author: BEAR, J.

text:
    STATE OF CONNECTICUT v. CHRISTOPHER LEWIS
    (AC 34798)
    Alvord, Bear and Flynn, Js.

      Argued September 12
    officially released November 5, 2013

      Bradford Buchta, assistant public defender, for the appellant (defendant).

      Jennifer F. Miller, special deputy assistant state’s attorney, with whom, on the brief, were John C. Smriga, state’s attorney, and Michael A. DeJoseph, assistant state’s attorney, for the appellee (state).
   Opinion

BEAR, J.

The defendant, Christopher Lewis, appeals from the judgment of conviction, rendered after a jury trial, of assault in the second degree in violation of General Statutes § 53a-60 (a) (1), and, following his plea of nolo contendere, of being a persistent serious felony offender in violation of General. Statutes § 53a-40 (c) (2). On appeal, the defendant claims that the trial court improperly (1) denied his request to instruct the jury on third degree reckless assault as a lesser included offense of second degree intentional assault, (2) excluded his proffered photographic evidence, in violation of his right to present a defense under the sixth amendment to the federal constitution, and (3) determined that there was sufficient evidence for the state to establish beyond a reasonable doubt that he caused “serious physical injury” to the victim. We affirm the judgment of the trial court.

The jury reasonably could have found the following facts. The victim, Evan Driscoll, accompanied Stephanie Bernier to the courthouse in Norwalk on June 1, 2011. Bernier was the defendant’s girlfriend, and they both had been arrested the previous night in connection with an incident in Norwalk witnessed by Driscoll. The incident had caused Driscoll to call the police. According to Driscoll’s testimony, the defendant approached Driscoll as he and Bernier exited the courthouse, asked whether Driscoll had called the police, and threatened Driscoll. The defendant admitted that he asked Driscoll about the call to the police but denied threatening Driscoll.

The following day, on June 2, 2011, the defendant and Driscoll had another encounter, at the intersection of Fairfield Avenue and West Avenue in Bridgeport. Driscoll testified at trial that he was walking down Fairfield Avenue and texting on his cell phone when the defendant approached him and punched him in the side of the head with a closed fist. The defendant punched Driscoll in the side of the head several more times. Driscoll then fell to the ground and curled into a fetal position while the defendant kicked him in the head.

The defendant disputed Driscoll’s version of the incident at trial and testified that Driscoll approached him while he was walking toward a store at the comer of Fairfield Avenue and West Avenue. Driscoll was accompanied by another male, and Driscoll was “[n]ot very hostile but he was hostile . . . .” The defendant was “caught ... off guard” and “couldn’t believe [this] was happening . . . .’’He “was just responding” and hit Driscoll, as “[n]othing but shock” went through the defendant’s head. The defendant did not intend to injure Driscoll; he was “just responding and going off instincts . . . He “was confused [because] things happened so quick.” The defendant conceded that he kicked Dris-coll in the head once after Driscoll fell to the ground.

During the incident, the mayor of Bridgeport, William Finch, was driving his city issued vehicle toward the intersection of Fairfield Avenue and West Avenue. His son, Peter Finch, was sitting in the passenger’s seat. Peter Finch noticed the “very harsh” and “violent beating” and alerted his father, who turned on the vehicle’s red and blue flashing lights and pulled over to intervene. Mayor Finch and his son exited the vehicle, and Mayor Finch yelled at the defendant to stop. The defendant testified that he was “stuck” and “didn’t know what was going on” when Mayor Finch and his son first arrived at the scene. The defendant stopped, looked at Mayor Finch and his son, noticed the vehicle and its fights, and fled the scene. The police apprehended and arrested the defendant several blocks from the intersection.

Mayor Finch and his son stayed with Driscoll until an ambulance arrived. Mayor Finch testified that Dris-coll was “semiconscious,” “in a lot of pain,” and “delirious.” An ambulance soon arrived, and the paramedic on board, Bart Piekarski, rendered aid to Driscoll. Pie-karski testified that Driscoll was cut above the left eye, bruised, and bleeding heavily from the head, face, and mouth. The ambulance transported Driscoll to a hospital, where he received treatment for his injuries.

The defendant was charged with one count of intimidating a witness in violation of General Statutes § 53a-161a and one count of assault in the second degree in violation of § 53a-60. The defendant pleaded not guilty to the charges. Thereafter, the state filed a part B information charging the defendant with being a persistent serious felony offender in violation of § 53a-40 (c) (2). A jury trial followed, from February 29 to March 5,2012.

The defendant made the following three requests during the trial that are now the subject of the present appeal. First, the defendant requested that the trial court instruct the jury on third degree reckless assault in violation of General Statutes § 53a-61 (a) (2) as a lesser included offense of second degree intentional assault in violation of § 53a-60 (a) (1). The defendant submitted a written request to charge and made oral requests both on the record and off the record during a charge conference. The trial court denied the request, and the defendant subsequently took a postcharge exception.

The defendant also requested that the trial court admit into evidence two color photographs of Driscoll taken on June 30, 2011, twenty-eight days after the incident. The photographs depicted Driscoll’s face and profile, both seemingly unmarred by any visible facial injuries. The defendant argued to the trial court that the photographs were “highly relevant because for assault in the second degree, the state has to establish serious physical injury . . . .” The state objected to the admission of the photographs on relevancy grounds, and the court sustained the state’s objection.

Finally, the defendant made an oral motion for a judgment of acquittal at the close of the state’s case and renewed it at the end of the presentation of evidence. One of the grounds for the motion was that “the [s]tate ha[d] not presented sufficient evidence to establish serious physical injury . . . .” The court denied the motion on both occasions.

On March 5, 2012, the jury returned a verdict of not guilty as to the charge of intimidation of a witness and guilty on the charge of assault in the second degree. The defendant subsequently pleaded nolo contendere to the charge of being a persistent serious felony offender contained in the part B information. The court thereupon sentenced the defendant to a ten year term of incarceration. This appeal followed.

I

The defendant first claims that the court improperly denied his request for a jury instruction on third degree reckless assault as a lesser included offense of second degree intentional assault because he met all four prongs of the test in State v. Whistnant, 179 Conn. 576, 588, 427 A.2d 414 (1980), for establishing his entitlement to an instruction on a lesser offense. We are not persuaded.

“A defendant is entitled to an instruction on a lesser 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.

“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 of only the lesser offense.” (Citations omitted; internal quotation marks omitted.) State v. Tomasko, 238 Conn. 253, 260-61, 681 A.2d 922 (1996).

“The Whistnant test is conjunctive, requiring satisfaction of all four prongs.” State v. Smith, 262 Conn. 453, 461, 815 A.2d 1216 (2003). The defendant claims that he has done so. The state in turn argues that the defendant has not satisfied the first, third, or fourth prongs. We conclude that the defendant has not satisfied the third and fourth prongs of Whistnant. See State v. Joseph, 116 Conn. App. 339, 353, 976 A.2d 772 (2009) (analyzing together “the third and fourth prongs of Whistnant because they are subject to the same eviden-tiary analysis”). Accordingly, we need not consider the additional prongs, and we conclude that the court properly denied the defendant’s request to charge on a lesser include offense.

Section 53a-60 (a) provides in relevant part: “Aperson is guilty of assault in the second degree when (1) [w]ith intent to cause serious injury to another person, he causes such injury to such person or to a third person . . . .” (Emphasis added.) Section 53a-61 (a), the basis of the requested jury instruction, provides in relevant part: “A person is guilty of assault in the third degree when ... (2) he recklessly causes serious physical injury to another person . . . .” (Emphasis added.) General Statutes § 53a-3 (13) provides that “[a] person acts ‘recklessly’ with respect to a result or to a circumstance described by a statute defining an offense when he is aware of and consciously disregards a substantial and unjustifiable risk that such result will occur or that such circumstance exists. The risk must be of such nature and degree that disregarding it constitutes a gross deviation from the standard of conduct that a reasonable person would observe in that situation . ...” In contrast, § 53a-3 (11) provides that “[a] person acts ‘intentionally’ with respect to a result or to conduct described by a statute defining an offense when his conscious objective is to cause such result or to engage in such conduct . . .

The following colloquy is the primary basis in the record for this court to conduct our Whistnant analysis, as the defendant concedes that the written request to charge “lacked a statement of the essential facts supporting the request”; Practice Book § 42-18; and relies upon a combination of the written request and oral request made during the colloquy in support of his claim:

“The Court: . . . We did have a charge conference on Friday afternoon. . . .
“[Defense Counsel]: ... As we discussed in chambers, I was asking the court to instruct the jury both on intentional assault in the third degree and reckless assault in the third degree. My understanding is that the court is going to instruct on intentional assault in the third degree but not reckless.
“The Court: Well, we talked about lesser included offenses.
“[Defense Counsel]: That’s correct, Your Honor.
“The Court: In a case where your client has asserted a self-defense justification to the principal charges.
“[Defense Counsel]: Right.
“The Court: Okay. Please continue.
“[Defense Counsel]: So, I just want to make a record that we are asking for the reckless lesser included offense, and I would submit that there is sufficient evidence for the court to give that charge based on my client’s testimony that he sort of reacted that day. I think there was some testimony that he looked startled when Mr. Finch yelled, and so I think the jury could find that he didn’t have a specific intent and it could find that he was reckless in this case.
“The Court: Because he looked startled?
“[Defense Counsel]: Yes, Your Honor.”

The court denied the defendant’s request: “[A]s I did state in chambers when we had our charge conference, I cannot find a scintilla of evidence which would suggest that the court include an assault in the third degree charge in the reckless category—the recklessness category so that because there’s no evidence, there’s no need to charge and, obviously ... if there is no evidence, I don’t charge on it. That’s very simple. That’s black letter law for many, many years.”

We now consider the request in relation to the third and fourth prongs of Whistnant. “[W]e analyze together the third and fourth prongs of Whistnant because they are subject to the same evidentiary analysis.” State v. Joseph, supra, 116 Conn. App. 353. “Although [we] expressly [reject] the proposition that a defendant is entitled to instructions on lesser included offenses based on merely theoretical or possible scenarios . . . we will, however, consider the evidence available at trial in the light most favorable to the defendant’s request.” (Citation omitted; internal quotation marks omitted.) State v. Smith, supra, 262 Conn. 470.

“Th[e] third prong is satisfied where the evidence suggests at least a possibility that the elements of the lesser offense have been established.” (Internal quotation marks omitted.) State v. Fernandez, 5 Conn. App. 40, 45, 496 A.2d 533 (1985). As to the fourth prong of the Whistnant test, “[w]e must answer [the question of whether it has been met] in the affirmative if viewing the evidence in the light most favorable to the defendant . . . reasonable minds could differ upon the existence or nonexistence of the element that distinguishes the inclusive from the included offense. . . . Otherwise the defendant would lose the right to have the jury pass upon every factual issue fairly presented by the evidence.” (Citations omitted; internal quotation marks omitted.) Id., 46-47.

“While th[e] defendant, of course, was no under obligation to present evidence in his own behalf, we recognize as a practical matter that the defendant, for purposes of the Whistnant test, ought, in order to be entitled to a jury instruction on a lesser included offense, to endeavor to place a particular element of the crime charged sufficiently in dispute under the fourth prong of Whistnant. This could occur either through the right of cross-examination, the major function of which is to put certain matters in dispute, or through evidence presented as part of the defendant’s case. . . . It is not at all improper that the defendant, requesting a lesser included offense instruction, bear an obligation, weak though it may be, to demonstrate that there is evidence sufficiently in dispute to warrant giving the requested instruction. . . . The fourth prong of Whist-nant specifically requires that the proof be sufficiently in dispute. ... In the Whistnant context . . . the proof is sufficiently in dispute where it is of such a factual quality that would permit the finder of fact reasonably to find the defendant guilty on the lesser included offense. . . . [T]he trial court, in making its determination whether the proof is sufficiently in dispute, while it must carefully assess all the evidence whatever its source, is not required to put the case to the jury on a basis [of a lesser included offense] that essentially indulges and even encourages speculations as to [a] bizarre reconstruction [of the evidence].” (Citations omitted; internal quotation marks omitted.) Id., 47-49.

Pursuant to our case law on the first prong of Whist-nant, the factual basis for a proposed jury instruction on a lesser included offense is the factual basis relied upon by a defendant in his request to charge. State v. Smith, supra, 262 Conn. 466; State v. Corbin, 260 Conn. 730, 746, 799 A.2d 1056 (2002). The defendant in the present case, in his request to charge on third degree reckless assault as a lesser included offense, relied upon his testimony that “he sort of reacted that day” and that “he looked startled when Mr. Finch yelled . . . .” We repeat that “[a] person acts ‘recklessly’ with respect to a result or to a circumstance described by a statute defining an offense when he is aware of and consciously disregards a substantial and unjustifiable risk that such result will occur or that such circumstance exists. . . .” General Statutes § 53a-3 (13).

The factual basis relied upon by the defendant in his request to charge does not address, let alone possibly establish, the elements of recklessness. Even when we view the defendant’s testimony of his “reactive,” “startled” behavior in the light most favorable to his request, we cannot reasonably discern from it the possibility that he was aware of but consciously disregarded a risk that he would cause serious physical injury to Driscoll. The defendant punched Driscoll, knocked him to the ground, and kicked him in the head before Mayor Finch and his son arrived. By the time Mayor Finch and his son arrived, Driscoll was lying on the ground and bleeding profusely. The defendant may have been “startled” when Mayor Finch arrived and yelled at him, but that does not excuse or justify his prior actions.

Because we cannot reasonably discern the possibility of recklessness from the testimony relied upon by the defendant in support of his request to charge, we also cannot view such testimony to have provided a reasonable basis for the jury to consider the existence of such recklessness. We thus conclude that the defendant was not entitled to a jury instruction on third degree reckless assault as a lesser included offense of second degree intentional assault, because his request to charge did not satisfy the third and fourth prongs of Whistnant.

II

The defendant next claims that the court improperly excluded his evidentiary proffer of two color photographs depicting Driscoll’s face without visible injury twenty-eight days after the punching and kicking incident, because these photographs were relevant to the issue of whether the defendant caused “serious physical injury” to Driscoll under §§ 53a-3 (4) and 53a-60. The defendant farther claims that this exclusion violated his sixth amendment right to present a defense. We are not persuaded.

“The standard of review we apply to a trial court’s evidentiary rulings is well settled. Such rulings are entitled to great deference. . . . The trial court is given broad latitude in ruling on the admissibility of evidence, and we will not disturb such a ruling unless it is shown that the ruling amounted to an abuse of discretion. . . . In our review, we make every reasonable presumption in favor of upholding the trial court’s ruling.” (Internal quotation marks omitted.) State v. Thomas, 110 Conn. App. 708, 716, 955 A.2d 1222, cert. denied, 289 Conn. 952, 961 A.2d 418 (2008).

“The federal constitution require[s] that criminal defendants be afforded a meaningful opportunity to present a complete defense. . . . The sixth amendment . . . [guarantees] the right to offer the testimony of witnesses, and to compel their attendance, if necessary, [and] is in plain terms the right to present a defense, the right to present the defendant’s version of the facts as well as the prosecution’s to the jury so that it may decide where the truth lies. . . . Where defense evidence is excluded, such exclusion may give rise to a claim of denial of the right to present a defense. . . . A defendant is, however, bound by the rules of evidence in presenting a defense. . . . Although exclusionary rules of evidence cannot be applied mechanistically to deprive a defendant of his rights, the constitution does not require that a defendant be permitted to present every piece of evidence he wishes. ... If the proffered evidence is not relevant, the defendant’s right to confrontation is not affected, and the evidence was properly excluded.” (Internal quotation marks omitted.) State v. Winot, 294 Conn. 753, 775-76, 988 A.2d 188 (2010).

“ ‘Relevant evidence’ means evidence having any tendency to make the existence of any fact that is material to the determination of the proceeding more probable or less probable than it would be without the evidence.” Conn. Code Evid. § 4-1. “Evidence that is not relevant is inadmissible.” Conn. Code Evid. § 4-2. “Evidence is irrelevant or too remote if there is such a want of open and visible connection between the evidentiary and principal facts that, all things considered, the former is not worthy or safe to be admitted in the proof of the latter.” (Internal quotation marks omitted.) State v. Bell, 113 Conn. App. 25, 44-45, 964 A.2d 568, cert. denied, 291 Conn. 914, 969 A.2d 175 (2009).

“No precise and universal test of relevancy is furnished by the law, and the question must be determined in each case according to reason and judicial experience. . . . The trial judge must consider many factors in ruling on relevancy. ... In arriving at its conclusion, the trial court is in the best position to view the evidence in the context of the entire case, and we will not intervene unless there is a clear abuse of the court’s discretion. On appeal, we are limited in our review to a determination of whether, under the circumstances of the case, in exercising its broad discretion, the trial court could legally act as it did, and not whether we, under the same circumstances, would make the same ruling.” (Citations omitted.) State v. Aspinall, 6 Conn. App. 546, 554, 506 A.2d 1063 (1986).

The defendant claims that the photographs were relevant to the issue of whether he caused “serious physical injury” to Driscoll because they depicted Driscoll’s lack of permanent injury, a factor that the jury should have been able to consider in its decision-making process. The state argues in turn that the court properly sustained its objection to the photographs as irrelevant because (1) the photographs did not depict the state of Driscoll’s broken bones or chipped teeth, which the state identified as the “serious physical injuries” at issue during trial, and (2) the relevant statutes do not list permanency as a criterion for “serious physical injury,” which undermines the link that the defendant seeks to establish between a lack of permanency and a lack of seriousness with respect to Driscoll’s injuries. We conclude that the court did not abuse its discretion in sustaining the state’s objection.

In objecting to the admission of the photographs, the prosecutor argued: “I would submit that because the photographs were taken four weeks later and are not X rays, but just photographs that they are not relevant to whether or not he suffered a serious physical injury because, as Your Honor knows, it’s the chipped teeth and the broken bones that are the serious physical injury. So, therefore, if they are being offered to show that he did not suffer serious physical injury, as [defense counsel] claims, they are not relevant because they are not X rays and they don’t show his teeth. So, that and combined with twenty-eight days later, I think that now we’re just getting so far away from the event that I think we passed the point where the photographs would be relevant . . . The prosecutor reiterated that Dris-coll’s broken bones and chipped teeth were the “serious physical injuries” at issue during his closing argument: “The state would submit to you that the broken nose and the broken orbital bone are serious physical injury. The state would submit to you that the chipped teeth are a permanent injury.”

In response to the state’s objection to the admission of the photographs, the defendant in turn provided: “Your Honor, you know, I agree. The photos don’t show his teeth and they don’t show inside his body, you know, his bones and things like that, but those weren’t the only injuries that we heard testimony about.” The defendant similarly argues in his reply brief that the photographs were relevant on the issue of “serious physical injury,” despite the state’s stance that “they fail to depict the victim’s internal injuries,” because “the information was broadly worded, and the state never limited the alleged ‘serious physical injury’ to only the victim’s internal injuries . . . .” (Citation omitted.)

The defendant’s position does not accord with our well established relevancy standards. “One fact is relevant to another fact whenever, according to the common course of events, the existence of the one, taken alone or in connection with other facts, renders the existence of the other either certain or more probable.” (Internal quotation marks omitted.) State v. Lombardo, 163 Conn. 241, 243, 304 A.2d 36 (1972). Here, the defendant posits that the photographs were relevant because their depiction of the absence of some permanent injuries, twenty-eight days after the fact, rendered the absence of any serious injuries to be certain or more probable. The defendant thus has not established that the court abused its discretion in excluding the photographs on relevancy grounds.

We also note that the defendant’s claim is inconsistent with the principle that “[i]t is entirely possible to cause serious physical injury without causing disfigurement or a permanent injury.” State v. Denson, 67 Conn. App. 803, 811, 789 A.2d 1075, cert. denied, 260 Conn. 915, 797 A.2d 514 (2002). We previously have commented that we do not know of any authority for the “proposition that the word permanent is linguistically identical to the term serious loss”; id.; as used in our assault statutes and Penal Code. The defendant acknowledges the holding in Denson but nonetheless insists that impermanency is one factor that a jury may consider in deciding whether any injury is a “serious physical injury” for purposes of our assault statutes. The cases to which the defendant cites for support are distinguishable, however, not only because of their individual facts but also because they all involved permanent, not impermanent, injuries. See, e.g., State v. Nelson, 118 Conn. App. 831, 848, 986 A.2d 311 (burn marks and scars caused by defendant pressing heated tools on victim’s face and abdomen), cert. denied, 295 Conn. 911, 989 A.2d 1074 (2010); State v. Alford, 37 Conn. App. 180, 185, 655 A.2d 782 (1995) (child’s head injuries caused by defendant’s abuse); State v. Suarez, 23 Conn. App. 705, 711, 584 A.2d 1194 (1991) (facial wounds caused by defendant striking victim in face with glass). The defendant has not provided and we have not found any authority for the proposition that impermanency can correlate with a lack of seriousness for purposes of defining a physical injury as “serious” under §§ 53a-3 (4) and 53a-60 (a) (1), despite our holding in Denson.

We hold for the foregoing reasons that the court properly exercised its discretion in sustaining the state’s objection to the admission of the photographs on relevancy grounds. “Because the trial court did not abuse its discretion in ruling that the evidence was irrelevant, the defendant’s sixth amendment [right] ... to present a defense [was] not violated.” State v. Davis, 298 Conn. 1, 28, 1 A.3d 76 (2010).

m

Finally, the defendant claims that the evidence was insufficient to establish beyond a reasonable doubt that he caused “serious physical injury” to Driscoll, per § 53a-60 (a) (1). We are not persuaded. “In reviewing a sufficiency of the evidence claim, we apply a two part test. First, we construe the evidence in the light most favorable to sustaining the verdict. Second, we determine whether upon the facts so construed and the inferences reasonably drawn therefrom the [jury] reasonably could have concluded that the cumulative force of the evidence established guilt beyond a reasonable doubt .... This court cannot substitute its own judgment for that of the jury if there is sufficient evidence to support the jury’s verdict. ... On appeal, we do not ask whether there is a reasonable view of the evidence that would support a reasonable hypothesis of innocence. We ask, instead, whether there is a reasonable view of the evidence that supports the jury’s verdict of guilty.” (Internal quotation marks omitted.) State v. Stephen J. R., 309 Conn. 586, 593-94, 72 A.3d 379 (2013).

Section 53a-3 (4) provides: “ ‘Serious physical injury’ means physical injury which creates a substantial risk of death, or which causes serious disfigurement, serious impairment of health or serious loss or impairment of the function of any bodily organ . . . .” “Although it may be difficult to distinguish between a serious physical injury and a physical injury, such a distinction must be drawn here. A person can be found guilty of assault in the second degree under ... § 53a-60 only if he causes serious physical injury to another person. . . . Whether the physical injury sustained . . . was serious [is] a question of fact for the jury, assuming sufficient evidence [was] introduced.” (Citation omitted; emphasis in original; internal quotation marks omitted.) State v. McCulley, 5 Conn. App. 612, 615, 501 A.2d 392 (1985).

The defendant claims that the evidence was insufficient to establish beyond a reasonable doubt that he caused “serious physical injury” to Driscoll under §§ 53a-3 (4) and 53a-60 (a) (1) for the following reasons: (1) Driscoll’s injuries were not as grievous as injuries that this court and our Supreme Court have previously held to be “serious physical injuries” under our Penal Code and assault statutes; (2) Driscoll never lost consciousness during the incident; (3) the state did not provide expert testimony regarding the severity of Dris-coll’s injuries; (4) the medical records undermined any testimony by Driscoll regarding his injuries because they documented the absence of “significant injury” and his denial of weakness, dizziness, visual loss, and pain in the neck, back, chest, or abdominals; (5) Driscoll was treated in the emergency room and discharged the same night; and (6) Driscoll received minimal treatment for his injuries, which healed on their own.

The evidence also demonstrated, however, that Dris-coll (1) suffered a forehead laceration that required stitches and did not fully heal for “maybe two weeks”; (2) suffered fractures to his right orbital floor and nasal bones; (3) experienced blurred vision for “[s]ix weeks at least” after the incident; (4) had difficulty breathing through his nose for “at least two to three weeks” after the incident because “a lot of blood clots [were] coming out”; and (5) had “[a]t least four” chipped teeth from the incident, which were still chipped at the time of trial. On the basis of the evidence, construed in the light most favorable to sustaining the verdict, and the inferences that reasonably could be drawn therefrom, the jury reasonably could have concluded that Driscoll suffered physical injury that “cause [d] serious disfigurement” and/or “serious impairment of health,” such that he suffered “serious physical injury” under §§ 53a-3 (4) and 53a-60 (a) (1).

The defendant’s position on what constitutes “serious physical injury” under our assault statutes also is contrary to several statements previously made by this court and our Supreme Court on the subject. First, regarding the issue of how grievous an injury must be to qualify as a “serious physical injury,” our Supreme Court determined in State v. Ovechka, 292 Conn. 533, 545-47, 975 A.2d 1 (2009), that the serious physical injury inquiry is fact intensive and not predicated upon a threshold showing of grievousness. In addition, with respect to the defendant’s argument on the necessity of expert testimony, we have noted that “[o]ur case law . . . does not require medical testimony to establish the element of serious physical injury,” so long as “there [is] sufficient direct or circumstantial evidence or a combination of both presented to the jury from which it may find such injury.” State v. Rumore, 28 Conn. App. 402, 414, 613 A.2d 1328, cert. denied, 224 Conn. 906, 615 A.2d 1049 (1992). Furthermore, in response to the defendant’s contention that the inconsistency between the medical reports and Driscoll’s testimony renders the evidence insufficient, we have repeatedly provided that “[e]vidence is not insufficient [merely] because it is conflicting or inconsistent.” (Internal quotation marks omitted.) State v. Little, 138 Conn. App. 106, 110, 50 A.3d 360, cert. denied, 307 Conn. 935, 56 A.3d 713 (2012); State v. Francione, 136 Conn. App. 302, 312, 46 A.3d 219, cert. denied, 306 Conn. 903, 52 A.3d 730 (2012). Finally, the defendant’s interpretation of the evidence pertaining to Driscoll’s recovery process runs counter to our statement in State v. Barretta, 82 Conn. App. 684, 689-90, 846 A.2d 946, cert. denied, 270 Conn. 905, 853 A.2d 522 (2004), that “a victim’s complete recovery is of no consequence . . . nor is the fact that the skin was not penetrated dispositive” of whether he suffered “serious physical injury.”

We thus cannot say as a matter of law that the jury could not reasonably have found that Driscoll suffered “serious physical injury,” for the aforementioned reasons. See State v. Miller, 202 Conn. 463, 489, 522 A.2d 249 (1987).

The judgment is affirmed.

In this opinion the other judges concurred.

       The defendant argues in his reply brief that the factual basis for his request to charge was not limited to those specific instances of testimony and that instead “the gravamen of [his] argument . . . was that ‘the jury could find that [he] didn’t have a specific intent and it could find he was reckless in this case.’ ” The defendant’s expansive characterization is not consistent with the narrow factual basis actually articulated during the request to charge, however, and we therefore decline to adopt it in conducting our Whistnant analysis.

       “[Although our Penal Code does not define in title 53a of the General Statutes what exactly constitutes disfigurement, as contained in that definition, it is appropriate to look to the common understanding of the term as expressed in a dictionary. ... To disfigure is to blemish or spoil the appearance or shape of; American Heritage Dictionary (New College Ed. 1976); and disfigurement is [t]hat which impairs or injures the beauty, symmetry, or appearance of a person . . . which renders unsightly, misshapen, or imperfect, or deforms in some manner. Ballentine’s Law Dictionary (3d Ed. 1969).” (Citation omitted; internal quotation marks omitted.) State v. Barretta, 82 Conn. App. 684, 689, 846 A.2d 946, cert. denied, 270 Conn. 905, 853 A.2d 522 (2004).

       Our Supreme Court held in Ovechka that “temporary blindness, chemical corqunctivitis and chemical bums” caused by the defendant assaulting the victim with pepper spray could qualify as “serious physical injury” under § 53a-3 (4). State v. Ovechka, supra, 292 Conn. 547.


source: Caselaw Access Project

author: GRUENDEL, J.

license: Public Domain

text:
    INDUSTRIAL MOLD AND TOOL, INC. v. JOSEPH ZALESKI ET AL.
    (AC 35189)
    Gruendel, Bear and Foti, Js.

      Argued September 27
    officially released November 5, 2013

      Joseph R. Sastre, for the appellant (named defendant).

      Nicholas E. DeNigris, for the appellee (plaintiff).
   Opinion

GRUENDEL, J.

This case concerns one plaintiffs straggle to foreclose on a judgment lien. The defendant Joseph Zaleski appeals from the judgment of the trial court denying his motion to open a judgment of foreclosure by sale. The issue before us is whether the court abused its discretion in so doing. We affirm the judgment of the trial court.

The following facts and procedural history are relevant to this appeal. In 2000, the plaintiff, Industrial Mold & Tool, Inc., brought an action sounding in contract against the defendant seeking both money damages and interest stemming from his failure to pay for certain roofing materials supplied by the plaintiff. An attorney fact finder subsequently found that the plaintiff had “sustained $28,296.55 in damages plus interest as alleged in the complaint” against the defendant. The court rendered judgment in accordance therewith on February 9, 2001.

On June 18, 2010, the plaintiff filed a judgment lien on real property known as 43 Osgood Avenue in New Britain (property) that was owned by the defendant. Approximately one month later on July 20, 2010, the defendant transferred the property to Zaleski, Zaleski and Zaleski, LLC. The plaintiff thereafter commenced the present action to foreclose on that judgment lien. Paragraph three of the plaintiffs complaint alleged that “[o]n June 18, 2010, [the underlying] judgment being unsatisfied in the total amount of $31,090.55, the plaintiff caused a certificate of judgment lien to be filed in the office of the Town Clerk of [the] City of New Britain. Said Judgment Lien is dated June 18, 2010, and is recorded in Volume 1797 at Pages 114-116 of the New Britain Land Records. ” In his answer to paragraph three, the defendant claimed insufficient knowledge or information on which to form a belief and, thus, left the plaintiff to its proof. Paragraph four of the complaint alleged that “[s]aid judgment remains unpaid in whole and there is presently due and owing the plaintiff the sum of $31,090.55 plus interest at the statutory rate from February 9, 2001 to this date.” In his answer, the defendant admitted the allegations of paragraph four.

The plaintiff subsequently moved for summary judgment as to liability, which the court granted. The plaintiff then filed a motion for foreclosure by sale, which the court granted on March 21,2011. Finding the present debt to be $62,487.53 and the fair market value of the property to be $82,000, the court set a sale date of May 14, 2011. The sale proceeded on that date, at which the defendant’s son, Jay Zaleski, was the high bidder with a bid of $105,000. When Jay Zaleski failed to close on the property within the requisite thirty day time period, the plaintiff filed a motion to open the judgment and to order a second sale. The court granted that motion and set a new sale date of October 15, 2011. Two days before that sale date, the defendant filed a bankruptcy petition with the United States District Court in Hartford, resulting in an automatic stay of the foreclosure sale. The defendant’s bankruptcy petition was dismissed on December 8, 2011.

Shortly thereafter, the plaintiff filed another motion to open the judgment and asked the court to order a third sale. The court again granted the plaintiffs motion and set a new sale date of April 14, 2012. One day prior to that sale date, the defendant filed a second bankruptcy petition with the United States District Court in Hartford, which once again resulted in an automatic stay of the foreclosure proceedings. On August 23, 2012, the Bankruptcy Court, Dabrowski, J., entered an order modifying that automatic stay to permit the plaintiff “to continue its [s]tate [c]ourt foreclosure action and otherwise exercise its rights, if any, with respect to the [property, in accordance with applicable state law . . . .” The plaintiff then filed yet another motion to open the judgment requesting the court to order a fourth foreclosure sale. The court granted that motion and set a new sale date of October 27, 2012. The court at that time found the existing debt to be $67,121.28 and the fair market value of the property to be $85,000.

Approximately two weeks prior to that sale date, the defendant filed an emergency motion to open the judgment of foreclosure, in which he alleged for the first time that the plaintiff had not been awarded post-judgment interest in the underlying action. After hearing argument thereon, the court denied the defendant’s motion, and this appeal followed.

The defendant claims that the court abused its discretion in denying his motion to open the judgment of foreclosure by sale because the plaintiff was not awarded postjudgment interest in the underlying action. “A motion to open and vacate a judgment ... is addressed to the [trial] court’s discretion, and the action of the trial court will not be disturbed on appeal unless it acted unreasonably and in clear abuse of its discretion. ... In determining whether the trial court abused its discretion, this court must make every reasonable presumption in favor of its action. . . . The manner in which [this] discretion is exercised will not be disturbed so long as the court could reasonably conclude as it did.” (Citations omitted; internal quotation marks omitted.) Walton v. New Hartford, 223 Conn. 155, 169-70, 612 A.2d 1153 (1992); see also Union Trust Co. v. Roth, 58 Conn. App. 481, 481, 755 A.2d 239 (2000) (“[w]hether to grant a motion to open [a judgment of foreclosure by sale] rests in the discretion of the trial court”).

As the defendant states in his appellate brief, the “argument [in his motion to open] was that the [plaintiff] was never granted postjudgment interest.” Yet it is undisputed—as the defendant acknowledged at oral argument before this court—that, in his November 12, 2010 answer, the defendant admitted that postjudgment interest was due and owing to the plaintiff.

Connecticut is a fact pleading jurisdiction. See Practice Book § 10-1; Florian v. Lenge, 91 Conn. App. 268, 274, 880 A.2d 985 (2005). As this court has explained, “[p]leadings are intended to limit the issues to be decided at the trial of a case and [are] calculated to prevent surprise. . . . [The] purpose of pleadings is to frame, present, define, and narrow the issues, and to form the foundation of, and to limit, the proof to be submitted on the trial. . . . Accordingly, [t]he admission of the truth of an allegation in a pleading is a judicial admission conclusive on the pleader. ... A judicial admission dispenses with the production of evidence by the opposing party as to the fact admitted, and is conclusive upon the party making it. . . . [The] admission in a plea or answer is binding on the party making it, and may be viewed as a conclusive or judicial admission. ... It is axiomatic that the parties are bound by their pleadings.” (Citations omitted; internal quotation marks omitted.) Rudder v. Mamanasco Lake Park Assn., Inc., 93 Conn. App. 759, 768-69, 890 A.2d 645 (2006); see also Franchi v. Farmholme, Inc., 191 Conn. 201, 214, 464 A.2d 35 (1983) (answer to allegation in complaint binding as judicial admission); 71 C.J.S. 228, Pleading § 195 (2011) (admission in answer binding on party making it and “supports a presumption or inference of such other facts as normally follow from the establishment of such fact”).

Paragraph four of the plaintiffs complaint alleged that the judgment it obtained on February 9, 2001, against the defendant “remains unpaid in whole and there is presently due and owing the plaintiff the sum of $31,090.55 plus interest at the statutory rate from February 9, 2001 to this date.” (Emphasis added.) The defendant, in his answer, admitted the allegations of paragraph four. In so doing, the defendant conclusively established the fact that postjudgment interest was due and owing to the plaintiff. The defendant did not deny the truth of that allegation or offer any defense thereto; he admitted it and, therefore, is bound by that admission.

“Pleadings have an essential purpose in the judicial process. . . . The purpose of pleading is to apprise the court and opposing counsel of the issues to be tried . . . .” (Internal quotation marks omitted.) Somers v. Chan, 110 Conn. App. 511, 528, 955 A.2d 667 (2008). The defendant’s admission that postjudgment interest was due and owing removed any issue as to whether the plaintiff in fact had been awarded postjudgment interest in the underlying action. Indulging every presumption in favor of the correctness of the court’s decision, we thus cannot say that the court abused its discretion in denying the defendant’s motion to open the judgment of foreclosure.

The judgment is affirmed and the case is remanded for the purpose of setting a new sale date and recalculating the debt.

In this opinion the other judges concurred.

       Although named as a defendant in this action, Zaleski, Zaleski and Zaleski, LLC, is not a party to this appeal. The appeal form and corresponding appearance of Attorney Joseph R. Sastre states that the appeal is filed by defendant Joseph Zaleski. The appellate brief filed by Sastre likewise lists Joseph Zaleski as the “petitioner-appellant” and refers to him alternatively as the “defendant” and the “appellant” throughout. That brief consistently uses those references in the singular and makes no mention whatsoever of Zaleski, Zaleski and Zaleski, LLC. We therefore refer to Joseph Zaleski as the defendant in this opinion.

       The defendant also admitted paragraphs one and two of the first count concerning his ownership of the property and the entry of a prior judgment against him in the amount of $30,722.55 in damages and $368 in costs.


author: PER CURIAM.

text:
    TORRINGTON SAVINGS BANK MORTGAGE SERVICING COMPANY v. NADINE M. CHANCE ET AL.
    (AC 34510)
    Graendel, Lavine and Bear, Js.
    Argued September 23
    officially released November 5, 2013

      Noel R. Chance, self-represented, the appellant (defendant), filed a brief.

      Charles E. Roraback, with whom, on the brief, was Andrew W. Roraback, for the appellee (plaintiff).
   Opinion

PER CURIAM.

The defendant Noel R. Chance appeals from the judgment of the trial court approving the committee’s report, deed, and sale of the defendant’s foreclosed home. On appeal, the defendant claims that the court committed error by not conducting a hearing, sua sponte, to determine whether the plaintiff, Torrington Savings Bank Mortgage Servicing Company, had standing, as the holder of the note, at the time it instituted the foreclosure action. On the basis of the record before us, including the admissions of the defendant in his answer that the plaintiff had been assigned the note and mortgage on April 26, 2007; see Industrial Mold & Tool, Inc. v. Zaleski, 146 Conn. App. 609, 615, 78 A.3d 218 (2013); the foreclosure complaint and documents attached thereto, and the supporting affidavit and documents attached to the plaintiffs motion for summary judgment, we conclude that the defendant has failed to demonstrate that the court committed error by not holding, sua sponte, a full eviden-tiary hearing on the uncontested issue of whether the plaintiff had standing to institute the foreclosure action. See Equity One, Inc. v. Shivers, 310 Conn. 119, 135-36, 74 A.3d 1225 (2013) (holding trial-like evidentiary hearing not necessary to determine whether plaintiff has standing to bring foreclosure action provided procedures followed by trial court are adequate under circumstances).

The judgment is affirmed.

       The named defendant, Nadine M. Chance, is not a party to this appeal. Accordingly, we refer to Noel R. Chance as the defendant.

       The defendant requests that we invoke the plain error doctrine and review his claim, which is unpreserved, because it involves the subject matter jurisdiction of the trial court. Claims involving subject matter jurisdiction, however, cannot be waived, and, although unpreserved, can be raised at any time in the proceedings, including for the first time on appeal. Perez-Dickson v. Bridgeport, 304 Conn. 483, 506, 43 A.3d 69 (2012). Although entitled to review, we conclude nonetheless that the defendant’s claim has no merit.


text:
    WELLS FARGO BANK, N.A. v. AMENA KHATUN
    (AC 34595)
    Gruendel, Latrine and Bear, Js.
    Argued September 23
    officially released November 5, 2013

      Edward Kanowitz, for the appellant (defendant).

      Marc S. Edrich, with whom, on the brief, was Joseph H. Carlisle, for the appellee (plaintiff).
   Opinion

PER CURIAM.

The defendant, Amena Khatun, appeals from the judgment of the trial court denying her motion to open the judgment of strict foreclosure. On appeal, the defendant claims that the trial court abused its discretion by denying her motion to open the judgment and extend the law day. We affirm the judgment of the trial court.

On May 16, 2008, the defendant signed a note in the amount of $405,000 secured by a mortgage encumbering 6 Mulvoy Street in Norwalk. The defendant defaulted on the note, and the plaintiff, Wells Fargo Bank, N.A., the holder of the note, accelerated payment and called the note due in full. The plaintiff commenced the action in June, 2009. The defendant was defaulted for failure to plead, and the court rendered a judgment of strict foreclosure on November 2, 2009. The defendant subsequently filed a motion to open the judgment and extend the law days, which the court granted. Between February, 2010, and April, 2012, the defendant filed additional motions to open the judgment and extend the law days. The court found that the defendant had filed fifteen motions to extend the law days. On February 6, 2012, the court extended the law day to May 8, 2012. On that date, the amount of the debt was $433,287. The court also ordered that further motions to open the judgment had to be filed before April 10,2012, and decided before April 16, 2012. On April 10, 2012, the defendant filed her fifteenth motion to open the judgment and extend the law day. At oral argument on the motion, counsel for the defendant contended that a $200,000 short sale offer that had been presented to the plaintiff was pending. The plaintiff strenuously objected to the motion to open the judgment. The court denied the motion to open on April 16, 2012, but noted that if the short sale offer was accepted, the parties could come before the court with an agreement to vacate the judgment. On May 4, 2012, the defendant appealed claiming that the court abused its discretion by denying her motion to open the judgment.

This court reviews mortgage foreclosure appeals under the abuse of discretion standard. Franklin Credit Management Corp. v. Nicholas, 73 Conn. App. 830, 838, 812 A.2d 51 (2002), cert. denied, 262 Conn. 937, 815 A. 2d 136 (2003). A foreclosure action is an equitable proceeding. See Hamm v. Taylor, 180 Conn. 491, 497, 429 A.2d 946 (1980). “The determination of what equity requires is a matter for the discretion of the trial court. ... In determining whether the trial court has abused its discretion, we must make every reasonable presumption in favor of the correctness of its action. . . . Our review of a trial court’s exercise of the legal discretion vested in it is limited to the questions of whether the trial court correctly applied the law and could reasonably have reached the conclusion that it did.” (Internal quotation marks omitted.) Franklin Credit Management Corp. v. Nicholas, supra, 838.

On the basis of our review of the procedural history and the trial court’s findings and order at the time it ruled on the defendant’s motion to open the judgment of strict foreclosure, we conclude that the court did not abuse its discretion by denying the motion to open the judgment. The defendant filed her fifteenth motion to open the judgment and extend the law days almost three years after the action was commenced and approximately two and one-half years after the judgment of strict foreclosure was rendered. The court’s denial of the motion to open the judgment was reasonable under the circumstances. The defendant has faded to demonstrate that the court abused its discretion.

The judgment is affirmed and the case is remanded for further proceedings.

       The court had granted a prior motion to extend the law days on the basis of a short sale that was not closed.

       The plaintiff claims that the defendant’s appeal is moot because the May 8, 2012 law day has passed and there is no practical relief that this court can afford the defendant. See General Statutes § 49-15 (a). We disagree that the appeal is moot. See Brooklyn Savings Bank v. Frimberger, 29 Conn. App. 628, 630-32, 617 A.2d 462 (1992). When an appeal is filed, enforcement of the judgment is stayed pending the determination of the appeal. See RAL Management, Inc. v. Valley View Associates, 278 Conn. 672, 678, 899 A.2d 586 (2006) (considering appellate stays and amended appeals); Bankers Trust of California, N.A. v. Neal, 64 Conn. App. 154, 159, 779 A.2d 813 (2001) (same). Our rules of practice permit the lifting of an appellate stay pursuant to the filing of a motion to lift the stay. See Practice Book § 61-11. No motion to lift the appellate stay was filed in this case. Theoretically, if the defendant were to prevail in this appeal, this court could afford her relief.


text:
    STATE OF CONNECTICUT v. BRUCE FELDER
    (AC 34892)
    Gruendel, Bear and Foti, Js.
    Argued September 27
    officially released November 5, 2013

      Bruce Felder, self-represented, the appellant (defendant).

      Susan C. Marks, supervisory assistant state’s attorney, with whom, on the brief, were Gail P. Hardy, state’s attorney, and Thomas R. Garcia, senior assistant state’s attorney, for the appellee (state).
   Opinion

PER CURIAM.

The defendant, Bruce Felder, appeals from the judgment of the trial court denying his motion to correct an illegal sentence. The defendant claims that the court erred insofar as it determined that his sentence did not violate the constitutional prohibition against double jeopardy. We affirm the judgment of the trial court.

This court, in a previous appeal, set forth the facts of the underlying criminal case as follows. “On August 16, 2002, Joseph Lewis and Robert Charette, Jr., drove to Hartford in Lewis’ 2001 Chevrolet S-10 pickup track for the purpose of attending an event at the Hartford Civic Center. Once the men arrived in Hartford, they became lost and ended up in the north end of Hartford, where they encountered the defendant while stopped at a traffic light. The defendant pulled Lewis from his vehicle and then took his wallet, money, chain necklace and keys from his person. Charette left the vehicle and fled. The defendant then drove away in the vehicle. Later the next day, the police apprehended the defendant, who was found next to Lewis’ vehicle with the keys to the vehicle on his person.

“The defendant was charged in count one with robbery in the first degree in violation of General Statutes § 53a-134 (a) (3), in count two with conspiracy to commit robbery in the first degree in violation of General Statutes §§ 53a-134 (a) (3) and 53a-48 (a), in count three with larceny in the first degree in violation of [General Statutes] § 53a-122 (a) (3), in count four with larceny in the second degree in violation of [General Statutes] § 53a-123 (a) (3) and in count five with assault in the second degree in violation of General Statutes § 53a-60 (a) (2). After trial, the jury returned a verdict of guilty as to the larceny counts, counts three and four, and not guilty as to counts one, two and five. The court rendered judgment in accordance with the verdict and sentenced the defendant to a total effective term of thirty years incarceration.” State v. Felder, 96 Conn. App. 248, 250-51, 897 A.2d 614, cert. denied, 279 Conn. 905, 901 A.2d 1226 (2006). This court, on grounds unrelated to this appeal, affirmed the judgment of conviction. Id., 263.

On April 16, 2012, the defendant filed a motion to correct an illegal sentence. In support of the motion, the defendant alleged that his sentence violated the prohibition against double jeopardy because his two larceny convictions “arose out of the same transaction and the same series of events, and included a single victim as to each charged offense.” (Emphasis omitted; internal quotation marks omitted.) The court denied the motion on May 15, 2012. In its memorandum of decision, the court stated that “[t]he defendant was convicted of stealing the victim’s motor vehicle and stealing the [victim’s] wallet. In this court’s opinion, those are separate offenses and the court’s sentence does not violate the [djouble [jJeopardy [c]lause.” This appeal followed.

The defendant’s sole claim on appeal is that the court improperly denied his motion to correct an illegal sentence. Specifically, the defendant contends that his convictions of larceny in the first degree and larceny in the second degree constituted the same offense and arose out of the same transaction. To the extent he received separate sentences for each offense, the defendant maintains that his sentence violates the constitutional prohibition against double jeopardy. We are not persuaded.

“The defendant’s double jeopardy claim presents a question of law, over which our review is plenary.” State v. Burnell, 290 Conn. 634, 642, 966 A.2d 168 (2009). “The fifth amendment to the United States constitution provides in relevant part: No person shall ... be subject for the same offense to be twice put in jeopardy of life or limb .... The double jeopardy clause of the fifth amendment is made applicable to the states through the due process clause of the fourteenth amendment.” (Internal quotation marks omitted.) State v. Brown, 299 Conn. 640, 650-51, 11 A.3d 663 (2011).

“Double jeopardy prohibits not only multiple trials for the same offense, but also multiple punishments for the same offense. . . . The double jeopardy analysis in the context of a single trial is a two part process. First, the charges must arise out of the same act or transaction. Second, it must be determined whether the charged crimes are the same offense. Multiple punishments are forbidden only if both conditions are met. . . . The defendant on appeal bears the burden of proving that the prosecutions are for the same offense in law and fact.” (Internal quotation marks omitted.) Id., 651-62.

In the present case, the court’s denial of the defendant’s motion to correct an illegal sentence was predicated on a finding that the charged crimes did not constitute the same offense. Accordingly, the relevant question is whether the charges for first and second degree larceny constitute the same offense. “Traditionally we have applied the [test set out in Blockburger v. United States, 284 U.S. 299, 304, 52 S. Ct. 180, 76 L. Ed. 306 (1932)] to determine whether two statutes criminalize the same offense .... Under that test, where the same act or transaction constitutes a violation of two distinct statutory provisions, the test to be applied to determine whether there are two offenses or only one, is whether each provision requires proof of a fact which the other does not. . . . This test is a technical one and examines only the statutes, charging instruments, and bill of particulars as opposed to the evidence presented at trial. . . . Thus, the issue, though essentially constitutional, becomes one of statutory construction.” (Citations omitted; internal quotation marks omitted.) State v. Alvaro F., 291 Conn. 1, 7, 966 A.2d 712, cert. denied, 558 U.S. 882, 130 S. Ct. 200, 175 L. Ed. 2d 140 (2009).

In the amended long form information, the defendant was charged, in count three, with larceny in the first degree in violation of General Statutes (Rev. to 2001) § 53a-122 (a) (3) and, in count four, with larceny in the second degree in violation of General Statutes (Rev. to 2001) § 53a-123 (a) (3). To convict the defendant of larceny in the first degree pursuant to § 53a-122 (a) (3), the state had to establish that the defendant, with intent to deprive another of property, wrongfully took, obtained, or withheld such property and “the property consists of a motor vehicle, the value of which exceeds ten thousand dollars . . . .” General Statutes (Rev. to 2001) § 53a-122 (a) (3). On the other hand, to convict the defendant of larceny in the second degree pursuant to § 53a-123 (a) (3), the state had to establish the same elements and that the property, “regardless of its nature or value, [was] taken from the person of another . . . .” General Statutes (Rev. to 2001) § 53a-123 (a) (3). Count three did not require the taking of property from another’s person while count four did not require the taking of a motor vehicle with a value in excess of ten thousand dollars. Each charge required proof of a fact that the other did not, and, consequently, the two charges do not constitute the same offense. Thus, the defendant’s double jeopardy claim must fail. See State v. Brown, supra, 299 Conn. 654 (“the protections of the double jeopardy clause are violated only when the charged crimes are the same offense and arose out of the same transaction” [emphasis in original]). The trial court’s denial of the defendant’s motion to correct an illegal sentence was not improper.

The judgment is affirmed.

       The trial court sentenced the defendant to twenty years incarceration on count three and ten years, to run consecutively to the twenty year sentence, on count four.

       In Ms brief, the defendant refers to both the state and federal constitutions but does not specifically identify the basis of Ms double jeopardy claim. We review the defendant’s claim pursuant to the fifth amendment of the federal constitution because “[t]he protection afforded against double jeopardy under the Connecticut constitution mirrors, rather than exceeds, that which is provided by the constitution of the United States.” (Internal quotation marks omitted.) State v. Brown, 299 Conn. 640, 651, 11 A.3d 663 (2011).

       The defendant directs our attention to the fact that both larceny offenses were committed against a single victim, ostensibly in support of his argument that the charges arose from the same transaction. This fact, however, has no bearing on the relevant question of whether the charged crimes constituted the same offense and resulted in multiple punishments for the same crimes.

       Unless otherwise indicated, all references to §§ 53a-122 and 53a-123 are to the 2001 revision.

       General Statutes § 53a-122 (a) (3) was amended by No. 09-138, § 1, of the 2009 Public Acts to require that the value of the motor vehicle exceed twenty thousand dollars. The defendant committed the crimes of which he was charged in 2002 when § 53a-122 (a) (3) required only the value to exceed ten thousand dollars.

       The defendant has not apprised this court of contrary legislative intent that would otherwise preclude application of Blockburger. See State v. Alvaro F., supra, 291 Conn. 12-13 (Blockburger test not controlling where contrary legislative intent is established by defendant).


text:
    STATE OF CONNECTICUT v. JESSE H.

    (AC 34090)
    DiPentima, C. J., and Robinson and Bishop, Js.
    Argued September 16
    officially released November 5, 2013

      Christopher Y. Duby, assigned counsel, for the appellant (defendant).

      Gregory L. Borrelli, certified legal intern, with whom were Bruce R. Lockwood, senior assistant state’s attorney, and, on the brief, Gail P. Hardy, state’s attorney, and Robin D. Krawczyk, 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 use the defendant’s full name or to identify the victim or others through whom the victim’s identity may be ascertained. See General Statutes § 54-86e.

   Opinion

PER CURIAM.

The defendant, Jesse H., appeals from the judgment of conviction, rendered after a jury trial, of two counts of sexual assault in the first degree in violation of General Statutes § 53a-70 (a) (1), and one count of sexual assault in the fourth degree in violation of General Statutes § 53a-73a (a) (2). On appeal, the defendant claims that the court improperly allowed the state to present evidence of uncharged misconduct. We disagree and, accordingly, affirm the judgment of conviction.

The jury reasonably could have found the following facts. The defendant was married to the victim’s biological grandmother and had known the victim her entire life. Because of discord between the victim and her parents, she routinely would stay at her grandparents’ house. In 2009, when the victim was eighteen years old, the victim’s grandmother traveled to Jamaica to visit her relatives for Thanksgiving, and the victim stayed with the defendant. On November 28, 2009, after attending a movie with her mother and brothers, the victim returned to the defendant’s home to sleep. The defendant then sexually assaulted the victim by forcing her to engage in vaginal intercourse.

The defendant was arrested and charged with the aforementioned crimes. The case proceeded to a jury trial, after which the jury found the defendant guilty on all counts. The court rendered judgment accordingly and sentenced him to a total effective sentence of eight years of incarceration, followed by eight years of special parole. This appeal followed.

The defendant contends that the court improperly allowed the state to present evidence of uncharged misconduct. He argues that the evidence was not relevant because it was too remote, and, therefore, that the court should have excluded it at trial. We are not persuaded.

The following additional facts are relevant to the resolution of the defendant’s claim. Before allowing the propensity witness (witness) to testify, the court conducted an in camera hearing to determine the admissibility of the testimony. The witness, who was twenty-five years old when she appeared in court, testified that she was approximately seventeen years old and the stepdaughter of the defendant at the time of the uncharged misconduct. The court found that the uncharged misconduct was “strikingly similar” to the charged offenses, and, after finding the evidence to be relevant, allowed the witness to testify over the defendant’s objection. During the jury charge, the court provided a limiting instruction as to the proper use of the witness’ testimony.

The standard of review regarding the admissibility of propensity evidence in sexual assault cases is well established. “The admission of evidence of . . . uncharged misconduct is a decision properly within the discretion of the trial court. . . . [E]very reasonable presumption should be given in favor of the trial court’s ruling . . . [and its] decision will be reversed only where abuse of discretion is manifest or where an injustice appears to have been done.” (Internal quotation marks omitted.) State v. Barry A., 145 Conn. App. 582, 591, 76 A.3d 211 (2013).

Our Supreme Court, in State v. DeJesus, 288 Conn. 418, 473-74, 953 A.2d 45 (2008), determined that evidence of prior uncharged misconduct is admissible in sex crime cases if three conditions are satisfied. “First, the evidence [must be] relevant to prove that the defendant had a propensity or a tendency to engage in the type of aberrant and compulsive criminal sexual behavior with which he or she is charged. Relevancy is established by satisfying the liberal standard pursuant to which evidence previously was admitted under the common scheme or plan exception. Accordingly, evidence of uncharged misconduct is relevant to prove that the defendant had a propensity or a tendency to engage in the crime charged only if it is: ‘(1) . . . not too remote in time; (2) . . . similar to the offense charged; and (3) . . . committed upon persons similar to the prosecuting witness.’ ” Id., 473. “As to the first of the three relevancy prongs, we compare the time with reference to the period between the cessation of the prior misconduct and the beginning of the charged sexual abuse.” (Internal quotation marks omitted.) State v. Antonaras, 137 Conn. App. 703, 716, 49 A.3d 783, cert. denied, 307 Conn. 936, 56 A.3d 716 (2012).

The witness, who was twenty-five years old at the time of the trial, testified that the uncharged misconduct occurred when she was seventeen years old. Therefore, the uncharged misconduct would have taken place approximately in 2003, making it a difference of six years between the cessation of the prior misconduct and the beginning of the charged conduct in 2009. Our Supreme Court has held that both a gap of nine years and ten years is not too remote. See State v. Jacobson, 283 Conn. 618, 632-33, 930 A.2d 628 (2007) (ten year gap not “insignificant,” but not too remote); State v. Romero, 269 Conn. 481, 498-500, 849 A.2d 760 (2004) (nine year gap not too remote).

Additionally, this court has held that a gap of twelve years is not too remote when there is significant similarity between the uncharged misconduct and the charged conduct. See State v. Antonaras, supra, 137 Conn. App. 716-17. Given that the court found there to be “striking similarity” between the two events, and in consideration of the precedent set forth by both this court and our Supreme Court, we cannot conclude that the court erred in finding the uncharged misconduct evidence relevant in the present case.

The judgment is affirmed.

       The defendant also argued in his brief that the evidence was not relevant because there were no similarities between the uncharged misconduct and the charged conduct. At oral argument before this court, the defendant conceded that his relevance claim is controlled by State v. Barry A., 145 Conn. App. 582, 76 A.3d 211 (2013). We agree.

       In a footnote of his brief, the defendant contends that, under State v. DeJesus, 288 Conn. 418, 953 A.2d 45 (2008), the court was required to give an appropriate limiting instruction to the jury prior to allowing the witness to testify. At trial, however, the defendant did not object on this ground before the witness testified. Additionally, because the defendant did not adequately brief this issue or advance it during oral argument, this court will not address it.


text:
    JEAN PETRUCELLI v. TRAVELERS PROPERTY CASUALTY INSURANCE COMPANY
    (AC 34822)
    DiPentima, C. J., and Gruendel and Pellegrino, Js.

      Argued September 9
    officially released November 12, 2013

      Thomas J. Weihing, with whom, on the brief, were DanaP. Lonergan and John T. Bochanis, for the appellant (plaintiff).

      James E. Wildes, for the appellee (defendant).
   Opinion

GRUENDEL, J.

The plaintiff, Jean Petrucelli, appeals from the judgment of the trial court granting the motion to dismiss filed by the defendant, Travelers Property Casualty Insurance Company. On appeal, the plaintiff claims that the court erred in (1) finding that the arbitration panel issued a timely award under General Statutes § 62-416 and (2) concluding that it lacked subject matter jurisdiction over the plaintiffs application to vacate the arbitration award, and thus it improperly denied the application and granted the defendant’s motion to dismiss the application. We affirm the judgment of the trial court.

The following facts are relevant to the resolution of the plaintiffs claims. The plaintiff initiated an underin-sured motorist claim against the defendant in December, 2003, seeking compensation for injuries allegedly sustained in a December, 1997 motor vehicle collision. Thereafter, in August, 2007, the parties agreed to arbitrate the matter. The parties then entered into an arbitration agreement, dated August 26, 2011, which provided that the matter would be decided by a three person arbitration panel, in which both the plaintiff and the defendant would select one arbitrator and the designated arbitrators would select a third, neutral arbitrator. The plaintiff selected Attorney Lawrence Merly, the defendant selected Attorney George Holmes, and those two arbitrators designated Attorney Jeffrey Som-ers as the third arbitrator.

The arbitration hearing was held on August 25, 2011. The plaintiff submitted a posthearing brief to the arbitration panel on September 2, 2011, and the defendant submitted its posthearing brief on September 8, 2011. On November 8, 2011, the arbitrators held a telephone conference to discuss the evidence and the briefs submitted by the parties. An arbitration award in favor of the defendant issued on November 29, 2011. The defendant received notice of the award on December 5, 2011, and the plaintiff received notice on December 6, 2011. Merly issued a dissenting opinion on December 8, 2011, to which the plaintiff claimed receipt of notice on December 12, 2011.

On January 9, 2012, the plaintiff filed an application to vacate the arbitration award. On March 13, 2012, the defendant filed a motion to dismiss the application and a memorandum of law in support thereof. The plaintiff filed an objection and the matter was heard at short calendar on June 12, 2012. An evidentiary hearing was held on June 13, 2012.

The court first found that the arbitration award was issued timely, as required by § 52-416. It also found that the plaintiff failed to comply with the requirements of General Statutes § 52-420 (b) in her attempt to vacate the arbitration award. The court, therefore, found that it lacked subject matter jurisdiction over her claim and, as a result, granted the defendant’s motion to dismiss and denied the plaintiffs application to vacate the arbitration award. This appeal followed.

I

The plaintiff claims that the court improperly found that the arbitration panel issued a timely arbitration award. We disagree.

The following additional facts are relevant to this claim. Paragraph 2 of the arbitration agreement, entered into by the plaintiff and the defendant, provides in relevant part that “ [a]ny rescheduling or continuation of the arbitration shall be subject to the mutual convenience of the parties and witnesses involved in the controversy. The arbitrators shall render a written decision, signed by such arbitrators, no more than thirty (30) days after the date on which the hearing or hearings are closed.”

The court found that the hearing closed on November 8, 2011. As evidence, the court referenced paragraph 2 of the arbitration agreement. In addition, the court cited Somers’ written notes from the arbitration hearing as evidence of an express written agreement to keep the hearing open until the arbitrators met to discuss the case. These notes stated that “the hearing will remain open until the arbitrators meet following the submission of [the] briefs.” The court lastly cited an October 7, 2011 e-mail from the defendant’s attorney to the arbitrators and the plaintiff stating, “[p]er our telephone conversation on this date, I agree that the arbitration decision will be rendered within [thirty] days of the date that the arbitrators meet sometime next week.” On the basis of this evidence, the court concluded that the arbitration hearing was held open until November 8, 2011, and thereafter, found that the November 29, 2011 arbitration award was timely.

The standard of review is well settled for statutory interpretation. “When construing a statute, [o]ur fundamental objective is to ascertain and give effect to the apparent intent of the legislature. ... In other words, we seek to determine, in a reasoned manner, the meaning of the statutory language as applied to the facts of [the] case, including the question of whether the language actually does apply.” (Internal quotation marks omitted.) Bloomfield v. United Electrical, Radio & Machine Workers of America, Connecticut Independent Police Union, Local 14, 285 Conn. 278, 286, 939 A.2d 561 (2008).

Moreover, “[t]his court will not reverse the factual findings of the trial court unless they are clearly erroneous. ... A finding of fact is clearly erroneous when there is no evidence in the record to support it . . . or when although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed. ... In making this determination, every reasonable presumption must be given in favor of the trial court’s ruling.” (Citation omitted; internal quotation marks omitted.) Bailey v. Lanou, 138 Conn. App. 661, 667, 54 A.3d 198 (2012).

The main issue before this court is whether the arbitration panel issued a timely award. The plaintiff argues that the November 29, 2011 arbitration award was untimely because it was not rendered within thirty days of September 8, 2011, the day the final brief was submitted to the panel. The defendant, in contrast, argues that the parties agreed at the hearing that the arbitration would remain open until the arbitrators could meet to discuss the case. Thus, the defendant contends that the hearing closed on November 8, 2011, rendering the November 29, 2011 arbitration award timely.

Section 52-416 addresses the time within which an arbitration award must be rendered. Subsection (a) of § 52-416 provides: “If the time within which an award is rendered has not been fixed in the arbitration agreement, the arbitrator or arbitrators or umpire shall render the award within thirty days from the date the hearing or hearings are completed, or, if the parties are to submit additional material after the hearing or hearings, thirty days from the date fixed by the arbitrator or arbitrators or umpire for the receipt of the material. An award made after that time shall have no legal effect unless the parties expressly extend the time in which the award may be made by an extension or ratification in writing.” Subsection (b) of § 62-416 provides: “The award shall be in writing and signed by the arbitrator or arbitrators, or a majority of them, or by the umpire. Written notice of the award shall be given to each party.”

Section 52-416 requires the court to enforce the language set forth in the parties’ arbitration agreement regarding the time within which an award must be rendered. If the parties have not created an arbitration agreement, the court is then required to follow the time line in the statute. Thus, “[t]he parties . . . are free to agree to enlarge the time frame set forth in the statute.” Remax Right Choice v. Aryeh, 100 Conn. App. 373, 380, 918 A.2d 976 (2007). Furthermore, our Supreme Court has stated: “We construe [the language ‘[i]f the time within which an award is rendered has not been fixed in the arbitration agreement . . . .’ as applying to] the entire section, including the requirement that extensions be in writing, conditional upon the parties having not agreed otherwise. This reading is consistent with our general policy of construing our arbitration statutes liberally to encourage the use of arbitration as an alternate form of dispute resolution.” Administrative & Residual Employees Union v. State, 200 Conn. 345, 348-49, 510 A.2d 989 (1986). As such, the parties are free to create their own arbitration agreement and to modify the statutory requirement that extensions be in writing.

In the present case, the parties entered into an arbitration agreement that specifically stated that “[a]ny rescheduling or continuation of the arbitration shall be subject to the mutual convenience of the parties and witnesses involved in the controversy. The arbitrators shall render a written decision, signed by such arbitrators, no more than thirty (30) days after the date on which the hearing or hearings are closed.” Although the language in the arbitration agreement is similar to § 52-416, it is not identical. Therefore, according to the statute, we must follow the language the parties set forth in the arbitration agreement as a guide in resolving this matter.

In reviewing the court’s factual findings, we apply the clearly erroneous standard of review. See Bailey v. Lanou, supra, 138 Conn. App. 667. In the present case, there is evidence in the record to support the court’s finding that the arbitration hearing was held open until November 8, 2011, when it was mutually convenient for the arbitrators to meet and discuss the case. First, Somers, the neutral arbitrator, wrote in his notes that “the hearing will remain open until the arbitrators meet following the submission of [the] briefs.” Somers also testified at the June 12, 2012 hearing before the court that neither party objected to the procedural time line he set forth at the arbitration hearing. As the chairman of the panel, Somers had the authority to declare that the hearing would be deemed completed when the three arbitrators could meet to discuss the case. See Carr v. Trotta, 7 Conn. App. 272, 277, 508 A.2d 799, cert. denied, 200 Conn. 806, 512 A.2d 229 (1986).

Second, the defendant’s attorney acknowledged in his October 7, 2011 e-mail that the hearing would be held open, pending a conference by the arbitrators. He stated: “I agree that the arbitration decision will be rendered within [thirty] days of the date that the arbitrators meet sometime next week.” The fact that the arbitrators were unable to meet the week following the e-mail does not render the award untimely. The parties were informed that the hearing would be held open until the arbitrators met, and the plaintiff made no objection at that time. See C. F. Wooding Co. v. Middletown Elk’s Home Corp., 177 Conn. 484, 486 n.3, 418 A.2d 904 (1979). For these reasons, the court’s finding that the arbitration hearing was held open until November 8, 2011, was not clearly erroneous. As a result, the court did not err in finding that the arbitration panel properly complied with § 52-416 when it issued the November 29, 2011 arbitration award.

II

The plaintiff next claims that the court improperly concluded that it lacked subject matter jurisdiction over her application to vacate the arbitration award. She further contends that the court improperly denied her application to vacate the arbitration award and granted the defendant’s motion to dismiss the application. We do not agree.

“The standard of review for a court’s decision on a motion to dismiss is well settled. A motion to dismiss tests, inter alia, whether, on the face of the record, the court is without jurisdiction. . . . [0]ur review of the court’s ultimate legal conclusion and resulting [determination] of the motion to dismiss will be de novo. . . . When a . . . court decides a jurisdictional question raised by a pretrial motion to dismiss, it must consider the allegations of the complaint in their most favorable light. ... In this regard, a court must take the facts to be those alleged in the complaint, including those facts necessarily implied from the allegations, construing them in a manner most favorable to the pleader. . . . The motion to dismiss . . . admits all facts which are well pleaded, invokes the existing record and must be decided upon that alone.” (Internal quotation marks omitted.) Gold v. Rowland, 296 Conn. 186, 200-201, 994 A.2d 106 (2010).

“We have long held that because [a] determination regarding a trial court’s subject matter jurisdiction is a question of law, our review is plenary. . . . Moreover, [i]t is a fundamental rule that a court may raise and review the issue of subject matter jurisdiction at any time. . . . Subject matter jurisdiction involves the authority of the court to adjudicate the type of controversy presented by the action before it. . . . [A] court lacks discretion to consider the merits of a case over which it is without jurisdiction.” (Footnote omitted; internal quotation marks omitted.) Bloomfield v. United Electrical, Radio & Machine Workers of America, Connecticut Independent Police Union, Local 14, supra, 286 Conn. 286.

Section 52-420 addresses the time within which a party must file a motion to vacate an arbitration award. Subsection (b) of § 52-420 provides that “[n]o motion to vacate, modify or correct an award may be made after thirty days from the notice of the award to the party to the arbitration who makes the motion.” “If the motion [to vacate] is not filed within the thirty day time limit, the trial court does not have subject matter jurisdiction over the motion.” (Internal quotation marks omitted.) Asselin & Connolly, Attorneys, LLC v. Heath, 108 Conn. App. 360, 370, 947 A.2d 1061 (2008).

Section 52-420 (b) required the plaintiff to file her application to vacate the arbitration award within thirty days after the award had been made and the parties were notified. The arbitration panel’s award was issued on November 29, 2011, and was received by the plaintiff on December 6, 2011. Accordingly, the plaintiff was required to file her application within thirty days of the date that she received notice. She did not file her application until January 9, 2012, which was outside the thirty day time period. The plaintiff thus failed to comply with § 52-420 (b) when filing her application to vacate the arbitration award.

Because the plaintiff did not file her application to vacate within the thirty day time period required by § 52-420 (b), the court properly concluded that it lacked subject matter jurisdiction over her claim. See id. As a result, the court did not err in denying the plaintiffs application to vacate the arbitration award and in granting the defendant’s motion to dismiss the application.

The judgment is affirmed.

In this opinion the other judges concurred.

       In an ordinaxy case, we would discuss the court’s subject matter jurisdiction first. Due to the unique circumstances of this case, however, we will discuss subject matter jurisdiction after determining whether the arbitration panel issued a timely award. If the award was not timely, the award has no legal effect. See Remax Right Choice v. Aryeh, 100 Conn. App. 373, 388, 918 A.2d 976 (2007). If the award was timely, pursuant to § 52-420 (b), the parties have thirty days to file a motion to vacate an arbitration award once it has been issued and the parties have been notified. “If the motion [to vacate] is not filed within the thirty day time limit, the trial court does not have subject matter jurisdiction over the motion.” (Internal quotation marks omitted.) Asselin & Connolly, Attorneys, LLC v. Heath, 108 Conn. App. 360, 370, 947 A.2d 1051 (2008).

       The plaintiff claims that there was no writing signed by the parties that would allow the arbitration award to be rendered after the thirty day period set forth in § 52-416. According to Administrative & Residual Employees Union v. State, supra, 200 Conn. 348-49, however, if the parties have created an arbitration agreement, the language in that agreement controls whether extensions must be in writing. See id. (“[w]e construe [the language ‘[i]f the time within which an award is rendered has not been fixed in the arbitration agreement . . . .’ as applying to] the entire section, including the requirement that extensions be in writing, conditional upon the parties having not agreed otherwise”). We therefore cannot agree with the plaintiff that the court erred in finding that Somers’ written notes manifested an express written agreement to keep the hearing open. The parties are free to enlarge the time frame in the statute by creating their own arbitration agreement, and it appears that Somers, along with the other two arbitrators, agreed to hold the hearing open until they could meet to discuss the case. See Remax Right Choice v. Aryeh, supra, 100 Conn. App. 380.