author: BEACH, J.

text:
    STATE OF CONNECTICUT v. PEDRO L. MIRANDA
    (AC 35089)
    Lavme, Beach and Borden, Js.

      Argued April 24
    officially released September 10, 2013

      Alice Osedach, assistant public defender, for the appellant (defendant).

      Melissa L. Streeto, senior assistant state’s attorney, with whom, on the brief, were Gail P. Hardy, state’s attorney, and David L. Zagaja, senior assistant state’s attorney, for the appellee (state).
   Opinion

BEACH, J.

On January 3, 1988, while the relatives with whom she lived were away for the weekend, Carmen Lopez was murdered in her Hartford apartment. In June of that year, Lopez’ one-time boyfriend, Miguel Roman, was arrested and charged with the murder. He ultimately was convicted of murder in violation of General Statutes § 53a-54a and sentenced to sixty years incarceration. Two decades later, an investigation into Roman’s case by the Connecticut Innocence Project led to the reexamination of physical evidence with contemporary DNA testing technologies and the vacating of his conviction. The results of that investigation led to the arrest and conviction of the defendant, Pedro L. Miranda, on charges of capital felony in violation of General Statutes § 53a-54b (5), murder in violation of General Statutes § 53a-54a, felony murder in violation of General Statutes § 53a-54c, and kidnapping in the first degree in violation of General Statutes § 53a-92 (a) (2) (A). He now raises four issues on appeal: (1) that his conviction of murder and felony murder must be vacated pursuant to State v. Polanco, 308 Conn. 242, 61 A.3d 1084 (2013), (2) that there was insufficient evidence to sustain his conviction of kidnapping in the first degree, (3) that the court improperly permitted a detective to testify with respect to the ultimate issue in the case, and (4) that the court improperly denied his request for a missing witness instruction. We agree with the defendant’s first claim only and, accordingly, affirm in part and reverse in part the judgment of the trial court.

On Sunday evening, January 3, 1988, seventeen year old Carmen Lopez was murdered in the Hartford apartment that she shared with her cousin and her cousin’s family. Lopez’ body was discovered late in the day on January 5, when Hartford police officers were dispatched to the apartment to check on her, after relatives and the building manager became concerned that they had not seen or heard from her in several days. The officers discovered a grisly scene in the living room. Behind a couch, in the entryway to an adjacent storage room, they found Lopez’ body. She was lying face down, clad only in red underwear and socks. Her arms were bound behind her back and her feet were tied together. A rag was stuffed in her mouth. One end of a detached electrical cord was wrapped around Lopez’ neck and the other end was attached to the couch’s frame; the effect of this contrivance was to suspend the victim’s head five to eight inches above the floor. The following day, the Office of the Chief Medical Examiner determined that the cause of death was asphyxia due to strangulation.

The initial investigation into Lopez’ murder focused on Roman, who was ultimately arrested on June 10, 1988. No other suspects were developed during the investigation. Roman’s distinctive mustard-colored van had been seen parked in the vicinity of Lopez’ apartment at about the time of the murder. Roman also provided misinformation to the police during two prearrest interviews, heightening their suspicion: he provided inconsistent accounts of when he had last seen Lopez and stated falsely that a friend had borrowed his van from the Sunday afternoon of the murder until the following morning. See State v. Roman, 224 Conn. 63, 66, 616 A.2d 266 (1992), cert. denied, 507 U.S. 1039, 113 S. Ct. 1868, 123 L. Ed. 2d 488 (1993).

Prosecutors developed a motive for the murder during Roman’s trial. Ioannis Merkouris, who was incarcerated with Roman while Roman’s case was pending, told investigators that Roman had confessed to the killing. According to Merkouris, Lopez, who was six months pregnant at the time of her death, had told Roman that she believed that Roman was the father of her unborn child. Lopez had threatened Roman that she would tell his current girlfriend about the pregnancy. Merkouris further told investigators that, in light of these threats, Roman had gone to Lopez’ apartment and killed her. See id., 70-71. Merkouris testified for the state in Roman’s trial. Id. A jury found Roman guilty of murder in violation of § 53a-54a, and the trial court sentenced him to sixty years incarceration. Id., 64.

In 2008, an investigation into Roman’s conviction by the Connecticut Innocence Project prompted the reexamination of physical evidence seized from the crime scene, utilizing DNA testing technology that had advanced significantly since the 1988 investigation. In the spring of 2008, Joy Reho of the state forensic science laboratory swabbed evidence collected from the crime scene in an attempt to obtain “touch” DNA profiles. Among the evidence that Reho swabbed for DNA profiles were terry cloth ligatures used to bind Lopez’ hands, feet and neck; the cloth that was used to gag her; her underpants; the electrical cord used to strangle Lopez; a pack of cigarettes and several cigarette butts that were found at the crime scene. A vaginal swab taken in 1988, which revealed the presence of sperm, was also sent out for further DNA analysis. By the time of Roman’s trial, DNA analysis had ruled him out as its source.

Because of the Innocence Project’s work on behalf of Roman, investigators from the criminal justice division’s cold case unit, including Detective Eric Kovanda, were assigned to reevaluate the case. Reprocessing of the vaginal swab resulted in a “hit notification,” which indicated that the defendant had contributed the semen identified in the swab. In October, 2008, Kovanda and another investigator, Jeff Twohill, went to the defendant’s home, where he lived with his wife, Norma Agosto, a cousin of the victim. Kovanda and Twohill spoke with the defendant and Agosto first individually, and then together. They explained that Roman’s conviction was being challenged on the ground that his DNA profile was not present on the retested physical evidence. Kovanda and Twohill did not tell Agosto and the defendant that DNA testing had preliminarily identified the defendant as the contributor of the semen present in the vaginal swab. Kovanda did inform them that he believed that the person identified as the contributor of the semen revealed in the vaginal swab was responsible for Lopez’ murder because the same DNA profile was found on other “key” pieces of evidence. Upon hearing this, the defendant “grabbed his stomach” and he “started to moan and weep.” The defendant denied ever having had sex with Lopez. He did allow Kovanda and Twohill to perform a buccal swab so that they could compare his DNA profile to profiles present on evidence from the crime scene.

John Schienman, a forensic examiner at the state forensic science laboratory, examined the swabs obtained by Reho in the fall of 2008. He extracted DNA where possible and developed DNA profiles for comparisons to known profiles from Lopez, her unborn child, Roman and the defendant. The defendant’s DNA profile was consistent with the profiles developed from the vaginal swab and the swabs from the underpants, the neck ligature and a cigarette butt. Roman’s DNA profile was consistent with only the profile developed from the genetic material found on the plug end of the electrical cord used to strangle Lopez. Due to the mixture of DNA found on this piece of evidence, however, one in three Hispanic males would register as possible contributors. The conviction of Roman was vacated and he was released from prison after having been incarcerated for nearly twenty years.

In early December, 2008, the defendant was arrested. A jury later found him guilty of capital felony in violation of § 53a-54b (5), murder in violation of § 53a-54a, felony murder in violation of § 53a-54e, and kidnapping in the first degree in violation of § 53a-92 (a) (2) (A). He was found not guilty of capital felony in violation of General Statutes (Rev. to 1987) § 53a-54b (7). The defendant was sentenced to life imprisonment without the possibility of parole for his capital felony conviction; fifty years incarceration for his murder conviction, to run consecutively to his sentence for capital felony; twenty-five years incarceration for his felony murder conviction, to run consecutively to his sentences for capital felony and murder; and twenty-five years incarceration for his kidnapping conviction, to run consecutively to the other three sentences. This appeal followed. Additional facts will be set forth as necessary.

I

We first address the defendant’s claim that his cumulative convictions for capital felony, murder and felony murder, and the consecutive sentences imposed by the court, violate the constitutional prohibitions against double jeopardy. Specifically, the defendant contends that pursuant to our Supreme Court’s recent decision in State v. Polanco, supra, 308 Conn. 242, only one of the three murder convictions can stand and the other two must be vacated. The state agrees that, under Polanco, the murder conviction must be vacated because it is a lesser included offense of capital felony. It disagrees, however, with respect to the felony murder conviction. The state argues that the Polanco decision adopted the vacatur remedy for multiple convictions of greater and lesser included offenses, but not for other scenarios in which cumulative convictions violate the double jeopardy clause. We agree with the defendant.

“Our standard of review for analyzing constitutional claims such as double jeopardy violations . . . presents an issue of constitutional and statutory interpretation over which our review is plenary.” State v. Johnson, 137 Conn. App. 733, 753, 49 A.3d 1046, cert. granted on other grounds, 307 Conn. 927, 55 A.3d 568 (2012), 308 Conn. 938, 66 A.3d 881 (2013). The aspect of the double jeopardy clause relevant to this appeal is its prohibition of “multiple punishments for the same offense [in a single trial]. . . . With respect to cumulative sentences imposed in a single trial, the [d]ouble [j]eopardy [c]lause does no more than prevent the sentencing court from prescribing greater punishment than the legislature intended. . . . Double jeopardy analysis in the context of a single trial is a two-step process. First, the charges must arise out of the same act or transaction. Second, it must be determined whether the charged crimes are the same offense. Multiple punishments are forbidden only if both conditions are met.” (Citations omitted; internal quotation marks omitted.) State v. Chicano, 216 Conn. 699, 706-707, 584 A.2d 425 (1990), cert. denied, 501 U.S. 1254, 111 S. Ct. 2898, 115 L. Ed. 2d 1062 (1991), overruled in part on other grounds by State v. Polanco, 308 Conn. 242, 261, 61 A.3d 1084 (2013).

The general analysis for determining whether two offenses constitute the same offense for double jeopardy purposes was formulated by the United States Supreme Court in Blockburger v. United States, 284 U.S. 299, 52 S. Ct. 180, 76 L. Ed. 306 (1932). The Blockburger test requires a comparison of the two charged offenses, as defined in the criminal statutes, to determine whether each requires proof of a fact that the other does not. Id., 304. If each of the two offenses contains a unique element, then a defendant constitutionally can be convicted and punished for both. Id. Our Supreme Court has recognized that certain homicide offenses, which do not constitute the same offense under a Blockburger analysis, nonetheless raise double jeopardy concerns when the charges arise out of the same criminal transaction. See State v. Chicano, supra, 216 Conn. 705-10. In Chicano, our Supreme Court reaffirmed its holding in State v. John, 210 Conn. 652, 557 A.2d 93, cert. denied, 493 U.S. 824, 110 S. Ct. 84, 107 L. Ed. 2d 50 (1989), that “the intentional murder and the felony murder of a particular victim are the same offense for double jeopardy purposes.” (Emphasis omitted.) State v. Chicano, supra, 710. The court reached this conclusion, in part, because its analysis of the legislative history of the felony murder statute “[indicated] that the legislature contemplated that only one punishment would be imposed for a single homicide, even if that homicide involved the violation of two separate statutory provisions.” (Emphasis in original; internal quotation marks omitted.) Id.

Prior to Polanco, our courts applied the so-called merger remedy when multiple convictions imposed for the same offense violated the double jeopardy clause. State v. Polanco, supra, 308 Conn. 249-50. Under this approach, in the case of greater and lesser included offenses, the sentence imposed for the lesser included offense is vacated, but “the convictions on the lesser counts become combined with that on the compound offense and [are] not . . . merged out of existence. . . . [T]he part of the conviction on the lesser offense [remains] unaffected should the compound offense be invalidated [later] as a matter of law.” (Emphasis in original.) United States v. Osorio Estrada, 751 F.2d 128, 135 (2d Cir. 1984), modified on other grounds, 757 F.2d 27 (2d Cir.), cert. denied, 474 U.S. 830, 106 S. Ct. 97, 88 L. Ed. 2d 79 (1985).

The rationale for “combining” or “merging,” instead of vacating, the convictions was to alleviate the risk of any collateral consequences that may arise as a result of multiple convictions; see id.; but also to prevent a defendant from “[avoiding] all punishment if an appellate court later reversed the single conviction on the compound offense but would have upheld the conviction on the lesser count.” Id., 134; see also State v. Chicano, supra, 216 Conn. 723 (“[t]he argument for vacating only the sentence is that if the conviction on the lesser offense is vacated, the defendant might be able to escape all criminal liability if an appellate court later reversed the conviction on the greater offense”).

In Polanco, our Supreme Court stated that most courts that have considered this rationale for the merger remedy have concluded that vacating the convictions for lesser included offenses does not result in a windfall for the defendant if the conviction of the greater offense is later reversed. The court noted that “it is ... a well established practice in our appellate courts to direct the trial court to render a judgment of conviction on a lesser included offense on which the jury did not even return a verdict, when the conviction for the greater offense is reversed for reasons that do not touch the elements of the lesser offense.” (Emphasis added.) State v. Polanco, supra, 308 Conn. 262-63. In Rutledge v. United States, 517 U.S. 292, 306, 116 S. Ct. 1241, 134 L. Ed. 2d 419 (1996), the United States Supreme Court similarly observed that “federal appellate courts appear to have uniformly concluded that they may direct the entry of judgment for a lesser included offense when a conviction for a greater offense is reversed on grounds that affect only the greater offense.” Having concluded that the justification articulated in Chicano for adopting the merger approach had “since been repudiated,” and that the “[merger] remedy in Chicano is now at odds with the remedy utilized almost uniformly within the Circuit Courts of Appeals,” the Polanco court exercised its supervisory authority to adopt the vacatur approach when a defendant is convicted of greater and lesser included offenses. State v. Polanco, supra, 249. The court explicitly approved the practice of reinstating the conviction of a lesser included offense in the event that the conviction of the greater offense is subsequently reversed for reasons that do not vitiate the previously vacated conviction. Id., 263.

We agree with the state and the defendant that Polanco is clearly controlling with respect to the defendant’s conviction of capital felony and murder because murder is a lesser included offense of capital felony. Therefore, the defendant’s conviction of murder in violation of § 53a-54a must be vacated. In the event that the conviction of capital felony is reversed in the future on a ground that does not affect the murder conviction, that conviction shall be reinstated. See id.

The question left unresolved by Polanco is whether the vacatur approach should apply “with equal force to other scenarios in which cumulative convictions violate the double jeopardy clause . . . .” Id., 249 n.3. Although it declined to decide the issue, the Polanco court suggested that the remedy of vacatur should apply to these “other scenarios,” stating that it “[was] aware of no reason why our holding, of logical necessity,” should be limited to a defendant’s overlapping convictions of greater and lesser included offenses arising out of the same act. Id.

The state makes two arguments against extending the vacatur remedy beyond cumulative convictions of greater and lesser included offenses. We address each argument in turn. First, the state contends that in other scenarios where overlapping convictions violate the double jeopardy clause, there is “no authority” for reinstating a vacated conviction. According to our Supreme Court, however, the vacatur remedy is no more final than the merger remedy; a vacated conviction can be reinstated if the reason for later reversing the principal conviction does not undermine the vacated offense. See State v. Polanco, supra, 308 Conn. 263. Moreover, if substituting a conviction of a lesser included offense is proper “[when] the record establishes that the jury necessarily found, beyond a reasonable doubt, all of the essential elements required to convict the defendant”; (internal quotation marks omitted) id.; then, a fortiori, it is proper to reinstate a vacated conviction when the jury explicitly found the defendant guilty of the vacated offense. Cf. United States v. Dhinsa, 243 F.3d 635, 675 (2d Cir.) (“[i]n cases where we vacated a conviction on the greater offense and instructed the trial court to enter a judgment of conviction on the lesser offense, we noted that the jury was instructed on the lesser offense and that there existed sufficient evidence to sustain a conviction on the lesser offense” [emphasis in original]), cert. denied, 534 U.S. 897, 122 S. Ct. 219, 151 L. Ed. 2d 156 (2001).

In this case, there would be no need to speculate whether the jury necessarily found, beyond a reasonable doubt, all of the elements required to find the defendant guilty of any homicide offenses vacated for double jeopardy purposes, just as there is no call for speculation in the context of lesser included offenses. The court instructed the jury on the elements of capital felony, felony murder and murder, and the jury found the defendant guilty on all three counts. In light of these jury determinations, reinstatement of any vacated murder conviction would be authorized.

The state additionally contends that when two offenses do not constitute the same offense under the Blockburger analysis, there is simply no double jeopardy issue and neither merger nor vacatur is warranted. As a general matter, there is some merit to this argument. See State v. Chicano, supra, 216 Conn. 727 (“If each of two offenses requires proof of a fact that the other does not, the Blockburger test gives rise to the presumption that the legislature intended multiple punishment for the offenses. . . . That presumption is rebutted only by a clear indication of a contrary legislative intent.” [Citation omitted.]); see also State v. Denson, 67 Conn. App. 803, 810-11, 789 A.2d 1075 (no double jeopardy violation where defendant was convicted of two counts of first degree assault, one under General Statutes § 53a-59 [a] [1] and the other under § 53a-59 [a] [2], arising out of same act), cert. denied, 260 Conn. 915, 797 A.2d 514 (2002). Our Supreme Court, however, has specifically concluded that the legislature intended that intentional murder and felony murder are alternative means of committing the same offense and “should be treated as a single crime for double jeopardy purposes.” (Internal quotation marks omitted.) State v. Chicano, supra, 708, citing State v. John, 210 Conn. 652, 695, 557 A.2d 93, cert. denied, 493 U.S. 824, 110 S. Ct. 84, 107 L. Ed. 2d 50 (1989). Blockburger, therefore, is not controlling in this context. Because Chicano holds that felony murder and intentional murder are the same offense for double jeopardy purposes; State v. Chicano, supra, 710; the vacatur remedy adopted in Polanco must apply.

We finally address which of the homicide convictions must stand. In the case of overlapping convictions of greater and lesser included offenses, the remedy is clear: the conviction of the lesser included offense is vacated. State v. Polanco, supra, 308 Conn. 255. Deciding which convictions must be vacated when the cumulative convictions reflect' alternative means of committing the same crime, however, is generally in the discretion of the sentencing court. See State v. Chicano, supra, 216 Conn. 714. Nonetheless, as in Chicano, a remand to the trial court for resentencing is not necessary here. “[T]he intention of the [sentencing court] is clear.” Id. The defendant was sentenced to life without the possibility of parole on the capital felony count; the sentences for murder and felony murder were to run consecutively to the capital felony count. Therefore, “[t]he sentences and the manner in which they were imposed clearly indicate that the [court] intended that the [sentence for capital felony] controls]”; id.; the sentences for murder and felony murder were ancillary. The capital felony conviction stands, but the convictions for murder and felony murder must be vacated.

II

We next address the defendant’s claim that there was insufficient evidence to sustain his conviction of kidnapping. Specifically, the defendant contends that the evidence adduced at trial with respect to the kidnapping of Lopez had no independent criminal significance. We are not persuaded.

The following additional facts, which the jury reasonably could have found, and procedural history are relevant to this claim. Lopez resided in a duplex apartment. Elaine Pagliaro, who investigated the crime scene in 1988 as a criminalist for the state forensic science laboratory, identified several “points of struggle” in the residence, demonstrating a protracted conflict that occurred on both levels. Pagliaro’s analysis included a theory as to the sequence of events that culminated in Lopez’ death. According to Pagliaro, the incident likely began in an upstairs bedroom. Buttons from Lopez’ shirt were found on the landing at the top of the stairs on the second level of the apartment, permitting the inference that they had been tom off as Lopez was forced to the lower level. The altercation continued in the storage area. There was a significant amount of debris found on Lopez’ back and in her hair, including particles of paint and soil-like material, suggesting that she had been dragged across the floor. There were also bruises on Lopez’ face, left shoulder and upper arm, and a laceration on her ear.

The defendant would have eventually subdued Lopez before removing her clothing, which was deposited in the comer of the storage room. Her hands were tied behind her back, and her feet and neck were bound with terry cloth ligatures. A rag was stuffed into her mouth. Finally, an electrical cord was wrapped around Lopez’ neck and fastened to the frame of the couch, which obstructed the doorway into the adjacent living room. Lopez was still alive at the time that she was forced into this makeshift noose, which led to her death from asphyxiation.

The defendant was charged with kidnapping in the first degree in violation of § 53a-92 (a) (2) (A). At the conclusion of the state’s case-in-chief, the defendant moved for a judgment of acquittal on the kidnapping count, arguing that there was insufficient evidence to establish that offense under State v. Salamon, 287 Conn. 509, 949 A.2d 1092 (2008). The court denied the motion.

Consequently, the jury was charged, in relevant part: “A person is guilty of kidnapping in the first degree when he abducts another person and restrains the person abducted with intent to inflict physical injury upon her or violate or abuse her sexually.” The court further instructed the jury that “[i]t is alleged that the restraint used against [Lopez] was to inflict physical injury on her or to violate or abuse her sexually. It is not necessary to restrain a person to inflict physical injury or to violate or sexually abuse that person. Nevertheless, some interference with the person’s liberty may be necessary or incidental to physical injury, sexual abuse or violation. To establish the defendant’s intent to prevent the hberation of [Lopez] independent from the intent to inflict physical injury on her or to violate or abuse her sexually, the state must prove that the defendant intended to prevent her hberation for a longer time or to a greater degree than that which would be necessary to inflict physical injury on [Lopez] or to violate or abuse her sexually. In this regard, the defendant’s intent to prevent her hberation may be manifested by confinement or movement that is more than merely incidental to the other intended acts. In other words, if the confinement or movement is so much a part of the other conduct that it could not be accomphshed without such restraint, then the requisite intent to prevent [Lopez’] hberation has not been established.”

The court additionally delineated several factors that the jury should consider in deciding whether the confinement of Lopez was of independent criminal significance, or whether it was merely incidental to concurrent criminal acts. These factors included the nature and duration of the movement or confinement; whether the restraint was inherent in the nature of the concurrent criminal conduct; whether the restraint precluded Lopez from summoning for assistance; and whether the restraint created a significant danger or increased the risk of harm to Lopez independent of the other criminal acts. So charged, the jury found the defendant guilty of kidnapping in the first degree.

“In reviewing a sufficiency of the evidence claim, we apply a [two part] test. First, we construe the evidence in the light most favorable to sustaining the verdict. Second, we determine whether upon the facts so construed and the inferences reasonably drawn therefrom the jury reasonably could have concluded that the cumulative force of the evidence established guilt beyond a reasonable doubt. . . . The trier may draw whatever inferences from the evidence or facts established by the evidence it deems to be reasonable and logical. ... On appeal, we do not ask whether there is a reasonable view of the evidence that would support a reasonable hypothesis of innocence. We ask, instead, whether there is a reasonable view of the evidence that supports the jury’s verdict of guilty.” (Citations omitted; internal quotation marks omitted.) State v. Delgado, 247 Conn. 616, 620-21, 725 A.2d 306 (1999).

“[A] defendant may be convicted of both kidnapping and another substantive crime if, at any time prior to, during or after the commission of that other crime, the victim is moved or confined in way that has independent criminal significance, that is, the victim was restrained to an extent exceeding that which was necessary to accomplish or complete the other crime.” State v. Salomon, supra, 287 Conn. 547. “[I]n order to establish a kidnapping, the state is not required to establish any minimum period of confinement or degree of movement. When that confinement or movement is merely incidental to the commission of another crime, however, the confinement or movement must have exceeded that which was necessary to commit the other crime. [T]he guiding principle is whether the [confinement or movement] was so much the part of another substantive crime that the substantive crime could not have been committed without such acts . . . .” (Footnote omitted; internal quotation marks omitted.) Id., 546.

“Whether the movement or confinement of the victim is merely incidental to and necessary for [the commission of] another crime will depend on the particular facts and circumstances of each case. Consequently, when the evidence reasonably supports a finding that the restraint was not merely incidental to the commission of some other, separate crime, the ultimate factual detennination must be made by the jury.” (Emphasis in original.) Id., 547-48.

The defendant’s argument is that the restraint and confinement of Lopez was necessary to effectuate the strangulation and, therefore, without independent criminal significance. We disagree. Construing the evidence in the light most favorable to sustaining the verdict, the jury reasonably could have concluded that the acts of confinement and restraint that culminated in Lopez’ death exceeded that which was necessary to commit the murder. The jury reasonably could have accepted Pagliaro’s proffered sequence of events in which Lopez was forcibly moved from the second to the first floor of her apartment, where she was stripped of her clothes and physically assaulted. She was then bound and gagged and essentially hanged from the frame of the couch. The jury could have further inferred from Lopez’ bruises and laceration that the defendant, before committing the murder, subjected Lopez to a period of physical abuse, which required additional confinement. The facts adduced “reasonably supported] a finding that the restraint was not merely incidental” to the murder. (Emphasis omitted.) Id.

A comparison with the underlying facts in State v. Salamon, supra, 287 Conn. 515, supports this result. In Salamon, the defendant assaulted the victim in a stairwell at a train station. Id. As the victim reached the top of the stairs, the defendant grabbed her on the back of her neck, causing her to fall. When she tried to get up, the defendant held her down. When she tried to scream for help, the defendant punched her in the mouth and attempted to put his fingers down her throat. The victim was eventually able to break free and summon help. The altercation lasted about five minutes. Id. The defendant was convicted of, among other offenses, kidnapping in the second degree. Id., 512. The Salamon court revised its construction of this state’s kidnapping statutes, announcing the rule described previously, but denied the defendant’s request for a judgment of acquittal on the kidnapping count. Id., 548-49. The court held instead that “ [o]n the basis of these facts, a juror reasonably could find that the defendant’s restraint of the victim was not merely incidental to his assault of the victim.” Id., 549.

Similarly, here, it was the jury’s prerogative to decide, based on the circumstances, the factual question of whether the acts leading to Lopez’ demise were inherent in the means the defendant enlisted to kill her or whether they supported a separate conviction of kidnapping.

Ill

The defendant additionally claims that the court improperly permitted Kovanda to testify to the ultimate issue in this case, namely, that the identity of Lopez’ murderer was the defendant. The state counters that this precise claim was not raised at trial and, therefore, is not reviewable. If the claim should be reviewable, the state asserts that the court did not abuse its discretion in allowing Kovanda to testify with respect to a statement that he made to the defendant, which caused the defendant to react in a way that suggested consciousness of guilt.

The following additional facts and procedural history are relevant to this claim. Kovanda testified at trial about a meeting that took place in October, 2008, with the defendant and his wife, Agosto, at their home in New Britain. At this point in the investigation, retesting of the vaginal swab taken from Lopez had resulted in a “hit notification” identifying the defendant as the contributor of sperm captured by the swab. Kovanda testified that the purpose of meeting with the defendant and Agosto was twofold: he needed to obtain a buccal swab from the defendant so that confirmatory DNA testing could be performed, and he “had questions that [he] wanted to ask [the defendant] without influencing his behavior” by disclosing the preliminary results of the DNA analysis.

Kovanda began to testify that he told the defendant and Agosto that “we believed that . . . what we were going to find through [DNA] analysis was that the person who was responsible for the sex . . . .’’At that point, the defendant objected “as to the person who was responsible . . . .” The jury was excused and the court heard argument regarding the defendant’s objection.

Kovanda stated to the court that he “had told [the defendant and Agosto] that we believed that the person . . . that was going to be identified in the vaginal swab was going to be the killer because [that person was] also identified in other items of evidence that were key.” Kovanda further stated that, upon telling the defendant and Agosto of this theory, “[the defendant] bent over and grabbed his stomach and started moaning and began to weep.”

The defendant’s attorney then attempted to clarify the nature of his objection. He stated: “[T]he concern I have ... is the characterization of the killer as opposed to merely that this was evidence . . . [that] they expected . . . was going [to] show that [the defendant] had a positive test. But ... to describe him to the jury as ‘we believed that he is the killer,’ just based on a positive vaginal swab or whatever positive test there may come from a DNA analysis, I think that is a characterization that should not be placed before the jury.” The state responded that Kovanda’s statement to the defendant and Agosto was not significant for its truth, but to elicit the defendant’s reaction. The court agreed with the state and instructed the jury as follows: “Detective Kovanda is going to be testifying about what he said. It’s being offered only as his statement, not for the truth of the contents of that statement, but what his statement was and . . . subsequently what the reaction was to that statement.” Kovanda then testified with respect to what he told the defendant and Agosto and the defendant’s reaction.

We first address the state’s argument that the claim on appeal was not raised with sufficient precision at trial. The objection proffered by defense counsel was not entirely clear. He did not explicitly say that he objected to Kovanda’s testimony because it went to the ultimate issue in the case, which was within the province of the fact finder. The essence of this claim, however, was apparent in defense counsel’s assertion that he was concerned with any testimony that suggested that investigators “believe[d] that [the defendant] is the killer . . . .” (Internal quotation marks omitted.) Put simply, defense counsel objected to the propriety of testimony from Kovanda that he and his colleagues had concluded, based on their analysis of the evidence, that the defendant was Lopez’ killer. The court seemingly attempted to address this specific concern by instructing the jury that it should consider Kovanda’s statement to the defendant and Agosto not for its truth, but for its effect on the defendant. We will, therefore, address the merits of the claim.

Section 7-3 (a) of the Connecticut Code of Evidence provides in relevant part: “Testimony in the form of an opinion is inadmissible if it embraces an ultimate issue to be decided by the trier of fact . . . .” “[T]he phrase ultimate issue is not amenable to easy definition. . . . As a rule, however, [testimony is objectionable if it embraces an opinion on the ultimate issue to be decided by the trier of fact.” (Citation omitted; internal quotation marks omitted.) State v. Finan, 275 Conn. 60, 66, 881 A.2d 187 (2005). “Because of the wide range of matters on which lay witnesses are permitted to give their opinion, the admissibility of such evidence rests in the sound discretion of the trial court, and the exercise of that discretion, unless abused, will not constitute reversible error.” (Internal quotation marks omitted.) State v. Spigarolo, 210 Conn. 359, 371, 556 A.2d 112, cert. denied, 493 U.S. 933, 110 S. Ct. 322, 107 L. Ed. 2d 312 (1989).

It was within the court’s discretion to conclude that the testimony with which the defendant takes issue did not constitute Kovanda’s opinion as to who killed Lopez, the ultimate issue in this case. Kovanda stated repeatedly in his testimony that he deliberately withheld information from the defendant, such as the results of the vaginal swab analysis. He further testified that during the interview “[t]here was a bit of a ruse at play” and that “there was a little bit of a twist to the way we were delivering this information initially . . . .” One reason for this evasiveness, Kovanda explained, was to secure the defendant’s cooperation in submitting to a buccal swab. Another reason Kovanda cited was that he “had questions that [he] wanted to ask [the defendant]” without the incriminating DNA analysis “influencing his behavior.” Given the investigative nature of the meeting, what Kovanda told the defendant and Agosto about his “theory” of the case likely would have been understood by the jury as a representation designed to evoke a reaction from the defendant. More to the point, Kovanda was never asked to tell the jury his actual view of the evidence; cf. State v. Finan, supra, 275 Conn. 67-68 (testimony of four police officers that they believed defendant was among perpetrators caught on surveillance video improper, as it went to ultimate issue of identification); rather, he was asked how he portrayed the evidence to the defendant and Agosto.

Any risk that the jury interpreted Kovanda’s testimony as a comment on the ultimate issue in the case was mitigated by the court’s clear instruction to the jury that Kovanda’s statement was not relevant in itself, but only for the reaction it evoked from the defendant. We presume that the jury acted in accordance with the court’s instructions. PSE Consulting, Inc. v. Frank Mercede & Sons, Inc., 267 Conn. 279, 335, 838 A.2d 135 (2004). The court, therefore, did not abuse its considerable discretion by allowing Kovanda to testify as to what he told the defendant and Agosto about the evidence for the limited purpose of presenting the defendant’s quite visceral reaction.

IV

We finally address the defendant’s claim that the court erred in denying his request for a missing witness charge with respect to the state’s decision not to call Roman as a witness. The defendant contends that his “theory of defense [was] that the state had thoroughly investigated this case at the time of the crime and had arrested and convicted the true killer, Miguel Roman.” Therefore, the defendant argues, the state should have produced Roman so that he could “deny the killing . . . .” This claim need not long detain us.

Our Supreme Court abandoned the missing witness instruction in criminal cases in State v. Malave, 250 Conn. 722, 738-39, 737 A.2d 442 (1999) (en banc), cert. denied, 528 U.S. 1170, 120 S. Ct. 1195, 145 L. Ed. 2d 1099 (2000), abrogating Secondino v. New Haven Gas Co., 147 Conn. 672, 165 A.2d 598 (1960). This is reason enough to conclude that the court did not err in declining to so charge the jury. Putting Malave aside, the defendant’s claim misapprehends the rationale for the missing witness charge. “[T]he two requirements for a Secondino adverse inference instruction against a party are that the witness: (1) is available; and (2) could reasonably be expected, by his relationship to the party or the issues, to have peculiar or superior information material to the case that, if favorable, the party would produce.” (Internal quotation marks omitted.) State v. Lewis, 245 Conn. 779, 814, 717 A.2d 1140 (1998). “Whether a party has established the requirements for a Secondino instruction is a factual determination that is committed to the sound discretion of the trial court.” Id.

The 2008 investigation into Lopez’ killing led to the exoneration of Roman and the arrest of the defendant. Given the fact that Roman was cleared of any involvement in the crime, it seems very unlikely that he possessed, or would testify about “peculiar or superior information material”; (internal quotation marks omitted) id.; to the state’s case against the defendant. At most, Roman might have denied that he “confessed” to Merkouris, which confession was presented by the defendant in the form of Merkouris’ testimony from Roman’s trial. The state instead chose to call Kovanda to demonstrate to the jury that Merkouris’ testimony at Roman’s trial was not credible. See footnote 3 of this opinion. An adverse inference was not warranted on the ground that the state chose to rebut the Merkouris testimony with that of someone other than Roman. “A possible witness whose testimony is for any reason comparatively unimportant, cumulative or inferior to what has been offered should be dispensed with on the general ground of expense and inconvenience, without anticipation that an [adverse] inference may be invoked.” (Internal quotation marks omitted.) State v. Lewis, 245 Conn. 815. The court, then, did not abuse its discretion in denying the defendant’s request for a missing witness charge.

The judgment is reversed only as to the conviction of felony murder and murder and the case is remanded with direction to vacate the conviction of those offenses. The judgment is affirmed in all other respects.

In this opinion the other judges concurred.

       A clothes iron without an electrical cord was found outside Lopez’ apartment building on March 8, 1988, after the snow had melted.

       The state did not become aware of Merkouris’ information until the defendant was about to rest his case. See State v. Roman, supra, 224 Conn. 70 n.4. The trial court permitted the state to open its case to present Merkouris’ testimony. Id., 70.

       Later DNA testing proved that Roman was not the father of Lopez’ child.

       Merkouris testified at Roman’s trial, but was deported before the defendant’s trial took place in 2011. Accordingly, Merkouris’ testimony from the Roman trial was read to the jury at the defendant’s trial as part of his defense, which endeavored to show that Roman was in fact Lopez’ killer. Although Merkouris was unavailable to testify, he spoke with Detective Eric Kovanda of the division of criminal justice’s cold case unit in the course of his investigation. Merkouris told Kovanda that he may have misunderstood Roman’s supposed confession to the Lopez murder because Roman’s native language was Spanish and Merkouris’ was Greek. Kovanda also learned that, pursuant to a deal with prosecutors, Merkouris was released for time served approximately one week after his testimony. After Merkouris’ testimony was read to the jury at the defendant’s trial, Kovanda testified with respect to what his investigation had revealed about Merkouris’ credibility.

       Reho explained that the term “touch DNA” refers to the trace biological material that is left behind when a person handles an object.

       It was estimated that the sperm was deposited within twelve hours of Lopez’ death.

       Public Acts 2012, No. 12-5, § 1, effective April 25, 2012, substituted “murder with special circumstances” for “capital felony” in § 53a-54b. At the time of the crimes at issue in this appeal, § 53a-54b (6) was designated as subsection (7). General Statutes (Rev. to 1987) § 53a-54b provides in relevant part: “A person is guilty of capital felony who is convicted of any of the following ... (7) murder committed in the course of the commission of sexual assault in the first degree . . . .”

       The fifth amendment to the United States constitution provides in relevant part: “No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a [g]rand tfluiy . . . nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law . . . .”
      “Although the Connecticut constitution has no specific double jeopardy provision, we have held that the due process guarantees of article first, § 9, include protection against double jeopardy.” (Internal quotation marks omitted.) State v. Miranda, 260 Conn. 93, 119, 794 A.2d 506, cert. denied, 537 U.S. 902, 123 S. Ct. 224, 154 L. Ed. 2d 175 (2002).
      Article first, § 9, of the Connecticut constitution provides: “No person shall be arrested, detained or punished, except in cases clearly warranted by law.”

       The Supreme Court’s decision in State v. Polanco, supra, 308 Conn. 242, was issued after the briefs had been filed in this case, but before oral argument had occurred. We therefore ordered the parties to address Polanco's impact on the resolution of this case at oral argument.

       There is no dispute that the three homicide charges of which the defendant was convicted arose out of the same criminal transaction, that is, the death of Lopez.

       Our Supreme Court has held that “if double jeopardy claims arising in the context of a single trial are raised for the first time on appeal, these claims are reviewable . . . .” State v. Chicano, supra, 216 Conn. 705.

       The court in Chicano further held that intentional murder, felony murder and manslaughter in the first degree are the same offense for double jeopardy purposes. State v. Chicano, supra, 216 Conn. 710.

       Compare § 53a-54b (5) (“[a] person is guilty of murder with special circumstances who is convicted of any of the following . . . minder by a kidnapper of a kidnapped person during the course of the kidnapping or before such person is able to return or be returned to safety”) with § 53a-54a (a) (“[a] person is guilty of murder when, with intent to cause the death of another person, he causes the death of such person or of a third person”).

        But see State v. Sanseverino, 291 Conn. 574, 593-96, 969 A.2d 710 (2009).

       We are unaware of any other cases which hold that crimes that do not constitute the same offense under Blockburger are nonetheless the same offense as a matter of state law. The impact of extending Polanco’s vacatur remedy to these scenarios, therefore, is quite limited.

       The state asserts that the jury reasonably could have found that the defendant sexually assaulted Lopez. The jury, however, found the defendant not guilty of capital felony pursuant to General Statutes (Rev. to 1987) § 53a-54b (7), that is, intentional murder committed in the course of a sexual assault. Therefore, in considering what facts the jury could have found to sustain the defendant’s conviction of kidnapping in the first degree, we do not assume that a sexual assault occurred.

       Pagliaro explained that points of struggle between the victim and the assailant can be identified by evidence of disarray, broken objects, and bloodstains, among other things.

       That Kovanda was essentially engaging in investigatory sleight of hand in his interview with the defendant and Agosto is corroborated by the fact that the state’s request for DNA analysis of the evidence collected from the victim’s apartment was not submitted until October 28,2008, one week after the interview. Therefore, Kovanda could not have known for a fact that the DNA profile obtained from the semen found in the vaginal swab was consistent with DNA profiles developed from other critical pieces of evidence.

       Although the defendant filed a request to charge the jury with a missing witness instruction, he appears not to have made any arguments in support of this request. In denying the request for the charge, the court stated that “both sides, equally, could have called [Roman] . . . and also it’s not an appropriate charge, it’s been deleted for [a] reason.” The court permitted the defendant to reference the state’s failure to call Roman in his closing argument, but the defendant did not avail himself of this opportunity.


source: Caselaw Access Project

author: PETERS, J.

license: Public Domain

text:
    DDS WIRELESS INTERNATIONAL, INC. v. NUTMEG LEASING, INC.
    (AC 34278)
    Robinson, Bear and Peters, Js.

      Argued March 21
    officially released September 10, 2013

      Linda L. Morkan, with whom, on the brief, was Christopher J. Hug, for the appellant (plaintiff).

      Matthew Popilowski, with whom, on the brief, was Donn A. Swift, for the appellee (defendant).
   Opinion

PETERS, J.

The principal issue in this appeal is whether a court may authorize a purchaser of goods and services that is dissatisfied with the seller’s performance to terminate its contract with the seller, without compliance with the contract’s unequivocal termination provision, by invoking the doctrine of frustration of purpose. Under the circumstances of this case, in which the validity of the termination provision has not been challenged, we reverse the judgment of the trial court excusing performance by the purchaser.

On January 19,2011, the plaintiff, DDS Wireless International, Inc., filed a complaint alleging that the defendant, Nutmeg Leasing, Inc., was in breach of contract, having unilaterally repudiated the parties’ service agreement prior to its expiration. The defendant admitted to terminating the service agreement but denied its liability, asserting three special defenses: (1) the plaintiff materially had breached the contract; (2) the purpose of the contract had been frustrated; and (3) performance was impracticable. After a one day bench trial on January 6, 2012, the court rendered judgment in favor of the plaintiff, but concluded that the purpose of the service agreement had been frustrated and that the plaintiff, therefore, was not entitled to the full contract price. The court excused the defendant from its remaining obligations under the contract and rendered judgment in favor of the plaintiff limited to the amount owed under the contract prior to the defendant’s termination of the service agreement. On appeal, the plaintiff claims that it is entitled to the full contract price.

The record reveals certain undisputed facts relevant to this appeal. In 1997, the defendant purchased from the plaintiff a mobile digital dispatch system for use in its operation of a fleet of taxi cabs. The system, composed of computer equipment operating from a central dispatcher location and terminals installed into individual taxi cabs, was designed to facilitate communication between the dispatcher and taxi drivers. At the time of the purchase, the defendant also entered into a service agreement with the plaintiff. That contract provided that the plaintiff would conduct any necessary maintenance of the system for a set period of time. The service agreement, which is the subject of this appeal, required that the defendant make quarterly payments in exchange for the plaintiff’s maintenance of the dispatch system.

On June 30, 2006, the parties renewed the service agreement for a period of five years through June 29, 2011. The contract included a termination provision giving either party the opportunity to end the relationship under certain circumstances. The provision provided that “[i]f either party fails to perform its obligations under this Agreement and such failure continues for a period of 30 days after written notice from the other party, the other party shall have the right to terminate this Agreement.”

On September 23, 2010, the defendant sent a letter to the plaintiff informing it that it was no longer using the dispatch system and was, therefore, terminating the contract as of September 30, 2010. It is undisputed that this was the first written communication between the parties concerning a termination of the contract and that the defendant did not provide written notice to the plaintiff detailing its failure to perform any of its obligations under the contract. The plaintiff refused to accept the defendant’s letter as a termination of the contract and demanded continued payment under its terms. After the defendant failed to pay the remaining nine months of payments owed pursuant to the contract, the plaintiff initiated the present action.

At trial, William Scalzi, a principal of the defendant, testified regarding the propensity of the dispatch system and its components to malfunction, a situation that allegedly created significant problems with the operation of the defendant’s taxi business. Although this testimony appears to be a basis for the trial court’s ultimate conclusion that the purpose of the contract was frustrated, the record contains no specific findings as to the cause or extent of the malfunctions, the impact of the malfunctions on the defendant’s finances, the responsibility of each party for the malfunctions, or any other findings relevant to a determination of a frustration of purpose. We note that neither party sought articulation from the trial court in order to clarify its ruling.

On appeal, the plaintiff claims that the court improperly determined that the purpose of the contract was frustrated by the high malfunction rate of the taxi cab terminals and that the plaintiff, therefore, is entitled to full contractual damages pursuant to the terms of the contract. The plaintiff argues, inter alia, that the doctrine of frustration of purpose does not apply because the contract’s termination provision gave the plaintiff an opportunity to resolve the defendant’s claims of malfunctions without providing the defendant an opportunity unilaterally to repudiate the contract. We agree that the court improperly concluded that the defendant was excused from performing its obligations on the basis of frustration of purpose, and, accordingly, we reverse the judgment of the court.

We begin by setting forth the applicable standard of review. “Where . . . there is clear and definitive contract language, the scope and meaning of that language is not a question of fact but a question of law.” (Internal quotation marks omitted.) Antonino v. Johnson, 113 Conn. App. 72, 75, 966 A.2d 261 (2009). “When . . . the trial court draws conclusions of law, our review is plenary and we must decide whether its conclusions are legally and logically correct and find support in the facts that appear in the record.” (Internal quotation marks omitted.) Biro v. Matz, 132 Conn. App. 272, 278, 33 A.3d 742 (2011).

At trial, the court found that the defendant “anticipated a working system, and the system didn’t work up to par” and that, despite the “best efforts by [the plaintiff] to repair and do the best [it] could . . . [the system] just didn’t work. It didn’t—it failed.” The court concluded that “there’s been a failure of the purpose of the contract,” but did not articulate what that purpose was or why the defendant was justified in terminating the contract prematurely. Accordingly, we are not persuaded that the court’s conclusion that a frustration of purpose excused the defendant from complying with the requirements of the termination provision is supported by the facts that appear in the record.

“[I]n private disputes, a court must enforce the contract as drafted by the parties and may not relieve a contracting party from anticipated or actual difficulties undertaken pursuant to the contract, unless the contract is voidable on grounds such as mistake, fraud or unconscionability.” Holly Hill Holdings v. Lowman, 226 Conn. 748, 756, 628 A.2d 1298 (1993). “The doctrine of frustration of puipose . . . excuses a promisor in certain situations where the objectives of the contract have been utterly defeated by circumstances arising after the formation of the agreement.” Hess v. Dumouchel Paper Co., 154 Conn. 343, 350-51, 225 A.2d 797 (1966).

The doctrine of frustration of purpose was first recognized in the tum-of-the-century English case of Krell v. Henry, 2 K.B. 740 (C.A. 1903) In that case, a spectator entered into a contract to rent an apartment for the purpose of viewing the procession for the coronation of King Edward VIL When the coronation was postponed and the procession cancelled, the spectator refused to pay for the rental, breaching the contract. Id. When the apartment owner sued, the court excused the breach, holding that the “coronation procession was the foundation of this contract”; id., 751; and that “the object of the contract was frustrated by the non-happening of the coronation and its procession on the days proclaimed.” Id., 754. The court implicitly determined that had the parties contemplated the possibility of the coronation being cancelled, they would have included a provision allowing the spectator to terminate the contract under those circumstances. Thus, the doctrine of frustration of purpose, as it originated and has since been applied by Connecticut courts, acts to provide an excuse for nonperformance by a party whose purposes were thwarted by events the parties did not contemplate and could not foresee. See O’Hara v. State, 218 Conn. 628, 638, 590 A.2d 948 (1991) (“[u]nder the doctrine of frustration of purpose . . . the event upon which the obligor relies to excuse his performance cannot be an event that the parties foresaw at the time of the contract”); 2 Restatement (Second), Contracts § 265, comment (a) (1981) (party claiming that supervening event or contingency has frustrated, and thus excused, promised performance must demonstrate that “the nonoccurrence of the [supervening] event [was] a basic assumption on which the contract was made”).

The circumstances of the present case do not establish such a frustration of purpose. Here, the parties plainly did contemplate a situation in which the defendant would not be satisfied with the dispatch system or the service provided by the plaintiff. The parties, accordingly, chose to include a termination provision in the contract to give the defendant a legal avenue to end its relationship with the plaintiff. We conclude, therefore, that because the parties foresaw that the defendant might be dissatisfied with the plaintiffs maintenance of the dispatch system, the actual occurrence of this event did not excuse the defendant’s duty to perform its obligations under the contract. See O’Hara v. State, supra, 218 Conn. 639. Furthermore, the defendant does not dispute that it failed to comply with the contract’s termination provision. The trial court’s determination that the defendant could end the contractual relationship without consequences by a doctrine that was not applicable to the circumstances of the parties, and by an action not contemplated by the contract, was improper.

In light of the foregoing, we conclude that the trial court improperly relied on the doctrine of frustration of purpose in excusing the defendant from the nonperformance of its obligations pursuant to the service agreement. As this was the sole basis for the court’s decision, we do not address any alternative theory that might have excused the defendant’s nonperformance, if alleged and proved. Any such issues require findings of fact and, therefore, must be adjudicated by the trial court.

The judgment is reversed and the case is remanded for a new trial.

In this opinion the other judges concurred.

       “It is well established that [a]n articulation is appropriate where the trial court’s decision contains some ambiguity or deficiency reasonably susceptible of clarification. . . . [P]roper utilization of the motion for articulation serves to dispel any . . . ambiguity by clarifying the factual and legal basis upon which the trial court rendered its decision, thereby sharpening the issues on appeal.” (Internal quotation marks omitted.) Priest v. Edmonds, 295 Conn. 132, 140, 989 A.2d 588 (2010).

       The plaintiff also argues that the defendant may not be excused from performance under the contract on the basis of the plaintiffs alleged material breach because the defendant did not plead such a defense or, alternatively, because the plaintiff was not afforded an opportunity to correct the problem with the terminals as required by the terms of the contract. As we have previously explained, the trial court ruled on the basis of the doctrine of frustration of purpose, not on a finding of material breach. Although the defendant argued material breach at trial, the court declined to address the issue.
      “When an issue is raised in the trial court but the court declines to address it, an appellate court may consider it if the facts are undisputed and the issue is purely a question of law. . . . When it is unclear from the record whether the trial court based its decision on factual or legal conclusions any decision made by [this court] respecting [the plaintiffs claims] would be entirely speculative.” (Citation omitted; internal quotation marks omitted.) Stone-Krete Construction, Inc. v. Eder, 280 Conn. 672, 684-85, 911 A.2d 300 (2006). In this case, whether the plaintiff breached the contract involves disputed facts concerning the plaintiffs maintenance of the terminal system and the system’s functionality. Furthermore, as we have noted, neither party requested an articulation of the trial court’s reasoning with regards to the breach of contract issue. As it is not the function of this court to find facts when the record is devoid of such findings, we decline to review the plaintiffs claim. See State v. Sargent, 87 Conn. App. 24, 30, 864 A.2d 20, cert. denied, 273 Conn. 912, 870 A.2d 1082 (2005).

       A party claiming that a supervening event or contingency has frustrated, and thus excused, a promised performance must demonstrate that: (1) the event substantially frustrated his principal purpose; (2) the nonoccurrence of the supervening event was a basic assumption on which the contract was made; (3) the frustration resulted without the fault of the party seeking to be excused; and (4) the party has not assumed a greater obligation than the law imposes. 2 E. Farnsworth, Contracts (3d Ed. 2004) § 9.7, pp. 652-53; see also 2 Restatement (Second), Contracts § 265 (1981).

       The relevant provision provides: “If either party fails to perform its obligations under this Agreement and such failure continues for a period of 30 days after written notice from the other party, the other party shall have the right to terminate this Agreement.”

       For example, we do not consider whether the plaintiff, in furnishing the defendant with allegedly faulty terminals, breached the implied warranties of merchantability or fitness for a particular purpose. See General Statutes §§ 42a~2-314 and 42a-2-315; Schenck v. Pelkey, 176 Conn. 245, 255, 405 A.2d 665 (1978) (“[a] dealer who sells articles which ordinarily are used in only one way impliedly warrants fitness for use in that particular way” [internal quotation marks omitted]).


author: LAVINE, J.

text:
    STATE OF CONNECTICUT v. PETER J. SEBBEN
    (AC 34655)
    Gruendel, Lavine and Beach, Js.

      Argued April 11
    officially released September 10, 2013

      Hubert J. Santos, with whom, on the brief, were Hope C. Seeley and Jessica M. Santos, for the appellant (defendant).

      Michael Proto, assistant state’s attorney, with whom, on the brief, were David Shepack, state’s attorney, and
      Dawn Gallo, senior assistant state’s attorney, for the appellee (state).
   Opinion

LAVINE, J.

The defendant, Peter J. Sebben, filed this appeal after the trial court denied his motion to dismiss the criminal charges against him. The defendant based his motion to dismiss on double jeopardy grounds after his plea bargain was rejected and the trial court permitted the state to file a second amended information reinstating the original charges. The state claims that this court lacks subject matter jurisdiction to consider this interlocutory appeal because the defendant has failed to raise a colorable claim of double jeopardy. Under the circumstances of this case, we agree with the state that the defendant has failed to raise a color-able claim of double jeopardy pursuant to State v. Thomas, 296 Conn. 375, 995 A.2d 65 (2010). We therefore lack jurisdiction and thus dismiss the appeal.

The following facts and procedural history are relevant. The defendant and the victim, Tonya McKay, were in an on-again, off-again, sometimes violent, relationship. At approximately 6 a.m. on January 1, 2000, the defendant drove the victim to the emergency department of Charlotte Hungerford Hospital in Torrington. The victim was unresponsive and appeared to be suffering from a head injury. The defendant informed hospital personnel that the victim had injured herself by banging her head on the floor and that he became aware of her injury when she soiled herself in bed. Emergency department personnel saw no evidence of soiling, but they observed marks and bruises on the victim’s body. They, and later police, also observed what appeared to be a fresh scratch on the defendant’s neck. At approximately 8 a.m., an emergency department physician telephoned the Torrington Police Department to report that a twenty-seven year old female had been brought to the hospital and that she may have been assaulted.

To examine the victim, emergency department personnel had to remove her clothing, which they placed in a patient belongings bag. They gave the bag to the defendant. The authorities were subsequently unable to locate the clothing the victim was wearing when she arrived at Charlotte Hungerford Hospital. After 8 a.m. on the morning in question, one of the victim’s neighbors saw the defendant enter the victim’s home and emerge carrying some items of clothing.

Later that morning, the victim was taken to Hartford Hospital. The defendant appeared at Hartford Hospital and engaged in a verbal dispute with the victim’s parents, Samuel McKay and JoAnn McKay. The defendant gave the victim’s parents the bag from Charlotte Hun-gerford Hospital, which contained items of clothing and the victim’s purse. The clothing in the bag was not the clothing the victim was wearing when she entered Charlotte Hungerford Hospital.

Hartford Hospital personnel determined that the victim was brain dead. On January 7, 2000, the victim was removed from life support equipment and died. Thereafter, police interviewed medical personnel, the victim’s parents, her neighbors, and the defendant. The police obtained a number of search and seizure warrants, which they executed at the victim’s home in New Hartford, the defendant’s home in Winchester, and on the defendant’s person. Police found bite marks on the defendant’s body that, according to a dentist, were caused by the victim. After reviewing the victim’s medical records, autopsy report, and police reports, the chief medical examiner certified that the victim’s death was a homicide caused by blunt force trauma to her head.

On December 28, 2004, the state charged the defendant with one count of manslaughter in the first degree in violation of General Statutes § 53a-55 and one count of tampering with or fabricating physical evidence in violation of General Statutes § 53a-155. Following numerous pretrial conferences, the defendant offered to plead nolo contendere to misdemeanor charges. On November 29, 2006, the date of the defendant’s plea hearing, the state filed a first substitute information charging the defendant with criminally negligent homicide in violation of General Statutes § 53a-58 and reckless endangerment in the first degree in violation of General Statutes § 53a-63. The defendant pleaded nolo contendere to those charges. The plea agreement did not include an agreed-upon punishment. The victim’s parents were not present at the plea hearing, but the prosecutor represented that they had agreed to the plea bargain, believing “that this would be the most appropriate way to proceed under all the circumstances.” The prosecutor stated that the victim’s parents would be present and speak at the sentencing hearing.

Before the court, Brunetti, J., accepted the defendant’s nolo contendere plea, it addressed the defendant. The court stated that each of the crimes to which the defendant was pleading nolo contendere was a class A misdemeanor that carried a penalty of one year in prison, a fine of $2000, or both. The maximum penalty the defendant faced was two years in prison and a fine of $4000. The court also canvassed the defendant, including asking whether the facts represented by the prosecutor supported the plea. Defense counsel stated in response to the court’s question: “In substance, those are the facts. There is a great dispute on some of the facts, and they’re going to be addressed in a sentencing memorandum. But in substance, those are the facts.” The court found that the defendant’s plea was knowingly and voluntarily made with the effective assistance of counsel and that there was a factual basis for the plea. The court then stated: “The matter’s being continued for a presentence investigation due February 9, [2007].” (Emphasis added.)

The parties again appeared before Judge Brunetti on May 25, 2007. At that time, the court noted that the case had been set down for sentencing, but had been continued so the court could review the file more thoroughly. The court stated that it had “had another occasion to read the police reports, the medical documentation, the [presentence investigation report], the sentencing memoranda filed ... on behalf of [the victims’] parents and the defense. The court has found this to be a very difficult decision to make. It was brought to my attention that there are some discrepancies in the [presentence investigation report] that was prepared by the state, some questions concerning the information in that [presentence investigation report]. In view of that, the court is going to order a new presen-tence investigation in this case basically for the purpose that I want to be fair to everybody involved in this case.” The court again continued sentencing until August 17, 2007.

On August 17, 2007, the prosecutor, the victim’s parents, the defendant, and defense counsel addressed the court. When the court addressed the defendant, it informed him that it had read his sentencing memorandum, the arrest warrant application, the sentencing materials provided by the victim’s parents, and the two presentence investigation reports. The court stated in part: “This case involves . . . the death of a twenty-seven year old woman, whether or not [the defendant] was the cause of that death or could have prevented that death, this court does not know. The evidence is certainly conflicted. However, a twenty-seven year old woman is dead, and the last person who was with her was [the defendant].

“One of the reasons we have presentence investigations and presentence memorandum, presentencing information, is so the court can decide if the plea arrangement which in fact was entered into is an appropriate one, and I appreciate the fact that this case has gone on for seven and a half years and everyone needs closure. However, the court cannot ignore the fact of the death of this young woman in these circumstances. The court therefore finds, based on everything that I have heard, read, said, and did in this case, that the plea bargain in this case is not appropriate.”

The court afforded the defendant the opportunity to withdraw his plea. Defense counsel immediately withdrew the defendant’s plea. The court set the case down for another pretrial hearing on October 2, 2007. The court also granted the state the right to file a substitute information. On August 22,2007, the state filed a second substitute information reinstating the initial charges against the defendant of manslaughter in the first degree and tampering with or fabricating evidence.

On March 2, 2012, the defendant filed a motion to dismiss the charges on the grounds that they were barred by the statute of limitations and violated the prohibition against double jeopardy. The state objected to the motion to dismiss. Following oral argument, the court, Ginocchio, J., denied the defendant’s motion to dismiss. Judge Ginocchio found the present case legally indistinguishable from State v. Thomas, supra, 296 Conn. 375.

The defendant appealed, claiming that the court improperly denied his motion to dismiss in violation of the constitutional prohibition against double jeopardy. The state filed a motion to dismiss the interlocutory appeal for lack of a final judgment. The state acknowledges that a colorable claim of double jeopardy generally falls within the second prong of State v. Curdo, 191 Conn. 27, 31, 463 A.2d 566 (1983) (“so concludes the rights of the parties that further proceedings cannot affect them”), but asserts that under State v. Thomas, supra, 296 Conn. 375, the defendant’s double jeopardy claim is not colorable because the court’s acceptance of the defendant’s plea was conditional. The state points out that the court was awaiting a presentence investigation report and a statement from the victim’s parents. The state therefore contends this court lacks subject matter jurisdiction. We agree that the defendant has failed to raise a colorable claim of double jeopardy because his plea was conditional and he had no reasonable expectation of finality. Consequently, we conclude that his appeal has not been taken from a final judgment. We therefore grant the state’s motion to dismiss and dismiss the appeal for lack of jurisdiction.

Whenever a jurisdictional question is raised, the court must resolve it before it may proceed further with an appeal. Johnson v. Commissioner of Correction, 258 Conn. 804, 813, 786 A.2d 1091 (2002). “It is axiomatic that appellate jurisdiction is limited to final judgments of the trial court. . . . [T]here is a small class of cases [however] that meets the test of being effectively unre-viewable on appeal from a final judgment and therefore, is subject to interlocutory review. The paradigmatic case in this group involves the right against double jeopardy. . . . Because jeopardy attaches at the commencement of trial, to be vindicated at all, a colorable double jeopardy claim must be addressed by way of interlocutory review. The right not to be tried necessarily falls into the category of rights that can be enjoyed only if vindicated prior to trial, and, consequently, [is reviewable in an interlocutory appeal] . . . .” (Citations omitted; emphasis omitted; internal quotation marks omitted.) State v. Crawford, 257 Conn. 769, 774-75, 778 A.2d 947 (2001), cert. denied, 534 U.S. 1138, 122 S. Ct. 1086, 151 L. Ed. 2d 985 (2002). Although the defendant claims on appeal that Judge Ginocchio improperly denied his motion to dismiss the charges, the essence of his claim is that Judge Brunetti violated the double jeopardy protection afforded him by vacating his guilty plea and permitting the state to reinstate the original charges. We conclude that the defendant has failed to raise a colorable claim of double jeopardy and disagree that his nolo contendere plea was unconditional and that he had a reasonable expectation of finality at the time he entered his plea. See State v. Thomas, supra, 296 Conn. 395.

The issue of whether a trial court violates the prohibition against double jeopardy when it vacates a defendant’s guilty plea conditioned on the court’s review of a presentence investigation report was decided by our Supreme Court in State v. Thomas, supra, 296 Conn. 375. In Thomas, the court concluded that that defendant “did not have a reasonable expectation of finality in his plea agreement because the trial court’s acceptance of his plea was conditional rather than unequivocal.” (Emphasis added.) Id., 395. Although the defendant in this case claims that the facts here are distinguishable from those in Thomas, we conclude that any factual differences do not alter the conclusion that Judge Bru-netti’s acceptance of the defendant’s plea of nolo con-tendere was conditional. The defendant’s plea was conditioned on the court’s review of the presentence investigation report and the right of the victim’s parents to participate meaningfully in the sentencing.

“The double jeopardy clause of the United States constitution guarantees that no person shall be subject for the same offense to be twice put in jeopardy of life or limb .... U.S. Const., amend. V. The double jeopardy clause provides several protections—it protects against a second prosecution for the same offense after acquittal, a second prosecution for the same offense after conviction, and multiple punishments for the same offense. . . . The policy justifications for prohibiting successive prosecutions include: (1) furthering society’s interest in protecting the integrity of final judgments; and (2) protecting individuals from prosecutorial overreaching and the continued embarrassment, anxiety and expense associated with repeated attempts to convict.” (Citation omitted; internal quotation marks omitted.) State v. Thomas, supra, 296 Conn. 383-84. “The double jeopardy clause will bar a second prosecution only if jeopardy attach[ed] in an earlier proceeding.” (Internal quotation marks omitted.) Id., 384.

“Courts have focused on the following four considerations when deciding the point at which jeopardy attaches to a guilty plea: (1) whether the court has accepted the defendant’s guilty plea; (2) whether the court has rendered judgment and sentenced the defendant; (3) whether the court's acceptance of the plea was conditional, and (4) whether the circumstances surrounding the court’s acceptance of the plea implicate the policy concerns underlying the double jeopardy protection. The first two considerations focus on specific points in the judicial process. . . . The last two considerations focus on the nature of the court’s acceptance of a guilty plea.” (Citations omitted; emphasis added.) Id., 386. Our Supreme Court has determined that the question of whether jeopardy attaches to a guilty plea must be determined “by analyzing the particular circumstances relating to the guilty plea in fight of the policy considerations underlying the double jeopardy protection.” (Emphasis added.) Id., 388.

In Thomas, our Supreme Court emphasized that “as a matter of Connecticut law, the trial court’s acceptance of [a] defendant’s guilty plea [is] conditioned upon the results of the presentence investigation. A trial court lacks the authority to unconditionally accept a guilty plea prior to considering the results of a pending presen-tence investigation report.” (Emphasis in original.) Id. In reaching this conclusion, the court cited Practice Book § 43-10. Id.

I

On appeal, the defendant claims that the court improperly denied his motion to dismiss the charges in the second amended information because the defendant’s plea of nolo contendere was not conditional and he had a reasonable expectation of finality. In his brief, the defendant presents four arguments as to why State v. Thomas, supra, 296 Conn. 375, is not controlling: (1) the presentence investigation report was not statutorily mandated, (2) the plea negotiations pertained to his plea, not the plea agreement, (3) the original charges were not pending at the time he pleaded nolo conten-dere, and (4) the court was not waiting for the victim’s parents to exercise their right to participate in sentencing. None of the defendant’s arguments presents a legally meaningful distinction from Thomas.

A

The defendant first claims that a presentence investigation report was not statutorily mandated in this case, as he was not charged with a felony in the first amended information. The defendant’s argument is unpersuasive because our statutes and rules of practice permit the trial court to exercise its discretion to order a presen-tence investigation for any crime. See General Statutes (Rev. to 1999) § 54-91a (a) and Practice Book § 43-3.

Although a presentence investigation was not statutorily mandated here, § 54-91a (a) and our rules of practice; see Practice Book § 43-3; provide that the court may “in its discretion, order a presentence investigation for a defendant convicted of any crime or offense.” (Emphasis added.) “Modem precepts of penology require that the discretion of a sentencing judge to impose a just and appropriate sentence remain unfettered throughout the sentencing proceedings. Where a presentence investigation report is statutorily mandated, a judge cannot make any promise or determination of the sentence he will impose before he has reviewed the report.” (Internal quotation marks omitted.) State v. Thomas, supra, 296 Conn. 388-89, quoting State v. DeJesus, 10 Conn. App. 591, 603-604, 524 A.2d 1156 (1987). DeJesus relied on this court’s decision in State v. Schaeffer, 5 Conn. App. 378, 387, 498 A.2d 134 (1985), overruled on other grounds by State v. Das, 291 Conn. 356, 368, 968 A.2d 367 (2009).

“The sole purpose [of a presentence investigation] is to enable the court, within limits fixed by statute, to impose an appropriate penalty, fitting the offender as well as the crime.” (Internal quotation marks omitted.) State v. Miller, 56 Conn. App. 191, 201, 742 A.2d 402 (1999), cert. denied, 252 Conn. 937, 747 A.2d 4 (2000). The record is clear that the court was mindful of its role as the sentencing authority and the purpose of a presentence investigation report. In fact, in a further effort to understand the circumstances of this extremely serious case, the court ordered a second presentence investigation when it concluded there were factual discrepancies in the first presentence report. The court’s ordering of a second presentence investigation reasonably can be interpreted as further evidence of the conditional nature of the defendant’s plea.

Under the circumstances of this case, the court properly exercised its discretion, as permitted by statute, to order a presentence investigation as a necessary component of its determination of the appropriate punishment. “At the time of the acceptance of a guilty plea where a presentence investigation report is necessary, there can be no unconditional promise of the court that a particular sentence will be imposed because that would violate the statutory mandate for such a report and public policy. Any bargain of the parties must be contingent upon its acceptance by the court after its review of the presentence investigation report. There is a difference between the entitlement of a defendant to a particular sentence and the expectation of the defendant that the trial court will follow the recommendation for a particular sentence.” (Emphasis added.) State v. Schaeffer, supra, 5 Conn. App. 387.

Moreover, whether the defendant was charged with a felony or a misdemeanor and whether the presentence investigation was required by statute does not change the conditional nature of the court’s acceptance of his plea. “[0]nce the trial court ordered the presentence investigation, the trial court’s acceptance of the defendant’s plea agreement necessarily became contingent upon the results of the presentence investigation report. Otherwise, the presentence investigation report would be little more than a nullity, and our law makes clear that these reports are to play a significant role in reaching a fair sentence. Simply put, any plea agreement must be contingent upon its acceptance by the court after [the court’s] review of the presentence investigation report.” (Internal quotation marks omitted.) State v. Gregorio, 137 Conn. App. 104, 121, 46 A.3d 1033, cert. denied, 307 Conn. 912, 53 A.3d 997 (2012). At the time the court accepted the defendant’s plea, the court continued sentencing until it had reviewed the presentence investigation and other documents in the file. Although the court did not tell the defendant that his plea was conditional, the fact that the defendant’s plea was conditional was implicit in the court’s continuing the matter for sentencing.

B

The defendant next argues that Thomas does not control because Thomas pertained to a plea agreement, not the plea itself. The two cases are united, however, by the fact that the trial court in each case vacated a conditional guilty plea and addressed whether “the double jeopardy clause of the fifth amendment to the United States constitution bars a trial court from vacating a previously accepted guilty plea if the court later determines, on the basis of new information uncovered during the presentence investigation, that the sentence contemplated by the plea agreement is inappropriate.” State v. Thomas, supra, 296 Conn. 377.

In Thomas, the parties had agreed to the length of the defendant’s sentence; here, the length of the defendant’s sentence had not been agreed upon. The fact that the length of the defendant’s sentence was not part of the plea agreement is further evidence of the conditional nature of the plea.

“[J]eopardy does not attach at a hearing on a guilty plea until the plea is unconditionally accepted. . . . Until a final judgment is entered a court is free to reject the plea and plea agreement. . . . Rejection of one is rejection of the other.” (Internal quotation marks omitted.) Id., 393, quoting State v. Todd, 654 S.W.2d 379, 383 (Term. 1983). As in Thomas, the totality of the circumstances surrounding the court's acceptance of the defendant’s nolo contendere plea and the continuance of the case for sentencing indicate that the case had not concluded. Our Supreme Court has stated that “the rules of practice allow a trial court to abandon a previously accepted plea agreement due to the presentation of new information uncovered by a presentence investigation report, impose a harsher sentence and give the defendant the option of withdrawing his plea.” State v. Thomas, supra, 296 Conn. 393-94. Although the record does not identify a specific fact that the court relied upon in deciding that the defendant’s plea bargain was not appropriate, the court obviously was troubled by irregularities in the first presentence investigation report and requested a second independent presentence investigation. The powerful statements from the victim’s parents may have influenced the court’s decision that the charges alleged against the defendant in the first amended information were not appropriate for the corpus delicti, i.e, the unexplained death of a twenty-seven year old woman who was last in the company of the defendant.

“The imposition of an appropriate sentence is the function of the court regardless of the bargain of the parties.” (Emphasis added; internal quotation marks omitted.) State v. Gregorio, supra, 137 Conn. App. 105-106. “[U]ntil sentence is pronounced, the trial court maintains power to impose any sentence authorized by law; and, though the sentencing judge may be conscience-bound to perform his own prior agreements with counsel and the parties, the court is not in law bound to impose a sentence that once seemed, but no longer seems, just and appropriate .... In those circumstances in which the judge cannot in conscience impose the sentence conditionally promised, it has been uniformly recognized that the only obligation he has is to grant the defendant the opportunity to withdraw his guilty plea.” (Emphasis omitted; internal quotation marks omitted.) Id., 120-21. In this case, it was the court’s responsibility to ensure that the sentence was just and appropriate.

C

The defendant also argues that because the prosecutor informed the court during the plea hearing that the victim’s parents had agreed to the plea agreement, their constitutional right to participate in sentencing was satisfied and therefore the court accepted his plea unconditionally. The defendant also notes that in Thomas, the victim brought new information to fight at the time of sentencing. Whether the prosecutor told the court the position of the victim’s parents with respect to the plea agreement is not the deciding factor. The victim’s parents were entitled to address the court at the time of sentencing.

Pursuant to our state constitution, the trial court must provide the victim, or the victim’s representative, with an opportunity to participate meaningfully at the time of the defendant’s sentencing. Id., 121. “[W]hen the victim chooses to make a statement, acceptance of a guilty plea must be contingent upon hearing from the victim in order to provide the victim with a meaningful right to participate in the plea bargaining process. ” State v. Thomas, supra, 296 Conn. 390-91. Although the prosecutor informed the court that the victim’s parents were accepting of the plea agreement, he also informed the court that the victim’s parents would be present to address the court at the time of sentencing. “[W]hen a presentence investigation is pending and the court is awaiting a victim’s anticipated statement, any acceptance of the defendant’s guilty plea is conditioned implicitly on the results of the presentence investigation report and the victim’s statement.” Id., 391. In this case, the defendant had no reasonable expectation of finality at the time he entered his plea of nolo contendere because the plea was contingent upon the right of the victim’s parents to address the court at sentencing.

D

The defendant also attempts to distinguish Thomas by arguing that the original charges of manslaughter in the first degree and tampering with or fabricating physical evidence were not pending at the time he pleaded nolo contendere to the charges in the first substitute information, i.e., criminally negligent homicide and reckless endangerment. By way of contrast, the defendant in Thomas had agreed to plead guilty to some of the charges against him; the remaining charges were still pending at the time of sentencing. Id., 378, 394. The defendant claims therefore that reinstating the original charges constitutes a violation of the double jeopardy clause. The defendant’s argument fails because the substitute information was part of the plea agreement. When the defendant withdrew his plea, he was put back into the same position he was in before he entered into the plea agreement.

“Plea agreements stem from the desire of the state to obtain a prompt disposition of criminal charges with the certainty of conviction, and from the agreement of the defendant to exchange his constitutional right to a trial, with all of its constitutional safeguards, for the certainty of a known and reduced penalty. The defendant is engaged in barter for the length of his incarceration. . . . The term of imprisonment is a defendant’s bottom line and his paramount interest. The length of time a defendant must spend incarcerated is clearly crucial to a decision involving whether he should plead guilty. . . . When the defendant’s reasonable expectation that his sentence will not exceed a particular term is to be defeated because of the trial court’s decision, in the proper exercise of its discretion, that a sentence in excess of an agreed term is appropriate, the defendant must be given the opportunity by the trial court to withdraw his plea. . . . When a defendant is permitted to withdraw his plea under such circumstances, he is returned to precisely the same position he had occupied before entering the plea.” (Internal quotation marks omitted.) State v. Gregorio, supra, 137 Conn. App. 106. The defendant now is in the same position he was in prior to entering into the plea bargain that was conditionally accepted by the court pending receipt of a presentence investigation and the meaningful participation of the victim’s parents. The defendant’s double jeopardy rights have not been violated in this case. We therefore conclude that Judge Ginocchio properly denied the defendant’s motion to dismiss the reinstated charges.

II

As stated in footnote 5 of this opinion, the state previously filed a motion to dismiss the appeal, as a matter of law, because the defendant failed to raise a colorable claim of double jeopardy and the denial of the defendant’s motion to dismiss the reinstated charges is not a final judgment for purposes of appeal. We have concluded that this appeal does not raise a colorable claim of double jeopardy; see part I of this opinion; and therefore it does not fall into that small class of cases “that meets the test of being effectively unreviewable on appeal from a final judgment and therefore, is subject to interlocutory review.” (Internal quotation marks omitted.) State v. Crawford, supra, 257 Conn. 775. The denial of the defendant’s motion to dismiss the charges against him neither “terminates a separate and distinct proceeding”; State v. Curcio, supra, 191 Conn. 31; nor “so concludes the rights of the parties that further proceedings cannot affect them.” Id. This court therefore lacks subject matter jurisdiction, and we are required to grant the state’s motion to dismiss.

The appeal is dismissed.

In this opinion the other judges concurred.

       In his sentencing memorandum, the defendant requested no jail time and a suspended sentence.

       The victim’s parents spoke at the sentencing hearing. They disputed the portions of the defendant’s sentencing statement regarding the victim’s mental health, and acknowledged evidentiary issues surrounding the victim’s death. They asked the court to impose the maximum two year sentence.
      JoAnn McKay, the victim’s mother, stated to the court in part: “We do not know how lawyers and judges determine sentences. We understand the ultimate charges. We know that the typical defense would destroy our daughter’s memory in the process of trying to escape a twenty year jail sentence that was possible for the defendant. We agreed to a plea bargain because it has been so long, and we are emotionally drained and because we have to have closure at least on the state’s legal process. The pain will always be with us. [The victim] will never again enjoy a breath of fresh air or enjoy a sunny day. We don’t seek vengeance, Your Honor. We just want some justice.”

       On appeal, the defendant makes much of the fact that his counsel withdrew his plea and contends that counsel did so without consulting him. This is not the proper forum in which the defendant may challenge the representation of counsel.

       On November 30, 2007, the defendant filed a motion for specific performance of the plea agreement. The court, Sheldon, J., denied the motion on November 24, 2010. The defendant filed an interlocutory appeal, which this court dismissed. Our Supreme Court denied the defendant’s petition for certification to appeal from the dismissal. See State v. Sebben, 301 Conn. 904, 17 A.3d 1045 (2011).

       The state filed a motion to dismiss the defendant’s interlocutory appeal claiming that this court lacked subject matter jurisdiction with respect to the defendant’s noncolorable claim of double jeopardy and statute of limitations defense. A panel of this court granted the motion to dismiss as to the statute of limitations defense, but “denied without prejudice to briefing the double jeopardy issue in the briefs on the merits.” In its brief, the state claims that, “as a matter of law, as construed in [State v. Thomas, supra, 296 Conn. 375], jeopardy did not attach when the defendant’s pleas were accepted by the trial court on November 29, 2008.” The state asks this court to conclude that Judge Ginocchio properly denied the defendant’s motion to dismiss the reinstated charges and to dismiss the defendant’s appeal.

       Practice Book § 43-10 provides in relevant part: “Before imposing a sentence or making any other disposition after the acceptance of a plea of . . . nolo contendere . . . the judicial authority shall, upon the date previously determined for sentencing, conduct a sentencing hearing as follows:
      “(1) The judicial authority shall afford the parties an opportunity to be heard and, in its discretion, to present evidence on any matter relevant to the disposition, and to explain or controvert the presentence investigation report ....
      “(2) The judicial authority shall allow the victim and any other person directly harmed by the commission of the crime a reasonable opportunity to make, orally or in writing, a statement with regard to the sentence to be imposed. ...” (Emphasis added.)

       General Statutes (Rev. to 1999) § 54-91a (a) provides in relevant part: “No defendant convicted of a crime, other than a capital felony, the punishment for which may include imprisonment for more than one year, may be sentenced, or his case otherwise disposed of, until a written report of investigation by a probation officer has been presented to and considered by the court, if (1) the defendant is so convicted for the first time in this state . . . but any court may, in its discretion, order a presentence investigation for a defendant convicted of any crime or offense other than a capital felony.”

       Practice Book § 43-3 (a) provides in relevant part: “If the defendant is convicted of a crime other than a capital felony, the punishment for which may include imprisonment for more than one year, the judicial authority shall order a presentence investigation .... The judicial authority may, in its discretion, order a presentence investigation for a defendant convicted of any crime or offense.”

       As we previously have stated, “[g]iven the important role plea bargaining plays in our criminal justice system, courts should not blithely disavow plea offers.” State v. Gregorio, supra, 137 Conn. App. 126. It is essential, however, that the court retain broad discretion to abrogate a plea agreement when “new information [is brought to] light”; id.; or when the court gains “new insights into an offender’s criminal behavior or background . . . .” Id.

       The constitution of Connecticut, article first, § 8 (b), as amended by-articles seventeen and twenty-nine of the amendments, provides in relevant part: “In all criminal prosecutions, a victim, as the general assembly may define by law, shall have the following rights ... (7) the right to object to or support any plea agreement entered into by the accused and the prosecution and to make a statement to the court prior to the acceptance by the court of the plea of guilty or nolo contendere by the accused; (8) the right to make a statement to the court at sentencing . . . .”

       In its brief, the state cites a number of federal cases discussing the nature of plea bargaining; see Santobello v. New York, 404 U.S. 257, 262, 92 S. Ct. 495, 30 L. Ed. 2d 472 (1971) (governed by contract principles); and the remedy when the agreement has been breached by either the state or the defendant. See, e.g., id., 263 n.2 (“[i]f the state court decides to allow withdrawal of the plea, the petitioner will, of course, plead anew to the original charge”); United States v. Gerard, 491 F.2d 1300, 1306 (9th Cir. 1974) (if defendant pleaded to one count and prosecutor dismissed others, reasonably apparent dismissal was in consideration of plea; if defendant succeeds in withdrawing plea, he should not be able to obj ect to prosecutor’s reviving other counts).