text:
    JOHN DILUCIANO v. STATE OF CONNECTICUT MILITARY DEPARTMENT
    (AC 19786)
    Lavery, O. X, and Sclialler and Healey, Js.

      Argued September 18
    officially released November 14, 2000

      Robert M. Fitzgerald, for the appellant (plaintiff).

      Philip M. Schulz, assistant attorney general, with whom, on the brief, were Richard Blumenthal, attorney general, and William J. McCullough, assistant attorney general, for the appellee (defendant).
   Opinion

SCHALLER, J.

The plaintiff, John Diluciano, appeals from the decision of the workers’ compensation review board (board) affirming the commissioner’s dismissal of his claim for workers’ compensation benefits for injuries sustained in a motor vehicle accident that occurred while he was traveling to work. On appeal, the plaintiff claims that the board improperly determined that a security officer of the state military department (department), deriving his police powers from General Statutes § 29-18, is not a “policeman” as defined in General Statutes § 31-275 (1) (A) and, accordingly, is not covered by the Workers’ Compensation Act (act), General Statutes § 31-275 et seq., for injuries sustained while traveling to or from work. We affirm the decision of the board.

The relevant facts as found by the commissioner are as follows. The plaintiff was employed as a department security officer. According to the department’s job description, the plaintiff was not required to attend or graduate from the state police academy to attain this position. Ilis duties consisted of conducting building checks and occasionally stopping vehicles. The plaintiff, acting in this position, derived limited powers as a “special policeman” from § 29-18. Although that statute granted the plaintiff authority to arrest and detain people, he could do so only within the jurisdiction of the towns in which his duty station was located.

On December 10,1995, the plaintiffs duty station was the Connecticut Air National Guard facility at Bradley International Airport. That facility, according to the plaintiffs special police power card, occupies land in Windsor Locks, Suffield and East Granby. The plaintiff did not live in any of those towns, and he commuted to work from his home in Woodstock.

The plaintiffs off-duty privileges and benefits were similarly limited. The plaintiff, for example, was not issued a state vehicle for driving to and from work. Pursuant to his union contract, the plaintiff also did not receive travel pay and was not considered to be on duty while commuting to and from work. The plaintiff was not allowed to cariy a duty weapon while off duty. Rather, the plaintiff obtained his duty weapon when he arrived at work and returned it when leaving work.

On December 10, 1995, the plaintiff was scheduled to work from 4 p.m. to midnight. At approximately 3:22 p.m., he was traveling from his home in Woodstock to his duty station. While doing so, the plaintiff was involved in a motor vehicle accident. The accident occurred on Route 197 in Union. After the accident, the plaintiff returned to his home and did not report to work. The plaintiff, however, contacted his supervisor and informed him of the accident. As a result of the accident, the plaintiff sustained injuries to his neck, back and shoulders.

Thereafter, the plaintiff filed with the department a notice of claim for workers’ compensation benefits, which was denied because the accident had occurred while he was off duty. A formal hearing was held before the commissioner regarding the plaintiffs claim, and on June 2,1998, the commissioner dismissed the claim. In doing so, the commissioner concluded that the plaintiffs powers and duties were much more limited than those of a typical police officer. The plaintiff, according to the commissioner, also lacked the extensive training and education typically associated with police officers. This compelled the commissioner to conclude that the plaintiff was not a “policeman” as the term is used in § 31-275 (1) (A) and, therefore, was not entitled to workers’ compensation benefits for injuries sustained while traveling to or from work.

The plaintiff petitioned the board for review of the commissioner’s ruling. The board affirmed the commissioner’s ruling, and this appeal followed.

As a threshold matter, we set forth the proper standard of review applicable to workers’ compensation appeals. “The principles that govern our standard of review in workers’ compensation appeals are well established. The conclusions drawn by [the commissioner] from the facts found must stand unless they result from an incorrect application of the law to the subordinate facts or from an inference illegally or unreasonably drawn from them. . . . Besade v. Interstate Security Services, 212 Conn. 441, 449, 562 A.2d 1086 (1989). Neither the review board nor this court has the power to retry facts. See Six v. Thomas O’Connor & Co., 235 Conn. 790, 798-99, 669 A.2d 1214 (1996). . . . Doe v. Stamford, 241 Conn. 692, [697], 699 A.2d 52 (1997). It is well established that [although not dispositive, we accord great weight to the construction given to the workers’ compensation statutes by the commissioner and review board. ... A state agency is not entitled, however, to special deference when its determination of a question of law has not previously been subject to judicial scrutiny. . . . Duni v. United Technologies Corp., 239 Conn. 19, 24-25, 682 A.2d 99 (1996); Davis v. Norwich, 232 Conn. 311, 317, 654 A.2d 1221 (1995). Where ... [a workers’ compensation] appeal involves an issue of statutory construction that has not yet been subjected to judicial scrutiny, this court has plenary power to review the administrative decision. Doe v. Stamford, supra, 697; see Davis v. Norwich, supra, 317. . . . Dowling v. Slotnik, 244 Conn. 781, 798, 712 A.2d 396, cert. denied sub nom. Slotnik v. Consid- ine, 525 U.S. 1017, 119 S. Ct. 542, 142 L. Ed. 2d 451 (1998).” (Internal quotation marks omitted.) Fimiani v. Star Gallo Distributors, Inc., 248 Conn. 635, 641-42, 729 A.2d 212 (1999).

We now turn to the plaintiffs argument. He asserts that this matter involves a pure question of statutory construction in which the plain language of the statute is clear and unambiguous. According to the plaintiff, he is a “policeman” as the term is used in § 31-275 (1) (A) and, as such, is entitled to the coverage due a “policeman.” The plaintiff does not disagree with the commissioner’s factual findings, but disagrees with the commissioner’s legal conclusions. We are not persuaded.

To understand fully the plaintiffs position, it is necessary to review the “coming and going rule” under the act. That rule generally denies workers’ compensation benefits for injuries sustained by employees while they are traveling to and from their places of employment. See General Statutes § 31-275 (1) (E); True v. Longchamps, Inc., 171 Conn. 476, 478, 370 A.2d 1018 (1976). The act, however, does specify an exception to the rule. Section 31-275 (1) (A) provides in relevant part that “[f]or a policeman and a fireman, in the course of his employment shall encompass his departure from his place of abode to duty, his duty, and his return to his place of abode after duty . . . .” (Emphasis added; internal quotation marks omitted.) The police and firefighter exception is presumably based on the emergency on-call nature of those professions and the urgency with which police and firefighters may be summoned to duty. See 1 A. Larson & L. Larson, Workers’ Compensation Law (2000) § 14.05, p. 14-17. In essence, the plaintiff argues that he falls under the “policeman” exception to the “coming and going rule.” We must determine whether the plaintiff, as a “special policeman” deriving his authority from § 29-18, is entitled to be considered a “policeman” for purposes of coverage under § 31-275 (1) (A). We conclude that he is not so considered.

The plaintiffs argument oversimplifies the matter. Contrary to the plaintiffs claim that this matter involves a pure question of law, we view it as a mixed question of law and fact. In workers’ compensation cases, we have treated such questions with deference when interpreting a statutory term that is highly intertwined with the factual findings. See Collins v. Milford, 15 Conn. App. 84, 89, 543 A.2d 291 (1988). Similarly, we find that this principle applies to the present case. Facts are necessary to determine whether a “special policeman” is to be considered as a “policeman” under § 31-275 (1) (A). Merely interpreting the statutory language does not reveal whether the two terms are the same. To define properly the plaintiffs status, the commissioner must examine the factual situation of both categories before concluding that the duties of a “special policeman” comport with those of a “policeman.”

In the present case, the commissioner concluded for several reasons that the plaintiffs duties, responsibilities and authority differ from those of police in general. First, unlike a regular police officer, the plaintiff had limited authority to arrest people and could do so only within the jurisdiction of his duty station. Moreover, the department did not allow the plaintiff to carry a duty weapon off the duty station. When the plaintiff arrived at his duty station for work, he obtained his weapon and returned it when leaving work. Second, the department did not issue the plaintiff a state vehicle that he could use for driving to and from work. Third, in contrast to some special policemen, the plaintiff, pursuant to his union contract, was not entitled to travel pay, and was not considered to be on duty while traveling to and from work. Finally, the plaintiff lacked the extensive training and education typically associated with police officers because he was not required to attend or graduate from a police academy. All of those reasons compelled the commissioner to conclude that the plaintiff was not a “policeman” as that term is used in § 31-275 (1) (A) and, accordingly, was not entitled to workers’ compensation benefits for injuries sustained while traveling to work.

On appeal, the board agreed. It concluded that the plaintiffs duties did not comport with the emergency on-call nature of duties typically associated with a policeman. We conclude that the commissioner’s findings of fact supported the conclusion that the plaintiffs “special policeman” status did not entitle him to the claimed benefits.

The decision of the workers’ compensation review board is affirmed.

In this opinion the other judges concurred.

       General Statutes § 29-18 provides: “The Commissioner of Public Safety may appoint one or more persons nominated by the administrative authority of any state buildings or lands including, but not limited to, state owned and managed housing facilities, to act as special policemen in such buildings and upon such lands. Each such special policeman shall be sworn and may arrest and present before a competent authority any person for any offense committed within his precinct.” (Emphasis added.)

       General Statutes § 31-275 (1) (A) provides in relevant part: “Arising out of and in the course of his employment means an accidental injury happening to an employee or an occupational disease of an employee originating while he has been engaged in the line of his duty in the business or affairs of the employer upon the employer’s premises, or while engaged elsewhere upon the employer’s business or affairs by the direction, express or implied, of the employer, provided: (A) For a policeman and a fireman, in the course of his employment shall encompass his departure from his place of abode to duty, his duty, and his return to his place of abode after duty . . . (Emphasis added; internal quotation marks omitted.)

       See footnote 1.

       General Statutes § 31-275 (1) (E) provides in relevant part: “[A] personal injury shall not be deemed to arise out of the employment if the injury is sustained: (i) At the employee’s place of abode and (ii) while the employee is engaged in a preliminary act or acts in preparation for work . . . .”


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    DONNA BOYLAN ET AL. v. GERALD LOGAN
    (AC 20218)
    Schaller, Zarella and Pellegrino, Js.
    Submitted on briefs September 15
    officially released November 14, 2000

      Peter Harvey filed a brief for the appellant (defendant).

      Brendan T. Flynn and Donald Gaudreau filed a brief for the appellees (plaintiffs).
   Opinion

PER CURIAM.

The defendant, Gerald Logan, appeals from the judgment of the trial court granting the application of the plaintiffs, Donna Boylan and Meryl Koslow, to confirm an arbitration award and denying his motion to vacate the arbitration award. On appeal, the defendant claims that it was improper for the arbitrator to decide whether the contract, which provided for arbitration, was induced by fraud. We affirm the judgment of the trial court.

The following facts and procedural history are relevant to our disposition of this appeal. The parties entered into a loan agreement in connection with the sale and purchase of a chiropractic medical practice. The loan agreement included a broad arbitration clause. A dispute arose, and the parties instituted separate actions against each other. The matters were consolidated, and the plaintiffs, seeking arbitration, moved to stay the actions. The motion to stay was granted, and the plaintiffs filed a demand for arbitration with the American Arbitration Association. Hearings were held, and an award was entered in favor of the plaintiffs in the amount of $82,627.45. Thereafter, the plaintiffs filed an application to confirm the award in the Superior Court, and the defendant filed a motion to vacate. The court granted the motion to confirm and denied the motion to vacate, but did not offer a written opinion other than a handwritten note that stated: “See Two Sisters, Inc. v. Gosch & Co., 171 Conn. 493 [370 A.2d 1020 (1976)].”

The defendant argues that his claim of fraud in the inception of the agreement is an issue that should not have been decided by the arbitrator. The authority cited by the court in dismissing this argument is precisely on point. In Two Sisters, Inc. v. Gosch Co., supra, 171 Coirn. 497, our Supreme Court held that if a contract contains a broadly worded arbitration clause, as does the contract in the present case, then the clause “reflects the parties’ general desire to settle any disputes relating to their contract speedily and finally through arbitration, including claims of fraudulent inducement.” The court properly denied the motion to vacate and appropriately confirmed the award.

The judgment is affirmed.

       Paragraph 14 (0 of the loan agreement provides: “Arbitration: Any controversy or claim arising out of or related to this Agreement, or the breach thereof, shall be settled by arbitration in accordance with the Commercial Arbitration Rules of the American Arbitration Association, and judgment upon the award rendered by the arbitrator(s) may be entered in any court having jurisdiction thereof. Venue for the arbitration shall be in Hartford, Connecticut.’'


author: DUPONT, J.

text:
    STATE OF CONNECTICUT v. JOHN REILLY
    (AC 20121)
    Foti, Zarella and Dupont, Js.

      Argued September 12
    officially released November 14, 2000

      Richard, W. Callahan, special public defender, for the appellant (defendant).

      Jessica C. Torres-Daigle, special deputy assistant state’s attorney, with whom, on the brief, were Michael Dearington, state’s attorney, and Michael A. Pepper, assistant state’s attorney, for the appellee (state).
   Opinion

DUPONT, J.

The defendant, John Reilly, appeals from the trial court’s judgment, rendered pursuant to General Statutes § •53a-32, revoking his probation and committing him to the custody of the commissioner of correction to serve the suspended portion of his previously imposed sentence. On appeal, the defendant asserts that he was denied federal constitutional due process because (1) he was not given prior fair warning that the conditions of his probation proscribed the particular conduct claimed to be in violation of the terms of his probation and (2) the violations found were inconsistent with those violations alleged in the state’s information. The defendant also claims that the court abused its discretion by revoking his probation and sentencing him to serve fourteen months incarceration.

The facts and sequence of events play an important role in the disposition of this case. Accordingly, we recite them in detail. Given those facts and the claims of the defendant, this case is one of first impression in Connecticut. On July 12, 1994, the defendant pleaded guilty to sexual assault in the third degree in violation of General Statutes § 53a-72a, a class D felony. The court sentenced him to a period of four years incarceration, execution suspended after one year, with five years probation.

On April 12, 1995, the defendant was released from custody and began his five year probation. The court imposed several conditions of probation. The condition relevant to this appeal was the requirement that the defendant receive sex offender treatment. On May 23, 1995, the defendant’s probation officer, Suzanne Kuziak, reviewed the terms of probation with the defendant. The defendant, acknowledging and agreeing to abide by the terms and conditions of his probation, signed the standard “General Terms of Probation” form. Shortly thereafter, Kuziak referred the defendant to the Special Services Center for the Treatment of Problem Sexual Behavior (special services) for sex offender therapy. On June 14, 1995, before the defendant participated in the therapy sessions, he and special services entered into an agreement that enumerated the agency’s expectations and the defendant’s obligations.

From June, 1995, to July 1, 1998, the defendant attended weekly group therapy meetings and received treatment from special services. According to the attendance records, the defendant was present at least 160 times and rarely missed a meeting. During that three year period, Jim Hughes, the defendant’s sex offender therapist, completed twenty-nine monthly or bimonthly reports on the defendant’s progress. The vast majority of the reports indicated that the defendant actively participated in the sessions.

The defendant’s problems with special services began in May, 1998. According to Hughes, the defendant often took notes while other members spoke during therapy sessions. Although special services did not have a formal policy forbidding note-taking, and indeed Hughes on occasion referred to the defendant as the group’s secretary and historian, Hughes and the other counselors nevertheless met to determine the propriety of the defendant’s note-taking. They concluded that note-taking undermined the defendant’s progress and treatment. The note-taking triggered concerns that such behavior prevented the defendant from fully relating to and interacting with other group members, and concerns about how the defendant intended to use the notes.

On May 28, 1998, Kuziak learned that the defendant may have been placing bets at an offtrack betting facility. Kuziak contacted Hughes because she thought that the defendant’s possible gambling might violate the terms of his therapy. On June 3, 1998, during one of the sessions, Hughes confronted the defendant about his alleged gambling. Hughes suggested that if the defendant had money to gamble, perhaps he was no longer under financial hardship justifying a copayment reduction for the therapy sessions. Consequently, special services increased his per session fee from $7 to $15. The defendant became upset about the increase and refused to sign the new fee arrangement.

Additionally, Hughes discussed with the defendant the concerns prompted by his note-taking and asked him to refrain from it in the future. Testimony at the violation of probation hearing conflicted as to the extent to which the defendant continued to take notes despite Hughes’ request. The defendant claimed that he confined his subsequent note-taking to permissible periods, namely during blackboard or other presentations. Hughes maintained, however, that the defendant continued to take notes while others spoke.

On June 11, 1998, the defendant filed a grievance against Hughes. It alleged, inter alia, that Hughes’ handling of the fee increase in a nonprivate manner, in front of group members, served to “demean, threaten and debase” the defendant. According to the grievance, the defendant felt that his progress at the New Haven group suffered because of conflicts with the staff. Notably, the defendant formally requested a transfer to the Middletown sex offender group. On this date, the defendant also requested, pursuant to the Freedom of Information Act, General Statutes (Rev. to 1997) § 1-7 et seq., now § 1-200 et seq., a copy of the contract between special services and the state.

During a July 1,1998 meeting with Kuziak, the defendant stated that he planned to transcribe his therapy notes. He also stated that he had spoken to other group members outside of the therapy sessions and would likely subpoena those members in connection with a lawsuit he intended to bring against special services. Kuziak, in turn, reported this information to Hughes.

The defendant attended his last therapy session on July 1, 1998. Hughes completed a progress report for that final session and reported that the defendant had actively participated in the group discussions. Hughes also noted in the report that the defendant cooperated during the reassessment of his fee. Finally, the report stated that the defendant had resisted the directive to cease his note-taking.

On July 6,1998, special services officially discharged the defendant from the treatment program and notified Kuziak of the discharge by letter. The letter cited two principal reasons for the discharge. First, it explained that the defendant’s conversations with group members outside of group therapy and his threats to subpoena group members “violated his treatment contract.” Second, the letter noted that the defendant fell short of treatment expectations when he refused to sign his new fee agreement. Conspicuously absent from the list of reasons for his discharge was any reference to note-taking. Hughes notified the defendant of his discharge in person on July 8, 1998.

On August 26, 1998, Kuziak executed an affidavit stating that she had probable cause to believe the defendant violated a condition of his probation. Specifically, Kuziak’s affidavit alleged that the defendant’s discharge resulted from a fee arrangement dispute and conversations the defendant had with members outside of therapy sessions. The state then signed an information that charged the defendant with a probation violation consistent with Kuziak’s affidavit.

On October 19, 1998, the court; issued a warrant for the defendant’s arrest. The defendant voluntarily turned himself in on October 30,1998. The court then released him on a promise to appear in court.

The probation violation hearing began on April 8, 1999, and concluded on September 15,1999. During the hearing, Hughes and Kuziak testified about the events leading up to and surrounding the defendant’s discharge. The court also heard from several psychologists and psychiatrists, both treating and nontreating, who testified as to the defendant’s mental state. It was undisputed that the defendant was a decorated Vietnam War veteran who suffers from alcohol dependence, bipolar disorder and post-traumatic stress disorder.

On September 29, 1999, the court found by a preponderance of the evidence that “special services had a legitimate concern and motivation for telling the defendant or ordering the defendant to discontinue the note-taking during the group sessions due to the perceived harm it posed to other group members in terms of breaching their expectation of confidentiality. [The court was] also satisfied [that] the defendant became so engrossed in his pursuit of the lawsuit against special services that he did refuse to stop the note-taking, that he did become disruptive and resistant and uncooperative and became something of an uncooperative force within the group, threatening to use the transcribed notes from group sessions, threatening to subpoena group members and so on both during and outside group sessions affecting not only his own progress with respect to the sex offender treatment but the progress of others and all this in an effort to pursue his suit and get support from other group members for the lawsuit.”

In light of those findings, the court determined that special services had properly discharged the defendant for his conduct. The court found, however, that the evidence did not support a probation violation on the basis of the fee dispute. After finding that the defendant “willingly and intentionally” chose not to comply with the special condition of his probation requiring that he attend sex offender therapy, the court revoked his probation and sentenced him to a lesser term of fourteen months imprisonment.

I

As of the date of oral argument in this court, the defendant was no longer incarcerated, having served the requisite sentence. We first consider whether the defendant’s appeal is moot because we can no longer afford him any practical relief.

If the resolution of a criminal appeal can create collateral consequences prejudicial to the interests of an appellant, jurisdiction over the appeal remains, even if the appellant has already served the sentence given. State v. Collic, 55 Conn. App. 196, 201, 738 A.2d 1133 (1999); see also Rivera v. Commissioner of Correction, 254 Conn. 214, 225-26, 756 A.2d 1264 (2000). “The collateral consequences of a conviction are legion: subsequent convictions might, as a result, carry heavier penalties and a wide range of civil rights might be affected, including a defendant’s eligibility to hold public office.” Barlow v. Lopes, 201 Conn. 103, 112-13, 513 A.2d 132 (1986); see also State v. Smith, 207 Conn. 152, 159-62, 540 A.2d 679 (1988). The potential for harm to the defendant if we spurn his appeal is of sufficient magnitude to overcome any claim of mootness. We therefore retain the appeal and decide its merits.

II

We now turn to the first issue, namely whether the court violated the defendant’s due process rights. Our analysis begins with a brief discussion of the rights attendant to a probation violation hearing. The hearing itself involves two distinct components. Initially, the court conducts an adversarial evidentiary hearing to determine whether the defendant has indeed violated a condition of probation. State v. Davis, 229 Conn. 285, 289, 641 A.2d 370 (1994); State v. Gaston, 56 Conn. App. 125, 129, 741 A.2d 344 (1999). The state must establish a violation of probation by a fair preponderance of the evidence. State v. Davis, supra, 295. That is to say, “the evidence must induce a reasonable belief that it is more probable than not that the defendant has violated a condition of his or her probation.” Id., 302. This court will not disturb a trial court’s factual determination that a violation has occurred unless that determination is clearly erroneous. State v. Treat, 38 Conn. App. 762, 769, 664 A.2d 785, cert. denied, 235 Conn. 920, 665 A.2d 907 (1995); State v. Scott, 31 Conn. App. 660, 668, 626 A.2d 817 (1993).

Second, if the evidence supports a violation, the court exercises its discretion and determines whether the beneficial, rehabilitative purposes of probation are still being served or whether the need to protect the public outweighs the probationer’s interest in liberty. State v. Davis, supra, 229 Conn. 297. Thus, an appellate court will affirm an exercise of discretion reinstating an original sentence or ordering incarceration, absent a manifest abuse of discretion or injustice requiring reversal. Walker v. Commissioner of Correction, 223 Conn. 411, 414-15, 611 A.2d 413 (1992), overruled in part on other grounds, Simms v. Warden, 229 Conn. 178, 640 A.2d 601 (1994).

Probation revocation proceedings fall within the protections guaranteed by the due process clause of the fourteenth amendment of the federal constitution. Gagnon v. Scarpelli, 411 U.S. 778, 782, 93 S. Ct. 1756, 36 L. Ed. 2d 656 (1973). That clause provides in relevant part: “[N]or shall any State deprive any person of life, liberty or property, without due process of law . . . .” U.S. Const., amend. XIV, § 1. Probation itself is a conditional liberty and a privilege that, “once granted, is a constitutionally protected interest.” State v. Davis, supra, 229 Conn. 294. The revocation proceeding must comport with the basic requirements of due process because termination of that privilege results in a loss of liberty. Id.

The vast majority of probation revocation appeals test the sufficiency of the evidence offered at the eviden-tiary hearing phase of the proceedings to prove that a condition of probation was violated. This case is not, however, a straightforward evidentiary challenge. Here, both parties accept the court’s factual conclusions. Both parties agree that the defendant took notes during therapy sessions, that he spoke with other members outside scheduled meetings and that he discussed the possibility of subpoenaing fellow members in a potential lawsuit against special services. Where the two parties diverge, however, is on the question of whether the conditions of the defendant’s probation proscribed those activities and, if so, whether the defendant had notice of those proscriptions. The first question for us to resolve, therefore, is not whether the defendant engaged in particular conduct, but whether his conduct could constitute a violation of a valid condition of probation on the facts of this case.

The defendant does not argue that the state failed to prove by a preponderance of the evidence that he took notes during sessions or that he spoke to other members outside of group sessions. Instead, he argues that as a matter of law, he lacked notice of the conditions that the court found that he violated, namely that he not speak to group members outside of group therapy sessions and that he not threaten to subpoena group members. The assertions that the defendant lacked prior notice of the conditions underlying the probation revocation and that the conditions that the court found that he violated were inconsistent with the violations alleged in the information are questions of law for which our review is plenary. That precise question is whether the trial court revoked his probation without due process of law. See State v. Lewis, 58 Conn. App. 153, 157, 752 A.2d 1144, cert. denied, 254 Conn. 917, 759 A.2d 508 (2000). “[T]he interpretation of a probation condition and whether it affords a probationer fair warning of the conduct proscribed thereby are essentially matters of law and, therefore, give rise to de novo review on appeal.” United States v. Gallo, 20 F.3d 7, 11 (1st Cir. 1994). The condition to be interpreted in this case is that the defendant “obtain sex offender treatment.”

We first consider whether the defendant received fair warning that his behavior would result in a revocation of probation. Due process requires, at a minimum, that an individual receive notice of probation conditions and an opportunity to be heard. The defendant claims a deprivation of the former of those two requirements. The purpose of notice of conditions is to ensure that the probationer understands the precise terms of his obligations and that he risks termination of his probation if he fails to meet those obligations.

Written conditions of probation formally imposed by a court order usually provide notice sufficient to satisfy due process. Therefore, where there is an alleged violation of an explicit condition, it would be difficult for a defendant to claim successfully that he was denied due process on the ground of no fair notice. Obviously, a finding of actual notice impliedly includes a finding of fair notice.

Where criminal activity forms the basis for the revocation of probation, the law imputes to the probationer the knowledge that further criminal transgressions will result in a condition violation and the due process notice requirement is similarly met. “An inherent condition of any probation is that the probationer not commit further violations of the criminal law while on probation.” State v. Lewis, supra, 58 Conn. App. 157-58.

Where noncriminal activity forms the basis for the revocation of probation, due process requires specific knowledge that the behavior involved is proscribed. “ ‘[W]here the proscribed acts are not criminal, due process mandates that the [probationer] cannot be subjected] to a forfeiture of his liberty for those acts unless he is given prior fair warning.’ United States v. Dane, 570 F.2d 840, 844 (9th Cir. 1977), cert. denied, 436 U.S. 959, 98 S. Ct. 3075, 57 L. Ed. 2d 1124 (1978).” State v. Lewis, supra, 58 Conn. App. 157; see also State v. Hoffler, 55 Conn. App. 210, 217 n.2, 738 A.2d 1145, cert. denied, 251 Conn. 923, 742 A.2d 360 (1999) (impliedly recognizing differing notice requirements for lawful, unlawful acts).

Those principles guide us in considering whether the defendant violated any formal court-imposed condition of probation, and we conclude that no condition of court-ordered probation specifically prohibited the defendant’s conduct. The only special condition of the court-ordered probation even remotely related to the court’s finding of a violation was that he obtain sex offender treatment. It is undisputed that the defendant did obtain sex offender treatment and faithfully attended treatment sessions from June 14, 1995, through July 1, 1998.

Next, we dispose of any argument that due process was satisfied because the defendant had imputed knowledge of the condition. Neither party maintains that criminal activity constituted the alleged violation, and the law imputes notice to the defendant only in those cases involving criminal behavior.

Finally, we discuss the last method of satisfying due process in the context of probation revocation, namely whether the defendant had knowledge of the alleged condition. Unless the defendant received prior fair warning that his acts could result in revocation of probation, the court’s revocation violated due process. The court explicitly found that the defendant violated the terms of his probation when he threatened to use his notes from group therapy sessions and threatened to subpoena group members in connection with his putative lawsuit, both outside and during group sessions. Similarly, the charging document in this case alleged that the defendant had engaged in outside conversations with group members and had threatened to subpoena group members in connection with a contemplated lawsuit. The defendant’s claim, therefore, that the information did not allege a condition that the court found him to have violated must fail. The relevant question, therefore, becomes whether the defendant had notice, or prior fair warning, that the behavior charged, and found to have occurred, would precipitate a possible revocation of his probation.

In United States v. Gallo, supra, 20 F.3d 7, the United States Court of Appeals for the First Circuit, in deciding that question, found no due process violation in a revocation decision because the probationer had sufficient notice that his conduct would lead to revocation. In Gallo, the court required the probationer to submit to proper psychiatric treatment and found him in violation when he refused certain medications and inpatient treatment. “It [was] also significant that both the probation officer and the court repeatedly explained to [the probationer] the risk he was running. . . . [T]he probation officer told [the probationer] . . . that [the psychiatrist] believed inpatient treatment was essential to meet the goal of ‘proper psychiatric treatment’ and exhorted [the probationer] to comply. Such a conversation may be considered as a component of the notification process. . . . Furthermore, the district judge . . . urged [the probationer] on more than one occasion to relent and told him in no uncertain terms that, if his intransigence did not abate, he would be found in violation of the probation order.” (Citations omitted; emphasis added.) Id., 13.

Similarly, in Mace v. Amestoy, 765 F. Sup. 847 (D. Vt. 1991), the court found no violation of the probationer’s right to fair notice of probation conditions because “[t]he probation officer, as well as the therapist, put [the probationer] on actual notice that his failure to admit the sexual intercourse was interfering with the successful completion of the treatment program. In other words, [the probationer] was given fair notice that his refusal to admit the full extent of his sexual conduct would be a violation of the probation conditions.” (Emphasis added.) Id., 849-50.

Courts recognize, therefore, that a defendant may receive notice and fair warning sufficient to comport with due process without necessarily receiving that notice from a court. Indeed, probation officers can provide adequate fair warning. Courts universally require, however, some set of circumstances, be it in a courtroom or in a meeting with a probation officer, a prohibition or common sense inference of a prohibition drawn from the situation, that creates an understanding and appreciation that engaging in certain conduct may result in a termination of conditional liberty.

The state argues that the simple knowledge that the defendant was to remain in sex offender treatment as a condition of probation satisfies the requisite prior fair warning that speaking to group members outside of sessions about subpoenas would result in a revocation of probation. We disagree.

The defendant’s contract with special services established several conditions for the defendant to follow. No condition covered the precise behavior alleged to have caused his discharge from sex offender treatment. He agreed to attend treatment sessions on time, to participate fully in treatment sessions and to refrain from attending any session under the influence of drugs or alcohol, from committing a criminal offense, from making contact with the victim, from having any unsupervised contact with minors and from having any supervisory role in a “direct line of contact with minors under seventeen.” Arguably, the only condition remotely connected to telling others in the program, away from the sessions, about his proposed lawsuit and the need for subpoenas is the agreement with special services to participate fully in the sessions.

Thus, the issue is whether the defendant had fair notice that the act of telling group members outside of group sessions that he would use his notes of sessions and would subpoena the members in connection with a lawsuit would violate the condition of fully participating in group therapy sessions conducted by special services. If he had been discharged from the program for failure to attend the sessions or for any of the listed reasons, a condition of his probation would be implicated. The question is, however, whether the defendant had prior notice that his behavior violated a condition of probation when the condition was not specifically listed as a condition nor reasonably included in the condition to obtain sex offender treatment. In revocation hearings where the alleged violative behavior is noncriminal, we hold that where the specific condition did not explicitly proscribe the defendant’s conduct and could not be reasonably interpreted to proscribe the defendant’s conduct, the defendant must receive actual notice that the continuation of the conduct could result in a charge of a violation of a condition of probation.

The transcripts of the violation of probation hearing reveal several conversations between the defendant and Kuziak regarding his note-taking and outside discussions with group members. None of those conversations, however, adequately put the defendant on notice that his behavior could result in revocation. Kuziak never responded directly to the defendant. Instead, she met and spoke with Hughes, Lynn Anderson, Hughes’ cotherapist, and Patrick Little, also a special services therapist. Unlike the probationer in Mace, Kuziak never suggested to the defendant that the conditions of his probation proscribed his behavior and that to continue it could lead to revocation.

The defendant did not receive fair warning from Hughes, either. Hughes testified that he spoke with the defendant in late May about the distance note-taking could put between him and the other members during therapy sessions. Hughes did not testify that he fully explained the ramifications of disregarding the directive to cease taking notes. Indeed, Hughes testified that it was of little moment, in his opinion, that the defendant took notes during sessions. If Hughes viewed this behavior as minor, it is unlikely he expressed to the defendant that ignoring the request would result in a violation. Furthermore, the defendant’s note-taking was not a condition of probation that he was charged with violating. Hughes did not testify that he ever spoke to the defendant about conversations outside of group therapy. Kuziak informed Hughes only of the defendant’s July 1, 1998 threats to subpoena members and to transcribe his notes. Hughes and special services made the decision to discharge the defendant the following day after learning of those threats. There could not have been fair warning to the defendant that the behavior alleged to be a violation of a condition could result in a termination of probation because the discharge occurred immediately after special services learned of the defendant’s discussions outside therapy sessions.

The state does not direct us to testimony from any witness that contradicts the defendant’s claim that no one made him fully aware of the ramifications of speaking with other group members. There were no comprehensive explanations, let alone repeated explanations. There was no urging from a court. There was no therapist who put the defendant on actual notice that his behavior compromised the sex offender treatment and, more importantly, that it threatened his continued conditional freedom. Kuziak knew the counselors were upset with the defendant’s conduct, knew that his behavior was problematic, but never voiced any of those concerns to the defendant. Due process requires more than silence and ambivalence.

The state cites State v. Welch, 40 Conn. App. 395, 671 A.2d 379, cert. denied, 236 Conn. 918, 673 A.2d 1145 (1996), for the proposition that the defendant was fully aware of the need to conform his conduct to special services’ requirements or face termination. We find this claim unconvincing. First, we note that Welch did not involve a due process notice challenge, but rather an insufficiency of the evidence claim. Even if the question had been a due process claim, the notice would likely have been found sufficient because the condition violated, no unsupervised contact with children, was specifically set out in the sex offender treatment program’s form contract. Although the condition of probation as established by the sentencing court in Welch was the same as in the present case, namely a requirement that the defendant obtain sex offender treatment, the cases are otherwise dissimilar-. We find it significant that one of the counselors in Welch informed the defendant that to remain in the program, he would have to honor the contract he had signed proscribing any unsupervised contact with children. Id., 397.

The defendant here did not refuse treatment. Special services refused to treat him. The defendant’s circular box was that there could be an automatic violation of the condition of probation that he obtain sex offender treatment if special services discharged him from treatment for any reason not specifically listed in their contract. A gamut of behavior or conduct prohibited but not listed might include the wearing of inappropriate clothing to meetings, the display of tattoos, the piercing of one’s face or body, a particular facial hair or hair style, or hair coloring, on the ground that they are distracting and inimical to treatment. See id., 400 n.4. Because the defendant had no fair notice of the condition with which he was charged as having violated and the existing conditions could not reasonably be interpreted to include the condition with which he was charged as having violated, it was invalid as a condition.

The judgment finding the defendant guilty of a violation of probation is reversed and the case is remanded with direction to render judgment in favor of the defendant.

In this opinion the other judges concurred.

       General Statutes § 53a-32 provides in relevant part: “(a) At any time during the period of probation .... the court or any judge thereof may issue a warrant for the arrest of a defendant for violation of any of the conditions of probation .... Thereupon, or upon an arrest by warrant as herein provided, the court shall cause the defendant to be brought before it without unnecessary delay for a hearing on the violation charges. At such hearing the defendant shall be informed of the manner in which he is alleged to have violated the conditions of his probation . . . shall be advised by the court that he has the right to retain counsel and, if indigent, shall be entitled to the services of the public defender, and shall have the right to cross-examine witnesses and to present evidence in his own behalf.
      “(b) If such violation is established, the court may: (1) Continue 1he sentence of probation ... (2) modify or enlarge the conditions of probation ... (3) extend the period of probation . . . provided the original period with any extensions shall not exceed the periods authorized by section 53a-29; or (4) revoke the sentence of probation .... If such sentence is revoked, the court shall require the defendant to serve the sentence imposed or impose any lesser sentence. Any such lesser sentence may include a term of imprisonment, all or a portion of which may be suspended entirely or after a period set by the court, foEowed by a period of probation with such conditions as the court may estabEsh. No such revocation shaE be ordered, except upon consideration of the whole record and unless such violation is estabhshed by the introduction of reEable and probative evidence and by a preponderance of the evidence.”

       Although the defendant faüed to preserve these two issues properly, we review them pursuant to State v. Golding, 213 Conn. 233, 239-40, 567 A.2d 823 (1989). There is an adequate record and the claim is of constitutional magnitude.

       In view of our conclusion that the defendant was denied due process, we need not reach this claim.

       The court imposed the standard ten conditions of probation and six additional, court-ordered special conditions: (1) sex offender treatment, (2) substance abuse evaluation and treatment as deemed necessary, (3) psychological-psychiatric evaluation and treatment as deemed necessary, (4) no unsupervised contact with children under eighteen years old, (5) no contact with 1he victim and (6) restitution up to $1500 for verified, unreimbursed uninsured expenses.

       Special services contracts with the stale’s office of adult probation to provide sex offender treatment to those probationers referred for assessment and treatment. It conducts group therapy sessions in the office of adult probation.

       In relevant part, the treatment contract provided: “I agree to fully participate in treatment sessions. I agree to comply with agency expectations regarding capacity to pay for services.” The final provision stated: “I understand and agree that any violation of the conditions (1-10) of litis contract may be grounds for termination from the program at the discretion of the staff. I also understand that my probation/parole officer and/or [department of children and families] worker may be notified immediately of any violation of this contract.” With the exception of the two provisions noted above, regarding full participation and payment, conditions one through ten are not relevant to this appeal.

       According to the progress reports of special services, his absences from a few sessions were generally attributable to illness and therefore were excused. The defendant never exceeded the two allowable clinical misses during a twelve month period.

       During the probation revocation hearing, a letter indicating that special services encourages note-taking was introduced as an exhibit.

       The defendant denied the accusation, and evidence at the probation violation hearing conflicted as to whether the defendant did indeed place bets.

       Each member of the sex offender treatment program is assessed a fee for services based on a sliding fee scale. Special services originally had assessed the defendant's fee at $5 per session. It subsequently raised it without incident to $7.

       The grievance letter also alleged that the New Haven special services staff continually threatened the group members with violations and reincarceration if they refused to follow orders. The defendant's grievance letter also states that his notes document the civil rights violations that he had suffered at special services over the past three years.

       The fee reassessment portion of the final progress report, written by Hughes, seems to conflict squarely with the discharge letter Hughes drafted several days later. See footnote 13. The note also appears at odds with Kuzialc’s testimony that Hughes informed her on July 2,1998, that the defendant refused to sign the new fee agreement.

       The discharge letter addressed to Kuziak read:
      “We discharged Mr. Reilly from specialized sex offender treatment here at Special Services.
      “Considering that Mr. Reilly told you he discussed impending court action with group members in conversations outside of treatment meetings, and that he has told them they will be brought into the court for testimony, we have concluded that Mr. Reilly has violated his treatment contract. In essence, his conversations outside of group are considered threatening behavior which adversely affect the treatment of the other group members. In addition, we recently reassessed Mr. Reilly’s fee and raised it to the $15 minimum. However, Mr. Reilly refused to sign his new fee agreement. Again, Mr. Reilly has failed to comply with treatment expectations.
      “Sex offender treatment involves the confrontation of inappropriate behavior and patterns of thinking. Members are required to keep the discussion of their therapeutic issues within the structured group setting. When members begin working their issues out by engaging in side conversations outside group, the therapeutic value of the session is compromised. Worse, when members engage in threatening behavior outside of group the other participants are harmed and cannot effectively participate in treatment.”

       That determination implies that the condition was valid and that the defendant had fair notice of it.

       The discharge letter from special services did not cite note-taking as a reason for discharge, nor did the state’s information that charged the defendant with a probation violation. The note-taking is only obliquely involved in the defendant’s threat to use his notes in connection with a lawsuit he was contemplating bringing against special services.

       General Statutes § 53a-32 enumerates the due process protections attendant to a probationer’s opportunity to be heard during a revocation hearing. See footnote 1.

       Even if the conduct is proscribed by a condition in a noncriminal case, the defendant is entitled to fair warning that his liberty is at risk if he violates the condition. United States v. Gallo, supra, 20 F.3d 10.

       A statutory exception to actual notice where the behavior is noncriminal exists in cases where the defendant is ordered to undergo sex offender treatment but refuses to acknowledge that he committed the acts with which he is charged. In such cases, the defendant is deemed to be in violation of a condition of probation. General Statutes § 53a-32a.

       General Statutes § 53a-30 (b) specifically allows the office of adult probation to require the defendant to comply with any conditions a court could have imposed so long as this condition is not inconsistent with any condition actually imposed by the court.

       One condition bound him to “comply with agency expectations regarding capacity to pay for services.” As noted previously, however, the court specifically excluded from its finding a violation of this condition.

       During the violation of probation hearing, the state asked Kuziak how she responded when the defendant disclosed his desire to transcribe his notes and subpoena witnesses. The following colloquy took place:
      “Q. Did you make any comment relative to those comments he made to you?
      “A. Not at that point.
      “Q. Why not?
      “A. I wanted to discuss it with Lynn Anderson and Jim Hughes.”

       It is not even clear that Hughes himself understood the ramifications of the defendant’s discharge. At the violation of probation hearing, Hughes was asked about the discharge:
      “Q. But as being discharged from special services he violates his probation, is that not correct?
      “A. I have no idea, that’s up to his probation officer.”

       In fact, on June 11, 1998, the defendant requested a transfer to the Middletown sex offender group from the New Haven sex offender group.

       We need not reach the question of whether, had the defendant received fair notice, the behavior found to have occurred could be a valid condition of probation on the basis of free speech considerations.


author: LAVERY, C. J.

text:
    IN RE DARNEL S.

    (AC 18608)
    Lavery, C. J., and Schaller and O’Connell, Js.
    Argued September 12
    November 14, 2000

      Robert J. Meredith, deputy assistant public defender, with whom was Christine Perm Rapillo, supervisory assistant public defender, for the appellant (respondent).

      Toni M. Smith-Rosario, assistant state’s attorney, with whom, on the brief, were James E. Thomas, state’s attorney, and Brian L. Casinghino, juvenile prosecutor, for the appellee (petitioner).

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

   Opinion

LAVERY, C. J.

The respondent, a minor, appeals from the trial court’s judgment adjudicating him a delinquent for having committed the crimes of risk of injury to a child in violation of General Statutes § 53-21 and attempt to commit sexual assault in the first degree in violation of General Statutes §§ 53a-49 and 53a-70 (a) (2). On appeal, the respondent claims that the court improperly granted the state’s motion to amend the petition by adding the latter of the two counts on which he was subsequently found to be delinquent when the trial was already in progress. We affirm the judgment of the trial court.

The following facts and procedural history are relevant to this appeal. The victim, then five years old, was in her brother’s room on October 26, 1997, when the respondent, then twelve years old, entered the room. The respondent pulled down the victim’s pants and caused contact between their respective genital areas. That hurt the victim, causing her to cry out.

The victim reported the incident to her mother the same day. The victim’s mother then called the police concerning this incident. As a result, the state filed a petition alleging that the respondent was a delinquent for having committed one count of sexual assault in the first degree in violation of § 53a-70 and one count of risk of injury to a child in violation of § 53-21.

The trial of this matter took place in February, 1998, in the Superior Court, Juvenile Matters, at Hartford. On the opening day of the trial, following the testimony of the victim and two other witnesses, the state made an oral motion to amend its petition to add a third count, charging the respondent with attempt to commit sexual assault in the first degree in violation of §§ 53a-49 and 53a-70 (a) (2). After considering briefs from both parties and conducting a hearing, the court granted the motion.

After trial, the court found that the respondent had committed risk of injury to a child and attempt to commit sexual assault in the first degree, adjudicated him a delinquent, and sentenced him to probation and a suspended commitment to the department of children and families (department). This appeal followed. The respondent claims in his appeal that the court improperly permitted the state to amend the petition to include the charge of attempt to commit sexual assault in the first degree. We disagree.

The following additional facts and procedural history are necessary to our resolution of this claim. At trial, the victim testified, and one witness corroborated, that the respondent had actually initiated and caused contact between their respective genital areas. A second corroborating witness stated, however, that the victim had recounted that the respondent had attempted such contact, rather than that it had actually taken place. Because that testimony called into question whether such contact, an element of the crime of sexual assault in the first degree, had actually taken place or had merely been attempted, the state made an oral motion to amend the delinquency petition to add the charge of attempt to commit sexual assault in the first degree.

Defense counsel made a timely objection to the state’s motion to amend the petition. Subsequently, at the request of the court, the state filed a written motion to amend the petition, and both parties filed briefs on the issue. The state’s attorney represented that it had been his understanding that there had been actual penetration, an element of the crime of sexual assault in the first degree, and that he was surprised by that aspect of the testimony. Since there was a question as to whether penetration had taken place, the state’s attorney indicated that the charge of attempt to commit sexual assault in the first degree would be appropriate. After a hearing, the court granted the state’s motion, finding that the proposed amendment met the requirements articulated by our Supreme Court in In re Steven G., 210 Conn. 435, 444-45, 556 A.2d 131 (1989).

On appeal, the respondent argues that the court improperly granted the state’s motion to amend the petition to include an additional charge after the commencement of the trial on the original charges. The respondent claims that this was improper because it violated his right to “fundamental fairness” in juvenile proceedings as set forth in In re Steven G., supra, 210 Conn. 443-44. We disagree.

“There is no doubt that the Due Process Clause is applicable in juvenile proceedings. The problem, we have stressed, is to ascertain the precise impact of the due process requirement upon such proceedings. In re Gault, [387 U.S. 1, 13-14, 87 S. Ct. 1428, 18 L. Ed. 2d 527 (1967)]. We have held that certain basic constitutional protections enjoyed by adults accused of crimes also apply to juveniles. See [id., 31-57] (notice of charges, right to counsel, privilege against self-incrimination, right to confrontation and cross-examination); In re Winship, 397 U.S. 358, 90 S. Ct. 1068, 25 L. Ed. 2d 368 (1970) (proof beyond a reasonable doubt); Breed v. Jones, 421 U.S. 519, 95 S. Ct. 1779, 44 L. Ed. 2d 346 (1975) (double jeopardy). But the Constitution does not mandate ehmination of all differences in the treatment of juveniles. See, e.g., McKeiver v. Pennsylvania, 403 U.S. 528, 91 S. Ct. 1976, 29 L. Ed. 2d 647 (1971) (no right to jury trial). The State has a parens patriae interest in preserving and promoting the welfare of the child . . . which makes a juvenile proceeding fundamentally different from an adult criminal trial. We have tried, therefore, to strike a balance—to respect the informality and flexibility that characterize juvenile proceedings . . . and yet to ensure that such proceedings comport with the fundamental fairness demanded by the Due Process Clause. . . .

“In In re Gault, the United States Supreme Court ruled that although a juvenile delinquency hearing need not conform with all the requirements of a criminal trial or even of the usual administrative hearing, [such a] hearing must measure up to the essentials of due process and fair treatment. . . . The right to adequate notice of the charges is among the essentials of due process and fair treatment that the In re Gault court held applicable to juvenile delinquency proceedings. . . . Notice must be given to the child and his parents or guardian ... in writing ... at the earliest practicable time, and in any event sufficiently in advance of the hearing to permit preparation and must contain the specific charge or factual allegations to be considered at the hearing. . . .

“Despite the state’s assertions to the contrary, there can be no question that a midtrial amendment to an information adding different charges in an adult criminal proceeding is violative of due process. . . . The state’s right to amend must be limited to substitutions that do not charge the defendant with an additional or different offense because the defendant has a constitutional right to fair notice, prior to the commencement of trial, of the charges against which he must defend himself. ... In re Gault, however, did not address the issue of midtrial amendments to charges in juvenile delinquency proceedings.” (Citations omitted; internal quotation marks omitted.) In re Steven G., supra, 210 Conn. 440-42. Because the Supreme Court has made it plain that the trial court’s granting of permission to amend the delinquency petition implicates constitutional issues of due process, our review of the claim raised here is de novo.

In In re Steven G., 14 Conn. App. 205, 540 A.2d 107 (1988), aff'd, 210 Conn. 435, 556 A.2d 131 (1989), this court and our Supreme Court considered an issue and a factual setting almost identical to that presented in this case. In In re Steven G., as in this case, the state’s request to add the additional charge was prompted by “surprise testimony on the first day of the hearing . . . .” (Internal quotation marks omitted.) In re Steven G., supra, 210 Conn. 444. In In re Steven G., the trial court continued the case after allowing the amendment. Id. In this case, the court offered the respondent the opportunity to restart the trial from the beginning, a continuance to prepare for trial on the additional charge and leave to recall witnesses previously called by the state should he desire to ask additional questions in light of the amendment. The respondent declined all of those choices.

The respondent contends that the amendment of the petition following the start of trial violated the requirement set forth by the United States Supreme Court in In re Gault, supra, 387 U.S. 33, that “notice be given at the earliest practicable time, and in any event sufficiently in advance of the hearing to permit preparation.” Our Supreme Court’s response to the same contention in In re Steven G. is appropriate here. “Because Practice Book § 1029 [became § 1055.1 (3), now § 35-1 (c)], requires a continuance if the new allegations justify additional time for preparation, and because the trial court [offered] a continuance, we conclude that the respondent was given notice ‘at the earliest practicable time . . . sufficiently in advance of the scheduled court proceedings. In re Gault, supra, 33. Nothing in In re Gault establishes aper se rule forbidding amidtrial amendment to a petition of delinquency adding substantively different charges arising out of the same incident.” In re Steven G., supra, 210 Conn. 446.

In this case, not only did the additional charge arise out of the same act in that the additional charge alleged an attempt rather than the completed act, but it encompassed the same set of facts as the risk of injury charge on which the respondent also was adjudged delinquent. The only surprise was the testimony of one of the constancy of accusation witnesses, who stated that the victim told her that what happened was an attempt rather than a completed act. We thus conclude that the court properly permitted the state to amend the petition to add a count that more properly reflected the evidence adduced at trial.

The judgment is affirmed.

In this opinion the other judges concurred.

       General Statutes § 53-21 provides in relevant part: “Any person who . . . (2) has contact with the intimate parts ... of a child under the age of sixteen years or subjects a child under sixteen years of age to contact with the intimate parts of such person, in a sexual and indecent manner likely to impair the health or morals of such child . . . shall be guilty of a class C felony.”

       General Statutes § 53a-49 (a) provides in relevant part: “A person is guilty of an attempt to commit a crime if, acting with the kind of mental state required for commission of the crime, he . . . (2) intentionally does or omits to do anything which, under the circumstances as he believes them to be, is an act or omission constituting a substantial step in a course of conduct planned to culminate in his commission of the crime.”

       General Statutes § 53a-70 (a) provides in relevant part: “A person is guilty of sexual assault in the first degree when such person . . . (2) engages in sexual intercourse with another person and such other person is under thirteen years of age and the actor is more than two years older than such person . . . .”

       We note in passing that the standard of due process articulated by our Supreme Court in In re Steven <?., and not the rules articulated in General Statutes § 54-60 and Practice Book §§ 36-18 and 42-29, which apply to adult criminal trials and not to juvenile delinquency trials, governs this case. See In re Steven G., supra, 210 Conn. 443 (explaining the distinctions between the two types of trials).

       Count two of the petition, as elaborated on by the state in its response to the respondent’s motion for a bill of particulars, alleged that the respondent “had contact with the genital area, groin, anus, inner thighs or buttocks of [the victim], who was five years of age, or subjected [the victim] to contact with the intimate parts of such person, in a sexual and indecent manner likely to impair the health or morals of such child . . .


text:
    DAVID POLLITT v. COMMISSIONER OF CORRECTION
    (AC 19779)
    Sclialler, Zarella and Pellegrino, Js.
    Submitted on briefs September 15
    officially released November 14, 2000

      Del Atwell, special public defender, filed a brief for the appellant (petitioner).

      James E. Thomas, state’s attorney, Christopher T. Godialis, assistant state’s attorney, and James A. Kil-len, supervisory assistant state’s attorney, filed a brief for the appellee (respondent).
   Opinion

PER CURIAM.

The petitioner, David Pollitt, appeals from the judgment of the habeas court denying his petition for certification to appeal, filed pursuant to General Statutes § 52-470 (b), following the denial of his petition for a writ of habeas corpus.

On April 7, 1983, in the judicial district of New London, the petitioner was convicted of five counts in two informations, for which he received an effective sentence of twenty-eight years imprisonment. On November 18, 1983, in the judicial district of New Haven, the petitioner was convicted of two counts in one information, for which he received an effective sentence of thirty-five years imprisonment, to run concurrently with the New London sentence. On November 29, 1984, in the judicial district of Hartford, the petitioner pleaded guilty to two counts in two informations, for which he received an effective sentence of seventeen years imprisonment, to run concurrently with the New Haven sentence and consecutive to the New London sentence. In all, the petitioner’s total effective sentence was forty-five years imprisonment.

In his petition for a writ of habeas corpus, the petitioner claimed that he was denied the light to effective trial counsel because his total effective sentence of forty-five years for the New London, New Haven and Hartford convictions was not in accordance with his plea agreement in the Hartford prosecution. The court denied the petition on the ground that at the sentencing hearing in the Hartford case, “[b]oth attorneys [the assistant state’s attorney and the petitioner’s counsel] acknowledged on the record in the presence of the petitioner that such sentence was the goal of the plea bargain.” The petitioner thereafter moved for certification to appeal from the court’s judgment pursuant to § 52-470 (b), which the court denied “as wholly frivolous.”

“Faced with the habeas court’s denial of certification to appeal, a petitioner’s first burden is to demonstrate that the habeas court’s ruling constituted an abuse of discretion. ... If the petitioner succeeds in surmounting that hurdle, the petitioner must also demonstrate that the judgment of the habeas court should be reversed on its merits.” (Citations omitted.) Simms v. Warden, 230 Conn. 608, 612, 646 A.2d 126 (1994).

On the basis of our review of the record and briefs, we conclude that the petitioner failed to sustain his burden of persuasion that the habeas court’s denial of his petition for certification to appeal was a clear abuse of discretion or that an injustice has been committed. The petitioner further failed to make a substantial showing that he was denied a state or federal constitutional right. See Simms v. Warden, supra, 230 Conn. 612; see also Lozada v. Deeds, 498 U.S. 430, 431-32, 111 S. Ct. 860, 112 L. Ed. 2d 956 (1991); Johnson v. Commissioner of Correction, 58 Conn. App. 729, 730-31, 754 A.2d 849 (2000).

The appeal is dismissed.

       General Statutes § 52-470 (b) provides in relevant part: “No appeal from the judgment rendered in a habeas corpus proceeding brought in order to obtain his release by or in behalf of one who has been convicted of crime may be taken unless the appellant, within ten days after the case is decided, petitions the judge before whom the case was tried ... to certify that a question is involved in the decision which ought to be reviewed by the court having jurisdiction and the judge so certifies.”

       In docket number CR10-122858, the petitioner was convicted of burglaiy in the first degree in violation of General Statutes § 53a-101 (a) (2) and attempt to commit sexual assault in the first degree in violation of General Statutes §§ 53a-49 and 53a-70 (a). In docket number CR10-122995, the petitioner was convicted of sexual assault in the first degree in violation of § 53a-70, robbery in the third degree in violation of General Statutes § 53a-136 and larceny in the fourth degree in violation of General Statutes § 53a-125. Our Supreme Court affirmed these convictions in State v. Pollitt, 205 Conn. 61, 530 A.2d 155 (1987).

       The petitioner was convicted of kidnapping in the first degree in violation of General Statutes § 53a-92 (a) (2) (A) and sexual assault in the first degree in violation of General Statutes § 53a-70. Our Supreme Court upheld that conviction in State v. Pollitt, 205 Conn. 132, 531 A.2d 125 (1987).

       The defendant was charged with two counts of sexual assault in the first degree in violation of General Statutes § 53a-70, one in docket number CR15-73131 and the second in docket number CR15-70569.

       We note that the petitioner was represented by the same attorney in all three prosecutions.


text:
    ADMINISTRATOR, UNEMPLOYMENT COMPENSATION ACT, ET AL. v. WILLIAM F. MOFFETT ET AL.
    (AC 19549)
    Lavery, C. J., and Foti and Peters, Js.
    Submitted on briefs September 26
    officially released November 14, 2000

      Richard T. Sponzo, assistant attorney general, Richard Blumenthal, attorney general, and Jane S. Scholl, associate attorney general, filed a brief for the appellant (intervening defendant employment security appeals division board of review).

      Thadd A. Gnocchi, assistant attorney general, Richard Blumenthal, attorney general, and Charles A. Over-end, assistant attorney general, filed a brief for the appellee (plaintiff administrator, Unemployment Compensation Act).
   Opinion

PER CURIAM.

The intervening defendant employment security appeals division board of review (board) appeals from the judgment of the trial court rendered in favor of the plaintiff administrator, Unemployment Compensation Act (administrator). The board claims that the court improperly ruled that pursuant to General Statutes § 31-236 (a) (2) (B), an employee who steals property valued at $25 or less may not be disqualified from receiving unemployment benefits on the basis of larceny, but may be disqualified for wilful misconduct. We affirm the judgment of the trial court.

The following facts and procedural history are relevant to the issue raised in this appeal. This case involves seven consolidated appeals from decisions of the board on claims of eligibility for unemployment compensation benefits. After being discharged for larceny of property worth $25 or less, the seven individual claimants applied for unemployment benefits to the administrator pursuant to General Statutes § 31-241. The administrator granted the benefits, and the claimants’ respective employers appealed the decisions to the employment security appeals referees. The referees affirmed the granting of benefits. The administrator thereafter, appealed to the board on behalf of the employers. The board rendered decisions holding that the claimants were eligible for benefits pursuant to § 31-236 (a) (2) (B), because a discharge for larceny of property not exceeding $25 in value is a nondisqualifying discharge. The administrator appealed the board’s decisions to the trial court. The board intervened in all appeals. The cases were then consolidated as raising the same legal issue.

On April 19, 1999, the court rendered judgment sustaining the administrator’s appeal. The court ruled that the decision of the board concluding that the defendant claimants were eligible for unemployment benefits was improper. Therefore, the court remanded the matter to the board to vacate its decision. The court determined in its memorandum of decision that pursuant to § 31-236 (a) (2) (B), an employee who steals property valued at $25 or less may not be disqualified from receiving unemployment benefits on the basis of larceny, but may be disqualified under that statute for wilful misconduct. The court ruled that a theft of $25 or less of property or services, clearly not a disqualifying act of larceny, can constitute a disqualifying act of wilful misconduct. This appeal followed.

Our examination of the record and briefs and our consideration of the parties’ arguments persuades us that the judgment of the trial court should be affirmed. The issue presented at trial was resolved properly in the court’s thoughtful and comprehensive memorandum of decision. See Administrator, Unemployment Compensation Act v. Moffett, 46 Conn. Sup. 579, 760 A.2d 1287 (1999). Because that decision fully addresses the argument raised in this appeal, we adopt it as a proper statement of the facts and the applicable law on that issue. See Cuyler v. Board of Education, 59 Conn. App. 339, 340, 757 A.2d 635 (2000).

The judgment is affirmed.

       We note that the office of the attorney general is counsel on both sides of this appeal. This court does not look with favor on the office of the attorney general representing both sides in the same case.

       General Statutes § 31-236 (a) provides in relevant part: “An individual shall be ineligible for benefits . . . (2) . . (B) if, in the opinion of the administrator, he has been discharged or suspended for felonious conduct, conduct constituting larceny of property or service, the value of which exceeds twenty-five dollars, or larceny of currency, regardless of the value of such currency, wilful misconduct in the course of his employment, just cause, or participation in an illegal strike as determined by state or federal laws or regulations, until such individual has earned at least ten times his benefit rate . . . .”


text:
    MICHAEL KALUSZKA v. TOWN OF EAST HARTFORD ET AL.
    (AC 19554)
    Landau, Schaller and Callahan, Js.
    Argued September 25
    officially released November 14, 2000

      Janis M. Small, corporation counsel, for the appellants (defendants).

      Ralph D. Sherman, for the appellee (plaintiff).
   Opinion

PER CURIAM.

The defendants, the town of East Hartford (town) and its mayor and chief of police, appeal from the judgment rendered by the trial court in this declaratory judgment action. On appeal, the defendants claim that the court improperly decided that the legislature has preempted municipalities from regulating hunting within their boundaries and that § 13-33 (b) (5) of the code of ordinances of the town of East Hartford conflicts with General Statutes § 26-27c. We affirm the judgment of the trial court for the reasons set forth in the court’s comprehensive memorandum of decision.

On September 2,1997, the plaintiff, Michael Kaluszka, commenced a declaratory judgment action against the defendants seeking to have § 13-33 of the code of ordinances of the town of East Hartford declared invalid to the extent that the ordinance regulates hunting and to enjoin the mayor and the chief of police from enforcing § 13-33 to the extent that such ordinance regulates hunting that is otherwise lawful under state statutes and regulations. The plaintiff is a resident of the town and has a valid hunting license issued by the department of environmental protection (department). The plaintiff alleges that § 13-33 operates to regulate and prohibit hunting within the town, except as specified in § 13-33 (b) (5). He further alleges that General Statutes § 26-3 et seq. authorizes the commissioner of the department to regulate hunting in the state. He also alleges that the town does not have the legal authority to regulate hunting and that the mayor and chief of police are charged ex officio with enforcing the ordinance.

Alter the pleadings were closed, the plaintiff filed a motion for summary judgment on the ground that the town lacked authority to enact the disputed ordinance. The defendants objected to the plaintiffs motion for summary judgment and filed a cross motion for summary judgment with affidavits, claiming that § 13-33 is a firearms regulation ordinance and that the prohibition of § 13-33 does not apply to hunting areas that comply with state regulations and have been approved by the chief of police. The court rendered summary judgment in favor of the plaintiff, declaring that the legislature has preempted municipalities from regulating hunting and that § 13-33 is invalid to the extent that it operates to regulate hunting. The defendants appealed.

On the basis of our examination of the record and briefs, we are persuaded that the judgment of the court should be affirmed. The issues regarding the underlying dispute were resolved properly in the trial court’s thoughtful and comprehensive memorandum of decision. See Kaluszka v. East Hartford, 46 Conn. Sup. 588, 760 A.2d 1282 (1999). Because that memorandum of decision fully addresses the arguments raised in this appeal, we adopt it as a proper statement of the facts and the applicable law on those issues. It would serve no useful purpose for us to repeat the discussion contained therein. See East v. Labbe, 54 Conn. App. 479, 480-81, 735 A.2d 370 (1999), aff'd, 252 Conn. 359, 746 A.2d 751 (2000); In re Karrlo K., 40 Conn. App. 73, 75, 668 A.2d 1353 (1996).

The judgment is affirmed.

       The mayor is Robert M. DeCrescenzo and the chief of police is James Shay.

       Section 13-33 of the code of ordinances of the town of East Hartford provides in relevant part: “(a) No person shall discharge any firearm, rifle, C02 gun, air gun, BB gun, sling shot, or bow and arrows, within the Town.
      “(b) This Section shall not apply to the following circumstances ... (5) In an area recommended as a hunting area by the State and approved by the Chief of Police. Such area shall be posted as required by the Chief of Police and may be closed at any time by the Chief of Police . . . .”

       General Statutes § 26-67c provides: “(a) The Commissioner of Environmental Protection shall maintain a record of all written complaints received by the department of violations of the regulations concerning hunting in proximity to buildings occupied by persons or domestic animals or used for storage of flammable or combustible materials or the regulations regarding shooting towards persons, buildings or animals. The commissioner shall hold a hearing at least once annually, in accordance with the provisions of chapter 54, at which changes in such regulations for particular localities shall be considered. The commissioner may amend such regulations for a particular locality where he finds that: (1) The physical setting of aparticular locality presents an unreasonable risk that hunters may violate the regulations regarding hunting in proximity to buildings occupied by persons or domestic animals or used for storage of flammable or combustible materials or the regulations regarding shooting towards persons, buildings or animals or (2) a record of documented complaints reveals that violations of such regulations occur with significant frequency.
      “(b) The chief law enforcement official for each municipality, or his designee, shall maintain a record of all complaints received by such official in each calendar year regarding any potential hazard to public safety related to any hunting activity and shall submit such record to the Commissioner of Environmental Protection annually. Such record shall be maintained separately from all other records of complaints received by such official. After an investigation of any such complaint, if the chief law enforcement official determines that aparticular hunting activity in aparticular location poses a hazard to public safety, he shall submit a written report of such determination to the Commissioner of Environmental Protection.
      “(c) On or before February 1, 1995, and annually thereafter, the Commissioner of Environmental Protection shall submit a report to the joint standing committee of the General Assembly having cognizance of matters relating to the environment which sets forth for the preceding year ending December thirty-first the number of complaints received and investigations conducted along with the action taken.”


text:
    DORINA CUTLER ET AL. v. ANTOINETTA D. GREENBERG, EXECUTRIX (ESTATE OF ANTONIO AGOSTINELLI) DORINA CUTLER ET AL. v. LAWRENCE J. GREENBERG
    (AC 20118)
    SchaUer, Pellegrino and Dupont, Js.
    Argued September 14
    officially released November 14, 2000

      Dorina Cutler, pro se, and Yolanda Jablonski, pro se, the appellants (plaintiffs in each case).

      James C. Delaney, with whom, on the brief, was James F. Cirillo, Jr., for the appellee (defendant in the first case).

      Lawrence J. Greenberg, pro se, the appellee (defendant in the second case).
   Opinion

PER CURIAM.

The plaintiffs, Dorina Cutler and Yolanda Jablonski, appeal from the judgment of the trial court in the first case affirming the Hamden Probate Court order approving the accounting and distribution of assets in the estate of Antonio Agostinelli, and from the judgment in the second case in favor of the defendant, Lawrence J. Greenberg, who represented the executrix of the estate. The plaintiffs present sixteen issues on appeal, eight relating to the probate order and eight relating to their action for damages against Lawrence J. Greenberg. The vast majority of the issues on appeal challenge the factual findings of the trial court. We affirm the judgments of the trial court.

The court’s memorandum of decision thoughtfully and comprehensively outlines the facts and rather lengthy history of this appeal. We recite the necessary, relevant facts as found by the court as we discuss the issues.

I

We first consider the eight issues related to the appeal from the Probate Court order. The plaintiffs first claim that the court misinterpreted the reasons for the appeal and improperly treated the case as one seeking damages.

Although the prayer for relief stated that “the plaintiffs ask that the title of all the disputed assets be determined and . . . returned to the estate,” the court properly determined that the case was an appeal from a probate order pursuant to General Statutes § 45a-186 (a). The court heard evidence and treated the case as a trial de novo, not as an action for damages. The court comported fully with statutory prescriptions, and the plaintiffs enjoyed every right guaranteed to them by statute.

The plaintiffs’ second claim involves a subpoena ordering Della Greenberg, the executrix of the estate, to turn over certain documents. The plaintiffs assert that the Probate Court failed to order her to comply with the subpoena. It does not appear that the plaintiffs properly preserved this issue on appeal, as we find no mention of it in the memorandum of decision, although the memorandum hints at documents subject to the subpoena. An appellate court is powerless to review a case on a theory on which it was not tried and decided by a lower court. Lashgari v. Lashgari, 197 Conn. 189, 196, 496 A.2d 491 (1985).

Moreover, the record does not reveal a request by the plaintiffs to enforce the subpoena. Enforcement of a subpoena is not self-executing in the event that a subpoenaed party fails or refuses to comply. We cannot ascribe impropriety to a court’s failure to order compliance when those seeking enforcement never notified the court of noncompliance nor asked for compliance.

The plaintiffs’ third claim concerns a default entered against Della Greenberg. The plaintiffs filed a motion for default for failure to plead, which the court granted on January 19, 1999. The defaulted party, Della Greenberg, still had the opportunity to plead, however, even after the court granted the plaintiffs’ motion. The rules of practice permit a defaulted party to file an answer and have the default set aside so long as that answer is filed before the court renders a default judgment. Practice Book § 17-32. Here, the court never rendered a default judgment. Therefore, when Della Greenberg filed her answer and special defenses on February 2, 1999, the default was vacated, or no longer effective. The court determined correctly that the filing of the answer vacated the default for failure to plead.

The plaintiffs’ fourth claim involves an alleged breach of Della Greenberg’s fiduciary duty owed to the plaintiffs as beneficiaries. The court specifically found that the plaintiffs failed to establish that the executrix did not communicate with or provide an accurate inventory of the estate to the beneficiaries. On appeal, the plaintiffs need to show that the court’s failure to find a breach of a fiduciary duty was clearly erroneous. Spector v. Konover, 57 Conn. App. 121, 126, 747 A.2d 39, cert. denied, 254 Conn. 913, 759 A.2d 507 (2000). “A finding of fact is clearly erroneous when there is no evidence in the record to support it ... or when although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed.” (Internal quotation marks omitted.) State v. Hodge, 248 Conn. 207, 224, 726 A.2d 531, cert. denied, 528 U.S. 969, 120 S. Ct. 409, 145 L. Ed. 2d 319 (1999). The plaintiffs have failed to show that the court’s conclusion that the executrix’s actions satisfied the standard of care the law requires of fiduciaries was clearly erroneous. They have not offered any further evidence and we are, therefore, not left with the firm conviction that the court committed a mistake.

In their fifth issue, the plaintiffs maintain that the court improperly permitted Lawrence J. Greenberg, the defendant in the second of the two consolidated cases, to object during the direct examination of Della Greenberg. Lawrence J. Greenberg was appearing pro se and had the right to object to testimony offered by witnesses.

The plaintiffs’ sixth claim involves the issue of the decedent’s “in trust” bank accounts. The court declined to decide the issue because the parties already had adjudicated the claim in a prior Superior Court action. We find that the court acted properly. The record reveals that on January 11, 1995, the parties reached a settlement on this issue, and the corut rendered judgment pursuant to that settlement. The plaintiffs do not dispute that they each received $10,000 as consideration for forgoing this claim in 1995. The court, therefore, properly refused to revisit the issue, having determined that it already had been litigated by the parties.

The plaintiffs’ seventh claim attacks the court’s finding that they did not adequately prove inaccuracies in the administration account. When attacking a court’s finding of fact, a litigant must show that it is clearly erroneous, not merely disputable. Evans v. Commissioner of Correction, 37 Conn. App. 672, 677, 657 A.2d 1115, cert. denied, 234 Conn. 912, 660 A.2d 354 (1995). The plaintiffs have failed to do so. The court explicitly stated that it “[found these allegations] to be unproven.” The plaintiffs have not indicated why that conclusion is clearly erroneous, and we therefore decline to disturb the court’s finding.

The plaintiffs’ last claim in the appeal from the probate order relates to the appointment of Francis Lambo-ley as administrator of the estate. The plaintiffs argue in their principal brief that the court identified improperly the date of the appointment. The plaintiffs claim that the “memorandum of decision erred as to the appointment .... [It] was February 26, 1992, not May of 1993 . . . .” The court did refer to May, 1993, not as the date of appointment, but rather as the date that funds were turned over to Lamboley. Even if the court misunderstood the date of the appointment, we fail to see the magnitude of the error. The plaintiffs must show more than a misstated date.

II

We now turn to the eight issues related to the second of the two consolidated appeals, the action against Lawrence J. Greenberg. The plaintiffs’ first issue alleges that the court should not have found that the defendant acted properly in his representation of the estate. The plaintiffs argue that he failed to notify them that he represented the estate. In their argument, the plaintiffs mention a $3000 advance that the defendant allegedly solicited from them. They also allege that the defendant misrepresented the estate’s assets in asking for that advance.

The allegations of misrepresentation must fail for two reasons. First, the plaintiffs have not demonstrated any injury. They allege that the defendant asked for an advance, but they never honored the request. That being the case, the court correctly determined that the plaintiffs failed to show an injury or monetary loss. Second, the plaintiffs have not shown that the court was clearly erroneous in its finding that they had failed to demonstrate that the event occurred or, even if it had, that the defendant’s solicitation violated any standard of care. Absent a showing of injury and clear error, we do not disturb the judgment.

The plaintiffs’ second issue involves a claim of excessive fees in the defendant’s preparation of an estate inventory and a request that the plaintiffs relinquish their inheritance rights to the estate. The court stated that it “credits the testimony of the defendant that no such statements were ever made.” That finding of fact must stand unless the plaintiffs can show that it was clearly erroneous, which requires more than a statement in their brief asserting that the court was in error.

The plaintiffs’ third claim alleges that the court improperly determined that the defendant did not withhold assets. The court explicitly found that “the defendant did not wrongfully withhold any assets. Nor was there any wrongful request for fees. Moreover, the plaintiffs have failed to prove any such monetary losses.” The plaintiffs have not provided us with any evidence to show that the court’s conclusion was clearly erroneous. They appear to rely on a delay in turning over funds to the second successor-administrator, Lamboley. The court rejected, however, any claim that this delay constituted withholding assets. In its prior discussion of the issues related to the plaintiffs appeal from the Probate Court order, the court noted that “these funds were neither misused nor misapplied, only that they were turned over later than would have been expected if the administration of this estate had been free of conflict.” We remain unconvinced that this conclusion was clearly erroneous, and note the importance of the trial court’s role in fact-finding and assessing credibility. Berry v. Loiseau, 223 Conn. 786, 821, 614 A.2d 414 (1992).

In their fourth issue on appeal, the plaintiffs claim that the court rejected improperly their allegation that the defendant failed to inform the Probate Court of a safety deposit box and that he knowingly prepared a false affidavit. The plaintiffs again challenge findings of fact, but fail to show that those findings are clearly erroneous. The court thoughtfully considered this claim and determined that the defendant did not act improperly. The court found that the defendant assisted in the preparation of an inventory of the safety deposit box when he learned of its existence and that he had no knowledge of the affidavit’s inaccuracy. Moreover, the court noted that the defendant later prepared a corrected affidavit. The plaintiffs obviously disagree with those conclusions, but their disagreement alone is insufficient to show clear error.

The plaintiffs allege in their fifth issue that the court improperly determined that the defendant’s conduct caused the plaintiff Yolanda Jablonski to sign a quitclaim deed under duress. The court found, however, that the plaintiffs presented “no evidence that the defendant’s conduct was unprofessional or inappropriate in any way.” On appeal, the plaintiffs present none to us, either, aside from bare statements in their briefs that contradict the court’s memorandum of decision.

The sixth issue on appeal relates to the defendant’s bookkeeping and alleged negligence in handling the affairs of the estate. The plaintiffs did not adequately brief this issue. Their brief points us to no error, but instead recites various rules and procedures for maintaining records and filing taxes. Moreover, we find that the court was not clearly erroneous in its conclusion that the “plaintiffs did not prove that the defendant did any act that cheated them out of any money that was rightfully theirs.”

The seventh issue on appeal relates to the court’s statement concerning the date Lamboley was appointed successor-administrator. This issue is identical to the eighth issue in the appeal from the probate order discussed in part I of this opinion. For the same reasons enumerated in part I, we find that the court acted properly.

The last issue raised by the plaintiffs involves an allegation of bias and ex parte communications between Judge Killian, the judge involved with the probate order, and the defendant. The plaintiffs allege that Judge Killian belittled them, treated them like children and eventually became the defendant’s advocate. We first note that this issue was not raised before the trial court, and therefore the plaintiffs should not be able to raise it on appeal. Due to the severity of the allegation, however, we feel compelled to address it briefly. The record is wholly devoid of any evidence to support these allegations. The Superior Court and a grievance panel have found these allegations to be groundless and without merit. We agree.

The judgments are affirmed.

       The court consolidated both cases for trial.

       General Statutes § 45a-186 (a) provides in relevant part: “Any person aggrieved by any order, denial or decree of a court of probate in any matter, unless otherwise specially provided by law, may appeal therefrom to the Superior Court in accordance with subsection (b) of this section . . .

       We note that the plaintiffs seem to argue relative to this issue as weE that the court’s factual findings regarding the defendant’s testimony were clearly erroneous. “The defendant’s testimony was so contradictory that it could not have been the truth. The court aflowed the defendant such latitude that [this] in fact proved that the defendant did not teE the truth on the stand.” We reiterate our refusal to disturb the factual findings of a trial court unless those findings are clearly erroneous. Facts are not clearly erroneous merely because one party asserts that testimony was contradictory. Because the trial court is primarily vested with the power to malee credibflity determinations, the plaintiffs must do more than summarily state that a credibüity determination was wrong.

       In concluding their brief for the appeal from the probate decree, the plaintiffs sta1 e one misconception that we believe requires clarification. The plaintiffs appear to believe that the court found that they proved their claims by a preponderance of the evidence. That misunderstanding undoubtedly lies in the following statement in the memorandum of decision. “Also, notwithstanding that some of their claims against Della Greenberg sound in fraud, the court has determined the claims of the plaintiffs based on a standard of proof more favorable to them, by a preponderance of the evidence.” That sf atement simply identified the st andard of proof that t he court intended to apply to the facts of the plaintiffs’ case. Although some of the counts in the complaint appeared to sound in fraud, the court adopted a preponderance of the evidence standard on all claims. Fraud requires a higher standard of proof than preponderance of the evidence, that of “ ‘clear, precise and unequivocal.’ ” Barbara Weisman, Trustee v. Kaspar, 233 Conn. 531, 540, 661 A.2d 530 (1995). The court was only explaining that it would resolve the entire case using a standard of proof more favorable to the plaintiffs than the standard required in a fraud case. It was not a si atement that the court, had found the plaintiffs had proven their claims by apreponderance of the evidence.