have not been adequately briefed.” [Internal quotation marks omitted.]).

The judgment is affirmed.

In this opinion the other judges concurred.

       The plaintiff also raised a legal malpractice claim in his complaint, but that count was dismissed by the court, Domnarski, J., on January 18, 2012, and is not a subject of this appeal.

       After assessing the relative negligence of the parties, the jury attributed 30 percent of the negligence to the plaintiff, which, in turn, reduced the plaintiffs damages award by the same percentage amount to $37,320.50.

       Although we do not have the transcripts of the voir dire conducted in this case, the record before us reflects that, during voir dire, the plaintiff inquired of jurors as to their experience or knowledge regarding Nigerian bank scams and that the defendant did not object at that time. Moreover, during an exchange between the defendant’s counsel and the court, the defendant’s counsel stated that he “didn’t have a problem with” the voir dire questions that mentioned the phrase “Nigerian bank scam” because he wanted to “see how [the jury] would react . . . .”

       The plaintiff also argues that the defendant waived his right to appeal by failing to timely object for the reasons he now raises on appeal. We disagree that the defendant failed to object timely, as his counsel specifically raised the court’s ruling on the motion in limine and argued that exhibit 10 was unduly prejudicial. Accordingly, the defendant properly has preserved his claim for our review.

       In addition, we note that other evidence unrelated to Nigeria was admitted for the similar purpose of proving that the defendant knew or should have known that Quintiliani’s investment plans were not legitimate.

       Exhibit 12 was another financial transfer slip referencing $4 million that was to be deposited into an account for the defendant.

       As noted in part I of this opinion, the court reversed its initial ruling as to exhibit 10 in light of the defendant’s counsel’s objection regarding the motion in limine. Thereafter, the court admitted the exhibit into evidence with the appropriate redactions.

       The defendant’s counsel specifically stated that he had no objection to the admission of exhibits 15, 17 and 18 when they were offered. Therefore, the defendant failed to preserve the claim he now raises on appeal challenging the court’s admission of these exhibits. Accordingly, we decline to review the defendant’s claim regarding these exhibits. State v. Mercado, 139 Conn. App. 99, 106, 54 A.3d 633 (“[assigning error to a court’s evidentiary rulings on the basis of objections never raised at trial unfairly subjects the court and the opposing party to trial by ambush” [internal quotation marks omitted]), cert. denied, 307 Conn. 943, 56 A.3d 951 (2012).

       The plaintiff testified that, on April 11, 2008, he wired $7900 from his bank account to another account in reliance on the defendant’s representations that such transfer was necessary to pay for a tax. This amount was credited back to his account on April 15, 2008. The plaintiff acknowledged the $100 difference between the amounts but testified that he gave the $7800 cash payment to Quintiliani for the same purpose as the $7900 wire transfer.

       We also note that the record reflects that no interrogatories were submitted to the jury on the issue of damages and, therefore, we can only speculate as to why the jury awarded the damages it did. We decline to do so.

       General Statutes § 52-584 provides in relevant part: “No action to recover damages for injury to the person, or to real or personal property, caused by negligence . . . shall be brought but within two years from the date when the injury is first sustained or discovered or in the exercise of reasonable care should have been discovered, and except that no such action may be brought more than three years from the date of the act or omission complained of, except that a counterclaim may be interposed in any such action any time before the pleadings in such action are finally closed.”

       The court instructed the jury on the defendant’s statute of limitations special defense in which the defendant claimed that the plaintiff violated the applicable statute of limitations set forth in § 52-584. The court also instructed the jury on the plaintiffs response to the defendant’s special defense in which the plaintiff claimed that the statute of limitations was tolled by a continuing course of conduct.


author: SHELDON, J.

text:
    USA BANK v. STEVEN V. SCHULZ
    (AC 34702)
    Gruendel, Sheldon and Flynn, Js.
    Argued April 23
    officially released June 18, 2013

      Steven V. Schulz, pro se, the appellant (defendant).

      David P. Friedman, with whom was Taruna Garg, for the appellee (substitute plaintiff).
   Opinion

SHELDON, J.

The defendant in this foreclosure action, Steven V. Schulz, appeals to this court from the denial of his “motion to open judgment and extend law day” dated May 25, 2012, which the trial court denied without opinion on May 29, 2013. Notwithstanding its title, the subject motion sought only to reargue the earlier motion of the plaintiff Customers Bank for summary judgment as to liability only dated July 6, 2011, which the trial court previously granted, also without opinion, on October 20,2011. The defendant claims that the trial court erred in granting the plaintiffs summary judgment motion, on the basis of which it later rendered a judgment of strict foreclosure as to a commercial property in Ridgefield on which he had given the plaintiff a mortgage on which he defaulted, because it ruled on that motion when he was unrepresented by counsel due to his lawyer’s temporary suspension from the practice of law. The defendant claims that the trial court erred in denying his motion to open judgment so that he might reargue the plaintiffs motion for summary judgment as to liability with the assistance of new counsel.

The plaintiff opposes the defendant’s claim on several grounds, noting as a threshold matter that the one true focus of the claim is the alleged impropriety of the court’s order granting summary judgment in favor of the plaintiff as to liability, upon which the judgment of strict foreclosure that he now seeks to open was based. Because the defendant failed to appeal from that judgment within twenty days of the date when notice of the judgment was given, as required by Practice Book § 63-1 (a), and likewise failed to move for reargument as to either the plaintiffs motion for judgment of strict foreclosure or its underlying motion for summary judgment on the issue of liability only within twenty days of the court’s decisions on them, the plaintiff makes two basic arguments to this court. First, insofar as the claim purports to challenge the propriety of the trial court’s rulings on either or both of those motions, the plaintiff asks this court to dismiss the appeal for lack of subject matter jurisdiction because it was untimely filed. Second, insofar as the defendant challenges the trial court’s denial of his motion to open judgment, in which he sought to reargue the plaintiffs summary judgment motion with the assistance of counsel, the plaintiff asks this court to affirm the trial court’s decision as a proper exercise of the trial court’s discretion to deny an untimely motion for reargument. For the following reasons, we agree with the plaintiff that the only issue we may lawfully review in this appeal is whether the trial court abused its discretion in denying the defendant’s motion to open judgment, and conclude on that issue that in the absence of any such abuse of discretion, the trial court’s ruling must be affirmed.

The following additional facts provide essential background for this case. The plaintiff commenced this action against the defendant on December 21, 2009, seeking to foreclose a commercial mortgage on real property owned by the defendant located at 3 Pump Lane in Ridgefield, following the defendant’s default on a large construction loan. Thereafter, on July 6, 2011, the plaintiff filed a motion for summary judgment as to liability only, which it supported by an accompanying memorandum of law, an affidavit from one of its corporate officers and several attached exhibits. The defendant, who was then represented by substitute counsel in lieu of his original attorney in the case, who had temporarily been suspended from the practice of law, filed no memorandum or materials in opposition to the motion.

At the first hearing on the motion for summary judgment, on August 8, 2011, the defendant’s substitute counsel sought the court’s permission to withdraw his appearance, for the stated reason that he was not competent to handle foreclosure matters. When the defendant assented to the proposed withdrawal, the court granted the motion to withdraw, leaving the defendant unrepresented. At a second hearing on the motion for summary judgment three weeks later, on August 29, 2011, the defendant, still unrepresented, sought a further postponement of argument on the motion until his original attorney’s suspension was completed, but the court granted him only five more weeks either to hire new counsel or to prepare himself to handle the motion. Thereafter, at the third and final hearing on the motion for summary judgment on October 3, 2011, the court denied the defendant’s request for a further postponement until his original attorney’s suspension was over, stating that it would decide the motion on the papers, subject to the defendant’s right, upon the anticipated return of his original attorney, to file “any motion you wish” to address the court’s ruling. On October 20,2011, the trial court granted the plaintiffs motion by short form order without opinion.

Subsequent to the granting of the plaintiffs summary judgment motion, the defendant filed no motions, mem-oranda or other materials of any kind addressing either the merits of that motion or the procedure by which it had been adjudicated.

On January 11, 2012, the plaintiff filed a motion for judgment of strict foreclosure with respect to the defendant’s mortgaged property in Ridgefield. The defendant, who immediately hired new counsel to represent him in the action, filed no opposition to the plaintiffs motion on any grounds, including any alleged improprieties in the prior granting of the plaintiffs motion for summary judgment. On January 30, 2012, the trial court granted the plaintiffs motion, rendered judgment of strict foreclosure and set April 17, 2012, as the law day for the defendant to exercise his equitable right to redeem the property. The defendant did not appeal from the entry of that final judgment against him and filed no motion for reargument with respect to the plaintiffs motion for judgment of strict foreclosure.

On May 25, 2012, more than thirty days after the passage of his law day, the defendant filed a motion to open judgment and extend the law day, in which he sought, for the first time, to reargue the motion for summary judgment previously filed by the plaintiff seeking judgment as to liability only, which, as noted, the court had summarily granted on October 20, 2011. On May 29, 2012, the court summarily denied the defendant’s motion to open. This appeal followed.

I

Generally, “an appeal must be filed within twenty days of the date notice of the judgment or decision is given.” Practice Book § 63-1 (a). In the context of an appeal from the denial of a motion to open judgment, “[i]t is well established in our jurisprudence that [w]here an appeal has been taken from the denial of a motion to open, but the appeal period has run with respect to the underlying judgment, [this court] ha[s] refused to entertain issues relating to the merits of the underlying case and ha[s] limited our consideration to whether the denial of the motion to open was proper.” (Internal quotation marks omitted.) First Connecticut Capital, LLC v. Homes of Westport, LLC, 112 Conn. App. 750, 756, 966 A.2d 239 (2009). “When a motion to open is filed more than twenty days after the judgment, the appeal from the denial of that motion can test only whether the trial court abused its discretion in failing to open the judgment and not the propriety of the merits of the underlying judgment. . . . This is so because otherwise the same issues that could have been resolved if timely raised would nevertheless be resolved, which would, in effect, extend the time for appeal.” (Internal quotation marks omitted.) Ryan v. Vera, 135 Conn. App. 864, 868, 43 A.3d 221 (2012).

In this case there is no question that the defendant failed to file a timely appeal from the granting of the plaintiffs motion for judgment of strict foreclosure against him, or thus from the resulting entry of the requested judgment of strict foreclosure with respect to his mortgaged Ridgefield property. Therefore, he cannot challenge the merits of that judgment in this appeal or, in so doing, challenge the trial court’s order granting summary judgment in favor of the plaintiff on the issue of liability upon which that foreclosure judgment was predicated.

II

Turning, then, to the only issue that this court may properly address in this appeal—whether the trial court erred in denying the defendant’s motion to open judgment—we must start by acknowledging that such a motion “is addressed to the [trial] court’s discretion, and the action of the trial court will not be disturbed on appeal unless it acted unreasonably and in clear abuse of its discretion.” (Internal quotation marks omitted.) Walton v. New Hartford, 223 Conn. 155, 169, 612 A.2d 1153 (1992). “In reviewing claims that the trial court abused its discretion, great weight is given to the trial court’s decision and every reasonable presumption is given in favor of its correctness. . . . We will reverse the trial court’s ruling only if it could not reasonably conclude as it did.” (Internal quotation marks omitted.) Ryan v. Vera, supra, 135 Conn. App. 869.

Here, to reiterate, the only reason given by the defendant for seeking to open the judgment of strict foreclosure rendered against him on January 30, 2012, was to gain the opportunity to reargue, with the assistance of his present counsel, the plaintiffs underlying motion for summary judgment on the issue of liability. Therefore, the subject motion to open judgment was really nothing more than a belated motion for reargument, which by law had to be filed not later than twenty days after the ruling on the motion as to which reargument was sought. Here, then, the latest date on which the defendant could lawfully have moved for reargument with respect to the plaintiffs motion for summary judgment on the issue of liability, which was decided on October 20, 2011, was twenty days later, on November 9,2011. Similarly, the latest date on which the defendant could lawfully have moved for reargument with respect to the plaintiffs motion for judgment of strict foreclosure, which was decided on January 30, 2012, was twenty days later, on February 19, 2012. Under these standards, the defendant’s May 25, 2012 motion to open judgment, which sought only to reargue the plaintiffs motion for summary judgment on the issue of liability, was untimely by more than six months. For that reason alone, the trial court acted well within its discretion in denying the motion to open judgment.

In addition, notwithstanding the defendant’s argument that he had no attorney to help him in defending against the plaintiffs motion for summary judgment when the trial court decided it on the papers, there is no reason in equity why the defendant’s delay in challenging the court’s summary judgment ruling should be excused, for the record reveals that the defendant had the services of qualified legal counsel from early January, 2012, forward, and yet neither he nor his counsel raised any opposition to the motion for judgment of strict foreclosure from the date it was filed, January 11, 2012, through the date it was granted, January 30, 2012, or in the twenty day appeal or reargument period following the granting of that motion and the resulting entry of judgment. In short, the defendant has no basis for claiming an abuse of discretion by the trial court in denying him relief that he could readily have sought, had he wished to, at a time when he was represented by competent counsel.

The judgment is affirmed.

In this opinion the other judges concurred.

       Customers Bank, the successor in interest to the named plaintiff, USA Bank, was substituted as the plaintiff in this action. We therefore refer in this opinion to Customers Bank as the plaintiff.

       See footnote 1 of this opinion.


text:
    STATE OF CONNECTICUT v. CHARLES AROKIUM
    (AC 33437)
    Beach, Sheldon and Flynn, Js.

      Argued November 26, 2012
    officially released June 18, 2013

      Elizabeth M. Inkster, assigned counsel, with whom was Jennifer B. Smith, assigned counsel, for the appellant (defendant).

      Lisa A. Riggione, senior assistant state’s attorney, with whom, on the brief, were David I. Cohen, state’s attorney, and David R. Applegate, assistant state’s attorney, for the appellee (state).
   Opinion

SHELDON, J.

The defendant, Charles Arokium, appeals from the judgment of conviction rendered against him following a jury trial on charges of possession of narcotics with intent to sell in violation of General Statutes § 21a-277 (a) and possession of narcotics in violation of General Statutes § 21a-279 (a). On appeal, the defendant claims that the trial court improperly (1) denied his motion to suppress, which challenged the legality, under the fourth and fourteenth amendments to the United States constitution and article first, § 7, of the constitution of Connecticut, of the stop of his person and a motor vehicle, which led to the seizure of narcotics upon which his conviction was based, and (2) convicted him of both a greater offense and a lesser included offense on the basis of the same underlying conduct, in violation of his fifth and fourteenth amendment right against double jeopardy. We affirm in part and reverse in part the judgment of the trial court.

The following facts are relevant to our resolution of the defendant’s appeal. During January, 2009, Officer Christopher Broems of the Stamford police department conducted an investigation into suspected narcotics related activity at the Stamford Motor Lodge located at 1209 East Main Street in Stamford (hotel). In the course of that investigation, the Stamford police department received a tip from a confidential informant that the occupant of room 273 was selling cocaine in that location. The confidential informant described the seller, whom he claimed to know only as Charlie, “as a dark skinned, black male, with a shaved head in his mid-thirties, approximately [six feet, two inches] tall and [a] chubby build.” On January 4, 2009, the confidential informant told Sergeant Christopher Baker of the Stamford police department that the informant had previously observed at least fifty grams of powder cocaine and a substantial amount of money in room 273. On January 5,2009, Broems was informed by the front desk clerk of the hotel that Charles Arokium had been renting room 273 for the past fifteen weeks.

Thereafter, on January 6,2009, the confidential informant, in cooperation with the Stamford police, successfully made a controlled purchase of suspected narcotics from the seller known as Charlie in room 273. On that date, Broems observed the informant enter room 273, where the informant remained for a short period of time before exiting and walking directly to a prearranged rendezvous location, where the informant gave Broems two clear plastic bags containing suspected cocaine. After the police confirmed that the substance in the bags tested positive for cocaine, Broems, in plainclothes, set up a surveillance of room 273 from an unmarked police vehicle in the parking lot of the hotel. Broems subsequently observed a dark colored Dodge Magnum pull into the hotel parking lot and park in the vicinity of room 273. Broems then saw a large, light skinned black male, approximately six feet, two inches tall, exit the vehicle and approach room 273, empty-handed. Broems saw this man, later identified as Ricky Samas, knock on the door of room 273, then enter the room when the door was answered, where he stayed for five minutes before exiting, carrying a plastic bag. Samas then entered the Dodge and sped away onto Interstate 95 northbound. Although other Stamford police officers, alerted to Samas’ departure by Broems, gave chase, they were unable to find, or thus to stop, Samas’ vehicle.

Shortly thereafter, Broems observed a silver Nissan Maxima parked in the hotel parking lot in the vicinity of room 273. He then saw a thin black male, approximately five feet, seven inches tall, exit the vehicle and approach room 273 with what appeared to be an empty bag folded underneath his arm. This man, later identified as Darnell Barber, knocked on the door of room 273 and was admitted by someone within. Barber remained in the room for approximately fifteen minutes before exiting, carrying the previously folded bag, which then appeared to contain a package. Barber promptly got back into the Nissan and departed with the female driver, who was later identified as Tanya Bruce, onto Interstate 95 southbound. Believing that a drug transaction had just occurred, Broems directed Officer Richard Byxbee of the Stamford police department to stop the Nissan. When Byxbee, a uniformed officer in a marked police cruiser, stopped the Nissan on Interstate 95, Broems drove his unmarked vehicle to the location of the stop in order to investigate Barber and Bruce. While performing a check of the occupants’ licenses and the Nissan’s registration, Broems and Byxbee observed a shoe box containing two bundles of money in plain view in the backseat of the Nissan. Thereafter, Broems and Byxbee turned Barber, Bruce and the Nissan over to three other Stamford police officers, who had joined them at the location of the stop, for further investigation, including a search of the Nissan by a state police canine. Broems and Byxbee returned to the hotel to resume surveillance of room 273. In the meantime, the Stamford police began the process of applying for a warrant to search that room.

While waiting for the issuance of a search warrant, Broems observed another black male exit room 273 whom he had not seen enter. This man, later identified as the defendant, was carrying a plastic shopping bag. Broems exited his vehicle and followed the defendant on foot to determine whether he matched the confidential informant’s description of Charlie. At that moment, Broems notified Byxbee, who had parked his police cruiser on a nearby side street, that he was pursuing a suspect near the front of the hotel. Standing about two feet from the defendant, Broems determined that he matched the informant’s description of Charlie. Broems then told Byxbee: “[T]his is Charlie. This is the person we [are] looking for.” Shortly thereafter, the defendant entered a taxicab (cab). As the cabdriver was beginning to drive away, Broems quickly alerted Byxbee and requested that he enter the hotel parking lot and cut off the cab to prevent the defendant from leaving. Attempting to stall the defendant’s departure, Broems approached the cabdriver and stated that he was in need of a cab. Moments later, Byxbee entered the parking lot and parked his cruiser directly in front of the cab. Broems then pulled out and displayed his badge and ordered the defendant to get out of the cab. Five to thirty seconds then passed, during which the defendant neither moved nor spoke. Believing that the defendant might have been armed, Broems opened the rear passenger door of the cab and “ripped [the defendant] out of the car, and threw him on the ground, and handcuffed him . . . .” While securing the defendant, Broems saw that the bag that the defendant had been holding had fallen to the ground, partially exposing some of its contents to view. He noted, in particular, that several manila envelopes had spilled out of the defendant’s bag, and that a clear plastic bag containing a white powder substance he suspected of being powder cocaine had fallen out of one of the Manila envelopes. Also lying on the ground in plain view, Broems saw several small ziplock bags imprinted with apples, which he believed to be drug packaging material.

The defendant was charged in connection with the previously described seizures with one count each of possession of narcotics with intent to sell in violation of § 21a-277 (a) and possession of narcotics in violation of § 21a-279 (a). The defendant filed a motion to suppress all physical evidence obtained by the police when they seized him from the cab, claiming that the police had neither a reasonable and articulable suspicion to stop him nor probable cause to arrest him. After a suppression hearing conducted midtrial, the trial court denied the defendant’s motion. In its oral ruling denying the defendant’s motion, the trial court concluded as follows: “[T]he police, in general, and Officer Broems, in particular, had probable cause to arrest the defendant. And even if [Broems] didn’t have probable cause, at a minimum, he had reasonable suspicion to believe that criminal conduct was going on, and he had a right to maintain the status quo.”

The defendant was tried by a jury and found guilty of possession of narcotics with intent to sell and possession of narcotics. Thereafter, the trial court merged the defendant’s conviction of possession of narcotics, on count two, with his conviction of possession of narcotics with intent to sell, on count one, and sentenced the defendant on the first count to a total effective sentence of ten years imprisonment with five years of special parole. This appeal followed. Additional facts will be set forth as necessary.

I

The defendant first claims that the trial court improperly denied his motion to suppress evidence obtained from the police stop of the cab, arguing that the officers conducting the stop lacked sufficient information to establish a reasonable and articulable suspicion of criminal activity and that probable cause to arrest him did not arise during the course of the stop. Specifically, the defendant contends that “[t]he stop of the defendant was based on nothing more than a police officer’s suspicions” because, at the time of the stop, the description provided by the confidential informant was too vague, there was no corroboration of the information provided by the confidential informant and the police did not see the defendant engage in any criminal activity or furtive behavior. We disagree.

In denying the defendant’s motion to suppress, the trial court found the following relevant facts. On January 6, 2009, the confidential informant, in cooperation with the Stamford police department, obtained cocaine during the course of a controlled purchase in room 273 of the hotel from a man named Charlie. The informant previously had provided a physical description to the Stamford police and explained that Charlie had been living in the room for an extended period of time. That same day, Broems had observed two men visit the room for short periods of time and depart carrying bags. One of those men was found to be in possession of $29,000 in cash after leaving room 273. While waiting for other Stamford police officers to procure the issuance of a search warrant for the room, Broems observed a man, later identified as the defendant, leave room 273 carrying a bag and enter a cab. Broems had not seen the defendant enter the room. After determining that the defendant matched the description of Charlie, Broems believed that the defendant was the person who had been selling cocaine out of room 273. Accordingly, Broems and Byxbee stopped the cab in which the defendant was traveling and asked him to exit. When the defendant did not comply at once, Broems, believing that the defendant might have been armed, pulled him out of the backseat of the cab and threw him to the ground. During that encounter, some of the contents of the defendant’s bag spilled to the ground, allowing the officers to observe, in plain view, what appeared, on the basis of their training and experience, to be cocaine.

“[0]ur standard of review of a trial court’s findings and conclusions in connection with a motion to suppress is well defined. A finding of fact will not be disturbed unless it is clearly erroneous in view of the evidence and pleadings in the whole record .... [When] the legal conclusions of the court are challenged, [our review is plenary, and] we must determine whether they are legally and logically correct and whether they find support in the facts set out in the court’s memorandum of decision ....

“On appeal, [t]he determination of whether reasonable and articulable suspicion exists rests on 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. . . .

“An investigating officer may briefly stop a motorist if the officer has a reasonable and articulable suspicion that criminal activity may be afoot.” (Citations omitted; internal quotation marks omitted.) State v. Burns, 140 Conn. App. 347, 354-55, 59 A.3d 819, cert. denied, 308 Conn. 918, 62 A.3d 1132 (2013). Similarly, “[u]nder the fourth amendment to the United States constitution ... a police officer may briefly detain an individual for investigative purposes if the officer has a reasonable and articulable suspicion that the individual has committed or is about to commit a crime. . . . [I]n justifying [a] particular intrusion the police officer must be able to point to specific and articulable facts which, taken together with rational inferences from those facts, reasonably warrant that intrusion. . . . Because a reasonable and articulable suspicion is an objective standard, we focus not on the actual state of mind of the police officer, but on whether a reasonable person, having the information available to and known by the police, would have had that level of suspicion.” (Citation omitted; internal quotation marks omitted.) State v. Miller, 137 Conn. App. 520, 538, 48 A.3d 748, cert. denied, 307 Conn. 914, 54 A.3d 179 (2012). “A recognized function of a constitutionally permissible stop is to maintain the status quo for a brief period of time to enable the police to investigate a suspected crime.” (Internal quotation marks omitted.) State v. Doyle, 139 Conn. App. 367, 383, 55 A.3d 805 (2012), cert. denied, 307 Conn. 952, 58 A.3d 976 (2013).

“In cases in which a police stop is based on an informant’s tip, corroboration and reliability are important factors in the totality of the circumstances analysis.” (Internal quotation marks omitted.) State v. Burns, supra, 140 Conn. App. 355. Our Supreme Court has “consistently held that an informant’s record of providing information that led to arrests and seizures of contraband is sufficient to establish the reliability of the informant.” (Internal quotation marks omitted.) State v. Clark, 297 Conn. 1, 11, 997 A.2d 461 (2010).

As to the trial court’s findings of fact, the defendant argues that “the court made clear error in its factual findings that the defendant matched the description of ‘Charlie’ ” because it was too vague. We disagree. Broems testified that a known confidential informant provided a description to the Stamford police. This informant had provided reliable information to the officers in the past, resulting in two arrests and the recovery of narcotics. The informant explained that a man named Charlie was selling cocaine from room 273 at the hotel. The informant stated that Charlie was “a dark skinned, black male, with a shaved head in his mid-thirties, approximately [six feet, two inches] tall and [a] chubby build.” At the suppression hearing, Broems testified that he spotted the defendant leaving room 273 and that he matched the informant’s description of the man living inside that room who had been dealing in narcotics. The trial court, therefore, had ample evidence from which it reasonably could have concluded that the defendant matched the description of Charlie.

As to the court’s determination that a reasonable and articulable suspicion existed that the defendant was then engaged in criminal activity, the defendant claims that “the objective facts known to Officer Broems at the moment of the stop were insufficient to establish reasonable and articulable suspicion” in the absence of proper corroboration. We disagree. The court based its finding of a reasonable and articulable suspicion on the reliability of the confidential informant and the observations of the police officers. The informant notified the police that a man was selling cocaine from room 273 at the hotel. The informant was known by thé police and had provided rehable information in the past regarding criminal activity. See State v. Clark, supra, 297 Conn. 14-15 (where informant is known from past practice to be reliable, no corroboration will be required to support reasonable suspicion). The officers conducted a controlled purchase in which the informant obtained cocaine from someone in room 273. The police officers confirmed that a man named Charles had been renting that room for an extended period of time. Armed with this information, Broems observed two people visit room 273, whose behavior reasonably suggested that they were engaging in drug trafficking activity. Both men were admitted into the room by someone else inside and departed shortly thereafter, carrying plastic bags. One such person was found in possession of $29,000 in cash in a shoe box shortly after leaving the room. The defendant, who matched the informant’s description of Charlie, was subsequently seen leaving that very room with a plastic bag. On the basis of the officers’ observations and their prior relationship with the informant, we conclude that it was reasonable for the officers to infer that the informant’s tip was reliable and that such tip provided them with a reasonable and articulable suspicion to believe that the defendant was then engaging in criminal activity. The trial court’s legal conclusion that such a reasonable and articulable suspicion existed at the time of the stop is legally and logically correct and supported by the facts.

The defendant further argues that probable cause did not arise during the course of the Terry stop. Specifically, he claims that “the defendant did not make furtive or erratic movements [and] [n]othing about the defendant’s behavior at the time he was pulled from the cab served to validate a finding that criminal activity had occurred.” We are not persuaded.

“Under Terry [v. Ohio, 392 U.S. 1, 88 S. Ct. 1868, 20 L. Ed. 2d 889 (1968)], where a police officer observes unusual conduct which leads him reasonably to conclude in light of his experience that criminal activity may be afoot . . . the officer may briefly stop the suspicious person and make reasonable inquiries aimed at confirming or dispelling his suspicions.” (Internal quotation marks omitted.) State v. Sward, 124 Conn. App. 646, 552-53, 5 A.3d 965 (2010). “The results of the initial stop may arouse further suspicion or may dispel the questions in the officer’s mind. If the latter is the case, the stop may go no further and the detained individual must be free to go. If, on the contrary, the officer’s suspicions are confirmed or are further aroused, the stop may be prolonged and the scope enlarged as required by the circumstances.” (Internal quotation marks omitted.) State v. DelValle, 109 Conn. App. 143, 155, 950 A.2d 603, cert. denied, 289 Conn. 928, 958 A.2d 160 (2008).

Our Supreme Court has “often stated . . . that it is reasonable for police officers to suspect guns to be associated with illegal drug selling operations. . . . Accordingly, evidence of drug dealing may support an officer’s determination of reasonable suspicion of dangerousness.” (Citations omitted; internal quotation marks omitted.) State v. Butler, 296 Conn. 62, 74, 993 A.2d 970 (2010). “[T]he law recognizes the important need to allow authorities to graduate their responses to the demands of any particular situation.” (Internal quotation marks omitted.) State v. Nash, 278 Conn. 620, 642, 899 A.2d 1 (2006). “[W]e do not require police officers who are properly attempting to neutralize the threat of physical harm to do so at increased peril.” (Internal quotation marks omitted.) Id., 644. “[W]hile we respect the constitutional rights against unreasonable search and seizure of the citizenry ... it would be unreasonable to require that police officers take unnecessary risks in the performance of their duties.” (Internal quotation marks omitted.) State v. Aviles, 277 Conn. 281, 298, 891 A.2d 935, cert. denied, 549 U.S. 840, 127 S. Ct. 108, 166 L. Ed. 2d 69 (2006).

Here, the facts of the present case, as found by the trial court, lead to the conclusion that Broems was faced with a situation that he reasonably feared might pose imminent danger to himself and others. When he approached the defendant, Broems possessed sufficient information to give rise to a particularized and objective basis for suspecting that the defendant was engaged in criminal activity. Broems ordered the defendant out of the cab. See State v. Dukes, 209 Conn. 98, 122, 547 A.2d 10 (1988) (state constitution permits police to require occupants to exit lawfully stopped motor vehicle). His suspicions were further aroused when the defendant failed to comply immediately with that request. With reasonable suspicion that the defendant, who was suspected of dealing in narcotics, might have been armed, Broems properly removed the defendant from the cab when he did not comply with Broems’ orders.

“The warrantless seizure of contraband that is in plain view is reasonable under the fourth amendment if two requirements are met: (1) the initial intrusion that enabled the police to view the items seized must have been lawful; and (2) the police must have had probable cause to believe that these items were contraband or stolen goods.” (Internal quotation marks omitted.) State v. Brodia, 129 Conn. App. 391, 397, 20 A.3d 726, cert. denied, 302 Conn. 913, 27 A.3d 373 (2011). “The plain view doctrine is based upon the premise that the police need not ignore incriminating evidence in plain view while they are operating within the parameters of a valid search warrant or are otherwise entitled to be in a position to view the items seized. . . . [I]f contraband is left in open view and is observed by a police officer from a lawful vantage point, there has been no invasion of a legitimate expectation of privacy and thus no search within the meaning of the [f]ourth [a]mendment—or at least no search independent of the initial intrusion that gave the officers their vantage point. . . .

“Under the plain view doctrine, if police are lawfully in a position from which they view an object, if its incriminating character is immediately apparent, and if the officers have a lawful right of access to the object, they may seize it without a warrant. . . . The police meet the immediately apparent requirement if, [up] on discovery, they have probable cause to associate the property in plain view with criminal activity without further investigation.” (Citations omitted; internal quotation marks omitted.) Id., 397-98.

As previously set forth, Broems specifically testified at the hearing on the defendant’s motion to suppress that he stopped the defendant and ordered him out of the cab under reasonable suspicion of selling cocaine. After securing the defendant, whom he reasonably suspected of being armed, Broems observed a clear plastic bag containing suspected cocaine and other materials for packaging narcotics. The underlying facts, therefore, “were sufficient to establish probable cause to associate the property in plain view with criminal activity without further investigation.” (Internal quotation marks omitted.) State v. Brown, 279 Conn. 493, 522, 903 A.2d 169 (2006). Because the officers lawfully stopped the defendant and did not exceed the permissible scope of a Terry stop, the subsequent plain view seizure of the contraband that spilled from the defendant’s bag was proper and, accordingly, gave rise to probable cause to arrest the defendant. The trial court, therefore, properly denied the defendant’s motion to suppress.

II

The defendant next claims that the judgment imposed on him by the trial court violated the prohibition against double jeopardy. Specifically, he claims that the trial court improperly merged his conviction of possession of narcotics in violation of § 21a-279 (a), the lesser included offense, into his conviction of possession of narcotics with intent to sell in violation of § 21a-277 (a), the greater offense. It is the defendant’s position that when a defendant has been convicted of both a greater offense and a lesser included offense, in violation of the double jeopardy clause of the federal constitution, the appropriate remedy is to vacate the conviction for the lesser included offense. In fight of our Supreme Court’s recent holding in State v. Polanco, 308 Conn. 242, 248, 61 A.3d 1084 (2013), we agree.

“Our standard of review for analyzing constitutional claims such as double jeopardy violations prohibited by the fifth amendment to the United States constitution presents an issue of constitutional and statutory interpretation over which our review is plenary.” State v. Johnson, 137 Conn. App. 733, 753, 49 A.3d 1046, cert. granted on other grounds, 307 Conn. 927, 55 A.3d 568 (2012), 308 Conn. 938, 66 A.3d 881 (2013). The fifth amendment’s protection against double jeopardy has been incorporated into and made applicable to the states under the due process clause of the fourteenth amendment. Benton v. Maryland, 395 U.S. 784, 89 S. Ct. 2056, 23 L. Ed. 2d 707 (1969).

“The federal and state constitutions prohibit multiple punishments if: (1) the charges arise out of the same act or transaction; and (2) the charged crimes are the same offense. . . . [W]here the same act or transaction constitutes a violation of two distinct statutory provisions, the test to be applied to determine whether there are two offenses or only one, is whether each provision requires proof of a fact which the other does not.” (Citation omitted; internal quotation marks omitted.) State v. Polanco, 126 Conn. App. 323, 337-38, 11 A.3d 188 (2011), rev’d in part on other grounds, 308 Conn. 242, 61 A.3d 1084 (2013). Therefore, a lesser included offense of a greater offense exists if a finding of guilt of the greater offense necessarily involves a finding of guilt of the lesser offense. Because one cannot commit the greater offense of possession of narcotics with intent to sell without first committing the lesser offense of possession of narcotics, the defendant’s conviction of this latter offense is violative of double jeopardy principles, and, on appeal, both the state and defendant agree that the defendant properly could not be sentenced on both convictions.

The parties agree that the single issue raised by the defendant’s second claim on appeal is whether the merger of convictions approach or the vacatur approach is the appropriate remedy to be employed when a defendant has been sentenced for both greater and lesser included offenses in violation of the right against double jeopardy. Under the merger of convictions approach, a trial court will merge the conviction for the lesser included offense into the conviction for the greater offense and vacate the sentence for the lesser included offense. See State v. Chicano, 216 Conn. 699, 725, 584 A.2d 425 (1990), cert. denied, 501 U.S. 1254, 111 S. Ct. 2898, 115 L. Ed. 2d 1062 (1991). Under the vacatur approach, however, a trial court will vacate the conviction for the lesser included offense. State v. Polanco, supra, 308 Conn. 247. The parties further agree that the Supreme Court’s decision in Polanco is controlling and dispositive of this issue. Accordingly, a review of that decision is warranted.

After our Supreme Court’s decision in Chicano and until its holding in Polanco, “when a defendant [was] convicted of a greater offense and a lesser included offense in violation of the double jeopardy clause of the federal constitution, the appropriate remedy [was] to merge the convictions and to vacate the sentence for the lesser offense.” Id., 244. In Polanco, the defendant was convicted on the greater offense of possession of narcotics with intent to sell by a person who is not drug-dependent in violation of General Statutes § 21a-278 (b) and the lesser included offense of possession of narcotics with intent to sell in violation of § 21a-277 (a). Id., 246. Rendering judgment, the trial court improperly merged the defendant’s sentences on those counts, imposing concurrent sentences. Id.

On appeal to this court, the defendant claimed, inter alia, that “his sentence violated the federal constitutional prohibition against double jeopardy due to the trial court’s merger of his sentences rather than his convictions.” Id. This court concluded that because § 21a-277 (a) is a lesser included offense of § 21a-278 (b) and both charges arose from the same act or transaction, the defendant’s convictions for those crimes violated the double jeopardy clause. State v. Polanco, supra, 126 Conn. App. 338. This court concluded that the appropriate remedy was to remand the case to the trial court with direction to merge the conviction for the lesser included offense with the conviction for the greater offense and to vacate the sentence for the lesser included offense. Id., 338-39.

On appeal to our Supreme Court, the defendant claimed that, “although the Appellate Court’s judgment was proper under [Chicano] and its progeny, Connecticut’s rubric for sentencing defendants convicted of greater and lesser included offenses fails to conform to the requirements of federal constitutional law in light of the United States Supreme Court’s decision in Rutledge v. United States, 517 U.S. 292, 116 S. Ct. 1241, 134 L. Ed. 2d 419 (1996).” State v. Polanco, supra, 308 Conn. 245. Without reaching the merits of the defendant’s constitutional argument, the court, electing to exercise its inherent supervisory authority over the administration of justice, concluded “that the vacatur approach shall replace the use of the merger of convictions approach . . . .” Id., 248. The court reasoned that, “first, the jurisprudential underpinnings to this court’s approval of the merger approach have since been repudiated, and, second, the remedy in Chicano is now at odds with the remedy utilized almost uniformly within the Circuit Courts of Appeals.” Id., 249.

Accordingly, we apply the vacatur approach to the facts of the present case. Because one cannot commit the greater offense of possession of narcotics with intent to sell without first committing the lesser included offense of possession of narcotics, the defendant’s conviction on the lesser included offense must be vacated in order to comport with the fifth and fourteenth amendment prohibition against double jeopardy as explained by our Supreme Court in Polanco. We therefore remand this case to the trial court and direct that court to vacate the defendant’s conviction of possession of narcotics in violation of § 21a-279 (a).

The judgment is reversed in part and the case is remanded with direction to vacate the conviction of possession of narcotics. The judgment is affirmed in all other respects.

In this opinion the other judges concurred.

       The hotel is now named America’s Best Value Inn.

       The state presented testimony that the confidential informant had provided reliable information to the Stamford police in the past resulting in two arrests and the recovery of narcotics.

      . The police later determined that the shoe box contained $29,000 in cash.

       Broems had left room 273 unattended for approximately twelve minutes in order to investigate Barber and Bruce.

       Broems testified that the defendant was a bald, dark skinned black male, approximately six feet tall, who had a medium to stocky build.

       Specifically, Broems testified: “With narcotics, I didn’t know who the suspect was. I didn’t know too much about him, except his name was Charlie. In my experience over eight years, narcotics and weapons are hand in hand. I didn’t know if he was armed. I wasn’t going to give him a chance to come up with a plan of anything. I had no idea who this man was; what he’s about.
      “So, my job is to just get him out of the car; handcuff him as immediately as possible, for officers’ safety, and the safety of the public.”

       The state presented the following testimony: “In the aspect of cocaine, some people will put their own stamp [or symbols on drug packaging]. They will buy a . . . specific kind because they want people to know that’s their product.”

       At the sentencing hearing, held on November 16, 2010, the trial court explained: “[0]n the charge of simple possession of narcotics, I am not going to impose a sentence because that’s a lesser included [offense]. I am going to . . . merge that offense with the other offense.”

       The defendant also claims that the trial court erred in denying his motion to suppress because the police lacked probable cause to arrest him at the time of the stop. Because we conclude that the arresting officers possessed a reasonable and articulable suspicion of criminal activity, which is sufficient to perform an investigatory stop; See State v. Freeman, 132 Conn. App. 438, 448, 33 A.3d 256 (2011), cert. granted on other grounds, 303 Conn. 922, 34 A.3d 395 (2012); we need not address the merits of this claim.

        Terry v. Ohio, 392 U.S. 1, 21-22, 88 S. Ct. 1868, 20 L. Ed. 2d 889 (1968).

       The defendant raises this unpreserved claim under State v. Golding, 213 Conn. 233, 239-40, 567 A.2d 823 (1989), which authorizes certain constitutional claims to be made for the first time on appeal. The state does not contest its reviewability.

       When we heard oral argument on this appeal on November 26, 2012, the Supreme Court had not yet issued its decision in Polanco.

       In State v. Polanco, supra, 126 Conn. App 339 n.8, noting that the remedy it provided to the defendant was based on controlling Supreme Court precedent; see State v. Mullins, 288 Conn. 345, 379, 952 A.2d 784 (2008), overruled by State v. Polanco, supra, 308 Conn. 248; this court determined that there was no need to discuss the defendant’s alternative argument that his conviction on the lesser included offense should have been vacated.

       Our Supreme Court further held that a conviction for a lesser included offense, previously vacated as violative of the double jeopardy clause, may be reinstated if the defendant’s conviction for the greater offense subsequently is reversed for reasons unrelated to the viability of the vacated conviction. State v. Polanco, supra, 308 Conn. 263.