author: PER CURIAM.

text:
    BRIAN BARRETT v. COMMISSIONER OF CORRECTION
    (AC 27796)
    Bishop, Lavine and Pellegrino, Js.
    Argued November 29, 2007
    officially released April 1, 2008

      Anthony E. Parent, special public defender, for the appellant (petitioner).

      Marjorie Allen Dauster, senior assistant state’s attorney, with whom, on the brief, were Michael Dearington, state’s attorney, and Erik T. Lohr, deputy assistant state’s attorney, for the appellee (respondent).
   Opinion

PER CURIAM.

The petitioner, Brian Barrett, appeals after the habeas court denied his petition for certification to appeal from the judgment dismissing his petition for a writ of habeas corpus. On appeal, the petitioner asserts that the court abused its discretion in denying his petition for certification to appeal. He asserts, further, that (1) his claim for a new trial on the basis of juror misconduct was timely and (2) if his claim for a new trial was untimely, counsel’s failure to raise the claim in a timely manner amounts to ineffective assistance of counsel. We dismiss the appeal.

The following facts and procedural history are relevant to our disposition of the petitioner’s appeal. After a jury trial, the petitioner was convicted of manslaughter in the first degree in violation of General Statutes § 53a-55 (a) (2) and sentenced to twenty years imprisonment. Shortly after the petitioner began serving his prison sentence, an article written by Keith Felcyn, a member of the juiy that found the petitioner guilty, was published in the November, 1996 issue of Greenwich Magazine. The article described Felcyn’s experience as a juror during the petitioner’s trial. In the article, Felcyn states, among other things, that “[t]wo of us jurors, separately and unknown to the other, visited [the location of the crime] to get our own sense of its geography and character.”

In April, 1997, the petitioner filed a pro se petition for a writ of habeas corpus alleging juror misconduct and ineffective assistance of counsel. On January 3, 2006, the petitioner, now represented by counsel, filed a two count second amended petition for a writ of habeas coipus alleging, in count one, ineffective assistance of counsel and, in count two, juror misconduct. In her return, the respondent, the commissioner of correction, alleged that the petitioner procedurally defaulted on his juror misconduct claim because such a claim is properly raised in a petition for a new trial and that the petitioner failed to file such a petition within the three year statute of limitations period.

On February 10, 2006, a hearing was held at which Felcyn, police Sergeant Paul Guzda and attorney Joseph Bruckmann, the petitioner’s trial counsel, testified. The court dismissed the petition and denied the subsequent petition for certification to appeal. The petitioner now appeals from the judgment dismissing the petition for a writ of habeas corpus.

The standard of review for a challenge to a habeas court’s denial of a petition for certification to appeal requires the petitioner to prove that the denial of the petition for certification was an abuse of discretion and also that the decision of the habeas court should be reversed on the merits. Simms v. Warden, 230 Conn. 608, 616, 646 A.2d 126 (1994). “To prove an abuse of discretion, the petitioner must demonstrate that the [resolution of the underlying claim involves issues that] are debatable among jurists of reason; that a court could resolve the issues [in a different manner]; or that the questions are adequate to deserve encouragement to proceed further.” (Internal quotation marks omitted.) Id. Our careful review of the record leads us to conclude that the court did not abuse its discretion in denying the petition for certification to appeal.

We begin by analyzing that portion of the petition that alleged juror misconduct. The court found that the petitioner’s claim of juror misconduct raised in the habeas petition could have been raised through a timely filed petition for a new trial but that such a petition was time barred. See General Statutes § 52-582. The court concluded that the petitioner had proceduraily defaulted on this habeas claim and, further, that he had failed to satisfy the “cause and prejudice” standard for reviewability of habeas claims that were not properly raised because of a procedural default. See Johnson v. Commissioner of Correction, 218 Conn. 403, 409, 589 A.2d 1214 (1991).

The petitioner concedes that he failed to file a petition for a new trial and is now time barred from doing so. He argues, however, that the claim of juror misconduct included in his habeas petition, which was filed within three years of the date of imposition of the sentence by the trial court, should be treated as a timely filed petition for a new trial and, therefore, is not subject to the cause and prejudice standard. The petitioner asserts that including this claim in his habeas petition was an error in pleading and that such a circumstantial defect can be corrected under General Statutes § 52-123. The petitioner also claims that the court made erroneous factual findings regarding the prejudicial effect of the alleged juror misconduct. We are not persuaded.

Despite the court’s refusal to treat the juror misconduct claim as a petition for a new trial, the court permitted the petitioner to introduce evidence related to the juror misconduct claim. The court found that the uncontradicted evidence established that neither Felcyn nor the other juror, prior to reaching a verdict, visited the actual scene of the crime and that their drive-by of the general area of the crime had no influence on either their deliberations or the verdict. Furthermore, the court found that “had a . . . hearing [pursuant to State v. Brown, 235 Conn. 502, 526, 668 A.2d 1288 (1995) (en banc)] been held either by the trial court or pursuant to a petition for a new trial, such a hearing would not have resulted in a finding of juror misconduct that affected the verdict. To the contrary, the evidence offered before this court clearly indicates that the verdict was uninfluenced by the visits [to the general area of the crime].” On this basis, the court concluded that the petitioner had not established actual prejudice from the alleged juror misconduct and, accordingly, failed to satisfy the cause and prejudice standard.

The petitioner challenges the court’s finding that he failed to prove prejudice. “[A] habeas court’s findings of fact are reviewed under a clearly erroneous standard of review [and] questions of law are subject to plenary review.” (Internal quotation marks omitted.) Mead v. Commissioner of Correction, 282 Conn. 317, 322, 920 A.2d 301 (2007). On the basis of our review of the record, we conclude that the court’s findings were not clearly erroneous.

The petitioner’s second claim is that counsel’s failure to file a petition for a new trial amounts to ineffective assistance of counsel. This claim is governed by the test set forth in Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984). “For the petitioner to prevail on his claim of ineffective assistance of counsel, he must establish both that his counsel's performance was deficient and that there is a reasonable probability that, but for the counsel’s mistakes, the result of the proceeding would have been different.” (Internal quotation marks omitted.) McClendon v. Commissioner of Correction, 93 Conn. App. 228, 230, 888 A.2d 183, cert. denied, 277 Conn. 917, 895 A.2d 789 (2006). “In a habeas appeal, this court cannot disturb the underlying facts found by the habeas court unless they are clearly erroneous, but our review of whether the facts as found by the habeas court constituted a violation of the petitioner’s constitutional right to effective assistance of counsel is plenary.” (Internal quotation marks omitted.) McClellan v. Commissioner of Correction, 103 Conn. App. 159, 161, 927 A.2d 992 (2007).

The petitioner argued before the habeas court and on appeal that Bruckmann was ineffective for failing to file a petition for a new trial in a timely manner. Bruckmann testified at the habeas trial that after reading Felcyn’s article, he concluded that the issue of possible juror misconduct should be looked into further. He then supervised the preparation of an investigative report on the subject. Bruckmann subsequently concluded, on the basis of the article and the investigative report, that there was no juror misconduct that would have affected the verdict. Although the court did not expressly mention the Strickland test in its memorandum of decision, it stated that “to the extent that the petitioner asserts that the failure to seek a Brown hearing was due to ineffective assistance by attorney Bruckmann, such claim is rejected. Attorney Bruckmann’s assessment of the import of the Greenwich Magazine article was correct and . . . pursuing such a claim would not have affected the result of the petitioner’s case.”

We note that “[t]he habeas court, as the trier of facts, is the sole arbiter of the credibility of witnesses and the weight to be given to their testimony.” Alexander v. Commissioner of Correction, 103 Conn. App. 629, 638, 930 A.2d 58, cert. denied, 284 Conn. 939, 937 A.2d 695 (2007). After our review of the record as a whole, we conclude that the court’s finding that the petitioner was not denied the effective assistance of counsel is supported by both the evidence and the reasonable and logical inferences drawn from such evidence. See Hollby v. Commissioner of Correction, 98 Conn. App. 751, 753-54, 912 A. 2d 494 (2006), cert. denied, 281 Conn. 911, 916 A.2d 50 (2007).

The petitioner has not shown that the issues raised with regard to the court’s denial of his petition for a writ of habeas corpus are debatable among jurists of reason, that a court could resolve the issues in a different manner or that the questions raised deserve encouragement to proceed further. See Simms v. Warden, supra, 230 Conn. 616. The petitioner has failed to demonstrate that the court’s denial of his petition for certification to appeal constituted an abuse of discretion.

The appeal is dismissed.

       The other juror .who allegedly committed misconduct was under subpoena but could not attend the hearing on the day scheduled. The court indicated that it would be amenable to continuing the hearing so the juror could testily. Counsel for the petitioner stated that this juror “would provide evidence somewhat duplicative of Mr. Felcyn, and [the petitioner] has no objection to Your Honor ruling today.”

       General Statutes § 52-582 provides in relevant part: “No petition for a new trial in any civil or criminal proceeding shall be brought but within three years next after the rendition of the judgment or decree complained of . . . .”
      “The three year period begins to run from the date of rendition of judgment by the trial court . . . which, in a criminal case, is the date of imposition of the sentence by the trial court.” (Citation omitted.) Summerville v. Warden, 229 Conn. 397, 426, 641 A.2d 1356 (1994).

       General Statutes § 52-123 provides: “No writ, pleading, judgment or any kind of proceeding in court or course of justice shall be abated, suspended, set aside or reversed for any kind of circumstantial errors, mistakes or defects, if the person and the cause may be rightly understood and intended by the court.”
      The petitioner’s habeas petition names the commissioner of correction as the respondent. A petition for a new trial, however, must be brought against the state. See State v. Ashenman, 180 Conn. 141, 144, 429 A.2d 810 (1980) (petition for new trial instituted by writ of summons and complaint served on adverse party); Conn. Const., amend. XXIII (prosecutorial power of state vested in chief state’s attorney). General Statutes § 52-123 is not intended to allow substitutions or changes of entire parties. See Lussier v. Dept. of Transportation, 228 Conn. 343, 350, 636 A.2d 808 (1994); Pack v. Burns, 212 Conn. 381, 384-85, 562 A.2d 24 (1989). The petitioner has failed to bring a separate action against the state, and, accordingly, the court correctly refused to treat the juror misconduct claim in his habeas petition as a petition for a new trial.

       In State v. Brown, supra, 235 Conn. 526, our Supreme Court held that “a trial court must conduct a preliminary inquiry, on the record, whenever it is presented with any allegations of jury misconduct in a criminal case, regardless of whether an inquiry is requested by counsel. Although the form and scope of such an inquiry lie within a trial court’s discretion, the court must conduct some type of inquiry in response to allegations of jury misconduct. That form and scope may vary from a preliminary inquiry of counsel, at one end of the spectrum, to a full evidentiary hearing at the other end of the spectrum, and, of course, all points in between. Whether a preliminary inquiry of counsel, or some other limited form of proceeding, will lead to further, more extensive, proceedings will depend on what is disclosed during the initial limited proceedings and on the exercise of the trial court’s sound discretion with respect thereto.”

       The court also stated that “[a]s to cause, the petitioner has offered neither evidence nor argument as to any good cause for his failure to bring a timely petition for new trial.” The petitioner has not challenged this finding on appeal.

       The petitioner asserts that the respondent has the burden of proof regarding the prejudice prong of the cause and prejudice standard. Our review of the case law, however, establishes that “[i]t is clear that the petitioner bears the burden of proof to establish cause and prejudice.” Milner v. Commissioner of Correction, 63 Conn. App. 726, 731, 779 A.2d 156 (2001).

       At trial, the petitioner abandoned his other ineffective assistance of counsel claims that were unrelated to counsel’s failure to file a petition for a new trial. Those claims are not part of this appeal.


source: Caselaw Access Project

author: HARPER, J.

license: Public Domain

text:
    STATE OF CONNECTICUT v. STEPHEN O.

    (AC 27896)
    DiPentima, Haiper and Stoughton, Js.

      Argued November 28, 2007
    officially released April 1, 2008

      James B. Streelo, assistant public defender, for the appellant (defendant).

      James A. Killen, senior assistant state’s attorney, with whom, on the brief, were Scott J. Murphy, state’s attorney, and Vernon D. Oliver, former assistant state’s attorney, for the appellee (state).

       In accordance with our policy of protecting the privacy interests of the victims of sexual abuse and 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

HARPER, J.

The defendant, Stephen O., appeals from the judgment of conviction, following a trial to the court, of two counts of risk of injury to a child in violation of General Statutes (Rev. to 1997) § 53-21 (2), one count of sexual assault in the third degree in violation of General Statutes § 53a-72a (a) (1) (B), one count of sexual assault in the fourth degree in violation of General Statutes § 53a-73a (a) (1) (A) and one count of sexual assault in the fourth degree in violation of General Statutes § 53a-73a (a) (1) (D). The defendant claims that (1) the trial court improperly permitted the state to present certain evidence of prior misconduct, (2) the court improperly failed sua sponte to conduct a hearing to determine whether the victim, a child, was competent to testify and (3) his constitutional right not to be placed in double jeopardy was violated as a result of his conviction on the charges of risk of injury and sexual assault in the fourth degree. We affirm the judgment of the trial court.

Following an evidentiary hearing, the court set forth its findings of fact and conclusions of law in an oral decision.The court’s findings of fact may be summarized as follows. The defendant is the biological father of the male victim, who was five years old at the time of the incidents that underlie the defendant’s conviction. On several dates in 1998, the defendant sexually abused the victim in the home that the defendant shared at that time with the victim, the victim’s two siblings and A, the defendant’s girlfriend. Specifically, the defendant placed his hands on the intimate parts of the victim and licked the victim’s penis. The defendant also forced the victim to lick the defendant’s penis and to taste the defendant’s ejaculate. The defendant threatened the victim, including threatening to “kill” the victim, if he did not cooperate with the defendant’s sexual demands.

I

The defendant first claims that the court improperly admitted testimonial evidence from three witnesses that he had physically abused the victim. To the extent that we review this claim, we reject it.

The state presented testimony from Kevin Hayes, a police detective. Hayes testified that he participated in two separate investigations concerning the defendant’s conduct toward the victim. One investigation related to the allegations of sexual abuse underlying the charges at issue in this case. Another investigation occurred in 1998, when the victim was five years old, and concerned allegations of “physical abuse [by the defendant], specifically, handcuffing [the victim].” After Hayes made this reference to the physical abuse investigation, the defendant’s attorney stated: “Objection, Your Honor. I don’t see the relevance of a prior allegation not involving sexual abuse.” The court responded, “Well, I think it’s covered.” Absent further objection, Hayes thereafter testified that the defendant was arrested in May, 1998, for physically abusing the victim during the same time frame that the alleged acts of sexual abuse by the defendant had occurred. Hayes testified that during this “same time period,” another adult, A, lived in the defendant’s residence and that he interviewed her in connection with the allegations of physical abuse by the defendant against the victim.

The state also presented testimony from the victim, who was ten years old at the time of trial. While testifying concerning the manner in which the defendant sexually abused him, the victim recalled that the defendant threatened him, struck him about his body and handcuffed him to prevent him from moving around. The victim testified that the defendant used metal handcuffs, gold in color, on his legs. The victim also testified that these events occurred when he was five years old. During cross-examination, the victim again acknowledged that the defendant had placed him in handcuffs while compelling him to lick the defendant’s “privates . . . .”

The state also presented testimony in rebuttal from A, who testified that she lived at the defendant’s residence, where the victim also resided, during the period of time in question in 1998. A testified that she observed the defendant engage in acts of a physical nature against his children, including the victim. A testified that she eventually contacted the department of children and families after the children in the residence had related to her the “difficulties” they had with the defendant and, as A explained, because the defendant “really didn’t know how to discipline the kids . . . the only way he knew how to discipline them was to yell at them or to hit them.” A acknowledged that her action led to the defendant’s arrest on charges related to physical abuse. A also testified that there was “handcuffing” by the defendant and that she observed the defendant apply duct tape over the victim’s mouth.

The defendant claims that the court improperly permitted the state to present the foregoing testimony from Hayes, the victim and A because the evidence was not relevant. The defendant characterizes this “evidence of physical abuse” as “prior misconduct evidence” and claims that it is not admissible under § 4-5 of the Connecticut Code of Evidence. The defendant further claims that, if the evidence was relevant, the court should have excluded it because it was “grossly prejudicial” and “cast [him] into an extraordinarily negative light.” See Conn. Code Evid. § 4-3 (“[r]elevant evidence may be excluded if its probative value is outweighed by the danger of unfair prejudice”).

As a preliminary matter, we must address issues of reviewability relating to the different aspects of the defendant’s claim. “[T]he standard for the preservation of a claim alleging an improper evidentiary ruling at trial is well settled. This court is not bound to consider claims of law not made at the trial. ... In order to preserve an evidentiary ruling for review, trial counsel must object properly. ... In objecting to evidence, counsel must properly articulate the basis of the objection so as to apprise the trial court of the precise nature of the objection and its real purpose, in order to form an adequate basis for a reviewable ruling. . . . Once counsel states the authority and ground of [the] objection, any appeal will be limited to the ground asserted. . . .

“These requirements are not simply formalities. They serve to alert the trial court to potential error while there is still time for the court to act. . . . Assigning error to a court’s evidentiary rulings on the basis of objections never raised at trial unfairly subjects the court and the opposing party to trial by ambush.” (Internal quotation marks omitted.) State v. Calabrese, 279 Conn. 393, 408 n.18, 902 A.2d 1044 (2006).

Our review of the record reveals that the defendant objected only to Hayes’ testimony concerning his investigation of physical abuse by the defendant against the victim in 1998. The defendant’s attorney asserted only that that testimony was not relevant. The court overruled the objection, and the defendant did not pursue the matter, assert any alternate ground for the objection or object in any manner to the testimony of a similar nature by either the victim or A. Thus, we will limit our review to the distinct evidentiary claim raised by the defendant at trial, which was whether Hayes’ testimony concerning physical abuse was relevant to the issues before the court.

“ ‘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. “One fact is relevant to another if in the common course of events the existence of one, alone or with other facts, renders the existence of the other either more certain or more probable. . . . 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. Carpenter, 275 Conn. 785, 805-806, 882 A.2d 604 (2005), cert. denied, 547 U.S. 1025, 126 S. Ct. 1578, 164 L. Ed. 2d 309 (2006). Generally, absent a prohibition in law to its admissibility, “[a]ll relevant evidence is admissible . . . .” Conn. Code Evid. § 4-2.

This court reviews evidentiary rulings under the abuse of discretion standard of review. See State v. St. John, 282 Conn. 260, 270, 919 A.2d 452 (2007). “The trial court has wide discretion to determine the relevancy of evidence .... Every reasonable presumption should be made in favor of the correctness of the court’s ruling in determining whether there has been an abuse of discretion.” (Internal quotation marks omitted.) Hayes v. Camel, 283 Conn. 475, 483, 927 A.2d 880 (2007).

To sustain a conviction of sexual assault in the third degree in violation of § 53a-72a (a) (1) (B), as charged, the state bore the burden of proving beyond a reasonable doubt that (1) the defendant compelled the victim to submit to sexual contact, (2) the defendant so compelled the victim by the threat of use of force against the victim and (3) such threat reasonably caused the victim to fear physical injury to himself. When viewed in isolation, the testimony from Hayes was probative of the violent and abusive nature of the defendant’s relationship with the victim at the time in question. Consequently, Hayes’ testimony made it more likely that the defendant compelled the victim to submit to sexual contact with threats of use of force against the victim and that such threats reasonably caused the victim to fear physical injury to himself. It is reasonable to infer that a five year old who is being subjected to physical abuse from his father during the same time frame that his father is abusing him sexually will be more likely to fear physical injury at the hands of his father, to respond to threats of use of force and to submit to sexual contact than a child who is not being so abused. When viewed in conjunction with the testimony of other witnesses, especially that of the victim, the relevance of this testimony from Hayes is even more apparent. The victim testified that the defendant physically abused him, in part by putting handcuffs on him, during incidents of sexual abuse by the defendant. Hayes’ testimony concerning physical abuse by the defendant during this time frame certainly tended to corroborate the victim’s testimony and, in fact, concerned the manner in which the defendant actually carried out his sexual abuse of the victim. Thus, the court did not abuse its discretion in admitting the evidence.

II

The defendant next claims that the court improperly failed to conduct, sua sponte, a hearing to determine whether the victim was competent to testify. We decline to review this claim.

As discussed previously, the state presented testimony from the victim at trial. Prior to testifying, the victim answered questions directed to him by the court and indicated that he would testify truthfully. The defendant did not challenge the victim’s competency when the victim was called to testify or at any other point during the trial. It suffices to observe that the grounds on which the defendant now challenges the victim’s competency did not arise after the trial but were known to the defendant at the time of trial. Further, at trial, the defendant thoroughly challenged the victim’s credibility and ability to recall the events in question.

“The incompetency of a witness is determined at the time [the witness] is offered, or, if the ground of incompetency is discovered during the trial, upon objection promptly made at that time. . . . Challenges to competency must be made when the witness is first sworn if the grounds are then known, otherwise as soon as the grounds became evident.” (Citations omitted; internal quotation marks omitted.) State v. Sanchez, 25 Conn. App. 21, 26, 592 A.2d 413 (1991). The defendant seeks review of this claim in accordance with State v. Golding, 213 Conn. 233, 239-40, 567 A.2d 823 (1989), or, in the alternative, under the plain error doctrine codified in Practice Book § 60-5.

It is useful to clarify what is at issue. The court was not asked to evaluate the victim’s competency; this claim does not concern whether the victim was a competent witness. Instead, the defendant claims that the court improperly failed to conduct, sua sponte, a hearing to evaluate the victim’s competency. The defendant does not cite any relevant authority in support of his novel assertion that such a duty exists. The defendant asserts that “[t]he presentation of an incompetent witness can constitute a violation of the defendant’s right to confrontation and due process.”

General Statutes § 54-86h provides: “No witness shall be automatically adjudged incompetent to testify because of age and any child who is a victim of assault, sexual assault or abuse shall be competent to testify without prior qualification. The weight to be given the evidence and the credibility of the witness shall be for the determination of the trier of fact.” Thus, in Connecticut, crime victims of tender years ar e not presumed to be incompetent witnesses. State v. Sun, 92 Conn. App. 618, 625, 886 A.2d 1227 (2005); State v. Rupar, 86 Conn. App. 641, 647-48, 862 A.2d 352 (2004), cert. denied, 273 Conn. 919, 871 A.2d 1030 (2005); State v. Sanchez, supra, 25 Conn. App. 26. Our Supreme Court, rejecting a challenge to the constitutionality of § 54-86h, discussed with approval “the modem trend towards the treatment of competency as simply one aspect of the credibility of a witness.” State v. James, 211 Conn. 555, 563, 560 A.2d 426 (1989). The court found favorable similarities between § 54-86h and evidentiary provisions in federal law as well as “the philosophy that few persons are inherently incapable of testifying in a useful manner.” (Internal quotation marks omitted.) Id. The court also emphasized that admitting such evidence did not necessarily require the trier of fact to accept it as compelling evidence of any disputed material fact. Providing an example, the court stated: “Certainly if a child sexual assault victim could only babble or could present no useful evidence, its testimony could hardly be deemed relevant or probative.” Id., 564-65.

The defendant has not persuaded us that this claim is of constitutional magnitude. The specific authorities on which the defendant relies for this proposition, State v. Morant, 242 Conn. 666, 682, 701 A.2d 1 (1997), and State v. Paolella, 211 Conn. 672, 689, 561 A.2d 111 (1989), are not on point. As explained previously, the defendant does not claim that the court infringed on his right to confront the victim or that the court improperly evaluated the victim’s competency. Even if the court had ruled on the issue of the victim’s competency to testify at trial, such a ruling is evidentiary in nature and, thus, not amenable to review under Golding. See, e.g., State v. Rodriguez, 68 Conn. App. 303, 307-308, 791 A.2d 621, cert. denied, 260 Conn. 920, 797 A.2d 518 (2002). The statutory and decisional law discussed previously bolster our conclusion that this claim is evidentiary in nature; there is no support in law for the defendant’s assertion that any constitution imposed a duty on the court sua sponte to inquire into the victim’s competency. Likewise, the defendant is unable to demonstrate that plain error exists with regard to this evidentiary claim. For these reasons, we decline to afford any extraordinary means of review to this unpreserved claim.

Ill

Finally, the defendant claims that his constitutional right not to be placed in double jeopardy was violated by his conviction of the charges of risk of injury and sexual assault in the fourth degree. We disagree.

The defendant did not raise this issue at trial. As requested by the defendant, we shall review the issue in accordance with State v. Golding, supra, 213 Conn. 239-40, because the record is adequate for review and the defendant’s claim is of constitutional magnitude. See State v. Crudup, 81 Conn. App. 248, 252, 838 A.2d 1053, cert. denied, 268 Conn. 913, 845 A.2d 415 (2004). The claim presents a question of law to which we afford plenary review. Id.

“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. Benton v. Maryland, 395 U.S. 784, 794, 89 S. Ct. 2056, 23 L. Ed. 2d 707 (1969). Although the Connecticut constitution has no specific double jeopardy provision, we have held that the due process guarantees of [the Connecticut constitution] include protection against double jeopardy. ...

“We have recognized that the Double Jeopardy Clause consists of several protections: It protects against a second prosecution for the same offense after acquittal. It protects against a second prosecution for the same offense after conviction. And it protects against multiple punishments for the same offense.” (Internal quotation marks omitted.) State v. Bletsch, 281 Conn. 5, 27, 912 A.2d 992 (2007). The defendant’s claim implicates the last of these protections.

“Double jeopardy analysis in the context of a single trial is a two-step 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.” (Internal quotation marks omitted.) State v. Woodson, 227 Conn. 1, 7, 629 A.2d 386 (1993).

“[Our Supreme Court has] applied the Blockburger test to determine whether two statutes criminalize the same offense, thus placing a defendant prosecuted under both statutes in double jeopardy: [Wjhere 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. Blockburger v. United States, 284 U.S. 299, 304, 52 S. Ct. 180, 76 L. Ed. 306 (1932). 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.” (Internal quotation marks omitted.) State v. Bletsch, supra, 281 Conn. 27-28. “The issue, though essentially constitutional, becomes one of statutory construction. . . . Under the Blockburger test, a defendant may be convicted of two offenses arising out of the same criminal incident if each crime contains an element not found in the other. . . . The term ‘element’ as used in the Blockburger analysis . . . means any fact that the legislature has deemed essential to the commission of the crime.” (Citations omitted; internal quotation marks omitted.) State v. Peay, 96 Conn. App. 421, 428, 900 A.2d 577, cert. denied, 280 Conn. 909, 908 A.2d 541 (2006).

Count one of the substitute information charged the defendant with risk of injury to a child in violation of § 53-21 (2) in that he “did have contact with the intimate parts of a child . . . .” Count two charged the defendant with risk of injury in violation of § 53-21 (2) in that he “did subject a child under sixteen years of age ... to contact with the intimate parts of [the defendant].” Count five charged the defendant with sexual assault in the fourth degree in violation of § 53a-73a (a) (1) (A) in that he “did intentionally subject another person ... to sexual contact who was under fifteen years of age . . . .” Finally, count six charged the defendant with sexual assault in the fourth degree in violation of § 53a-73a (a) (1) (D) in that he “did intentionally subject another person ... to sexual contact who was less than eighteen years old and [the defendant] was such person’s guardian and otherwise responsible for the general supervision of such other person’s welfare . . . .”

The defendant claims that he was placed in double jeopardy as a result of his conviction of risk of injury to a child and sexual assault in the fourth degree. He argues that “[t]he trial court should have merged the conviction for lisk of injuiy to a minor into the conviction for sexual assault in the fourth degree.” The gist of the defendant’s claim is that the conviction of risk of injury and the conviction of sexual assault in the fourth degree are a conviction of the same criminal offenses. Put differently, the defendant claims that “[a]s charged in this case, risk of injury to a minor is a lesser included offense of sexual assault in the fourth degree.”

The defendant couches his claim solely in terms of the crimes of which he stands convicted. As set forth previously, however, in the context of a single trial the double jeopardy clause prohibits multiple punishments for the same offense. Thus, we must examine the punishment imposed on the defendant by the court as a result of his conviction of the counts at issue and determine whether the punishment for these counts constituted multiple punishments for the same offense.

At the time that it rendered its decision as to each count, the court concluded that the crimes set fourth in the fifth and sixth counts were “essentially identical . . . [such] that principles of double jeopardy preclude the court from imposing separate sentences as [to] each count.” The court expressed its “intention” to “merge the conviction under the two counts and to impose one sentence” at the time of sentencing. The court sentenced the defendant under count one to a term of incarceration of seven and one-half years. The court sentenced the defendant under count two to a term of incarceration of seven and one-half years to be served consecutively with the sentence imposed under count one. The court later stated: “As to the fifth and sixth counts, which are merged, the sentence of the court is [that] the defendant be committed to the custody of the correction commissioner for a period of one year. Total effective sentence, one year to serve. And that sentence is intended to run concurrently with the sentences imposed under the first three counts.”

Thus, at sentencing, the court “merged” the two counts of sexual assault in the fourth degree after clearly manifesting its conclusion that sentencing the defendant under both counts violated his right not to be placed in double jeopardy. Yet, the court did not describe with particularity which count had been merged into the other or, stated differently, which of the two counts it imposed its sentence under. As stated previously, counts five and six alleged distinct crimes brought under different subparagraphs of § 53a-73a (a) (1). We note that the defendant did not ask the court to clarify this aspect of its decision. Nevertheless, despite the fact that the record does not afford us a basis on which to resolve this ambiguity, it ultimately does not hamper our ability to resolve the issue presented.

It appears to be undisputed that the criminal conduct at issue with regard to the risk of injury counts is the same criminal conduct at issue in the counts of sexual assault in the fourth degree. That is, the counts arise out of the same acts by the defendant. Specifically, these acts are the defendant’s touching the intimate parts of the victim’s body and his forcing the victim to have contact with the intimate parts of his body. Accordingly, our analysis will be tailored to determining whether, as claimed by the defendant, the risk of injury counts, on the one hand, and the counts of sexual assault in the fourth degree, on the other hand, are the same offenses.

We have reviewed carefully the relevant statutory provisions at issue as well as the substitute information. Count one, as charged, required the state to prove the following elements beyond a reasonable doubt: (1) the defendant had contact with the intimate parts of the victim, (2) the victim was younger than age sixteen and (3) the defendant acted in a sexual and indecent manner likely to impair the health or morals of the victim. See General Statutes (Rev. to 1997) § 53-21 (2). Count two, as charged, required the state to prove the following elements beyond a reasonable doubt: (1) the defendant subjected the victim to contact with the defendant’s intimate parts, (2) the victim was younger than age sixteen and (3) the defendant acted in a sexual and indecent manner likely to impair the health or morals of the victim. See General Statutes (Rev. to 1997) § 53-21 (2).

Count five, as charged, required the state to prove the following elements beyond a reasonable doubt: (1) the defendant subjected the victim to sexual contact, (2) the defendant acted intentionally and (3) the victim was younger than fifteen years of age. See General Statutes § 53a-73a (a) (1) (A). Count six, as charged, required the state to prove the following elements beyond a reasonable doubt: (1) the defendant subjected the victim to sexual contact, (2) the defendant acted intentionally, (3) the victim was less than eighteen years old and (4) the defendant was the victim’s guardian or was otherwise responsible for the general supervision of the victim’s welfare. General Statutes § 53a-73a (a) (1) (D).

A comparison of the elements of the risk of injury offenses with the elements of the offenses of sexual assault in the fourth degree clearly reflects that the separate offenses required proof of different facts. Both risk of injury counts required proof that the victim was younger than sixteen years of age. In contrast, both counts of sexual assault in the fourth degree required different proof with regard to the victim’s age; count five required proof that the victim was younger than fifteen years of age, and count six required proof that the victim was less than eighteen years of age. See State v. Morris, 49 Conn. App. 409, 419, 716 A.2d 897 (contrasting for Blockburger purposes proof of age required by § 53-21 with that required by § 53a-73a [a] [1] [A]), cert. denied, 247 Conn. 904, 720 A.2d 516 (1998).

Furthermore, “sexual contact” is an element common to both counts five and six. This court has held that “the element of ‘sexual contact,’ included within the offense of sexual assault in the fourth degree, is not necessarily equivalent to the touching of the private parts of a child in a ‘sexual and indecent manner’ . . . prohibited by the risk of injury to a child statute. The term ‘sexual contact’ is defined as ‘any contact with the intimate parts of a person not married to the actor for the purpose of sexual gratification of the actor or for the purpose of degrading or humiliating such person’ .... The mental state required for the offense of sexual assault in the fourth degree, therefore, is clearly different from that required for the offense of risk of injury to a child.” (Citations omitted.) Id.

For these reasons, we conclude that, under the Blockburger test, the offenses at issue are not the same for double jeopardy purposes. “[T]he Blockburger test, as a rule of statutory construction, simply creates a rebuttable presumption as to the actual legislative intent, [and] it is not a blind presumption that may be applied without regard to other relevant evidence of true intent. It would be absurd indeed to apply Blockburger, which was meant to help determine legislative intent, in a way that actually defeats what reason and logic dictate to be the intent. . . . The United States Supreme Court and our Supreme Court have made clear that the Blockburger rule should not be controlling where, for example, there is a clear indication of contrary legislative intent [and] [t]he language, structure and legislative history of a statute can provide evidence of this intent.” (Citation omitted; internal quotation marks omitted.) State v. Quint, 97 Conn. App. 72, 79, 904 A.2d 216, cert. denied, 280 Conn. 924, 908 A.2d 1089 (2006).

The defendant claims that the legislative history of § 53-21 (2) demonstrates “[t]he expectation of the legislature that one charge or the other [risk of injury or sexual assault in the fourth degree] would be brought against an individual based upon a given set of facts.” The defendant also claims that “[w]hat is manifest in the legislative debate is the intention to create a new form of risk of injury, constituting a sex offense, and to lump those individuals convicted with that offense together with the other sex offenders.” The excerpts of the legislative debate that culminated in the codification of § 53-21 (2) in 1995, on which the defendant relies, do not support these assertions. To the contrary, this court has interpreted the relevant legislative history and has held that in amending the risk of injury statute to create subdivision (2), “the legislature intended to create a new crime.” State v. Ellison, 79 Conn. App. 591, 603, 830 A.2d 812, cert. denied, 267 Conn. 901, 838 A. 2d 211 (2003). Accordingly, the defendant has not persuaded us that the presumption that resulted from our application of the Blockburger test should not be controlling here.

The judgment is affirmed.

In this opinion the other judges concurred.

       The court acquitted the defendant of one count of sexual assault in the third degree in violation of General Statutes § 53a-72a (a) (2). At sentencing, the court merged the conviction of two counts of sexual assault in the fourth degree. The court imposed a total effective sentence of nineteen years imprisonment, suspended after sixteen years, followed by five years of probation.

       In accordance with Practice Book § 64-1 (a), the court subsequently created and signed a memorandum of its decision.

       Prior to trial, the defendant filed a motion in limine asking the court to preclude on the grounds of relevance and undue prejudice “any evidence concerning his alleged involvement in crimes or misconduct other than those charged in the information. ” Although this motion arguably encompassed the evidence at issue in this claim, the record does not reflect that the court at any time acted on this motion. For this reason, the defendant’s reliance on the motion for the purpose of preserving the claims of error asserted is misplaced.
      “We have repeatedly held that this court will not consider claimed errors on the pari, of the trial court unless it appears on the record that the question was distinctly raised at trial and was ruled upon and decided by the court adversely to the appellant’s claim.’’ (Emphasis added; internal quotation marks omitted.) State v. Moody, 77 Conn. App. 197, 204, 822 A.2d 990, cert. denied, 264 Conn. 918, 827 A.2d 707, cert. denied, 540 U.S. 1058, 124 S. Ct. 831, 157 L. Ed. 2d 714 (2003). “[I]t is trial counsel’s responsibility to ensure that the issues he raises in pretrial motions are addressed before the trial begins. If the court has not acted on a pretrial motion, nothing prevents counsel from requesting a ruling on that motion on the record prior to the start of trial. Similarly, if the court has not acted on a pretrial motion and counsel proceeds with trial instead of seeking a ruling on that motion, nothing prevents him from objecting when the issue presented in that motion arises during trial. By alerting the court that it has not acted on a pretrial motion, or by objecting at trial, counsel provides the court with the opportunity to rule on the record, thereby preserving the issue for appellate review. Counsel may decide as a matter of strategy, however, to abandon an issue by not requesting a ruling on an overlooked pretrial motion or by not objecting at trial. The manner in which trial counsel acts, or fails to act, is of great significance in determining the availability of appellate review.” State v. Edwards, 99 Conn. App. 407, 411, 913 A.2d 1103, cert. denied, 281 Conn. 928, 918 A.2d 278 (2007).

       The defendant requests that, to the extent that he has not preserved this claim, we review the claim under the plain error doctrine codified in Practice Book § 60-5. We are not persuaded by the defendant’s assertion that this evidentiary claim warrants such extraordinary review.

       The following colloquy occurred after the victim was called to the witness stand:
      “The Court: You understand what it means to tell the truth, right?
      “[The Witness]: Yes.

        “The Court: And when you don’t tell the truth, you know the word they use for what you’re doing? You tell a lie if you don’t [tell] the truth; you tell a lie, right? Does that mean yes?
      “[The Witness]: Yes.
      “The Court: You said you would do that, so I’m sure you will, okay?
      “[The Witness]: Yes.
      “The Court: And if you don’t know the answer to any question, you can tell us that, too.
      “[The Witness]: Okay.”

       The defendant first raised an issue related to the victim’s competency after he filed the present appeal. The defendant filed a motion for articulation asking the trial court to “[s]pecify whether [it] found the minor victim . . . competent, and, if so, whether the basis for the conclusion was testimony or statutory,” and to “[s]pecify whether the trial court considered the [records in evidence from the department of children and families] in so adjudicating the minor victim, and, if so, what role the records played in that adjudication.” In a written response to the defendant’s motion, the court declined to articulate with regard to these issues on the ground that they had not been raised at trial. This court thereafter granted the defendant’s motion to review the court’s ruling; see Practice Book § 66-7; and denied the defendant’s request for relief.

       The defendant refers generally to double jeopardy rights afforded by the federal and state constitutions. Our Supreme Court has held that the federal and state constitutions afford coextensive protection for purposes of double jeopardy. See, e.g., State v. Michael J., 274 Conn. 321, 354, 875 A.2d 510 (2005); State v. Ferguson, 260 Conn. 339, 360, 796 A.2d 1118 (2002). Nevertheless, because the defendant has not separately analyzed his claim under the Connecticut constitution, we shall confine our analysis to the application of the federal constitution’s express prohibition against double jeopardy. See State v. Colton, 234 Conn. 683, 686 n.6, 663 A.2d 339 (1995), cert. denied, 516 U.S. 1140, 116 S. Ct. 972, 133 L. Ed. 2d 892 (1996).


author: ROBINSON, J.

text:
    TRACY MISATA ET AL. v. CON-WAY TRANSPORTATION SERVICES, INC., ET AL.
    (AC 27625)
    Flynn, C. J., and Beach and Robinson, Js.
    Submitted on briefs January 3
    officially released April 1, 2008

      John F. X. O’Neill filed a brief for the appellants (plaintiffs).

      James V. Somers, Steven H. Malitz and Regen O’Malley filed a brief for the appellees (defendants).
   Opinion

ROBINSON, J.

The plaintiffs, Tracy Misata and her minor daughter, Lauren Misata, appeal from the judgment of the trial court rendered in favor of the defendants, Con-Way Transportation Services, Inc., and John R. Martyn, Jr. On appeal, the plaintiffs claim that (1) the court improperly concluded that a discovery order was not complied with, (2) the parties did not receive notice that a judgment of nonsuit had been rendered, (3) the court improperly denied the plaintiffs’ motion for reconsideration of the denial of their motion to open the judgment of nonsuit and (4) the dismissal of the action constituted too harsh a result. We affirm the judgment of the trial court.

The following detailed procedural history is necessary for our resolution of the plaintiffs’ appeal. The plaintiffs commenced their action on June 27, 2003, by way of a one count complaint. The plaintiffs alleged that Martyn, an employee of Con-Way Transportation Services, Inc., negligently operated a truck and collided with the plaintiffs’ motor vehicle. The plaintiffs further claimed that they suffered injuries as a result of this negligence. In response, the defendants filed a motion for permission to file supplemental interrogatories, requesting that Tracy Misata provide “information concerning collateral source benefits and/or payments received by her in connection with [the plaintiffs’] claimed injuries.” The court granted this motion in September, 2003.

On November 5, 2003, the defendants filed a motion for nonsuit, pursuant to Practice Book § 13-14, as a result of the plaintiffs’ failure to respond to the supplemental interrogatories. On February 2, 2004, the court conditionally granted this motion, stating that the motion was granted “unless full compliance is served, with no objections except as based on claims of privilege, by [February 20, 2004].” The court subsequently granted the plaintiffs’ ex parte motion for an extension of time and ordered that the plaintiffs respond to the interrogatories by March 15, 2004.

The plaintiffs responded to the interrogatories; however, the defendants viewed the response as incomplete and inadequate and, accordingly, filed a motion for non-suit on March 25,2004. The plaintiffs objected four days later, but the court did not rule on this motion. The defendants filed another motion for nonsuit on December 16, 2004, which was not decided by the court. Approximately nine months later, the defendants filed a motion for a judgment of dismissal pursuant to Practice Book §§ 13-11, 13-14 and 13-15.

On November 14, 2005, the court held a hearing on the defendants’ motion. At the outset, the court noted that a judgment of nonsuit had been rendered on March 15, 2004. The plaintiffs’ counsel indicated that he was unaware of the judgment of nonsuit. The court observed that the plaintiffs needed to address the entry of non-suit. The court also noted that all of the parties appeared to have been unaware of the nonsuit and inquired whether the defendants objected to opening the judgment of nonsuit. Counsel for the defendants acknowledged “a lack of clarity as to where the case stood procedurally” and objected to opening the judgment of nonsuit.

On December 28, 2005, the defendants filed a second motion for a judgment of dismissal. The plaintiffs responded by filing an objection to the defendants’ motion and a “motion to reopen judgment of nonsuit” on January 27, 2006. The court denied the plaintiffs’ motion because of their “failure to fully respond to discovery response by March 15, 2004. Responses were incomplete, e.g., 6, 10, 12, 13 and 23.” On March 21, 2006, the plaintiffs filed a “motion for reconsideration to reopen judgment of nonsuit.” The court denied this motion, stating: “[U]ntimely, no good reason given for entry of nonsuit or judgment or why counsel was unaware of [March 15, 2004] ruling. Discovery answers were equivocal, nonresponsive and inadequate for their purpose.” This appeal followed.

As a preliminary matter, we must resolve, due to the procedural posture of this case, whether we may consider the merits of the underlying judgment of non-suit or whether our inquiry is restricted to whether the court abused its discretion in failing to open the judgment. See Ins. Co. of Pennsylvania v. Waterfield, 102 Conn. App. 277, 283, 925 A.2d 451 (2007). Ordinarily, we would conclude that our review is limited to the question of whether the court abused its discretion in denying the plaintiffs’ motion to open the judgment of nonsuit. Due to the unique circumstances of the present case, however, we conclude that the question of whether the court abused its discretion in denying the motion to open the judgment is inextricably intertwined with the underlying judgment of nonsuit.

The court rendered a judgment of nonsuit on March 15, 2004. Neither party, however, received notice of this judgment. Our review of the record does not reveal any indication that notice was sent to either party. It was not until the November 14, 2005 hearing that the plaintiffs were made aware of the existence of the judgment of nonsuit. See Segretario v. Stewart-Warner Corp., 9 Conn. App. 355, 360, 519 A.2d 76 (1986) (“[a] judgment of nonsuit is in fact rendered when the trial judge orders a nonsuit entered orally”). We conclude, therefore, that November 14, 2005, commenced the four month period within which the plaintiff was permitted to file a motion to open the judgment of nonsuit. See Federal Deposit Ins. Corp. v. Caldrello, 68 Conn. App. 68, 70-74, 789 A.2d 1005, cert. denied, 260 Conn. 903, 793 A.2d 1088, cert. denied, 537 U.S. 824, 123 S. Ct. 111, 154 L. Ed. 2d 35 (2002). Accordingly, the plaintiffs’ January 27, 2006 motion to open the judgment was timely before the trial court.

The plaintiffs chose to pursue the procedural option of filing a motion to open. Subsequently, they filed a motion for reconsideration of the denial of that motion. They did not file an appeal from the judgment of nonsuit within twenty days of the November 14, 2005 hearing. Additionally, the plaintiffs filed the motion to open more than twenty days after receiving notice of the judgment of nonsuit. On the appeal form, the plaintiffs indicated that they were appealing from the “ [dismissal (nonsuit) of case for . . . alleged failure to adequately in a timely manner answer . . . requests for discovery.” Furthermore, they have raised issues pertaining to both the underlying judgment of nonsuit and the motions to open and for reconsideration.

It is well established in our jurisprudence that “[w]here an appeal has been taken from the denial of a motion to open, but the appeal period has run with respect to the underlying judgment, we have refused to entertain issues relating to the merits of the underlying case and have limited our consideration to whether the denial of the motion to open was proper. Tiber Holding Corp. v. Greenberg, 36 Conn. App. 670, 671, 652 A.2d 1063 (1995). When a motion to open is filed more than twenty days after the judgment, the appeal from the denial of that motion can test only whether the trial court abused its discretion in failing to open the judgment and not the propriety of the merits of the underlying judgment. Altberg v. Paul Kovacs Tire Shop, Inc., 31 Conn. App. 634, 640, 626 A.2d 804 (1993). This is so because otherwise the same issues that could have been resolved if timely raised would nevertheless be resolved, which would, in effect, extend the time to appeal.” (Emphasis added; internal quotation marks omitted.) Stephen v. Hoerle, 39 Conn. App. 253, 256-57, 664 A.2d 817, cert. denied, 235 Conn. 928, 667 A.2d 555 (1995); Conway v. Hartford, 60 Conn. App. 630, 635, 760 A.2d 974 (2000); Connecticut Savings Bank v. Obenauf 59 Conn. App. 351,354, 758 A.2d 363 (2000); Charbonneau v. Charbonneau, 51 Conn. App. 311, 312-13, 721 A.2d 565 (1998), cert. denied, 247 Conn. 964, 724 A.2d 1125 (1999).

In the present case, the plaintiffs filed the motion to open more than twenty days after receiving notice of the judgment of nonsuit. In light of the well established precedent, they normally would be precluded from challenging the merits of the underlying judgment in this appeal. Our review of the record, however, reveals that there had been no judicial determination that the plaintiffs had not complied with the discovery request until the court denied the motion to open. Specifically, the February 17, 2006 order in which the court stated that the motion to open was “[d]enied for the failure to fully respond to discovery response by March 15, 2004 [and that] [Responses were incomplete, e.g., 6,10, 12, 13 and 23,” was the first ruling by a judge of the Superior Court that the plaintiff had not responded fully to the discovery order. Furthermore, in ruling on the plaintiffs’ motion for reconsideration, the court described the responses as “equivocal, nonresponsive and inadequate . . . .” Simply put, it was not until February 17,2006, and, in response to the plaintiffs’ motion for reconsideration on April 17, 2006, that the court actually decided whether the plaintiffs’ responses were sufficient. The court, therefore, was not only ruling on the motion to open but also the underlying basis of the entry of a judgment of nonsuit. Thus, in order for this court to determine whether the trial court abused its discretion in denying the motion to open, we must also consider whether the basis for the nonsuit was proper.

As we previously have noted, the court did not explain the basis for its determination that the plaintiffs had not complied with the discovery orders. It described the plaintiffs’ answers as “incomplete,” “equivocal, nonresponsive and insufficient for their purpose.” The court subsequently stated that “[ultimately, no good reason [was] given for entry of nonsuit or judgment or why counsel [for the plaintiffs] was unaware [of the March 15, 2004] ruling.” We conclude that the record is inadequate to review whether the court properly determined that the plaintiffs’ responses did not comply with the discovery order.

“[I]t is incumbent upon the appellant to take the necessary steps to sustain its burden of providing an adequate record for appellate review. . . . [A]n appellate tribunal cannot render a decision without first fully understanding the disposition being appealed. . . . Our role is not to guess at possibilities, but to review claims based on a complete factual record developed by a trial court. . . . Without the necessary factual and legal conclusions furnished by the trial court . . . any decision made by us respecting [the plaintiffs’ claim] would be entirely speculative. ... It is, therefore, the responsibility of the appellants] to move for an articulation or clarification of the record when the trial court has failed to state the basis of a decision. . . . [W]here the trial court’s decision is ambiguous, unclear or incomplete, an appellant must seek an articulation . . . or this court will not review the claim.” (Citation omitted; emphasis in original; internal quotation marks omitted.) Manifold v. Ragaglia, 94 Conn. App. 103, 124-25, 891 A.2d 106 (2006); see also Practice Book § 61-10. The plaintiffs have failed to perfect the record for our review, and, therefore, we cannot review the trial court’s determination that responses to the discovery order were insufficient. We are left, therefore, with the conclusion by the court regarding the plaintiffs’ responses that we cannot review.

On the basis of this inadequate record, we are unable to conclude that the court abused its discretion in denying the motion to open on the basis of the plaintiffs’ failure to comply with discovery orders.

The judgment is affirmed.

In this opinion the other judges concurred.

       Practice Book § 13-14 (a) provides: “If any party has failed to answer interrogatories or to answer them fairly, or has intentionally answered them falsely or in a manner calculated to mislead, or has failed to respond to requests for production or for disclosure of the existence and contents of an insurance policy or the limits thereof, or has failed to submit to a physical or mental examination, or has failed to comply with a discovery order made pursuant to Section 13-13, or has failed to comply with the provisions of Section 13-15, or has failed to appear and testily at a deposition duly noticed pursuant to this chapter, or has failed otherwise substantially to comply with any other discovery order made pursuant to Sections 13-6 through 13-11, the judicial authority may, on motion, make such order as the ends of justice require.”
      Practice Book § 13-14 (b) provides in relevant part: “Such orders may include the following:
      “(1) The entry of a nonsuit or default against the party failing to comply ----”

       The record does not reveal whether the court issued a memorandum of decision or simply entered the judgment of nonsuit without additional comment.

       “Generally speaking, a nonsuit is the name of a judgment rendered against a party in a legal proceeding upon his inability to maintain his cause in court, or when he is in default in prosecuting his suit or in complying with orders of the court. . . . When the plaintiff is nonsuited, [t]he judgment entered [is] one entitled as of nonsuit .... A nonsuit, therefore, is a judgment expressed without more, and to be entered when ordered without more.” (Citations omitted; emphasis in original; internal quotation marks omitted.) Segretario v. Stewart-Wamer Corp., 9 Conn. App. 355, 359, 519 A.2d 76 (1986); see also 1 E. Stephenson, Connecticut Civil Procedure (3d Ed. 1997) § 95, pp. 276=81.

       At the outset, we note that the plaintiffs have failed to comply with certain rules of appellate procedure, including, but not limited to, the failure to cite any case law. “[Appellate courts] are not required to review issues that have been improperly presented . . . through an inadequate brief. . . . Analysis, rather than mere abstract assertion, is required in order to avoid abandoning an issue by failure to brief the issue properly.” (Internal quotation marks omitted.) State v. Moreno-Cuevas, 104 Conn. App. 288, 291 n.4, 934 A.2d 260 (2007); Kelib v. Connecticut Housing Finance Authority, 100 Conn. App. 351, 353, 918 A.2d 288 (2007). We remind counsel of the obvious need to comply with our rules of practice and properly brief the issues presented on appeal. The failure to do so may be fatal to an appeal.

       In Johnson v. Atlantic Health Services, P.C., 83 Conn. App. 268, 849 A.2d 853 (2004), we held that “[njotice is necessary to make a determination of the date that commences the four month period within which a party may file a motion to open a judgment. Noncompliance with a contingent order, by itself, cannot serve as notice of the resultant judgment.” (Emphasis added.) Id., 276; see also Tyler E. Lyman, Inc. v. Lodrini, 63 Conn. App. 739, 746, 780 A.2d 932 (“[I]t is axiomatic that the right to move to open and vacate a judgment assumes that the party who is to exercise the right be given the opportunity to know that there is a judgment to open. We have indicated that for the purpose of opening a default judgment ... a delay in notifying the defendant of the judgment would . . . extend the time in which the defendant could move to set aside the judgment.” [Internal quotation marks omitted.]), cert. denied, 258 Conn. 902, 782 A.2d 137 (2001); Federal Ins. Co. v. Gabriele, 54 Conn. App. 459, 462, 735 A.2d 368 (1999) (“Practice Book § 17-4 clarifies the issue of when the four month period commences by providing that the four month period does not commence until the date on which notice of the judgment is sent”).

       Practice Book § 17-4 (a) provides in relevant part that “any civil judgment or decree rendered in the superior court may not be opened or set aside unless a motion to open or set aside is filed within four months succeeding the date on which notice was sent. . . .” (Emphasis added.)

       A motion to reargue or reconsider is proper even if no provision for reargument under these circumstances is provided in the rules of practice. See Tiber Holding Corp. v. Greenberg, 36 Conn. App. 670, 671 n.1, 652 A.2d 1063 (1995) (motion for reconsideration filed more than twenty days after original judgment).

       “Ordinarily when judgment is rendered in open court, the appeal period starts on the date of the court’s pronouncement.” Dime Savings Bank v. Saucier, 44 Conn. App. 812, 814, 692 A.2d 1288 (1997); see also Practice Book § 63-1 (b).

       The plaintiffs received notice of the judgment of nonsuit on November 14, 2005. The motion to open was filed on January 27, 2006.

       We note that “[t]he denial of a motion to open is an appealable final judgment.” Alix v. Leech, 45 Conn. App. 1, 3, 692 A.2d 1309 (1997).

       For example, Stephen v. Hoerle, supra, 39 Conn. App. 253, would guide our resolution. In that case, a judgment of nonsuit was entered after the plaintiff failed to appear at a scheduled deposition. Id., 254. Twenty-one days after the judgment of nonsuit, the plaintiff moved to open the judgment, and the court denied the motion. Id., 254-55. We noted that because the motion to open was not filed within twenty days of the judgment of nonsuit, the appeal period on that underlying judgment was not stopped. Id., 255. Accordingly, we dismissed the plaintiffs claims on appeal that related to the merits of the trial court’s ruling leading to the rendering of the judgment of nonsuit. Id., 257. We then rejected the sole remaining claim that the court, had abused its discretion by denying the motion to open the judgment of nonsuit. Id., 257-58.

       Our standard of review of the trial court’s denial of a motion to open is well established. “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.” (Internal quotation marks omitted.) Reiner, Reiner & Bendett, P.C. v. Cadle Co., 278 Conn. 92, 107, 897 A.2d 58 (2006); see also Valentine v. LaBow, 95 Conn. App. 436, 451, 897 A.2d 624, cert. denied, 280 Conn. 933, 909 A.2d 963 (2006).

       We note that under unusual circumstances, we may venture from the well trodden path. See, e.g., Zirinsky v. Zirinsky, 87 Conn. App. 257, 265, 865 A.2d 488, cert. denied, 273 Conn. 916, 871 A.2d 372 (2005). As this case presents an unusual set of facts and circumstances, we will depart from the general rule that when an appeal has been filed after the denial of a motion to open but the appeal period from the underlying judgment has run, our review will be limited to whether the denial of the motion to open was proper. We emphasize, however, that our decision in the present case is limited strictly to the facts presented and does not signify any change or departure from the general rule. See id., 266.


author: DiPENTIMA, J.

text:
    DORIS FILLION v. ROBERT J. HANNON ET AL.
    (AC 28120)
    DiPentima, Harper and Hennessy, Js.

      Argued December 4, 2007
    officially released April 1, 2008

      Alfred F. Morrocco, Jr., with whom, on the brief, was Doris Fillion, pro se, for the appellant (petitioner).

      Duncan J. Forsyth, with whom, on the brief, was Thomas C. Blatchley, for the appellees (respondents).
   Opinion

DiPENTIMA, J.

The petitioner, Doris Fillion, appeals from the judgment of the trial court denying her petition to reopen the assessment of fines by the respondent municipal hearing officer, Robert J. Hannon, for failure to comply with certain cease and desist orders. On appeal, the petitioner claims that the court (1) incorrectly interpreted the Farmington zoning regulations and (2) improperly failed to consider certain claims in her petition. We affirm the judgment of the trial court.

The record reveals the following factual and procedural history relevant to the petitioner’s claims. In 1971, the petitioner purchased property located at 28 West District Road in Farmington. In 1975, she erected a single-family dwelling on the property, where she has lived for more than thirty years. Since she began residing there, she has acquired three vehicles. She acquired a Nomad camp trailer in 1978, a Fleetwood Tioga “motor home” in 2001 and a boat with a carry trailer in 2002. She has stored the vehicles on her property from their respective dates of acquisition.

On December 3, 2003, the respondent Martin Tartaglino, assistant zoning enforcement officer for the respondent town of Farmington, received a complaint from a neighbor of the petitioner. The complaint alleged, inter alia, that the petitioner had been storing her “boat and camper trailers” in her front yard for at least one and one-half years. In response to the complaint, Tartaglino conducted an investigation and determined that the petitioner was storing her vehicles in the front of her property in violation of article IV, § 9, of the Farmington zoning regulations, which requires her to store any mobile homes or recreational vehicles behind the longest rear wall of her house or in the rear half of the lot. Consequently, on December 5, 2003, Tartaglino issued to the petitioner a cease and desist order to remove the vehicles from the front yard within ten days. The petitioner did not appeal from that order to the Farmington zoning board of appeals.

Sometime in early 2004, the town of Farmington amended its zoning regulations. Thereafter, on May 19, 2004, Tartaglino sent a letter to the petitioner, informing her of the amendments and offering his assistance in obtaining compliance with the new regulations. After several months passed with no response from the petitioner, on August 9, 2004, Tartaglino issued a second cease and desist order. The petitioner did not appeal from the second cease and desist order, but on November 8, 2004, she filed with the Farmington zoning commission an application for a special permit to continue storing her vehicles in the front of her property. She withdrew her application, however, on November 30, 2004, before the commission had acted on it.

On December 10,2004, the petitioner still had failed to comply with the cease and desist orders, and Tartaglino issued the first in a series of citations for her ongoing violation of article IV, § 9, of the Farmington zoning regulations. By March 14, 2005, Tartaglino had issued twelve citations, each providing for a penalty of $150, for a total fine of $1800. After she had received the first two citations, on December 29, 2004, the petitioner contested Tartaglino’s citations and requested a hearing before the municipal hearing officer, the respondent Hannon.

A hearing was held before Hannon on March 22,2005. In a written decision, dated October 5, 2005, Hannon determined that the petitioner had violated the Farmington zoning regulations as stated in the citations and assessed a fine of $1800. Hannon’s decision, however, offered the petitioner one final opportunity to avoid penalty. Hannon gave the petitioner thirty days to resubmit her application for a special permit, and, if the zoning commission approved her application, Hannon would waive the assessment. The petitioner failed to submit a new application by November 15, 2005, and, on that date, Hannon notified her that the $1800 assessment would not be waived.

Pursuant to General Statutes § 7-152c (g), the petitioner filed a petition with the court to open Hannon’s assessment. After a hearing de novo in July, 2006, the court found that the petitioner had violated article IV, § 9, of the Farmington zoning regulations, ordered her to comply with the cease and desist orders imposed by Tartaglino and upheld the assessment of $1800. This appeal followed. Additional facts will be set forth as necessary.

I

The petitioner first claims that the court incorrectly interpreted the Farmington zoning regulations. Specifically, she argues that the court improperly interpreted article IV, § 9 (C) (1) of the Farmington zoning regulations, which regulates “mobile homes” and “recreational vehicles,” as a prohibition against storing her motor home in the driveway next to her house. We are not persuaded.

We begin by setting forth the standard of review. “Because the interpretation of the [zoning] regulations presents a question of law, our review is plenary. . . . Additionally, zoning regulations are local legislative enactments . . . and, therefore, their interpretation is governed by the same principles that apply to the construction of statutes. . . . Moreover, regulations must be interpreted in accordance with the principle that a reasonable and rational result was intended . . . (Internal quotation marks omitted.) Thomas v. Planning & Zoning Commission, 98 Conn. App. 742, 745, 911 A.2d 1129 (2006).

“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. ... In seeking to determine that meaning, General Statutes § l-2z directs us first to consider the text of the statute itself and its relationship to other statutes. If, after examining such text and considering such relationship, the meaning of such text is plain and unambiguous and does not yield absurd or unworkable results, extratextual evidence of the meaning of the statute shall not be considered.” (Internal quotation marks omitted.) Farmers Texas County Mutual v. Hertz Corp., 282 Conn. 535, 541, 923 A.2d 673 (2007). In addition, General Statutes § 1-1 (a) provides in relevant part that “words and phrases shall be construed according to the commonly approved usage of the language; and technical words and phrases, and such as have acquired a peculiar and appropriate meaning in the law, shall be construed and understood accordingly.” “When a statute does not define a term, we look to the common understanding expressed in the law and in dictionaries.” Czarzasty v. Czarzasty, 101 Conn. App. 583, 589, 922 A.2d 272, cert. denied, 284 Conn. 902, 931 A.2d 262 (2007).

“Since zoning regulations are in derogation of common law property rights, however, the regulation cannot be construed beyond the fair import of its language to include or exclude by implication that which is not clearly within its express terms. . . . [W]here more than one interpretation of language is permissible, restrictions upon the use of lands are not to be extended by implication . . . [and] doubtful language will be construed against rather than in favor of a [restriction] . . . .” (Internal quotation marks omitted.) Balf Co. v. Planning & Zoning Commission, 79 Conn. App. 626, 636, 830 A.2d 836, cert. denied, 266 Conn. 927, 835 A.2d 474 (2003). With these legal principles in mind, we turn to the merits of the petitioner’s claim.

We begin our discussion by noting that the court, in its memorandum of decision, concluded that the petitioner had stored recreational vehicles in the front of her property in violation of the 1996 revision of article IV, § 9 (C), of the Farmington zoning regulations, which were in effect at the time the petitioner purchased her motor home. Although Tartaglino had issued the first cease and desist order pursuant to the 1996 revision of article IV, § 9, he did not issue the twelve citations until after the town of Farmington had revised article IV, § 9 (C), in 2004. Furthermore, each citation alleged that a violation of article IV, § 9, occurred on the date that the citation was issued. See Farmington Code of Ordinances § 22-3. Accordingly, because, at the time Tartaglino issued the citations, the petitioner did not have a permit to store her recreational vehicles in her front yard as a preexisting nonconforming use; see footnote 5; the 2004 revision of article IV, § 9, governed the storage of recreational vehicles on the petitioner’s property. The court, therefore, should have determined whether the petitioner had violated the 2004 revision of article IV, § 9, which was in effect at the time Tartaglino issued the citations. We conclude, however, that on the basis of the petitioner’s judicial admissions, she clearly had violated the 2004 revision of article IV, § 9, as alleged in the citations.

The 2004 revision of article IV, § 9 (C) (1), of the Farmington zoning regulations provides in relevant part: “[A] mobile home and/or a recreational vehicle including a boat and aircraft shall be treated the same as a trailer and shall be stored [behind the longest rear wall of the principal building or in the rear half of the lot and at least ten feet from side and rear lot lines].” The zoning regulations provide no definition for the terms “recreational vehicle” or “motor home.”

The petitioner argues that the expression “recreational vehicle” is ambiguous and cannot be construed fairly to include her motor home within the scope of article IV, § 9 (C) (l). In support of her argument, she presented as evidence before the court pages from several commonly used dictionaries that do not provide a definition for the term “recreational vehicle.” Our search for the common understanding of a word or phrase is not confined, however, to the pages of dictionaries. See Farrior v. Zoning Board of Appeals, 70 Conn. App. 86, 91-95, 796 A.2d 1262 (2002). “We may look to the meaning given the same phrase in unrelated statutes . . . and consider that where the legislature uses the same phrase it intends the same meaning.” (Citation omitted.) Link v. Shelton, 186 Conn. 623, 627, 443 A. 2d 902 (1982); see also Cislo v. Shelton, 40 Conn. App. 705, 721, 673 A.2d 134 (1996), rev’d on other grounds, 240 Conn. 590, 692 A.2d 1255 (1997).

Because article IV, § 9, regulates the petitioner’s use and storage of certain motor vehicles on her property, it is appropriate to refer to the motor vehicle statutes for a common understanding of the term “recreational vehicle.” At the time the town of Farmington promulgated article IV, § 9, General Statutes (Rev. to 2001) § 14-1 (a) (64) provides: “ ‘Recreational vehicle’ includes the camper, camp trailer and motor home classes of vehicles.” (Emphasis added.) Thus, when operated on a public highway, the petitioner’s motor home clearly and unambiguously is a class of recreational vehicle. The petitioner, however, suggests that once the motor home is parked on her property, it is no longer a recreational vehicle for purposes of the zoning regulations. The petitioner’s interpretation leads to an unreasonable and irrational result. See Thomas v. Planning & Zoning Commission, supra, 98 Conn. App. 745. Accordingly, we conclude that the term “recreational vehicle” as used in article IV, § 9, unambiguously prohibited the petitioner from storing her motor home in her front yard. On the basis of her admissions before the court, we further conclude that the petitioner had violated article IV, § 9, as alleged in the citations.

II

The petitioner next claims that the court improperly excluded as irrelevant evidence in support of her defense that Tartaglino “selectively enforced” the Farmington zoning regulations in violation of the equal protection clause of the fourteenth amendment to the United States constitution. Even if we were to agree with the petitioner, we conclude, nonetheless, that the exclusion of such evidence was harmless.

On the first day of the hearing, the petitioner offered as an exhibit numerous photographs that allegedly depict vehicles similar to hers, i.e., boats, camp trailers and recreational vehicles, being stored in the front and side yards of properties in Farmington, in violation of the zoning regulations. The court excluded the photographs as irrelevant, concluding that “the fact that others were violating the zoning laws and were not enforced is not relevant insofar as [the petitioner is] concerned. . . . [I]t doesn’t affect [this] case.” The court, however, allowed the petitioner to “argue that there was selective enforcement during oral argument,” despite having precluded her from submitting an evidentiary basis for such an argument. Later in the trial, the petitioner made another attempt to introduce the same exhibit through her cross-examination of Tartaglino. Although the court stated that the petitioner would be allowed “to bring the issue of selective enforcement,” the court again precluded her from introducing the photographs.

As a threshold matter, we set forth the standard by which we review the court’s ruling concerning the admissibility of evidence. “The trial court’s ruling on evidentiary matters will be overturned only upon a showing of a clear abuse of the court’s discretion. . . . We will make every reasonable presumption in favor of upholding the trial court’s ruling, and only upset it for a manifest abuse of discretion. . . . [Thus, our] review of such rulings is limited to the questions of whether the trial court correctly applied the law and reasonably could have reached the conclusion that it did.” (Internal quotation marks omitted.) Vanliner Ins. Co. v. Fay, 98 Conn. App. 125, 134, 907 A.2d 1220 (2006). “In order to establish reversible error, the defendant must prove both an abuse of discretion and a harm that resulted from such abuse.” (Internal quotation marks omitted.) Simes v. Simes, 95 Conn. App. 39, 51, 895 A.2d 852 (2006).

The petitioner claimed, as a defense to the citations, that Tartaglino had selectively enforced the Farmington zoning regulations against her in violation of the equal protection clause of the fourteenth amendment to the United States constitution. “The [e]qual [protection [c]lause requires that the government treat all similarly situated people alike. . . . Although the prototypical equal protection claim involves discrimination against people based on their membership in a vulnerable class . . . the equal protection guarantee also extends to individuals who allege no specific class membership but are nonetheless subjected to invidious discrimination at the hands of government officials. . . . The [United States] Supreme Court [has] affirmed the validity of such class of one claims where the plaintiff alleges that she has been intentionally treated differently from others similarly situated and that there is no rational basis for the difference in treatment. Village of Willowbrook v. Olech, 528 U.S. 562, 564, 120 S. Ct. 1073, 145 L. Ed. 2d 1060 (2000) (per curiam).” (Citations omitted; emphasis added; internal quotation marks omitted.) Harlen Associates v. Inc. Village of Mineola, 273 F.3d 494, 499 (2d Cir. 2001).

A violation of the equal protection clause by selective enforcement is a defense to a municipality’s enforcement of its zoning regulations. See Chaplin v. Balkus, 189 Conn. 445, 448, 456 A.2d 286 (1983); Carini v. Zoning Board of Appeals, 164 Conn. 169, 174, 319 A.2d 390 (1972) (“failure to comply with zoning ordinances cannot be justified by the existence of other violations unless it is shown that a pattern of discrimination has been consciously practiced by the municipality” [emphasis added]), cert. denied, 414 U.S. 831, 94 S. Ct. 64, 38 L. Ed. 2d 66 (1973); see also Cadlerock Properties Joint Venture, L.P. v. Commissioner of Environmental Protection, 253 Conn. 661, 670-73, 757 A.2d 1 (2000), cert. denied, 531 U.S. 1148, 121 S. Ct. 1089, 148 L. Ed. 2d 963 (2001); Columbiana v. Keister, 5 Ohio App. 3d 81, 84, 449 N.E.2d 465 (1981). The petitioner ordinarily cannot establish an equal protection violation, however, unless she shows that the respondents consciously applied a different standard of enforcement to similarly situated individuals. LaTrieste Restaurant v. Village of Port Chester, 188 F.3d 65, 70 (2d Cir. 1999), cert. denied, 528 U.S. 1187, 120 S. Ct. 1240, 146 L. Ed. 2d 99 (2000). “Mere laxity in the administration of the law, no matter how long continued, is not and cannot be held to be a denial of the equal protection of the law. To establish arbitrary discrimination inimical to constitutional equality, there must be something more, something which in effect amounts to an intentional violation of the essential principle of practical uniformity. . . . For the plaintiffs to prevail, they must show a pattern of discrimination consciously practiced.” (Citations omitted; internal quotation marks omitted.) Bianco v. Darien, 157 Conn. 548, 559-60, 254 A.2d 898 (1969); see also Golab v. New Britain, 205 Conn. 17, 26, 529 A.2d 1297 (1987).

We conclude that even if we assume that the exclusion of the photographs was improper, the petitioner was not harmed. Tartaglino testified that because Farmington’s zoning enforcement officers have limited resources, they do not make regular inspections of all properties in town to enforce the zoning regulations. Instead, they make inspections in response to complaints, such as the one lodged against the petitioner. Thus, even if we assume that the photographs conclusively proved that she was similarly situated to other property owners in Farmington, the petitioner failed to allege and failed to offer any evidence that Tartaglino had treated her differently from other property owners or that he had an improper motive for issuing the citations to her. In other words, the petitioner offered no evidence that Tartaglino had received and ignored complaints that other property owners were violating the zoning regulations, while pursuing his enforcement efforts against her with no rational basis for doing so. We conclude, therefore, that the petitioner has failed to demonstrate any harm that resulted from the exclusion of the photographs.

The judgment is affirmed.

In this opinion the other judges concurred.

       The petitioner named three respondents in her petition: the town of Farmington; the municipal hearing officer, Robert J. Hannon; and an assistant zoning enforcement officer, Martin Tartaglino.

       Tartaglino issued the twelve citations, pursuant to Farmington Town Code § 22-3 (A), for the same continued failure over the course of several days to comply with the cease and desist order. He issued the additional citations on December 17 and 30, 2004, and on January 7, 18, 21 and 31, February 4, 18 and 28, and March 7 and 14, 2005.

       See General Statutes §§ 7-152c and 8-12a (b). Although Tartaglino issued several of the citations after the petitioner had requested the hearing, Hannon addressed all twelve citations at the hearing.

       See Practice Book § 23-51.

       Alternatively, the petitioner claims that even if her motor home is considered a mobile home or recreational vehicle, the nonconforming use of her property was “grandfathered” pursuant to General Statutes § 8-2 (a). We reject this alternate claim for relief because the petitioner failed to exhaust her administrative remedies. See O & G Industries, Inc. v. Planning & Zoning Commission, 232 Conn. 419, 425, 655 A.2d 1121 (1995) (“[i]t is a settled principle of administrative law that, if an adequate administrative remedy exists, it must be exhausted before the Superior Court will obtain jurisdiction to act in the matter” [internal quotation marks omitted]).
      The petitioner failed to appeal from the cease and desist orders and failed to apply for an extension of a nonconforming use to the zoning board of appeals, as provided by article V, § 4, of the Farmington zoning regulations. Further, she withdrew her special permit application to the planning and zoning commission before the commission had an opportunity to act on it. Accordingly, the scope of our review is limited to the propriety of Tartaglino’s citations pursuant to General Statutes § 8-12a (b) and Hannon’s assessment of fines pursuant to General Statutes § 7-152c; we decline to address the cease and desist orders. In any event, the 1996 revision of article IV, § 9, which was in effect at the time the petitioner acquired her motor home in 2001, provides for the same prohibition as the 2004 revision against the storage of recreational vehicles in the petitioner’s front yard.
      The petitioner also claims in her brief that the court improperly interpreted article IV, § 9, of the Farmington zoning regulations as a prohibition against storing her camp trailer in the front of her property. Because we conclude that the court properly denied her petition on the basis of article IV, § 9, as applied to her motor home, we need not address whether article IV, § 9, applies to the camp trailer as well. The improper storage of any one of the petitioner’s vehicles may serve as a basis for the issuance of a citation, and therefore, for purposes of our discussion, it does not matter whether the petitioner also stored the camp trailer in violation of the zoning regulations.
      The petitioner further challenges the court’s conclusion that Tartaglino had authority to issue cease and desist orders and citations to her. The essence of her claim is that Tartaglino lacked authority to issue cease and desist orders and citations because she was not in violation of the zoning regulations. Given our conclusion that the court properly found the petitioner in violation of article IV, § 9, of the Farmington zoning regulations, this claim also fails.

       Article IV, § 9 (C) (1) (Rev. to 1996), of the Farmington zoning regulations provides in relevant part: “No more than a total of two mobile homes or recreational vehicles (including boats or aircraft) may be placed on a parcel of land occupied by a one, two, three or four family home provided they are located [within the rear yard or rear half of the lot and at least 10 feet from side and rear lot lines].”

       Tartaglino testified that he had visited the petitioner’s property to confirm the violations before issuing each of the twelve citations.

       The petitioner states in her petition that her 1997 Fleetwood Tioga is a motor home and that, on the relevant dates, she stored the motor home in the front yard of her property at the rear of her driveway. “[T]he admission of the truth of an allegation in a pleading is a judicial admission conclusive on the pleader. . . . [The] admission in a pleading or answer is binding on the party making it, and may be viewed as a conclusive or judicial admission . . . .” (Internal quotation marks omitted.) Young v. Vlahos, 103 Conn. App. 470, 476, 929 A.2d 362 (2007), cert. denied, 285 Conn. 913, 943 A.2d 474 (2008).

       The petitioner also argues that her motor home is not encompassed by the term “mobile home” as that term is used in the zoning regulations. Because we conclude that the meaning of the term “recreational vehicles” includes motor homes, we assume, without deciding, that the term “mobile homes" does not. The petitioner does not dispute, however, that on the days Tartaglino issued the citations, her motor home was not stored behind the longest rear wall of her house or in the rear half of her lot.

       The petitioner claims that the court improperly excluded this evidence at trial. Our review of the record, however, reveals that the court, in fact, admitted this evidence as the petitioner’s exhibit fifty-two.

       We note that the petitioner, during the hearing before the court, argued that the motor vehicle statutes provided an appropriate definition for the term “camp trailer,” which she claimed was inconsistent with the respondents’ interpretation of that term. See footnote 5.

       The legislature first provided this statutory definition of “recreational vehicle” in 1990. Currently it may be found under General Statutes § 14-1 (a) (69).