author: BEACH, J.

text:
    GARY W. KRAVETZ v. DONNA H. KRAVETZ
    (AC 31177)
    Bishop, Beach and West, Js.

      Argued November 9, 2010
    officially released February 8, 2011

      John F. Morris, for the appellant (defendant).

      Campbell D. Barrett, with whom were Jon T. Kukucka and, on the brief, C. Michael Budlong, for the appellee (plaintiff).
   Opinion

BEACH, J.

The defendant, Donna H. Kravetz, appeals from the postdissolution judgment of the trial court denying her motion for contempt and granting the motions of the plaintiff, Gary W. Kravetz, for modification of child support and for attorney’s fees. The defendant claims that the court erred (1) in granting the plaintiffs motion for modification of child support, (2) in denying her motion for contempt and (3) in granting the plaintiffs motion for attorney’s fees. We affirm the judgment of the trial court.

The record reveals the following facts and procedural history. The parties, both physicians, were married in 1981. Four children were bom of the marriage. Following the breakdown of the marriage, the plaintiff filed a complaint seeking dissolution and other relief. On October 20, 2004, the court, Alvord, J., dissolved the marriage. It found that the marriage had broken down irretrievably with no reasonable prospect of reconciliation. The court ordered joint legal custody and that the children’s primary residence be with the defendant. As part of the orders issued at the time of dissolution, the plaintiff was ordered to pay the defendant child support in the amount of $1200 per week for the four children. The court noted that “[t]he presumptive child support amount is approximately $600 per week, and the court finds it appropriate and equitable to apply the deviation criteria to order an amount substantially in excess of the child support guidelines, on the basis of the coordination of total family support.” The court also ordered the plaintiff to pay 60 percent of the children’s college expenses, after exhaustion of certain accounts of which the children were the beneficial owners, and 50 percent of the children’s “extraordinary expenses.”

The parties filed various postjudgment motions. On August 5, 2008, the defendant filed a motion for contempt, alleging that the plaintiff failed to comply with the court’s order that he pay for certain expenses. On September 2,2008, the plaintiff filed a motion for modification of the child support order on the ground that the oldest child, Emily, had graduated from high school and had attained the age of eighteen. The plaintiff also filed, on October 17, 2008, a motion for attorney’s fees.

On May 18, 2009, the court, Hon. John R. Caruso, judge trial referee, issued a memorandum of decision regarding the parties’ postjudgment motions. The court denied the defendant’s motion for contempt. The court granted in part the plaintiffs motion for modification of the child support order, agreeing that the support order should be reduced but not in the amount requested by the plaintiff. The court granted the plaintiffs motion for attorney’s fees and ordered the defendant to pay the plaintiffs counsel $5000 within thirty days. This appeal followed.

I

The defendant first claims that the court erred in granting the plaintiffs motion for modification of the child support order. We disagree.

As a preliminary matter, we set forth our standard of review. “An appellate court will not disturb a trial court’s orders in domestic relations cases unless the court has abused its discretion or it is found that it could not reasonably conclude as it did, based on the facts presented. ... In determining whether a trial court has abused its broad discretion in domestic relations matters, we allow every reasonable presumption in favor of the correctness of its action.” (Internal quotation marks omitted.) Cleary v. Cleary, 103 Conn. App. 798, 800, 930 A.2d 811 (2007).

In his motion for modification, the plaintiff requested that the court reduce child support by $300 per week because Emily had reached the age of majority and had graduated from high school. The plaintiff also requested that the court order that as each child reaches the age of eighteen and graduates from high school that child support automatically be reduced by $300 per child. The court agreed that the plaintiffs child support should be reduced but disagreed with the amount suggested by the plaintiff. The court stated that because “the trial court doubled the presumptive support of $600 to $1200 for the four children, the plaintiff has simply divided the $1200 by the number of children, i.e., four. The child support guidelines in effect ... at the time of the dissolution set forth that child support for four children should be $600 and for three children it should be $541, a difference of $59. Therefore, the court reduces the child support by $209 (since the trial court doubled the presumptive amount), retroactive to the date the motion was filed. In the future the parties should reduce the child support in the same manner as each child is no longer statutorily eligible for support.”

It was proper for the court to issue a reduction in child support as a result of the oldest child having reached the age of eighteen and having completed high school. “General Statutes § 46b-84 (b) authorizes child support orders only until the child reaches the age of eighteen, or if the child is in high school, until age nineteen.” Keeys v. Keeys, 43 Conn. App. 575, 577, 684 A.2d 1214 (1996). The defendant, however, does not appear to challenge the fact that a reduction was taken but appears to challenge only the methodology used and the amount of reduction. She argues that the court miscalculated the amount to be $209 because doubling the presumptive difference amounts to $118, not $209. According to the defendant, the correct amount of weekly child support payments should have been $1082 rather than $991.

After the defendant filed her brief, the trial court, in response to a motion for articulation filed by the defendant, articulated its basis for the reduction of child support. The court stated that in the judgment of dissolution, the court doubled the presumptive child support of $600 to $1200. The court explained that it first reduced the award of $1200 by $59 because $59 is the difference between the presumptive child support amounts for four children and for three children. The court explained that in the judgment of dissolution, the court doubled the presumptive child support of $600 to $1200, thereby adding an additional $600 to the amount of presumptive child support. The court reduced that additional award of $600 by one fourth, or $150. Thus, the reduction for the oldest of the four children having obtained the age of majority and graduated high school was $59 plus $150, which equals $209.

The court’s articulation amplifies its decision and explains, in more precise terms, the calculations taken to arrive at the $209 reduction in child support. Contrary to the defendant’s contention, the court did not miscalculate the reduction taken but, rather, reached its conclusion rationally.

II

The defendant next claims that the court erred in denying her motion for contempt, in which she alleged that the plaintiff failed to comply with the court’s order that he pay 60 percent of college expenses for the minor children and 50 percent of “extraordinary expenses.” We disagree.

With respect to extraordinary expenses, the judgment of dissolution provided that “[t]he parties shall each be responsible for one-half of the cost of any extraordinary expenses for the children such as camp or private school and any major expense exceeding $500.00 provided both parents are consulted and consent in advance to the expenditure, which consent shall not be unreasonably withheld. Any camp or private school expense, other than medically necessary expenses, greater than $2,500 per child per calendar or school year, respectively, can be reasonably not consented to by a parent.”

The judgment also provided that “all Uniform Gift to Minors [UGMA] accounts shall hereafter have both parents as co-custodians. All investment decisions shall be made by the plaintiff. Neither parent nor both parents acting together shall use the accounts for anything but the children’s sole benefit. After the liquidation of the UGMA accounts, both parents shall be responsible for the four minor children’s college expenses, determined as equivalent to the cost that the University of Connecticut charges Connecticut residents to be in residence at Storrs, Connecticut, with the plaintiff contributing 60% and the defendant contributing 40%. Such expenses shall include tuition, room, board, fees, and reasonable transportation expenses incurred by the children during their attendance at a junior college, four-year college or vocational/technical school beyond high school. The obligation herein shall be subject to both parents’ participation in the decision-making process relating to such college education. The court shall retain jurisdiction.”

We first set forth the applicable standard of review. “The abuse of discretion standard applies to a trial court’s decision on a motion for contempt. ... A finding of contempt is a question of fact, and our standard of review is to determine whether the court abused its discretion in [finding] that the actions or inactions of the [party] were in contempt of a court order. ... To constitute contempt, a party’s conduct must be wilful. . . . Noncompliance alone will not support a judgment of contempt. . . . We review the court’s factual findings in the context of a motion for contempt to determine whether they are clearly erroneous.” (Citations omitted; internal quotation marks omitted.) Gravius v. Klein, 123 Conn. App. 743, 748-49, 3 A.3d 950 (2010).

A

The defendant argues that the court erred in denying her motion for contempt because it considered the motion under the provision of the judgment of dissolution concerning educational support orders, when the motion was brought with respect to the provision pertaining to extraordinary expenses. We disagree.

In response to the defendant’s argument that the court improperly analyzed her claim for extraordinary expenses under the educational support order, we direct our attention to the following language in the court’s memorandum of decision: “The defendant commenced her testimony by introducing a number of documents that she claimed supported expenditures she made on behalf of Emily and for which she feels falls within the plaintiffs obligation to pay 60 percent. These expenditures do not fall within the charges covered by the educational support order made by the court and are the sole obligation of the defendant. Her motion for contempt is denied.” In its decision, the court later clarified its reasoning.

In her motion for contempt, the defendant claimed both that the plaintiff failed to pay 50 percent of extraordinary expenses and failed to pay 60 percent of college expenses for Emily. The court applied the educational support order to the defendant’s claim for college expenses. Later in its decision, the court specifically addressed extraordinary expenses and stated: “The expenses claimed by the defendant as extraordinary do not fall within that category, especially with the doubling of the child support.” The court addressed the issue of extraordinary expenses separately from that of college expenses and found that the expenses claimed by the defendant were not extraordinary expenses. We disagree with the defendant’s argument that, by considering only whether her claim of extraordinary expenditures fell within the educational support order, the court failed to consider the contempt claim presented. The court expressly stated that it did not find the expenses claimed by the plaintiff to be extraordinary but that they were rather contemplated to be covered by the doubled child support. We cannot conclude that the court applied an incorrect provision of the dissolution judgment in making this finding or in denying the extraordinary expense portion of the defendant’s motion for contempt.

B

The defendant next claims that the court erred by adding terms to the educational support order contained in the judgment of dissolution. We disagree.

In its 2009 postdissolution judgment, the court found the following with respect to the children’s accounts. At the time of dissolution, each of the parties’ four children had an account. The defendant “essentially wiped out” Emily’s account to pay for a number of items that she claimed were for the “ ‘sole benefit’ ” of her daughter. The court noted that the defendant’s claim that the accounts could be used for any reason would require a tortured reading of the orders issued in connection with the dissolution judgment. The court stated that the dissolution judgment “clearly tied” the accounts to the educational support order and that “[t]he expenditures for which [the] defendant seeks reimbursement are not covered by such order. The defendant is ordered to reinstate Emily’s account to the value at the time of dissolution, transfer the custodianship to the plaintiff and the plaintiff shall use 50 percent of the amount to meet his obligations under the educational support order for Emily’s college expenses for her spring 2009 semester, and any remaining balance should be applied to the fall 2009 semester.”

The defendant argues that the judgment of dissolution clearly and unambiguously provided that “[n] either parent nor both parents acting together shall use the accounts for anything but the children’s sole benefit.” She contends that the only restriction placed on the usage of the accounts was that the accounts be used for the sole benefit of the children. She argues that the court, in its 2009 postdissolution judgment, added terms to the dissolution judgment when it limited the use of the accounts to college expenses only.

“[C]ourts have continuing jurisdiction to fashion a remedy appropriate to the vindication of a prior . . . judgment . . . pursuant to [their] inherent powers .... When an ambiguity in the language of a prior judgment has arisen as a result of postjudgment events, therefore, a trial court may, at any time, exercise its continuing jurisdiction to effectuate its prior [judgment] ... by interpreting [the] ambiguous judgment and entering orders to effectuate the judgment as interpreted . . . .” (Citation omitted; internal quotation marks omitted.) Mickey v. Mickey, 292 Conn. 597, 604, 974 A.2d 641 (2009).

In the dissolution judgment, when fashioning orders pertaining to the children’s accounts, the court stated, in paragraph 15: “Neither parent nor both parents acting together shall use the accounts for anything but the children’s sole benefit. After the liquidation of the UGMA accounts, both parents shall be responsible for the four minor children’s college expenses . ...” As a result of the defendant’s postjudgment motion for contempt, a dispute over this language in the dissolution judgment arose. At the hearing on the motion for contempt and in posthearing briefs, the defendant argued that the only limitation on the use of the accounts was that they were for the sole benefit of the children. The plaintiff argued that in accordance with the dissolution judgment, the accounts were to be used for the children’s college educations. The court, in the exercise of its continuing jurisdiction to effectuate the judgment of dissolution, determined that the accounts were tied to the educational support order. In paragraph 15 of the dissolution judgment, the court referenced the accounts and then stated that the parties were obligated to pay certain respective percentages of college expenses once the accounts were depleted. It is clear from this that the accounts were to be used for educational expenses. The court was acting within its equitable powers so to determine. See Roberts v. Roberts, 32 Conn. App. 465, 471, 629 A.2d 1160 (1993) (“it is within the equitable powers of the trial court to fashion whatever orders [are] required to protect the integrity of [the original] judgment” [internal quotation marks omitted]).

The defendant additionally argues that the dissolution judgment fashioned orders pertaining to UGMA accounts and that the children did not have UGMA accounts but, rather, they had informal custodial accounts. As a result of their being custodial accounts, as opposed to UGMA accounts, the defendant contends that the orders contained in the dissolution judgment are not applicable to the accounts at issue. Thus, the defendant claims that the court, in its 2009 postdissolution judgment, erred in applying the UGMA provisions of the dissolution judgment to the accounts at issue.

When this issue arose at the hearing, the court stated: “I would imagine in [the dissolution judgment] when [the court] made reference to UGMA accounts, it’s accounts of moneys being held for the children’s benefit. [The court] might have called them UGMA, you might have called them custodial. What’s the difference?” The court proceeded to apply the provisions of the dissolution judgment, which referenced UGMA accounts, to the children’s accounts. The court’s reference in its dissolution judgment to “UGMA” accounts appears to be akin to a scrivener’s error. See footnote 2 of this opinion. In its 2009 postdissolution judgment, the court noted the difference in terminology and protected the integrity of the judgment of dissolution by applying paragraph 15 to the children’s accounts. The record is clear that, at the time of the judgment of dissolution, there technically were no “UGMA” accounts, and no provision was made regarding “custodial accounts.” The court quite clearly effectuated the intent of the dissolution court.

Ill

The defendant last claims that the court erred in awarding attorney’s fees to the plaintiff. We disagree.

In his objection to the defendant’s postjudgment motion for contempt, the plaintiff requested that the court deny the defendant’s motion and award him attorney’s fees for defending the motion. In its decision, the court denied the defendant’s motion for contempt and awarded the plaintiff $5000 in attorney’s fees.

“Our law for awarding attorney’s fees in contempt proceedings is clear. General Statutes § 46b-87 provides that the court may award attorney’s fees to the prevailing party in a contempt proceeding. The award of attorney’s fees in contempt proceedings is within the discretion of the court. ... In making its determination, the court is allowed to rely on its familiarity with the complexity of the legal issues involved. Indeed, it is expected that the court will bring its experience and legal expertise to the determination of the reasonableness of attorney’s fees. . . . [T]he award of attorney’s fees pursuant to § 46b-87 is punitive, rather than compensatory . . . .” (Citation omitted; emphasis in original; internal quotation marks omitted.) Gil v. Gil, 110 Conn. App. 798, 806-807, 956 A.2d 593 (2008).

The defendant argues that because the court’s orders regarding the defendant’s contempt motion, extraordinary expenses, custodial funds and college payments were “so weighted in the plaintiffs favor,” and because the plaintiff had sufficient income to afford his own fees, the trial court’s award of fees can only be reasonably considered to be an “improper punishment award.”

The defendant cannot prevail on her argument. The plaintiff was the prevailing party with respect to the defendant’s motion for contempt, and, thus, it was within the court’s discretion to award him attorney’s fees. The defendant’s argument that the plaintiff can afford his attorney’s fees is unavailing because there is no requirement in § 46b-87 that attorney’s fees be determined in relation to the financial positions of the parties. See Esposito v. Esposito, 71 Conn. App. 744, 749, 804 A.2d 846 (2002). We cannot conclude that the court abused its discretion when it awarded the defendant attorney’s fees.

The judgment is affirmed.

In this opinion the other judges concurred.

       General Statutes § 46b-84 (b) provides in relevant part that “[i]f there is an unmarried child of the marriage who has attained the age of eighteen and is a full-time high school student, the parents shall maintain the child according to their respective abilities if the child is in need of maintenance until such child completes the twelfth grade or attains the age of nineteen, whichever occurs first. . . .”

       “The Connecticut Uniform Gifts to Minors Act, General Statutes §§ 45a-546 through 45a-556, was replaced in 1995 by the Connecticut Uniform Transfers to Minors Act, General Statutes §§ 45a-557 through 45a-560b.” Sender v. Sender, 56 Conn. App. 492,494 n.1, 743A.2d 1149 (2000). Nevertheless, because the trial court and the parties referred to the Connecticut Uniform Gifts to Minors Act (UGMA) during these proceedings, in this opinion we will refer to the Connecticut Uniform Transfers to Minors Act as the UGMA.

       The extraordinary expenses that were the subject of the defendant’s motion for contempt included an automobile and car insurance for Emily, summer camp for Brent, Chase and Reed, and school trips.

       In the absence of a motion for articulation, we read any ambiguity in this regard to support, rather that to undermine, the judgment. See Perez v. D & L Tractor Trailer School, 117 Conn. App. 680, 707, 981 A.2d 497 (2009), cert. denied, 294 Conn. 923, 985 A.2d 1062 (2010).

       The defendant does not challenge the court’s denial of the motion for contempt on the ground that the expenses were not extraordinary; rather, the defendant essentially ignores that the court made such a finding.

       The court found that Emily’s account contained $15,136, Reed’s account contained $9955, Brent’s account contained $8199 and Chase’s account contained $6389.

       See footnote 2 of this opinion.


source: Caselaw Access Project

author: LAVINE, J.

license: Public Domain

text:
    STATE OF CONNECTICUT v. WILLIAM L.

    (AC 31383)
    Harper, Lavine and Flynn, Js.

      Argued November 9, 2010
    officially released February 8, 2011

      Elizabeth M. Inkster, senior assistant public defender, with whom was Joseph Abraham, special public defender, for the appellant (defendant).

      Kathryn Ward Bare, assistant state’s attorney, with whom, on the brief, were Michael Dearington, state’s attorney, and Roger S. Dobris, senior assistant state’s attorney, for the appellee (state).

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

   Opinion

LAVINE, J.

The defendant, William L., appeals from the judgment of conviction, rendered after a jury trial, of sexual assault in a spousal relationship in violation of General Statutes § 53a-70b. On appeal, the defendant claims that the trial court impermissibly admitted into evidence (1) testimony regarding a laboratory report in violation of Melendez-Diaz v. Massachusetts, 557 U.S. 305, 129 S. Ct. 2527, 174 L. Ed. 2d 314 (2009), and (2) testimony in violation of the constancy of accusation doctrine. We affirm the judgment of the trial court.

Given the evidence presented at trial, the jury reasonably could have found the following facts. On September 5, 2007, the defendant resided in an apartment belonging to his estranged wife (victim), who permitted him to live there in a separate bedroom because he had no money and no place to live. The couple’s daughter and the victim’s son from a prior relationship also lived in the apartment.

On the morning of September 5, 2007, the victim walked her daughter to the bus stop for the first day of school, shopped for groceries at Shaw’s Supermarket (Shaw’s) and returned to the empty apartment at approximately 11 a.m. The defendant arrived ten minutes later and entered the kitchen. He told the victim that he had been looking for work and was supposed to start a job later that day. The victim informed the defendant that she was not happy and that he had three months to find his own place to live. The defendant responded with anger. He and the victim discussed their relationship and the prospect of separating. Before entering the living room, the defendant threw his keys at the victim and told her to watch her back. The victim went into her bedroom and shut the door.

A few moments later, the defendant entered the victim’s bedroom without warning and struck her with the back of his hand, knocking her onto her bed. The victim testified that the defendant had a crazed look about him and punched her in the face as she lay on her side. The victim attempted to resist the defendant’s assault, testifying that she “wasn’t going down without a fight . . . .” The defendant, however, overpowered her by pressing his right forearm against her neck and telling her not to move. The defendant also told the victim that he would kill her if he did not get what he wanted, which the victim understood to mean to have sexual intercourse with him. In an effort to let the defendant calm down, the victim told him that she was menstruating and asked if she could get a towel because she did not want the blanket to be soiled. The defendant agreed and released the victim from his hold. When the victim got up, the defendant did as well and positioned himself between the victim and the door, while the victim placed a towel on the bed. The defendant told the victim, “You know what you have to do; do it.” The victim sat there without moving and told the defendant that she did not want to have sex. The defendant became enraged.

The defendant held a knife to the victim’s neck and said, “I’ll kill you .... [Y]our baby [is] going to find you either dead or like a vegetable.” The victim lay down on the bed because she did not want to die. The defendant asked the victim, “Do you want to go ahead and give me any,” to which she replied, “no . . . .” The defendant ripped the victim’s underwear and sanitary pad from under her dress, threw them on the floor, pulled down his pants and inserted his penis into her vagina. The assault lasted between two and five minutes, during which time he ejaculated. When the defendant was finished, he cleaned his penis, which was covered with menstrual blood, with a blue towel. Before he left the room, the defendant turned to the victim, smirked, and said, “don’t jump out the window,” and that he would be back.

When the victim heard the defendant leave the apartment, she got up, put on a clean sanitary napkin and underwear, straightened the bed and attempted to clean the carpet, which had been soiled by the sanitary pad thrown on the floor. She telephoned her son and told him that she had been raped. Her son arrived moments later. The victim did not telephone the police because she did not feel safe in her house and was afraid that the defendant would return and hurt her.

After he left the apartment, the defendant walked to Shaw’s and approached Douglas Harkins, a police sergeant with the New Haven police department who was working a private duty assignment at Shaw’s. The defendant told Harkins that he wanted to be arrested. When Harkins asked the defendant why he wanted to be arrested, the defendant stated that he was having trouble finding a job, his marriage was in trouble and that he had a recent argument with his wife. The defendant further stated that he had “popped” his wife and forced her to have sexual intercourse with him. Harkins asked about the victim’s welfare and where she lived. He then called police dispatch and had an officer sent to the victim’s apartment.

Paul Cavalier, a New Haven police officer, responded to the apartment where he found the victim and her son, who were both visibly upset. When Cavalier informed the victim that he had received a report of domestic violence, the victim told him that she had been raped. Cavalier observed slight swelling on the right side of the victim’s face. Two additional police officers arrived and questioned the victim. Thereafter, she was transported to a nearby hospital emergency room, where she was examined and evidence was collected in a rape kit.

Louis Rivera, a New Haven police officer, responded to Shaw’s where he arrested the defendant and transported him to the police station. Before being transported, the defendant handed a knife to Michael Towles, a private security guard working at Shaw’s, stating, “I better not take this with me.” At the police station, after being informed of his constitutional rights, the defendant agreed to give a statement. Renee J. Luneau, a detective, asked the defendant some preliminary questions. She testified, however, that when she turned on a recording device, the defendant told her that he did not want the interview recorded, stating, “what’s the point, I did it, I’m guilty.” Luneau further testified that the defendant told her that “rather than going somewhere else [for sex], he took it from” the victim and that he “wanted to scar [the victim’s] face.”

The defendant did not present evidence at trial but argued to the jury that he had consensual sexual intercourse with the victim. After the jury found the defendant guilty of sexual assault in a spousal relationship, the court sentenced him to fourteen years incarceration and six years of special parole. This appeal followed.

I

The defendant first claims that the court impermissibly admitted into evidence testimony regarding a laboratory report in violation of the hearsay strictures governing the confrontation clause as set forth in Melendez-Diaz v. Massachusetts, supra, 557U.S. 318-19. Melen dez-Diaz was decided by the United States Supreme Court subsequent to the defendant’s conviction. We need not decide whether the dictates of Melendez-Diaz were violated at the defendant’s trial because we conclude that, even if the defendant’s right to confrontation was violated, any alleged violation was harmless beyond a reasonable doubt.

The following additional facts and procedural history are relevant to the defendant’s claim. When the victim was taken to the hospital, Heather Gilluly, an emergency department nurse, examined the victim and collected evidence, including vaginal swabs, with a rape kit. The rape kit was sent to the state police forensic laboratory in Meriden, where the police department refers evidence for analysis. At trial, the state asked Luneau about the results of the laboratory testing of the rape kit.

Initially, the defendant objected on the ground of hearsay to the state’s question, “[d]o you know what the lab report stated concerning the vaginal smear taken by [n]urse Gilluly of [the victim]?” The court sustained the defendant’s objection. Thereafter, the state questioned Luneau to lay a foundation to enter evidence under the business record exception to the hearsay rule, namely, that the police department routinely relies on reports from the state police forensic laboratory. Again, the defendant objected, claiming that the foundation was inadequate. In voir dire, the defendant asked Luneau about her participation, or lack thereof, in the preparation of the laboratory report and contended that Luneau could not testify about the results of the testing because she was not involved in the testing. Again, the state claimed that the report was admissible under the business record exception to the hearsay rule. After consulting § 8-4 of the Connecticut Code of Evidence, the defendant conceded that the report was admissible and withdrew his objection. Thereafter, the state asked Luneau what the testing demonstrated about the vaginal smear. Luneau testified that spermatozoa were identified in the vaginal smear.

On appeal, the state contends that the defendant’s claim is not reviewable because he waived it by withdrawing his foundation objection at trial. The defendant, however, argues that his claim was preserved because his objection to Luneau’s lack of familiarity with the laboratory testing was the functional equivalent of a confrontation clause objection. Moreover, he argues, new constitutional rights are to be applied retroactively when they arise between trial and appeal, citing Griffith v. Kentucky, 479 U.S. 314, 328, 107 S. Ct. 708, 93 L. Ed. 2d 649 (1987); see also State v. Evans, 165 Conn. 61, 69, 327 A.2d 576 (1973) (reviewing unpre-served claims constituting exceptional circumstances). We need not decide whether the defendant’s claim was preserved for appeal, and we do not disagree that new constitutional claims are reviewable under State v. Golding, 213 Conn. 233, 239-40, 567 A.2d 823 (1989). Assuming, without deciding, that the defendant’s claim is reviewable pursuant to Golding, the defendant cannot prevail because the state has demonstrated that any claimed error was harmless beyond a reasonable doubt.

“ [A] defendant can prevail on a claim of constitutional error not preserved at trial only if all of the following conditions are met: (1) the record is adequate to review the alleged claim of error; (2) the claim is of constitutional magnitude alleging the violation of a fundamental right; (3) the alleged constitutional violation clearly exists and clearly deprived the defendant of a fair trial; and (4) if subject to harmless error analysis, the state has failed to demonstrate harmlessness of the alleged constitutional violation beyond a reasonable doubt. In the absence of any one of these conditions, the defendant’s claim will fail. The appellate tribunal is free, therefore, to respond to the defendant’s claim by focusing on whichever condition is most relevant in the particular circumstances.” (Emphasis in original.) Id.

“When an [evidentiary] impropriety is of constitutional proportions, the state bears the burden of proving that the error was harmless beyond a reasonable doubt. . . . [W]e must examine the impact of the evidence on the trier of fact and the result of the trial. ... If the evidence may have had a tendency to influence the judgment of the jury, it cannot be considered harmless.” (Citation omitted; internal quotation marks omitted.) State v. Mitchell, 296 Conn. 449,460,996 A.2d251 (2010).

To demonstrate that the defendant was guilty of sexual assault in a spousal relationship, the state had to prove beyond a reasonable doubt that he compelled the victim, who was his wife, to engage in sexual intercourse by the use of force against her or by the threat of the use of force against her, which reasonably caused the victim to fear physical injury. See General Statutes § 53a-70b. The victim claimed that the defendant sexually assaulted her on September 5, 2007. The defendant presented no evidence at trial but argued to the jury that the sexual intercourse that he had with the victim on that day was consensual.

In its brief on appeal, the state points out that it had the burden to prove, under § 53a-70b, that sexual intercourse between the defendant and victim took place. The laboratory results about which Luneau testified were evidence of sexual intercourse. The issue for the jury to decide was whether the defendant compelled the victim to have sexual intercourse by the use of force or the threat of the use of force that reasonably caused the victim to fear physical injury. The presence of spermatozoa on the vaginal swab was evidence of sexual intercourse only, not of the use of force. Whether force was used was a determination for the jury to make. We, therefore, conclude that Luneau’s testimony regarding the results of the laboratory testing was harmless beyond a reasonable doubt.

II

The defendant’s second claim is that the court impermissibly admitted the testimony of two of the state’s witnesses, concerning statements made by the victim, that violated the rule regarding constancy of accusation established in State v. Troupe, 237 Conn. 284, 304, 677 A.2d 917 (1996) (en banc). The plaintiff cannot prevail on this claim.

The following procedural history pertains to the defendant’s claim. On the day evidence was to commence, the defendant presented the court with an eleven point motion in limine. The motion in limine stated in relevant part: “The defendant seeks rulings regarding the following anticipated areas of state’s evidence: 1. any evidence from any purported ‘constancy of accusation’ witness that may extend beyond the scope of proper testimony as set forth in § 6-11 (c) of the [Connecticut] Code of Evidence, State v. Troupe, [supra, 237 Conn. 284] and/or State v. Samuels, 75 Conn. App. 671 [817 A.2d 719 (2003), rev’d on other grounds, 273 Conn. 541, 871 A.2d 1005 (2005)]; see, testimony of [victim’s son].”

During oral argument on the defendant’s motion, the defendant represented to the court that he anticipated that the victim’s son would be the only constancy of accusation witness. The prosecutor disagreed and stated that Cavalier, the first responding officer, also would be a constancy of accusation witness. The court inquired of the prosecutor how many constancy of accusation witnesses he anticipated. The prosecutor responded that he anticipated two witnesses, the victim’s son and Cavalier. When the court asked defense counsel whether there was anything further regarding point one of the motion in limine, defense counsel responded, “[n]o, Your Honor.” Thereafter, the court ruled: “That motion pursuant to Troupe and Samuels, and based upon what I’ve heard from the state’s attorney, is granted.”

At trial, Cavalier, who was dispatched to the victim’s home in response to the defendant’s having told Harkins that he “popped” his wife and forced her to have sex, testified as follows in response to the prosecutor’s question regarding what the victim reported to him in terms of the sexual assault complaint he was investigating: “She reported that she was sexually assaulted.” Defense counsel did not object to the question or ask that the response be stricken. In response to the prosecutor’s question about why this case stood out, Gilluly testified that “the patient claimed to have been sexually assaulted by her spouse.” The defendant did not object to the questions on the basis of constancy of accusation or move to have the responses stricken.

“Our review of evidentiary rulings made by the trial court is limited to the specific legal ground raised in the objection. Practice Book [§§ 60-5 and 5-5]; State v. Rothenberg, 195 Conn. 253, 262, 487 A.2d 545 (1985); State v. Braman, 191 Conn. 670, 684-85, 469 A.2d 760 (1983). The reason for this rule is clear: it is to alert the trial court to an error while there is time to correct it; State v. Rothenberg, supra, 263; State v. Jones, 193 Conn. 70, 88, 475 A.2d 1087 (1984); and to give the opposing party an opportunity to argue against the objection at trial. To permit a party to raise a different ground on appeal than was raised during trial would amount to trial by ambuscade, unfair both to the trial court and to the opposing party. State v. Brice, 186 Conn. 449, 457, 442 A.2d 906 (1982) . . . .” (Citations omitted; internal quotation marks omitted.) State v. Baptiste, 114 Conn. App. 750, 769, 970 A.2d 816, cert. granted on other grounds, 294 Conn. 910, 983 A.2d 274 (2009). Because the defendant failed to object to the testimony and the state was not granted an opportunity to argue against the objection, the claim is not reviewable.

The defendant, however, seeks review pursuant to the plain error doctrine. See Practice Book § 60-5. “The plain error doctrine is an extraordinary remedy used by appellate courts to rectify errors committed at trial that, although unpreserved, are of such monumental proportion that they threaten to erode our system of justice and work a serious and manifest injustice on the aggrieved party. [T]he plain error doctrine ... is not ... a rule of reviewability. It is a rule of reversibility. That is, it is a doctrine that [an appellate court] invokes in order to rectify a trial court ruling that, although either not properly preserved or never raised at all in the trial court, nonetheless requires reversal of the trial court’s judgment, for reasons of policy. . . . In addition, the plain error doctrine is reserved for truly extraordinary situations [in which] the existence of the error is so obvious that it affects the fairness and integrity of and public confidence in the judicial proceedings. . . . Plain error is a doctrine that should be invoked sparingly. . . . Implicit in this very demanding standard is the notion . . . that invocation of the plain error doctrine is reserved for occasions requiring the reversal of the judgment under review.” (Internal quotation marks omitted.) State v. Edwin M., 124 Conn. App. 707, 714-15, 6 A.3d 124 (2010).

On the basis of our review of the evidence at trial, we conclude that this is not one of those extraordinary situations calling for the reversal of the judgment of conviction. Moreover, the defendant has failed to explain how he has been aggrieved by the testimony in question, particularly in light of his admission to Harkins, and others, that he forced the victim to have sexual intercourse.

The judgment is affirmed.

In this opinion the other judges concurred.

       The defendant and his wife were divorced subsequent to the sexual assault at issue in this case.

       The victim was employed as a day care provider.

       The relevant portion of the transcript reveals the following examination of Harkins by the prosecutor:
      “Q. After he said that?
      “A. He then went on to say that he had forced — he had forced his wife to have — to have sex with him, but that she was on her period and he didn’t care.
      “Q. Okay. And did you then inquire further as to what he meant by popping her?
      “A. Yes, sir. I—
      “Q. And what did he say?
      “A. I asked him, you know, what do you mean by — what do you mean by popped her? I didn’t know whether he meant he shot her or stabbed her or whatever the case is. What do you mean by you popped her? He says— he says — he made a striking motion as — like a boxer, like a punch. And I said, okay. And I said, well, is she okay? And said, yeah, she’s fine. And I said, well, where do you live? And he says 40 . . . Street. And so at that point I called the dispatcher.”

       General Statutes § 53a-70b (b) provides in relevant part: “No spouse . . . shall compel the other spouse ... to engage in sexual intercourse by the use of force against such other spouse ... or by the threat of the use of force against such other spouse . . . which reasonably causes such other spouse ... to fear physical injury.”

       Briefly, “[t]he Massachusetts courts . . . admitted into evidence affidavits reporting the results of forensic analysis which showed that material seized by the police and connected to the defendant was cocaine. The question presented is whether those affidavits are ‘testimonial,’ rendering the affiants ‘witnesses’ subject to the defendant’s right of confrontation under the Sixth Amendment.” Melendez-Diaz v. Massachusetts, supra, 557 U.S. 307.
      “The Sixth Amendment to the United States Constitution, made applicable to the States via the Fourteenth Amendment . . . provides that [i]n all criminal prosecutions, the accused shall enjoy the right ... to be confronted with the witnesses against him. In Crawford [v. Washington, 541 U.S. 36, 51, 124 S. Ct. 1354, 158 L. Ed. 2d 177 (2004)] ... we held that it guarantees a defendant’s right to confront those who bear testimony against him. ... A witness’s testimony against a defendant is thus inadmissible unless the witness appears at trial or, if the witness is unavailable, the defendant had a prior opportunity for cross-examination. Id., at 54.” (Citations omitted; internal quotation marks omitted.) Melendez-Diaz v. Massachusetts, supra, 557 U.S. 309.
      In Crawford, the Supreme Court described “the class of testimonial statements covered by the Confrontation Clause . . . Various formulations of this core class of testimonial statements exist: ex parte in-court testimony or its functional equivalent — that is, material such as affidavits, custodial examinations, prior testimony that the defendant was unable to cross-examine, or similar pretrial statements that declarants would reasonably expect to be used prosecutorially; extrajudicial statements . . . contained in formalized testimonial materials, such as affidavits, depositions, prior testimony, or confessions; statements that were made under circumstances which would lead an objective witness reasonably to believe that the statement would be available for use at a later trial.” (Emphasis in original; internal quotation marks omitted.) Id., 309-10.
      The Supreme Court concluded with respect to the laboratory results regarding the cocaine, “not only were the affidavits made under circumstances which would lead an objective witness reasonably to believe that the statement would be available for use at a later trial, [Crawford v. Washington, supra, 541 U.S. 52], but under Massachusetts law the sole purpose of the affidavits was to provide prima facie evidence of the composition, quality, and the net weight of the analyzed substance .... We can safely assume that the analysts were aware of the affidavits’ evidentiary purpose, since that purpose — as stated in the relevant state-law provision — was reprinted on the affidavits themselves. . . .
      “In short, under our decision in Crawford the analysts’ affidavits were testimonial statements, and the analysts were witnesses for purposes of the Sixth Amendment. Absent a showing that the analysts were unavailable to testify at trial and that [the defendant] had a prior opportunity to cross-examine them, [the defendant] was entitled to be confronted with the analysts at trial.” (Citations omitted; emphasis in original; internal quotation marks omitted.) Melendez-Diaz v. Massachusetts, supra, 557 U.S. 311.

       The state did not offer the laboratory report into evidence.

       By resolving the defendant’s claim on the fourth prong of Golding, we do not imply that the defendant has satisfied the second and third prongs of the doctrine, as we do not reach them. The record, however, is adequate for our review.

       Moreover, our review of the transcript reveals that Harkins testified in front of the jury that, shortly after the incident, the defendant told him that “he had forced his wife to have . . . sex with him . . . See footnote 4 of this opinion.

       In Troupe, our Supreme Court concluded that “a person to whom a sexual assault victim has reported the assault may testily only with respect to the fact and timing of the victim’s complaint; any testimony by the witness regarding the details surrounding the assault must be strictly limited to those necessary to associate the victim’s complaint with the pending charge, including, for example, the time and place of the attack or the identity of the alleged perpetrator. In all other respects, our current rules remain in effect. Thus, such evidence is admissible only to corroborate the victim’s testimony and not for substantive purposes. Before the evidence may be admitted, therefore, the victim must first have testified concerning the facts of the sexual assault and the identity of the person or persons to whom the incident was reported. In determining whether to permit such testimony, the trial court must balance the probative value of the evidence against any prejudice to the defendant.” State v. Troupe, supra, 237 Conn. 304-305.
      In coming to its conclusion, our Supreme Court noted that “[o]f course, the rule that we adopt today does not affect those cases in which the details of a sexual assault complaint are otherwise admissible, as, for example, in the case of a spontaneous utterance or in the case of a prior consistent statement admitted to rebut a claim of recent fabrication.” Id., 304 n.19.

         The state claims that the defendant waived his right to raise this claim. We do not need to decide whether the defendant waived his claim, as we resolve the claim on other grounds.

       Defense counsel objected to the question on the ground that the witness was vouching for her own credibility. The prosecutor responded that it was not vouching but an explanation as to why Gilluly remembered this patient among the thousands she has treated. Defense counsel then objected to the question on the basis of relevance. The court overruled the objection.

       On appeal, the defendant relies on his motion in limine for preservation. In his motion, he did not identify either Cavalier or Gilluly, and he did not object when the prosecutor identified those witnesses as the state’s constancy of accusation witnesses.

       “Although [our Supreme Court’s] decision in Troupe restricted the constancy of accusation doctrine, [our Supreme Court] also held that Troupe does not affect those cases in which the details of a sexual assault complaint are otherwise admissible .... State v. Kelly, 256 Conn. 23, 40-41, 770 A.2d 908 (2001). Even if the court improperly admitted evidence as constancy of accusation testimony, [w]e can sustain a right decision although it may have been placed on a wrong ground. Stapleton v. Lombardo, 151 Conn. 414, 417, 198 A.2d 697 (1964).” (Internal quotation marks omitted.) State v. Samuels, supra, 75 Conn. App. 706 (Dranginis, J., dissenting).
      “[I]n cases of sexual abuse . . . hearsay statements made in the course of medical treatment which reveal the identity of the abuser, are reasonably pertinent to treatment and are admissible. . . . State v. DePastino, 228 Conn. 552, 565, 638 A.2d 578 (1994).” (Internal quotation marks omitted.) State v. Samuels, supra, 75 Conn. App. 711 (Dranginis, J., dissenting).


author: PER CURIAM.

text:
    KEVIN RILEY v. MELVIN PIERSON ET AL.
    (AC 31776)
    Lavine, Alvord and Borden, Js.

      Argued December 1, 2010
    officially released February 8, 2011

      Keith Yagaloff, for the appellant (plaintiff).

      Frank A. Leone, for the appellees (defendants).
   Opinion

PER CURIAM.

The plaintiff, Kevin Riley, appeals from the summary judgment rendered by the trial court in favor of the defendants, Melvin Pierson and Virginia Pierson, in an action arising out of his repayment of a promissory note. The court denied the plaintiffs motion for summary judgment with respect to the plaintiffs claims of breach of contract, unjust enrichment and quantum meruit, and rendered summary judgment in the defendants’ favor on their special defense of accord and satisfaction. On appeal, the plaintiff claims that in rendering summary judgment in favor of the defendants, the court improperly (1) engaged in fact-finding, (2) concluded that the defendants had established an accord and satisfaction as a matter of law, and (3) concluded that there was no material issue of fact pertaining to his claim of duress. We affirm the judgment of the trial court.

The court’s memorandum of decision and the record reveal the following relevant facts. The defendants were the holders of a promissory note, dated October 31, 1994, executed by the plaintiff and Denise Riley in the amount of $326,000. The note was payable to the defendants over twenty years at the rate of 7 percent interest per annum, and it was secured by an open-end mortgage on real property owned by the plaintiff and located at 2665 Boston Turnpike in Coventry. The note was scheduled to mature on November 1, 2014, and prepayment was prohibited except in case of death, a medical emergency or financial hardship.

On May 24, 2007, David A. Ruth, an attorney authorized to act on behalf of the plaintiff, sent by facsimile transmission a letter to the defendants’ attorney, Leonard M. Horvath, notifying him of the plaintiffs election to prepay the note in full. In the letter, Ruth stated that he anticipated a dispute over a prepayment penalty and indicated that the plaintiff intended to pay the penalty under protest. Ruth sent another facsimile to Horvath on May 29, 2007, reiterating the plaintiffs request to prepay the note and this time expressing that the plaintiff was experiencing severe financial hardship.

On May 30,2007, following a third facsimile transmission sent by Ruth that highlighted the plaintiffs financial circumstances and indicated his willingness to repay the balance of the note along with a “small penalty,” Horvath sent a letter to Ruth via facsimile that provided an acceptable prepayment proposal. In that proposal, Horvath noted that the outstanding principal balance on the note was $176,581.25. He then calculated that the additional sum for investment loss and taxes was $40,863.92, for a total payoff balance of $217,445.17. The letter also stressed that prepayment would not be accepted under protest and, noting the plaintiffs prior representations concerning his net worth, indicated that he could not prepay the note in accordance with the financial hardship exception.

The following day, Ruth sent a facsimile transmission to Horvath that proposed a prepayment penalty of $20,000. In that facsimile, Ruth claimed that the note was unclear with respect to prepayment and that any ambiguities favored the plaintiff because the note was drafted by the defendants. Horvath countered via facsimile that the defendants would accept $215,000 “in satisfaction of the note and mortgage.” Ruth, thereafter, forwarded to Horvath a check in the amount of $215,000 together with a letter requesting that the defendants refund any amount calculated as due to the plaintiff. Upon receipt of that letter, Horvath informed Ruth via facsimile that the final prepayment demand of $215,000 was intended to counter the plaintiffs offer to pay a $20,000 prepayment penalty, and that the defendants’ offer “contained no statement or provision for recalculation.” Horvath went on to state that he would hold the check until he received confirmation that the $215,000 was intended by the plaintiff as full and final repayment of the note without any offsets or refunds.

On June 5, 2007, Ruth sent a letter to Horvath indicating that although the plaintiff took issue with Horvath’s calculations, he acknowledged that the defendants’ $215,000 prepayment offer superseded all prior demands and conditions, and that he did not anticipate a refund. Thereafter, the defendants cashed the plaintiffs check and issued him a release of the mortgage secured by the note, which he accepted and had recorded in the land records.

The plaintiff then commenced this action against the defendants in a three count amended complaint alleging breach of contract, unjust enrichment and quantum meruit. In his amended complaint, the plaintiff claimed, inter aha, that the defendants breached the terms of the note and accompanying mortgage by requiring him to pay $215,000 in exchange for a release of the mortgage and by refusing to accept prepayment pursuant to the financial hardship exception. In response, the defendants denied all of the allegations in the plaintiffs amended complaint and raised the special defense of accord and satisfaction to all three alleged causes of action. Agreeing that there were no material facts in dispute, the plaintiff and the defendants thereafter filed cross motions for summary judgment.

The court, by memorandum of decision, denied the motion for summary judgment filed by the plaintiff and granted the defendants’ motion for summary judgment on their accord and satisfaction defense. The court first found that the evidence presented by the defendants, when viewed in the light most favorable to the plaintiff, established that the parties had a good faith dispute over the plaintiffs right to prepay the note without a penalty. The court went on to find that the parties negotiated a contract of accord to settle the prepayment dispute, explaining that the defendants’ evidence established that the plaintiff accepted their offer to pay $215,000 in full satisfaction of the note without reserving any rights to later dispute such payment. Additionally, the court noted that the plaintiff had submitted no evidence that either rebutted the defendants’ proof or supported his claim that the accord was negotiated under duress. The court concluded that the defendants had therefore established all of the elements of accord and satisfaction and were entitled to summary judgment on their special defense as a matter of law. The court then denied the plaintiffs motion for summary judgment, noting that he had failed to proffer any evidence in support of the claims advanced in his motion. Accordingly, the court rendered summary judgment in favor of the defendants as to each count alleged in the plaintiffs amended complaint. This appeal followed.

On appeal, the plaintiff claims that the court improperly granted the defendants’ summary judgment motion. In support of this claim, he contends that the court improperly (1) engaged in fact-finding, a function not appropriate for summary disposition, (2) concluded that the evidence submitted by the defendants demonstrated an accord and satisfaction as a matter of law, and (3) concluded that there was no genuine issue of material fact pertaining to his claim that the accord was reached under duress. We disagree with the plaintiffs contentions and conclude that the court properly granted the defendants’ motion for summary judgment.

“Practice Book [§ 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. ... As the burden of proof is on the movant, the evidence must be viewed in the light most favorable to the opponent. . . . When documents submitted in support of a motion for summary judgment fail to establish that there is no genuine issue of material fact, the non-moving party has no obligation to submit documents establishing the existence of such an issue. . . . Once the moving party has met its burden, however, the opposing party must present evidence that demonstrates the existence of some disputed factual issue. ... It is not enough, however, for the opposing party merely to assert the existence of such a disputed issue. Mere assertions of fact . . . are insufficient to establish the existence of a material fact and, therefore, cannot refute evidence properly presented to the court under Practice Book § [17-45]. . . . Our review of the trial court’s decision to grant [a] motion for summary judgment is plenary.” (Citation omitted; internal quotation marks omitted.) Bonington v. Westport, 297 Conn. 297, 305, 999 A.2d 700 (2010).

Our examination of the record on appeal, and the briefs and arguments of the parties, persuades us that the judgment of the court should be affirmed. Because the court’s memorandum of decision fully addresses the arguments raised in the present appeal, we adopt its thorough and well reasoned decision as a statement of the facts and the applicable law on these issues. See Riley v. Pierson, 51 Conn. Sup. 513,13 A.3d 732 (2009). Further discussion by this court would serve no useful purpose. See, e.g., Woodruff v. Hemingway, 297 Conn. 317, 321, 2 A.3d 857 (2010); Royal Indemnity Co. v. Terra Firma, Inc., 287 Conn. 183, 189, 947 A.2d 913 (2008); Lachowicz v. Rugens, 119 Conn. App. 866, 870, 989 A.2d 651, cert. denied, 297 Conn. 901, 994 A.2d 1287 (2010).

The judgment is affirmed.

       Denise Riley was the spouse of the plaintiff at the time the promissory note was executed. She is not a party to this appeal.

       “Accord and satisfaction is a method of discharging a claim whereby the parties agree to give and accept something other than that which is due in settlement of the claim and to perform the agreement. . . . Indeed, a validly executed accord and satisfaction precludes a party from pursuing any action involving the original, underlying claim.” (Internal quotation marks omitted.) Assn. Resources, Inc. v. Wall, 298 Conn. 145, 187, 2 A.3d 873 (2010).

       In support of their motion, the defendants submitted an affidavit from Horvath, the promissory note and a set of requests for admissions that had been served on the plaintiff, to which he did not respond.


author: GRUENDEL, J.

text:
    IN RE CHRONESCA D.

    (AC 32354)
    Gruendel, Beach and Peters, Js.
    Argued December 2, 2010
    officially released February 8, 2011

      Gary J. Wilson, for the appellant (respondent father).

      Colleen B. Valentine, assistant attorney general, with whom, on the brief, were Richard Blumenthal, former attorney general, and Michael J. Besso, assistant attorney general, for the appellee (petitioner).

      Sylvester L. Salcedo, for the appellee (respondent mother).

      Juliana M. Romano, for the minor child.

      Ellen A. Morgan, guardian ad litem for the minor child.

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

   Opinion

GRUENDEL, J.

The respondent father appeals from the judgment of the trial court committing his minor child to the temporary custody of the respondent’s cousin, Denise R. On appeal, the respondent claims that the court improperly vested temporary custody of the child in Denise R. in light of its finding that the child was not in immediate physical danger from her surroundings. We agree and, accordingly, reverse the judgment of the trial court.

The following facts and procedural history are relevant to the resolution of this appeal. On April 29, 2010, the commissioner of children and families (commissioner) filed a motion for an order of temporary custody with respect to the child. The commissioner previously had filed a petition of neglect with respect to the child on March 17, 2010. The court granted the commissioner’s motion for an order of temporary custody on an ex parte basis and ordered that the care and custody of the child be temporarily vested in Denise R. pursuant to General Statutes § 46b-129 (b). On May 12, 2010, a contested hearing on the commissioner’s motion took place during which the court received extensive evidence as to the circumstances surrounding the child’s living situation and relationship with the respondent. Following this hearing, the court determined that the child was not in immediate physical danger from her surroundings and thus vacated the ex parte order of temporary custody. Nonetheless, the court designated Denise R. as the continuing temporary custodian of the child until “an appropriate court determines that she should be placed safely elsewhere.” This appeal followed.

The respondent now claims that the court improperly vested temporary custody of the child in Denise R., despite vacating the ex parte order for temporary custody. Specifically, the respondent argues that, because the court explicitly determined that the child was not in immediate physical danger from her surroundings, the court thereby was precluded from ordering that the child be placed in the temporary custody of Denise R.

Connecticut law is clear that, in the context of a hearing for an order of temporary custody pursuant to § 46b-129 (b), a finding of immediate physical danger is a prerequisite to the court’s entry of a temporary order vesting custody of a child in one other than the child’s parents. In re Juvenile Appeal (83-CD), 189 Conn. 276, 290-91, 455 A.2d 1313 (1983). As our Supreme Court has explained, § 46b-129 (b) limits the utilization of a “temporary custody order to those situations in which the child or youth’s condition or the circumstances surrounding [her] care require that [her] custody be immediately assumed to safeguard [her] welfare.” Id., 288. This is because “[petitions for neglect and for temporary custody orders . . . are particularly vulnerable to the risk that judges . . . will be tempted, consciously or unconsciously, to compare unfavorably the material advantages of the child’s natural parents with those of prospective adoptive parents [or foster parents].” (Citations omitted; internal quotation marks omitted.) Id., 292. Therefore, where there is no “substantial showing . . . made at the temporary custody hearing that ... [a child] . . . would be in immediate physical danger if [he or she] were returned to the [respondent’s] home . . . [i]t [is] error for the court to grant . . . temporary custody” in one other than the child’s parents. Id., 289-90.

In the present case, not only was there no “substantial showing” of immediate physical danger, but the court explicitly determined that the child was not in immediate physical danger as otherwise required under § 46b-129 (b). Despite this determination, the court ordered that the child remain in the temporary custody of Denise R. until “an appropriate court determines that she should be placed safely elsewhere.” Our Supreme Court’s decision in In re Juvenile Appeal (83-CD), supra, 189 Conn. 276, unequivocally demonstrates that this ruling was improper.

The judgment is reversed and the case is remanded with direction to set aside the order of temporary custody and for further proceedings according to law.

In this opinion the other judges concurred.

       The mother of the child involved in this appeal also was a respondent in the underlying proceedings. Because she is not a party to this appeal, we refer to the respondent father as the respondent.

       General Statutes § 46b-129 (b) provides in relevant part: “If it appears . . . that there is reasonable cause to believe that ... [a] child ... is in immediate physical danger from the child’s . . . surroundings, and . . . that as a result of said conditions, the child’s . . . safety is endangered and immediate removal from such surroundings is necessary to ensure the child’s . . . safety, the court shall . . . issue an order ex parte vesting in some suitable . . . person the child’s . . . temporary care and custody. . . .”

       We note that § 46b-129 (b) also provides for the entry of an order of temporary custody when there is reasonable cause to believe that a child is “suffering from serous physical illness or serious physical injury . . . .” For purposes of this appeal, however, we consider only “immediate physical danger” as the basis for an order of temporary custody, as this was the sole basis for the commissioner’s motion pursuant to § 46b-129 (b).


text:
    STATE OF CONNECTICUT v. MARSHA P.

    (AC 31137)
    Gruendel, Beach and Dupont, Js.

      Argued October 12, 2010
    officially released February 15, 2011

      Norman A. Pattis, with whom, on the brief, was Kevin Murray Smith, for the appellant (defendant).

      Laurie N. Feldman, special deputy assistant state’s attorney, with whom, on the brief, were John C. Smriga, state’s attorney, and Richard L. Palombo, Jr., senior assistant state’s attorney, for the appellee (state).

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

   Opinion

BEACH, J.

The defendant, Marsha P., appeals from the judgment of conviction, rendered after a jury trial, of risk of injury to a child in violation of General Statutes § 53-21 (a) (l). The defendant claims that the court (1) erred by failing to give the jury a lesser included offense instruction, (2) committed plain error by denying her posttrial motion for a new trial and (3) erred in denying her motion for a judgment of acquittal on the basis of insufficient evidence. We affirm the judgment of the trial court.

The following facts, as reasonably found by the jury, and procedural history are relevant. On July 4, 2007, at approximately 8:30 p.m., the defendant was driving on Main Street in Stratford with her three children. J, age nine, was in the passenger seat; H, age seven, was in the backseat behind the defendant; and M, age six, was in the middle of the backseat. While driving in the left northbound lane at an intersection, the defendant stopped her vehicle at a red light. Also stopped at the red light were two cars in the right lane. Beyond the light, the right and left lanes merged into one lane and the lane veered right.

When the light turned green, the two vehicles in the right lane accelerated. The speed limit was forty miles per hour and the cars in the right lane were traveling at thirty-five to forty miles per hour. At first, the defendant did not move her vehicle, but then she accelerated her vehicle past the vehicles in the right lane and failed to merge. As the road curved, the defendant’s vehicle continued straight and accelerated. The defendant’s vehicle crossed the double yellow line into the southbound lane and struck an oncoming vehicle. M and J died as a result of the accident.

The defendant was charged with two counts of manslaughter in the second degree with a motor vehicle while under the influence of intoxicating liquor (with respect to M and J) in violation of General Statutes (Rev. to 2007) § 53a-56b, three counts of risk of injury to a child (with respect to M, J and H) in violation of § 53-21 (a) (1) and three counts of assault in the second degree with a motor vehicle while under the influence of intoxicating liquor (with respect to H and the occupants of the vehicle in the southbound lane) in violation of General Statutes (Rev. to 2007) § 53a-60d. After a jury trial, the defendant was found guilty of risk of injury with respect to M and was acquitted of the remaining counts. She was sentenced to five years incarceration, execution suspended, with five years probation and a fine of $5000.

I

The defendant first claims that the court erred by failing to instruct the jury that the motor vehicle infraction of General Statutes § 14-100a, concerning child safety in motor vehicles, was a lesser included offense of the crime of risk of injury to a child. We are not persuaded.

With respect to the risk of injury charge regarding M, the state charged in its bill of particulars that the defendant committed risk of injury by operating her motor vehicle while under the influence of intoxicating liquor and by not having M properly restrained as required by § 14-100a. ****8 Section 14-100a (d) (1) provides in relevant part: “Any person who transports a child six years of age and under or weighing less than sixty pounds, in a motor vehicle on the highways of this state shall provide and require the child to use a child restraint system approved pursuant to regulations adopted by the Department of Motor Vehicles in accordance with the provisions of chapter 54. . . .”

In her written request to charge, the defendant requested that the jury be instructed that to find her guilty of risk of injury, the jury must find that she either drove while intoxicated or failed to secure the children properly in seat belts or restraining devices. In a supplemental request to charge, the defendant stated: “The state elected in this case not to pursue [§] 14-100a, an infraction. Because the offense is an infraction, the defendant does not have the right to request it as a lesser included offense for the jury’s consideration. Pivotal to the state’s claim is that the defendant wilfully failed to assure her children were restrained. This mental state is considerably more culpable than mere negligence. The jury should be alerted that there is an infraction for which the defendant can be found guilty. The defendant cannot have committed the offense of risk of injury to a minor without satisfying the elements of [§] 14-100a. But for the fact that the offense is an infraction, [§] 14-100a would be an appropriate lesser included offense under State v. Whistnant [179 Conn. 576, 583,427 A.2d 414 (1980)]. It is fundamentally unfair and a violation of due process to permit the jury to labor under the assumption that [their] only choice in assessing the seat belt issue is a felony; lawmakers have created an infraction that arguably covers the conduct in question.” (Emphasis added.)

At the charging conference, the court noted that its intended charge seemed to accomplish the same goal as the defendant’s supplemental request and asked defense counsel to expand on his argument. Defense counsel explained that the defendant was not entitled to have a jury consider § 14-100a as a lesser included offense because a violation of that statute is an infraction for which the defendant is not entitled to a jury trial. Defense counsel argued that the jury, however, should know that there is an infraction that corresponds to the risk of injury counts so that it could be argued to the jury during closing arguments that the infraction does not require wilfulness or deliberate indifference, which risk of injury requires, and which, the defendant argues, the state failed to prove. Defense counsel then stated that while he had not found case law supporting the proposition that the defendant was entitled to a lesser included offense instruction on an infraction, “I would claim that I have that right as a matter of due process, anticipating the [trial court is] not willing to go where no court has ever gone before, I do believe the information is appropriate for the jury so that I can say to them during closing argument, I’m not asking you to forgive everything that you saw in this case, but I’m asking you to be mindful of . . . the fact that the state has charged a felony here. . . . That infraction is not before you . . . .” The court stated that it could accomplish that purpose by adding language to the charge indicating that the jury would not be asked to decide whether the defendant violated § 14-100a, and that a violation of § 14-100a does not in and of itself satisfy the risk of injury statute because a conviction of risk of injury requires proof of additional elements. The court asked if counsel had any objections to its proposed charge, to which defense counsel responded: “I do not.” After discussing the specifics of other instructions, the court asked counsel if they agreed that the instructions accurately reflected the law of the state and the elements of the offenses, to which defense counsel responded: “Alas, I do.”

Following closing arguments and outside the presence of the jury, the court discussed with counsel the charge that it had drafted in response to defense counsel’s supplemental request to charge. Defense counsel stated: “I . . . continue to believe that ... an injustice has worked on my client by her not being able to have [§] 14-100a as a lesser included offense. So, I . . . don’t abandon that claim.” Defense counsel added that “without abandoning the claim, I have no further objections to the charge.”

With respect to the intexplay between the risk of injury charge and § 14-100a, the court charged the jury that “the state has argued that the defendant placed [M], [J] and [¶] . . . at risk of harm by driving while intoxicated. With respect to [J] and [M] . . . only, not [¶] . . . the state also argues that she failed to properly secure or restrain them with seat belts or child restraining systems. As to this basis upon which the state relies, you are instructed that under Connecticut laws, specifically title 14, § 100a, an operator of a vehicle is required, for a child six years old or under, or one who weighs less than sixty pounds, to provide and require use of a child restraint system. For children between the ages of seven and sixteen who weigh over sixty pounds, the operator must require the use of either a child restraint system or the use of seat belts. If you find that the defendant violated these specific provisions under Connecticut law, that fact alone does not satisfy the elements of the . . . risk of injury charge. In this count, you are not being asked to render a verdict as to whether the defendant violated this provision of Connecticut law. It is, however, a factor you may consider in determining whether the state has met its burden of proof. In summary, the state must prove beyond a reasonable doubt that the defendant wilfully caused or permitted the minor to be placed in a situation inimical to the child’s welfare; the situation endangered his or her life or limb; and, the minor was under sixteen years of age at the time. If you unanimously find that the state has proved beyond a reasonable doubt each of the elements of the crime of risk of injury to a minor, then you shall find the defendant guilty. On the other hand, if you unanimously find that the state has failed to prove beyond a reasonable doubt any of the elements, you shall find the defendant not guilty.”

We set forth the relevant standard of review. “[T]here is no fundamental constitutional right to a jury instruction on every lesser included offense .... State v. Whistnant, [supra, 179 Conn. 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 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. Id., 588.

“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, 260 Conn. 730, 744-45, 799 A.2d 1056 (2002).

“It is well settled that ... [a] proposed instruction on a lesser included offense constitutes an appropriate instruction for purposes of the first prong of Whistnant if it complies with Practice Book [§ 42-18]. ... We previously . . . held, in the context of a written request to charge on a lesser included offense, [that the] requirement of [§ 42-18] is met only if the proposed request contains such a complete statement of the essential facts as would have justified the court in charging in the form requested.” (Internal quotation marks omitted.) State v. Jones, 289 Conn. 742, 759, 961 A.2d 322 (2008); see also Practice Book § 42-18. “While this court does not favor unyielding adherence to rules of procedure where the interests of justice are thereby disserved . . . the ever increasing refinement of our law justifies cooperation of counsel in stating requests for jury instruction. The minor burden of cooperation imposed by [Practice Book § 42-18] is neither unreasonable nor novel.” (Internal quotation marks omitted.) State v. Corbin, supra, 260 Conn. 747.

The defendant argues that all four prongs of Whist-nant are satisfied. With respect to the first prong, she argues that although her request “did not comply with the letter of every Practice Book stricture, it substantially complied with its spirit adequately enough to inform the trial court of the legal basis for the charge, and the factual foundation as well, as is evidenced by the request itself and the extensive arguments held regarding it.”

Even if we were to assume, without deciding, that an infraction can be considered a lesser included offense, we conclude that the defendant’s claim nevertheless fails under the first prong of Whistnant. The defendant’s written requests to charge specifically and expressly did not request a lesser included offense instruction. The defendant’s initial request to charge did not mention § 14-100a. In her supplemental request to charge, the defendant did not request a lesser included offense instruction as to § 14-100a but, rather, stated that she did not have the right to such a lesser included offense instruction, though she wished that she did. The defendant requested only that the court alert the jury to the existence of the infraction and that the additional element of intent was required. The court did so in its juiy charge.

At the charging conference, the defendant persisted in her position that she was not entitled to a lesser included offense instruction as to § 14-100a. Defense counsel stated that the defendant was not entitled to a lesser included offense instruction as to § 14-100a because a violation of that statutoiy section was an infraction. Defense counsel noted that he had not found case law supporting the proposition that the defendant is entitled to a lesser included offense instruction on an infraction and that he did not anticipate that the court would be “willing to go where no court has ever gone before . . . .” Defense counsel argued that for fairness, the court should instruct the jury as to the existence of § 14-100a but should tell the jury that the question of whether § 14-100a was violated as a separate offense was not for its consideration. The court stated that it would add such language to its instruction, and defense counsel stated that he had no objection.

Despite having consistently taken the position that the defendant was not entitled to a lesser included offense instruction as to § 14-100a, after closing arguments and prior to the court’s jury charge, defense counsel stated that he was not “abandoning” the defendant’s claim that she was entitled to a lesser included offense instruction as to § 14-100a.

Defense counsel’s last minute statement prior to the jury charge that he was not “abandoning” a claim that he had not previously made does not satisfy the first prong of Whistnant. See State v. Rudd, 62 Conn. App. 702, 707, 773 A.2d 370 (2001) (“[w]e have further rejected the view that an in-court discussion of whether the [requested] charge was warranted, held immediately before the court’s charge to the jury, is an acceptable alternative to the rules of practice” [internal quotation marks omitted]). Although detailed colloquies that adequately inform the court of the factual and legal bases for the instructional request accompanied by incomplete written requests in partial compliance with Practice Book § 42-18 can satisfy the first prong of Whistnant; see State v. Smith, 262 Conn. 453, 466, 815 A.2d 1216 (2003); such is not the case here. The supplemental request to charge fully informed the court that a lesser included offense instruction was not being pursued. Until defense counsel's last minute exception, which again did not assert the right for an instruction, he had maintained that the defendant was not entitled to a lesser included offense instruction as to § 14-100a. His last minute statement, in which he cited no case law, did not adequately inform the court or give the court cause to investigate the law. The “request” was made after counsel had argued to the jury and after the time customarily allowed for formal requests to be filed. Defense counsel’s statement was at best confusing in that it was in response to a charge that he had requested and that was inconsistent with the position he had maintained until that time. In State v. Corbin, supra, 260 Conn. 747, our Supreme Court held that the defendant’s request for a lesser included offense instruction did not satisfy the first prong of Whistnant because it was “confusing, which Practice Book § 42-18 seeks to prevent.”

The defendant, however, argues that although her “request may be inartful, any nonconformity in the defendant’s request should not be deemed fatal because, as in [State v. Arena, 235 Conn. 67, 77, 663 A.2d 972 (1995)], the defendant here labored to fashion an adequate request in an unsettled frontier of the law.” In Arena, our Supreme Court held that the defendant’s failure to cite specific authority in his request to charge, where it was unsettled whether the offense at issue was a lesser included offense of the charged crime, was not fatal. Id. In Arena, the defendant clearly and unequivocally asked for a lesser included offense instruction in his written request to charge. Id., 70. In the present case, unlike Arena, defense counsel failed to request a lesser included offense instruction as to § 14-100a at all and maintained until just prior to the court’s charge to the jury that the defendant was not entitled to such an instruction. As stated previously in this opinion, defense counsel’s last minute exception was not sufficient to satisfy the first prong of Whistnant.

II

The defendant next claims that the court committed plain error by denying her posttrial motion for a new trial. We are not persuaded.

Our Supreme Court “recently clarified the two step framework under which [an appellate court] review[s] claims of plain error. First, we must determine whether the trial court in fact committed an error and, if it did, whether that error was indeed plain in the sense that it is patent [or] readily discemable on the face of a factually adequate record, [and] also . . . obvious in the sense of not debatable. . . . [T]his inquiry entails a relatively high standard, under which it is not enough for the defendant simply to demonstrate that his position is correct. Rather, the party seeking plain error review must demonstrate that the claimed impropriety was so clear, obvious and indisputable as to warrant the extraordinary remedy of reversal. . . .

“In addition, although a clear and obvious mistake on the part of the trial court is a prerequisite for reversal under the plain error doctrine, such a finding is not, without more, sufficient to warrant the application of the doctrine. Because [a] party cannot prevail under plain error unless it has demonstrated that the failure to grant relief will result in manifest injustice . . . under the second prong of the analysis we must determine whether the consequences of the error are so grievous as to be fundamentally unfair or manifestly unjust. . . . Only if both prongs of the analysis are satisfied can the appealing party obtain relief.” (Internal quotation marks omitted.) Crawford v. Commissioner of Correction, 294 Conn. 165, 205, 982 A.2d 620 (2009).

In her posttrial motion for a new trial, the defendant argued, inter alia, that she was deprived of her right to a jury charge on the lesser included offense of § 14-100a. In denying the motion, the court reasoned that, although it believed that such a lesser included offense instruction could properly be given, the defendant failed to satisfy, inter alia, the first prong of Whistnant.

The court’s denial of the defendant’s motion for a new trial did not constitute error. As we have stated previously in part I of this opinion, the defendant failed to satisfy the first prong of Whistnant and, thus, was not entitled to a lesser included offense instruction on § 14-100a. The defendant’s claim does not present the type of extraordinary situation that warrants application of the plain error doctrine.

Ill

The defendant last claims that the court erred in denying her motion for a judgment of acquittal with respect to her conviction of risk of injury to a child based on insufficient evidence. 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.” (Internal quotation marks omitted.) State v. Cook, 287 Conn. 237, 254, 947 A.2d 307, cert. denied, 555 U.S. 970, 129 S. Ct. 464, 172 L. Ed. 2d 328 (2008).

In its bill of particulars, the state charged that the defendant committed risk of injury to a child by, inter alia, not having her children properly restrained as required by § 14-100a. Section 14-100a (d) (1) provides in relevant part that “[a]ny person who transports a child six years of age and under or weighing less than sixty pounds, in a motor vehicle on the highways of this state shall provide and require the child to use a child restraint system approved pursuant to regulations adopted by the Department of Motor Vehicles in accordance with the provisions of chapter 54. . . .” The only element with which the defendant takes issue is that of an approved child restraint system. She argues that no evidence was elicited at trial as to what constitutes an approved child restraint system.

A child seven years of age or older and weighing sixty or more pounds is required to “use an approved child restraint system or ... a seat safety belt. . . .” (Emphasis added.) General Statutes § 14-100a (d) (1). The use of the word “or” in the statute when prescribing the safety requirements for children over seven years of age and weighing more than sixty pounds indicates that a seat safety belt is not the same as a child restraint system. Children under six years of age or weighing less than sixty pounds, such as M, are required under the statute to be secured using a child restraint system.

The evidence demonstrated that M was not using anything other than a lap belt. Joseph Rubin, who lived near the accident scene, pulled M from the burning car. Rubin testified that M was not in a child safety seat and was wearing only a lap belt. Medical testimony revealed that M’s internal organs suffered fatal injuries as a result of her lap belt being above her abdomen instead of at her thighs. The jury reasonably could have determined that M was wearing only a lap belt. Under the statute, a lap belt was not sufficient.* * The jury reasonably could have concluded that because the defendant secured M using only a lap belt, that M was not secured using an approved child restraint system.

The judgment is affirmed.

In this opinion the other judges concurred.

       The defendant was also charged with, but found not guilty of, two additional counts of risk of injury to a child in violation of § 53-21 (a) (1), two counts of manslaughter in the second degree with a motor vehicle while under the influence of intoxicating liquor in violation of General Statutes (Rev. to 2007) § 53a-56b and three counts of assault in the second degree with a motor vehicle while under the influence of intoxicating liquor in violation of General Statutes (Rev. to 2007) § 53a-60d. Although § 53-21 was amended by No. 07-143, § 4, of the 2007 Public Acts, those amendments have no bearing on the merits of this appeal. For convenience, we refer to the current revision of the statute.

       The defendant also claims that the court committed plain error by failing to instruct the jury on § 14-100a as a lesser included offense of risk of injury to a child. “Plain error review is reserved for truly extraordinary situations [in which] the existence of the error is so obvious that it affects the fairness and integrity of and public confidence in the judicial proceedings.” (Internal quotation marks omitted.) State v. Myers, 290 Conn. 278, 287-88, 963 A.2d 11 (2009). This is not an extraordinary situation for which the application of the plain error doctrine is reserved.

       The defendant argues that because the jury found her not guilty of all counts that relied solely on a theory of intoxication and found her guilty of only one count of risk of iryury, the jury must have found her guilty of risk of injury under the theory that she had violated § 14-100a, rather than the theory of intoxication. The defendant’s argument assumes that juries cannot return inconsistent verdicts, which is not the state of the law; see State v. Arroyo, 292 Conn. 558, 575-86, 973 A.2d 1254 (2009), cert. denied, 559 U.S. 911, 130 S. Ct. 1296, 175 L. Ed. 2d 1086 (2010). In light of the view we take of the case, however, we need not address this issue.

       It is clear in context that defense counsel wistfully was expressing his precatory view that it would be more fair if the infraction could be charged as a lesser included offense. He was at the same time apparently agreeing that the current state of the law did not require the charge.

       Practice Book § 42-18 (a) provides: "When there are several requests, they shall be in separate and numbered paragraphs, each containing a single proposition of law clearly and concisely stated with the citation of authority upon which it is based, and the evidence to which the proposition would apply. Requests to charge should not exceed fifteen in number unless, for good cause shown, the judicial authority permits the filing of an additional number. If the request is granted, the judicial authority shall apply the proposition of law to the facts of the case.”

       The defendant’s argument that the language in her written request reflects the court’s erroneous opinion that she was not entitled to the lesser included offense charge is unavailing. The record does not indicate that prior to the defendant’s filing of her supplemental request to charge that the court was unwilling to give the lesser included offense instruction. It was the defendant who maintained that she was not entitled to such an instruction. When the defendant changed position and took an exception to the charge, the court at that time stated that to the extent that the defendant requested a lesser included offense instruction as to § 14-100a, such a request was denied.
      We note that the question of whether in general an infraction may be considered a lesser included offense has not been definitively answered in this jurisdiction. See, e.g., State v. Hancich, 200 Conn. 615, 619, 513 A.2d 638 (1986); State v. Rudd, 62 Conn. App. 702, 705 n.5, 773 A.2d 370 (2001); State v. Kluttz, 9 Conn. App. 686, 699-701, 521 A.2d 178 (1987).

       As stated in footnote 6 of this opinion, it is not plain that the failure of the court in this case to charge that an infraction can be a lesser included offense of risk of injury to a child is error at all, much less plain error.

       General Statutes § 14-100a (d) (1) provides in relevant part that “[a]ny person who transports a child six years of age and under or weighing less than sixty pounds, in a motor vehicle on the highways of this state shall provide and require the child to use a child restraint system approved pursuant to regulations adopted by the Department of Motor Vehicles in accordance with the provisions of chapter 54. Any person who transports a child seven years of age or older and weighing sixty or more pounds, in a motor vehicle on the highways of this state shall either provide and require the child to use an approved child restraint system or require the child to use a seat safely belt. ...”

       At oral argument, the defendant’s attorney agreed, in response to questioning from the panel, that, given the language of § 14-100a, specifically, the use of the word “or,” that an approved child restraint system is something other than merely a lap belt. The defendant argues, however, that M could have been restrained using a device that otherwise could have satisfied the law. That argument fails because the evidence demonstrated that M was secured using only a lap belt.