author: BEAR, J.

text:
    STATE OF CONNECTICUT v. GABRIEL R. DIMECO III
    (AC 32202)
    DiPentima, C. J., and Robinson and Bear, Js.
    Argued February 8 —
    officially released April 26, 2011

      Joseph M. Merly, with whom, on the brief, were John R. Williams and Robert A. Serafinowicz, for the appellant (defendant).

      Nancy L. Chupak, senior assistant state’s attorney, with whom, on the brief, were John A. Connelly, former state’s attorney, and Terence D. Mariani, senior assistant state’s attorney, for the appellee (state).
   Opinion

BEAR, J.

The defendant, Gabriel R. DiMeco III, appeals from the judgment of conviction, rendered after a conditional plea of nolo contendere pursuant to General Statutes § 54-94a, of one count of possession of child pornography in the first degree in violation of General Statutes (Rev. to 2009) § 53a-196d. On appeal, the defendant claims that the court improperly denied his motion to suppress the data and images found on his computer, which were seized pursuant to a search warrant. The defendant contends that the warrant was issued without probable cause. We affirm the judgment of the trial court.

The record reveals the following relevant facts and procedural history. On November 30, 2007, Wolcott police Officer Patrick Malloy filed an affidavit in support of a search and seizure warrant application regarding the defendant. In the affidavit, Malloy averred to the following relevant information: “On [November 27, 2007] . . . [a]ffiant Malloy met with Vanessa Olivero . . . [and she] produced [a] notebook she had taken from [the defendant’s] residence and explained in a sworn written statement that approximately [two] or [three] weeks ago she was at the [defendant’s] residence visiting her sister [Erica Olivero] and was looking for a piece of paper. [Vanessa] Olivero had gone into [the defendant’s] bedroom and retrieved a [four inch by six inch] spiral pad that had been on the desk next to his computer. As [Vanessa] Olivero looked through the pad she noticed web sites that alarmed her, the sites appeared to be linked to child pornography. [Vanessa] Olivero then told her sister Erica [Olivero] who is [the defendant’s] girlfriend and she appeared to be shocked. Erica [Olivero] confronted [the defendant] when he returned from work and he then threw the notebook into the garbage. [Erica] Olivero then removed the notebook from the garbage and gave it to her mother . . . for safe keeping. . . .

“Approximately [one] week later [Vanessa] Olivero was again at the [defendant’s] residence when a man came to the door and was talking about [the defendant’s] computer. Erica [Olivero] later confronted [the defendant] and he told her that his computer was broken and that he needed a new one. Later on that same day, [Vanessa] Olivero went into the bedroom again to use the full length mirror, as she was adjusting the mirror she observed a computer hard drive hidden behind it. [Vanessa] Olivero brought the hard drive to Erica [Olivero] and she hid it somewhere in her children’s room. . . .

“[Vanessa] Olivero also stated that she is concerned for the safety of Erica [Olivero’s] children and felt quite certain that the web sites in the notebook were for child pornography. The notebook was then logged as evidence and stored at the Wolcott [p]olice [department. . . .

“On [November 29, 2007] . . . [a]ffiant Malloy met with Detective Ronald Blanchard of the Naugatuck [p]olice [d]epartment. Detective Blanchard heads the computer crimes division of the Naugatuck [p]olice [department and offered to help in the reviewing of the notebook that [Vanessa] Olivero provided me. While reviewing the notebook, it contained many web addresses that suggested child pornography. Many of these sites required special passwords that Detective Blanchard and I could not decipher. Detective Blanchard was able to access a site . . . which showed nude images/pictures of females [who] appeared to be preteen. Another site . . . also showed nude images/photos of what appeared to be preteen females. Detective Blanchard and I also accessed another site . . . which was an autobiography of a man with [seven] daughters who claimed to be having sex with all of them who were as young as [five] years old. . . .

“Based on the [affiant’s] training and experience, it is known that pedophiles and sexual predators of children, take, collect and keep their photographs of children and consider them their [trophies] which they store on computer systems and other electronic storage media, [compact disks], floppy disks, which these photographs are traded and sold to other persons with similar likes. Therefore probable cause does exist to believe that these items will be found at the [defendant’s] residence . . . .”

On the basis of this affidavit, a search and seizure warrant was issued, permitting the police to enter into and search the defendant’s residence for personal property, including computer related equipment, electronic equipment and media storage devices. On November 30, 2007, the police searched the defendant’s residence and seized many items, including a Gateway laptop computer, five hard drives, disposable cameras, compact disks, diskettes, [eight millimeter] videocassettes and video cameras.

Subsequently, the defendant was arrested and charged with one count of possession of child pornography in the first degree, to which he entered a plea of not guilty. On July 8, 2009, the defendant filed a revised motion to suppress the items seized on November 30, 2007, on the ground that the search and seizure warrant was issued without probable cause in violation of his federal and state constitutional rights. On September 21, 2009, the court, Damiani, J., denied the motion, and the defendant, on December 18, 2009, entered a conditional plea of nolo contendere, which was accepted by the court. The defendant was sentenced to fifteen years imprisonment, execution suspended after the mandatory five year term, with ten years probation. This appeal followed.

The defendant’s sole claim on appeal is that the court improperly denied his motion to suppress. Initially, we set forth our standard of review. “The standard of review in connection with the court’s denial of a motion to suppress is well settled. . . . [It] involves a two part function: where the legal conclusions of the court are challenged, we must determine whether they are legally and logically correct and whether they find support in the facts set out in the memorandum of decision; where the factual basis of the court’s decision is challenged we must determine whether the facts set out in the memorandum of decision are supported by the evidence or whether, in light of the evidence and the pleadings in the whole record, those facts are clearly erroneous. ... In other words, to the extent that the trial court has made findings of fact, our review is limited to deciding whether those findings were clearly erroneous. Where, however, the trial court has drawn conclusions of law, our review is plenary, and we must decide whether those conclusions are legally and logically correct in light of the findings of fact.” (Internal quotation marks omitted.) State v. Shields, 124 Conn. App. 584, 590-91, 5 A.3d 984 (2010), cert. granted on other grounds, 299 Conn. 927, 12 A.3d 571 (2011). On appeal, the defendant does not challenge any of the court’s factual findings. Rather, he challenges only the court’s legal conclusion. Accordingly, our review of this claim is plenary. Id., 591.

The defendant claims that the court improperly denied his motion to suppress the evidence seized because the warrant was issued without probable cause. He argues that the affidavit supporting the warrant contained “chiefly hearsay (as Judge Damiani observed), conclusory assertions, and speculation.” He contends that the names of the websites contained in his notebook and the photographs that were observed when the police viewed these websites provided the “only actual evidence set out in the affidavit” supporting the warrant application. He further argues that this evidence did not support a finding of probable cause because the affiant merely set forth a conclusory statement that the photographs “appeared to be preteen females” and the website addresses “do not necessarily suggest that the persons depicted would be under the requisite age.” Furthermore, he argues, the third website “did not contain any pornography at all.” In conclusion, the defendant argues that “[t]here is, in short, a striking lack of substance in the affidavit and not enough factual material to reach the level of probable cause.” We conclude that there was probable cause to support the issuance of the search warrant.

“The law regarding probable cause and the standards for upholding the issuance of a search warrant are well established. We uphold the validity of [a search] warrant ... [if] the affidavit at issue presented a substantial factual basis for the magistrate’s conclusion that probable cause existed. . . . [T]he magistrate is entitled to draw reasonable inferences from the facts presented. When a magistrate has determined that the warrant affidavit presents sufficient objective indicia of reliability to justify a search and has issued a warrant, a court reviewing that warrant at a subsequent suppression hearing should defer to the reasonable inferences drawn by the magistrate. Whe[n] the circumstances for finding probable cause are detailed, whe[n] a substantial basis for crediting the source of information is apparent, and when a magistrate has in fact found probable cause, the reviewing court should not invalidate the warrant by application of rigid analytical categories.” (Internal quotation marks omitted.) State v. Lasaga, 269 Conn. 454, 469, 848 A.2d 1149 (2004).

Our determination of whether an affidavit sufficiently establishes probable cause is governed by the “totality of the circumstances” test enunciated in State v. Barton, 219 Conn. 529, 544, 594 A.2d 917 (1991). That test requires the judge issuing the warrant to make “a practical, nontechnical decision whether, given all the circumstances set forth in the warrant affidavit, including the veracity and the basis of knowledge of persons supplying hearsay information, there is a fair probability that contraband or evidence of a crime will be found in a particular place.” (Internal quotation marks omitted.) State v. Rodriguez, 223 Conn. 127, 135, 613 A.2d 211 (1992).

We conclude that the court reasonably could have concluded that the warrant affidavit contained sufficient facts to establish probable cause that the defendant’s residence contained child pornography. Malloy stated in his affidavit that Vanessa Olivero was the sister of the defendant’s girlfriend. She went to the police because she was worried about her sister’s children. Vanessa Olivero had given Malloy a notebook that she had found on the defendant’s desk near his computer, which was located in his bedroom. This notebook contained the addresses of several websites that, from their names, appeared to her to contain child pornography. Vanessa Olivero also was concerned because after her sister confronted the defendant with the notebook, he threw it into the garbage. He later said that his computer was broken, and Vanessa Olivero found a hard drive seemingly hidden behind the mirror in the defendant’s bedroom. Vanessa Olivero signed a sworn statement attesting to the truth of her allegations.

The court reasonably could have concluded that the defendant’s notebook confirmed the information given by Vanessa Olivero. “[Statements made by an informant are entitled to greater weight if corroborated by evidence independently gathered by the police.” State v. Rodriguez, supra, 223 Conn. 136. “The theory of corroboration is that a statement which has been shown true in some respects is reasonably likely to be true in the remaining respects.” State v. Jackson, 162 Conn. 440, 447, 294 A.2d 517, cert. denied, 409 U.S. 870, 93 S. Ct. 198, 34 L. Ed. 2d 121 (1972). As reasonably could have been determined by the court, Vanessa Olivero’s statements, as corroborated by the notebook, provided a substantial basis for the judge issuing the warrant to conclude that her statements were reliable.

Furthermore, although the defendant argues that the notebook contained rather innocuous web addresses, we conclude that the trial court reasonably could have found that they appeared to suggest child pornography. Malloy, who attested that he had training and experience in matters concerning pedophiles and sexual predators of children, opined that the photographs he was able to view on some of the websites listed in the defendant’s notebook were of females who appeared to be preteen in age. Although the defendant argues that this opinion was conclusory because Malloy failed to state the basis for his opinion, we conclude that because of his training and experience in matters concerning pedophiles and sexual predators of children, the trial court was entitled to credit Malloy’s opinion when making its determination of probable cause.

On the basis of the statements contained in the search warrant affidavit, we conclude the trial court reasonably could have determined that the warrant affidavit contained sufficient facts to establish probable cause that the defendant’s residence contained child pornography and that a search and seizure warrant should issue. Accordingly, the trial court properly denied the defendant’s motion to suppress the evidence obtained as a result of the execution of that warrant.

The judgment is affirmed.

In this opinion the other judges concurred.

       General Statutes § 54-94a provides: “When a defendant, prior to the commencement of trial, enters a plea of nolo contendere conditional on the right to take an appeal from the court’s denial of the defendant’s motion to suppress or motion to dismiss, the defendant after the imposition of sentence may file an appeal within the time prescribed by law provided a trial court has determined that a ruling on such motion to suppress or motion to dismiss would be dispositive of the case. The issue to be considered in such an appeal shall be limited to whether it was proper for the court to have denied the motion to suppress or the motion to dismiss. A plea of nolo contendere by a defendant under this section shall not constitute a waiver by the defendant of nonjurisdictional defects in the criminal prosecution.”

       General Statutes (Rev. to 2009) § 53a-196d provides: “(a) A person is guilty of possessing child pornography in the first degree when such person knowingly possesses fifty or more visual depictions of child pornography.
      “(b) Possessing child pornography in the first degree is a class B felony and any person found guilty under this section shall be sentenced to a term of imprisonment of which five years of the sentence imposed may not be suspended or reduced by the court.”

       In the interest of protecting the victims of child pornography, we intentionally have omitted the names of these websites.

       A determination of probable cause can be based on hearsay statements: “Probable cause is determined by objectively considering what is known to the state at the time a warrant is presented to a magistrate; it does not require the accuracy presented by hindsight. Inherent in the concept of probable cause is that the factual basis of a warrant may be inaccurate. The factual basis for probable cause should be truthful in the sense that the information put forth is to be believed or appropriately accepted by the affiant as true. . . . [It] does not mean truthful in the sense that every fact recited in the warrant affidavit is necessarily correct, for probable cause may be founded upon hearsay and upon information received from informants, as well as upon information within the affiant’s own knowledge that sometimes must be garnered hastily.” (Citation omitted; internal quotation marks omitted.) State v. Glenn, 251 Conn. 567, 576, 740 A.2d 856 (1999). In the present case, although the defendant complains that the warrant affidavit contained hearsay statements, he does not argue that those statements were inaccurate or untruthful.


source: Caselaw Access Project

author: BISHOP, J.

license: Public Domain

text:
    PHYLLIS E. GILLIANS v. YODNA VIVANCO-SMALL ET AL.
    (AC 32133)
    Bishop, Harper and Peters, Js.
    Argued February 15 —
    officially released April 26, 2011

      Mark F. Katz, for the appellant (plaintiff).

      Gregory T. DAuria, senior appellate counsel, with whom, on the brief, were Richard Blumenthal, former attorney general, and Jane R. Rosenberg, assistant attorney general, for the appellees (defendants).
   Opinion

BISHOP, J.

The plaintiff, Phyllis E. Gillians, appeals from the summary judgment rendered by the trial court in favor of the defendants on her claim of intentional infliction of emotional distress arising out of the parties’ employment in the Stamford office of the department of children and families (department). The plaintiff claims that the court incorrectly determined that she failed to allege sufficient extreme or outrageous conduct to sustain her claim. We affirm the judgment of the trial court.

The following factual allegations, from the plaintiffs second substituted complaint and her affidavit in support of her objection to the motion for summary judgment, are pertinent to the issues on appeal. At the time of the alleged incidents, the plaintiff was employed by the department as a social work supervisor. She also was a steward of the labor union. On September 29, 2004, in her capacity as union steward, she filed an institutional labor grievance against defendants David Williams and Kenneth Mysogland complaining that the number of cases assigned to workers exceeded the maximum limit.

The plaintiff alleges that, in retaliation for this filing, supervisors Williams and Mysogland, along with principal personnel officer Kathleen Simpson, conspired with the other named defendants to force the plaintiff to withdraw the institutional grievance. She alleges, as well, that the other named defendants, who were her subordinates, were motivated by personal vendettas in connection with unsuccessful complaints each previously had filed against the plaintiff and that, as part of the conspiracy, they had become hostile and uncooperative and had falsely accused her of racial and sexual bias. In her affidavit, the plaintiff asserts that while disagreements with her subordinates and supervisors were occurring, Williams, Mysogland and Simpson reviewed her entire personnel history and, for the first time, gave her a negative performance evaluation and threatened her with demotion and termination of her employment. She further alleges that certain of the defendants offered exemption from reprimand to the plaintiffs colleagues if they would agree to oppose the institutional grievance that she had filed. The plaintiff also avers that, ultimately, Williams, Mysogland and Simpson decided to terminate her employment and that, when their decision was reversed by the department, they offered to rehire her at a lower position. The complaint concludes with the allegation that the resulting distress caused her to resign and to take other employment at a greatly reduced income.

In response to the plaintiffs second substituted complaint filed on October 10, 2006, alleging intentional infliction of emotional distress, the defendants, on November 9, 2009, filed a motion for summary judgment, claiming that the plaintiff faded to allege facts demonstrating that their actions were extreme and outrageous. The plaintiff submitted an affidavit in support of her objection to the motion alleging the facts set forth previously in this opinion. Following a hearing on the motion, the court issued a memorandum of decision on March 2, 2010, granting the defendants’ motion for summary judgment on the basis of its determination that the plaintiff had failed to allege sufficient extreme or outrageous conduct to sustain her claim. This appeal followed.

We begin with the principles that govern our review. “Practice Book § [17-49] requires that judgment shall be rendered forthwith if the pleadings, affidavits and any other proof submitted show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. A material fact is a fact that will make a difference in the result of the case. . . . The facts at issue are those alleged in the pleadings. . . . The party seeking summary judgment has the burden of showing the absence of any genuine issue as to all material facts, which, under applicable principles of substantive law, entitle him to a judgment as a matter of law. . . . The party opposing such a motion must provide an evidentiary foundation to demonstrate the existence of a genuine issue of material fact. See Practice Book §§ [17-44 and 17-45]. In deciding a motion for summary judgment, the trial court must view the evidence in the light most favorable to the nonmoving party. . . . A motion for summary judgment is properly granted if it raises at least one legally sufficient defense that would bar the plaintiffs claim and involves no triable issue of fact.” (Internal quotation marks omitted.) Washington v. Blackmore, 119 Conn. App. 218, 220-21, 986 A.2d 356, cert. denied, 296 Conn. 903, 991 A.2d 1104 (2010). “Our review of the trial court’s decision to grant [a party’s] motion for summary judgment is plenary.” (Internal quotation marks omitted.) Brooks v. Sweeney, 299 Conn. 196, 210, 9 A.3d 347 (2010).

“In order to prevail on a claim of intentional infliction of emotional distress, the plaintiff must prove: (1) that the actor intended to inflict emotional distress or that he knew or should have known that emotional distress was the likely result of his conduct; (2) that the conduct was extreme and outrageous; (3) that the defendant’s conduct was the cause of the plaintiffs distress; and (4) that the emotional distress sustained by the plaintiff was severe.” (Internal quotation marks omitted.) Stancuna v. Schaffer, 122 Conn. App. 484, 491-92, 998 A.2d 1221 (2010). “[I]n assessing a claim for intentional infliction of emotional distress, the court performs a gate-keeping function. In this capacity, the role of the court is to determine whether the allegations of a complaint ... set forth behaviors that a reasonable fact finder could find to be extreme or outrageous.” (Internal quotation marks omitted.) Gagnon v. Housatonic Valley Tourism District Commission, 92 Conn. App. 835, 847, 888 A.2d 104 (2006).

Focusing on the second element of the tort, the trial court rendered summary judgment solely on the basis of its determination that the plaintiff had failed to allege extreme and outrageous conduct. On appeal, the plaintiff claims that the defendants’ conduct was sufficiently extreme and outrageous to sustain her claim. We agree with the trial court. Although the alleged actions of the defendants, if proven, could understandably upset and distress the plaintiff, the behaviors do not meet the high threshold required to sustain a claim based on intentional infliction of emotional distress.

“Liability for intentional infliction of emotional distress requires conduct exceeding all bounds usually tolerated by decent society, of a nature which is especially calculated to cause, and does cause, mental distress of a very serious kind.” (Internal quotation marks omitted.) Muniz v. Kravis, 59 Conn. App. 704, 708, 757 A.2d 1207 (2000). “Liability has been found only where the conduct has been so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized community. Generally, the case is one in which the recitation of the facts to an average member of the community would arouse his resentment against the actor, and lead him to exclaim, ‘Outrageous!’ 1 Restatement (Second), Torts § 46, comment (d), p. 73 (1965). Conduct on the part of the defendant that is merely insulting or displays bad manners or results in hurt feelings is insufficient to form the basis for an action based upon intentional infliction of emotional distress.” (Internal quotation marks omitted.) Appleton v. Board of Education, 254 Conn. 205, 210-11, 757 A.2d 1059 (2000).

On the basis of this standard, we conclude that the plaintiff failed to allege conduct that a reasonable fact finder could find to be extreme and outrageous. This conclusion is consistent with the decisions of this court and our Supreme Court in employment and termination of employment cases. Much of the alleged conduct involved investigation into the plaintiffs job performance, which, even if unfounded, does not satisfy the articulated standard. See, e.g., Tracy v. New Milford Public Schools, 101 Conn. App. 560, 567-70, 922 A.2d 280 (conduct not outrageous where supervisor conspired with superintendent in pattern of harassment including denial of position, initiating disciplinary actions without proper investigation, defamation of character and intimidation), cert. denied, 284 Conn. 910, 931 A.2d 935 (2007).

The most troubling allegation is that the defendants vindictively conspired to terminate the plaintiffs employment. A concerted effort to remove an employee, however, does not necessarily constitute outrageous conduct; see, e.g., Dollard v. Board of Education, 63 Conn. App. 550, 552-55, 777 A.2d 714 (2001) (conduct not outrageous where supervisors engaged in concerted and successful plan to force plaintiff to resign by hypercritically examining her professional and personal conduct, transferring her involuntarily, placing her under intensive supervision and publicly admonishing her); nor does a wrongful motivation necessarily render a termination outrageous. See Parsons v. United Technologies Corp., 243 Conn. 66, 89, 700 A.2d 655 (1997) (mere act of terminating employee, even if wrongfully motivated, does not transgress bounds of socially tolerable behavior). Reading the allegations in the light most favorable to the plaintiff, the defendants’ conduct, albeit distressing to her, did not exceed all possible bounds of decency. See, e.g., Appleton v. Board of Education, supra, 254 Conn. 210-12 (conduct not outrageous where supervisors made condescending comments about plaintiff in front of colleagues, subjected her to two psychiatric examinations, telephoned her daughter to say plaintiff was acting differently and should take time off, asked police to escort her from school and suspended her employment).

The judgment is affirmed.

In this opinion the other judges concurred.

       The plaintiffs second substituted complaint named the following eight defendants, all of whom were employed by the department of children and families during the relevant time period: Kenneth Mysogland, area director; David Williams, program supervisor; Kathleen Simpson, principal personnel officer; and case workers Yodna Vivanco-Small, Anastasia Kalmanides, Aracely Centeno, Karla Rivera and Aissa Williams.

       In her affidavit, the plaintiff also adds on a cursory assertion that she was targeted because she is African-American and female. Because she fails to allege any facts to support this assertion, we do not consider it. See Cappo v. Suda, 126 Conn. App. 1, 8, 10 A.3d 560 (2011) (party opposing summary judgment “must provide an evidentiary foundation to demonstrate the existence of a genuine issue of material fact” [internal quotation marks omitted]).

       The plaintiff also recited a second count alleging that the defendants “did maliciously cause and inflict emotional distress . ...” In its memorandum of decision, following the parties’ lead, the court treated both counts as alleging the single tort of intentional infliction of emotional distress.


author: HARPER, J.

text:
    STATE OF CONNECTICUT v. MARY ANN LANGLEY
    (AC 30792)
    DiPentima, C. J., and Harper and Beach, Js.

      Argued January 14 —
    officially released April 26, 2011

      Stephan E. Seeger, with whom, on the brief, was Igor G. Kuperman, for the appellant (defendant).

      James A. Killen, senior assistant state’s attorney, with whom, on the brief, were David Cohen, state’s attorney, and Paul Ferencek, senior assistant state’s attorney, for the appellee (state).
   Opinion

HARPER, J.

The defendant, Mary Ann Langley, appeals from the judgment of conviction, following a jury trial, of manslaughter in the first degree in violation of General Statutes § 53a-55 (a) (1). On appeal, the defendant claims that the court improperly (1) denied her motion to suppress certain physical evidence recovered from the scene of the crime, (2) admitted as substantive evidence statements of the decedent victim pursuant to the excited utterance exception to the hearsay rule and (3) denied her request to instruct the jury on the lesser included offense of criminally negligent homicide in violation of General Statutes § 53a-58 (a). We disagree and, accordingly, affirm the judgment of the trial court.

The following facts, which the jury reasonably could have found, and procedural history are relevant. At approximately 5 a.m. on December 14, 2006, Officers Louis Giannattasio and Jason Scanlan of the Norwalk police department were dispatched to 126 Woodward Avenue in Norwalk (residence) on reports of an “ ‘individual burning.’ ” Upon arrival, Giannattasio and Scanlan encountered the victim, James Langley (Langley), who lived together with the defendant as husband and wife at the residence. Langley was operating his motor vehicle erratically in the driveway of the residence and, when approached by Giannattasio, stated that he was burning and that he needed medical attention. Although the officers did not observe a fire at the residence at this time, when asked where he was burned, Langley lifted his shirt revealing significant bums to his torso and midsection. Shortly thereafter, Langley was treated by emergency medical personnel and physicians. He subsequently died as a result of the severity of his bums.

Later in the morning of December 14,2006, the defendant agreed to be interviewed by Detective William Maloney of the Norwalk police department regarding her knowledge of the circumstances surrounding Langley’s injuries. During the course of this interview, the defendant confirmed that she and Langley were the only two people in the residence at the time he was burned. Although the defendant repeatedly denied responsibility for Langley’s injuries, she contradicted herself when describing her relationship with Langley, especially with respect to an extramarital affair Langley had been having since September, 2004. For example, early in the interview the defendant suggested that she and Langley had only sporadic marital problems but later in the interview stated that Langley did “awful things to [her],” such that she “wanted to stab him.” The defendant also stated that she and Langley “never fought” over his extramarital affair, although these assertions were refuted by other evidence.

The defendant subsequently was arrested and charged with murder in violation of General Statutes § 53a-54a (a). After a jury trial, the defendant was found not guilty of the murder charge but guilty of the lesser included offense of manslaughter in the first degree and sentenced to twenty years of incarceration. This appeal followed. Additional facts will be set forth as necessary.

I

The defendant first claims that the court improperly denied her motion to suppress certain physical evidence recovered from the residence. Specifically, the defendant argues that this physical evidence was obtained pursuant to repeated, unjustified warrantless entries into the residence and, as such, should have been excluded under the state and federal constitutions. We disagree.

The following additional facts are relevant to the disposition of this claim. After emergency medical personnel responded to the residence and transported Langley to the hospital, Giannattasio and Scanlan remained at the scene to investigate the cause of Langley’s injuries. The officers proceeded to the backyard of the residence, where they encountered the defendant, and entered the residence through the back door to determine whether there was a fire inside. Upon entering the residence, Giannattasio noticed a strong odor of what he believed to be gasoline and, as such, immediately requested that fire department personnel be dispatched to the scene. As he made his way through the kitchen of the residence, Giannattasio observed, but did not touch, a single used match and a matchbook near the kitchen sink. Giannattasio also observed burnt carpeting in a bedroom of the residence, although he exited the residence to await the arrival of fire department personnel. Several minutes later, firefighters arrived at the scene, and Giannattasio reentered the residence. At this point, Giannattasio noticed a hard, nondisposable plastic cup sitting on top of a garbage bag in the kitchen of the residence that smelled strongly of gasoline. Fearing for his safety and the safety of the firefighters present in the residence, Giannattasio removed the cup and placed it outside. Nonetheless, at the behest of his superior officer, Giannattasio soon returned the cup to its original location inside the residence.

Approximately one hour after Giannattasio and Scanlan first responded to the residence, John Lomba, a fire inspector with the Norwalk fire department, arrived at the scene. After speaking briefly with the defendant as well as fire and police officials, Lomba entered the residence to check for structural damage and immediately noticed “a heavy smell of chemical or accelerant.” Lomba’s initial assessment confirmed fire damage to bedroom carpeting; however, “the structure [of the residence] itself was not involved in the fire.” Lomba then exited the residence to wait for the arrival of Norwalk police arson detectives.

At approximately 7 a.m. on December 14, 2006, Maloney arrived at the scene. In his capacity as a Norwalk police detective, Maloney served together with Lomba on an arson “task force” comprised of members from both the Norwalk police and fire departments. After speaking with Giannattasio, Maloney questioned the defendant as to what had transpired at the residence prior to his arrival. At this time, both Maloney and Lomba secured written consent forms from the defendant to enter and to search the residence as part of a “ ‘cause and origin’ investigation.” As part of this investigation, Maloney and Lomba collected the used match, matchbook and cup originally observed by Giannattasio, as well as samples of the burnt bedroom carpet, burnt clothing and a partially melted styrofoam cup and a gallon container of acetone found near the backdoor of the residence. At no time was a warrant obtained to enter or to search the residence.

On August 22, 2008, the defendant filed a motion to suppress the physical evidence seized as a result of the search of the residence. In support thereof, the defendant argued, inter aha, that the search of the residence “was illegal, in that it was undertaken without a warrant, and was not rooted in any legally sufficient exception to the warrant requirement,” as otherwise required under the fourth amendment to the United States constitution. In response, the state countered by arguing, inter alia, that entry into the residence and seizure of the physical evidence was justified given the emergency situation present at the scene. Extensive hearings on the defendant’s motion were held on September 29 and 30, 2008, during which the court heard the testimony of Giannattasio and Scanlan, as well as Lomba and Maloney. On October 3, 2008, the court issued a memorandum of decision denying the defendant’s motion to suppress. In so ruling, the court agreed with the state that the warrantless entry of the residence and seizure of the physical evidence was justified by, inter alia, the “clear emergency situation” facing police and fire personnel at the residence. Thereafter, the physical evidence was utilized during the state’s casein-chief to secure the defendant’s conviction.

The defendant now claims that the court improperly denied her motion to suppress. Specifically, the defendant argues that the court incorrectly determined that an ongoing emergency existed at the residence such that police and fire officials could repeatedly enter the residence without a warrant and subsequently seize the physical evidence.

We begin by setting forth the well established principles that govern the suppression of evidence derived from a warrantless entry into a home. “The fourth amendment to the United States constitution provides: The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated . . . .” (Internal quotation marks omitted.) State v. Geisler, 222 Conn. 672, 681, 610 A.2d 1225 (1992). As the United States Supreme Court has explained, “physical entry of the home is the chief evil against which the wording of the [fjourth [a]mendment is directed.” (Internal quotation marks omitted.) Payton v. New York, 445 U.S. 573, 585, 100 S. Ct. 1371, 63 L. Ed. 2d 639 (1980). As such, “[i]t is a basic principle of [f]ourth [a]mendment law that searches and seizures inside a home without a warrant are presumptively unreasonable.” (Internal quotation marks omitted.) Id., 586.

When a warrantless entry and search of a home has taken place, the state bears the burden of showing that an exception to the warrant requirement exists to justify the government action. State v. Geisler, supra, 222 Conn. 682. If no such exceptions apply, “[u]nder the exclusionary rule, [the] evidence [seized as a result of the warrantless search] must be suppressed, [as] it is . . . the fruit of prior police illegality.” (Internal quotation marks omitted.) State v. Wilson, 111 Conn. App. 614, 623, 960 A.2d 1056 (2008), cert. denied, 290 Conn. 917, 966 A.2d 234 (2009). “The requirement that a warrant be obtained before conducting a search reflects the sound policy judgment that, absent exceptional circumstances, the decision to invade the privacy of an individual’s personal effects should be made by a neutral magistrate .... The point of the [f]ourth amendment, which often is not grasped by zealous officers, is not that it denies law enforcement the support of the usual inferences which reasonable men draw from evidence. Its protection consists in requiring that those inferences be drawn by a neutral and detached magistrate instead of being judged by the officer engaged in the often competitive enterprise of ferreting out crime.” (Internal quotation marks omitted.) State v. DeMarco, 124 Conn. App. 438, 444, 5 A.3d 527, cert. granted, 300 Conn. 902, 12 A.3d 574 (2011).

The United States Supreme Court has recognized an exception to the warrant requirement in cases of emergency. See Mincey v. Arizona, 437 U.S. 385, 392, 98 S. Ct. 2408, 57 L. Ed. 2d 290 (1978); see also State v. Magnano, 204 Conn. 259, 266, 528 A.2d 760 (1987). “The emergency exception refers to . . . warrantless entry that evolves outside the context of a criminal investigation and does not involve probable cause as a prerequisite for the making of an arrest or the. search for and seizure of evidence.” (Internal quotation marks omitted.) State v. Klauss, 19 Conn. App. 296, 300, 562 A.2d 558 (1989). More specifically, “the emergency doctrine is rooted in the community caretaking function of the police rather than its criminal investigatory function. We acknowledge that the community caretaking function of the police is a necessary one in our society. [I]t must be recognized that the emergency doctrine serves an exceedingly useful purpose. Without it, the police would be helpless to save life and property, and could lose valuable time especially during the initial phase of a criminal investigation. . . . Constitutional guarantees of privacy and sanctions against their transgression do not exist in a vacuum but must yield to paramount concerns for human life and the legitimate need of society to protect and preserve life . . . .” (Internal quotations marks omitted.) State v. Colon, 272 Conn. 106, 143, 864 A.2d 666 (2004), cert. denied, 546 U.S. 848, 126 S. Ct. 102, 163 L. Ed. 2d 116 (2005).

Nonetheless, “the emergency doctrine does not give the state an unrestricted invitation to enter the home. [G]iven the rationale for this very limited exception, the state actors making the search must have reason to believe that life or limb is in immediate jeopardy and that the intrusion is reasonably necessary to alleviate the threat.” (Internal quotation marks omitted.) State v. Geisler, supra, 222 Conn. 691. “The state bears the burden of demonstrating that a warrantless entry falls within the emergency exception. . . . An objective test is employed to determine the reasonableness of a police officer’s belief that an emergency situation necessitates a warrantless intrusion into the home. . . . [The police] must have valid reasons for the belief that an emergency exception exists, a belief that must be grounded in empirical facts rather than subjective feelings .... The test is not whether the officers actually believed that an emergency existed, but whether a reasonable officer would have believed that such an emergency existed. . . . The reasonableness of a police officer’s determination that an emergency exists is evaluated on the basis of the facts known at the time of entry.” (Internal quotation marks omitted.) State v. DeMarco, supra, 124 Conn. App. 445-46.

Finally, we note that “[i]n reviewing a trial court’s ruling on the emergency doctrine, subordinate factual findings will not be disturbed unless clearly erroneous and the trial court’s legal conclusion regarding the applicability of the emergency doctrine in light of these facts will be reviewed de novo. . . . Conclusions drawn from [the] underlying facts must be legal and logical. . . . We must determine, therefore, whether, on the basis of the facts found by the trial court, the court properly concluded that it was objectively reasonable for the police to believe that an emergency situation existed when they entered the [dwelling] . . . .” (Internal quotation marks omitted.) State v. Fausel, 295 Conn. 785, 793, 993 A.2d 455 (2010). “Because the issue of the warrantless entry into a person’s home involves his or her constitutional rights, a reviewing court must examine the record thoroughly to determine whether the subordinate facts justify the trial court’s conclusion that the officers’ belief that an emergency existed was reasonable.” State v. Geisler, supra, 222 Conn. 693.

In State v. Eady, 249 Conn. 431, 733 A.2d 112, cert. denied, 528 U.S. 1030, 120 S. Ct. 551, 145 L. Ed. 2d 428 (1999), our Supreme Court analyzed the applicability of the emergency exception within a factual context very similar to that of the case at bar. In Eady, firefighters responded to reports of a fire at the defendant’s home. Id., 434. Once the fire had been suppressed, firefighters entered the defendant’s home and observed what appeared to be marijuana in plain view. Id. The firefighters exited the home and informed a police officer that there was contraband inside. Id., 435. A police officer then entered the home and seized the contraband without obtaining a warrant. Id. Prior to trial, the defendant moved to suppress the evidence seized by the officer arguing that, although the firefighters lawfully could enter the home without a warrant, the subsequent warrantless entry by the police officer was unlawful. Id. In reversing the trial court’s ruling granting the defendant’s motion to suppress, our Supreme Court concluded that the subsequent entry by the police officer was justified under the emergency exception to the general warrant requirement. Id., 450. In so holding, the court in Eady explained that “when a law enforcement officer enters private premises in response to a call for help, and during the course of responding to the emergency observes but does not take into custody evidence in plain view, a subsequent entry shortly thereafter, by detectives whose duty it is to process evidence, constitutes a mere continuation of the original entry.” Id, 443. As the court reasoned, “the initial lawful entry by a government agent, who was entitled to seize contraband observed in plain view . . . eliminated the defendant’s reasonáble expectation of privacy in the contraband and thereby permitted the subsequent entry by a second government agent to do that which the first could have done.” (Citations omitted.) Id., 444-45; see also State v. Magnano, supra, 204 Conn. 269 (“[a] search warrant is not required where evidence discovered in plain view is seized as part of a continuing police investigation” [internal quotation marks omitted]).

Here, Giannattasio and Scanlan responded to the residence on reports of an individual burning, and, once they arrived at the scene, the officers encountered Langley suffering from severe bums. Moreover, a strong odor of gasoline was emanating from the residence. The defendant does not dispute the fact that at this point Giannattasio and Scanlan were justified, pursuant to the emergency exception, to enter the residence to determine whether there was a fire inside. Rather, the defendant argues that the subsequent entries into the residence by police and fire personnel were made after the emergency had been controlled and, therefore, not justified by the emergency exception. Our scmpulous review of the record, however, confirms that each item of physical evidence that was eventually seized by Maloney was in plain view of each of the government officials that entered the residence. The fact that the physical evidence was not seized by the first officers to respond to the emergency is not controlling, as the subsequent entries of the residence and seizure of the physical evidence was but a “mere continuation of the original [lawful] entry.” State v. Magnano, supra, 204 Conn. 267. Because the items of physical evidence were in plain view of fire and police officials, the initial lawful entry of the residence by Giannattasio and Scanlan eliminated the defendant’s reasonable expectation of privacy in the physical evidence and thereby permitted the subsequent entry by government agents to do what the first responding officers could have done — namely, seize the evidence. See State v. Eady, supra, 249 Conn. 444-45. Indeed, as was the case in Eady, obtaining a warrant to reenter the residence and to seize the physical evidence would have served “no beneficial purpose because the privacy interest that the warrant requirement protects already ha[d] been frustrated by the . . . plain view observation^] ” of police and fire officials. Id., 446.

To summarize, we agree with the trial court that “the entry by [police and fire] authorities . . . was attendant to a clear emergency situation” and, accordingly, the physical evidence that was in plain view was justifiably seized, notwithstanding the lack of a warrant to do so. Thus, the court properly denied the defendant’s motion to suppress the physical evidence. Accordingly, the defendant’s claim fails.

II

The defendant next claims that the court improperly admitted as substantive evidence statements of Langley pursuant to the excited utterance exception to the hearsay rule. See Conn. Code Evid. § 8-3 (2). Specifically, the defendant argues that the court incorrectly determined that Langley was able to observe the startling event giving rise to his excited utterances — namely, the defendant’s conduct in lighting him on fire. We are not persuaded.

The following additional facts are relevant to the resolution of this claim. Prior to the arrival of Giannattasio and Scanlan on the morning of December 14,2006, Sheila Polite and Rodney Polite, the defendant’s niece and nephew, who lived directly next door to the residence, were awakened by the sound of the defendant calling for help. Concerned for the defendant’s well-being, the Polites quickly went to the residence where, once inside, they encountered Langley, who was patting his stomach with a towel and pacing the floor of the kitchen. Rodney Polite could see that the skin over Langley’s stomach appeared to be “hanging” off as if it had “melted” and the residence smelled strongly of gasoline. Also, Langley appeared to be in pain and was acting “disillusional.” When asked what had happened, Rodney Polite heard Langley say that “when he woke up he was on fire.” Rodney Polite also heard Langley say: “I know what happened. Ann set me on fire.” Sheila Polite also heard Langley say that “he was sleeping and he watched [the defendant] pour . . . gasoline or . . . something on him” and that “[h]e watched [the defendant] pour the liquid on him and light him on fire.”

During trial, the state sought to introduce as substantive evidence Langley’s statements through the Polites’ testimony pursuant to the excited utterance exception to the hearsay rule. The defendant objected arguing that, because Langley stated that he was sleeping prior to the defendant’s allegedly incendiary behavior, there was no possible way Langley could have observed the startling event giving rise to his excited utterances, as otherwise required for the excited utterance exception to apply. Following argument, the court ruled in favor of the state, permitting both Sheila Polite and Rodney Polite to testify as to what Langley had said regarding the cause of his injuries.

“The excited utterance exception is well established. Hearsay statements, otherwise inadmissible, may be admitted into evidence to prove the truth of the matter asserted therein when (1) the declaration follows a startling occurrence, (2) the declaration refers to that occurrence, (3) the declarant observed the occurrence, and (4) the declaration is made under circumstances that negate the opportunity for deliberation and fabrication by the declarant. . . . Whether an utterance is spontaneous and made under circumstances that would preclude contrivance and misrepresentation is a preliminary question of fact to be decided by the trial judge. . . . The trial court has broad discretion in making that factual determination, which will not be disturbed on appeal absent an unreasonable exercise of discretion.” (Citation omitted; internal quotation marks omitted.) State v. Davis, 109 Conn. App. 187, 193, 951 A.2d 31, cert. denied, 289 Conn. 929, 958 A.2d 160 (2008); see also Conn. Code Evid. § 8-3 (2).

“[T]he state is not required to establish such personal observation by the declarant beyond any possible doubt. Rather, the question for the trial court is whether a reasonable inference may be drawn that the declarant had personal knowledge of the facts that are the subject of his or her statement. . . . Consequently, [d]irect proof of observation is not necessary, if the circumstances appear consistent with opportunity [to observe] by the declarant, the requirement is met.” (Citations omitted; emphasis added; internal quotation marks omitted.) State v. Wargo, 255 Conn. 113, 128-29, 763 A.2d 1 (2000); see also State v. Nelson, 105 Conn. App. 393, 405, 937 A.2d 1249 (“[t]he test of whether a declarant sufficiently observed the subject of his spontaneous utterance is whether the evidence supports a finding that the declarant had an opportunity to observe the matters described in his or her statement” [emphasis added; internal quotation marks omitted]), cert. denied, 286 Conn. 913, 944 A.2d 983 (2008).

In the present case, the defendant challenges the third requirement for applicability of the excited utterance exception, arguing that there is no rehable evidence that Langley had the opportunity to observe the defendant’s conduct in lighting him on fire because, as Langley himself stated, he was asleep at the time. We decline to interpret Langley’s statements that “he was sleeping” moments before the defendant poured accelerant on his body and lit him on fire as an absolute bar to the possibility that he had “an opportunity to observe” the defendant’s conduct. State v. Nelson, supra, 105 Conn. App. 405. To the contrary, we agree with the state’s position that Langley’s description of what transpired reasonably can be interpreted to mean that as he was in the process of waking up, he observed the defendant “pour . . . liquid on him and light him on fire.” To conclude that Langley could not possibly observe the defendant’s conduct in this case would not only be disingenuous, but would also require us to blink at the reality of the stressful circumstances giving rise to Langley’s statements. Such is not the test for admissibility pursuant to the excited utterance exception to the hearsay rule. “Rather, the question for the trial court is whether a reasonable inference may be drawn that the declarant had personal knowledge of the facts that are the subject of his or her statement.” (Emphasis added.) State v. Wargo, supra, 255 Conn. 129. Here, we conclude that a reasonable inference may be drawn that Langley had the opportunity to observe the defendant’s conduct, notwithstanding the defendant’s argument to the contrary. As such, we cannot say that the court’s decision allowing for the substantive use of Langley’s statements constitutes an “unreasonable exercise of discretion.” (Internal quotation marks omitted.) State v. Davis, supra, 109 Conn. App. 193. Accordingly, we reject the defendant’s claim.

Ill

The defendant’s final claim is that the court improperly denied her request to instruct the jury on the lesser included offense of criminally negligent homicide. Specifically, the defendant argues that there was sufficient evidence to justify a potential conviction of the lesser included offense and that this evidence was sufficiently in dispute to permit the jury to find her not guilty of murder or manslaughter in the first degree but guilty of criminally negligent homicide. We disagree.

The following additional facts are relevant to the defendant’s claim. During trial, the prosecution’s theory of the case was that the defendant intended to murder Langley primarily because of Langley’s extramarital affair. Additionally, however, the state suggested that while the evidence may not show intentional murder, at a minimum, the evidence demonstrated that the defendant intended to cause Langley serious physical injury. By contrast, the defendant maintained her complete innocence throughout the proceedings.

At the close of evidence, the state requested that, in addition to a murder charge, the jury also be instructed on manslaughter in the first degree. In support of its request, the state argued that, on the basis of the evidence presented, the jury reasonably could conclude that the defendant intended either to kill Langley or to cause him serious physical injury. In response, the defendant requested that the jury also be instructed on criminally negligent homicide, as the evidence “suggested that if [the] defendant did injure her husband, it was not necessarily the case that she intended to kill or seriously harm him.” As posited by the defendant, “[c]onduct the jury could reasonably have attributed to the defendant included accidental, [or] criminally negligent” behavior.

On October 15, 2008, following argument by both parties, the court denied the defendant’s request to charge the jury with respect to criminally negligent homicide. The court reasoned that, given the totality of evidence produced by both parties, the defendant’s “request [had] no basis in the evidence whatsoever . . . .” More specifically, the court explained that there was simply “no evidence in the case that would relate to any kind of activity on the part of the defendant that would give rise to the jury’s consideration of negligent conduct on her behalf . . . .” Thus, the court determined that the defendant was not entitled to a lesser included offense instruction under the third and fourth prongs of State v. Whistnant, 179 Conn. 576, 588, 427 A.2d 414 (1980).

It is well settled that “[tjhere is no fundamental constitutional right to a jury instruction on every lesser included offense .... [Id., 583]. Rather, the right to such an instruction is purely a matter of our common law. A defendant is entitled to an instruction on a lesser [included] offense if, and only if, the following conditions are met: (1) an appropriate instruction is requested by either the state or the defendant; (2) it is not possible to commit the greater offense, in the manner described in the information or bill of particulars without having first committed the lesser; (3) there is some evidence, introduced by either the state or the defendant, or by a combination of their proofs, which justifies conviction of the lesser offense; and (4) the proof on the element or elements which differentiates the lesser offense from the offense charged is sufficiently in dispute to permit the jury consistently to find the defendant innocent of the greater offense but guilty of the lesser.” (Internal quotation marks omitted.) State v. Corbin, 260 Conn. 730, 744-45, 799 A.2d 1056 (2002) “It has been often reaffirmed that . . . criminally negligent homicide [is a] lesser included [offense] within the crime of murder.” (Internal quotation marks omitted.) State v. Wade, 106 Conn. App. 467, 489-90, 942 A.2d 1085, cert. granted, 287 Conn. 908, 950 A.2d 1286 (2008) (appeal withdrawn June 12, 2008).

“In considering whether the defendant has satisfied the requirements set forth in State v. Whistnant, supra, 179 Conn. 588, we view the evidence in the light most favorable to the defendant’s request for a charge on the lesser included offense. ... On appeal, an appellate court must reverse a trial court’s failure to give the requested instruction if we cannot as a matter of law exclude [the] possibility that the defendant is guilty only of the lesser offense.” (Internal quotation marks omitted.) State v. Corbin, supra, 260 Conn. 745.

Here, the crux of the defendant’s claim regarding the court’s failure to instruct the jury on criminally negligent homicide involves the third and fourth prongs of Whistnant. “Despite being conceptually distinct parts of the Whistnant formulation, the third and fourth prongs are subject to the same evidentiary analysis. ... [A reviewing court] will, therefore, analyze them simultaneously. The third prong of Whistnant requires that there [be] some evidence, introduced by either the state or the defendant, or by a combination of their proofs, which justifies conviction of the lesser offense .... The fourth prong requires that the proof on the element or elements which differentiate the lesser offense from the offense charged is sufficiently in dispute to permit the jury consistently to find the defendant innocent of the greater offense but guilty of the lesser.” (Citations omitted; internal quotation marks omitted.) State v. Smith, 262 Conn. 453, 468-69, 815 A.2d 1216 (2003).

To be convicted of criminally negligent homicide in violation of § 53a-58 (a), the state would have to prove beyond a reasonable doubt that the defendant acted with “criminal negligence” in causing the death of Langley. Pursuant to General Statutes § 53a-3 (14), “[a] person acts with criminal negligence with respect to a result . . . when [she] fails to perceive a substantial and unjustifiable risk that such result will occur . . . .” (Internal quotation marks omitted.) In the present case, the evidence presented by both parties supported only one of two possible outcomes. First, when viewed from the state’s perspective, the evidence supported the conclusion that the defendant intentionally poured accelerant on Langley and then lit him on fire either to cause his death or to cause him serious physical injury. Second, when viewed from the defense’s perspective, the evidence supported the conclusion that the defendant was completely innocent of any wrongdoing. Thus, at the conclusion of the evidence, the jury was left to decide whether the defendant had no involvement in Langley’s death or, in the alternative, caused Langley’s death with intent to do so or with intent to cause him serious physical injury. At no time, either during trial or now on appeal, has the defendant proposed a situation in which, failing to “perceive [the] substantial and unjustifiable risk”; General Statutes § 53a-3 (14); of Langley’s death, she poured accelerant on Langley and then lit him on fire, such that she would be guilty only of criminally negligent homicide. See State v. Tomlin, 266 Conn. 608, 631, 835 A.2d 12 (2003) (“[we] expressly [reject] the proposition that a defendant is entitled to instructions on lesser included offenses based on merely theoretical or possible scenarios” [internal quotation marks omitted]). As a corollary, “proof on the element” that differentiates criminally negligent homicide from murder and manslaughter in the first degree— namely, intent — is not “sufficiently in dispute to permit the jury consistently to find the defendant innocent of the greater offense[s] but guilty of the lesser.” (Internal quotation marks omitted.) State v. Smith, supra, 262 Conn. 469. Indeed, from the evidence presented, the jury reasonably could have concluded only that the defendant either intentionally lit Langley on fire or that she had nothing to do whatsoever with Langley’s injuries. Such competing theories do not revolve around the element of intent but the defendant’s culpable conduct more generally.

In sum, we conclude, as a matter of law, that the evidence excludes the possibility that the defendant would be found guilty only of criminally negligent homicide but not murder or manslaughter in the first degree. Accordingly, the defendant’s claim fails.

The judgment is affirmed.

In this opinion the other judges concurred.

       This interview was recorded on a compact disc and played for the jury members during trial.

       Despite couching her claim in terms of rights afforded by both the federal and state constitutions, the defendant has not separately analyzed her claim under the state constitution. Accordingly, we will confine our review of the defendant’s claim to the federal constitution. See, e.g., State v. Colon, 272 Conn. 106, 154 n.26, 864 A.2d 666 (2004), cert. denied, 546 U.S. 848, 126 S. Ct. 102, 163 L. Ed. 2d 116 (2005).

       For convenience purposes, the remainder of this opinion will refer to the evidence collected at the residence collectively as the “physical evidence.”

       In denying the defendant’s motion to suppress, the court also determined that the warrantless entry into the residence and seizure of the physical evidence was justified by the defendant’s valid consent and statutory authority attendant to the “ ‘cause and origin’ ” investigation conducted by Maloney and Lomba. For purposes of this appeal, however, we need address only the court’s conclusion that entry into the residence and seizure of the physical evidence was valid pursuant to the “emergency exception” to the warrant requirement.

       We note that the fact that firefighters were the first to enter the defendant’s home in Eady does not change our analysis of the present case, as the United States Supreme Court has found that the fourth amendment protection against unreasonable search and seizure extends to firefighters. See Michigan v. Tyler, 436 U.S. 499, 509-10, 98 S. Ct. 1942, 56 L. Ed. 2d 486 (1978).

       The defendant also requested an instruction on reckless endangerment in the second degree in violation of General Statutes § 53a-64. On appeal, however, the defendant’s claim is devoted primarily to the request for an instruction on criminally negligent homicide. Therefore, we limit our analysis to the defendant’s request for an instruction on criminally negligent homicide.


author: GRUENDEL, J.

text:
    STATE OF CONNECTICUT v. TOSHIO KO LOKTING
    (AC 31880)
    Gruendel, Robinson and Bear, Js.

      Argued March 10 —
    officially released April 26, 2011

      Norman A. Pattis, with whom were Kelly A. Rommel and, on the brief, Kevin M. Smith, for the appellant (defendant).

      Lisa A. Riggione, senior assistant state’s attorney, for the appellee (state).
   Opinion

GRUENDEL, J.

The defendant, Toshio Ko Lokting, appeals from the judgment of conviction, following a jury trial, of larceny in the sixth degree in violation of General Statutes (Rev. 2007) § 53a-125b and conspiracy to commit larceny in the third degree in violation of General Statutes (Rev. 2007) §§ 53a-48 and 53a-124 (a) (2). On appeal, the defendant claims that the court improperly denied his motion for a judgment of acquittal because his convictions are legally inconsistent and the evidence adduced at trial was insufficient to sustain his conviction of conspiracy to commit larceny in the third degree. We affirm the judgment of the trial court.

The jury reasonably could have found the following facts. At approximately 12:30 p.m. on May 21, 2007, the defendant and Phillip Lozito entered a clothing store in New Canaan. The men entered the store separately carrying shopping bags and proceeded to walk around the store for approximately ten minutes, seemingly browsing the merchandise. Shortly thereafter, employees informed the store manager, Richard Abbott, that the men appeared to be acting suspiciously and that one of the men, later identified as Lozito, had taken store merchandise and left the store without paying for it. Abbott then left the store to pursue Lozito, who quickly was located and arrested by New Canaan police officers. A search of Lozito’s car revealed numerous items of store merchandise, a photocopy of the defendant’s driver’s license affixed to an eBay facsimile and a postage box with the defendant’s name on it. The merchandise found in Lozito’s car later was examined by a store manager and its monetary value was confirmed to be approximately $1800.

Subsequently, Officer Jeffrey Deak of the New Canaan police department began an investigation into the defendant’s involvement with the store theft. In addition to reviewing the store’s surveillance video of the incident, Deak questioned store employees working at the time of the theft, who identified the defendant from a photographic array as one of the two men they had reported to Abbott as acting suspiciously. On the basis of this information, as well as the evidence recovered from Lozito’s car, Deak applied for an arrest warrant for the defendant, and, on January 28, 2009, the defendant was arrested on charges of larceny in the third degree and conspiracy to commit larceny in the third degree. At the time of his arrest, the defendant questioned why he was being charged with a felony, stating that the store items that had been taken could not be worth more than a “couple hundred dollars.”

Following a jury trial, the defendant was found guilty of conspiracy to commit larceny in the third degree, not guilty of larceny in the third degree and guilty of the lesser included offense of larceny in the sixth degree. Thereafter, the court denied the defendant’s motion for a judgment of acquittal, and, on December 29, 2009, the defendant was sentenced to a total effective term of three years incarceration, execution suspended after one year, with five years of probation. This appeal followed.

I

The defendant first claims that the court improperly denied his motion for a judgment of acquittal because his conviction of both conspiracy to commit larceny in the third degree and larceny in the sixth degree was legally inconsistent. Specifically, he argues that his convictions are mutually exclusive, in that they are “the result of two positive findings of fact that cannot logically coexist.” (Internal quotation marks omitted.) State v. Arroyo, 292 Conn. 558, 584 n.21, 973 A.2d 1254 (2009), cert. denied, 559 U.S. 911, 130 S. Ct. 1296, 175 L. Ed. 2d 1086 (2010). We disagree.

“The general rule to which we subscribe is that factual consistency in the verdict is not necessary. Each count in an indictment is regarded as if it [were] a separate indictment. . . . Where the verdict could have been the result of compromise or mistake, we will not probe into the logic or reasoning of the jury’s deliberations or open the door to interminable speculation. . . .

“We employ a less limited approach, however, when we are confronted with an argument that the verdicts are inconsistent as a matter of law or when the verdicts are based on a legal impossibility. ... In response to such a claim, we look carefully to determine whether the existence of the essential elements for one offense negates the existence of the essential elements for another offense of which the defendant also stands convicted. If that is the case, the verdicts are legally inconsistent and cannot withstand challenge.” (Citations omitted; internal quotation marks omitted.) State v. Hinton, 227 Conn. 301, 313, 630 A.2d 593 (1993); see also State v. Arroyo, supra, 292 Conn. 584 n.21 (“[convictions] are mutually exclusive if the existence of any of the elements of one offense negates the existence of any of the elements for another offense of which the defendant also stands convicted” [internal quotation marks omitted]).

Given the defendant’s claim that his conviction of both charges was legally inconsistent, we must now determine whether the existence of the essential elements of one offense negates the existence of the essential elements of the other offense of which the defendant also stands convicted.

A

Elements of Conspiracy to Commit Larceny in the Third Degree

Pursuant to General Statutes (Rev. to 2007) § 53a-124 (a), “[a] person is guilty of larceny in the third degree when he commits larceny as defined in section 53a-119, and ... (2) the value of the property . . . exceeds one thousand dollars . . . .” General Statutes § 53a-l 19 provides in relevant part that “ [a] person commits larceny when, with intent to deprive another of property or to appropriate the same to himself or a third person, he wrongfully takes, obtains or withholds such property from an owner. . . .’’As such, larceny in the third degree consists of two essential elements: (1) the intentional deprivation of an owner’s property through the wrongful taking, obtaining or withholding of such property; and (2) the value of the property exceeds $1000.

Additionally, § 53a-48 (a) provides in relevant part that “ [a] person is guilty of conspiracy when, with intent that conduct constituting a crime be performed, he agrees with one or more persons to engage in or cause the performance of such conduct, and any one of them commits an overt act in pursuance of such conspiracy.” Therefore, a conspiracy also consists of two essential elements: (1) a specific agreement to engage in or cause the performance of conduct constituting a crime and (2) an overt act in pursuance of that agreement.

Accordingly, to be convicted of conspiracy to commit larceny in the third degree, the state must prove two essential elements beyond a reasonable doubt: (1) a specific agreement to intentionally deprive an owner of property valued at more than $1000 and (2) an overt act in furtherance of that agreement. See State v. Green, 81 Conn. App. 152, 157-58, 838 A.2d 1030, cert. denied, 268 Conn. 909, 845 A.2d 413 (2004).

B

Elements of Larceny in the Sixth Degree

Pursuant to General Statutes (Rev. to 2007) § 53a-125b (a), “[a] person is guilty of larceny in the sixth degree when he commits larceny as defined in section 53a-119 and the value of the property is two hundred fifty dollars or less.” Thus, larceny in the sixth degree consists of two essential elements: (1) the intentional deprivation of an owner’s property through the wrongful taking, obtaining or withholding of such property; see General Statutes § 53a-119; and (2) the value of the property is $250 or less.

C

Consistency of the Elements of the Offenses

Having carefully reviewed the essential elements of the offenses of which the defendant was convicted, it is readily apparent that the existence of the essential elements of conspiracy to commit larceny in the third degree does not negate the existence of the essential elements of larceny in the sixth degree. More precisely, demonstrating that the defendant specifically agreed with Lozito to deprive the store of property valued at more than $1000 and that an overt act was taken in furtherance of this agreement is entirely consistent with demonstrating that the defendant, as a coconspirator, intentionally deprived the store of property and that property ultimately was worth $250 or less.

In reaching this conclusion it is important to emphasize the specific intent elements attendant to the defendant’s conviction of both conspiracy to commit larceny in the third degree and larceny in the sixth degree, especially as such intent relates to the monetary value of the subject property. For purposes of the conspiracy conviction, the state had to prove beyond a reasonable doubt that the defendant conspired with another with the specific intent to deprive the store of property valued at more than $1000. For purposes of the larceny conviction, however, the state needed only to prove beyond a reasonable doubt that the defendant specifically intended to deprive the store of property and that he did so, not that he did so with the specific intent of depriving the store of property of a certain monetary value. Therefore, where specific intent to deprive the store of property of a certain monetary value is required for a conviction of one offense — conspiracy to commit larceny in the third degree — it is not required for a conviction of the other offense — larceny in the sixth degree. As is the situation here, it is entirely possible that the defendant may have intentionally agreed with Lozito to deprive the store of property valued at more than $1000, although subsequently it was determined that this property was valued at $250 or less. The fact that the defendant may have specifically agreed with Lozito to steal property worth more monetarily than that which he was found to have actually stolen does not render the convictions in the present case legally inconsistent. To the contrary, by demonstrating that the defendant specifically agreed with Lozito to deprive the store of property worth more than $1000, it follows a fortiori that the state demonstrated that the defendant intended to deprive the store of property. Accordingly, the defendant’s claim fails.

II

The defendant also claims that the court improperly denied his motion for a judgment of acquittal because the evidence adduced at trial was insufficient to sustain his conviction of conspiracy to commit larceny in the third degree. Specifically, he argues that the state failed to produce sufficient evidence of both an agreement to commit larceny and the monetary value of the property stolen from the store. We disagree.

“The standard of review [that] we [ordinarily] apply to a claim of insufficient evidence is well established. In reviewing the sufficiency of the evidence to support a criminal conviction we apply a two-part test. First, we construe the evidence in the light most favorable to sustaining the verdict. Second, we determine whether upon the facts so construed and the inferences reasonably drawn therefrom the [finder of fact] reasonably could have concluded that the cumulative force of the evidence established guilt beyond a reasonable doubt. ... In evaluating evidence, the trier of fact is not required to accept as dispositive those inferences that are consistent with the defendant’s innocence. . . . The trier may draw whatever inferences from the evidence or facts established by the evidence it deems to be reasonable and logical. . . . This does not require that each subordinate conclusion established by or inferred from the evidence, or even from other inferences, be proved beyond a reasonable doubt . . . because this court has held that a jury’s factual inferences that support a guilty verdict need only be reasonable. . . .

“[A]s we have often noted, proof beyond a reasonable doubt does not mean proof beyond all possible doubt . . . nor does proof beyond a reasonable doubt require acceptance of every hypothesis of innocence posed by the defendant that, had it been found credible by the trier, would have resulted in an acquittal. ... On appeal, we do not ask whether there is a reasonable view of the evidence that would support a reasonable hypothesis of innocence. We ask, instead, whether there is a reasonable view of the evidence that supports the jury’s verdict of guilty. . . . Furthermore, [i]n [our] process of review, it does not diminish the probative force of the evidence that it consists, in whole or in part, of evidence that is circumstantial rather than direct. ... It is not one fact, but the cumulative impact of a multitude of facts [that] establishes guilt in a case involving substantial circumstantial evidence.” (Citation omitted; internal quotation marks omitted.) State v. Hedge, 297 Conn. 621, 656-57, 1 A.3d 1051 (2010).

Here, the state relied on the cumulative impact of a multitude of facts to demonstrate the existence of an agreement between the defendant and Lozito to commit larceny of goods valued at more than $1000. Beginning with the surveillance video of May 21, 2007, the state argued that the defendant and Lozito acted in concert by wrongfully taking store merchandise and storing the stolen items in Lozito’s car to be sold later on eBay. To support its theory of agreement, the state further relied on the fact that a photocopy of the defendant’s driver’s license affixed to an eBay facsimile, as well as a postage box with the defendant’s name on it, were discovered in Lozito’s car. Moreover, with respect to the monetary value of the stolen items supporting the conspiracy charge, the state presented the testimony of police officers and store employees, who confirmed that the store merchandise found in Lozito’s car was worth approximately $1800. Finally, the arresting officers testified as to the inculpatory statements made by the defendant at the time of his arrest.

We are mindful that our review is limited to a consideration of whether the evidence, construed in a light most favorable to sustaining the verdict, would allow a jury reasonably to conclude that the cumulative force of the evidence established guilt beyond a reasonable doubt. See State v. Hedge, supra, 297 Conn. 656-57. We conclude that the evidence in the present case, although not overwhelming, was sufficient to sustain the verdict. Accordingly, the defendant’s argument to the contrary is unavailing.

The judgment is affirmed.

In this opinion the other judges concurred.


author: PER CURIAM.

text:
    DINA JAEGER v. CONNECTICUT SITING COUNCIL
    (AC 32137)
    Robinson, Alvord and Bear, Js.

      Argued February 8 —
    officially released April 26, 2011

      Whitney North Seymour, Jr., pro hac vice, with whom was Gabriel North Seymour, for the appellant (plaintiff).

      Robert L. Marconi, assistant attorney general, with whom, on the brief, was Richard Blumenthal, former attorney general, for the appellee (defendant).

      Bradford S. Babbitt, with whom, on the brief, was Kenneth C. Baldwin, for the appellee (intervenor Célico Partnership).
   Opinion

PER CURIAM.

The plaintiff, Dina Jaeger, appeals from the judgment of the trial court dismissing her administrative appeal from a decision of the defendant, the Connecticut Siting Council, granting a certificate of environmental compatibility for the construction, operation and maintenance of a wireless telecommunications facility (tower) to Célico Partnership (Célico), doing business as Verizon Wireless. The court dismissed the appeal after concluding that the plaintiff was not aggrieved, as required under the Uniform Administrative Procedure Act; General Statutes § 4-166 et seq.; and, therefore, lacked standing to maintain the action. On appeal, the plaintiff claims that (1) the trial judge improperly failed to disqualify himself in violation of Connecticut law and (2) the court erred in concluding that she was not aggrieved by the defendant’s granting of the certificate of environmental compatibility. We affirm the judgment of the trial court.

The following facts and procedural history are relevant to our resolution of the claims on appeal. On March 28, 2008, Célico applied, pursuant to the Public Utility Environmental Standards Act; General Statutes § 16-50g et seq.; for a certificate of environmental compatibility (application) for the construction, operation and maintenance of a tower. The application provided that the tower would be located in the Falls Village section of the town of Canaan, on a parcel of property owned by the Falls Village fire department along Route 7. The plaintiff is the owner of two parcels of property that are located approximately 1290 feet east and 380 feet east of the proposed location.

On June 4, 2008, the plaintiff filed with the defendant a request to intervene in the proceeding. The defendant granted the plaintiff intervenor status on June 19, 2008. On July 1 and July 31, 2008, the defendant conducted a public hearing on the application. On March 12, 2009, after reviewing the record of the proceeding, the defendant approved the application, concluding that “the proposed tower ... is needed, as it would provide cellular and [personal communications service] telecommunications coverage to a significant gap within the Falls Village section of Canaan, and that the design of the tower and site would minimize adverse environmental impact to the area.”

The plaintiff appealed from the decision of the defendant to the trial court pursuant to General Statutes § 4-183. On May 27,2009, Célico filed a motion to intervene in the proceeding, claiming that it had a direct and substantial interest in the subject of the appeal. On June 23, 2009, the court granted the motion to intervene. Thereafter, in its brief on the merits, Célico claimed that the court lacked subject matter jurisdiction over the appeal because the plaintiff was not aggrieved by the granting of the certificate of environmental compatibility.

On January 5, 2010, the court conducted an evidentiary hearing pursuant to § 4-183 (i) for the limited purpose of determining whether the plaintiff had been aggrieved. In its memorandum of decision, the court concluded that the plaintiff failed to establish that she was aggrieved and, accordingly, dismissed her appeal. The plaintiff filed an appeal from the court’s decision on April 1, 2010.

On July 26, 2010, while the plaintiffs appeal was pending before this court, the trial court, Cohn, J., issued the following order: “It has recently come to the court’s attention that a recusal issue may exist in this case that should be resolved expeditiously, as the appeal continues in the Appellate Court. This issue is based on the fact that my spouse has a beneficial interest in 28 shares of Verizon Communications with a total value of approximately $800, paying dividends of approximately $52/year. The intervenor in this administrative appeal, Célico, is a partnership between Verizon Communications and British Vodafone Group.”

The court thereafter requested that all parties appear before the court on August 13, 2010, to state their positions on the disqualification issue. Before the August 13, 2010 hearing could take place, the plaintiff filed a motion to disqualify Judge Cohn and to vacate his rulings. Thereafter, Judge Cohn transferred the plaintiffs motion to the civil presiding judge, Pittman, J., and on August, 17, 2010, the plaintiff withdrew the motion to disqualify. On August 18, 2010, the plaintiff filed with this court a motion to vacate the trial court’s orders and to dismiss the appeal for lack of subject matter jurisdiction, which this court denied without opinion on September 22, 2010.

On appeal, the plaintiff first claims that her due process rights were violated because the trial judge, Cohn, J., improperly failed to disqualify himself in violation of Connecticut law. We decline to consider this claim.

“Ordinarily, we will not review a claim of judicial bias unless that claim was properly presented to the trial court through a motion for disqualification or a motion for a mistrial.” Senk v. Senk, 115 Conn. App. 510, 515, 973 A.2d 131 (2009). “A claim of bias must be raised in a timely manner. The failure to raise a claim of disqualification with reasonable promptness after learning the ground for such a claim ordinarily constitutes a waiver thereof.” (Internal quotation marks omitted.) Clisham v. Board of Police Commissioners, 223 Conn. 354, 367, 613 A.2d 254 (1992); see also Gillis v. Gillis, 214 Conn. 336, 343, 572 A.2d 323 (1990) (concluding that defendant waived claim by failing to file motion for disqualification); Massey v. Branford, 118 Conn. App. 491, 503, 985 A.2d 335 (2009) (“[e]ven where a proper ground for disqualification exists, it must be asserted seasonably or it will be deemed to have been waived” [internal quotation marks omitted]), cert, denied, 295 Conn. 913, 990 A.2d 345 (2010). “[A] challenge to a judge for bias and prejudice must be made at the first opportunity after discovery of the facts tending to prove disqualification. ... To hold otherwise would be to allow a litigant to pervert and abuse the right extended to him at the cost to the other party of unnecessary expense and labor and to the public of the unnecessary disruption of the conduct of the courts.” (Internal quotation marks omitted.) Clisham v. Board of Police Commissioners, supra, 367.

In the present case, Judge Cohn scheduled a hearing to discuss the disqualification issue on the record with the parties. Rather than discussing the issue directly with Judge Cohn, the plaintiff elected to file a motion for disqualification after learning of the possible grounds for his disqualification. After the motion was transferred to the civil presiding judge, however, the plaintiff withdrew her motion voluntarily before the court could consider it. As a result, the plaintiff, in effect, failed to raise a claim of disqualification because the withdrawal resulted in the claim being unpreserved. See Senk v. Senk, supra, 115 Conn. App. 515. Accordingly, under the facts of the present case, we conclude that the plaintiff waived any claim of judicial disqualification by her voluntary actions, which prevented the court from conducting any type of hearing on the issue.

Second, the plaintiff claims that the corut erred in concluding that she was not aggrieved by the defendant’s granting of the certificate of environmental compatibility. After carefully reviewing the record on appeal, along with the briefs and arguments presented by the parties, we are persuaded that the decision of the trial court should be affirmed. The trial court’s memorandum of decision fully addresses the plaintiffs claims of alleged aggrievement, and its analysis is consistent with the applicable law and precedents. Therefore, we adopt the trial court’s well reasoned decision as a statement of the facts and the applicable law on this issue. See Jaeger v. Connecticut Siting Council, 52 Conn. Supp. 14, 18 A.3d 693 (2010). We believe that it would be of no benefit, and serve no useful purpose, for us to reiterate the trial court’s discussion. See, e.g., Woodruff v. Hemingway, 297 Conn. 317, 321, 2 A.3d 857 (2010).

The judgment is affirmed.

       In her brief on appeal, the plaintiff also claims that the court erroneously excluded evidence from the evidentiary hearing and that certain aspects of the appeal process deprived her of her right to due process. These claims are inadequately briefed; accordingly, we decline to review them. See State v. Monahan, 125 Conn. App. 113, 122, 7 A.3d 404 (2010) (“[w]e are not required to review issues that have been improperly presented to this court through an inadequate brief’ [internal quotation marks omitted]), cert. denied, 299 Conn. 926, 11 A.3d 152 (2011).

       According to the application, the tower would afford telecommunications coverage to Route 7 and portions of Route 112 and Route 126, along with local roads throughout southwest Canaan.

       General Statutes § 4-183 (a) provides in relevant part: “A person who has exhausted all administrative remedies available within the agency and who is aggrieved by a final decision may appeal to the Superior Court as provided in this section. . . .”

       General Statutes § 4-183 (i) provides in relevant part that “if facts necessary to establish aggrievement are not shown in the record, proof limited thereto may be taken in the court. . . .”

       Although the plaintiff alleges that the trial judge’s disqualification was “mandatory under established Connecticut Supreme Court law,” the plaintiff fails to cite to any case law and, moreover, does not discuss any canon of the Code of Judicial Conduct, any section of the Practice Book or any statute in support of her claim.