author: HARPER, J.

text:
    STATE OF CONNECTICUT v. WILLIAM TORRES
    (AC 28876)
    Gruendel, Harper and Beach, Js.
    Argued September 26
    officially released December 16, 2008

      Laljeebhai R. Patel, for the appellant (defendant).

      Raheem L. Mullins, deputy assistant state’s attorney, with whom, on the brief, were Michael L. Regan, state’s attorney, and Stephen M. Carney, senior assistant state’s attorney, for the appellee (state).
   Opinion

HARPER, J.

The defendant, William Torres, appeals from the judgment of conviction, rendered after a jury trial, of larceny in the third degree in violation of General Statutes § 53a-124 (a) (2) and forgery in the third degree in violation of General Statutes § SSa-MO. The defendant claims that the evidence was insufficient to sustain a conviction as to either of these crimes. We affirm the judgment of the trial court.

On the basis of the evidence presented at trial, the jury reasonably could have found the following facts. On September 14,2005, the defendant opened a savings account at the Jewett City branch of Eastern Federal Bank. The defendant opened the account with an initial deposit of $25, the minimum deposit for the account. Eastern Federal Bank, in compliance with federal banking regulations, may place a hold on transactions involving checks. That is, with regard to funds deposited by check, the bank may delay the availability of these funds for withdrawal. In the case of checks drawn on a local bank, the hold may be up to two days. For checks drawn on an out-of-state bank, the hold may be up to five days. For checks in amounts exceeding $5000, the hold may be up to nine days. Independent of these holds, for any deposits made via an automated teller machine (teller machine), there is an automatic one day hold. At the time that the defendant opened his account, it was customary for banks to convey these banking regulations to new account holders.

During the next several weeks, the defendant deposited and withdrew funds from his account. This activity included deposits in the amounts of $20, $40 and $150, as well as withdrawals in similar amounts. At approximately 1:23 p.m. on November 9, 2005, the defendant deposited a cashier’s check, in the amount of $5000, into his account via a teller machine at a Norwich branch of Eastern Federal Bank. The teller machine was located adjacent to the front door of the bank, which was open for business at that time. The check was drawn on Chevy Chase Bank in Bethesda, Maryland, and made payable to Luis Almodovar. The back of the check was endorsed with Almodovar’s signature.

In compliance with the aforementioned banking industry regulations, Eastern Federal Bank placed a five day hold on the transaction, making the funds available for withdrawal on November 15, 2005, at the earliest. At approximately 9:09 a.m., on November 15, 2005, the defendant presented proper identification and a withdrawal slip in the amount of $5000 to a bank teller at Eastern Federal Bank. The teller delivered these funds to the defendant.

On November 22, 2005, one week after the withdrawal, Chevy Chase Bank returned the cashier’s check to Eastern Federal Bank with a notation that it was a counterfeit check. Within days, Eastern Federal Bank mailed the defendant a letter at the mailing address he listed on the documents he submitted to the bank when he opened the account weeks earlier. The letter stated that the $5000 check had been returned, a fee of $10 had been assessed to the defendant’s account and his account had a $5003.73 negative balance. The letter also provided a telephone number for the defendant to call with any questions concerning the matter. The bank did not receive any response from the defendant, and a bank employee notified the police. After the defendant withdrew the $5000 from his account on November 15, 2005, he did not engage in any further transactions concerning this account.

At trial, the state presented the testimony of Norwich police Officer Mark Lounsbery. Lounsbery testified that he had specialized training in the field of financial crimes and had investigated during the course of his law enforcement career approximately 100 cases in which persons had presented fraudulent documents to banks in the guise of presenting valid negotiable instruments. The jury reasonably could have found that in December, 2005, Lounsbery began to investigate the bank’s complaint concerning the defendant. After confirming that the address that the defendant provided to the bank was the defendant’s current address, Lounsbery called the defendant. He left a message on the defendant’s answering machine in which he identified himself and explained the nature of his call. The defendant did not return Lounsbery’s call, and Lounsbery subsequently applied for a warrant for the defendant’s arrest.

In February, 2007, approximately three weeks prior to the defendant’s trial in the present case, the defendant appeared at the office of Shirley Mostowy, the manager of two Norwich branches of Eastern Federal Bank. The defendant told Mostowy that he had received the $5000 check from his stepson, Luis Almodovar, and that he had been unaware that he owed the bank any money. The defendant stated that he was scheduled to appear in court in a few weeks and inquired whether he could enter a payment program or agreement with the bank concerning the $5000. The defendant explained that “he wanted to have something in place” by the time he appeared in court that would demonstrate that he was “making amends” for this incident. The defendant also told Mostowy that he was prepared to pay the bank $100 at that time. Additional facts will be discussed as necessary.

The defendant claims that the evidence did not support his conviction with regard to either of the crimes with which he stands convicted. The defendant acknowledges that he did not preserve this claim at trial. He seeks review under the doctrine set forth in State v. Golding, 213 Conn. 233, 239-40, 567 A.2d 823 (1989), and the plain error doctrine codified in Practice Book § 60-5. The claim, however, is reviewable absent resort to either of these doctrines. As this court has observed, “[a]ny defendant found guilty on the basis of insufficient evidence has been deprived of a constitutional right, and would therefore necessarily meet the four prongs of Golding. Accordingly, we conclude that no practical reason exists to engage in a Golding analysis of a sufficiency of the evidence claim and, thus, review the challenge as we do any other properly preserved claim.” (Internal quotation marks omitted.) State v. Brown, 90 Conn. App. 835, 838, 879 A.2d 466, cert. denied, 276 Conn. 901, 884 A.2d 1026 (2005).

“[T]he [d]ue [p]rocess [c]lause protects the accused against conviction except upon proof beyond a reasonable doubt of every fact necessary to constitute the crime with which he is charged.” In re Winship, 397 U.S. 358, 364, 90 S. Ct. 1068, 25 L. Ed. 2d 368 (1970). “In reviewing a sufficiency of the evidence claim, we apply a two-part test. First, we construe the evidence in the light most favorable to sustaining the verdict. Second, we determine whether upon the facts so construed and the inferences reasonably drawn therefrom the jury reasonably could have concluded that the cumulative force of the evidence established guilt beyond a reasonable doubt. ... In evaluating evidence, the trier of fact is not required to accept as dispositive those inferences that are consistent with the defendant’s innocence. . . . The trier may draw whatever inferences from the evidence or facts established by the evidence it deems to be reasonable and logical. . . . This does not require that each subordinate conclusion established by or inferred from the evidence, or even from other inferences, be proved beyond a reasonable doubt . . . because this court has held that a jury’s factual inferences that support a guilty verdict need only be reasonable. . . .

“[A]s we have often noted, proof beyond a reasonable doubt does not mean proof beyond all possible doubt . . . nor does proof beyond a reasonable doubt require acceptance of every hypothesis of innocence posed by the defendant that, had it been found credible by the trier, would have resulted in an acquittal. . . . On appeal, we do not ask whether there is a reasonable view of the evidence that would support a reasonable hypothesis of innocence. We ask, instead, whether there is a reasonable view of the evidence that supports the jury’s verdict of guilty. . . . Furthermore, [i]n [our] process of review, it does not diminish the probative force of the evidence that it consists, in whole or in part, of evidence that is circumstantial rather than direct. ... It is not one fact, but the cumulative impact of a multitude of facts which establishes guilt in a case involving substantial circumstantial evidence.” (Internal quotation marks omitted.) State v. Silva, 285 Conn. 447, 454, 939 A.2d 581 (2008). Having set forth the general principles that govern our review of the claim, we next consider, the claim as it relates to each crime at issue.

I

To convict the defendant of forgery in the third degree, as the commission of that crime is alleged in the state’s substitute information, the state bore the burden of proving beyond a reasonable doubt that he (1) acted with the intent to defraud another, (2) possessed a written instrument and (3) knew such written instrument was forged. See General Statutes § 53a-140 (a). The defendant does not argue that the state did not prove beyond a reasonable doubt that he acted with the intent to defraud another or that he possessed a written instrument, the cashier’s check. The defendant argues that the state failed to prove beyond a reasonable doubt that he knew that the check was a forgery.

“A person acts ‘knowingly’ with respect to conduct or to a circumstance described by a statute defining an offense when he is aware that his conduct is of such nature or that such circumstance exists . . . .” General Statutes § 53a-3 (12). “ ‘[K]nowingly’ ordinarily means ‘with awareness’ . . . and . . . ‘knows’ means ‘to have cognizance, consciousness, or awareness.’ ” (Citation omitted.) State v. Jackson, 13 Conn. App. 288, 292, 535 A.2d 1327 (1988). Knowledge, like intent and purpose, describes a particular state of mind. State v. Sorabella, 277 Conn. 155, 198, 891 A.2d 897, cert. denied, 549 U.S. 821, 127 S. Ct. 131, 166 L. Ed. 2d 36 (2006). “The state of mind of one accused of a crime is often the most significant and, at the same time, the most elusive element of the crime charged. . . . Because it is practically impossible to know what someone is thinking or intending at any given moment, absent an outright declaration of intent, a person’s state of mind is usually proved by circumstantial evidence . . . and is, except in rare cases, a question of fact. . . . Intention is a mental process which, of necessity, must be proven either by the statements or the actions of the person whose conduct is being examined. ...” (Internal quotation marks omitted.) State v. Mish, 110 Conn. App. 245, 261-62, 954 A.2d 854, cert. denied, 289 Conn. 941, 959 A.2d 1008 (2008). “[I]t is not one fact, but the cumulative impact of a multitude of facts which establishes guilt in a case involving circumstantial evidence.” (Internal quotation marks omitted.) State v. Williams, 110 Conn. App. 778, 791-92, 956 A.2d 1176 (2008).

As discussed previously, the state presented evidence from which the jury reasonably could have found that the defendant opened a bank account with the minimum deposit of $25, banks customarily provide new account holders with information concerning bank regulations that apply to the availability of funds deposited by check, the defendant conducted a number of transactions involving the account during the following weeks and the defendant deposited a forged cashier’s check into his account. Additionally, the jury reasonably could have found that the check was made payable to and endorsed by a third party, the check was drawn on an out-of-state bank, the defendant made the deposit via a teller machine that was adjacent to a bank that was open for business at the time of the deposit and the defendant withdrew the $5000 from his account on the first day that the deposited funds became available for withdrawal pursuant to applicable regulations. Further, the jury reasonably could have found that after the withdrawal, the defendant did not respond to the bank’s letter concerning the returned check, he stopped using his account, he did not respond to Lounsbery’s telephone message concerning the incident and, on the eve of trial, he appeared before the bank manager in an attempt to demonstrate, solely for the purpose of his criminal trial, that he was making amends for his conduct.

Additionally, Lounsbery testified with regard to his considerable experience in cases such as the present one involving persons who present fraudulent written instruments to banks in the guise of presenting valid negotiable instruments to obtain cash. He testified that persons who engage in this type of crime take advantage of the applicable banking regulations; they understand that the regulations typically require banks to make funds deposited by check available to depositors before such checks actually clear the bank or banks on which they are drawn. Lounsbery further testified that a general pattern of conduct is apparent in this type of case in that they typically involve a person’s using a small amount of money to open an account at a bank, depositing a forged check via a teller machine rather than via a bank teller, withdrawing the funds made payable by the forged check as soon as possible before the transaction clears the bank on which it is drawn, ceasing to use the account after obtaining the funds at issue and failing to cooperate with police efforts to contact them concerning the transaction. Lounsbery opined that his investigation revealed that the defendant’s conduct fit squarely within this specific pattern of criminal conduct.

On the basis of the evidence of the defendant’s conduct, viewed in its entirety, the jury reasonably could have found that the defendant knew the check was a forged instrument. The defendant’s conduct in opening and using the account until such time as he obtained the $5000, his failure subsequently to contact the bank within a reasonable time following the incident, his failure to respond to Lounsbery’s telephone call and his visit with the bank manager, on the eve of trial, to begin making amends for the forged check all support an inference that he knew that the check was a forgery. Lounsbery’s expertise in the area of bank fraud was relevant to the jury’s understanding of the manner in which this type of crime is committed generally. That testimony bolstered the reasonableness of a finding that the defendant not only knew that the check was a forgery, but that he possessed it with the intent of obtaining fraudulently $5000 from the bank.

II

To convict the defendant of larceny in the third degree, as the commission of that crime is alleged in the state’s substitute information, the state bore the burden of proving beyond a reasonable doubt that (1) he committed larceny and (2) the value of the property involved exceeded $1000. General Statutes § 53a-124 (a) (2). “A person commits larceny when, with intent to deprive another of property or to appropriate the same to himself or a third person, he wrongfully takes, obtains or withholds such property from an owner. ...” General Statutes § 53a-119. “Connecticut courts have interpreted the essential elements of larceny as (1) the wrongful taking or carrying away of the personal property of another; (2) the existence of a felonious intent in the taker to deprive the owner of [the property] permanently; and (3) the lack of consent of the owner.” (Internal quotation marks omitted.) State v. Hyde, 104 Conn. App. 574, 578, 935 A.2d 639 (2007), cert. denied, 285 Conn. 910, 940 A.2d 809 (2008). “Because larceny is a specific intent crime, the state must show that the defendant acted with the subjective desire or knowledge that his actions constituted stealing. . . . Larceny involves both taking and retaining. The criminal intent involved in larceny relates to both aspects. The taking must be wrongful, that is, without color of right or excuse for the act . . . and without the knowing consent of the owner. . . . The requisite intent for retention is permanency.” (Citation omitted; internal quotation marks omitted.) State v. Dell, 95 Conn. App. 24, 28, 894 A.2d 1044, cert. denied, 278 Conn. 919, 901 A.2d 44 (2006).

The defendant does not claim that the state failed to prove that he took $5000 from the bank or that the bank did not consent to the taking of this money by means of a forged cashier’s check. Instead, the defendant claims that the state failed to prove that he acted with the larcenous intent required by law. As was the case with the claim addressed in part I, there was no direct evidence of the defendant’s state of mind. Accordingly, we look to circumstantial evidence of intent, such as the defendant’s conduct, to determine whether the evidence reasonably permitted a finding that the defendant acted with the intent required for the commission of the crime. See id., 31.

In part I, we analyzed evidence of the defendant’s conduct and concluded that it supported a finding that the defendant knew that the check was a forgery. This evidence encompassed the manner in which the defendant opened and used the account, his failure to contact the bank after the check was returned, his failure to respond to Lounsbery’s telephone message as well as the defendant’s visit to the bank on the eve of trial. We conclude that this evidence, viewed in its entirety and in light of Lounsbery’s testimony concerning the manner in which this type of bank crime is committed generally, amply supports a finding that the defendant intended to steal money from the bank and, thus, acted with a larcenous intent.

The defendant raises several arguments in support of his claim. First, he argues that he complied with bank rules and regulations and that the state based its case on the completely speculative proposition that he had specialized knowledge of the banking regulations concerning the availability of funds deposited in the form of checks. We observe that the state was not required to prove that the defendant had knowledge of these regulations. Any finding in this regard merely would have been incidental to the jury’s ultimate finding concerning the defendant’s intent. To the extent that the state invited the jury to infer that the defendant acted with such knowledge, we conclude that such an inference was supported by the evidence. The state presented evidence that banks customarily provide new account holders with information about the regulations concerning the availability of deposited funds. Also, the state presented evidence that after the defendant deposited the forged check, he appeared at the bank at or about the earliest time at which the funds from the forged check were available for withdrawal. This circumstantial evidence, along with other evidence of the defendant’s conduct, supported a finding that the defendant was aware of the applicable regulations and exploited these regulations to accomplish the crime of larceny.

Second, the defendant argues that the evidence demonstrated that once he became aware that the check, made payable to and endorsed by a third party, was a forged instrument, he voluntarily offered to repay the $5000. The defendant posits that his efforts in this regard demonstrate his “good faith” toward the bank. The jury reasonably could have viewed the evidence of the defendant’s meeting with Mostowy in the manner suggested by the defendant. As we, however, evaluate the evidence in light of the jury’s guilty verdict, we must evaluate the evidence consistent with a finding of the defendant’s guilt. See State v. Silva, supra, 285 Conn. 454. The jury had before it evidence that the defendant did not contact the bank immediately after the forged $5000 check was returned, did not respond to the letter concerning the matter that the bank sent to the mailing address he provided the bank when he opened his account and did not respond to the telephone message that Lounsbery left him. In fact, the evidence demonstrated that after using his account during the weeks prior to the transaction at issue, the defendant did not use his account following the withdrawal of the $5000. In light of all of this circumstantial evidence, the juiy reasonably could have found that the defendant’s conduct in speaking with Mostowy on the eve of trial did not reflect his good faith but his desire to gain some advantage with regard to the state’s prosecution of charges related to his completed crimes. Accordingly, this evidence supports the jury’s ultimate finding on an essential element of the crime, which is that the defendant acted with a larcenous intent.

The judgment is affirmed.

In this opinion the other judges concurred.

       The court sentenced the defendant to a term of incarceration of five years, execution suspended after forty months, followed by one year of probation with special conditions, including payment of $5000 in restitution.

       Under Eastern Federal Bank policies, an account holder may deposit in his or her account a check made payable to a third party.

       A "forged instrument” is defined by statute as “a written instrument which has been falsely made, completed or altered.” General Statutes § 53a-137 (7).

       At trial, the state presented testimony from Mostowy, the bank manager. Mostowy testified that after the defendant deposited the check into the teller machine, a bank teller looked at the check the next day and placed a five day hold on the transaction, as was customary for deposits of checks drawn on out-of-state banks. The defendant argues that it was “inconceivable that [he] could have known that this . . . cashier’s check was a forged instrument” because the bank teller, who physically had examined the check, failed to detect that the check was a forgery.
      This argument is not persuasive for several reasons. First, although there was uncontradicted testimony that the teller did not identify the check to be a forgery at the time it was processed after its removal from the teller machine, there was no evidence that the bank teller who processed the check did so for the purpose of detecting forgeries or that the teller had any training or expertise in detecting forgeries. Second, the defendant’s argument is based on the proposition that the fact that the teller did not detect the forgery at that time necessarily proved that the defendant did not know that the check was a forgery. There is no basis, either in fact or in logic, for this proposition.

       “It is axiomatic that the state’s burden of proof beyond a reasonable doubt applies to each and every element comprising the offense charged. But this burden of proof does not operate upon each of the many subsidiary, evidentiary, incidental or subordinate facts . . . upon which the prosecution may collectively rely to establish a particular element of the crime beyond a reasonable doubt. . . . Where the prosecution must rely upon circumstantial evidence, either in part or in whole, each link in the chain of circumstantial evidence need not be established beyond a reasonable doubt.” (Internal quotation marks omitted.) State v. Williams, 220 Conn. 385, 398, 599 A.2d 1053 (1991).

       The defendant also attempts to cast doubt on the evidence that he had received the letter mailed to him by Eastern Federal Bank in November, 2005. The defendant calls our attention to a representation made to the court by the prosecutor, that, while Mostowy was certain that the letter was mailed to the defendant, she could not be certain that this letter was not returned to the bank. This representation of Mostowy, made to the court and the defense by the prosecutor, was not made in the presence of the jury and, thus, was not evidence in this case. Nevertheless, the jury had evidence before it that the bank mailed the letter to the defendant at the address that he provided the bank when he opened his account weeks earlier. There was also evidence that during his investigation, Lounsbery confirmed that this was the defendant’s address. Accordingly, to the extent that the state based its case upon the defendant’s failure to respond to the bank’s letter, there was evidence in support of such a finding.


source: Caselaw Access Project

author: McLACHLAN, J.

license: Public Domain

text:
    TUCCIO DEVELOPMENT, INC. v. HARRY NEUMANN, JR.
    (AC 29147)
    DiPentima, McLachlan and Dupont, Js.

      Argued October 14
    officially released December 16, 2008

      John R. Williams, for the appellant (plaintiff).

      Charles E. Vermette, Jr., with whom, on the brief, was Christopher J. Sochacki, for the appellee (defendant).
   Opinion

McLACHLAN, J.

The plaintiff, Tuccio Development, Inc., appeals from the summary judgment rendered by the trial court in favor of the defendant, Harry Neumann, Jr. The plaintiff challenges the court’s holdings that there was no genuine issue of material fact and that Neumann was entitled to judgment as a matter of law. We affirm the judgment of the trial court.

The plaintiff, a residential real estate development corporation, contracted with Neumann, a licensed Realtor, to market and sell residential properties for the plaintiff from 2000 through 2002. From 2001 until January 6, 2004, the plaintiff was engaged in a legal malpractice action against its former legal counsel. On September 12, 2006, the plaintiff filed a one count complaint against Neumann, alleging violations of General Statutes § 20-325h and the Connecticut Unfair Trade Practices Act (CUTPA), General Statutes § 42-110a et seq. In the complaint, the plaintiff alleged that “[t]hroughout the entire time of the [litigation against Donnelly, McNamara & Gustafson, P.C.], [Neumann] furnished confidential information, such as the plaintiffs motivations to purchase and sell real property and previous offers regarding same, for the purpose of disadvantaging the plaintiff, to the parties opposing the plaintiff in said litigation and/or to their attorneys.” The plaintiff alleged that those disclosures, which were in violation of § 20-325h, constituted “unfair and deceptive acts and practices in trade and commerce within the meaning of [CUTPA].”

On June 7,2007, Neumann filed a motion for summary judgment, alleging that there was no genuine issue of material fact and that he was entitled to summary judgment as a matter of law. Neumann submitted two supporting affidavits with his motion: (1) his affidavit swearing that during the prior malpractice litigation, he did not provide any documents or information to the parties opposing the plaintiff and (2) an affidavit by the opposing parties’ attorney, Stephen P. Fogerty, affirming that he received discovery from the plaintiff but no documents or information from Neumann.

On July 5, 2007, the plaintiff filed a memorandum of law in opposition to the motion for summary judgment. The plaintiff asserted that “ [unquestionably, during both the pretrial phase and the trial phase of Tuccio Development, Inc. v. Donnelly, McNamara & Gustafson, P.C. . . . defense counsel had and used against the plaintiff documents which the plaintiff had sent to Mr. Neumann.” 6The plaintiff argued that because Edward Tuccio, an owner and officer of the plaintiff, had not produced the documents to the defendants’ counsel in the prior litigation, there existed a genuine issue of material fact as to the source of those documents and that “[f]or present purposes, the issue [was] whether the evidence is such that a jury could conclude that the source was . . . Neumann.” The plaintiff also argued that Edward Tuccio’s affidavit,* **** along with the exhibits and Neumann’s admissions, provided sufficient evidence for a jury to conclude that “[Neumann] was the source of the documents from his file, which were possessed and used by the plaintiffs opponents] in [Tuccio Development, Inc. v. Donnelly, McNamara & Gustafson, P.C.].”

Following oral argument, the court conducted a thorough review of the evidence and concluded that the plaintiffs argument was “mere conjecture and [was] not supported by any evidence or materials offered by the plaintiff.” The court also found that “the plaintiff has not submitted any evidence to contradict or rebut that offered by [Neumann], and, therefore, there exists no genuine issue as to any material fact. Accordingly, . . . Neumann is entitled to judgment as a matter of law, and the motion for summaiy judgment is granted.”

The plaintiff claims that the court improperly held that there was no genuine issue of material fact and that Neumann was entitled to judgment as a matter of law. We disagree.

“Because the court’s decision on a motion for summary judgment is a legal determination, our review on appeal is plenary. . . . The law governing summaiy judgment and the accompanying standard of review are well settled. Practice Book § [17-49] requires that judgment shall be rendered forthwith if the pleadings, affidavits and any other proof submitted show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. A material fact is a fact that will make a difference in the result of the case. . . . The facts at issue are those alleged in the pleadings. . . .

“In seeking summary judgment, it is the movant who has the burden of showing the nonexistence of any issue of fact. The courts are in entire agreement that the moving party for summaiy judgment has the burden of showing the absence of any genuine issue as to all the material facts, which, under applicable principles of substantive law, entitle him to a judgment as a matter of law. The courts hold the movant to a strict standard. To satisfy his burden the movant must make a showing that it is quite clear what the truth is, and that excludes any real doubt as to the existence of any genuine issue of material fact. ... As the burden of proof is on the movant, the evidence must be viewed in the light most favorable to the opponent. . . .

“It is frequently stated in Connecticut’s case law that, pursuant to Practice Book §§ 17-45 and 17-46, a party opposing a summary judgment motion must provide an evidentiary foundation to demonstrate the existence of a genuine issue of material fact. . . . [T]ypically [demonstrating a genuine issue requires a showing of evidentiary facts or substantial evidence outside the pleadings from which material facts alleged in the pleadings can be warrantably inferred. . . . Moreover, [t]o establish the existence of a material fact, it is not enough for the party opposing summary judgment merely to assert the existence of a disputed issue. . . . Such assertions are insufficient regardless of whether they are contained in a complaint or a brief. . . . Further, unadmitted allegations in the pleadings do not constitute proof of the existence of a genuine issue as to any material fact.” (Citation omitted; internal quotation marks omitted.) DaGraca v. Kowalsky Bros., Inc., 100 Conn. App. 781, 785-86, 919 A.2d 525, cert. denied, 283 Conn. 904, 927 A.2d 917 (2007).

“Although the court must view the inferences to be drawn from the facts in the light most favorable to the party opposing the motion ... a party may not rely on mere speculation or conjecture as to the true nature of the facts to overcome a motion for summary judgment. ... A party opposing a motion for summary judgment must substantiate its adverse claim by showing that there is a genuine issue of material fact together with the evidence disclosing the existence of such an issue.” (Internal quotation marks omitted.) Id., 792.

The plaintiff claims that the court improperly held that there was no genuine issue of material fact. The plaintiff claims that the court “ruled in effect that without ‘smoking gun’ evidence that [Neumann] was the source of the purloined documents, the plaintiff could not prevail.” The plaintiff claims that “the evidence submitted to the court, which had to be credited, proved that there were only two possible sources of the documents—the plaintiff and [Neumann]—and that the plaintiff was not the source.” The plaintiff misstates the evidence it produced for the court.

Neumann provided the court with competent evidence that he did not produce any confidential documents or information to the plaintiffs opposing parties or to their attorney in the prior litigation. Neumann produced both his sworn affidavit attesting to that fact and the sworn affidavit of the opposing parties’ attorney. The plaintiff, however, produced only deposition testimony showing that a letter Edward Tuccio wrote to Neumann was used in the prior litigation and Edward Tuccio’s statement in his affidavit that he “personally reviewed [the plaintiffs] discovery response . . . and [n]o communications from me or my company to Harry Neumann, Jr., or his company were included in such response.” Thus, in response to Neumann’s evidence that he had turned over no confidential communications, the plaintiffs evidence, viewed in the light most favorable to the plaintiff, showed only that (1) the opposing parties had received the communication and (2) the plaintiff had not included the communication in its discovery response to the opposing parties. Despite the plaintiffs argument to the contrary, it supplied absolutely no evidence that the plaintiff and Neumann were the only possible sources of the documents. The plaintiff supplied no evidence that Edward Tuccio did not supply a third party with copies of the documents. Moreover, the plaintiff did not even submit the documents it alleged were turned over by Neumann. Thus, the plaintiff failed to supply sufficient circumstantial evidence that would make the inference that Neumann turned over the documents anything more than speculation. We must therefore conclude that the plaintiff provided the court with nothing more than “mere speculation or conjecture” and did nothing to refute the facts stated in the defendant’s affidavits. See Larobina v. McDonald, 274 Conn. 394, 399-400, 876 A.2d 522 (2005). The court correctly determined that there was no genuine issue as to any material fact and that Neumann was entitled to judgment as a matter of law.

The judgment is affirmed.

In this opinion the other judges concurred.

        Tuccio Development, Inc. v. Donnelly, McNamara & Gustafson, P.C., Superior Court, judicial district of Danbury, Docket No. CV-01-0343253-S, resulted in a judgment in favor of the plaintiff. The legal malpractice action related to the plaintiffs business and properties for which Neumann was the plaintiffs Realtor.

       General Statutes § 20-325h provides in relevant part: “(a) No real estate licensee shall: (1) Reveal confidential information concerning a person whom the real estate licensee represented either as an agent, designated buyer agent or a designated seller agent... or (3) use confidential information concerning that person for the . . . advantage of a third party, except as required by legal process, as necessary to defend the real estate broker or real estate salesperson from allegations of wrongful or negligent conduct, or as necessary to prevent the commission of a crime.
      “(b) As used in this section, ‘confidential information’ means facts concerning a person’s assets, liabilities, income, expenses, motivations to purchase, rent or sell real property and previous offers received or made to purchase or lease real property which are not authorized by the client, a matter of general knowledge, part of a public record or file to which access is authorized pursuant to section 1-210 or otherwise subject to disclosure under any other provision of the general statutes or any regulation of Connecticut state agencies.”

       Neumann’s affidavit states:
      “1.1 am over eighteen years of age and believe in the obligation of an oath.
      “2. I am a licensed [R]ealtor in the State of Connecticut.
      “3. During the years 2000,2001 and 2002,1 contracted with [the plaintiff] to market and sell residential properties in the Town of Ridgefield, Connecticut.
      “4. At no time during the pendency of the civil litigation referenced in the plaintiffs Complaint . . . did I have any contact with the parties opposing the plaintiff in said litigation and/or their attorneys.
      “5. At no time during the pendency of the Litigation did I provide any documents or information to the parties opposing the plaintiff in said litigation and/or to their attorneys.”

       Fogerty’s affidavit states:
      “1.1 am over eighteen years of age and believe in the obligation of an oath.
      “2.1 am an attorney licensed to practice in the State of Connecticut, and I am a partner at Halloran & Sage, LLP.
      “3.1 represented Donnelly, McNamara & Gustafson, P.C., Paul McNamara and Rex Gustafson in a lawsuit filed by [the plaintiff], hereinafter the ‘Litigation’.
      “4. On January 9,2002,1 filed Interrogatories and Requests for Production upon [the plaintiff].
      “5. On May 23,2002, [the plaintiff] filed compliance with the Interrogatories and Requests for Production consisting of 900 pages. Each page was stamped beginning with 00001-00900 in the exact order as produced by [the plaintiff],
      “6. At no time during the pendency of the Litigation did I have any contact with Harry Neumann, Jr.
      “7. At no time during the pendency of the Litigation did I receive any documents or information from Harry Neumann, Jr., or his office.”

       The plaintiff identified exhibits one and two attached to its memorandum of law as support for this proposition. Exhibit one is an excerpt of Edward Tuecio's September 10, 2002 deposition testimony, and exhibit two is an excerpt from the December 9, 2003 testimony of Edward Tuccio; both include examination of the plaintiff regarding an October 20, 2000 letter sent by Edward Tuccio to the defendant. Although the plaintiff did not submit certified copies of the testimony, the defendant did not object to its admissibility, and the court, in its discretion, chose to review the testimony. See Schilberg Integrated Metals Corp. v. Continental Casualty Co., 263 Conn. 245, 273, 819 A.2d 773 (2003).

       Edward Tuccio’s affidavit, which was attached to the memorandum of law, states:
      “1.1 am an owner and officer of Tuccio Development, Inc., the plaintiff in this lawsuit. I have personal knowledge of all the facts relevant to this matter.
      “2.1 was personally involved in all aspects of Tuccio Development, Inc. v. Donnelly, McNamara & Gustafson, P.C. ... a civil suit tried to verdict in this court.
      “3. Exhibit 1 is a true and accurate copy of pages taken from the transcript of my deposition in the aforesaid lawsuit on September 10, 2002.
      “4.1 personally attended every day of the trial of that case and testified at such trial. Exhibit 2 is a true and accurate copy of portions of my testimony at that trial.
      “5.1 personally reviewed our discovery response, Exhibit 3. No communications from me or my company to Harry Neumann, Jr., or his company were included in such response.”

       The plaintiff attached, as the third exhibit to its memorandum of law, its responses to the interrogatories and requests for production. The responses, however, repeatedly refer to attached documents that were not submitted to the trial court as exhibits in this case.

       The plaintiff has not provided this court with a transcript of the oral argument held before the court on July 9, 2007.

       The plaintiff makes much of its argument that “[c]ircumstantial evidence is in no way inferior to direct evidence.” We do not challenge this principle but find no support for the plaintiffs argument that it proved its case with circumstantial evidence.


author: ROBINSON, J.

text:
    STATE OF CONNECTICUT v. JASON SHOLA AKANDE
    (AC 27755)
    McLachlan, Robinson and Pellegrino, Js.

      Argued September 19
    officially released December 16, 2008

      Katherine C. Essington, special public defender, for the appellant (defendant).

      Eileen F. McCarthy, senior assistant state’s attorney, with whom, were Gail P. Hardy, state’s attorney, and Kevin M. Shay, deputy assistant state’s attorney, for the appellee (state).
   Opinion

ROBINSON, J.

The defendant, Jason Shola Akande, appeals from the judgment of conviction, rendered after a jury trial, of two counts of forgery in the second degree in violation of General Statutes § 53a-139 (a) (1) and (2) and two counts of larceny in the sixth degree in violation of General Statutes §§ 53a-119 (2) and 53a-125b. On appeal, the defendant argues that (1) the third count of the information charging him with forgery in the second degree was defective and failed to charge him with a crime, (2) the court improperly instructed the jury by failing to include in its charge the definition of “issuing or possessing” a forged document and (3) the court improperly admitted into evidence an audiotape containing a message from his brother. We affirm the judgment of the trial court.

The jury reasonably could have found the following facts. The defendant and the victim, Nelson Estremera, became acquainted at It’s A Gee Thang barber shop on Main Street in Hartford. The defendant drove a black Mercedes-Benz and was dressed professionally each time Estremera saw him at the barber shop or around Hartford. The defendant told Estremera that his name was James Limerick. In conversation, the defendant told Estremera that he had a degree in computer engineering, that he was in the process of opening his own insurance business and that if Estremera ever needed any insurance to let him know.

In October, 2004, Estremera’s nephew gave him a car, a 1992 Chevrolet Lumina, and Estremera contacted the defendant to obtain automobile insurance for it. Estremera called the defendant, who told him to meet the defendant at what was known as the defendant’s “spot,” on a street off of Main Street, and to bring his birth certificate, social security card, the title to the car and his driver’s license. The defendant arrived in his Mercedes-Benz, and Estremera got into the defendant’s car, where the transaction took place. The defendant told Estremera that it would cost only $250 to insure the Chevrolet Lumina because older people pay lower rates. Estremera gave the defendant all of the paperwork, and the defendant told Estremera that he would contact him within a few days. Once the defendant got in touch with Estremera, the two men met again in the defendant’s car in the same spot. Estremera gave the defendant $250 in cash, and the defendant gave him an insurance card. The defendant told him that he would be able to register the car with the department of motor vehicles with this insurance card, and Estremera was in fact able to register the Lumina with no problems.

About one month later, in November, 2004, Estremera needed insurance for another vehicle, an Oldsmobile, and he got in touch with the defendant again to obtain insurance for this vehicle. The defendant told Estremera that he needed to bring the defendant only the title to the new car because he already had all of Estremera’s other information on file. The defendant again met with Estremera at the same location as their previous meetings, in the defendant’s car, to complete the transaction. The defendant gave Estremera an insurance card in exchange for another $250 cash. This second insurance card had both of Estremera’s cars listed on it, which Estremera found odd.

On November 18,2004, Estremera went to the department of motor vehicles in Wethersfield to register the Oldsmobile. Estremera gave an agent the new insurance card he had received from the defendant. After taking it, the agent indicated that a supervisor would be coming to speak to Estremera. The supervisor questioned him about where he got the card, and eventually the police arrived. Estremera spoke to an officer and later went, of his own volition, to the Wethersfield police department where he gave a written statement and was shown a photographic array, from which he identified the defendant’s photograph. The defendant was arrested in February, 2005, and charged with two counts of forgery in the second degree and two counts of larceny in the sixth degree. Following a trial, the jury returned a verdict of guilty. The court rendered judgment in accordance with the verdict and sentenced the defendant to five years incarceration, execution suspended after time served, followed by three years probation. This appeal followed. Additional facts will be set forth as necessary.

I

The defendant first claims that the third count of the information, charging him with forgery in the second degree, was deficient and failed to charge him with a crime because the words “which he knew to be forged” were omitted from that count of the state’s long form information. Thus, the defendant claims, the failure of the information expressly to include the necessary mental state equates to a failure to charge an offense. We disagree.

Because the defendant failed to preserve his claim at trial by taking an exception to the jury instruction given by the court, he seeks review under State v. Golding, 213 Conn. 233, 239-40, 567 A.2d 823 (1989), in which “our Supreme Court reformulated the test of reviewability [and] held that when a defendant fails to preserve his claim at trial he can prevail on that claim 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.” (Citation omitted; emphasis added; internal quotation marks omitted.) State v. Cooper, 38 Conn. App. 661, 665, 664 A.2d 773, cert. denied, 235 Conn. 908, 665 A.2d 903 (1995), cert. denied, 517 U.S. 1214, 116 S. Ct. 1837, 134 L. Ed. 2d 940 (1996).

The first prong of Golding is satisfied because the record in the present case, which contains the long form information and the full transcript of the trial proceedings, is adequate for our review. The second prong is also met because the defendant has implicated his constitutional right to be apprised of the nature and cause of the accusation against him as provided by the sixth and fourteenth amendments to the United States constitution. The claimed constitutional violation does not clearly exist, however, and therefore the defendant’s claim fails to meet the third prong of Golding.

“When the state’s pleadings have informed the defendant of the charge against him with sufficient precision to enable him to prepare his defense and to avoid prejudicial surprise, and were definite enough to enable him to plead his acquittal or conviction in bar of any future prosecution for the same offense, they have performed their constitutional duty.” (Internal quotation marks omitted.) State v. Spigarolo, 210 Conn. 359, 381, 556 A.2d 112, cert. denied, 493 U.S. 933, 110 S. Ct. 322, 107 L. Ed. 2d 312 (1989). “[I]t is sufficient for the state to set out in the information the statutory name of the crime with which the defendant is charged . . . .” (Internal quotation marks omitted.) State v. Commins, 276 Conn. 503, 513-14, 886 A.2d 824 (2005). “The function of the bill of particulars in a criminal case is to provide information fairly necessary to enable the accused to understand and prepare his defense against the charges without prejudicial surprise upon the trial.” (Internal quotation marks omitted.) State v. Coleman, 167 Conn. 260, 269, 355 A.2d 11 (1974). “Where the defendant can demonstrate neither unfair surprise nor prejudice, he cannot claim an infringement of his constitutional right to fair notice of the crimes with which he is charged . . . .” (Internal quotation marks omitted.) State v. Carter, 84 Conn. App. 263, 273, 853 A.2d 565, cert. denied, 271 Conn. 932, 859 A.2d 931 (2004), cert. denied, 544 U.S. 1066, 125 S. Ct. 2529, 161 L. Ed. 2d 1120 (2005).

The third count of the amended long form information charged the defendant with “committing Forgery in the Second Degree and charges that in the city of Hartford on or about the fifteenth day of November, 2004, at or near It’s a Gee Thang Barber Shop, 2576 Main Street, Hartford, the [defendant], with intent to defraud, deceive or injure another, did falsely make, complete, issue or possess a written instrument, to wit, an Automobile Insurance Identification Card, which was or puiported to be an instrument which does or may evidence or create a legal right, interest, obligation or status, and, which was an instrument required by law to be filed in a public office, to wit, the Connecticut Department of Motor Vehicles, in violation of Section 53a-139 (a) (1) and (2) of the Connecticut General Statutes.” The defendant filed a motion for a bill of particulars on August 3,2005, asking that the state particularize its information by stating: “1. With what crime or crimes is the defendant charged, specifying the portion and the language of the statute or ordinance claimed to have been violated? 2. What specific acts, language or behavior, are claimed to constitute the offense or offenses charged? 3. At what specific time did the alleged acts occur? 4. On what specific date did the alleged acts occur? 5. At what specific location did the alleged acts occur?” Also on August 3, 2005, the defendant filed a motion for discovery in which he requested, among other things, “[a] copy of the information and/or substituted information in the above-entitled matter . . . .”

The state’s response to the motion for discovery and bill of particulars, which was filed on August 17, 2005, stated: “A copy of the original information was previously given to defense counsel but an additional copy is included herewith. Further, a copy of the [s]tate’s [l]ong [f]orm [information was provided to the defendant on July 25, 2005.” The state’s response also stated: “The [s]tate’s [l]ong [f]orm [information, delivered to [the] [defendant on July 25, 2005, satisfies the requirements of Practice Book [§§] 41-20 and 41-21.’

The statute to which the long form information makes reference, § 53a-139 (a) (1) and (2), expressly includes the mental element that the defendant alleges is missing from the long form information. General Statutes § 53a-139 specifies that to be guilty of forgery in the third degree under the “issues or possesses” alternative, the defendant must have issued or possessed “any written instrument which he knows to be forged . . . .” (Emphasis added.)

We find that the long form information and the bill of particulars were sufficiently specific to put the defendant on notice of the crime with which he was charged and to allow him to prepare a defense, as the long form information specified the statutory name of the crime charged, as well as the town, date and particular location of the crime, all of which was information that he had requested in the bill of particulars. The information did not fail to charge the defendant with an offense, and as such there is no constitutional violation.

We also note that the defendant has not alleged that the court did not fully instruct the jury as to the state’s burden to prove the mental element of the crime and that at no time before or during the trial did the defendant object to the information or the bill of particulars. He also did not move for a more specific statement, for a supplemental bill of particulars or to quash the information. See State v. Coleman, supra, 167 Conn. 267.

II

The defendant next claims that the court failed to instruct the jury properly on the elements of forgery in the second degree and that this improper instruction violated his due process rights, as he was deprived of a fair trial. Essentially, he claims that the “issued or possessed” alternative by which a person can be convicted of forgery in the second degree was not sufficiently emphasized to the jury in the court’s charge. We find no error.

We begin with a review of the jury instructions at issue in the present case. Following a charge on the elements of the crime of forgery in the second degree, the court instructed the jury as follows: “A person is guilty of forgery in the second degree when with intent to defraud, deceive or injure another he falsely makes, completes or alters a written instrument or issues or possesses any written instrument which he knows to be forged which is or purports to be or which is calculated to become or represent if completed a deed, will, codicil, assignment, commercial instrument or other instrument which does or may evidence, create, transfer, terminate or otherwise affect a legal right, interest, obligation or status; or two, a public record or an instrument filed, required or authorized by law to be filed in or with a public office or public servant.

“Now, the information charges the defendant with two counts of forgery. The law states that a person is guilty of forgery when with intent to defraud, deceive or injure another, he falsely makes, completes or alters the written instrument. A ‘written instrument’ is any instrument or article containing written or printed matter or the equivalent thereof used for the purpose of reciting, embodying, conveying or recording information. A written instrument may be complete or incomplete.

“A ‘complete written instrument’ is one fully drawn with respect to every essential feature thereof whereas an ‘incomplete written instrument’ is one that requires additional matter or content to render it complete.

“Forgery may be consummated in any one of the following ways: falsely making a completed written instrument, falsely making an incomplete written instrument, falsely completing an incomplete written instrument, falsely altering a complete written instrument, falsely altering an incomplete written instrument or issuing or possessing any written instrument that he knows to be forged. The law in reference to this crime uses the term ‘falsely makes,’ ‘falsely completes,’ ‘falsely alters’ a written instrument.” (Emphasis added.)

The court went on to define the term “falsely” and also defined how a person “falsely completes a written instrument” and “falsely alters a written instrument.” The court also elaborated on the meaning of “intent to defraud” and “fraudulently.” The court completed the forgery charge by instructing: “Thus, the crime of forgeiy may be committed by falsely making or preparing a written instrument, placing liability on a particular person or entity, or the maker or drawer did not authorize the making or drawing of the instrument; or, two, by falsely inserting or changing matter in an incomplete written instrument so as to make it appear as a genuine, fully authorized, complete written instrument; or, three, by falsely altering any complete or incomplete written instrument by erasure, obliteration, deletion or insertion so as to make it appear genuine and fully authorized.

“Now, if you find that the state has proven beyond a reasonable doubt each of the elements of the crime of forgery in the second degree, then you will find the defendant guilty. On the other hand, if you find [that] the state has failed to prove beyond a reasonable doubt any one of the elements, then you shall find the defendant not guilty. Remember, that goes to both counts of forgery.”

This claim was not preserved properly at trial, and the defendant again relies on Golding review. Although the record is adequate for our review and this claim implicates the defendant’s constitutional right to a fair trial, as “[i]mproper jury instructions on an essential element of the crime charged implicate a fundamental constitutional right”; State v. Cooper, supra, 38 Conn. App. 666; the claim fails to satisfy the third prong of the Golding analysis because the claimed constitutional violation does not clearly exist.

“Where . . . the challenged jury instructions involve a constitutional right, the applicable standard of review is whether there is a reasonable possibility that the jury was misled in reaching its verdict.” (Internal quotation marks omitted.) State v. Fabricatore, 281 Conn. 469, 477, 915 A.2d 872 (2007). The defendant claims that the court improperly instructed the jury by failing to define the “issues” or “possesses” elements of the crime of forgery in the second degree under § 53a-139. The state in turn argues that the defendant’s claim fails to satisfy the third prong of the Golding analysis because the defendant waived the claim at trial.

The state argued both in its brief and during oral argument that the defendant is not entitled to Golding review of his claim because it was waived at trial when he acquiesced to the content of the charge on two occasions. First, after the jury was charged, the court asked counsel: “All right. Anything about the charge?” Defense counsel said nothing. Second, after the jury requested a written copy of the charging instructions, the court gave each counsel a copy to review overnight before distributing it to the jury. The next morning, the court again asked counsel if they had any comments on the charge or the copies that were to be distributed to the jury, stating: “We had some discussions yesterday. We made some copies of the charge that they asked for, the forgery and the larceny. I—we made copies last night for both sides here. Anybody have any comments on what we want to do with this?” Defense counsel stated, “No, Your Honor.”

“A defendant in a criminal prosecution may waive one or more of his or her fundamental rights. ... In the usual Golding situation, the defendant raises a claim on appeal which, while not preserved at trial, at least was not waived at trial. ” (Internal quotation marks omitted.) State v. McDaniel, 104 Conn. App. 627, 633-34, 934 A.2d 847 (2007), cert. denied, 285 Conn. 912, 943 A.2d 471 (2008). We have held that a “defendant could not satisfy the third prong of Golding where he had implicitly waived at trial a challenge to the alleged constitutional deprivation that was the basis of his claim on appeal. Therefore, a defendant cannot prevail under Golding on a claim that he implicitly waived at trial.” (Internal quotation marks omitted.) Id., 634.

The defendant attempts to distinguish his case from the circumstances in State v. Fabricatore, supra, 281 Conn. 469, and State v. Brewer, 283 Conn. 352, 927 A.2d 825 (2007), two cases in which the reviewing court found that the defendant had waived the right to challenge the allegedly improper jury instructions. In Fabricatore, the Supreme Court found that the defendant had waived his claim of improper jury instructions where defense counsel at trial not only failed to object to the instruction as given but expressed his satisfaction with the instruction and even argued that the instruction as given was proper. State v. Fabricatore, supra, 481-82. Similarly, in Brewer, defense counsel had requested the instruction in question, and the trial court asked if the charge as read was what had been requested. Counsel answered: “That is correct, Your Honor.” State v. Brewer, supra, 357. The Supreme Court found that it was “not an instance of defense counsel’s failure to take exception to the instruction as given . . . but rather ... a case in which he specifically expressed his satisfaction with that instruction when queried by the trial court.” Id., 360-61.

The defendant claims that the actions of defense counsel in the present case do not constitute waiver because mere silence of defense counsel does not equate to waiver. The defendant further asserts that if the failure of defense counsel to take exception to the court’s charge was to constitute a waiver of all unpreserved instructional error claims on appeal, a significant body of case law would be overruled. This argument ignores the fact that this situation did not involve mere silence on the part of defense counsel; although initially counsel merely said nothing in response to the court’s question of whether he had any comments about the charge, a short time later counsel was given a written copy of the charge as read to the jury, had the opportunity to look at it overnight, and the next morning when asked by the court whether he had any comments about the charge, he responded: “No, Your Honor.” We decline to draw a distinction between defense counsel stating that he had no problem with a jury charge that he specifically requested and defense counsel stating that he had no problem with a jury charge that he had not specifically requested. There is also no difference between counsel stating that he has no comment about the charge and counsel stating that the charge as read was correct. In both cases, we find the objection to be waived.

Indeed, other cases also stress the concept of implied waiver in similar situations. See, e.g., State v. McDaniel, supra, 104 Conn. App. 634-35 (defense counsel told court twice defendant not contesting validity of what he later claimed was illegal search, court discussed doctrine of implied waiver and concluded constitutional violation did not clearly exist); State v. Arluk, 75 Conn. App. 181, 191-92, 815 A.2d 694 (2003) (finding implicit waiver regarding court’s instruction where element of crime at issue was existence of protective order and court’s charge to jury instructed that one of state’s exhibits was protective order and defense failed to object); State v. Cooper, supra, 38 Conn. App. 669 (noting that in some circumstances, criminal defendant may impliedly waive one or more fundamental rights, including right to judicial supervision of entire voir dire, right to be present during trial, guarantees against double jeopardy and right to require state to prove each element of crime, and that “[t]he statements by counsel, which were tantamount to a stipulation . . . therefore amounted to an implied waiver by the defendant”). Furthermore, “[a] constitutional right that has been waived at trial cannot be resurrected successfully on appeal . . . by invoking the Golding doctrine.” State v. McDaniel, supra, 632. A review of the record shows that, for these reasons, the defendant cannot satisfy the third prong of Golding, as the constitutional violation did not clearly exist.

Ill

The defendant’s final claim is that the court improperly admitted into evidence as a prior inconsistent statement an audiotape containing a message that the defendant’s brother had left for a police investigator. The defendant claims that the court abused its discretion in admitting the tape into evidence because the statement on the tape did not constitute a prior inconsistent statement. We disagree.

The following additional facts are necessary for the resolution of the defendant’s claim. The defendant’s brother, Michael Akande, was subpoenaed by and testified on behalf of the state. Michael Akande was asked by the prosecutor if he recalled getting a telephone call from inspector Jay St. Jacques. Michael Akande stated that St. Jacques had called him five times, and he had returned his call four times. The following exchange between the prosecutor and Michael Akande then took place:

“Q. Okay. Do you recall Mr. St. Jacques asking you what—if you knew what your brother’s cell phone number was?
“A. That was not the way he put it.
“Q. How did he put it, sir?
“A. Mr. Jay St. Jacques left a message for me saying— say he knew my brother has—has a couple of prepaid cell phones, but he needs a hard line phone.
“Q. I’m sorry?
“A. He needs a line phone for home. That’s what he was questioning of me. He said he already knew that he has prepaid phones. . . .
“Q. Did you ever actually talk to him about this?
“A. No. I left a voice mail for him.
“Q. You left a voice mail?
“A. Uh-huh.
“Q. And what did you say on the voice mail?
“A. Yeah. I said ... ‘As you said’—I’m trying to quote myself now—I said, ‘As you said, he has a couple of cell phone numbers.’ . . .
“Q. Didn’t you say, sir, on the message that he had quite a few phones, cell phones?
“A. In corroboration to what Mr. [St. Jacques] said, yes.
“Q. Is that what you said?
“A. In corroboration to what he said—he said. He said he knew.”

The state then asked Michael Akande if it would refresh his recollection to play the tape of the message; he stated that it would. The court excused the jury from the courtroom and permitted the tape to be played to refresh the witness’ recollection outside the presence of the jury. Once the jury was brought back into the courtroom, Michael Akande was questioned again about whether he knew if the defendant had “multiple prepaid phone services . . . .’’At this point, however, Michael Akande tried to disclaim any knowledge of whether his brother owned multiple prepaid cellular telephones and responded: “For certainty, no. I do not know. I just corroborated what he said. It’s apparent you are not playing his own voice message, you are playing—you are playing mine. That’s plain and true. He left a message for me, too. In the message, he said, ‘We know he has a couple of prepaid phones.’ ”

The prosecutor then questioned Michael Akande about precisely what he had told the inspector on the voice mail message. The court again excused the jury and, after hearing arguments from both sides, permitted the tape to be introduced as a prior inconsistent statement, and it was played to the jury.

“The admissibility of evidence, including the admissibility of a prior inconsistent statement ... is a matter within the wide discretion of the trial court. ... On appeal, the exercise of that discretion will not be disturbed except on a showing that it has been abused.” (Internal quotation marks omitted.) State v. Robinson, 56 Conn. App. 794, 798, 746 A.2d 210, cert. denied, 253 Conn. 904, 753 A.2d 938 (2000). It is well within a trial court’s discretion to determine whether two statements are inconsistent. See State v. Laccone, 37 Conn. App. 21, 29, 654 A.2d 805 (1995), appeal dismissed, 235 Conn. 746, 669 A.2d 1213 (1996); see also State v. Whelan, 200 Conn. 743, 748 n.4, 513 A.2d 86 (“[wjhether there are inconsistencies between the two statements is properly a matter for the trial court”), cert. denied, 479 U.S. 994, 107 S. Ct. 597, 93 L. Ed. 2d 598 (1986).

A prior written, inconsistent statement can be admitted for substantive purposes if the following conditions have been met: (1) the statement is signed by the declarant; (2) the declarant has personal knowledge of the facts stated; and (3) the declarant testifies at trial and is available for cross-examination. State v. Whelan, supra, 200 Conn. 753. This doctrine also encompasses prior tape recorded statements that meet the Whelan criteria. See State v. Alvarez, 216 Conn. 301, 313, 579 A.2d 515 (1990).

The defendant’s contention is not that the tape-recorded statement does not meet the Whelan criteria for admissibility but, rather, that Michael Akande’s in-court testimony was not inconsistent with the recorded voice mail message. He asserts that Michael Akande’s statement agreeing that the defendant did in fact have multiple prepaid cellular telephones was not a confirmation that he had personal knowledge of that fact and, therefore, was not inconsistent with his trial testimony that he did not know whether the defendant had multiple prepaid cellular telephones.

We conclude that the court did not abuse its discretion in admitting into evidence for substantive purposes Michael Akande’s tape-recorded statement as a prior inconsistent statement. Michael Akande freely admitted that the voice on the recorded message was his, and “the requirement that such statements be signed is unnecessary because the recording of [a] witness’ voice imparts the same measure of reliability as a signature.” State v. Woodson, 227 Conn. 1, 21, 629 A.2d 386 (1993). Michael Akande also testified at trial and was available for cross-examination. We cannot say that the court abused its discretion in determining that Michael Akande’s in-court statement, which asserted that he did not know how many prepaid cellular telephones the defendant had, was inconsistent with the earlier tape-recorded statement, in which he acknowledged that his brother did in fact have multiple prepaid cellular telephones. Under these circumstances, we conclude that the court properly admitted the tape for substantive purposes.

The judgment is affirmed.

In this opinion the other judges concurred.

       Practice Book § 41-20 provides: “Pursuant to Section 41-5, the defendant may make a motion, or the judicial authority may order at any time, that the prosecuting authority file a bill of particulars.”
      Practice Book § 41-21 provides: “The judicial authority shall order that a bill of particulars disclose information sufficient to enable the defendant to prepare the defense, including but not being limited to reasonable notice of the crime charged and the date, time, and place of its commission.”

       Under General Statutes § 53a-139 (a), “[a] person is guilty of forgery in the second degree when, with intent to defraud, deceive or injure another, he falsely makes, completes or alters a written instrument or issues or possesses any written instrument which he knows to be forged, which is or purports to be, or which is calculated to become or represent if completed: (1) A deed, will, codicil, contract, assignment, commercial instrument or other instrument which does or may evidence, create, transfer, terminate or otherwise affect a legal right, interest, obligation or status; or (2) a public record or an instrument filed or required or authorized by law to be filed in or with a public office or public servant . . . .”

       We note that other cases from this court have analyzed the doctrine of waiver separately from the Golding analysis when an appellant waives a constitutional right at trial but requests Golding review on appeal. See State v. McDaniel, supra, 104 Conn. App. 635 n.6.

       The relevance of the number of cellular telephones in the defendant’s possession is as follows: Estremera stated that he had received telephone calls from the defendant from numerous different telephone numbers during the course of their dealings and that he had seen multiple telephones in the defendant’s car when he had met with him. The last telephone number from which Estremera received a call from the defendant was associated with a company that provides prepaid telephone services throughout the country.
      Once the tape recording of Michael Akande’s voice mail message was admitted as substantive evidence and played for the jury, the state was able to argue that parts of Estremera’s testimony had been corroborated by Michael Akande. Contrary to the defendant’s contention, this was not “impeachment of Michael Akande on a collateral matter” but, in fact, related to the credibility of the state’s primary witness.