author: MIHALAKOS, J.

text:
    STATE OF CONNECTICUT v. DANIEL J. OUELLETTE
    (AC 27531)
    Gruendel, Lavine and Mihalakos, Js.

      Argued April 28
    officially released September 23, 2008

      Richard A. Reeve, special public defender, with whom, on the brief, were Michael O. Sheehan, Cyd O. Oppenheimer and George G. Kouros, special public defenders, for the appellant (defendant).

      Timothy J. Sugrue, senior assistant state’s attorney, with whom, on the brief, was Scott J. Murphy, state’s attorney, for the appellee (state).
   Opinion

MIHALAKOS, J.

The defendant, Daniel J. Ouellette, appeals from the judgments of conviction, rendered after a jury trial, of robbery in the first degree in violation of General Statutes § 53a-134 (a) (3), conspiracy to commit robbery in the first degree in violation of General Statutes §§ 53a-48 and 53a-134 (a) (3), larceny in the second degree in violation of General Statutes § 53a-123 (a) (3), conspiracy to commit larceny in the second degree in violation of General Statutes §§ 53a-48 and 53a-123 (a) (3), assault in the second degree in violation of General Statutes § 53a-60 (a) (2), larceny in the fifth degree in violation of General Statutes § 53a-125a, and conspiracy to commit larceny in the fifth degree in violation of General Statutes §§ 53a-48 and 53a-125a. On appeal, the defendant claims that the court improperly (1) consolidated two cases pending against him, (2) charged the jury, (3) denied his motion for a new trial and (4) deprived him of his constitutional rights to due process and to a fair trial. We affirm the judgments of the trial court.

The jury reasonably could have found the following facts. On August 14, 2004, the victim, Carmela Interligi, was loading groceries into her car when she was approached by Pamela Levesque. Levesque produced a knife and demanded the victim’s purse. Although the victim resisted and suffered two cuts to her fingers, Levesque was able to reach inside the purse and remove the victim’s wallet. Levesque then fled to a nearby 1986 Chevrolet Monte Carlo, which was being operated by the defendant. She and the defendant then left the scene by car.

Shortly after the robbery, the defendant drove to the Wal-Mart store on Farmington Avenue in Bristol. Casey Keil, a loss prevention associate at Wal-Mart, observed the defendant stop in front of the store and Levesque exit the car and place a single credit card into her rear pocket. This conduct aroused Keil’s suspicions, and he followed her into the store, where she proceeded directly to the photography department and quickly chose a Sony camcorder. As Keil was observing Levesque, another Wal-Mart employee alerted him that the defendant had entered the store. Keil observed the defendant covertly watching Levesque purchase the camcorder, and, as Levesque completed the transaction, Keil observed the defendant heading toward the store’s exit.

Keil went to the cash register and compared the signature on the credit card slip with the name of the cardholder and, finding that they did not match, stopped Levesque to inquire further. Levesque stated that the credit card belonged to a relative. Keil escorted her to a back office, and another associate determined that the credit card was stolen.

Keil then went outside and located the defendant in a parked car, with the engine running. Upon Keil’s request, the defendant accompanied Keil back into the store, where the Bristol police department was summoned. The victim thereafter identified Levesque as the person responsible for stealing her wallet and assaulting her. The police discovered the victim’s wallet in the car that the defendant was operating.

The defendant thereafter was arrested and charged in two separate long form informations. One charged the defendant with crimes relating to the robbery of the victim. The other charged the defendant with crimes relating to the use of her stolen credit card. On the state’s motion, the court consolidated the defendant’s cases. Subsequently, the matter was tried to the jury, and the defendant was found guilty on all charges. Additional facts will be set forth as necessary.

I

The defendant’s first claim is that the court improperly consolidated the two cases pending against him. Specifically, he argues that the cases should not have been consolidated because (1) the brutal and shocking nature of one of the charges pending against him unfairly prejudiced him and (2) evidence admitted in the consolidated trial would have been inadmissible in separate trials. Our review of the record, however, reveals that the defendant failed to raise these issues at trial.

The following additional facts are relevant to the defendant’s claim. At trial, the state moved to consolidate the cases pending against the defendant, arguing that the facts of the defendant’s cases favored joinder. The defendant objected to the consolidation, arguing that “it would be inherently prejudicial to consolidate these two cases for the very reason that if a jury were teetering on the edge of reasonable doubt on . . . the robbery, the fact that he may merely have been present in the [larceny] may militate or convince [the jury] to convict for the first case.”

The defendant continued, “I know the state [is] alleging that [it is] a continuing course of conduct, but they are two separate and distinct crimes, and if they’re tried together the jury may confuse the case of the Wal-Mart and believe that that—the evidence or, if there’s guilt beyond a reasonable doubt in that case, that that would simply be enough to convict him of the first case without maybe carefully examining the case or if reasonable doubt does exist. I realize that . . . judicial economy is important, but in this instance I think that because they’re so—they are distinct, and because an inference may be drawn simply from the second case to the first case I think [that] will inherently and unduly prejudice [the defendant].” The defendant thereafter offered no further grounds for his objection to consolidating the cases pending against him.

Our law regarding joinder is well established. “General Statutes § 54-57 and Practice Book § 829 [now § 41-19] expressly authorize a trial court to order a defendant to be tried jointly on charges arising separately. In deciding whether to sever informations joined for trial, the trial court enjoys broad discretion, which, in the absence of manifest abuse, an appellate court may not disturb. . . . The defendant bears a heavy burden of showing that the denial of severance resulted in substantial injustice and that any resulting prejudice was beyond the curative power of the court’s instructions. . . . [W]hether a joint trial will be substantially prejudicial to the rights of the defendant . . . means something more than that a joint trial will be less advantageous to the defendant. . . .

“Furthermore, we have identified several factors that a trial court should consider .... These factors include: (1) whether the charges involve discrete, easily distinguishable factual scenarios; (2) whether the crimes were of a violent nature or concerned brutal or shocking conduct on the defendant’s part; and (3) the duration and complexity of the trial. ... If any or all of these factors are present, a reviewing court must decide whether the trial court’s juiy instructions cured any prejudice that might have occurred.” (Emphasis in original; internal quotation marks omitted.) State v. Davis, 98 Conn. App. 608, 615-17, 911 A.2d 753 (2006), aff'd, 286 Conn. 17, 942 A.2d 373 (2008).

Here, the defendant objected at trial to consolidation on the ground that the charges did not involve discrete, easily distinguishable factual scenarios. On appeal, however, he sets forth a different theory as to why consolidation was improper, namely, that the brutal and shocking nature of one of the charges pending against him was unfairly prejudicial and that evidence admitted in the consolidated trial would not have been admissible in separate trials. “This court reviews rulings solely on the ground on which the party’s objection is based.” (Internal quotation marks omitted.) State v. Wegman, 70 Conn. App. 171, 189 n.9, 798 A.2d 454, cert. denied, 261 Conn. 918, 806 A.2d 1058 (2002). “[W]e have consistently declined to review claims based on a ground different from that raised in the trial court . . . .” (Internal quotation marks omitted.) State v. Gebhardt, 83 Conn. App. 772, 778, 851 A.2d 391 (2004). Because he did not raise his current claim at trial, we are not bound to review it on appeal.

II

The defendant’s second claim is that he was deprived of his federal constitutional right to due process and to a fair trial because the state improperly withheld exculpatory evidence regarding the credibility of Levesque. Specifically, he asserts that the prosecutor represented to the court and to the jury that its plea agreement with Levesque called for the state to recommend the maximum sentence allowable, which the defendant claims the state subsequently failed to do. He argues, consequently, that the jury was unable to judge properly Levesque’s credibility because it did not understand the true nature of the state’s relationship with her. We axe not persuaded.

The following additional facts are relevant to the defendant’s claim. At the defendant’s trial on November 7, 2005, Levesque testified as a witness for the state. She testified that she had reached a plea agreement with the state, and, as part of her agreement, the state would recommend that she receive a sentence of twenty years incarceration, suspended after ten years, followed by five years probation. Moreover, the sentencing judge would be informed of her cooperation with the state if she testified truthfully in the defendant’s case. In its closing argument, the state commented on this testimony and reiterated that “the state is going to recommend that [Levesque] receive a sentence of ten years to serve followed by five years probation.” (Emphasis added.)

After the defendant had been found guilty and Levesque had been sentenced, the defendant filed a motion for rectification and enlargement of the record. His motion sought to have the record enlarged to include transcripts of Levesque’s plea proceeding and sentencing hearing and requested an evidentiary hearing pursuant to State v. Floyd, 253 Conn. 700, 756 A.2d 799 (2000), to determine whether the state “through its questions and statements, knowingly presented testimony that was misleading as to the true nature of Ms. Levesque’s plea arrangement and sentencing expectations.” The court granted the defendant’s request to enlarge the record to include the transcripts of Levesque’s plea proceeding and her sentencing hearing but denied his request to conduct an evidentiary hearing.

Although the defendant requested an evidentiary hearing, he did not allege that the state withheld exculpatory evidence. Accordingly, he did not raise this claim at trial and now seeks review pursuant to State v. Golding, 213 Conn. 233, 239-40, 567 A.2d 823 (1989). Despite the denial of his request for an evidentiary hearing, the defendant argues that the record nevertheless is sufficient for our review of his claim. A central part of that record is the court’s denial in part of his motion for rectification and enlargement of the record, in which the court addressed the claim now before us. In its memorandum of decision, the court concluded that “the state’s attorney effectively relayed to [the trial court] the recommendation of the state by referring to the ‘cap’ of twenty years suspended after ten years. He did not state to [Levesque’s sentencing court] that a lesser sentence should be imposed. . . . The fact that the state’s attorney did not use the specific words, T recommend,’ does not change the court’s conclusion.”

On the basis of our review of the record, we conclude that there is no evidence that the prosecution improperly withheld exculpatory evidence regarding the credibility of Levesque. See State v. Floyd, supra, 253 Conn. 737. We find it disturbing, however, that the state represented in very definite terms that it was going to make a sentence recommendation but then only relayed that recommendation to Levesque’s sentencing court by referring to the cap of twenty years suspended after ten. Although the state’s tactics seem questionable, the defendant has not established that a constitutional violation clearly exists and clearly deprived him of a fair trial. Accordingly, his claim fails under Golding's third prong.

We do believe it prudent, however, to note the potential for abuse, whether wilful or inadvertent, that is presented whenever a witness testifies prior to being sentenced. When a witness has been offered inducements for his testimony, whether express or implied, the exact terms and nature of the agreement, as understood by the witness, should be borne by the record. This especially includes those situations in which a witness has received only tentative consideration in exchange for his testimony, such as a promise to make a sentence recommendation. Because the tentative nature of such an agreement provides a greater incentive for the witness to offer testimony that is pleasing to the promisor to ensure that the tentative promise will be fulfilled, a thorough understanding of the witness’ motives for testifying is necessary. See Boone v. Paderick, 541 F.2d 447, 451 (4th Cir. 1976), cert. denied, 430 U.S. 959, 97 S. Ct. 1610, 51 L. Ed. 2d 811 (1977). Whatever the inducement for a witness’ testimony, however, counsel should be afforded great leeway to inquire into the motives of a witness so that a proper record can be preserved. Counsel should also be permitted to bring to the juiy’s attention, in appropriate ways, the possibility that the sentencing judge could decide to impose a more favorable sentence than the one to which the parties originally agreed.

Moreover, at a party’s request, the record should ordinarily be expanded to include the circumstances in which the witness’ ultimate sentence was entered by the court. Although the “deliberate deception of a court and jurors by the presentation of known false evidence is incompatible with rudimentary demands of justice”; (internal quotation marks omitted) Giglio v. United States, 405 U.S. 150, 153, 92 S. Ct. 763, 31 L. Ed. 2d 104 (1972); intervening events may offer a benign explanation for a sentence to enter that is different from that originally represented to the jury. It is only on a complete record, however, that such determinations can be made. In the present case, we are satisfied that there is no evidence that the prosecution improperly withheld exculpatory evidence regarding the credibility of Levesque and, accordingly, conclude that the defendant was not deprived of his federal constitutional rights.

Ill

The defendant’s third claim is that that court improperly charged the jury. Specifically, he claims that the court (1) improperly gave a “number of witnesses instruction” and (2) improperly instructed that the state seeks the conviction only of the guilty. We do not agree.

The defendant did not raise his claim at trial and now seeks review pursuant to State v. Golding, supra, 213 Conn. 239-40. Although the defendant has the burden of showing that all of the Golding conditions are met, we may “respond to the defendant’s claim by focusing on whichever [Golding] condition is most relevant in the particular circumstances.” Id., 240.

The standard of review for claims of instructional impropriety under Golding is well established. “The principal function of a jury charge is to assist the jury in applying the law correctly to the facts which [it] might find to be established .... When reviewing [a] challenged jury instruction . . . we must adhere to the well settled rule that a charge to the jury is to be considered in its entirety . . . and judged by its total effect rather than by its individual component parts. . . . [T]he test of a court’s charge is . . . whether it fairly presents the case to the jury in such a way that injustice is not done to either party .... In this inquiry we focus on the substance of the charge rather than the form of what was said not only in light of the entire charge, but also within the context of the entire trial. . . . Moreover, as to unpreserved claims of constitutional error in jury instructions, we have stated that under the third prong of Golding, [a] defendant may prevail . . . only if ... it is reasonably possible that the jury was misled.” (Internal quotation marks omitted.) State v. Lawrence, 282 Conn. 141, 179, 920 A.2d 236 (2007). “An accurate jury instruction cannot be the basis for a showing that the defendant was clearly deprived ... of a fair trial.” (Internal quotation marks omitted.) State v. Sanko, 62 Conn. App. 34, 40-41, 771 A.2d 149, cert. denied, 256 Conn. 905, 772 A.2d 599 (2001).

A

We first address whether the court properly gave a number of witnesses instruction. The defendant did not object to the court’s instruction but now claims that it impermissibly drew attention to his choice not to present evidence, in violation of the fifth amendment to the United States constitution. We conclude, however, that the defendant’s claim fails under Golding's third prong because the court’s number of witnesses instruction did not violate the defendant’s constitutional rights.

The defendant presented no witnesses and no evidence at trial. Nevertheless, the court gave the following number of witnesses instruction: “[T]he weight of the evidence presented by each side does not necessarily depend on the number of witnesses testifying on one side or the other. You may consider all the evidence in the case, and you may decide that the testimony of a smaller number of witnesses on one side has greater weight than that of a larger number on the other side. It is the quality of the evidence, not the quantity of the evidence, that you consider.” The defendant argues that a number of witnesses instruction is proper only when a defendant presents a witness or witnesses.

We find persuasive on this issue the analysis set forth in United States v. Moss, 756 F.2d 329 (4th Cir. 1985). In Moss, the District Court gave an instruction to the jury about the number of witnesses even though the defendants in that case presented no witnesses and no evidence at trial. Id., 334. The United States Court of Appeals for the Fourth Circuit determined that although courts should refrain from giving a number of witnesses instruction when the defendant has no witnesses, the District Court’s instruction did not violate the defendants’ constitutional rights. Id., 335.

“In Lakeside [v. Oregon, 435 U.S. 333, 98 S. Ct. 1091, 55 L. Ed. 2d 319 (1978)], the Supreme Court addressed the analogous issue of whether a protective instruction that the jury should not consider the defendant’s failure to testify given over his objection constituted constitutional error. . . . The Supreme Court reasoned that the purpose of such an instruction was to remove from the jury’s deliberations any influence of unspoken adverse inferences, and therefore [i]t would be strange indeed to conclude that this cautionary instruction violates the very constitutional provision it is intended to protect.

“Like the protective instruction given in Lakeside, the number of witnesses instruction is intended to protect defendants who frequently have fewer witnesses testify than the government from any adverse inferences that might be drawn from this fact. Further, the defendant in Lakeside objected to the trial court’s protective instruction because he feared that the instruction would draw needless attention to his failure to testify. . . . This is the same concern that the defendants had when they objected to the number of witnesses instruction given below. Consequently, this challenged instruction did not violate [the] defendants’ privilege against compulsory self-incrimination guaranteed by the fifth and fourteenth amendments.” (Citations omitted; internal quotation marks omitted.) United States v. Moss, supra, 756 F.2d 334-35.

Although the defendant in the present case did not object at trial to the challenged instruction, he makes the same arguments on appeal as the defendants in Moss. He argues that the court’s instruction drew unnecessary attention to the fact that he had presented no witnesses and, moreover, permitted the jury to conclude that it was appropriate to draw a negative inference from the total absence of any defense witnesses. We reject these arguments. We agree with the Moss court that courts should refrain from giving a number of witnesses instruction when the defendant presents no witnesses. The court’s number of witnesses instruction did not violate the defendant’s privilege against compulsory self-incrimination guaranteed by the fifth and fourteenth amendments. Because we conclude that the court’s number of witnesses instruction was proper, the defendant’s claim must fail under the third prong of Golding.

B

The defendant also claims that the court improperly undermined the presumption of innocence by instructing the jury: “The state does not want the conviction of any person whose guilt upon the evidence there is a reasonable doubt.” In State v. Lawrence, supra, 282 Conn. 179-81, our Supreme Court rejected this identical argument, finding that “[t]he court did not instruct that the state prosecutes only guilty people, but rather that the state requires the conviction of only the guilty.” (Internal quotation marks omitted.) Id., 180. There is no legally meaningful distinction between Lawrence and the present case, and we conclude that the defendant’s claim fails under the third prong of Golding because there is no reasonable possibility that the jury was misled.

IV

The defendant’s fourth claim is that the court improperly denied his motion for a new trial. Specifically, he argues that the court’s denial of his motion for a new trial should be reversed because “the state’s case relied entirely upon the testimony of one patently incredible witness with a strong motive to he,” and, without her testimony, the state lacked sufficient evidence to prove his guilt beyond a reasonable doubt. We disagree.

We first note our standard of review for challenges to rulings on motions for new trials. “Appellate review of a trial court’s decision granting or denying a motion for a new trial must take into account the trial judge’s superior opportunity to assess the proceedings over which he or she has personally presided. . . . Thus, [a] motion for a new trial is addressed to the sound discretion of the trial court and is not to be granted except on substantial grounds. ... In our review of the denial of a motion for [a new trial], we have recognized the broad discretion that is vested in the trial court to decide whether an occurrence at trial has so prejudiced a party that he or she can no longer receive a fair trial. The decision of the trial court is therefore reversible on appeal only if there has been an abuse of discretion.” (Citation omitted; internal quotation marks omitted.) State v. McIntyre, 250 Conn. 526, 533, 737 A.2d 392 (1999).

“In determining whether there has been an abuse of discretion, every reasonable presumption should be given in favor of the correctness of the court’s ruling. . . . Reversal is required only where an abuse of discretion is manifest or where injustice appears to have been done.” (Internal quotation marks omitted.) State v. Fitzgerald, 257 Conn. 106, 112, 777 A.2d 580 (2001).

The thrust of the defendant’s argument is that Levesque was not credible, and, therefore, the defendant’s motion for a new trial should have been granted because the state presented no other evidence indicative of his guilt. We do not agree.

“We assume that the jury credited the evidence that supports the conviction if it could reasonably have done so. Questions of whether to believe or to disbelieve a competent witness are beyond our review. As a reviewing court, we may not retry the case or pass on the credibility of witnesses. . . . We must defer to the trier of fact’s assessment of the credibility of the witnesses that is made on the basis of its firsthand observation of their conduct, demeanor and attitude.” (Internal quotation marks omitted.) State v. Osoria, 86 Conn. App. 507, 514-15, 861 A.2d 1207 (2004), cert. denied, 273 Conn. 910, 870 A.2d 1082 (2005).

In this case, the credibility arguments raised by the defendant are arguments that he properly raised at trial, and they were properly before the jury. They are not, however, the proper subject of an appeal. The jury was able to judge for itself whether Levesque’s testimony was credible, and, apparently, it concluded as much. It is not for this court to pass on the credibility of a witness. We therefore cannot say that the court abused its discretion in denying the defendant’s motion for a new trial.

The judgments are affirmed.

In this opinion the other judges concurred.

       Because he has not raised or briefed this argument on appeal, we deem this claim abandoned. See State v. Sawyer, 279 Conn. 331, 342 n.11, 904 A.2d 101 (2006) (claims on appeal inadequately briefed are deemed abandoned).

       We note also that the state, in arguing to the trial court that the cases against the defendant should be consolidated, took the position that evidence from the larceny case would be admissible in the robbery case to show a pattern of criminal conduct by the defendant and to establish his identity as the perpetrator of the crime. The defendant did not rebut this argument at trial but, instead, has attempted to raise it on appeal.

       On April 19, 2005, Levesque pleaded guilty to one count of robbery in the first degree for her involvement in the robbery of the victim.

       Levesque was sentenced on February 10, 2006.

       Under Golding, a defendant can, on appeal, prevail on a constitutional claim of error when the claim was not raised in the trial court only if all of the following conditions are satisfied: “(1) the record is adequate to review the alleged claim of error; (2) the claim is of constitutional magnitude alleging the violation of a fundamental right; (3) the alleged constitutional violation clearly exists and clearly deprived the defendant of a fair trial; and (4) if subject to harmless error analysis, the state has failed to demonstrate harmlessness of the alleged constitutional violation beyond a reasonable doubt.” State v. Golding, supra, 213 Conn. 239-40.

       The defendant seemingly is seeking another bite at this apple. On February 13, 2007, he filed a motion for rectification or enlargement of the record. The court granted the defendant’s request to enlarge the record to include the transcripts of Levesque’s plea proceeding and her sentencing proceeding but denied his request to conduct an evidentiary hearing. The defendant then filed with this court a motion for review of the court’s denial of his request to conduct an evidentiary hearing. By order dated May 30, 2007, this court granted review but denied the relief requested, apparently determining that the trial court did not abuse its discretion in denying the motion in part and that the requested evidentiary hearing was unnecessary.

       See footnote 5.

       “The first two [prongs of Golding] involve a determination of whether the claim is reviewable . . . .” (Internal quotation marks omitted.) State v. Peeler, 271 Conn. 338, 360, 857 A.2d 808 (2004), cert. denied, 546 U.S. 845, 126 S. Ct. 94, 163 L. Ed. 2d 110 (2005). We conclude that the defendant’s claim is reviewable under Golding because the record is adequate for review, and the claim of instructional impropriety is of constitutional magnitude. See State v. Denby, 235 Conn. 477, 483, 668 A.2d 682 (1995).

       Only adverse comments by the court on the defendant’s refusal to testily warrant reversal. Lakeside v. Oregon, 435 U.S. 333, 338-39, 98 S. Ct. 1091, 55 L. Ed. 2d 319 (1978). On its face, the court’s number of witnesses instruction was not an adverse comment on the defendant’s decision not to testify. Moreover, the court specifically instructed the jury that it could not draw any unfavorable inferences from the defendant’s decision not to testify.

       The District Court’s instruction in Moss was: “The weight of the evidence is not necessarily to be determined by the number of witnesses testifying to the existence or nonexistence of any fact. You may find that the testimony of a smaller number of witnesses as to a fact is more persuasive than that of a greater number of witnesses, or you may find that they are not persuasive at all.” United States v. Moss, supra, 756 F.2d 334.

       The defendant also argues that the court’s use of the phrase “smaller number of witnesses on one side” failed to address the fact that he presented no witnesses. Although, perhaps, it would have been preferable for the court to have stated that the jury was to draw no adverse inference from the fact that the defendant presented no witnesses, rather than a smaller number of witnesses, such a distinction does not change the constitutionality of the court’s instruction.

       In the alternative, the defendant seeks plain error review of his claim. Practice Book § 60-5 provides in relevant part: “The court may in the interests of justice notice plain error not brought to the attention of the trial court. . . Because we conclude that the defendant’s argument fails on its merits, we need not address the defendant's claim of plain error. See State v. Rouleau, 204 Conn. 240, 243, 528 A.2d 343 (1987) (declining to address claim of plain error when claim reviewable under predecessor of Golding).


source: Caselaw Access Project

author: FOTI, J.

license: Public Domain

text:
    STATE OF CONNECTICUT v. BARRINGTON LINDO
    (AC 27909)
    McLachlan, Harper and Foti, Js.
    Argued June 2
    officially released September 23, 2008

      Richard E. Condon, Jr., assistant public defender, for the appellant (acquittee).

      Sarah Hanna, deputy assistant state’s attorney, with whom, on the brief, were Gail P. Hardy, state’s attorney, and Vicki Melchiorre, senior assistant state’s attorney, for the appellee (state).
   Opinion

FOTI, J.

The acquittee, Barrington Lindo, appeals following the court’s granting of the state’s petition for an order of continued commitment as to him. On appeal, the acquittee claims that General Statutes § 17a-593 (c), as applied to him, violated his right to equal protection under the fourteenth amendment to the United States constitution. We affirm the judgment of the trial court.

The following factual and procedural history is relevant to our disposition of the acquittee’s claim. On December 20, 1990, the court, Kline, J., found the acquittee not guilty by reason of mental disease or defect to burglary in the first degree and attempt to commit assault in the first degree. On May 21, 1991, the court committed the acquittee to the jurisdiction of the psychiatric security review board (board) for a maximum period of ten years. On April 19, 2001, the court, Ward, J., continued the acquittee’s commitment until May 1, 2006, pursuant to the state’s petition to continue his commitment. The acquittee initially was committed to the Whiting Forensic Division of Connecticut Valley Hospital, a maximum security facility, but on the basis of improvements in his condition, he was moved to the Dutcher Enhanced Security Service of Connecticut Valley Hospital (Dutcher), a less secure facility. While at Dutcher, the acquittee stabbed a staff member. He was arrested and pleaded guilty to assault in the second degree. As a result, the acquittee was sentenced to two years of imprisonment and then transferred to Gamer Correctional Institution (Gamer) to serve his two year sentence.

On November 8,2005, the state filed a second petition for an order of continued commitment of the acquittee pursuant to § 17a-593 (c). On January 20,2006, the board held a hearing on the state’s petition and subsequently filed its report with the court. In its report, the board concluded that “based on clear and convincing evidence: [the acquittee] remains an individual with psychiatric disabilities to the extent that his discharge from the jurisdiction of the [b]oard would constitute a danger to himself or others.” On April 20, 2006, the hearing on the state’s petition for an order of continued commitment of the acquittee was scheduled to take place, but the acquittee moved for new counsel. As a result, the court extended the acquittee’s commitment to July 6, 2006, with the consent of all parties, to allow him time to obtain new counsel.

On June 28 and 29,2006, the court, Koletsky, J., held a hearing on and granted the state’s petition for continued commitment. The court continued the acquittee’s commitment for a period not to exceed five years. Subsequently, on May 18, 2007, the court issued a memorandum of decision in which it stated that “[t]his court finds by clear and convincing evidence that the [acquittee’s] release would lead to a substantial risk of imminent physical injury to others.” This appeal followed. Additional facts will be set forth as necessary.

On appeal, the acquittee claims that § 17a-593 (c), as applied to him, violated his right to equal protection. Because the acquittee did not raise this claim before the trial court, he seeks review under State v. Golding, 213 Conn. 233, 239-40, 567 A.2d 823 (1989). uGolding is a narrow exception to the general rule that an appellate court will not entertain a claim that has not been raised in the trial court. The reason for the rule is obvious: to permit a party to raise a claim on appeal that has not been raised at trial—after it is too late for the trial court or the opposing party to address the claim—would encourage trial by ambuscade, which is unfair to both the trial court and the opposing party.” (Internal quotation marks omitted.) State v. DeVivo, 106 Conn. App. 641, 647, 942 A.2d 1066 (2008).

Under Golding, “a defendant can prevail on a claim of constitutional error not preserved at trial only if all of the following conditions are met: (1) the record is adequate to review the alleged claim of error; (2) the claim is of constitutional magnitude alleging the violation of a fundamental right; (3) the alleged constitutional violation clearly exists and clearly deprived the defendant of a fair trial; and (4) if subject to harmless error analysis, the state has failed to demonstrate harmlessness of the alleged constitutional violation beyond a reasonable doubt. In the absence of any one of these conditions, the defendant’s claim will fail.” (Emphasis in original.) State v. Golding, supra, 213 Conn. 239-40. In the present case, the record is adequate to review the claim, and the claim is of constitutional magnitude, alleging the violation of the right to equal protection. Nevertheless, we conclude that the alleged constitutional violation does not clearly exist.

Prior to beginning our analysis, we set forth the applicable standard of review. The question of whether the application of § 17a-593 (c) to the acquittee violated his equal protection rights is a question of law over which we have plenary review. See State v. Long, 268 Conn. 508, 530, 847 A.2d 862, cert. denied, 543 U.S. 969, 125 S. Ct. 424, 160 L. Ed. 2d 340 (2004).

The acquittee argues that § 17a-593 (c), as applied to him, violated his right to equal protection because at the time of the recommitment hearing, in June, 2006, he was an inmate and therefore should have been afforded the more stringent procedural protections applicable when the state seeks to commit mentally ill prisoners pursuant to General Statutes § 17a-515. The acquittee argues that when he was recommitted, he was a mentally ill prisoner, or at least was similarly situated to a mentally ill prisoner, because he was serving his two year sentence at Gamer. In citing State v. Metz, 230 Conn. 400, 645 A.2d 965 (1994), the acquittee claims that our Supreme Court strongly has suggested that mentally ill prisoners are similarly situated to acquittees subject to a petition for continued commitment or acquittees recommitted after their commitment has been extended. The acquittee claims that this disparate treatment denied him his right to equal protection because it does not pass rational basis review.

In essence, the acquittee makes two arguments in support of his claim that the application to him of § 17a-593 (c) violated his right to equal protection: (1) he was a mentally ill prisoner and, therefore, was subject to disparate treatment as compared to other mentally ill prisoners when § 17a-593 (c) was applied to him instead of the civil commitment statutes applied to other mentally ill prisoners and (2) even if he was an acquittee and not a mentally ill prisoner, he was situated similarly to mentally ill prisoners and was treated in a manner different from them when § 17a-593 (c) was applied to him instead of the civil commitment statutes applicable to mentally ill prisoners.

I

With regard to the acquittee’s first argument, the state contends that the acquittee was always an acquittee under the jurisdiction of the board, and, therefore, he was not a mentally ill prisoner and not entitled to statutory procedures applicable to them. We agree.

When an individual is found not guilty by reason of mental disease or defect pursuant to General Statutes § 53a-13, the Superior Court commits that individual, or the acquittee, to the custody of the commissioner of mental health and addiction services for an evaluation. General Statutes § 17a-582 (a). After the acquittee is examined, the court holds a hearing to determine whether the acquittee should be confined, conditionally released or discharged. General Statutes § 17a-582 (b) through (e). If the court determines that the acquittee should be confined, he is committed to the jurisdiction of the board for a “maximum term of commitment, not to exceed the maximum sentence that could have been imposed if the acquittee had been' convicted of the offense . . . .” General Statutes § 17a-582 (e) (1). At the end of the acquittee’s commitment period, if it does not appear that the acquittee is fit to be discharged, the state is permitted to file a petition with the court for an order of continued commitment. General Statutes § 17a-593 (c). “During any term of commitment to the board, the acquittee shall remain under the jurisdiction of the board until discharged by the court pursuant to section 17a-593. . . .” General Statutes § 17a-582 (h).

In the present case, the acquittee was first committed to the jurisdiction of the board on May 21, 1991. On April 19, 2001, the court continued the acquittee’s commitment under the jurisdiction of the board until May 1, 2006. Finally, on June 29, 2006, the court continued the acquittee’s commitment for a period not to exceed five years. There is no evidence in the record that the acquittee was discharged from the jurisdiction of the board by the court pursuant to § 17a-593. Therefore, we conclude that the acquittee was an acquittee under the jurisdiction of the board at the time of the recommitment hearing in June, 2006, and, therefore, was not a mentally ill prisoner entitled to enhanced procedural protections. As such, the acquittee’s right to equal protection was not violated by the failure to afford him the enhanced procedural protections to which mentally ill prisoners are entitled.

II

With regard to the acquittee’s second claim, the state argues that our Supreme Court held in State v. Long, supra, 268 Conn. 508, that even if acquittees facing recommitment are similarly situated to mentally ill prisoners, the application of § 17a-593 (c) to acquittees instead of civil commitment procedures does not violate equal protection principles because there are rational bases for the disparate treatment. We agree.

First we address whether the acquittee’s claim should be analyzed under rational basis review. In his brief, the acquittee argues that intermediate scrutiny should be applied to his equal protection claim. We disagree. “Where . . . the classification at issue neither impinges upon a fundamental right nor affects a suspect group it will withstand constitutional attack if the distinction is founded on a rational basis. . . . Rational basis review is satisfied so long as there is a plausible policy reason for the classification .... [I]t is irrelevant whether the conceivable basis for the challenged distinction actually motivated the legislature.” (Internal quotation marks omitted.) Id., 535. Because § 17a-593 (c) neither affects a suspect group nor implicates a fundamental right for the purposes of the federal equal protection clause, it must be analyzed under rational basis review. Id.

Next, we address the substance of the acquittee’s claim that even if he was an acquittee and not a mentally ill prisoner, he was situated similarly to mentally ill prisoners and was treated in a manner different from them when § 17a-593 (c) was applied to him instead of the civil commitment statutes applicable to mentally ill prisoners. Our Supreme Court’s decision in Long controls this claim. In Long, the state was appealing from the trial court’s determination that “§ 17a-593 (c) violated the [acquittee]’s equal protection rights under the fourteenth amendment to the United States constitution because it treats acquittees . . . differently from convicted prisoners who subsequently are civilly committed to a mental hospital at some point after they have been incarcerated ([civilly committed inmates]).” Id., 514. Our Supreme Court reversed the judgment of the trial court, concluding that “a rational basis exists for the legislature’s differential treatment of acquittees and civilly committed inmates, and, therefore, § 17a-593 (c) does not violate the [acquittee]’s federal equal protection guarantees.” Id., 537.

First, our Supreme Court assumed, without deciding, that acquittees are situated similarly to civilly committed inmates. Id., 535. Nevertheless, our Supreme Court then cited two rational reasons for the disparate treatment in statutory recommitment procedures for acquittees as compared to civilly committed inmates. “First, under the acquittee statutory scheme, the board has general and specific familiarity with all acquittees beginning with their initial commitment ....

“Second, the state clearly has an interest in ensuring that its citizens are not erroneously committed based on harmless, idiosyncratic behavior. . . . The legislature, however, reasonably could have concluded that the risk of erroneous commitment is far less for an acquittee and, therefore, additional mandatory judicial review during the recommitment is unnecessary. Specifically, the legislature could have determined that the likelihood of an erroneous commitment is reduced in the case of an acquittee because an acquittee initiates the commitment process himself by pleading and proving the mental illness that led to his commission of a crime.” (Citation omitted.) Id., 536-37.

In the present case, we assume, without deciding, that acquittees are situated similarly to mentally ill prisoners. We conclude, however, on the basis of Long, that there are rational bases that justify the disparate treatment afforded acquittees as compared with that afforded mentally ill prisoners. The acquittee argues that Long is distinguishable from the present case due to the nature of the claim here and his dual status as an acquittee and a prisoner. We are not persuaded. First, our Supreme Court concluded that rational bases existed for the disparate treatment of acquittees, as compared to mentally ill prisoners, which were not specific to the acquittee’s claim in Long. For instance, the fact that the board gains general and specific familiarity with the acquittees negates the need for sworn certificates and, if required, the testimony of two impartial physicians, one of whom must be a psychiatrist, and a three judge panel to determine the propriety of commitment, all of which the acquittee argued should have been present prior to his being recommitted. See General Statutes § 17a-498 (c). Because the board gains such a substantial degree of familiarity with the acquittee, it is in a good position to submit, regarding the mental status of the acquittee, a thorough report on which the court relies heavily in deciding whether to recommit the acquittee. Additionally, the fact that the risk of erroneous commitment on the basis of idiosyncratic behavior is far less for an insanity acquittee negates the need for the court to consider solely the liberty interest of the acquittee. Indeed, the consideration of the liberty interest of a mentally ill prisoner is rational, as a mentally ill prisoner, unlike an acquittee, did not initiate the commitment process by pleading not guilty to a crime by reason of mental disease or defect.

Second, the acquittee’s “dual status” as both an acquittee and a prisoner is irrelevant where we have assumed, without deciding, that acquittees are situated similarly to mentally ill prisoners. Because we conclude that there are rational bases for the disparate treatment afforded acquittees as compared to the treatment afforded mentally ill prisoners, the acquittee cannot prevail on his claim that even if he was an acquittee and not a mentally ill prisoner, his equal protection rights were violated because he was situated similarly to mentally ill prisoners and was treated in a manner different from them when § 17a-593 was applied to him instead of the civil commitment statutes applicable to mentally ill prisoners.

The judgment is affirmed.

In this opinion the other judges concurred.

       General Statutes § 17a-593 (c) provides: “If reasonable cause exists to believe that the acquittee remains a person with psychiatric disabilities or mentally retarded to the extent that his discharge at the expiration of his maximum term of commitment would constitute a danger to himself or others, the state’s attorney, at least one hundred thirty-five days prior to such expiration, may petition the court for an order of continued commitment of the acquittee.”

       The acquittee also argues that § 17a-593 (c), as applied to him, violated his right to equal protection under article first, § 20, of the state constitution. Because the acquittee has not set forth a separate state constitutional analysis pursuant to State v. Geisler, 222 Conn. 672, 684-86, 610 A.2d 1225 (1992), we deem that claim abandoned and analyze the acquittee’s right to equal protection arguments under the requirements of the United States constitution. See State v. Simpson, 286 Conn. 634, 651 n.17, 945 A.2d 449 (2008).

       Pursuant to § 17a-515, when the state seeks to transfer an inmate to a psychiatric hospital for treatment, the procedural protections set forth in General Statutes § 17a-498 apply. Additionally, the acquittee listed three specific procedural protections afforded mentally ill prisoners: (1) that the court have before it sworn certificates, and if required, testimony of two impartial physicians, one of whom must be a psychiatrist, in determining the propriety of commitment, pursuant to § 17a-498, (2) the right to have a three judge panel determine the propriety of his commitment to a psychiatric hospital pursuant to General Statutes § 17a-497 (b) and (3) in contrast to a mentally ill prisoner commitment hearing, the court here was statutorily required to consider as its primary interest the protection of society.

       The acquittee also asserts that intermediate scrutiny should be applied to his equal protection claim, citing two decisions of the United States Court of Appeals for the Second Circuit, Ernst J. v. Stone, 452 F.3d 186 (2d Cir. 2006), and Francis S. v. Stone, 221 F.3d 100 (2d Cir. 2000), along with decisions of the New York Court of Appeals and the New York Appellate Division for this proposition. Nevertheless, he argues that the violation of his right to equal protection can pass neither rational basis nor intermediate review.

        In Long, the acquittee argued that the application of § 17a-593 (c) to him violated his due process rights and his right to equal protection because, among other things, the statute failed to provide an acquittee with mandatory periodic judicial review of confinement, which was afforded to mentally ill prisoners facing commitment.


author: DiPENTIMA, J.

text:
    H AND L CHEVROLET, INC., ET AL. v. BERKLEY INSURANCE COMPANY
    (AC 27670)
    Flynn, C. J., and DiPentima and Pellegrino, Js.

      Argued April 16
    officially released September 23, 2008

      Joseph B. Bums, with whom, on the brief, was Shannon C. Kief, for the appellant (defendant).

      Jan A. Marcus, for the appellees (plaintiffs).
   Opinion

DiPENTIMA, J.

The defendant, Berkley Insurance Company, appeals from the judgment of the trial court granting the petition of the plaintiffs, H & L Chevrolet, Inc. (H & L), and A & W Insurance Company (A & W), for a bill of discovery. The defendant claims that the trial court improperly concluded that the plaintiffs had met their burden of proving that probable cause existed to bring a potential cause of action against the defendant. We agree that the facts in this case do not establish probable cause and, accordingly, reverse the judgment of the trial court.

The relevant facts, as alleged by the plaintiffs and found by the court, are not in dispute. H & L is a Connecticut corporation engaged in the sale of automobiles. A & W is a foreign corporation primarily engaged in providing coverage for service repairs under extended warranty contracts between H & L and its customers who purchase used cars. Under the terms of the extended warranty contracts, the plaintiffs agreed to cover the cost of certain repairs to vehicles sold by H & L when those repairs accrued after the expiration of the vehicle manufacturer’s warranty.

To reduce the risk that it acquires pursuant to the extended warranty contracts, H & L purchased an insurance policy from National Warranty Insurance Group (National Warranty). The insurance policy was brokered by James Hoffman, chief executive officer of Resources Management Insurance Group. Under the terms of the insurance policy, National Warranty agreed to indemnify H & L for the cost of all claims made pursuant to the extended warranty contracts. H & L made premium payments, and customers filed claims under the extended warranty program through National Warranty’s authorized administrator, a company known as Smart Choice.

At the time H & L purchased the insurance policy from National Warranty on December 5,2000, the defendant had agreed, pursuant to a reinsurance policy, to indemnify National Warranty for certain losses that National Warranty might incur as a result of claims made under insurance policies issued by National Warranty, including the insurance policy issued to H & L. Representatives of National Warranty and Smart Choice, but not of the defendant, had informed Hoffman of the existence of the reinsurance policy, and Hoffman, in turn, informed H & L. The existence of the reinsurance policy was a substantial factor in H & L’s decision to purchase insurance through National Warranty because General Motors Acceptance Corporation, as a condition of providing to H & L’s customers financing toward the purchase of cars and extended warranties, required such a reinsurance policy to be in place. At the time it issued the insurance policy to H & L, however, National Warranty was aware that the reinsurance policy issued by the defendant was scheduled to expire on January 1,2001, and that the defendant did not intend to renew the reinsurance policy. Neither National Warranty nor the defendant communicated this information to either Hoffman or H & L.

During the years 2000 to 2003, H & L entered into approximately 400 extended warranty contracts with its customers. From December, 2000, through May, 2003, National Warranty honored its obligations to H & L under the insurance policy and timely paid claims under the extended warranty contracts. Sometime in 2003, however, National Warranty filed a petition for bankruptcy protection and was declared insolvent. National Warranty thereafter ceased making payments to H & L for claims under the extended warranty contracts, causing H & L and A & W to bear the cost of such claims. The plaintiffs sought reimbursement from the defendant, as the reinsurer of National Warranty, but the defendant rejected their demands.

On August 11, 2004, the plaintiffs filed a petition for a bill of discovery, seeking from the defendant disclosure of documents and other information concerning its reinsurance agreement with National Warranty. The plaintiffs’ petition alleges that the defendant, pursuant to the terms of the reinsurance contract with National Warranty, may be responsible for reimbursing claims made under the extended warranty contracts. The plaintiffs further allege that discovery is necessary to ascertain the viability and scope of any cause of action, including claims for breach of contract, fraud, unfair trade practices or unfair insurance practices, that the plaintiffs later may assert against the defendant by virtue of the defendant’s failure to reimburse the plaintiffs. After a hearing on February 27, 2006, the court granted the plaintiffs’ petition. This appeal followed.

The defendant claims that the court improperly concluded that the plaintiffs had demonstrated probable cause to bring a potential cause of action against it. Specifically, the defendant argues that the evidence adduced at the February 27,2006 hearing failed to establish probable cause for the plaintiffs to bring an action for (1) breach of contract, (2) fraud or (3) violation of the Connecticut Unfair Trade Practices Act (CUTPA), General Statutes § 42-110a et seq. We agree.

Before addressing the defendant’s arguments, we briefly discuss the nature of a bill of discovery and set forth our standard of review. “The bill of discovery is an independent action in equity for discovery, and is designed to obtain evidence for use in an action other than the one in which discovery is sought. ... As a power to enforce discovery, the bill is within the inherent power of a court of equity that has been a procedural tool in use for centuries. . . . The bill is well recognized and may be entertained notwithstanding the statutes and rules of court relative to discovery. . . . Furthermore, because apure bill of discovery is favored in equity, it should be granted unless there is some well founded objection against the exercise of the court’s discretion. . . .

“To sustain the bill, the petitioner must demonstrate that what he seeks to discover is material and necessary for proof of, or is needed to aid in proof of or in defense of, another action already brought or about to be brought. . . . Although the petitioner must also show that [it] has no other adequate means of enforcing discovery of the desired material, [t]he availability of other remedies . . . for obtaining information [does] not require the denial of the equitable relief . . . sought. . . . This is because a remedy is adequate only if it is one which is specific and adapted to securing the relief sought conveniently, effectively and completely. . . . The remedy is designed to give facility to proof. . . .

“Discovery is confined to facts material to the plaintiffs cause of action and does not afford an open invitation to delve into the defendant’s affairs. ... A plaintiff must be able to demonstrate good faith as well as probable cause that the information sought is both material and necessary to [its] action. ... A plaintiff should describe with such details as may be reasonably available the material [it] seeks . . . and should not be allowed to indulge a hope that a thorough ransacking of any information and material which the defendant may possess would turn up evidence helpful to [its] case. . . . What is reasonably necessary and what the terms of the judgment require call for the exercise of the trial court’s discretion. . . .

“The plaintiff who brings a bill of discovery must demonstrate by detailed facts that there is probable cause to bring a potential cause of action. Probable cause is the knowledge of facts sufficient to justify a reasonable man in the belief that he has reasonable grounds for presenting an action. ... Its existence or nonexistence is determined by the court on the facts found. . . . Moreover, the plaintiff who seeks discovery in equity must demonstrate more than a mere suspicion; he must also show that there is some describable sense of wrong.” (Citation omitted; internal quotation marks omitted.) Journal Publishing Co. v. Hartford Courant Co., 261 Conn. 673, 680-82, 804 A.2d 823 (2002). A distinction exists, however, “between a would-be plaintiff having to demonstrate the need for the information to determine whether a particular cause of action is worthy of being pursued and a plaintiff having to prove definitively that he has a cause of action and that he will probably prevail ultimately at the trial on the merits.” Berger v. Cuomo, 230 Conn. 1, 9, 644 A.2d 333 (1994). “Whether particular facts constitute probable cause is a question of law.” (Internal quotation marks omitted.) Journal Publishing Co. v. Hartford Courant Co., supra, 682.

I

The defendant first argues that the plaintiffs failed to establish probable cause to bring an action for breach of contract. The parties agree that no privity of contract exists between them and that to prevail on a claim for breach of contract, the plaintiffs first must establish themselves as third party beneficiaries of a reinsurance contract between the defendant and National Warranty. The defendant argues, however, that the plaintiffs failed to demonstrate probable cause that the defendant breached such a contract. The defendant further argues that even if it was in breach of a reinsurance contract with National Warranty, the plaintiffs failed to demonstrate probable cause that they were third party beneficiaries. We agree with the defendant’s first argument, and, therefore, we need not address the second.

We begin our discussion by noting that the plaintiffs’ petition alleges that discovery is necessary in order to ascertain whether the defendant’s failure to reimburse the plaintiffs for claims under the extended warranty contracts, which National Warranty had agreed to insure, gave rise to a breach of contract claim. To obtain the discovery they seek, the plaintiffs must demonstrate probable cause with respect to each element of their potential breach of contract claim. See id., 685-95. “The elements of a breach of contract action are the formation of an agreement, performance by one party, breach of the agreement by the other party and damages.” (Internal quotation marks omitted.) Pelletier v. Galske, 105 Conn. App. 77, 81, 936 A.2d 689 (2007), cert. denied, 285 Conn. 921, 943 A.2d 1100 (2008).

We further observe that the plaintiffs, in fact, received part of the discoveiy that they had requested. A reinsurance contract between the defendant and National Warranty was introduced as an exhibit at the February 27, 2006 hearing. In addition, the defendant introduced copies of two letters, one to National Warranty and the other to the intermediary who brokered the reinsurance contract. Both letters from the defendant indicate that the defendant no longer would provide reinsurance to National Warranty after January 1, 2001.

In addition, we reiterate the court’s finding that National Warranty paid claims under the extended warranty contracts until May, 2003. The court also found that although initial premiums paid by H & L to National Warranty included additional amounts for reinsurance, no evidence was adduced as to whether those additional amounts continued after 2001. Neither party disputes the propriety of those findings.

With this background in mind, we are not persuaded that the plaintiffs have probable cause to bring a breach of contract action against the defendant. According to the unambiguous terms of its reinsurance agreement with National Warranty, the defendant agreed “to indemnify [National Warranty] in respect of the net excess liability . . . which may accrue to [National Warranty] as a result of any loss or losses which may occur under all [warranty] policies written or renewed by [National Warranty] during the term of this agreement [January 1, 1998, to January 1, 2001] . . . .” The reinsurance agreement further provides that if it is not renewed on January 1, 2001, National Warranty “has the option to purchase ‘run-off coverage . . . for the unexpired warranties for claims occurring on or after January 1, 2001. The coverage will remain in effect for a period of three years from January 1, 2001 or until all warranties are expired, whichever occurs first.” When read together, these provisions clearly express the defendant’s intention to indemnify National Warranty only for warranty claims arising prior to January 1, 2001, unless National Warranty exercised its option to purchase “run-off’ coverage.

The plaintiffs’ arguments, both before the trial court and in their brief to this court, presuppose the fact that National Warranty had a right, pursuant to the reinsurance agreement, to demand performance from the defendant on or after May, 2003. None of the facts found by the court, however, supported more than a mere suspicion that National Warranty had exercised its option to purchase run-off coverage. Moreover, there was no evidence that the defendant’s obligations were extended beyond January 1, 2001, by some other agreement. Without the run-off coverage or a separate reinsurance agreement, National Warranty had no claim against the defendant for losses accruing after January 1,2001. The plaintiffs, in turn, have no third party beneficiary claim against the defendant for extended warranty claims that arose during or after May, 2003. See footnote 3.

We further conclude that none of the facts of this case support a finding of probable cause to believe the defendant breached a contractual obligation to notify the plaintiffs of its decision not to provide National Warranty with reinsurance after January 1, 2001. None of the expressed terms of the agreement provided for notice to the plaintiffs in the event of the cancellation or termination of the agreement. The relevant terms of the reinsurance agreement provided only that “[a]ll communications (including but not limited to notices . . .) relating thereto shall be transmitted . . . through [the reinsurance intermediary].”

Further, the defendant had no duty, pursuant to statute, to notify the plaintiffs of its intent to cease reinsuring National Warranty. In its memorandum of decision, the court observed that General Statutes §§ 38a-66 to 38a-67b require certain reinsurance policies to be provided to the commissioner of insurance and that the commissioner be apprised by the reinsurance carrier as to any nonrenewal, cancellation or revision of those certain reinsurance policies. The court further noted that the Reinsurance Intermediary Act, General Statutes § 38a-760 et seq., outlines the obligations and requirements of a reinsurance intermediary who solicits, negotiates or places reinsurance coverage.

“[Although we incorporate a law as if an express term of the contract to construe the scope or validity of an obligation already embraced within the terms of the contract, we do not incorporate the law to create a substantive obligation where none previously had existed.” Deming v. Nationwide Mutual Ins. Co., 279 Conn. 745, 781, 905 A.2d 623 (2006). None of the statutes cited by the court obligated the defendant to notify anyone other than the commissioner of insurance and the reinsurance intermediary of its decision to end its business relationship with National Warranty. Further, the record contains no evidence that the defendant had failed to comply with those statutes. Accordingly, the plaintiffs failed to establish probable cause to bring a breach of contract action against the defendant.

II

The defendant next argues that the plaintiffs failed to establish probable cause to bring an action for fraud. We agree.

Our conclusion derives from the following undisputed facts. The only statement on which the plaintiffs claim that they detrimentally relied was the representation that the defendant was providing reinsurance coverage for National Warranty. On the basis of that representation, the plaintiffs decided to sell and engage National Warranty to insure the extended warranty contracts. At the time that representation was made to the plaintiffs in December, 2000, however, the defendant, in fact, was providing reinsurance coverage to National Warranty. Furthermore, that representation was made to the plaintiffs, not by the defendant, but by Hoffman, who also did not communicate directly with the defendant. The defendant made no statements, true or false, to the plaintiffs prior to May, 2003.

“Under the common law ... it is well settled that the essential elements of fraud are: (1) a false representation was made as a statement of fact; (2) it was untrue and known to be untrue by the party making it; (3) it was made to induce the other party to act upon it; and (4) the other party did so act upon that false representation to his injury.” (Internal quotation marks omitted.) Capp Industries, Inc. v. Schoenberg, 104 Conn. App. 101, 116, 932 A.2d 453, cert. denied, 284 Conn. 941, 937 A.2d 696, 697 (2007). Also, “[i]t has been repeatedly held that where a party makes false representations to another with the intent or knowledge that they be exhibited or repeated to a third party for the purpose of deceiving him, the third party, if so deceived to his injury, can maintain an action in tort against the party making the false statements . . . .” (Internal quotation marks omitted.) Giulietti v. Giulietti, 65 Conn. App. 813, 843, 784 A.2d 905, cert. denied, 258 Conn. 946, 947, 788 A.2d 95, 96, 97 (2001).

The facts of this case are not sufficient to justify a reasonable person in the belief that there are reasonable grounds for presenting a fraud claim. First, any representation prior to January 1, 2001, that the defendant was reinsuring National Warranty was true. Moreover, to the extent that the plaintiffs relied on misrepresentations that the defendant would continue to reinsure National Warranty after January 1, 2001, the record belies any allegation that such a statement had originated from the defendant. The documents submitted at the hearing unequivocally expressed the defendant’s intention to end its business relationship with National Warranty on that date. We conclude that the plaintiffs lacked probable cause to allege that the defendant had made a false representation to them, either directly or through a third party. Accordingly, the court improperly granted the plaintiffs’ petition on that basis.

III

The defendant last argues that the plaintiffs failed to establish probable cause to bring a claim under CUTPA. We agree.

“It is well settled that in determining whether a practice violates CUTPA we have adopted the criteria set out in the cigarette rule by the federal trade commission for determining when a practice is unfair: (1) [W]hether the practice, without necessarily having been previously considered unlawful, offends public policy as it has been established by statutes, the common law, or otherwise—whether, in other words, it is within at least the penumbra of some common law, statutory, or other established concept of unfairness; (2) whether it is immoral, unethical, oppressive, or unscrupulous; (3) whether it causes substantial injury to consumers [competitors or other businesspeople]. . . .

“All three criteria do not need to be satisfied to support a finding of unfairness. A practice may be unfair because of the degree to which it meets one of the criteria or because to a lesser extent it meets all three. . . . Thus a violation of CUTPA may be established by showing either an actual deceptive practice ... or a practice amounting to a violation of public policy. . . . Furthermore, a party need not prove an intent to deceive to prevail under CUTPA.” (Internal quotation marks omitted.) Journal Publishing Co. v. Hartford Courant Co., supra, 261 Conn. 695-96.

As we stated in parts I and II, no reasonable ground exists to support an allegation that the defendant had failed to conform its conduct to the law or to the terms of its reinsurance agreement with National Warranty. Further, the facts presented by the plaintiffs and found by the court lend no support for the plaintiffs’ suspicions that the defendant acted unfairly, immorally, unethically, oppressively or unscrupulously either in deciding not to renew its reinsurance agreement with National Warranty or in deciding not to accede to the plaintiffs’ demands for reimbursement. Finally, although the lack of reimbursement for claims under the extended warranty contracts has resulted in substantial injury to the plaintiffs, no probable cause exists to conclude that those injuries resulted from the defendant’s business practices. Accordingly, we conclude that the plaintiffs lacked probable cause to raise a CUTPA claim against the defendant.

The judgment is reversed and the case is remanded with direction to deny the plaintiffs’ petition for a bill of discovery.

In this opinion the other judges concurred.

       During the time period relevant to this appeal, the defendant was known by its former name, Signet Star Reinsurance Company.

       To the extent that the plaintiffs claim that the evidence supported probable cause to bring an action in quasi-contract, or some other cause of action not identified in their petition, we reject their claim. “[Tjhe right of a plaintiff to recover is limited by 1he allegations of the complaint . . . and any judgment should conform to the pleadings, the issues and the prayers for relief.” (Internal quotation marks omitted.) Journal Publishing Co. v. Hartford Courant Co., 261 Conn. 673, 686, 804 A.2d 823 (2002). Accordingly, we need not consider whether the evidence established probable cause to believe that the plaintiffs had a cause of action under a theory not identified in their petition. See id. (improper for court to find probable cause of tortious interference with contractual arrangements when no such possible cause of action alleged in petition). For this reason, we also reject the plaintiffs’ argument that they need not demonstrate that their causes of action lie against the defendant but that they need only to show probable cause that they have a viable claim against anyone, in support of which discovery from the defendant would be helpful.

       If National Warranty has no reasonable ground for bringing a breach of contract action against the defendant, then the plaintiffs would have no claim as third party beneficiaries. See, e.g., 13 S. Williston, Contracts (4th Ed. Lord 2000) § 37:29, p. 188 (third party beneficiary in ordinary contract subject to limitations of contract terms as he has no greater rights than are provided in contract itself).

       See O’Connor v. Waterbury, 286 Conn. 732, 744, 945 A.2d 936 (2008) (where contract clear and unambiguous within its four comers, intent of parties is question of law requiring plenary review and contract to be given effect according to terms).

       See Connecticut Medical Ins. Co. v. Kulikowski, 286 Conn. 1, 12-13, 942 A.2d 334 (2008) (“we must look at the contract as a whole, consider all relevant portions together and, if possible, give operative effect to every provision in order to reach a reasonable overall result” [internal quotation marks omitted]).

       In their brief, the plaintiffs state that the hearing on their petition was not “an opportunity for the defendant to morph [their] discovery requests into a summary judgment type of proceeding.” We see no reason, however, and the plaintiffs offer none, why the documents introduced as exhibits at the February 27, 2006 hearing may not be probative of the plaintiffs’ lack of probable cause simply because the plaintiffs dispute the legal effect of those documents.

       The defendant, citing Mead v. Burns, 199 Conn. 651, 509 A.2d 11 (1986), also argues that the plaintiffs failed to establish probable cause to raise a claim under the Connecticut Unfair Insurance Practices Act (CUIPA), General Statutes § 38a-815 et seq., because there is no independent cause of action for violations of CUIPA. We disagree with the defendant’s broad interpretation of our Supreme Court’s holding in Mead.

      In Mead, the court held that insurance practices are the subject of two regulatory acts, CUIPA and CUTPA, and that a private cause of action exists under CUTPA to enforce CUIPA violations. Mead v. Burns, supra, 199 Conn. 663. Whether CUIPA allows a private cause of action independent of CUTPA remains an open question. See Carford v. Empire Fire & Marine Ins. Co., 94 Conn. App. 41, 52-53, 891 A.2d 55 (2006).
      Although the defendant has misconstrued the holding of Mead, we conclude nonetheless that Mead lends adequate support for the defendant’s position. We conclude that without legal authority, independent of CUTPA, to bring a private cause of action under CUIPA, the plaintiffs lacked probable cause to raise such a claim.


author: HARPER, J.

text:
    STATE OF CONNECTICUT v. GLENYS RIOS
    (AC 29109)
    McLachlan, Harper and Foti, Js.

      Argued June 2
    officially released September 23, 2008

      Marjorie Allen Dauster, senior assistant state’s attorney, with whom, on the brief, were Scott J. Murphy, state’s attorney, and Ronald Dearstyne, senior assistant state’s attorney, for the appellant (state).

      James B. Streeto, assistant public defender, for the appellee (defendant).
   Opinion

HARPER, J.

The state, with the permission of the trial court, appeals from the judgments of the court dismissing four charges brought against the defendant, Glenys Rios, following her successful completion of a period of accelerated rehabilitation. The state claims that the court abused its discretion in granting accelerated rehabilitation to this defendant because (1) the accelerated rehabilitation statute, General Statutes § 54-56e, could not properly be applied to the defendant because she allegedly committed the crimes at issue during two separate and unrelated incidents occurring approximately one month apart, and (2) there was no basis to conclude that the defendant probably would not offend in the future. We affirm the judgments of the trial court.

The record reveals the following pertinent facts and procedural history. On November 18, 2004, the defendant was charged in docket number CR-04-24808, with one count of larceny in the sixth degree in violation of General Statutes § 53a-125b, and one count of conspiracy to commit larceny in the sixth degree in violation of General Statutes §§ 53a-125b and 53a-48. On December 14, 2004, the defendant was charged in docket number CR-04-25103 with one count of larceny in the sixth degree in violation of General Statutes § 53a-125b, and one count of conspiracy to commit larceny in the sixth degree in violation of General Statutes §§ 53a-125b and 53a-48.

The defendant later applied for accelerated rehabilitation with regard to the charges in both files. At a hearing on July 14,2005, the court canvassed the defendant to determine her eligibility for accelerated rehabilitation. The court also instructed the defendant to provide notice of her application to the victims of her crimes. The court continued the matter until July 28, 2005, at which time the state set forth the factual basis of the charges. The prosecutor represented that the charges arose out of two unrelated incidents of shoplifting that occurred on two separate dates and at two separate retailers. The first incident occurred on November 18, 2004, at a Kohl’s in Plainville, when the defendant and a female coconspirator took merchandise with a total value of $229.59, with the defendant taking merchandise with a total value of $138. The second incident occurred on December 14, 2004, at a WalMart in Bristol, when the defendant and a female coconspirator took DVDs with a total value of $59.52.

The defendant’s attorney represented that the defendant was a thirty year old single mother who was raising her three children and earning a modest living. He represented that prior to the incidents at issue, she did not have a criminal record. He stated that with regard to the incident at Kohl’s, the defendant had attempted to leave the store while wearing two or three shirts that she did not pay for. With regard to the incident at WalMart, he represented that it was the defendant’s friend who took the DVDs but that the defendant, in a panic, had attempted to conceal the wrappings that her friend had removed from the DVDs. The prosecutor replied that he had spoken with the defendant following her arrest and that she had stated that she was aware that her friend was attempting to take the DVDs without paying for them and that she had concealed the wrappings from the DVDs in an effort to assist her friend in this criminal act.

The prosecutor objected to the applications for accelerated rehabilitation on two grounds. First, the prosecutor argued that the defendant could not avail herself of accelerated rehabilitation with regard to the crimes arising out of two separate incidents. The prosecutor argued that the statute did not apply because the two separate incidents had occurred approximately one month apart and involved separate victims. The prosecutor also relied on the fact that the defendant had been arrested separately with regard to each incident. The prosecutor opined that the accelerated rehabilitation statute could be applied in situations in which a defendant committed several crimes “on one night or over a couple of days where there [are] a number of victims” but that it did not apply when crimes had been committed “a month apart.” Second, the prosecutor argued that the statute did not apply because there was no basis for the court to find that the defendant probably would not offend in the future. In support of this argument, the state relied on the allegation that the defendant had shoplifted on two separate occasions, the second occasion following her first arrest, within one month.

The defendant’s attorney argued that the accelerated rehabilitation statute could be applied to the crimes arising out of the incidents at issue, which were temporally separated by approximately one month. The defendant’s attorney referred to his client’s lack of a criminal record prior to these incidents and attempted to persuade the court that the defendant’s involvement in the second incident was not criminal in nature. The court stated that there was “no question” that the defendant was involved in both of these incidents. Indicating that it agreed in some measure with the state’s legal argument, the court commented that it was an “absolute stretch” to apply the accelerated rehabilitation statute to these crimes. The court, nonetheless, granted the defendant’s applications. The court placed the defendant on probation for a term of two years and, as a special condition of probation, required her to complete 225 hours of community service. On July 24, 2007, upon the defendant’s successful completion of probation, the court dismissed the charges and granted the state’s request for permission to file the present appeal. This appeal followed.

“The granting or denial of an application for accelerated rehabilitation implicates the exercise of discretion by the trial court. . . . The exercise of legal discretion imparts something more than the granting to the trial court of the right to have leeway in decision making. . . . Rather, the exercise of legal discretion requires that it be exercised in conformity with the spirit of the law and in a manner to subserve and not impede or defeat the ends of substantial justice. . . .

“Our review of the trial court’s exercise of its discretion is limited to the questions of whether the court correctly applied the law and whether it could reasonably conclude as it did. ... It is only where an abuse of discretion is manifest or where an injustice appears to have been done that a reversal will result from the trial court’s exercise of discretion. . . . Every reasonable presumption will be given in favor of the trial court’s ruling.” (Citations omitted; internal quotation marks omitted.) State v. Angelo, 25 Conn. App. 235, 240-41, 594 A.2d 24, cert. denied, 220 Conn. 911, 597 A.2d 335 (1991).

I

First, the state claims that the court abused its discretion in granting accelerated rehabilitation because the accelerated rehabilitation statute, § 54-56e, could not properly be applied to the defendant because she allegedly committed the crimes at issue during two separate and unrelated incidents occurring approximately one month apart. We disagree.

The claim raises an issue of statutory interpretation to which we afford plenary review. See State v. Casiano, 282 Conn. 614, 620, 922 A.2d 1065 (2007). “When construing a statute, [o]ur fundamental objective is to ascertain and give effect to the apparent intent of the legislature. ... In other words, we seek to determine, in a reasoned manner, the meaning of the statutory language as applied to the facts of [the] case, including the question of whether the language actually does apply. ... In seeking to determine that meaning, General Statutes § l-2z directs us first to consider the text of the statute itself and its relationship to other statutes. If, after examining such text and considering such relationship, the meaning of such text is plain and unambiguous and does not yield absurd or unworkable results, extratextual evidence of the meaning of the statute shall not be considered. . . . When a statute is not plain and unambiguous, we also look for interpretive guidance to the legislative history and circumstances surrounding its enactment, to the legislative policy it was designed to implement, and to its relationship to existing legislation and common law principles governing the same general subject matter . . . .” (Internal quotation marks omitted.) State v. Koczur, 287 Conn. 145, 152-53, 947 A.2d 282 (2008).

Section 54-56e (a) provides: “There shall be a pretrial program for accelerated rehabilitation of persons accused of a crime or crimes or a motor vehicle violation or violations for which a sentence to a term of imprisonment may be imposed, which crimes or violations are not of a serious nature.” As relevant, § 54-56e (b) sets forth conditions on which the statute may be applied, and § 54-56e (c) restricts the class of persons to whom the statute may be applied. Section 54-56e (f) provides that if a defendant has been granted accelerated rehabilitation and successfully has completed his period of probation, “such defendant may apply for dismissal of the charges against such defendant and the court, on finding such satisfactory completion, shall dismiss such charges. ...” See also State v. Parker, 194 Conn. 650, 658, 485 A.2d 139 (1984) (“[t]he only right that the defendant may earn under the accelerated rehabilitation statute is the right to a dismissal of the charges against him, a right that is expressly conditioned on satisfactory completion of the period of probation”).

The pivotal statutory language is the term “crime or crimes” as appears in § 54-56e (a). Prior to the passage of Public Act 93-138, § 54-56e applied to “persons accused of a crime or a motor vehicle violation for which a sentence to a term of imprisonment may be imposed, which crime or violation is not of a serious nature. ...” (Emphasis added.) This court has interpreted the word “crime,” as used in this earlier version of § 54-56e, to encompass charges that arose out of “a single criminal act or transaction, out of which one or more criminal charges might arise.” State v. Tyler, 6 Conn. App. 505, 510, 506 A.2d 562 (1986); see also State v. Angelo, supra, 25 Conn. App. 241. In Tyler, this court reasoned that the legislature’s use of the phrase “a crime,” a phrase in the singular, signaled a restriction on the court’s discretion. State v. Tyler, supra, 509. The court reasoned that the statute’s grant of discretion to the trial court, and not to the prosecutor, to invoke accelerated rehabilitation and the fact that the statute also referred to the dismissal of “such charges,” weighed in favor of its interpretation that “a crime” could encompass several charges arising out of a single transaction. Id., 511.

The state argues that the current revision of § 54-56e, which governs this case and includes the phrase “crime or crimes,” is ambiguous, especially in light of this court’s interpretation of the statute before it was amended by Public Act 93-138. The state further argues that a review of the relevant legislative histoiy supports its assertion that the statute cannot be applied to persons accused of crimes that are not related temporally or are otherwise clearly connected.

The focus of our inquiry is on the language of § 54-56e. Subsection (a) refers to “accelerated rehabilitation of persons accused of a crime or crimes . . . .” (Emphasis added.) General Statutes § 54-56e (a). In relevant part, General Statutes § 1-1 instructs: “(a) In the construction of the statutes, words and phrases shall be construed according to the commonly approved usage of the language; and technical words and phrases, and such as have acquired a peculiar and appropriate meaning in the law, shall be construed and understood accordingly.” We conclude that the legislature’s use of the singular, “crime,” and plural, “crimes,” unambiguously reflects the legislature’s intent that the statute may in the court’s discretion be invoked with respect to a defendant accused of either one crime or multiple crimes, regardless of whether those crimes are temporally or otherwise related.

In Tyler, this court viewed the phrase “a crime” as a restriction on the class of persons to whom the statute may be applied. State v. Tyler, supra, 6 Conn. App. 509. That interpretation of what constitutes a “crime” is instructive. Logically, we are compelled, in light of that interpretation, to conclude that the phrase “a crime or crimes” expanded the class of persons to whom the statute may be applied. Consistent with our prior interpretation of the statute, we interpret the revised statute, and its use of the plural, “crimes,” to apply to persons who stand accused of charges arising out of more than one criminal act or transaction.

The statute contains numerous and specific limitations with regard to the persons to whom accelerated rehabilitation could be applied, but there is nothing in the text of any portion of the statute that restricts its application in the manner suggested by the state. Mindful that the legislature has so carefully delineated the class of defendants to whom the statute may be applied, we have no basis on which to restrict the scope of the legislation beyond those restrictions that plainly appear in the text of the statute. “A cardinal rule of statutory construction is that where the words of a statute [or rule] are plain and unambiguous the intent of the [drafters] in enacting the statute [or rule] is to be derived from the words used. . . . We are constrained to read a statute as written . . . and we may not read into clearly expressed legislation provisions which do not find expression in its words . . . .” (Citation omitted; internal quotation marks omitted.) Bank of New York v. National Funding, 97 Conn. App. 133, 140-41, 902 A.2d 1073, cert. denied, 280 Conn. 925, 908 A.2d 1087 (2006) , cert. denied sub nom. Reyad v. Bank of New York, 549 U.S. 1265, 127 S. Ct. 1493, 167 L. Ed. 2d 229 (2007). We are unaware of any related statute or statutes contradicting this interpretation and are convinced that the text of the statute reveals a meaning that is plain and unambiguous and that does not yield an absurd or unworkable result. Accordingly, we have no need to accept the state’s invitation to review the relevant legislative history.

The statute properly may be applied to a person accused of multiple crimes regardless of a connection, temporal or otherwise, between such crimes. We reject the state’s claim that the court’s application of the statute reflected a misconception of the law.

II

Second, the state claims that the court’s decision to grant accelerated rehabilitation to the defendant reflected an abuse of discretion because there was no basis on which to conclude that the defendant probably would not offend in the future. We disagree.

Section 54-56e (b) provides in relevant part: “The court may, in its discretion, invoke such [accelerated rehabilitation] program . . . with respect to a defendant (1) who, the court believes, will probably not offend in the future . . . .” The statute, thus, requires the court to form a belief concerning a defendant’s probable conduct in the future. Neither the statute nor our case law sets forth a test by which to evaluate the court’s determination in this regard. Logically, such a determination must be reached on the basis of the facts and circumstances before the court that are relevant to predicting such future conduct. See State v. Lavorgna, 37 Conn. Sup. 767, 778, 437 A.2d 131 (1981) (“use of the [accelerated rehabilitation] program [is] discretionary with the court and . . . such discretion must be exercised not only in reviewing the qualifications of the offender but also in considering the nature of the particular offense and the circumstances of its commission” [internal quotation marks omitted]).

As set forth previously, we will reverse the court’s decision to grant accelerated rehabilitation only when an abuse of discretion is manifest or when an injustice appears to have been done. Affording eveiy reasonable presumption to the court’s ruling, in light of the facts brought before the court concerning the defendant, the nature of the offenses with which she stood charged and the circumstances surrounding the commission of those offenses, we do not conclude that the court’s decision reflected an abuse of discretion.

The judgments are affirmed.

In this opinion the other judges concurred.

       General Statutes § 54-96 provides: “Appeals from the rulings and decisions of the Superior Court, upon all questions of law arising on the trial of criminal cases, may be taken by the state, with the permission of the presiding judge, to the Supreme Court or to the Appellate Court, in the same manner and to the same effect as if made by the accused.”

       The prosecutor referred to the fact that the defendant was attempting to conceal the “sensor cases” that contained the DVDs at issue.

       The court subsequently signed a transcript of its ruling, thereby bringing its decision into compliance with Practice Book § 64-1.

       Although the court did not file a signed transcript of this ruling in accordance with Practice Book § 64-1, its failure to do so does not in any way affect our ability to review the claims raised in this appeal as the unsigned transcript from the proceeding clearly reflects the basis of the court’s ruling. See State v. James, 93 Conn. App. 51, 57 n.6, 887 A.2d 923 (2006).

       In State v. Angelo, 25 Conn. App. 235, 239-40, 594 A.2d 24, cert. denied, 220 Conn. 911, 597 A.2d 335 (1991), this court held that the state does not have a right to appeal immediately from the decision of a trial court granting a defendant's application for accelerated rehabilitation. Relying on relevant Supreme Court precedent concerning the finality of judgments, this court held that the state’s right to appeal from a court’s decision to award accelerated rehabilitation does not ripen until such time as the court dismisses the charges against the defendant. Id., 240. The defendant urges us to reconsider this decision and, apparently, the authority on which it is based, in favor of permitting an immediate right to appeal from a decision to grant accelerated rehabilitation. We decline to reconsider this court’s earlier holding and, in light of that holding, deem the appeal to be timely.

       At the hearing on July 24, 2007, the prosecutor informed the court that at the time the court granted the applications for accelerated rehabilitation, the state objected to the court’s ruling on legal grounds and expressed its intent to appeal from that decision at the appropriate time. The prosecutor stated: “Today, of course, is the appropriate time. [The defendant] has completed [accelerated rehabilitation]. So, I would ask the court to dismiss each case. Then the state would ask for permission to take the appeal.” The court stated that the defendant had successfully completed her probation and was “entitled to a dismissal by statute.” The court granted the state’s request for permission to file an appeal.
      The defendant claims that she did not request that the court dismiss the charges but that the court’s ruling to dismiss the charges was prompted by the state’s request. The defendant claims that this court should decline to review the state’s claim that the trial court misinterpreted the accelerated rehabilitation statute because the state induced the court to exercise its discretion to dismiss the charges, the judgment from which the state appeals.
      “[T]he term induced error, or invited error, has been defined as [a]n error that a party cannot complain of on appeal because the party, through conduct, encouraged or prompted the trial court to make the erroneous ruling. ... It is well established that a party who induces an error cannot be heard to later complain about that error. . . . This principle bars appellate review of induced nonconstitutional and induced constitutional error.” (Internal quotation marks omitted.) State v. Maskiell, 100 Conn. App. 507, 514, 918 A.2d 293, cert. denied, 282 Conn. 922, 925 A.2d 1104 (2007). The invited error doctrine rests on principles of fairness, both to the trial court and to the opposing party. See State v. Fabricatore, 281 Conn. 469, 482, 915 A.2d 872 (2007).
      Here, the state unambiguously indicated that it disagreed with the court’s decision to grant the defendant’s applications for accelerated rehabilitation, both at the time the court made that decision and at the time the court dismissed the charges. The state proffered a cogent legal argument in opposition to the court’s ruling. When the defendant appeared before the court on July 24, 2007, the state asked for, and was granted, permission to appeal from this ruling. Although the prosecutor asked the court to dismiss the charges against the defendant, it is very clear from the context of this request that the prosecutor did so for the purpose of ripening the state’s right to take an appeal. The court, without appearing to rely on the state’s request, dismissed the charges, stating that the defendant was entitled to such a remedy by operation of the statute. Under these circumstances, it cannot be said that the state prompted the court to make the ruling of which it complains, that the ruling was the product of an improper strategy employed by the state or that the state has in any measure ambushed either the trial court or the defendant by raising this claim on appeal.

       The defendant argues that this claim is not reviewable because it falls outside of the ambit of General Statutes § 54-96, which restricts the state in this criminal appeal to “questions of law See footnote 1. The defendant argues that this claim challenges a discretionary ruling of the trial court and does not raise a question of law. Our Supreme Court has interpreted § 54-96, noting that the “dominant intention of the legislature [in enacting the statute] was to extend the right of appeal to the state . . . .” State v. Avcollie, 174 Conn. 100, 110, 384 A.2d 315 (1977). As the court noted, the limitation on the state’s right of appeal is expressed in the provision requiring the state to obtain the permission of the trial court as a prerequisite to appeal. Id., 109. The defendant’s suggestion that the statute in any manner restricts the type of claims that may be raised by the state is not supported by any relevant authority.