author: FLYNN, J.

text:
    RICHARD PRESTON v. PAULA J. O’ROURKE
    (AC 21278)
    Lavery, C. J., and Flynn and Hennessy, Js.

      Argued October 22
    officially released December 24, 2002

      Richard Preston, pro se, the appellant (plaintiff).

      Andrew J. O’Keefe with whom were Joseph M. Busher, Jr., and, on the brief, Philip R. Dunn, Jr., for the appellee (defendant).
   Opinion

FLYNN, J.

In this tort action, the plaintiff, Richard Preston, appeals from the summary judgment rendered by the trial court in favor of the defendant, Paula J. O’Rourke, on her defense that her statements were made in preparation for and as part of a quasi-judicial arbitration proceeding and thus were protected utterances and statements entitled to absolute privilege. The plaintiff claims that the court improperly (1) failed to review his claim that the arbitrator lacked subject matter jurisdiction, (2) concluded that arbitration was a quasi-judicial proceeding, (3) concluded that statements and actions of the defendant made before arbitration were entitled to absolute immunity and (4) denied the plaintiffs motion to seal portions of the file. We affirm the judgment of the trial court.

The following facts are relevant to our resolution of the plaintiffs claims. The plaintiff, a former prosecutor, initiated this action against the defendant, asserting claims of intentional infliction of emotional distress, negligent infliction of emotional distress, libel and slander. The plaintiffs allegations were based on statements made by the defendant in preparation for and during an arbitration hearing wherein the plaintiff challenged the decision of the division of criminal justice (employer) to terminate his employment.

The defendant had complained to Paul Slyman, an agent of the plaintiffs employer, both orally and in writing, that the plaintiff had behaved in a manner that placed her in fear for her physical well-being and caused her emotional upset. As a result of receiving the defendant’s complaint and the complaint of another woman, the employer conducted an investigation and terminated the plaintiff from his employment.

Pursuant to the terms of the collective bargaining agreement governing the plaintiffs employment, the Connecticut Prosecutors, Local 1437, Council 4, AFSCME (union), filed a grievance on the plaintiffs behalf for review of his termination by an arbitrator. During arbitration, the defendant testified regarding the plaintiffs behavior toward her. On July 10, 1997, after several hearings, the arbitrator issued his findings and concluded that the employer had just cause to discharge the plaintiff and, therefore, denied the plaintiffs grievance. The plaintiff filed an application in the trial court to vacate the arbitration award. The court denied the application and affirmed the arbitrator’s opinion and award. Preston v. State Division of Criminal Justice, Superior Court, judicial district of Hartford, Docket No. 572637 (February 25, 1999) (Hon. Mary R. Hennessey, judge trial referee). The plaintiff filed an appeal with this court and we affirmed the judgment of the trial court. Preston v. State Division of Criminal Justice, 60 Conn. App. 853, 761 A.2d 778 (2000), cert. denied, 255 Conn. 936, 767 A.2d 1212 (2001).

On September 10,1999, the plaintiff commenced this action. With regard to statements made by the defendant in 1994, the plaintiffs revised complaint included six counts sounding in tort, including one count of intentional infliction of emotional distress, one count of negligent infliction of emotional distress, two counts of libel and two counts of slander. With regard to statements made by the defendant in 1997, the plaintiffs revised complaint included one count of libel and one count of slander. In both 1997 libel and slander counts, the plaintiff alleged that the defendant untruthfully, falsely and maliciously stated in executed written affidavits and before and during the arbitration hearing in 1997 that the plaintiff had been physically abusive during their relationship, made threats to the defendant that he would kill various individuals and followed or lay in wait for the defendant. The plaintiff claimed that as a result of the defendant’s statements, he suffered loss of reputation, employment and goodwill of both social and professional acquaintances.

The defendant filed a motion for summary judgment based on her special defenses, claiming that all of her statements about the plaintiff were made in preparation for and as part of a quasi-judicial proceeding and thus were protected utterances and statements entitled to absolute privilege. The defendant further claimed that the plaintiff’s 1994 counts were barred by the statute of limitations. See footnote 1. The plaintiff objected, arguing that the arbitration was not a quasi-judicial proceeding, and, therefore, the defendant’s statements should not be afforded immunity. The plaintiff further argued that the defendant’s statements to Slyman in 1997, although Slyman allegedly was acting as an agent of the employer, were not part of the arbitration and, therefore, were not entitled to the protection of immunity even if the defendant’s actual testimony at the arbitration hearing was afforded such protection. The court granted the defendant’s summary judgment motion, concluding that the counts regarding the 1994 statements were barred by the applicable statute of limitations and that the two remaining counts regarding the 1997 statements were protected as statements made in preparation for and as par t of a quasi-judicial proceeding. This appeal followed.

“The standards governing our review of a trial court’s decision on a motion for summary judgment are clear. Practice Book § 384 [now § 17-49] provides that summary judgment shall be rendered forthwith if the pleadings, affidavits and any other proof submitted show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. . . . While the burden of showing the nonexistence of any material fact is on the party seeking summary judgment . . . the party opposing [summary judgment] must substantiate its adverse claim by showing that there is a genuine issue of material fact together with the evidence disclosing the existence of such an issue. ... In deciding a motion for summary judgment, the trial court must view the evidence in the light most favorable to the nonmoving party. . . . The test is whether a party would be entitled to a directed verdict on the same facts. . . .

“Equally well settled is that the trial court does not sit as the trier of fact when ruling on a motion for summary judgment. . . . [T]he trial court’s function is not to decide issues of material fact, but rather to determine whether any such issues exist.” (Citations omitted; internal quotation marks omitted.) Field v. Kearns, 43 Conn. App. 265, 269-70, 682 A.2d 148, cert. denied, 239 Conn. 942, 684 A.2d 711 (1996).

I

The plaintiff first claims that the court improperly failed to review his claim that the arbitrator lacked subject matter jurisdiction. Specifically, he argues that the agreement to submit to arbitration was in opposition to General Statutes § 51-278b (b), which limits the authority to terminate prosecutors to the criminal justice commission, and thus the arbitrator did not legally possess any of the powers referenced in Field v. Kearns, supra, 43 Conn. App. 272. He argues that the agreement was contrary to law, a nullity and unenforceable in accordance with our Supreme Court’s decision in Nagy v. Employees’ Review Board, 249 Conn. 693, 706-707, 735 A.2d 297 (1999).

We note at the outset that it was the plaintiff who, through his union, initiated the arbitration proceedings, which took place in 1997. The plaintiff claims that he raised the issue of the arbitrator’s subject matter jurisdiction at some point during those proceedings, but the plaintiff has not provided this court with any record to support this claim. There is no evidence in the record that the plaintiff objected to the arbitrator’s jurisdiction in the arbitration itself, or before the Superior Court or this court on appeal from the arbitrator’s decision. See Preston v. State Division of Criminal Justice, supra, 60 Conn. App. 853; Preston v. State Division of Criminal Justice, supra, Superior Court, Docket No. 572637. Only now, after having commenced a separate tort action against the defendant, does the plaintiff claim that the arbitrator lacked authority over the subject matter of the arbitration. “The authority of the arbitrator is a subject matter jurisdiction issue, and as such it may be challenged at any time prior to a final court judgment. ” Bennett v. Meader, 208 Conn. 352, 364, 545 A.2d 553 (1988).

We conclude that the time has passed for the plaintiff to object to the arbitrator’s jurisdiction. The plaintiff voluntarily submitted his dispute to arbitration by action of the union without objecting to the arbitrability of the dispute. Although, in their agreement, the parties preserved the plaintiffs right to raise arbitrability to the trial court, the plaintiff failed to raise the arbitrability issue argued here before the arbitrator, the trial court or this court in the previous action. Compare Caldor, Inc. v. Thornton, 191 Conn. 336, 341 n.3, 464 A.2d 785 (1983) (arbitrability waived where not raised by parties at trial or on appeal), aff'd, 472 U.S. 703, 105 S. Ct. 2914, 86 L. Ed. 2d 557 (1985). The plaintiff here could have sought a declaratory judgment, as did the plaintiff in Massameno v. Statewide Grievance Committee, 234 Conn. 539, 543-44, 663 A.2d 317 (1995), in which the plaintiff claimed that because he was subject to discipline by the criminal justice commission, he was exempt from the regular grievance procedures applicable to attorneys generally. In the alternative, the plaintiff here might have sought a temporary or permanent injunction restraining or prohibiting the union from initiating or proceeding with any arbitration action as requested by the plaintiff in Board of Police Commissioners v. White, 171 Conn. 553, 554-55, 370 A.2d 1070 (1976). Although the plaintiff claimed that he objected to the arbitration, he has failed to show this court where in this record his objection could be found. We conclude, therefore, that the plaintiff failed to preserve for judicial review the issue of jurisdiction and that the court’s failure to review it was not improper.

A determination as to the arbitrator’s subject matter jurisdiction or lack thereof, moreover, would not remove the defendant’s statements from the protection of the absolute privilege for statements made by witnesses in the course of quasi-judicial proceedings. “There are frequent dicta to the effect that the tribunal must have jurisdiction, or power to act in the situation presented; but this would compel everyone concerned to decide the question of jurisdiction at his peril, and it seems clear that the correct rule is that a mere color of jurisdiction, in fact assumed, is sufficient.” W. Pro-sser & W. Keeton, Torts (5th Ed. 1984) § 114, p. 819. It has never been the rule in Connecticut that a determination of whether a witness’ statements are protected by absolute privilege must wait until the plaintiff has exhausted every opportunity to attack the jurisdiction of the tribunal. Such a rule would defeat the very purpose of the privilege of encouraging testimony free from fear of reprisals. Therefore, the trial court was not required to determine the jurisdiction of the arbitrator in the plaintiffs previous matter.

II

The plaintiff next claims that the court improperly concluded that arbitration was a quasi-judicial proceeding for purposes of absolute immunity. Specifically, the plaintiff argues that the collective bargaining agreement does not require that a record of the proceeding be kept or that witnesses be under oath so that they are subjected to the potential penalty of perjury. He argues, therefore, that the arbitrator had no powers to enforce or impose penalties of contempt or otherwise to threaten the use of criminal sanction on untruthful witnesses and for lack of those powers failed the sixth prong of Field v. Kearns, supra, 43 Conn. App. 272.

The issue is whether the arbitrator’s lack of power to enforce or impose penalties of contempt or otherwise to threaten the use of criminal sanction on untruthful witnesses prevents the arbitration from being a quasi-judicial proceeding' and thereby deprives witnesses testifying therein of the protection of absolute immunity for those statements.

“The scope of our appellate review depends upon the proper characterization of the rulings made by the trial court. . . . When . . . the trial court draws conclusions of law, our review is plenary and we must decide whether its conclusions are legally and logically correct and find support in the facts that appear in the record.” (Internal quotation marks omitted.) Serrano v. Burns, 70 Conn. App. 21, 25, 796 A.2d 1258, cert. denied, 261 Conn. 932, 806 A.2d 1066 (2002). Because the court in the present case rendered judgment for the defendant as a matter of law, our review is plenary.

In Field, we explained that “[i]n determining whether a proceeding is quasi-judicial . . . our review is not limited to the label of the proceeding, but includes a review of the proceeding itself. The principal factors to be considered are whether the body has the power to: (1) exercise judgment and discretion; (2) hear and determine or to ascertain facts and decide; (3) make binding orders and judgments; (4) affect the personal or property rights of private persons; (5) examine witnesses and hear the litigation of the issues on a hearing; and (6) enforce decisions or impose penalties. . . . Further, quasi-judicial is defined as the action, discretion, etc., of public administrative officers or bodies, who are required to investigate facts, or ascertain the existence of facts, hold hearings, weigh evidence, and draw conclusions from them, as a basis for their official action, and to exercise discretion of a judicial nature.” (Citations omitted; internal quotation marks omitted.) Field v. Kearns, supra, 43 Conn. App. 271-72.

“Arbitration is the voluntary submission, by the interested parties, of an existing or future dispute to a disinterested person or persons for final determination. . . . General Statutes § 52-408 provides a statutory right for parties to agree in writing to arbitration.” (Citations omitted; internal quotation marks omitted.) Jacob v. Seaboard, Inc., 28 Conn. App. 270, 273, 610 A.2d 189, cert. denied, 223 Conn. 923, 614 A.2d 822 (1992). Oftentimes, “[arbitration is a quasi judicial proceeding. See Florasynth, Inc. v. Pickholz, 750 F.2d 171, 173-74 (2d Cir. 1984); Caldor, Inc. v. Thornton, [supra, 191 Conn 344-45]; Local 530, AFSCME, Council 15 v. New Haven, 9 Conn. App. 260, 269, 518 A.2d 941 (1986). It is a contractual remedy intended to avoid the formalities of ordinary litigation. . . . Such a quasi judicial proceeding is adversarial in nature, and implies that the parties will present witnesses and evidence, if they want, after notice of a hearing date, and argue their positions to an impartial decision maker. . . .

“Our statutes make provisions for subpoena and deposition powers, formal notice to the parties, arbitrator’s oaths, and the time necessary to render awards. See General Statutes §§ 52-411 through 52-416.” (Citations omitted.) Jacob v. Seaboard, Inc., supra, 28 Conn. App. 275-76.

“In Connecticut, parties to or witnesses before judicial or quasi-judicial proceedings are entitled to absolute immunity for the content of statements made therein.” Field v. Kearns, supra, 43 Conn. App. 271. “The effect of an absolute privilege is that damages cannot be recovered for a defamatory statement even if it is published falsely and maliciously. . . . The policy underlying the privilege is that in certain situations the public interest in having people speak freely outweighs the risk that individuals will occasionally abuse the privilege by making false and malicious statements.

“The judicial proceeding to which [absolute] immunity attaches has not been defined very exactly. It includes any hearing before a tribunal which performs a judicial function, ex parte or otherwise, and whether the hearing is public or not. ... It extends also to the proceedings of many administrative officers, such as boards and commissions, so far as they have powers of discretion in applying the law to the facts which are regarded as judicial or quasi-judicial, in character.” (Citations omitted; internal quotation marks omitted.) Petyan v. Ellis, 200 Conn. 243, 246, 510 A.2d 1337 (1986). “There is, of course, no really effective civil remedy against perjurers; that lack is simply part of the price that is paid for witnesses who are free from intimidation by the possibility of civil liability for what they say. . . . The common law absolute privilege itself is not confined to the testimony of a witness but extends to any statement made in the course of a judicial proceeding, whether or not given under oath, so long as it is pertinent to the controversy. . . . Thus it applies to statements made in pleadings or other documents prepared in connection with a court proceeding.” (Citations omitted; internal quotation marks omitted.) Id., 251-52.

We conclude that here the court properly concluded that the arbitration was a quasi-judicial proceeding. The arbitrator was an impartial decision maker who performed a judicial function by holding hearings where the parties argued their cases and presented witnesses and evidence. The parties agreed that the arbitrator had the power of discretion in applying the law to the facts and in rendering a final award. By statute, the arbitrator had the power to subpoena witnesses and to provide formal notice to the parties and was given the time necessary to render awards. General Statutes §§ 52-411 to 52-416. Although not required to do so by the collective bargaining agreement, the witnesses testified under oath. Furthermore, by statute, either party could appeal to the trial court to request an order confirming the arbitrator’s award or to vacate, modify or correct the award. General Statutes §§ 52-418 and 52-419. On the basis of the foregoing, we conclude that the arbitrator possessed the authority to conduct proceedings of a quasi-judicial nature.

Notwithstanding the plaintiffs argument to the contrary, we need not specifically find that the sixth prong of Field v. Kearns, supra, 43 Conn. App. 272 — whether decision-making body has the power to enforce decisions or impose penalties — was fulfilled in this case. The Field decision merely lists the principal factors to be considered, but it does not state that all of the factors have to be satisfied to find that a proceeding is quasi-judicial. See id., 271-72; see also Thomas v. Petrulis, 125 Ill. App. 3d 415, 420, 465 N.E.2d 1059 (1984) (“quasi-judicial body need not possess all six powers”).

All of the defendant’s statements underlying the plaintiff’s 1997 libel and slander claims allegedly were made before and during the arbitration hearing. All of these statements were made either to the employer or to the arbitrator and were made in preparation for or during the arbitration hearing. Moreover, the statements were obviously pertinent to the purpose of the hearing regarding the termination of the plaintiffs employment, which was supported in part by his behavior toward the defendant. The dictates of public policy require that a witness involved in an arbitration proceeding regarding the fitness of a prosecutor be able to state candidly her reasons for complaining about the prosecutor as long as the statement bears a reasonable relation to the purpose of the proceeding. See, e.g., Pelyan v. Ellis, supra, 200 Conn. 250-51. Moreover, permitting absolute immunity in such a situation furthers the policy underlying the privilege “that in certain situations the public interest in having people speak freely outweighs the risk that individuals will occasionally abuse the privilege by making false and malicious statements.” (Internal quotation marks omitted.) Id., 246.

The plaintiff argues that we should draw a distinction in this case between purely private labor arbitration and the actions of public administrative officers or bodies; see Field v. Kearns, supra, 43 Conn. App. 272; when reaching the conclusion that the arbitration in this case was a quasi-judicial proceeding entitled to absolute immunity. We are not persuaded for several reasons.

First, our legislature has enacted a number of statutes; see, e.g., General Statutes §§ 52-417 et seq. and 52-549z; that allow arbitration awards to be converted into judgments of the court. These statutes evince the legislature’s approval of the arbitration process, in general, as an efficient form of alternate dispute resolution, which avoids the cost to the parties and the public of a formal trial. See Nunno v. Wixner, 257 Conn. 671, 682-83, 778 A.2d 145 (2001). If witnesses in arbitration proceedings were not afforded the protection of absolute immunity, as in more formal judicial proceedings, arbitration no longer would be seen as a desirable alternative form of dispute resolution.

Second, this case does not present us with a purely private labor arbitration. It is something of a hybrid in that a state agency, the division of criminal justice, and the plaintiffs union submitted the plaintiffs grievance to binding arbitration pursuant to the terms of a collective bargaining agreement. The plaintiffs argument fails to acknowledge the significance of the State Employee Relations Act; General Statutes §§ 5-270 to 5-280; in the present situation. The act authorizes the use of employee organizations for the purpose of negotiations between the state and its employees, and the creation of collective bargaining agreements for state employees. See General Statutes §§ 5-271, 5-276 and 5-276a. The act also contemplates the use of arbitration for resolving contract disputes between the state and employee organizations. General Statutes § 5-276. Collective bargaining agreements, such as the one in this case, are to be reduced to writing and submitted to the General Assembly for approval. General Statutes § 5-278 (b). Where, as here, an agency enters into an agreement on behalf of the state and our legislature has not expressed disapproval of the terms of the agreement, we do not agree with the plaintiff that the matter involves a matter of purely private labor arbitration. See General Statutes § 5-278 (b) (agreement deemed approved if not rejected by General Assembly within thirty days after submission).

Ill

The plaintiff claims that even if the defendant’s testimony during the hearing was entitled to absolute immunity, the court improperly concluded that the statements and actions of the defendant made before arbitration were entitled to absolute immunity. We do not agree. Our resolution of the plaintiffs second claim resolves this claim because we concluded that the court properly found that the defendant’s statements made before the arbitration hearings were made in preparation for the hearing and therefore were entitled to absolute immunity as part of a quasi-judicial proceeding.

IV

The plaintiffs final claim is that the court improperly denied his motion to seal portions of the file. He argues that the court improperly permitted the defendant to attach to her motion for summary judgment an assistant state’s attorney’s affidavit containing information that was erased by operation of law, which thus constituted a prohibited disclosure. We do not agree.

The following additional facts are relevant to this claim. The affidavit of the assistant state’s attorney referenced exhibits A and B, which were the agreement and arbitration award, respectively. Thereafter, the plaintiff filed a motion to seal portions of the file pursuant to Practice Book § 11-20 (b), claiming that the attached award should be sealed because it contained information that had been previously erased pursuant to General Statutes § 54-142a and prohibited from disclosure. Specifically, the plaintiff claimed that the arbitrator’s reference to the criminal charges that arose as a result of the defendant’s complaints was improper. With regard to the criminal charges, the plaintiff had accepted accelerated rehabilitation. The court denied the plaintiffs motion. In an articulation of its decision on the motion to seal portions of the file, the court first found that an affidavit executed by the assistant state’s attorney contained no reference to any information previously erased in accordance with § 54-142a. The court further stated that “[t]he document to which the plaintiff is presumably referring is the arbitration opinion and award, not written by [the assistant state’s attorney], but included in the submissions to the court in conjunction with the motion for summary judgment. The plaintiff appealed this award to the Superior Court, the award was affirmed, [Preston v. State Division of Criminal Justice, supra, Superior Court, Docket No. 572637] and he then appealed to the Appellate Court, which also affirmed the award, [Preston v. State Division of Criminal Justice, supra, 60 Conn. App. 853]. The court notes that this award has not been sealed in any other proceedings before the Superior or Appellate Court. Accordingly, there is no reason to seal the award in this action.”

We review a court’s denial of a motion to seal on the basis of whether it is an abuse of discretion. “Practice Book § 11-20 (b) permits a trial court to order that files, affidavits, documents or other materials on file with the court be sealed or their disclosure limited if the court concludes that such order is necessary to preserve an interest which is determined to override the public’s interest in attending such proceeding or in viewing such materials. Any such order shall be no broader than necessary to protect such overriding interest.” (Internal quotation marks omitted.) Doe v. Hartford Roman Catholic Diocesan Corp., 51 Conn. App. 287, 290-91, 721 A.2d 154 (1998).

General Statutes § 54-56e permits a court to grant accelerated pretrial rehabilitation and to require that an accused perform probation conditions. If the accused performs the probation conditions as required by the court, then the charges may be dismissed and shall be erased pursuant to § 54-142a. Section 54-142a (a) provides in part that “[w]henever in any criminal case, on or after October 1, 1969, the accused, by a final judgment, is found not guilty of the charge or the charge is dismissed, all police and court records and records of any state’s attorney pertaining to such charge shall be erased upon the expiration of the time to file a writ of error or take an appeal . . . .” Section 54-142a (e) provides in part that “any law enforcement agency having information contained in such erased records shall not disclose to anyone . . . information pertaining to any charge erased under any provision of this section

We conclude that the court did not abuse its discretion when it denied the plaintiffs motion to seal. The court’s factual findings, which were not challenged on appeal, are essentially that the arbitrator’s award that the plaintiff sought to seal was not a representation made by the assistant state’s attorney, rather it was the ruling of the arbitrator, which was one of the documents submitted with the summary judgment motion. Furthermore, the court noted that the defendant failed to ask that portions of the file be sealed in prior proceedings. We therefore conclude that the court did not abuse its discretion in declining to seal the arbitration award because it was already in the public domain.

The judgment is affirmed.

In this opinion the other judges concurred.

       With respect to the defendant’s 1994 statements, the court also concluded that all of the plaintiffs claims were time barred by the applicable statute of limitations. The plaintiff does not challenge that conclusion of the trial court. We limit our review, therefore, to the plaintiffs claims regarding the defendant’s statements made before and during the arbitration proceedings in 1997.

       The plaintiff does not challenge the subject matter jurisdiction of the trial court here, but rather that of the arbitrator in the previous cause of action.

       General Statutes § 51-278b (b) provides: “No deputy chief state’s attorney, state’s attorney, assistant state’s attorney or deputy assistant state’s attorney may be removed from office except by order of the Criminal Justice Commission after due notice and hearing. A recommendation for removal from office may be initiated by the Chief State’s Attorney or the appropriate state’s attorney.”

       In the award, the arbitrator stated: “The oath was administered to all who testified . . .

       The plaintiff attempts to label the defendant as the complaining witness who initiated the arbitration proceedings in which she made the allegedly defamatory statements. On the contrary, it was the plaintiff, through his union, who initiated the arbitration process. In similar situations, courts have held that statements made in investigations of employee claims were not actionable defamation under a theory that the employee had impliedly consented to publication. Ernst v. Indiana Bell Telephone Co., 475 N.E.2d 351, 355 (Ind. App. 1985) (“[o]ne who agrees to submit his conduct to investigation knowing that its results will be published consents to that publication”). We neednot determine whether a theory of consentto publication should apply in this case, however, given our determination that the defendant’s statements are protected by absolute immunity.

       The parties argue whether comirmnications made in the course of grievance or arbitration proceedings provided for by collective bargaining agreements should be accorded absolute or only qualified immunity. We recognize the existence of a split in authority on this issue, but we believe that the better result is the protection of absolute immunity. See Hope v. National Alliance of Postal & Federal Employees, 649 So. 2d 897, 900 (Fla. App. 1995) (holding statements made during course of grievance procedure absolutely privileged); Bushell v. Caterpillar, Inc., 291 Ill. App. 3d 559, 683 N.E.2d 1286 (1997) (holding arbitration quasi-judicial proceeding and statements made therein absolutely privileged); Neece v. Kantu, 84 N.M. 700, 705-706, 507 P.2d 447 (N.M. App.) (holding absolutely privileged statements made during course of labor grievance arbitration proceedings), cert, denied sub nom. Ritschel v. Neece, 84 N.M. 696, 507 P.2d 443 (1973).

       We note that the collective bargaining agreement recognizes one of the parties to the agreement as the “State of Connecticut, acting by and through the Connecticut Division of Criminal Justice.”

       Practice Book § 11-20 (b) provides: “Upon motion of any party, or upon its own motion, the judicial authority may order that the public be excluded from any portion of a proceeding and may order that files, affidavits, documents or other materials on file with the court or filed in connection with a court proceeding be sealed or their disclosure limited if the judicial authority concludes that such order is necessary to preserve an interest which is determined to override the public’s interest in attending such proceeding or in viewing such materials. Any such order shall be no broader than necessary to protect such overriding interest.”

       General Statutes § 54-142a provides in relevant part: “(a) Whenever in any criminal case, on or after October 1, 1969, the accused, by a final judgment, is found not guilty of the charge or the charge is dismissed, all police and court records and records of any state’s attorney pertaining to such charge shall be erased upon the expiration of the time to file a writ of error or take an appeal .... #
      “(e) . . . [A]ny law enforcement agency having information contained in such erased records shall not disclose to anyone . . . information pertaining to any charge erased under any provision of this section . . . .”


source: Caselaw Access Project

author: SCHALLER, J.

license: Public Domain

text:
    FREDERICK W. DETAR v. COAST VENTURE XXVX, INC.
    (AC 22189)
    Foti, Schaller and West, Js.
    Submitted on briefs September 16
    officially released December 24, 2002

      Thomas V. Battaglia, Jr., filed a brief for the appellant (defendant).

      Bernard Green filed a brief for the appellee (plaintiff).
   Opinion

SCHALLER, J.

The defendant, Coast Venture XXVX, Inc., appeals from the judgment, rendered after a trial to the court, in favor of the plaintiff, Frederick W. Detar. On appeal, the defendant claims that the court (1) improperly concluded that the liquidated damages clause of the underlying contract was inapplicable under the circumstances of this case and (2) incorrectly calculated the damages it awarded to the plaintiff. We agree and reverse, in part, the judgment of the court.

The following facts and procedural history are relevant to our resolution of the defendant’s appeal. In July, 1995, the plaintiff and the defendant entered into a contract for the purchase and sale of a condominium in Stratford for $165,000. At that time, the plaintiff paid $1650 for a binder on the property and an additional $16,500 as a deposit. Subsequent to signing the contract, the plaintiff obtained a mortgage commitment and paid a mortgage commitment fee of $1485.

The parties established December 31, 1995, as the original closing date. The defendant requested and the plaintiff agreed to postpone the closing date until January 31,1996. The closing date was delayed several additional times, during which period the plaintiffs original mortgage commitment expired, requiring the plaintiff to pay an additional $1485 fee for a new mortgage commitment. In October, 1996, the plaintiff received a letter from the defendant’s representative, indicating that the defendant was terminating the sale contract and would not convey title to the plaintiff.

The plaintiff initiated this action in February, 1997, and the case was tried before an attorney trial referee (referee). The referee found that the defendant had breached the sale contract and awarded the plaintiff damages totaling $67,313. The defendant objected to the referee’s findings, and the court subsequently rejected those findings and ordered a new trial.

The parties stipulated that the testimony and exhibits presented in the trial before the referee would constitute the evidence before the court. In its memorandum of decision, the court found that the liquidated damages provision of the sale contract was inapplicable to the facts of this case. The court further found that the defendant had breached the contract and awarded the plaintiff damages in the amount of $41,970 together with interest at a rate of 10 percent per year from the date of the breach. The award of damages included $16,500 for the amount the plaintiff paid as the deposit, $2970 for the amount the plaintiff paid as the two mortgage commitment fees and $22,500 for the amount the plaintiff lost as a result of having to sell his residence to satisfy his mortgage commitment. This appeal followed.

I

The defendant first claims that the court improperly found that the liquidated damages provision of the underlying contract was inapplicable under the circumstances of the present case. We agree.

The following additional facts are relevant to the defendant’s claim. The sale contract between the parties included a liquidated damages clause, which provided in relevant part: “If the SELLER for any reason whatsoever, including construction delays, shall fail or be unable to convey title or perform its obligations hereunder, the sole and exclusive liability that SELLER shall have as a result of such default shall be to refund to PURCHASER all monies paid hereunder together with liquidated damages in the amount of $1,000 and the recovery of such monies and liquidated damage amount shall be the sole and exclusive remedy of the PURCHASER for such default. PURCHASER hereby covenants and agrees that he will not commence any legal and/or equitable action in the event of such a default by SELLER beyond that to seek the recovery of such monies and liquidated damage amount.”

The court construed the liquidated damages clause as applying only if the defendant were unable to perform the contract and not if the defendant were unwilling to perform it. The court found that the defendant was unwilling to perform the contract for personal reasons and therefore ruled that the liquidated damages clause did not apply to the defendant’s breach.

The defendant argues that the court should have found the liquidated damages clause applicable even though it found that the defendant had breached the contract because of its unwillingness to perform. The plaintiff argues, however, that the court properly ruled that the clause did not apply. The plaintiff states that the clause clearly “does not provide for liquidated damages where the termination of the contract was wilful, flagrant and for no proper reason . . . .”

The defendant’s claim raises an issue of contract interpretation, for which our standard of review is well established. “[W]here there is definitive contract language, the determination of what the parties intended by their contractual commitments is a question of law. . . . Because a question of law is presented, review of the trial court’s ruling is plenary, and this court must determine whether the trial court’s conclusions are legally and logically correct, and whether they find support in the facts appearing in the record.” (Citation omitted; internal quotation marks omitted.) Berlin v. Nobel Ins. Co., 60 Conn. App. 56, 61, 758 A.2d 436 (2000).

“[T]he intent of the parties [to a contract] is to be ascertained by a fair and reasonable construction of the written words and . . . the language used must be accorded its common, natural, and ordinary meaning and usage where it can be sensibly applied to the subject matter of the contract. . . . Where the language of the contract is clear and unambiguous, the contract is to be given effect according to its terms. A court will not torture words to import ambiguity where the ordinary meaning leaves no room for ambiguity . . . .” (Internal quotation marks omitted.) Tallmadge Bros., Inc. v. Iroquois Gas Transmission System, L.P., 252 Conn. 479, 498, 746 A.2d 1277 (2000). “[C]ourts do not unmake bargains unwisely made. Absent other infirmities, bargains moved on calculated considerations, and whether provident or improvident, are entitled nevertheless to sanctions of the law. . . . Although parties might prefer to have the court decide the plain effect of their contract contrary to the agreement, it is not within its power to make a new and different agreement . . . .” (Internal quotation marks omitted.) Id., 505-506.

We conclude that the court’s interpretation of the liquidated damages clause conflicts with its unambiguous and unequivocal language. The liquidated damages clause plainly states that it applies if the defendant “for any reason whatsoever, including construction delays, shall fail or be unable to convey title or perform Us obligations’'’ under the contract. (Emphasis added.) Nowhere does the contract limit the liquidated damages provision as the court concluded. Accordingly, the court improperly held that the provision was applicable only in those cases in which the defendant was unable, rather than unwilling, to perform the contract.

II

The defendant next claims that the court improperly calculated the damages it awarded to the plaintiff. We agree.

As stated in part I, the court improperly found that the liquidated damages clause of the sale contract was inapplicable. The unambiguous language of that clause provides that the damages recoverable for the defendant’s breach are limited to the return of any money already paid, plus $1000 in liquidated damages. The court, in awarding the plaintiff damages totaling $41,970, exceeded the terms agreed on by the parties in their contract. Accordingly, the court improperly calculated the damages.

The judgment is reversed only as to the award of damages and the case is remanded with direction to calculate the award of damages in accordance with the liquidated damages provision of the parties’ contract.

In this opinion the other judges concurred.


author: DUPONT, J.

text:
    KATHERINE LENARES v. MICHAEL MIANO
    (AC 22503)
    Lavery, C. J., and Foti and Dupont, Js.
    Submitted on briefs October 31-
    officially released December 24, 2002

      Benjamin T. Staskiewicz filed a brief for the appellant (plaintiff).

      Sebastian S. Ciarcia filed a brief for the appellee (defendant).
   Opinion

DUPONT, J.

The plaintiff, Katherine Leñares, appeals from the judgment of the trial court rendered in favor of the defendant, Michael Miaño. On appeal, the plaintiff claims that the court improperly (1) modified the attorney trial referee’s (referee) findings of fact by concluding that the plaintiffs loan to the defendant was in the nature of a demand note, (2) concluded that the six year statute of limitations had expired and (3) denied the plaintiffs motion to reargue. We agree with the plaintiff and reverse the judgment of the trial court.

The plaintiff commenced this action on October 23, 2000, alleging that the defendant had breached an oral loan agreement in the amount of $8000 by his refusal to repay the loan. In response, the defendant asserted the special defenses of laches and the statute of limitations.

A trial was held before the referee, who found that on December 23, 1993, the plaintiff had a bank check in the amount of $8000 made payable to the defendant, with a notation thereon stating, “[l]oan from Katherine Leñares.” The referee also found that the loan agreement was an oral loan, that the defendant had cashed the check and that the loan was payable on demand by the plaintiff “when she needed the money.”

The referee concluded that the applicable statute of limitations is that set forth in General Statutes § 52-576, which allows for an action on a simple or implied contract to be brought within six years after the right of action accrues. The referee concluded that the statute of limitations began to run at the time that demand for payment was made in July, 1997. On the basis of that conclusion, the referee found that the statute of limitations had not expired, and that the defendant was hable for repayment of the $8000 loan and for interest on that amount pursuant to General Statutes § 37-3a on that amount, from the date of the plaintiffs demand for payment, as well as statutory interest on her offer of judgment pursuant to General Statutes § 52-192a. The referee’s report concluded that judgment should enter for the plaintiff in the amount of $11,189.

The defendant subsequently filed an objection to the referee’s findings of fact and conclusions of law. Specifically, the defendant challenged the conclusion as to the time that the applicable statute of limitations began to run. The court sustained the objection, stating that the referee “erred in his conclusion of law. This was a fully executed demand note, and the six year statute of limitations had expired.” The court thus concluded that the statute of limitations began to run at the time that the loan was made, rather than at the time the plaintiff sought payment. This appeal followed.

I

We first address the plaintiffs claim that the court improperly modified the referee’s findings of fact. Although we disagree with the plaintiff that the court modified the findings of fact, we conclude that the court drew an improper conclusion from those facts.

The plaintiff contrasts the referee’s finding that “[t]he loan arrangement between the parties was an oral loan contract fully executed on the part of the plaintiff [and] said loan was payable on demand by the plaintiff ‘when she needed the money’,” to the reviewing court’s statement that the loan was in the form of a “fully executed demand note.” We disagree with the plaintiff that those statements represent conflicting findings of fact. Rather, they are conflicting statements of law.

The relevant findings of fact submitted to the court were that (1) on December 23, 1993, the plaintiff had a bank check in the amount of $8000 made payable to the defendant, (2) that check contained a handwritten notation that read “[l]oan from Katherine Leñares,” (3) the loan was made pursuant to an oral agreement that the defendant would pay the loan back on the plaintiffs demand for payment; and (4) the loan was fully executed by the plaintiff. The reviewing court did not reject any of those findings. Rather, on the basis of those findings, the court concluded that “[t]his was a fully executed demand note, and the six year statute of limitations had expired.” In characterizing the claim as one involving a demand note, the court actually was drawing a conclusion of law from the subordinate facts found by the referee. Because the court relied on that legal conclusion in applying the relevant statute of limitations to the plaintiffs claim, we next turn to whether that conclusion was correct.

II

A

In concluding that the statute of limitations began to ran on the plaintiffs claim at the time that the loan to the defendant was made rather than at the time that the plaintiff demanded payment, the court relied on its conclusion that the subject matter of the action involved a demand note. Therefore, before we address the court’s application of the statute of limitations, we must determine whether its characterization of the action as involving a demand note was correct. “When . . . the trial court draws conclusions of law, our review is plenary and we must decide whether its conclusions are legally and logically correct and find support in the facts that appear in the record.” (Internal quotation marks omitted.) Johnson Electric Co. v. Salce Contracting Associates, Inc., 72 Conn. App. 342, 344, 805 A.2d 735, cert. denied, 262 Conn. 922, 812 A.2d 864 (2002).

A negotiable instrument, whether a draft or a note, must be a writing. The only written instrument involved in the present case is the check by which the plaintiff made payment to the defendant. Under the Uniform Commercial Code, as enacted by our legislature, a check is not a note at all, but rather it is defined as a specific type of draft, i.e., one that is drawn on a bank and payable on demand by the payee. See General Statutes § 42a-3-104 (f) and accompanying comments. By contrast, a note is defined as a written promise to pay a sum certain on demand or at a definite time. See General Statutes § 42a-3-104 (e) and accompanying comments. “Although drafts or checks and notes have many similarities and perform substantially like functions in many commercial transactions, the basic difference between the two classes of paper is that a draft or check is an order to pay money, whereas a note is a promise or undertaking to pay money. . . . [W]hen a draft is accepted by the drawee or payor, that is, the person on whom the order is drawn, it becomes in effect a promissory note of the drawee or payor, the acceptance is the drawee’s signed agreement to pay the draft as presented.” (Emphasis added.) 11 Am. Jur. 2d, Bills and Notes § 46 (1997).

It is clear from the foregoing that the check, by which the proceeds of the loan were delivered to the defendant, was not a demand note. Nor do we consider the mere notation on the subject line of the check, indicating that it was for a loan, a promise by the defendant to pay sufficient to transform the instrument into a demand note. In determining whether an instrument is a note promising payment, General Statutes § 42a-3-103 (9) makes it clear that “[a]n acknowledgement of an obligation by the obligor is not a promise unless the obligor also undertakes to pay the obligation.” In an action on the contract, the check, as the instrument by which the loan proceeds were delivered, is nothing more than physical evidence that the plaintiff did in fact deliver the money to the defendant. It also may be considered as evidence that the proceeds of the check were to be a loan rather than, for example, a gift. Whatever its probative value in determining the conditions of the oral contract between the parties, however, the check does not satisfy the statutory definition of a demand note.

A loan payable on demand is not a “demand note,” which refers to a writing containing an unconditional promise to pay a sum certain on demand. Such a note is typically provided to a lender as security for a loan. Nor is the check by which the proceeds of the loan were delivered a demand note. Far from being a promise by the borrower to repay the loan, that instrument was, in essence, the loan itself.

We conclude that the court’s conclusion that the action involved a demand note is not legally correct and is not supported in the facts that appear in the record.

B

We next consider whether, in light of the foregoing analysis, the court improperly determined that the cause of action accrued at the time that the loan was made and that, consequently, the statute of limitations had expired. Because the matter of whether a party’s claim is barred by the statute of limitations is a question of law, we review the plaintiffs claims de novo. Giulietti v. Giulietti, 65 Conn. App. 813, 833, 784 A.2d 905, cert. denied, 258 Conn. 946, 947, 788 A.2d 95, 96, 97 (2001).

Section 52-576 (a) provides that “[n]o action for an account, or on any simple or implied contract, or on any contract in writing, shall be brought but within six years after the right of action accrues . . . .” The court’s conclusion that the statute of limitations began to run at the time that the plaintiff delivered the check to the defendant was based on its conclusion that the subject matter of the action involved a demand note, rather than an oral contract. As we discussed in part II A, however, the controversy before the court did not involve a demand note.

The law concerning when a breach of contract action accrues is well settled. “[I]n an action for breach of contract . . . the cause of action is complete at the time the breach of contract occurs, that is, when the injury has been inflicted.” (Internal quotation marks omitted.) Tolbert v. Connecticut General Life Ins. Co., 257 Conn. 118, 124, 778 A.2d 1 (2001).

Here, the breach occurred and the injury was inflicted on the plaintiff when her demand for payment was rejected by the defendant. The referee found that the plaintiff had made demand for payment, at the earliest, in July, 1997. Accordingly, pursuant to the six year statute of limitations provided for by § 52-576, the plaintiff had until July, 2003, to bring the present action. Because the plaintiff filed the complaint on October 25, 2000, her action was timely.

The referee was entrusted with finding facts. He determined, as was his function, that interest was an element of the plaintiffs damages and that prejudgment interest pursuant to § 37-3a should be awarded from the date the plaintiff sought payment. See Flynn v. Kaumeyer, 67 Conn. App. 100, 787 A.2d 37 (2001); Paulus v. LaSala, 56 Conn. App. 139, 742 A.2d 379 (1999), cert. denied, 252 Conn. 928, 746 A.2d 789 (2000). In this case, the interest due pursuant to § 52-192a (b) runs from the date of the filing of the complaint. The referee recommended that interest run from October 25, 2000, the date of the filing of the complaint, to August 21, 2001, the date of his report. The referee concluded that interest pursuant to § 37-3a equaled $2400, interest pursuant to § 52-192a equaled $789 and recommended that judgment be rendered in the amount of $11,189. The plaintiff thereafter filed a motion for judgment in accordance with the referee’s report, and the defendant objected. No objection was made on the ground that the interest was calculated improperly.

The judgment is reversed and the case is remanded with direction to render judgment in favor of the plaintiff in the amount of $8000, plus interest pursuant to § 37-3a from the date the plaintiff sought payment, plus interest pursuant to § 52-192a (b) from the date of the filing of the plaintiffs complaint.

In this opinion the other judges concurred.

       because the plaintiffs first two claims are dispositive, we need not address the plaintiffs third claim.

       General Statutes § 52-576 (a) provides in relevant part: “No action for an account, or on any simple or implied contract, or on any contract in writing, shall be brought but within six years after the right of action accrues . . . .”

       General Statutes § 52-192a (b) provides in relevant part: “If the court ascertains from the record that the plaintiff has recovered an amount equal to or greater than the sum certain stated in his ‘offer of judgment’, the court shall add to the amount so recovered twelve per cent annual interest on said amount . . . computed from the date the complaint in the civil action was filed with the court if the ‘offer of judgment’ was filed not later than eighteen months from the filing of such complaint. . . .”

       General Statutes § 42a-3-104 and the accompanying comments provide that any writing may be a negotiable instrument if it (1) contains an unconditional promise or order to pay a sum certain in money and no other promise, order, obligation or power given by the maker or drawer except as otherwise authorized, (2) is payable on demand or at a definite time and (3) is payable to order or to bearer. A negotiable instrument is a draft if it is an order (to pay) and it is a check if it is a draft drawn on a bank. By contrast, a negotiable instrument is a note if it is a promise to pay, rather than an order. A demand note is, as it name indicates, a promise to pay on the demand of the promisee.


text:
    STATE OF CONNECTICUT v. ISAAC EAGLES
    (AC 21376)
    Flynn, West and Hennessy, Js.
    Argued October 18
    officially released December 31, 2002

      Damon A. R. Kirschbaum, for the appellant (defendant).

      Robin S. Schwartz, deputy assistant state’s attorney, with whom, on the brief, were Jonathan C. Benedict, state’s attorney, and Cornelius P. Kelly, assistant state’s attorney, for the appellee (state).
   Opinion

FLYNN, J.

The defendant, Isaac Eagles, appeals from the judgment of conviction, rendered after a jury trial, of one count of robbery in the first degree in violation of General Statutes § 53a-134 (a) (4), one count of attempt to commit murder in violation General Statutes §§ 53a-49 (a) (2) and 53a-54a (a), and one count of assault in the first degree in violation of General Statutes § 53a-59 (a) (5). On appeal, the defendant claims that the trial court improperly prohibited him from presenting evidence of third party culpability. We dismiss the defendant’s appeal from the judgment of conviction of robbery in the first degree and affirm the judgment of conviction of attempt to commit murder and assault in the first degree.

At the outset, we note that the defendant was convicted of robbery in the first degree under a separate information in docket number CR99-0148153. That information was consolidated for trial with docket number CR99-0148154, which charged the defendant with attempt to commit murder and assault in the first degree. On November 2, 2000, the defendant appealed from the judgments of conviction on all charges.

The defendant has not briefed any issues relating to the robbery conviction, as our rules require. Practice Book § 67-4 provides in detail the requirements for the brief of an appellant, including a statement of issues, a statement of facts and argument for each appeal. The defendant’s brief addresses only his conviction of attempt to commit murder and assault in the first degree. In reciting the facts of the case in his brief, the defendant states that the “facts of case CR99-148153 are not relevant to the issue in this appeal.” Furthermore, in the argument section of his brief, the defendant indicates that his “claim relates to the case wherein the defendant was charged with, and convicted of, attempt to commit murder and assault in the first degree for shooting [the victim] in the face.” The defendant has failed to provide any issue, facts or argument supporting his appeal from his robbery conviction. Accordingly, we dismiss the defendant’s appeal from his robbery conviction.

We next address the judgment of conviction of attempt to commit murder and assault in the first degree, which were briefed. The jury could have reasonably found the following facts. On March 13, 1999, the victim, Owen Wright, was entering his apartment building at 1157 Stratford Avenue in Bridgeport. The building is on the comer of Stratford Avenue and Sixth Street. There is a side entrance on Sixth Street that leads to the second and third floor apartments. There is also a front entrance on Stratford Avenue. The defendant approached the victim as he was entering the Sixth Street side entrance and attempted to sell him a telephone. The victim declined the defendant’s offer.

At that time, the victim was inside the doorway and the defendant was at the entrance. The defendant then fired one shot into the victim’s face. The bullet entered the right side of his face and lodged itself in his left cheekbone. There was no exit wound. During the subsequent police investigation, a single shell casing was found inside the side entrance doorway of 1157 Strat-ford Avenue together with pieces of teeth and surrounding gum.

After being shot, the victim ran up the stairs to his apartment on the second floor. He then proceeded back down the stairs, exiting the building from the front entrance on Stratford Avenue. The victim walked to the side of the building where he had been shot, noticed the defendant and yelled at him. On direct examination, the victim testified that he yelled, “Hey, you just robbed me,” but on cross-examination, he testified that he shouted, “Yo, he just shot me.” The defendant ran away and the victim waited on the curb until the police arrived. A blood trail was left by the victim from his travels through the building after he was shot. He was taken to Bridgeport Hospital where he was treated for his injuries.

The defendant’s sole claim on appeal is that the court improperly refused to allow him to present evidence of third party culpability in violation of his right to present a defense under the fifth, sixth and fourteenth amendments to the United States constitution and article first, § 8, of the constitution of Connecticut.

Although the defendant frames the appellate issue as one of a constitutional violation, our ultimate conclusion turns on evidentiary grounds. Our Supreme Court has stated that the defendant’s constitutional right to present a defense “does not require the trial court to forgo completely restraints on the admissibility of evidence. . . . Generally, an accused must comply with established rules of procedure and evidence in exercising his right to present a defense. ... A defendant, therefore, may introduce only relevant evidence, and, if the proffered evidence is not relevant, its exclusion is proper and the defendant’s right is not violated.” (Citations omitted.) State v. Cerreta, 260 Conn. 251, 261, 796 A.2d 1176 (2002).

The defendant proposed to call two witnesses, Lakesha Tyson and Shawn Thompson, to establish a defense that a third party shot the victim while more than one person attempted to rob him. In an offer of proof, both Tyson and Thompson testified about then-observations of the events of March 13, 1999.

We first note the neither Tyson nor Thompson saw any robbery or shooting of the victim. Tyson testified that she heard two or three gunshots as she walked up Newfield Avenue toward Stratford Avenue that afternoon and shortly thereafter saw the victim outside the building. However, she was unable to tell where the gunshots originated from. After she heard the gunshots, Tyson observed three men running, but was unsure whether they ran from the door leading to the apartments or from the liquor store next door. These men ran past her and none of the men were carrying guns. Tyson was uncertain how long after the gunshots were fired that she saw the men running. She also did not know the reason the men ran from 1157 Stratford Avenue. Tyson further testified that after the men ran by her, she observed that the victim was outside on the curb and made a statement about being robbed. Tyson was unable to state whether the victim had said “they” or “he” robbed him.

Thompson testified in his offer of proof that he witnessed three men run from the side entrance of 1157 Stratford Avenue and down Newfield Avenue. He, however, did not hear any gunshots fired. The court barred both Thompson and Tyson from testifying because their proposed testimony failed to provide a direct connection between the three men and the victim’s shooting, thus making their testimony irrelevant. On appeal, the defendant argues that the court abused its discretion in prohibiting Tyson and Thompson from testifying.

We note at the outset that a defendant has “the right to present a defense, the right to present the defendant’s version of the facts as well as the prosecution’s to the juiy so that it may decide where the truth lies.” (Internal quotation marks omitted.) Id., 261. In exercising his constitutional right to present a defense, “a defendant may introduce evidence which indicates that a third party, and not the defendant, committed the crime with which the defendant is charged. . . . The defendant, however, must show some evidence which directly connects a third party to the crime with which the defendant is charged. ... It is not enough to show that another had the motive to commit the crime . . . nor is it enough to raise a bare suspicion that some other person may have committed the crime of which the defendant is accused.” (Internal quotation marks omitted.) State v. Ferguson, 260 Conn. 339, 354, 796 A.2d 1118 (2002). “Unless that direct connection exists it is within the sound discretion of the trial court to refuse to admit such evidence when it simply affords a possible ground of possible suspicion against another person.” (Internal quotation marks omitted.) State v. Baker, 50 Conn. App. 268, 279, 718 A.2d 450, cert. denied, 247 Conn. 937, 722 A.2d 1216 (1998).

“The admissibility of evidence of third party culpability is governed by the rules relating to relevancy. . . . No precise and universal test of relevancy is furnished by the law, and the question must be determined in each case according to the teachings of reason and judicial experience. . . . The trial court has wide discretion in its rulings on evidence and its rulings will be reversed only if the court has abused its discretion or an injustice appears to have been done.” (Internal quotation marks omitted.) State v. Rivera, 70 Conn. App. 203, 211, 797 A.2d 586, cert. denied, 261 Conn. 910, 806 A.2d 50 (2002).

We conclude that the court properly determined that the proffered testimony of Tyson and Thompson did not provide a direct connection between a third party and the attempted murder and assault of the victim. Tyson’s testimony would have shown only that three men were seen running from the vicinity of the crime after gunshots were fired, none of whom was the defendant. The victim had but one bullet wound from a round that is still lodged in his body. Tyson’s inability to recollect the origin of the gunshots, the entrance of 1157 Stratford Avenue that the men ran from, and the time lapse between the shots and the men’s flight, coupled with the fact that the three men were not carrying guns, leaves the necessary direct connection between the men and the victim’s shooting extremely speculative.

Furthermore, Thompson’s testimony would have shown only that three men were seen running from the side entrance of 1157 Stratford Avenue in the absence of any gunshots. The fact that three men ran from the vicinity of the gunfire does not provide the necessary direct connection between those men and the victim’s shooting. Rather, the testimony of Tyson and Thompson merely provides a bare suspicion that one or all of the men committed the attempted murder and assault of the victim on March 13, 1999. In contrast to the proffered testimony, substantial evidence was adduced at trial identifying the defendant, and not the other men seen in the neighborhood, as the victim’s assailant. From a pretrial photographic array and in court at trial, the victim identified one person, the defendant, as the individual who shot him.

The proffered evidence by the defendant amounts to “tenuous evidence of third party culpability in an attempt to divert from himself the evidence of guilt.” State v. Cerreta, supra, 260 Conn. 262. It does not indicate that one or all of the three men, instead of the defendant, had committed the charged offenses. See State v. Ortiz, 252 Conn. 533, 564-65, 747 A.2d 487 (2000); State v. Paris, 63 Conn. App. 284, 296, 775 A.2d 994 (no abuse of discretion in excluding third party culpability evidence because such evidence did not indicate third party, “instead of’ defendant, had committed crime), cert. denied, 257 Conn. 909, 782 A.2d 135 (2001).

Evidence that a third party who is alleged to be responsible looked like the defendant is highly relevant. See State v. Echols, 203 Conn. 385, 394, 524 A.2d 1143 (1987). However, there was no evidence that any of the three men seen running resembled the defendant. Although evidence of motive may be relevant to third party culpability if other connecting evidence exists, here there was no evidence of motive on the part of any of the three men to commit the crime. See State v. Hill, 196 Conn. 667, 674, 495 A.2d 699 (1985). The proponent of third party culpability evidence must demonstrate that the evidence is corroborative rather than merely coincidental for it to be admissible. State v. Baker, supra, 50 Conn. App. 278. Tyson gave testimony that it was a common occurrence for people to run when gunshots are fired. Because the defendant has failed to provide a direct connection between the three men and the commission of the charged crimes, we conclude that the trial court did not abuse its discretion in excluding the proffered evidence.

The appeal from the judgment of conviction of robbery in the first degree is dismissed. The judgment of conviction of attempt to commit murder and assault in the first degree is affirmed.

In this opinion the other judges concurred.

       The defendant was found guilty of criminal use of a firearm in violation of General Statutes § 53a-216 (a). The trial court dismissed that count after the defendant was found guilty.

       Tyson at one point testified that she saw the men running one minute to one and one-half minutes after the gunshots were fired. Later, she testified that she saw the men running immediately after she heard the gunshots.


author: LAVERY, C. J.

text:
    LEPAGE HOMES, INC. v. PLANNING AND ZONING COMMISSION OF THE TOWN OF SOUTHINGTON
    (AC 22370)
    Lavery, C. J., and Schaller and Drangmis, Js.
    Argued October 17
    officially released December 31, 2002

      Bridget C. Gallagher, with whom, on the brief, was LeAnne Baggetta, for the appellant (plaintiff).

      Marjorie S. Wilder, with whom was Julie A. Morgan, for the appellee (defendant).
   Opinion

LAVERY, C. J.

The plaintiff, LePage Homes, Inc., appeals from the judgments of the trial court, rendered in favor of the defendant, the planning and zoning commission of the town of Southington. On appeal, the plaintiff claims that the court improperly sustained the defendant’s denial of its resubdivision application. The defendant raises two jurisdictional issues as alternate grounds for sustaining the judgments. The defendant claims that the court improperly determined that the plaintiff was aggrieved. Additionally, the defendant claims that the plaintiff lacked standing to appeal from the denials. We conclude that the plaintiff is an aggrieved party with standing to appeal and therefore reject the defendant’s alternate grounds for affirming the judgments. With respect to the merits of the plaintiffs appeal, we affirm the judgments of the trial court.

The court found the following facts. On April 1, 2000, the plaintiff entered into an option contract to purchase a certain piece of land (Archacki property) located at the end of Nunzio Drive in Southington. Nunzio Drive, a road that measures 600 feet in length, terminates in a cul-de-sac. The plaintiff intended to use the proposed resubdivision to extend Nunzio Drive and connect it to property that it owned (LePage property) that abutted the Archacki property.

On July 24,2000, the plaintiff filed an application with the defendant, seeking approval for a resubdivision of the Archacki property. On July 26, 2000, the plaintiff applied for subdivision approval of the LePage property that would be connected to Nunzio Drive via the proposed resubdivision.

On August 15, 2000, the defendant held a public hearing during which several residents opposed the resubdi-vision. The defendant subsequently denied the plaintiffs application for the resubdivision of the Arch-acki property. The defendant, in a letter mailed to the plaintiff, listed six factors as the reasons for the denial: “(1) The roadway, Nunzio Drive, had been accepted as a permanent cul-de-sac and no stub was noted or designated for future development; (2) Nunzio Drive was completed and accepted as a permanent cul-de-sac road; (3) The residents had an expectation upon purchasing their property on Nunzio Drive that the character of their neighborhood would not change. Extending the roadway would change the character of the neighborhood; (4) The original developer of Nunzio Drive had no expectation of future development of Nun-zio Drive and no stub was ever noted to denote any further development; (5) There would be a safety issue at hand based upon the change in design of the roadway; and (6) Approval would result in the future creation of a non-conforming lot on the existing portion of Nunzio Drive.” The defendant also denied the plaintiffs application for the subdivision of the LePage property.

The plaintiff filed separate appeals to the trial court from the defendant’s denials of its resubdivision and subdivision applications. After the court made a factual determination that the plaintiff was aggrieved by the defendant’s denial of the resubdivision application, it addressed the reasons for the denial as articulated by the defendant. The plaintiffs proposed resubdivision would have increased Nunzio Drive to a length of 700 feet. The court found that the defendant properly classified Nunzio Drive as a permanent cul-de-sac, and therefore it was subject to a 600 foot limitation.

The court also noted that it was proper for the defendant to base the denial of the plaintiffs resubdivision application on safety concerns. The 600 foot maximum length for a permanent cul-de-sac ensured the safe ingress and egress of residents and emergency vehicles. The court dismissed both appeals, and this appeal followed. Additional facts will be set forth as necessary.

I

As an initial matter, we address the defendant’s alternate grounds for affirming the judgments because those grounds implicate the court’s subject matter jurisdiction. Specifically, the defendant claims that the court improperly found that the plaintiff proved that it was aggrieved by the denial of the resubdivision application. The defendant also argues that the plaintiff lacked standing because the owner of the Archacki property did not sign the resubdivision application. We disagree.

A

The defendant first claims that the plaintiff was not an aggrieved party. “The question of aggrievement is essentially one of standing. . . . The issue of standing invokes the trial court’s subject matter jurisdiction. . . . The issue cannot be waived.” (Citations omitted; internal quotation marks omitted.) Bethlehem Christian Fellowship, Inc. v. Planning & Zoning Commission, 58 Conn. App. 441, 443, 755 A.2d 249 (2000). To establish standing, the plaintiff was “required to plead and prove some injury in accordance with our rule on aggrievement.” (Internal quotation marks omitted.) Fuller v. Planning & Zoning Commission, 21 Conn. App. 340, 343, 573 A.2d 1222 (1990).

General Statutes § 8-8 (1) provides in relevant part that an “ ‘aggrieved person’ includes any person owning land that abuts or is within a radius of one hundred feet of any portion of the land involved in the decision of the board.” (Emphasis added.) Our Supreme Court has stated that such persons are considered “automatically aggrieved.” See Smith v. Planning & Zoning Board, 203 Conn. 317, 321, 524 A.2d 1128 (1987).

Before addressing the defendant’s arguments, we set forth the appropriate standard of review. “Aggrievement presents a question of fact for the trial court.” Fuller v. Planning & Zoning Commission, supra, 21 Conn. App. 343. “The scope of review of a trial court’s factual decision on appeal is limited to a determination of whether it is clearly erroneous in view of the evidence and pleadings. . . . Conclusions are not erroneous unless they violate law, logic or reason or are inconsistent with the subordinate facts.” (Internal quotation marks omitted.) R & R Pool & Home, Inc. v. Zoning Board of Appeals, 43 Conn. App. 563, 567, 684 A.2d 1207 (1996). “A finding of fact is clearly erroneous when there is no evidence in the record to support it ... or when although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed.” (Internal quotation marks omitted.) Lauver v. Planning & Zoning Commission, 60 Conn. App. 504, 509, 760 A.2d 513 (2000).

In the present case, the court heard evidence regarding the plaintiffs status as an aggrieved party. William D. LePage, the president of the plaintiff company, testified that the company owned the LePage property. Additionally, a certified copy of the deed to the LePage property and maps showing the relative positions of the Archacki and LePage properties with respect to Nunzio Drive were introduced into evidence. Collectively, that evidence established that the plaintiff owned the LePage property, which abutted the Archacki property and was the subject of a decision of the defendant. The plaintiff, therefore, clearly established statutory aggrievement.

The defendant nevertheless argues that the plaintiffs complaint in the resubdivision case is silent with respect to aggrievement pursuant to § 8-8 and, therefore, the plaintiff failed to satisfy the requirements of Practice Book § 10-3 (a). “Practice Book § 10-3 (a) provides that ‘[wjhen any claim made in a complaint, cross complaint, special defense, or other pleading is grounded on a statute, the statute shall be specifically identified by its number.’ Our Supreme Court has repeatedly stated, however, that [Practice Book] § 10-3 (a) is merely directory and not mandatory. . . . We have excused noncompliance with [Practice Book] § 10-3 (a) where the record discloses that neither the opposing party nor the trial court [was] confused or misled as to the statutory basis of the party’s claim.” (Citations omitted.) Skakel v. Benedict, 54 Conn. App. 663, 684, 738 A.2d 170 (1999).

In the present case, our review of the record reveals that neither the court nor the defendant was confused or misled by the plaintiffs actions. The court questioned the defendant as to whether the fact that the plaintiff owned the property adjacent to that of the resubdivision satisfied the requirement of § 8-8. The defendant responded that it was a possibility, although not alleged in the complaint. Because the evidence demonstrated that the defendant was not misled, we conclude that the court’s finding that the plaintiff was aggrieved was not clearly erroneous.

B

The defendant also claims that the plaintiff lacked standing because the plaintiff, and not the owners of the Archacki property, signed the resubdivision application. We disagree.

“Standing is not a technical rule intended to keep aggrieved parties out of court; nor is it a test of substantive rights. Rather it is a practical concept designed to ensure that courts and parties are not vexed by suits brought to vindicate nonjusticiable interests and that judicial decisions which may affect the rights of others are forged in hot controversy, with each view fairly and vigorously represented.” (Internal quotation marks omitted.) DiBonaventura v. Zoning Board of Appeals, 24 Conn. App. 369, 373-74, 588 A.2d 244, cert. denied, 219 Conn. 903, 593 A.2d 129 (1991).

The plaintiff entered into an option contract to purchase the Archacki property on April 1,2000. The option remained in effect for a period of one year. Paragraph five of the contract conferred to the plaintiff the right to obtain governmental and zoning approval for the property owned by the plaintiff.

The plaintiff applied for the resubdivision on July 24, 2000. Suzanne LePage signed the application on the plaintiffs behalf. William LePage testified that she was an officer of the plaintiff corporation and authorized to execute documents on behalf of the plaintiff. The plaintiff had the contractual right to seek governmental and zoning approval for the proposed resubdivision. Section 5-01 of the Southington zoning regulations permits the application to be “signed by the record owner or his agent . ...” An authorized officer of the plaintiff corporation signed the resubdivision application. We conclude, therefore, that the plaintiff had standing to appeal from the defendant’s decision to both the trial court and to this court.

II

We now address the merits of the plaintiffs appeal. The plaintiff contends that the court improperly sustained the defendant’s denial of the resubdivision application. Specifically, the plaintiff argues that the defendant improperly determined that (1) Nunzio Drive was a permanent cul-de-sac and (2) the proposed extension would violate the Southington subdivision regulation restricting permanent cul-de-sacs to a maximum length of 600 feet. We disagree.

As an preliminary matter, we set forth the applicable standard of review. “It is axiomatic that a planning commission, in passing on a resubdivision application, acts in an administrative capacity and is limited to determining whether the plan complies with the applicable regulations. ... It is equally axiomatic that the trial court, in reviewing the action of a planning commission regarding a resubdivision application, may not substitute its judgment on the facts for that of the planning commission. . . . The conclusions of the commission must stand if even one of the stated reasons is reasonably supported by the record. . . .

“The trial court must determine whether the commission has correctly interpreted its regulations and applied them with reasonable discretion to the facts. . . . The trial court can sustain the [plaintiffs] appeal only upon a determination that the decision of the commission was unreasonable, arbitrary or illegal .... In reviewing the action of the trial court, we have to decide whether it could in logic and in law reach the conclusion that the [commission] should be overruled.” (Citations omitted; internal quotation marks omitted.) Pelliccione v. Planning & Zoning Commission, 64 Conn. App. 320, 326-28, 780 A.2d 185, cert. denied, 258 Conn. 915, 782 A.2d 1245 (2001).

A

The plaintiff first claims that the court improperly determined that the defendant classified Nunzio Drive as a permanent cul-de-sac. Specifically, the plaintiff argues that because the regulations merely describe, and do not clearly define permanent and temporary cul-de-sacs, the defendant made an unreasonable interpretation of the regulations in denying the resubdivision application.

As a threshold matter, we must determine whether the regulations make a distinction between permanent and temporary cul-de-sacs. “The commission enjoys reasonable discretion in construing the regulations it is charged with enforcing.” Paige v. Town Plan & Zoning Commission, 35 Conn. App. 646, 655, 646 A.2d 277 (1994), rev’d on other grounds, 235 Conn. 448, 668 A.2d 340 (1995). Additionally, “[wjords used in statutes and regulations are to be construed according to their commonly approved usage. ... Or, stated another way, statutory language is to be given its plain and ordinary meaning.” (Citations omitted; internal quotation marks omitted.) Federico v. Planning & Zoning Commission, 5 Conn. App. 509, 512-13, 500 A.2d 576 (1985).

Black’s Law Dictionary (6th Ed. 1990) defines ‘permanent’ as “[cjontinuing or enduring in the same state, status, place, or the like, without fundamental or marked change, not subject to fluctuation, or alteration, fixed or intended to be fixed; lasting; abiding; stable; not temporary or transient. . . . Generally opposed in law to ‘temporary,’ but not always meaning ‘perpetual.’ ” (Citation omitted.) Furthermore, the regulations set a 600 foot limit on the length of a permanent cul-de-sac although a temporary cul-de-sac must extend to the abutting property line. Accordingly, the subdivision regulations clearly establish a distinction between permanent and temporary cul-de-sacs.

We now must address whether the court properly concluded that the defendant correctly determined that Nunzio Drive was a permanent cul-de-sac. We conclude that it did. The defendant based its decision that Nunzio Drive was a permanent cul-de-sac on the regulations. The length of the road was fixed at 600 feet, the maximum length for a permanent cul-de-sac. Furthermore, the end of the cul-de-sac did not extend to the abutting property line and left no reserved space, as temporary cul-de-sacs are required to do pursuant to § 3-04 of the regulations.

On the basis of the record, we cannot say that the defendant acted in an unreasonable, arbitrary or illegal manner in finding that Nunzio Drive terminated in a permanent cul-de-sac. Accordingly, the court properly concluded that the defendant correctly classified Nun-zio Drive as a permanent cul-de-sac.

B

The plaintiff also claims that the defendant improperly determined that the proposed extension of Nunzio Drive would have exceeded the length requirements of the regulations. Specifically, it argues that the proposed extension would be a 700 foot temporary cul-de-sac, which would eventually be connected to another street, creating a 600 foot cul-de-sac with an opening to a second 600 foot cul-de-sac. We disagree.

Section 2-22.1 of the subdivision regulations defines a “cul-de-sac or dead-end street” as a “street having only one intersection with another street and having a turn-around of a radius according to the appropriate design standards, establishing the possibility of an unin-termpted flow of traffic.” Merriam-Webster’s Collegiate Dictionary (10th Ed. 1999) defines “cul-de-sac” as “a street or passage closed at one end.”

The plaintiff contends that the key characteristic of a cul-de-sac is the presence of a “turn-around.” A “turnaround” need not be closed, but instead could be open, allowing the road to be extended farther. According to the plaintiffs interpretation, it would be possible to have a road of limitless length classified as a cul-de-sac, so long as there was a “tum-around” every 600 feet.

We disagree with plaintiffs novel interpretation of a cul-de-sac and the 600 foot length restriction. A cul-desac is a road that is closed at one end. Additionally, allowing traffic to flow in two directions through an open “turn around” would not allow for the possibility of an uninterrupted flow of traffic because a vehicle using the “turn around” would have to stop and wait before proceeding to ensure that there was no oncoming traffic. We conclude, therefore, that the proposed resubdivision exceeded the 600 foot limitation on permanent cul-de-sacs. The plaintiffs application, if granted, would have constituted a violation of an existing subdivision regulation. “A commission may legally base subdivision application denials on zoning violations inherent in the plan itself as submitted . . . .” (Internal quotation marks omitted.) Krawski v. Planning & Zoning Commission, 21 Conn. App. 667, 672, 575 A.2d 1036, cert. denied, 215 Conn. 814, 576 A.2d 543 (1990). Because a violation of the subdivision regulations was inherent in the resubdivision application, we conclude that it was not an unreasonable, arbitrary or illegal act by the defendant to deny the plaintiffs application. Accordingly, the court properly concluded that the defendant correctly denied the plaintiffs resubdivision application.

The judgments are affirmed.

In this opinion the other judges concurred.

       The plaintiff also appeals from the court’s judgment sustaining the defendant’s denial of the plaintiffs subdivision application. The parties agreed both at trial and at oral argument before this court that if the resubdivision appeal was denied, then there would be no basis for sustaining the plaintiffs appeal from the denial of the subdivision application.

       Both the Archacki and the LePage properties are located in the residential R-20/25 zoning district of the town of Southington.

       “The defendant is both aplanning commission and a zoning commission. ... Its duties in each category are separate yet related. As a planning commission its duty is to prepare and adopt a plan of development for the town based on studies of physical, social, economic and governmental conditions and trends, and the plan should be designed to promote the coordinated development of the town and the general welfare and prosperity of its people. . . . Such a plan is controlling only as to municipal improvements and the regulation of subdivisions of land.” (Citations omitted.) Purtill v. Town Plan & Zoning Commission, 146 Conn. 570, 571-72, 153 A.2d 441 (1959).

         General Statutes § 8-18 provides in relevant part: “ ‘[R]esubdivision’ means a change in a map of an approved or recorded subdivision or resubdivision if such change (a) affects any street layout shown on such map

       General Statutes § 8-26 provides in relevant part: “No plan of resubdivision shall be acted upon by the commission without a public hearing. ...”

       The record reveals that the plaintiff filed a request for a waiver of the 600 foot requirement, but the request was never acted on. If both of the plaintiffs applications had been granted, the length of Nunzio Drive would have been extended to 1200 feet.

       Section 3-03 of the Southington subdivision regulations provides that the maximum length of a permanent cul-de-sac in the residential R-20/25 zoning district of the town of Southington cannot exceed 600 feet.

       The parties to the contract subsequently extended the option to purchase the property until September 1, 2001.

       Paragraph five of the contract states: “Optionee [plaintiff] to have rights to obtain governmental and zoning approvals for said parcel and adjoining parcel owned by Optionee.”

       The Southington subdivision regulations provide: “Final subdivision plans submitted to the Commission for action shall include the following requirements:
      “5-01 APPLICATION
      “An application, on a form provided by the Commission shall be submitted to the office of the Commission and signed by the record owner or his agent and shall be accompanied by a minimum fee (Emphasis added.)

       Section 3-03 of the Southington subdivision regulations, entitled “PERMANENT CUL DE SACS — MAXIMUM LENGTH,” provides in relevant part: “Dead-end or cul-de-sac street shall not, in general, exceed six hundred (600) feet in length in the R-12 or R20/25 zone . . . and shall be constructed in accordance with the appropriate street specifications and/or administrative order and the standard design layout. . . .”
      Section 3-04 of the Southington subdivision regulations, entitled “TEMPORARY CUL DE SAC,” provides: “If adjacent property is undeveloped and future continuation of the proposed street is necessary for convenient movement of traffic representing the best overall traffic pattern, the cul-de-sac shall be extended to the abutting property lines. Reserved strips of land shall not be left between the end of a proposed street and an adjacent piece of property.”


author: FOTI, J.

text:
    CARLOS FIGUEROA v. COMMISSIONER OF CORRECTION
    (AC 22296)
    Laveiy, C. J., and Foti. and Dupont, Js.
    Submitted on briefs October 31
    officially released December 31, 2002

      David B. Rozwaski, special public defender, filed a brief for the appellant (petitioner).

      Paul E. Murray, state’s attorney, Julia K. Mahoney, deputy assistant state’s attorney, and John F. Fahey, assistant state’s attorney, filed a brief for the appel-lee (respondent).
   Opinion

FOTI, J.

The petitioner, Carlos Figueroa, appeals from the judgment of the habeas court denying his petition for a writ of habeas corpus and his petition for certification to appeal to this court. On appeal, the petitioner claims that the court improperly (1) denied his petition for certification to appeal from the denial of his petition for a writ of habeas corpus and (2) denied his petition for a writ of habeas corpus. We dismiss the appeal.

On January 5, 1993, the jury found the petitioner guilty of sexual assault in the first degree in violation of General Statutes § 53a-70 (a), kidnapping in the first degree in violation of General Statutes § 53a-92 and robbery in the second degree in violation of General Statutes § 53a-135.’ The petitioner was sentenced to a total effective term of incarceration of twenty years, to be served consecutively to the sentence that he was then serving.

In February, 1993, the petitioner filed a grievance against his trial attorney. The statewide grievance panel dismissed that complaint, finding that there was “no misconduct . . . warranting disciplinary action.” On July 16, 1993, the petitioner filed his initial petition seeking habeas corpus relief. On December 30, 1996, the petitioner filed a revised amended petition for a writ of habeas corpus, alleging the ineffective assistance of counsel. Specifically, the petitioner alleged that his counsel’s performance was deficient in that counsel did not adequately (1) impeach and cross-examine witnesses presented by the state, (2) investigate the charges and prepare an adequate defense and (3) object to questions asked by the state. The petitioner also claims that counsel failed to seek a jury charge on “an affirmative defense regarding the diligence of the police to charge the petitioner.”

The habeas trial was held on January 4, 2001. The court heard testimony from, among others, the petitioner and his trial counsel. On August 2, 2001, the court denied the revised, amended petition for habeas corpus relief.

“Our standard of review in a habeas corpus proceeding challenging the effective assistance of trial counsel is well settled. Although a habeas court’s findings of fact are reviewed under the clearly erroneous standard of review . . . [w]hether the representation a defendant received at trial was constitutionally inadequate is a mixed question of law and fact. ... As such, that question requires plenary review by this court unfettered by the clearly erroneous standard.” (Citation omitted; internal quotation marks omitted.) Milner v. Commissioner of Correction, 63 Conn. App. 726, 737-38, 779 A.2d 156 (2001).

“Faced with the habeas court’s denial of certification to appeal, a petitioner’s first burden is to demonstrate that the habeas court’s ruling constituted an abuse of discretion. ... If the petitioner succeeds in surmounting that hurdle, the petitioner must then demonstrate that the judgment of the habeas court should be reversed on its merits. ... To prove an abuse of discretion, the petitioner must demonstrate that the [resolution of the underlying claim involves issues that] are debatable among jurists of reason; that a court could resolve the issues [in a different manner]; or that the questions are adequate to deserve encouragement to proceed farther. . . . For the petitioner to prevail on his claim of ineffective assistance of counsel, he must establish both that his counsel’s performance was deficient and that there is a reasonable probability that, but for the counsel’s mistakes, the result of the proceeding would have been different.” (Citation omitted; internal quotation marks omitted.) Parham v. Commissioner of Correction, 66 Conn. App. 844, 845-46, 786 A.2d 515 (2001), cert. denied, 259 Conn. 912, 791 A.2d 565 (2002).

On the basis of our review of the record, we conclude that the court did not abuse its discretion in denying the petition for certification to appeal. Contrary to the petitioner’s assertions, the court found that the trial transcript was replete with objections made by the petitioner’s counsel throughout the trial, particularly during the testimony of the state’s witnesses. The court also found that the petitioner failed to show that any particular errors made by counsel during cross-examination and impeachment of the state’s witnesses were unreasonable or that such errors had any adverse effect on the outcome of the trial.

On appeal, the petitioner’s claim regarding the ineffectiveness of counsel’s cross-examination of the victim rests entirely on the fact that counsel failed to impeach her testimony that she had identified the petitioner as her assailant from a photographic array by questioning her regarding the omission of that identification from the police report.

With respect to the petitioner’s claim that his counsel failed to investigate the charges and to prepare a defense adequately, the habeas court credited counsel’s statements that the petitioner was adamant about rejecting the state’s proposed plea bargain and relying on an alibi defense. As a consequence, counsel focused mainly on those witnesses at trial. The court also discredited the petitioner’s testimony that his counsel did not discuss the adverse impact that the introduction of his prior sexual assault conviction would have on the chance of success at trial. The court found that trial counsel “extensively questioned [the victim] regarding discrepancies in her descriptions of the assailant and the petitioner. These questions focused on physical distinctions such as height differences and different skin complexions, as well as [the victim’s] confusion regarding what officers showed her pictures . . . and her testimony that she did not get a good look at her assailant. The trial court even allowed a side by side comparison of [the victim] and the petitioner that demonstrated the relative heights and sizes to the jury. . . . Trial counsel integrated these discrepancies into his closing arguments, bringing up inconsistencies between [the victim’s] descriptions of her assailant and the petitioner’s appearance, [the victim’s] difficulty in picking out her assailant in the photographic arrays, and the unavailability of police officers and other potential witnesses.”

With respect to the petitioner’s jury instruction claim, the court found that the statute of limitations was not pleaded as a special defense at trial, but was raised by way of a motion to dismiss. The court found that the petitioner failed to show any prejudice arising from his counsel’s strategy in pursuing the motion to dismiss in the manner that he did. On the basis of its review of the record and transcripts in the case and the testimony presented in the habeas hearing, the court concluded that the attorney’s actions were reasonable, given all the circumstances, and that his performance at trial was well within the range of reasonably competent professional assistance.

For the foregoing reasons, we conclude that the court did not abuse its discretion in denying the petition for certification to appeal.

The appeal is dismissed.

In this opinion the other judges concurred.

       The facts of the underlying crimes in (his case are set forth in State v. Figueroa, 235 Conn. 145, 665 A.2d 63 (1995). Because those facts are not relevant to our disposition of this appeal, we do not repeat them here.

       The claims alleged in that petition essentially were the same as those presented in the current appeal.