text:
    E AND M CUSTOM HOMES, LLC v. ALBERTO NEGRON ET AL.
    (AC 33339)
    DiPentima, C. J., and Robinson and Bishop, Js.

      Argued September 24, 2012
    officially released January 1, 2013

      Robert E. Ghent, for the appellant (plaintiff).

      Raphael Deutsch, with whom, on the brief, was Raymond J. Antonacci, for the appellees (defendants).
   Opinion

ROBINSON, J.

The plaintiff, E & M Custom Homes, LLC, appeals from the judgment of the trial court finding for the defendants Alberto Negron and Luz Maria Negron on the plaintiffs claim for foreclosure of its mechanic’s lien and finding against the plaintiff on the defendants’ counterclaim. On appeal, the plaintiff claims that the court improperly (1) awarded damages to the defendants on their counterclaim, (2) calculated the mechanic’s lien, (3) permitted an unregistered home improvement contractor to testify as an expert witness and (4) calculated the setoff. We affirm the judgment of the trial court.

The following facts, as found by the court, and procedural history are relevant to this appeal. Ed Thomas, a principal of the plaintiff, and the defendants entered into two contracts: (1) for the purchase of an unimproved lot located at Lot 16, 27 Red Maple Lane, Waterbury for $69,900 (lot agreement); and (2) for the construction of a single family residence on the lot for a purchase price of $230,000 (construction contract). Upon execution of the lot agreement, the defendants gave the plaintiff a $6000 deposit.

The defendants subsequently obtained construction loan financing with the assistance of Allied Home Mortgage Corporation (Allied). Thomas was the manager of Allied. Through its employee, Helen Mezzanotte, Allied prepared a budget for the construction of the new dwelling. Thomas reviewed and approved the construction budget on behalf of the plaintiff.

Owner Builder Loan Services (lender) provided the construction loan in the amount of $256,600. The construction loan agreement included a construction budget, which provided for draws to be made in five separate stages of construction. The construction budget set forth and detailed the work to be performed and the requirements that had to be met before the release of a draw. One requirement was the execution of a contractor’s affidavit, which the lender prepared and directed how it was to be executed and returned. Both Alberto Negron and Thomas, on behalf of the plaintiff, signed the construction budget. The construction budget calculated the cost to complete the construction of the house to be $191,749.

Six months after the contracts were signed, on March 12, 2007, the closing for the home and lot occurred. At the closing, the plaintiff received $62,150 out of the construction loan proceeds toward the balance on the lot agreement. Shortly thereafter, it received the maximum disbursements for stages one and two of the construction. The house, however, was not completed at the time of the closing. On August 22, 2007, Alberto Negron and Thomas, on behalf of the plaintiff, executed a contractor’s affidavit, which affirmed that work was performed and paid for up through stage four. The next day, the plaintiff received a check for the maximum disbursements for stages three and four.

The construction budget for stage five was $45,428. By October, 2007, the plaintiff had been paid $19,425 for stage five construction work, and the defendants had been reimbursed $12,278 for fixtures, countertops and cabinets that they had purchased, but several items remained incomplete. Nevertheless, the defendants moved into the house prior to a final certificate of occupancy being issued. The house failed its first two inspections in November, 2007. A certificate of occupancy was issued on December 31, 2007.

On February 16, 2008, pursuant to General Statutes § 49-33, the plaintiff filed a timely mechanic’s hen with respect to services rendered in the development of the property. It claimed $70,000 for services rendered from July 1, 2007 through November 16, 2007. The plaintiff then filed a two count complaint, seeking foreclosure on the mechanic’s lien and damages for breach of contract, on November 26, 2008. The defendants filed an answer and counterclaim on January 21, 2009, and an amended counterclaim on December 11, 2009, alleging that the plaintiff breached its contract with the defendants, that it failed to comply with General Statutes § 20-417c (4), (6) and (7) of the New Home Construction Contractors Act, General § 20-417a et seq., and that the violation of those provisions was a per se violation of General Statutes § 42-110a (b) of the Connecticut Unfair Trade Practices Act (CUTPA), General Statutes § 42-110a et seq. On August 24, 2010, the plaintiff amended its complaint, withdrawing the second count, which had alleged breach of contract, because the defendants had been granted a discharge of their debts.

A court trial was held over four days from August 18 to August 24, 2010. Posttria! briefs were filed on September 10, 2010, October 12, 2010, and October 18, 2010. The court issued its memorandum of decision on December 15, 2010. It found for the defendants on the plaintiffs mechanic’s hen claim; for the plaintiff on the defendants’ § 20-417c (4) counterclaim; for the defendants on their § 20-417c (6) counterclaim, awarding $25,234.73 plus attorney’s fees and costs; and for the defendants on their § 20-417c (7) counterclaim, awarding $10,000 in damages.

In its memorandum of decision on the plaintiffs motion for reconsideration, filed March 17, 2011, the court opened the judgment and reduced it by $1900, entering judgment for the defendants in the amount of $23,334.73 for the violation of § 20-417c (6). On March 18, 2011, the court awarded $10,450 in attorney’s fees. This appeal followed. Additional relevant facts will be set forth as necessary.

I

The plaintiff first claims that the court improperly awarded damages to the defendants on their counterclaim when it failed to deduct the cost of completion from the balance due on the construction contract. The bankruptcy, the plaintiff argues, discharged only the defendants’ personal liability on the contract claim. The construction contract remained valid, albeit unenforceable. Relying on Hees v. Burke Construction, Inc., 290 Conn. 1, 961 A.2d 373 (2009), the plaintiff contends that the calculation of its damages should have been based on the unpaid balance on the construction contract. Accordingly, it maintains that because the amount due under the construction contract exceeds the amount of damages that the defendants have proven, they have not suffered an ascertainable loss under CUTPA and should not receive damages because it would be a windfall. We are not persuaded.

The following additional facts and procedural history are relevant to this claim. In its December 15, 2010 memorandum of decision, the court considered the defendants’ counterclaim that the plaintiff had violated § 20-417c (4), (6) and (7). As to the § 20-417c (6) counterclaim, the court found that the plaintiffs actions constituted a “conscious and reckless disregard by the plaintiff for both the condition of this dwelling and for the [defendants’] safety.” It found that the plaintiff, through Thomas, had misrepresented its qualifications and abilities to properly construct a new home and that the plaintiff never offered to nor did it complete repairs for the “multitude of problems in this travesty of a house after its construction.” The court further found that Thomas’ refusal to provide an accounting for expenditures and potential overages was egregious and that he exhibited no remorse for “the disaster of a home the plaintiff left for the defendants, nor any concern as to the safety issues that were left at the house.” In addition, the court found that the defendants had proven an ascertainable loss through a video of “the catastrophic nature of the house” and expert witness testimony as to the loss suffered and costs to repair and finish the house. Consequently, the court found that the plaintiff had violated § 20-417c (6), which is a per se violation of CUTPA. The court calculated the cost of completion to be $33,975 and the value of the mechanic’s hen to be $8704.27. Accordingly, the court awarded the defendants $25,234.73 plus attorney’s fees and costs.

We begin by setting forth the appropriate standard of review. “To the extent that the [plaintiff] is challenging the trial court’s interpretation of CUTPA, our review is plenary. . . . [W]e review the trial court’s factual findings under a clearly erroneous standard. . . . AppeUate courts do not examine the record to determine whether the trier of fact could have reached a different conclusion. Instead, we examine the trial court’s conclusion in order to determine whether it was legally correct and factually supported.” (Internal quotation marks omitted.) Cohen v. Roll-A-Cover, LLC, 131 Conn. App. 443, 463-64, 27 A.3d 1, cert. denied, 303 Conn. 915, 33 A.3d 739 (2011).

“The ascertainable loss requirement is a threshold barrier which limits the class of persons who may bring a CUTPA action seeking either actual damages or equitable relief. . . . Thus, to be entitled to any relief under CUTPA, a plaintiff must first prove that he has suffered an ascertainable loss due to a CUTPA violation. . . . An ascertainable loss is a loss that is capable of being discovered, observed or established. . . . The term loss necessarily encompasses a broader meaning than the term damage, and has been held synonymous with deprivation, detriment and injury. ... To establish an ascertainable loss, a plaintiff is not required to prove actual damages of a specific dollar amount. ... [A] loss is ascertainable if it is measurable even though the precise amount of the loss is not known.” (Citations omitted; internal quotation marks omitted.) Artie’s Auto Body, Inc. v. Hartford Fire Ins. Co., 287 Conn. 208, 217-18, 947 A.2d 320 (2008).

“Whenever a consumer has received something other than what he bargained for, he has suffered a loss of money or property. That loss is ascertainable if it is measurable even though the precise amount of the loss is not known. . . . Once a violation of the act has been established . . . our cases make clear that the homeowners still must prove that they have suffered an injury or actual loss in order to recover damages under CUTPA.” (Citation omitted; internal quotation marks omitted.) D’Angelo Development & Construction Corp. v. Cordovano, 121 Conn. App. 165, 181, 995 A.2d 79, cert. denied, 297 Conn. 923, 998 A.2d 167 (2010).

Contrary to the plaintiffs position, the determination of whether a party has suffered an ascertainable loss is not based on whether the party can recover damages for a loss, but rather on establishing whether a loss has occurred. Indeed, the term loss has a broader meaning than the term damages. See Artie’s Auto Body, Inc. v. Hartford Fire Ins. Co., supra, 287 Conn. 218. The court concluded, based on ample evidence adduced at trial, that the defendants suffered a loss as a result of the actions of the plaintiff. In fact, the plaintiff conceded that certain tasks had not been completed and that the defendants should receive a credit for those incomplete jobs. Thus, the defendants received something less than what they bargained for and, accordingly, have suffered a loss.

Moreover, Hees v. Burke Construction, Inc., supra, 290 Conn. 1, is inapposite. At issue in Hees was whether, in a breach of contract action, the court properly accepted a referee’s report that used an improper method to calculate damages and whether a violation of General Statutes § 20-429 (a) precluded a reduction in the plaintiffs’ damages by an amount equal to the unpaid balance on the contract. Id., 6-7. Our Supreme Court, in concluding that the referee improperly failed to reduce the plaintiffs’ damages by the unpaid balance remaining on the contract, agreed with the defendant that “under traditional contract damages law, the appropriate measure of damages in a construction contract case is the plaintiffs’ reasonable cost to complete or repair the work, less the unpaid balance on the contract” and that § 20-249 (a) did not alter this principle of contract damages law. Id., 6.

The present case, however, does not involve a contract or traditional contract damages law. Rather, this case concerns a foreclosure on a mechanic’s hen and a counterclaim seeking damages for a statutory violation. Additionally, Hees is factually distinguishable because the contract that the plaintiff seeks to have considered was discharged in bankruptcy, and Thomas, on behalf of the plaintiff, signed a construction budget acknowledging that the construction of the house could be completed for $191,749, an amount substantially different from the $230,000 construction contract price. No such facts were present in Hees.

Because Hees is not applicable to the defendants’ counterclaim and there is sufficient evidence in the record to support the court’s decision, we conclude that the court’s finding that the defendants suffered an ascertainable loss was not clearly erroneous.

II

Next, the plaintiff claims that the court improperly calculated the amount of the mechanic’s lien because it improperly (1) referred to the construction loan budget rather than the construction contract and (2) interpreted the contractor’s affidavit. We disagree with both contentions.

A

With respect to the plaintiffs argument that the court improperly used the construction loan budget to calculate the mechanic’s lien rather than the construction contract, the plaintiff argues that the value of a mechanic’s lien under § 49-33 is determined by applying the rule of damages under the doctrine of substantial performance. We are not persuaded.

The following additional facts are necessary to resolve this claim. The plaintiff conceded that it had failed to complete certain aspects of the construction work as was required under the contract, including purchasing appliances, completing the landscaping, painting the front door or front porch posts, installing a handrail, installing a piece of wood to support the rear deck, installing an intercom system, installing a strip of asphalt along the driveway, installing brick veneer on the front porch and energizing the air conditioning compressor. The cost of those credits amounted to $6630. The court additionally found that the following work needed to be completed: staining and refinishing the staircase in the entry hall, fixing the toilets so the shower doors do not hit them, fixing the molding issue around several interior doors, fixing the improperly hung kitchen cabinets, repairing the drywall in the foyer, repairing the tiling and ceiling in the kitchen, repairing the tiling in the bathroom, pushing back the cement stairs, fixing the rear deck, leveling the property and removing debris, and fixing the drainage system. The defendants’ expert witness testified that the cost of completion to fix and repair the defects was $33,975. The court later reduced this amount by $1900 to correct a calculation error, bringing the cost of completion to $32,075. Based on Thomas’ response to the court’s inquiry regarding the basis for the plaintiff’s claim that the construction contract represented the value of the mechanic’s hen, it further found that the difference between the construction contract and the construction budget represented a profit to the plaintiff.

We first set forth the applicable standard of review. “[T]he application of a statute to a particular set of facts is a question of law to which we apply a plenary standard of review . . . .” (Internal quotation marks omitted.) Cornelius v. Rosario, 138 Conn. App. 1, 11, 51 A.3d 1144 (2012).

The mechanic’s hen statute, § 49-33 (a), provides in relevant part: “If any person has a claim for more than ten dollars for materials furnished or services rendered in the construction, raising, removal or repairs of any building or any of its appurtenances or in the improvement of any lot or in the site development or subdivision of any plot of land, and the claim is by virtue of an agreement with or by consent of the owner of the land upon which the building is being erected or has been erected or has been moved . . . the building, with the land on which it stands or the lot or in the event that the materials were furnished or services were rendered in the site development or subdivision of any plot of land, then the plot of land, is subject to the payment of the claim.”

“[U]nder well established precedent, [t]he purpose of the [mechanic’s lien] statute is to give a contractor security for labor and material. ... If the materials are not furnished, and the work is not done, in the construction, raising, removal or repairs of a building, there can be no hen.” (Internal quotation marks omitted.) FCM Group, Inc. v. Miller, 300 Conn. 774, 806, 17 A.3d 40 (2011). “Prior precedent from [our Supreme Court has] concluded that the statute was not intended to provide a security interest for a builder’s expectation of profit or other contract measure of damages.” Intercity Development, LLC v. Andrade, 286 Conn. 177, 184-85, 942 A.2d 1028 (2008).

“[I]n a foreclosure of a mechanic’s lien, a contractor is entitled to the value of the materials that it furnished or the services that it rendered in the construction of a project.” Intercity Development, LLC v. Andrade, 96 Conn. App 608, 613, 901 A.2d 731 (2006), rev’d in part on other grounds, 286 Conn. 177, 942 A.2d 1028 (2008). Contrary to the plaintiffs assertion, however, the substantial performance doctrine is not the only method available for ascertaining that value. The reasonable value of the materials and services can be proven by: (1) providing evidence that the contract price represents the value of a contractor’s materials and services; Dreambuilders Construction, Inc. v. Diamond, 121 Conn. App. 554, 562, 997 A.2d 553 (2010); (2) demonstrating the contractor substantially performed such that the contract is the proper valuation of its materials and services; M. J. Daly & Sons, Inc. v. New Haven Hotel Co., 91 Conn. 280, 286-87, 99 A. 853 (1917); see also Intercity Development, LLC v. Andrade, supra, 96 Conn. App. 614 (“[without a finding that the plaintiff substantially performed its contract, there can be no right to recover under the mechanic’s lien statute with reference to the contract price”); or (3) submitting evidence of the cost to complete the work; see FCM Group, Inc. v. Miller, supra, 300 Conn. 802-805.

In the present case, the plaintiff did not provide evidence that the contract price represented the value of its materials and services. The construction budget, signed by Thomas, on behalf of the plaintiff, states that the house could be constructed at the cost of $191,749. Though the plaintiff asserted that the value of its materials and services corresponded to the construction contract price, it submitted no evidence of how the approximately $40,000 difference between the construction budget and construction contract would be used in the construction of the house. In fact, when the court questioned Thomas about the extra money, he testified that he never contacted the lender to alert it that the house would cost more to build and that he was not sure how the money would be used. Thus, the evidence supports the court’s conclusion that the balance due on the contract was profit, not the value of the plaintiffs materials and services.

The evidence also supports the court’s conclusion that the plaintiff did not substantially perform in completing the house. The plaintiff conceded that the defendants were entitled to credits totaling over $6600 for its failure to complete certain items under the contract, and the defendants’ expert witness testified that it would cost more than $33,000 to correct the deficiencies. The video of the house provided visual corroboration of the defects, which the court noted spoke “volumes as to the current serious defects present at the house.” Given the evidence, the court’s conclusion that the plaintiff had not substantially performed and completed the construction of the house was not improper.

Finally, the evidence supports the court’s finding that the construction budget represented the value of materials furnished and services rendered under the mechanic’s lien. The plaintiff completed the work under the first four stages of the budget and received payment for those stages. As noted previously, Thomas never alerted the lender that it would cost more than $191,000 to construct the house, nor did he know how the extra money would be used in the construction. Accordingly, the court properly concluded that the value of the plaintiff’s materials famished and services rendered should be based on the constmction budget.

B

The plaintiff also claims that the court improperly interpreted the contractor’s affidavit as a waiver of its rights to enforce the moneys due under the first four stages of the constmction budget. He argues that the affidavit did not limit the amount due under the hen, but merely attested to the fact that the amounts from the constmction loan had been disbursed and that the subcontractors had been paid. We are not persuaded.

Alberto Negron, through Allied, applied for a con-stmction loan on November 16, 2006. He received the constmction loan on March 12, 2007, the same day as the closing for the house and the lot. One of the documents that he signed on that day was a construction budget. The construction budget required that before the release of draws for stages 2, 3,4 and 5 could be made, the defendants must provide the lender with a signed “[Contractor’s [affidavit [fjorm, which was supplied by [the lender] at your construction loan closing. The affidavit is verification that the work done to date has been paid in full.” Thomas also signed a copy of the construction budget.

Alberto N egron and Thomas, on behalf of the plaintiff, signed a contractor’s affidavit on August 22, 2007. Section (b) of the affidavit states: “General Contractor, Sub Contractors and Suppliers have been paid in full for all amounts owing to it for work performed and materials supplied for all Laborers who have performed work on the Project under the Construction Project for Stages (circle all that apply) 1, 2, 3, 4.” All four numbers are circled. Section (c) states: “Except for the unpaid amounts specifically listed above, all invoices, bills and other amounts incurred in construction and/or repair with respect to the Project through the stage circled above (b) have been paid in full and there are no construction liens or other similar liens against the Project and no claims for labor, services, or materials currently remain unpaid.” No amounts were listed in section (b) as unpaid. Section (d) provides in relevant part: “The General Contractor hereby waives and releases and forever quit claims to the Owner, all of its rights to claim a construction lien or any other hen or encumbrances for materials furnished and work or labor performed on the Project up to an including the Stage circled (b) above.”

The court found that the parties intended to “have the . . . [contractor's [a]ffidavit waiver cover the specific stages of work for which the plaintiff had performed . . . .” Accordingly, the court interpreted the contractor’s affidavit as an affirmation that stages one through four of construction had been paid, and concluded that the calculation of the mechanic’s hen for amounts owed for labor and materials should be based solely on the costs associated with stage five of the construction budget.

“Whether a party has waived a right to assert a mechanic’s lien is a question of fact to be determined by the trial court. . . . Accordingly, the court’s determination in this regard will be upset only if the record demonstrates that it was clearly erroneous. . . . Where, however, there is clear and definitive contract language, the scope and meaning of that language is not a question of fact but a question of law. ... In such a situation our scope of review is plenary, and is not limited by the clearly erroneous standard. . . .

“Well established principles guide our analysis in determining whether the language of a contract is ambiguous. [A] contract is ambiguous if the intent of the parties is not clear and certain from the language of the contract itself. [A]ny ambiguity in a contract must emanate from the language used by the parties. . . . In contrast, [a] contract is unambiguous when its language is clear and conveys a definite and precise intent. . . . The court will not torture words to impart ambiguity where ordinary meaning leaves no room for ambiguity. . . . Moreover, the mere fact that the parties advance different interpretations of the language in question does not necessitate a conclusion that the language is ambiguous.” (Citations omitted; internal quotation marks omitted.) Capp Industries, Inc. v. Schoenberg, 104 Conn. App. 101, 110-11, 932 A.2d 453, cert. denied, 284 Conn. 941, 937 A.2d 696 (2007).

“If a contract is unambiguous within its four comers, intent of the parties is a question of law requiring plenary review. . . . [When] the language of the contract is clear and unambiguous, the contract is to be given effect according to its terms. . . . [T]he individual clauses of a contract . . . cannot be construed by taking them out of context and giving them an interpretation apart from the contract of which they are a part. ... A contract should be construed so as to give full meaning and effect to all of its provisions . . . .” (Citation omitted; internal quotation marks omitted.) FCM Group, Inc. v. Miller, supra, 300 Conn. 811.

Contrary to the plaintiffs argument, the contractor’s affidavit did not merely attest that the construction loan disbursements had been made and that the subcontractors had been paid. The clear and unambiguous language of the contractor’s affidavit stated: “General Contractor hereby waives and releases and forever quit claims to the Owner, all of its rights to claim a construction hen or any other hen or encumbrances for materials furnished and work or labor performed on the Project up to an including the Stage circled (b) above.” Stages one through four were circled; therefore, the plaintiff waived its claim to any funds due for those stages. Accordingly, it was not clearly erroneous for the court to conclude that the plaintiff had waived its right to a hen waiver for the first four stages of construction and that the mechanic’s hen would be based on stage five of the construction budget alone.

Ill

The plaintiff next claims that allowing an unregistered home improvement contractor to offer expert witness testimony was an abuse of discretion. It maintains that because the witness engaged in the home improvement business in Connecticut without registering with the department of consumer protection, a violation of Connecticut law, he was not qualified to be an expert witness. We disagree.

The following additional facts are necessary to dispose of this claim. At trial, the defendants called Joseph D’Averso as an expert witness to testify about the repairs needed at the property. He indicated that he was a general contractor with nearly forty years of experience in the field and that he had completed approximately six new home constructions. Upon further voir dire by the plaintiffs counsel, D’Averso testified that he did not have a home improvement contractor’s license, major contractor’s license or certificate of registration as a new home construction contractor. The defendants’ counsel and the court also elicited testimony concerning his experience in the areas of plumbing, electrical work, roofing, landscaping, deck construction and renovations, cement stair' relocation, cabinetry work, toilet relocation and tile work, as well as his educational background. On the basis of his testimony, the court accepted D’Averso as an expert witness.

“The trial court’s ruling on evidentiary matters will be overturned only upon a showing of a clear abuse of the court’s discretion. . . . The trial court has wide discretion in ruling on the qualification of expert witnesses and the admissibility of their opinions. . . . The court’s decision is not to be disturbed unless [its] discretion has been abused, or the error is clear and involves a misconception of the law. . . . Expert testimony should be admitted when: (1) the witness has a special skill or knowledge directly applicable to a matter in issue, (2) that skill or knowledge is not common to the average person, and (3) the testimony would be helpful to the court or jury in considering the issues. ... It is well settled that [t]he true test of the admissibility of [expert] testimony is not whether the subject matter is common or uncommon, or whether many persons or few have some knowledge of the matter; but it is whether the witnesses offered as experts have any peculiar knowledge or experience, not common to the world, which renders their opinions founded on such knowledge or experience any aid to the court or the jury in determining the questions at issue. . . . Implicit in this standard is the requirement . . . that the expert’s knowledge or experience must be directly applicable to the matter specifically in issue.” (Internal quotation marks omitted.) Milton v. Robinson, 131 Conn. App. 760, 772-73, 27 A.3d 480 (2011), cert. denied, 304 Conn. 906, 39 A.3d 1118 (2012).

In the present case, the defendants’ counsel and the court elicited extensive information regarding D’Av-erso’s qualifications to provide an estimate of the cost of repairs to the defendants’ home. Whether D’Averso legally could complete the work that was estimated was not at issue and is not a factor in whether he reasonably could be qualified as an expert. The court determined that D’Averso’s prior experience regarding the issues with the defendants’ home gave him peculiar knowledge that would aid the court in determining the questions at issue. See id., 773. Accordingly, the court did not abuse its discretion in allowing D’Averso to be qualified as an expert witness.

IV

Finally, the plaintiff claims that the court abused its discretion when it did not order a setoff against the balance due on the construction contract. It asserts that the value of the materials furnished and services rendered under a mechanic’s lien is determined by deducting the cost of completion from the balance due on the contract. We disagree.

We first set forth our standard of review for a claim of this nature. “In Connecticut, a setoff may be legal or equitable in nature. . . . When the statutes governing legal setoff do not apply, a party may be entitled to equitable setoff, nonetheless, only to enforce the simple but clear natural equity in a given case. ” (Internal quotation marks omitted.) Croall v. Kohler, 106 Conn. App. 788, 791, 943 A.2d 1112 (2008). “We will reverse a trial court’s exercise of its equitable powers only if it appears that the trial court’s decision is unreasonable or creates an injustice. . . . [E]quitable power must be exercised equitably . . . [but] [t]he determination of what equity requires in a particular case, the balancing of the equities, is a matter for the discretion of the trial court. ... In determining whether the trial court has abused its discretion, we must make every reasonable presumption in favor of the correctness of its action. . . . Our review of a trial court’s exercise of the legal discretion vested in it is limited to the questions of whether the trial court correctly applied the law and could reasonably have reached the conclusion that it did. ... An equitable award may be found to be error only if it is based on factual findings that are clearly erroneous . . . .” (Citations omitted; internal quotation marks omitted.) Id., 791-92.

As we noted in part II, the court’s determination that the construction budget, not the construction contract, represented the value for the materials furnished and services rendered under the mechanic’s lien was not improper, and its interpretation that the contractor’s affidavit constituted a partial waiver that limited the plaintiffs claim to stage five of the construction budget was not clearly erroneous. Accordingly, it was not clearly erroneous for the court to use the construction budget as the starting value for the mechanic’s lien when it calculated the setoff.

The judgment is affirmed.

In this opinion the other judges concurred.

       CitiMortgage, Inc., as a substituted party defendant for the original mortgagee, MERS, as Nominee for Provident Funding Associates, L.P., is also a defendant in the underlying action, but is not a party to this appeal. We therefore refer in this opinion to Alberto Negron and Luz Maria Negron as the defendants.

       General Statutes § 20-417c provides in relevant part: “The commissioner may revoke, suspend, or refuse to issue or renew any certificate issued pursuant to sections 20-417a to 20-417j, inclusive, or place a registrant on probation or issue a letter of reprimand after notice and hearing in accordance with the provisions of chapter 54 concerning contested cases if it is shown that the holder of such certificate has ... (4) engaged in any untruthful or misleading advertising ... (6) engaged in an unfair or deceptive business practice under subsection (a) of section 42-110b; [or] (7) failed to timely complete any task, as specified in a written contract of sale . . . .”
      General Statutes § 20-417g provides: “A violation of sections 20-417a to 20-417j, inclusive, shall be determined an unfair or deceptive trade practice under subsection (a) of 42-110b.”

       The defendants filed for bankruptcy on July 31,2009. They were granted a discharge of their debts on October 28, 2009.

       The court also considered whether the plaintiff had violated the New Home Warranties Act, General Statutes § 47-116 et seq., and whether such a violation is a violation of CUTPA. The court concluded that the defendants had raised this argument for the first time in their posttrial briefs and, therefore, declined to consider it as it would be highly prejudicial to the plaintiff. The plaintiff did not challenge that decision on appeal.

       The court also held that the defendants did not offer sufficient evidence at trial that the plaintiff had engaged in untruthful or misleading advertising pursuant to § 20-417c (4) and that the defendants should receive an award of$10,000indamagesfortheplaintiff’sviolationof § 20-417e(7). The plaintiff did not appeal from these decisions.

       General Statutes § 20-429 (a) provides in relevant part: “No home improvement contract shall be valid or enforceable against an owner unless it: (1) Is in writing, (2) is signed by the owner and the contractor, (3) contains the entire agreement between the owner and the contractor, (4) contains the date of the transaction, (5) contains the name and address of the contractor and the contractor’s registration number, (6) contains a notice of the owner’s cancellation rights in accordance with the provisions of chapter 740, (7) contains a starting date and completion date, and (8) is entered into by a registered salesman or registered contractor. . .

       In Hees v. Burke Construction, Inc., supra, 290 Conn. 3, there was a counterclaim seeking foreclosure of the defendant’s mechanic’s lien. The defendant, however, did not appeal the portion of the court’s decision that accepted the referee’s recommendation against awarding the defendant recovery on that counterclaim. Id., 3-5.

       The plaintiff also claims that the court improperly failed to consider claims for work outside the dates set forth in the mechanic’s lien. It has, however, failed to adequately brief that claim. “We are not obligated to consider issues that are not adequately briefed. . . . [M]ere conclusory assertions regarding a claim, with no mention of relevant authority and minimal or no citations from the record, will not suffice.” (Internal quotation marks omitted.) Lucarelli v. Freedom of Information Commission, 136 Conn. App. 406, 411-12, 46 A.3d 937 (2012). Though stating that the court erred, the plaintiff has failed to assert how the court’s ruling was erroneous or to provide any legal analysis. Accordingly, we decline to review the court’s decision on that issue.

       The plaintiff also argues that the court made factual errors. Specifically, it maintains that there was substantial performance, as was evidenced by the issuance of the certificate of occupancy, and that the intentional departure from the contract does not necessarily lead to the conclusion that there was a wilful breach. Finally, the plaintiff argues that the failure of the court to award damages with reference to the contract price put the defendants in a better position than if the contract had been performed.

       The plaintiff also notes that the defendants did not affirmatively plead setoff pursuant to Practice Book § 10-64, but apparently does not challenge the court’s finding that it could apply a setoff on an equitable claim even where a party failed to affirmatively plead setoff. Accordingly, we will not address this issue.


source: Caselaw Access Project

author: MIHALAKOS, J.

license: Public Domain

text:
    STATE OF CONNECTICUT v. CARLOS OCASIO
    (AC 32794)
    Lavine, Sheldon and Mihalakos, Js.
    Argued September 25, 2012
    officially released January 8, 2013

      Robert J. McKay, assigned counsel, for the appellant (defendant).

      Jonathan J. Silva, certified legal intern, with whom were Harry Weller, senior assistant state’s attorney, and, on the brief, John C. Smriga, state’s attorney, and Joseph J. Harry, senior assistant state’s attorney, for the appellee (state).
   Opinion

MIHALAKOS, J.

The defendant, Carlos Ocasio, appeals from the judgment of conviction, rendered after a jury trial, of assault in the first degree with a firearm in violation of General Statutes § 53a-59 (a) (5), commission of a class A, B or C felony with a firearm in violation of General Statutes §§ 53a-59 (a) (5) and 53-202k, and conspiracy to commit assault in the first degree with a firearm in violation of General Statutes §§ 53a-59 (a) (5) and 53a~48. On appeal, the defendant claims that there was insufficient evidence produced at trial to prove his guilt of these crimes beyond a reasonable doubt. We affirm the judgment of the trial court.

The relevant facts, as the jury reasonably could have found, concern a shooting on August 16, 2009. Approximately one week before the shooting, the defendant’s girlfriend confronted Hector Alicea, the father of her infant son, about why Alicea did not come to see his son more often. Their confrontation escalated to a physical altercation, which the defendant and his girlfriend’s stepfather, Victor Baez, joined.

In the following days, the defendant told Jasmine Figueroa, the mother of Alicea’s other son, that he wanted to “kill [Alicea], kill him, f-k him up,” and he told Figueroa’s mother, Eleanor McClain, that he was going to “kill” Alicea. On the night of the shooting, Figueroa noticed the defendant’s car in the parking lot of the building where she was living with McClain, Tasha Shelton and Andrea Yarde. Figueroa, McClain, Shelton and Yarde followed the defendant after they saw him leave the parking lot; they found him in his car on Shelton Street with Baez and William Young. McClain approached the defendant and asked why he had driven by her house; he responded that he wanted to find Alicea because “I told you I’m gonna get him, I’m gonna kill him.”

Figueroa then contacted Alicea to advise him that the defendant had driven by her home. She, Yarde and Shelton picked up Alicea a short time later and drove toward Shelton Street. When Alicea saw the defendant’s car parked on Shelton Street, he jumped out of the vehicle, pulled out a knife and began puncturing the defendant’s tires.

McClain drove onto Shelton Street as Alicea was puncturing the tires. She exited her vehicle and was standing near the defendant’s car when she noticed the defendant, Young and Baez walking down the street. As McClain watched, Young — who was holding a gun— took two more guns out of his pockets and passed them to Baez and the defendant. McClain then saw the defendant raise his arm and fire three shots in the direction of the car as Alicea was stabbing the right front tire.

As he was bent puncturing the tire, Alicea heard the shots and felt an impact and pain in his back. He turned and saw the defendant with a gun in his hand. He then “jumped up and flew like Superman through [Shelton’s] driver’s window,” and told Shelton to “take me to the hospital, I got shot.”

Shelton, Figueroa and Yarde drove Alicea to the hospital, where he was treated for injuries described in medical records as a “large and relatively deep contusion of the soft tissue of the back” accompanied by two abrasions. The attending physician testified that the injuries conceivably could be consistent with Alicea being “grazed off the back by an object” while squatting.

In the car on the way to the hospital, Figueroa called 911 to report the incident. When the first officer responded to the scene, he saw three men — the defendant, Young and Baez — on the sidewalk. The defendant told the officer that he and the others had jumped in the bushes when they heard shooting, and that they saw two cars flee the scene. Young and Baez corroborated the defendant’s story. Because the officers assumed that the three men were witnesses, and not suspects, they allowed Young to go to his apartment for a drink of water. Young subsequently returned to the scene.

Meanwhile, at the hospital, Figueroa, McClain and Yarde had spoken to police, and McClain named the defendant as the shooter. Alicea also spoke to police; he indicated that he received knife wounds to his hands not from slashing the defendant’s tires, but by grabbing a knife from the defendant. He also told police that a man named “Billy,” i.e., Young, shot him.

When the police on Shelton Street received this information from the officer at the hospital, they began treating the defendant, Young and Baez as suspects and eventually arrested them after Figueroa, McClain and Yarde identified the defendant as the shooter. Young then consented to officers searching his home for weapons. Police recovered all but one gun registered to him: a .40 caliber España Astra. Police also searched the area of the shooting; they found a knife in front of the defendant’s car and a spent .40 caliber bullet lodged in the pavement in front of the car. As a firearms expert testified, the caliber and rifling characteristics of the gun that fired the bullet were consistent with Young’s missing .40 caliber gun. Additionally, the bullet had sustained damage consistent with its having “glanced off of something” at an angle.

At the conclusion of the trial, the jury found the defendant guilty on all three counts. The defendant elected to have a fourth count tried to the court. See footnote 1 of this opinion. Following the subsequent court trial and conviction, the defendant was sentenced to a total effective term of fifteen years incarceration, execution suspended after nine years, with three years probation. This appeal followed.

The defendant claims that there was insufficient evidence to prove his guilt beyond a reasonable doubt. Specifically, he contends that the state failed to prove that he (1) discharged a firearm toward Alicea, (2) caused physical injury to Alicea and (3) entered into an agreement to commit assault in the first degree.

“The standard of review [that] we [ordinarily] apply to a claim of insufficient evidence is well established. In reviewing the sufficiency of the evidence to support a criminal conviction we apply a two-part test. First, we construe the evidence in the light most favorable to sustaining the verdict. Second, we determine whether upon the facts so construed and the inferences reasonably drawn therefrom the [finder of fact] reasonably could have concluded that the cumulative force of the evidence established guilt beyond a reasonable doubt.” (Internal quotation marks omitted.) State v. Grant, 127 Conn. App. 654, 660, 14 A.3d 1070, cert. denied, 301 Conn. 910, 19 A.3d 179 (2011). “[I]t does not diminish the probative force of the evidence that it consists, in whole or in part, of evidence that is circumstantial rather than direct. ... It is not one fact, but the cumulative impact of a multitude of facts which establishes guilt in a case involving substantial circumstantial evidence.” (Internal quotation marks omitted.) State v. Lopez, 280 Conn. 779, 808, 911 A.2d 1099 (2007). “On appeal, we do not ask whether there is a reasonable view of the evidence that would support a reasonable hypothesis of innocence. We ask, instead, whether there is a reasonable view of the evidence that supports the [finder of fact’s] verdict of guilty.” (Internal quotation marks omitted.) Id., 809.

The defendant first claims the state failed to prove that he discharged a firearm toward Alicea and caused physical injury to Alicea, as required to convict him of assault in the first degree with a firearm in violation of § 53a-59 (a) (5) and commission of a class A, B or C felony with a firearm in violation of §§ 53a-59 (a) (5) and 53-202k. Specifically, he contends that the state presented no witnesses who saw him shoot Alicea or who saw Aicea get shot, no testimony that Alicea was injured by a bullet, no weapon and no evidence that the bullet found on the street was connected to the shooting. We disagree.

First, contrary to the defendant’s assertions, our review of the record reveals ample evidence supporting the jury’s determination that the defendant discharged a firearm toward Alicea. Indeed, the state presented eyewitness testimony that the defendant raised and fired a gun three times in Alicea’s direction. See, e.g., State v. Caracoglia, 95 Conn. App. 95, 128, 895 A.2d 810 (“[t]he testimony of one credible witness is sufficient evidence to convict one accused of a crime”), cert. denied, 278 Conn. 922, 901 A.2d 1222 (2006). Bolstering this testimony were three additional witnesses, including Alicea, who testified that they saw the defendant with a gun immediately before or after the shooting and heard no more than three shots fired. The jury also heard testimony regarding the defendant’s potential motive to shoot Alicea, including the prior physical altercation and the defendant’s threats that he wanted to “kill [Alicea]” and “f-k him up.” See State v. Lopez, supra, 280 Conn. 795 (although not element to be proved, motive strengthens state’s case).

Similarly, the evidence was sufficient for the jury reasonably to conclude that the defendant caused injury to Alicea with a bullet. Most significantly, Alicea testified that he had been shot and had received treatment for a gunshot wound. See id., 814 (claim of insufficient evidence to establish bullet wound rejected where victim “testified unequivocally that he had received and had been treated for two bullet wounds”). Considerable evidence also supports the conclusion that Alicea was injured by a bullet. The jury heard testimony that the defendant fired three shots in Alicea’s direction as Alicea knelt beside the defendant’s car, and that Alicea felt an impact and pain in his back immediately after the shots were fired. The jury also heard medical testimony indicating that Alicea’s injuries were consistent with an object grazing his back as he bent over, as well as expert firearms testimony that a bullet found in the roadway beyond Alicea had glanced off of something at an angle and matched the caliber and rifling characteristics of the one gun missing from Young’s collection. The jury reasonably could have concluded that the cumulative force of this evidence established the defendant’s guilt beyond a reasonable doubt, and, accordingly, we reject the defendant’s claim that the evidence was insufficient to convict him of assault in the first degree with a firearm and commission of a class A, B or C felony with a firearm.

The defendant next claims that the state failed to prove that he entered into an agreement with Young to assault Alicea, as required to convict him of conspiracy to commit assault in the first degree with a firearm in violation of §§ 53a-48 and 53a-59 (a) (5). We are not persuaded.

“While the state must prove an agreement [to establish a conspiracy], the existence of a formal agreement between the conspirators need not be proved because [i]t is only in rare instances that conspiracy may be established by proof of an express agreement to unite to accomplish an unlawful purpose. . . . [T]he requisite agreement or confederation may be inferred from proof of the separate acts of the individuals accused as cocon-spirators and from the circumstances surrounding the commission of these acts.” (Internal quotation marks omitted.) State v. Douglas, 126 Conn. App. 192, 202, 11 A.3d 699, cert. denied, 300 Conn. 926, 15 A.3d 628 (2011).

Viewing the evidence in the light most favorable to sustaining the verdict, we conclude that there was sufficient evidence for the jury reasonably to infer that the defendant entered into, and had intended to enter into, an agreement with Young to commit assault in the first degree. The jury heard testimony that: (1) Young was present when the defendant told McClain, “I’m gonna get [Alicea], I’m gonna kill him”; (2) Young and the defendant approached Alicea together on the night of the shooting; (3) Young passed a gun to the defendant as they approached Alicea; (4) Young stayed with the defendant during and after the shooting; (5) Young and the defendant told police the same untrue story about the shooting; and (6) Young helped to conceal the gun after the shooting. See, e.g., State v. Millan, 290 Conn. 816, 826-28, 966 A.2d 699 (2009) (coconspirators’ prior knowledge of dispute between defendant and victim and “conduct at the scene” provided evidence of agreement); State v. Elsey, 81 Conn. App. 738, 747, 841 A.2d 714 (“the jury could have based at least part of its decision regarding the conspiracy charges on the defendant’s decision to come to the scene of the crime with the coconspirators, stay at the scene while the crimes were committed and leave the scene with the coconspirators”), cert. denied, 296 Conn. 901, 852 A.2d 733 (2004).

The judgment is affirmed.

In this opinion the other judges concurred.

       The defendant also was charged with criminal possession of a firearm in violation of General Statutes § 53a-217 (a), and following a trial to the court, was convicted of that charge. The defendant does not challenge this conviction on appeal.

       Figueroa also turned after she heard the gunshots and saw the defendant with a gun in his hand.

       Young’s apartment is next door to his father’s house, where the defendant claims Young hid the gun involved in the shooting.

       Alicea testified that he told police at the hospital an untrue story because he “didn’t want to get in trouble for . . . having the knife in my hand, stabbing the tires.”

       General Statutes § 53a-59 (a) provides in relevant part: “A person is guilty of assault in the first degree when ... (5) with intent to cause physical injury to another person, he causes such injury to such person or to a third person by means of the discharge of a firearm.” General Statutes § 53a-3 (3) defines “physical injury” as “impairment of physical condition or pain.”

       General Statutes § 53-202k provides in relevant part: “Any person who commits any class A, B or C felony and in the commission of such felony uses, or is armed with and threatens the use of, or displays . . . any firearm . . . shall be imprisoned for a term of five years, which shall not be suspended or reduced and shall be in addition and consecutive to any term of imprisonment imposed for conviction of such felony.”

       The defendant attempts to cast doubt on this eyewitness testimony by pointing to various testimonial inconsistencies, including Alicea’s conflicting original statement to police identifying “Billy” as the shooter. It is well settled, however, that “[ejvidence is not insufficient . . . because it is conflicting or inconsistent.” (Internal quotation marks omitted.) State v. Rodriguez, 133 Conn. App. 721, 726, 36 A.3d 724, cert. granted on other grounds, 304 Conn. 915, 40 A.3d 784 (2012). Rather, the jury “[weighs] the conflicting evidence and . . . can . . . decide what — all, none, or some — of a witness’ testimony to accept or reject.” (Internal quotation marks omitted.) Id. “[T]he question of [the] identity of a perpetrator of a crime is a question of fact that is within the sole province of the jury to resolve”; (internal quotation marks omitted) State v. Felder, 99 Conn. App. 18, 24, 912 A.2d 1054, cert. denied, 281 Conn. 921, 918 A.2d 273 (2007); and we do not revisit the jury’s credibility determinations. See, e.g., State v. Russell, 101 Conn. App. 298, 316, 922 A.2d 191, cert. denied, 284 Conn. 910, 931 A.2d 934 (2007).

       Two of the witnesses testified that they heard three “pops,” and Alicea testified that he heard “two to three” gunshots.

       Though the defendant challenges the sufficiency of the evidence in part because the state did not produce the actual weapon used, the jury reasonably could have used their common sense and experience to infer that the gun missing from Young’s collection — which matched the bullet fragment found at the scene — was the gun Young passed to the defendant as they were approaching Alicea, and which Young hid after the defendant used it to shoot Alicea. See State v. Otto, 305 Conn. 51, 70 and n.17, 43 A.3d 629 (2012).

       General Statutes § 53a-48 (a) provides: “A person is guilty of conspiracy when, with intent that conduct constituting a crime be performed, he agrees with one or more persons to engage in or cause the performance of such conduct, and any one of them commits an overt act in pursuance of such conspiracy.” The defendant challenges only the sufficiency of the evidence regarding his entry into an agreement.


author: BEACH, J.

text:
    STATE OF CONNECTICUT v. PARASURAMA RABINDRANAUTH
    (AC 33345)
    Beach, Sheldon and Borden, Js.

      Argued September 13, 2012
    officially released January 15, 2013

      Norman A. Pattis, for the appellant (defendant).

      Bruce R. Lockwood, senior assistant state’s attorney, with whom, on the brief, were Maureen Platt, state’s attorney, and Patrick J. Griffin, senior assistant state’s attorney, for the appellee (state).
   Opinion

BEACH, J.

The defendant, Parasurama Rabindra-nauth, appeals from the judgment of conviction, following a jury trial, of murder in violation of General Statutes § 53a-54a. The defendant claims that (1) the court’s supplemental instructions to the jury in response to a note misled the jury, (2) the court abused its discretion in not admitting into evidence information about the victim’s prior arrests and a photograph purportedly depicting the victim and (3) the court abused its discretion in precluding the testimony of an expert witness on the topic of gang violence. We affirm the judgment of the trial court.

The jury reasonably could have found the following facts. In 2002, the defendant began dating Yashoda Ram-lal and the two became engaged to be married in 2003. In 2006, Ramlal gave birth to a daughter. Thereafter, the relationship between the defendant and Ramlal deteriorated. Ramlal ended the engagement, moved out of the couple’s home on Elhott Avenue in Waterbury and moved, along with her daughter, into a three-family house on Baldwin Street in Waterbury in which members of Ramlal’s family, including her cousin, the victim, also lived.

On the evening of January 3, 2009, while Ramlal was in her bedroom, she telephoned the defendant. She inquired whether the defendant had finished repairing the Elhott Avenue residence so that the second floor could be rented out. The defendant responded that he had found a tenant and had cohected a security deposit. Ramlal became upset because she wanted to take part in the process of interviewing prospective tenants. An argument ensued during which the defendant became angry, raised his voice and threatened Ramlal.

The victim, who was like a brother to Ramlal, was close by when the telephone call was made and knew that Ramlal had been talking to the defendant. The victim then telephoned the defendant and asked him, in a calm voice, why he had yelled at and threatened Ramlal. After the call ended, the victim was upset and told Ramlal that the defendant had threatened him and that the defendant “doesn’t know who he’s messing with.”

After the telephone call ended, the defendant loaded a revolver. He drove to the Baldwin Street residence and knocked on the back door, which led to the kitchen. Ramlal’s brother, who was in the kitchen at the time, opened the door. He went to his bedroom from where he saw the defendant, who was standing in the kitchen, pull a gun out of his sweatshirt and shoot the victim. Then he heard the defendant say to the victim, “What are you going , to do now?” At no time did Ramlal’s brother see the victim argue or fight with the defendant.

The Waterbury police investigated the homicide. After being informed that the defendant was scheduled to board a flight in Miami, Florida on January 7, 2009, Waterbury police officers flew to Miami and arrested the defendant in the airport; the defendant was in possession of an airplane ticket to Trinidad. Following his arrest, the defendant made a voluntary statement to the police that, after his telephone call with the victim, he loaded a gun, went to the Baldwin Street address and shot the victim.

Following a jury trial, the defendant was convicted of murder and sentenced to forty-five years incarceration. This appeal followed.

I

The defendant first claims that the court inadequately responded to a note from the jury requesting further guidance. The defendant acknowledges that he did not preserve the issue at trial and accordingly seeks to prevail under State v. Golding, 213 Conn. 233, 239-40, 567 A.2d 823 (1989), or the plain error doctrine.

By way of a substitute information, the state charged the defendant with one count of murder. The court instructed the jury on murder. The court also instructed the jury, at the defendant’s request, on self-defense and the lesser included offenses of manslaughter in the first degree with a firearm, manslaughter in the second degree with a firearm and criminally negligent homicide. The defendant does not raise any claim on appeal regarding the initial charge. Following an off the record charging conference, the court asked counsel if there were any additional considerations. Counsel for the defendant responded: “No, Your Honor.”

A few minutes after the jury was sent to deliberate, the court received a note from the foreperson. The court responded on the record: “All right. The court has received a note from the foreperson. ... It says as follows: ‘Define charges: murder, manslaughter one, manslaughter two, criminal negligence, self-defense.’ What I propose to do is to have them come out and inform them that there’s only one count in the information, which is murder. And that they cannot get to any of the lesser included offenses until they have first reached a unanimous decision on murder. And inform them since it asks to define them, what I will read to them is the statute which defines the offense. And that’s how the court proposes to handle the matter.” At this point, lead counsel for the defendant asked to be excused on account of illness and suggested that his cocounsel would continue to represent the defendant. The court granted the request.

The court then stated: “All right. We’re ready for the jurors. So let me — just so it’s clear then, the defendant is charged with murder, the statute defining offense reads in pertinent part as follows: A person is guilty of murder when with intent to cause the death of another person, he causes the death of such person. We’ll take it from there.” Once the jury returned to the courtroom, the court instructed the jury as follows: “All right. I’ve received a note signed by the foreperson. The note reads as follows: ‘Define charges: murder, manslaughter one, manslaughter two, criminal negligence, self-defense.’ In response, the defendant is charged with one count of murder. What I will then define for you is the statutory definition of murder. You cannot even reach any of the other, which are lesser included offenses. The law permits instructions on those and so they were given as requested. However, you cannot reach those, and if I weren’t clear in my instructions it’s a series of steps. And you absolutely cannot reach the lesser included offenses until you have reached a unanimous decision on the charge of murder, because the defendant stands charged with one count, murder. The defendant is charged with murder. The statute defining this offense reads in pertinent part as follows: A person is guilty of murder when with intent to cause the death of another person, he causes the death of such person. And that’s the statutory definition. And with that return. Just a reminder, everyone must be present when you are deliberating.”

A

We first address the issue of waiver. The state argues that the defendant’s claim fails because he implicitly waived this claim after the court expressly drew the parties’ attention to its intended response to the jury, invited comment and apparently was amenable to exceptions. We do not agree.

Our Supreme Court has held that “when the trial court provides counsel with a copy of the proposed jury instructions, allows a meaningful opportunity for their review, solicits comments from counsel regarding changes or modifications and counsel affirmatively accepts the instructions proposed or given, the defendant may be deemed to have knowledge of any potential flaws therein and to have waived implicitly the constitutional right to challenge the instructions on direct appeal. Such a determination by the reviewing court must be based on a close examination of the record and the particular facts and circumstances of each case.” State v. Kitchens, 299 Conn. 447, 482-83, 10 A.3d 942 (2011); see also State v. Akande, 299 Conn. 551, 11 A.3d 140 (2011) (applying Kitchens analysis to supplemental jury charge). “In making these determinations, this court applies plenary review.” State v. Thomas W., 301 Conn. 724, 734, 22 A.3d 1242 (2011).

In this case, the record indicates that the court informed counsel of its proposed instructions and then instructed the jury accordingly. Because the record contains no indication that the trial court solicited comments from counsel or that counsel affirmatively accepted the proposed instructions, we conclude that a waiver sufficient to satisfy Kitchens has not occurred. We need not address, in the context of a note, whether a copy of supplemental jury instructions must be given in advance to counsel for there to be an effective waiver or whether, in this case, the defendant’s counsel had adequate time to review those instructions. Although waivers perhaps may occur in the context of responses to notes when not all of the formal Kitchens requirements have been met fully, depending on the exigencies of the circumstances, the facts of this case do not support a conclusion of waiver.

B

We turn, then, to the merits of the defendant’s claim. We conclude that any error in the court’s supplemental instruction was harmless and thus the defendant’s claim does not satisfy the fourth prong of State v. Golding, supra, 213 Conn. 239-40. Any error in an instruction, even one of constitutional dimension, “is harmless if, viewed in the context of the charge as a whole, there is no reasonable possibility that the jury [was] misled.” (Internal quotation marks omitted.) State v. Vega, 36 Conn. App. 41, 45, 646 A.2d 957 (1994).

Although the court did not give a supplemental instruction to the jury on self-defense, there is no reasonable possibility that the jury was misled. There has been no claim of error in the principal instructions to the jury. The court defined the elements of murder and explained that the jury could consider the lesser included offenses only if it first unanimously found the defendant not guilty of murder. After instructing on the lesser included offenses, the court turned to the defense of self-defense.

The court clearly instructed toward the end of the charge that, “if you find that the state has proved beyond a reasonable doubt each element of a crime to which self-defense applies, you must then go on to consider whether or not the defendant acted in self-defense. In this case you would consider the defense in connection with all of the offenses I mentioned.” The court proceeded to charge extensively on self-defense and its exceptions.

Within minutes after the jury retired to deliberate, it sent the note in question, which requested additional instructions on various issues, including self-defense. Again, the court’s initial instruction had included a lengthy instruction on self-defense, including more than once the elements of self-defense, the state’s burden to disprove self-defense, the defendant’s bearing no burden of proof and self-defense as a complete defense to the crimes. Although it may be true in general that supplemental charges enjoy “special prominence in the minds of the jurors because [they are] fresher in their minds when they resume deliberation”; (internal quotation marks omitted) State v. Williams, 199 Conn. 30, 41, 505 A.2d 699 (1986); in this case the supplemental charge occurred within minutes of a lengthy and uncontested instruction on self-defense. It is most unlikely that the supplemental instruction caused the jury to disregard self-defense in light of the court’s lengthy self-defense instruction and the fact that self-defense was highlighted to the jury in the defendant’s testimony and throughout defense counsel’s closing arguments.

The jury did not ask for additional reinstruction or express any further confusion on the matter, and thus we can presume that the court’s supplemental instruction reasonably satisfied the concerns raised by the jury in the note. See State v. Helmedach, 125 Conn. App. 125, 136-37, 8 A.3d 514 (2010) (where jury did not express further confusion or request additional instruction after court’s response to note, we can presume additional instructions alleviated any confusion jury may have had), aff'd, 306 Conn. 61, 48 A.3d 664 (2012).

Additionally, the evidence of the defendant’s guilt was overwhelming. Ramlal, who was next to the victim when he telephoned the defendant, testified that the victim talked in a calm voice to the defendant and did not threaten him. Ramlai’s brother gave an eyewitness account of the shooting and testified that, prior to the shooting, the defendant and the victim did not speak to each other and “didn’t come together,” and that the victim’s hands were by his side. The defendant gave a voluntary statement to the police, which was admitted as a full exhibit at trial, in which he stated: “I was so mad at [the victim]. I pointed the gun at [his] chest and I pulled the trigger only once.” During cross-examination, the defendant stated that after he talked with the victim on the telephone he loaded a gun, not out of self-defense but because he “wanted to,” and that he took the gun with him to the Baldwin Street residence in order to scare the victim. He further admitted that the victim did not stop him from leaving the kitchen and that although he was free to leave, he did not. He further stated that the victim did not come at him, grab him or injure him in any way, but rather was standing a few feet away when the defendant shot him.

The defendant alternatively seeks to prevail under the plain error doctrine. See Practice Book § 60-5. We decline to apply the plain error doctrine because the case does not present an extraordinary situation requiring relief from manifest injustice. See State v. Gamble, 119 Conn. App. 287, 291 n.2, 987 A.2d 1049, cert. denied, 295 Conn. 915, 990 A.2d 867 (2010).

n

The defendant next claims that the court erred in not admitting as evidence (1) a copy of a photograph from the victim’s MySpace page purportedly depicting him posing with guns and (2) statements allegedly made by the victim to the defendant in which he boasted about having been charged with attempted murder. He argues that the court’s ruling was erroneous because the sole defense was self-defense and the evidence was crucial to show the defendant’s state of mind and fear of the victim. We are not persuaded.

“The trial court’s ruling on the admissibility of evidence is entitled to great deference. . . . [T]he trial court has broad discretion in ruling on the admissibility ... of evidence. . . . The trial court’s ruling on evi-dentiary 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.” (Internal quotation marks omitted.) State v. Martinez, 295 Conn. 758, 769-70, 991 A.2d 1086 (2010).

A

During his cross-examination of Ramlal, defense counsel attempted to enter into evidence a copy of a photograph allegedly depicting the victim wearing a mask and holding weapons. The court sustained the state’s objection to the admission of the photograph as a full exhibit. In so ruling, the court stated: “Nothing has been established as to who is in the photo.”

After the state rested, it filed a motion in limine, seeking to preclude the defendant from admitting the photograph into evidence. In granting the motion in limine, the court stated: “[I]t definitely is not a photograph ... it appears to be a copy of something. I don’t know if it’s a copy of something that was on MySpace . . . .” The court further stated that the photograph “cannot be identified based on what was shown to the court as to who is in the photo [and] where it came from, but more importantly, it’s not even available for anyone to verify the information.”

“Photographic evidence is admissible if it has a reasonable tendency to prove or disprove a material fact in issue or shed some light upon some material inquiry. . . . Verification of a photograph is a preliminary question of fact to be determined by the trial court. . . . [T]he trial court has wide discretion in admitting photographic evidence and its determination will stand unless there has been a clear abuse of that discretion.” (Citations omitted; internal quotation marks omitted.) State v. Walker, 215 Conn. 1, 6, 574 A.2d 188 (1990).

We have viewed the photograph, which was marked as defendant’s exhibit B for identification. The photograph is grainy, distorted and most of the subject’s face is covered. The photograph does not have any features that would identify it as being from the MySpace website or being from a MySpace page of the victim. The original image was not available at the time of trial. The court stated that nothing was established as to whom the photograph depicted. Under the facts of this case, the court did not abuse its discretion in precluding the admission of the photograph. See C. Tait & E. Prescott, Connecticut Evidence (4th Ed. 2008) § 11.17.1, p. 673 (“[a] photograph is admissible even if ‘not very good’ provided its subject is discernible and not distorted”).

B

The defendant next argues that the court erred in precluding him from testifying that the victim previously had been arrested in New York for attempted murder and that the victim boasted to the defendant about that arrest. The defendant suggests that the evidence was relevant to his state of mind at the time of the shooting and helped to explain the defendant’s attempt to flee to Trinidad after the shooting. We do not agree.

During argument on the state’s motion in limine seeking to preclude the evidence, the defendant’s counsel stated that he had evidence that the victim, while threatening the defendant, informed the defendant that the victim had been arrested for attempted murder. He argued that the threat was admissible because it was a violent or bad act perpetrated against the defendant. In ruling on the motion in limine, the court stated that it had before it only statements by the defendant that the victim had told the defendant that he had been arrested for attempted murder. The court ruled that the defendant could not introduce evidence of this prior arrest, but expressly did not rule regarding any threats the victim may have made to the defendant. The court did not rule, in the course of deciding the motion in limine, on the admissibility of a threat. The court stated: “[A]n arrest in and of itself never comes in unless under very strict circumstances. . . . [A]ll that ... is before the court is the defendant making the statement that the deceased made a statement concerning being arrested. . . . I’m not making any ruling at this point concerning anything that the defendant might say because of those things. . . . [Without any more facts or evidence other than the defendant saying that at some point in time the deceased [victim] said to him [that he had been arrested], then that’s really all that the court has before it.”

In these circumstances, the court did not abuse its discretion in precluding the defendant from entering into evidence the victim’s arrest in New York for attempted murder. “Evidence of prior bad acts by the victim perpetrated on the defendant may be admissible to show the defendant’s state of mind.” (Emphasis added.) State v. Collins, 68 Conn. App. 828, 836, 793 A.2d 1160, cert. denied, 260 Conn. 941, 835 A.2d 58 (2002). The defendant offered no evidence that the specific acts leading to the victim’s arrest in New York involved the defendant, and, the evidence by itself is not admissible. See State v. Smith, 222 Conn. 1, 18, 608 A.2d 63 (“deceased’s violent character may not be established by evidence of specific violent acts, other than convictions”), cert. denied, 506 U.S. 942, 113 S. Ct. 383, 121 L. Ed. 2d 293 (1992); State v. Abreu, 106 Conn. App. 278, 287, 941 A.2d 974 (specific acts leading to victim’s arrest not admissible because acts did not involve victim and defendant), cert. denied, 286 Conn. 919, 946 A.2d 1249 (2008).

Ill

The defendant next claims that the court erred in precluding testimony of the defendant’s expert on the subject of gangs and gang behavior. We disagree.

In March, 2009, the state filed a discovery request in which it sought the names and addresses of all witnesses the defendant intended to call in his case-in-chief, other than the defendant. On December 1, 2010, the court ordered the parties to comply with all outstanding discovery requests and allowed the parties sixteen days from the date of the order in which to do so. More than one month later and one day before the commencement of evidence, on January 3, 2011, the defendant filed a notice of an expert witness, Ronald Nihill, who would testify about gang behavior.

The state filed a motion in limine seeking to preclude the defendant from introducing the testimony of Nihill. The state argued, inter alia, that the defendant failed to comply with the corut’s December 1, 2010 order or to offer a legitimate reason for the late disclosure, that the late disclosure was prejudicial and that the court should prohibit the defendant from introducing the testimony of the expert witness pursuant to Practice Book § 40-5. The state also argued that Nihill’s proposed testimony amounted to generalizations about the violent tendencies of gang members, which, by itself, was not relevant. In granting the state’s motion, the court reasoned that the defendant did not disclose Nihill until January 3 and was subject to sanctions pursuant to § 40-6. The court further noted that the defense had not disclosed any evidence regarding the victim’s involvement in a gang or any other information necessary to lay a proper foundation for the introduction of Nihill’s expert testimony.

The defendant argues that Nihill’s expert testimony should have been admitted because there was a foundation for it. The defendant does not claim that the court’s alternative ground for precluding Nihill’s testimony, namely, that it was a sanction for late disclosure, was improper. The court did not abuse its discretion in precluding Nihill’s expert testimony as a sanction for late disclosure. See State v. Tutson, 278 Conn. 715, 741, 864 A.2d 666 (2006) (applying abuse of discretion standard of review). Practice Book § 40-6 provides in relevant part: “If a party fails to comply with disclosure as required under these rules, the opposing party may move the judicial authority for an appropriate order. The judicial authority hearing such a motion may enter such orders ... as it deems appropriate, including ... (4) Prohibiting the noncomplying party from introducing specified evidence . . . .’’In the circumstances here, we need not consider whether any other reasons justified excluding Nihill’s proposed testimony.

The judgment is affirmed.

In this opinion the other judges concurred.

       We note that in State v. Akande, supra, 299 Conn. 551, where the Supreme Court first applied Kitchens to supplemental instructions, the facts were quite different from those in the present case. In Akande, the jury sent a question at 4:25 p.m., and the court was scheduled to be in session the next day. The court was able, therefore, without disruption to the jury’s deliberation process, to make copies of what it already had submitted to the jury in its initial instructions and to give counsel copies of its intended response to the note to review overnight. Id., 558. In the present case, the jury’s deliberations began Friday afternoon, and the jury’s question was submitted to the court at 3:07 p.m. on the same day. Thus, if the court in this case had submitted written proposed instructions to counsel, it might have disrupted the jury’s deliberations.

       Under Golding, “a defendant can prevail on a claim of constitutional error not preserved at trial only if all of the following conditions are met: (1) the record is adequate to review the alleged claim of error; (2) the claim is of constitutional magnitude alleging the violation of a fundamental right; (3) the alleged constitutional violation clearly exists and clearly deprived the defendant of a fair trial; and (4) if subject to harmless error analysis, the state has failed to demonstrate harmlessness of the alleged constitutional violation beyond a reasonable doubt. In the absence of any one of these conditions, the defendant’s claim will fail. The appellate tribunal is free, therefore, to respond to the defendant’s claim by focusing on whichever condition is most relevant in the particular circumstances.” (Emphasis omitted.) State v. Golding, supra, 213 Conn. 239-40.