text:
    JOSEPH MASTROIANNI v. FAIRFIELD COUNTY PAVING, LLC, ET AL.
    (AC 26732)
    McLachlan, Gruendel and Dupont, Js.

      Argued November 14, 2007
    officially released March 11, 2008

      Louis Ciccarello, for the appellant (plaintiff).

      Stephen J. Conover, for the appellees (defendants).
   Opinion

McLACHLAN, J.

In this action for use and occupancy payments and for damages for, inter alia, breach of a commercial lease, the matter was referred to an attorney trial referee (referee) who filed a report, on the basis of which the trial court subsequently rendered judgment in favor of the defendants, Fairfield County Paving, LLC, Domenic DAttilo and Tony Dilorio. On appeal, the plaintiff, Joseph Mastroianni, claims that the court improperly accepted the referee’s (1) findings that the plaintiff was not entitled to damages, (2) findings and conclusions that were based on unpleaded special defenses and (3) findings on unconscionability. We agree with the plaintiffs first and third claim and, accordingly, reverse the judgment of the trial court and remand the matter for further proceedings.

The plaintiff owned an unimproved lot, located at 74 Bouton Street in Norwalk. On November 1, 2001, the plaintiff entered into a lease with D’Attilo and Dilorio, doing business as Fairfield County Paving & Construction, Inc. The initial term of the lease was for one year, from November 1, 2001, to October 31, 2002, with a rental payment in the amount of $600 per month. The lease provided the tenant with an option to renew for five years, with incremental rent increases during that time. As part of the negotiations, the parties agreed that the defendants would “clear, properly grade, pave, and secure by fencing, the perimeter of the lot with a gate at the entrance” and “use the property in compliance with the zoning regulations.”

On November 19, 2002, the defendants sent a letter by certified mail to the plaintiff to exercise the option to renew the lease and tendered a rental check for November, 2002. On November 21, 2002, the plaintiff served a notice to quit on the defendants, dated November 18, 2002, in which he stated as a reason the expiration of the lease term. The defendants’ letter and rental payment reached the plaintiff on December 2,2002. The plaintiff returned the rental payment to the defendants. When the defendants refused to vacate the premises according to the notice to quit, the plaintiff commenced a summary process action in the Housing Session of the Superior Court. The parties entered into a stipulated agreement dated February 20, 2003, and a judgment for possession entered in favor of the plaintiff with a final stay of execution through March 31, 2003. The defendants vacated the premises in March, 2003. Thereafter, the plaintiff commenced the present action to collect use and occupancy payments for the months of November 1,2002, through March, 2003, and to collect damages for the defendants’ failure to clear, grade, pave and fence the lot as agreed upon in the lease.

The matter was referred to the referee. The referee found that (1) D’Attilo and Dilorio were not parties to the lease because they had signed the lease on behalf of Fairfield County Paving, LLC, (2) the defendants had not violated the Norwalk zoning regulations, (3) the defendants had complied substantially with the terms of the lease, (4) the combined cash and in-kind payments and improvements exceeded the fair rental value of the property, (5) the eviction of the defendants was premature and unconscionable, and (6) the plaintiff was not entitled to recover any damages. The referee, therefore, recommended that judgment be rendered in favor of the defendants. The plaintiff objected to the acceptance of the referee’s report on May 16, 2005. On June 28, 2005, after a hearing, the court accepted the referee’s report and rendered judgment in favor of the defendants.

The plaintiff then filed this appeal. On August 1, 2005, the plaintiff moved for an articulation, and on September 22, 2005, in response to the plaintiffs motion, the court signed a copy of the June 28, 2005 hearing transcript. The plaintiff then moved for a review of the court’s response. On December 21, 2005, we granted the plaintiffs motion for review and ordered the court to articulate the factual and legal basis for accepting the referee’s report. On June 6, 2006, the court, sua sponte, vacated its original judgment and ordered a new trial. The defendants then moved for review of that decision, and on July 26, 2006, we granted the defendants’ motion, vacated the court’s June 6,2006judgment and again ordered the court to articulate the factual and legal basis for accepting the referee’s report. The court filed an articulation dated August 16, 2006, and the plaintiff sought review of that decision with this court. On November 19, 2006, we granted the plaintiffs motion for review and ordered the court to further articulate the factual and legal basis for its acceptance of the referee’s report. The court filed a memorandum of decision on December 8, 2006.

The plaintiffs first claim is that the court improperly accepted the referee’s findings that he was not entitled to damages. He specifically challenges the findings that (1) D’Attilo and Dilorio signed the lease on behalf of Fairfield County Paving, LLC, and thus were not parties to the lease, (2) Fairfield Country Paving, LLC, was not liable for any damages, (3) the defendants were not hable for failing to complete all site improvements within the one year term of the lease, and (4) the rents and improvements made prior to the defendants’ vacating the premises exceeded the fair rental value.

As a preliminary matter, we set forth the applicable standard of review. “Attorney fact finders are empowered to hear and decide issues of fact on contract actions pending in the Superior Court .... On appeal, [o]ur function ... is not to examine the record to see if the trier of fact could have reached a contrary conclusion. . . . Rather, it is the function of this court to determine whether the decision of the trial court is clearly erroneous. . . . This involves a two part function: where the legal conclusions of the court are challenged, we must determine whether they are legally and logically correct and whether they find support in the facts set out in the memorandum of decision; where the factual basis of the court’s decision is challenged we must determine whether the facts set out in the memorandum of decision are supported by the evidence or whether, in light of the evidence and the pleadings in the whole record, those facts are clearly erroneous.” (Internal quotation marks omitted.) Banks Building Co., LLC v. Malanga Family Real Estate Holding, LLC, 102 Conn. App. 231, 235-36, 926 A.2d 1 (2007).

“Finally, we note that, because the attorney trial referee does not have the powers of a court and is simply a fact finder, [a]ny legal conclusions reached by an attorney trial referee have no conclusive effect. . . . The reviewing court is the effective arbiter of the law and the legal opinions of [an attorney trial referee], like those of the parties, though they may be helpful, carry no weight not justified by their soundness as viewed by the court that renders judgment.” (Internal quotation marks omitted). Alliance Partners, Inc. v. Oxford Health Plans, Inc., 263 Conn. 191, 202, 819 A.2d 227 (2003).

The referee found that the plaintiff was not entitled to damages because the termination of the lease agreement, under the circumstances of this case, “[rose] to the level of being‘unconscionable’ . . . .’’The plaintiff claims that the court improperly accepted the referee’s findings on unconscionability.

“[T]he question of unconscionability is a matter of law to be decided by the court based on all the facts and circumstances of the case. . . . Our review on appeal is not limited to determining whether there has been clear error. . . . [T]he ultimate determination of whether a transaction is unconscionable is a question of law, not a question of fact, and . . . the trial court’s determination on that issue is subject to a plenary review on appeal. It also means, however, that the factual findings of the trial court that underlie that determination are entitled to the same deference on appeal that other factual findings command. Thus, those findings must stand unless they are clearly erroneous.” (Emphasis in original; internal quotation marks omitted.) New England Retail Properties, Inc. v. Maturo, 102 Conn. App. 476, 487-88, 925 A.2d 1151, cert. denied, 284 Conn. 912, 931 A.2d 932 (2007). Because the plaintiff has challenged the factual findings that relate to the referee’s finding of unconscionability, we employ the clearly erroneous standard of review. See Monetary Funding Group, Inc. v. Pluchino, 87 Conn. App. 401, 412, 867 A.2d 841 (2005).

In his report, the referee made the following findings of fact that are relevant to our analysis. “During his direct examination by the plaintiff, Mr. D’Attilo repeatedly stated that the plaintiff ‘kicked me out’ before the balance of any improvements could be made. . . . Considering the cumulative effect of the evidence and testimony concerning [the lease] and Mr. D’Attilo’s testimony, which was introduced by the plaintiff, the plaintiff effectively ‘opened the door’ for the defendants to argue in their posttrial brief claims such as ‘unconscionability’ .... The effective result of the plaintiff throwing the defendants out under these circumstances amounts to a forfeiture of the benefits provided and conferred by the defendants upon the subject property prior to the plaintiff issuing the notice to quit. Such a result rises to the level of being ‘unconscionable’ in this case, especially considering that the plaintiff is requesting a ‘windfall’ recoveiy based on the circumstances he is primarily responsible for, i.e., rescinding-repudiating the lease. The plaintiff ousted the defendants prematurely, notwithstanding the defendants’ substantial compliance, thereby breaching the lease agreement. The plaintiff should not be rewarded for such conduct. All the plaintiff had to do was accept the option exercise made by the defendant limited liability company . . . which exercise was issued prior to the notice to quit. . . . The balance of any claimed improvements could then be performed and completed within a reasonable time over the balance of the lease term. Had the improvements not been performed, the plaintiff may then have had the right to seek to recover damages. However, it was the plaintiff, not the defendants, who caused the harm he now complains of and seeks compensation for.”

The referee’s findings of fact are clearly erroneous. Our examination of the record reveals that (1) the lease expired on October 31,2002, and (2) the plaintiff served a notice to quit on November 21, 2002, which was after the termination of the lease term and after the defendants’ option to renew the lease had expired. Contrary to the referee’s findings, the plaintiff did not oust the defendants prematurely, and, therefore, the plaintiffs eviction of the defendants was not unconscionable. See Family Financial Services, Inc. v. Spencer, 41 Conn. App. 754, 763, 677 A.2d 479 (1996) (“The purpose of the doctrine of unconscionability is to prevent oppression and unfair surprise. J. Calamari & J. Perillo, Contracts [3d Ed.] § 9-40.”).

We next address the issue of the defendants’ liability. The referee found that D’Attilo and Dilorio signed the lease on behalf of their business, and, thus, they were not jointly and severally liable under the terms of the lease. On the lease, however, their individual signatures were not followed by any language indicating that they were signing in a representative capacity. Further, their signatures were followed by the oath: “On this day of , 2001, Domenic D’Attilo and Tony Dilorio, d/b/a Fairfield County Paving & Construction, Inc., came before me personally and under oath, stated that they are the persons described in the above document and they signed the above document in my presence.” The signature of a notary public appeared below this oath.

We conclude that D’Attilo and Dilorio were parties to the lease and, thus, are jointly and severally hable. Both signed the lease above their names. The designation that D’Attilo and Dilorio were “doing business as” a corporation does not preclude personal liability. See Edmands v. CUNO, Inc., 277 Conn. 425, 454 n.17, 892 A.2d 938 (2006). Additionally, it was undisputed that neither Fairfield County Paving & Construction, Inc., nor Fairfield County Paving, LLC, was in existence at the time the parties entered into the lease agreement. “[0]ur legislature expressly has provided for personal liability for those who knowingly enter into contracts on behalf of corporations prior to their legal formation. ” BRJM, LLC v. Output Systems, Inc., 100 Conn. App. 143, 154, 917 A.2d 605, cert. denied, 282 Conn. 917, 925 A.2d 1099 (2007). General Statutes § 33-638 provides in relevant part that “[a]ll persons purporting to act as or on behalf of a corporation, knowing there was no incoiporation . . . are jointly and severally liable for all liabilities while so acting.” Therefore, the referee’s finding that D’Attilo and Dilorio were not liable is not legally and logically correct, and the court improperly accepted that legal conclusion.

We also conclude that the referee’s finding with respect to the liability of Fairfield County Paving, LLC, is not supported by the record. At some point after the signing of the lease, D’Attilo and Dilorio formed Fairfield County Paving, LLC, which occupied the plaintiffs premises until March, 2003. Furthermore, it is clear from the record that Fairfield County Paving, LLC, occupied the premises from November, 2002, to March, 2003, without submitting rental payments to the plaintiff or performing any improvements on the property. Thus, the referee’s finding that Fairfield County Paving, LLC, was not liable to the plaintiff, although it clearly occupied the plaintiffs property, is clearly erroneous.

Having determined that D’Attilo, Dilorio and Fairfield Country Paving, LLC, were liable, we now address the remaining issues concerning the determination of damages. The referee made the following findings with respect to damages: (1) “[T]he combined cash and in-kind payments and improvements made by the defendants to and/or for the benefit of the plaintiff exceeded the fair rental value of the subject property during the period of the defendants’ occupancy of the property from November, 2001, through March, 2003”; (internal quotation marks omitted); (2) the defendants had “substantially complied” with the terms of the lease, which were ambiguous, (3) the plaintiffs eviction of the defendants was premature and unconscionable, and, therefore, (4) “the plaintiff is not entitled to claim or recover any damage[s] in this case.”

These findings are contrary to law and not supported by the record. First, the defendants agreed to make certain improvements as a bargained for consideration in exchange for the right to lease the property. See Parker v. Slosberg, 73 Conn. App. 254, 263 n.12, 808 A.2d 351 (2002) (doctrine of consideration does not require or imply equal exchange between contracting parties). The fact that the defendants might later have regretted the agreed on terms of the lease does not preclude the plaintiff from recovering damages as a result of the defendants’ breach of the lease. “[C]ourts do not unmake bargains unwisely made.” (Internal quotation marks omitted.) Tallmadge Bros., Inc. v. Iroquois Gas Transmission System, L.P., 252 Conn. 479, 505-506, 746 A.2d 1277 (2000). Moreover, it was undisputed that for a five month period following the expiration of the lease on October 31, 2002, the defendants were occupying the premises without the payment of any rent or the performance of any further improvements. Although the referee and the court failed to address that issue, the plaintiff was entitled to recover the reasonable value of the defendants’ use and occupancy of the premises from November, 2002, to March, 2003. See General Statutes § 47a-35a.

Second, the referee’s findings that the defendants had “substantially complied with the terms of the lease” and that “[t]he terms of the lease were vague and ambiguous” are incompatible. “The doctrine of substantial performance shields contracting parties from the harsh effects of being held to the letter of their agreements. Pursuant to the doctrine of substantial performance, a technical breach of the terms of a contract is excused, not because compliance with the terms is objectively impossible, but because actual performance is so similar to the required performance that any breach that may have been committed is immaterial.” (Internal quotation marks omitted.) Borrelli v. H & H Contracting, Inc., 100 Conn. App. 680, 692 n.6, 919 A.2d 500, cert. granted on other grounds, 282 Conn. 925, 926 A.2d 665 (2007). In the present case, because the defendants’ obligations under the lease were found to be ambiguous, it cannot be determined on this record whether the defendants’ actual performance was in substantial compliance with the required performance. Moreover, offsetting the value of any required improvements made under the lease with the value of the use and occupancy of the premises during the five month period when the defendants occupied the premises but made no payments was contrary to law. The defendants did not plead the right of setoff against the plaintiffs demand. See Practice Book § 10-54. “It is fundamental in our law that the right of a [party] to recover is limited to the allegations in his [pleading]. . . . Facts found but not averred cannot be made the basis for a recovery.” (Internal quotation marks omitted.) Yellow Page Consultants, Inc. v. Omni Home Health Services, Inc., 59 Conn. App. 194, 200, 756 A.2d 309 (2000). Therefore, the finding that the combined cash and in-kind payments and improvements made by the defendants exceeded the fair rental value of the subject property during the period of the defendants’ occupancy of the property from November, 2001, through March, 2003, was improper.

We conclude, after a scrupulous examination of the record, that the court should not have accepted the report of the referee. Accordingly, a hearing is necessary to determine the intent of the parties as to the specific improvements to be performed during the term of the lease, from November 1, 2001, to October 31, 2002, the cost to complete any unfinished improvements and the value of the use and occupancy of the property for the five month period from November, 2002, to March, 2003.

The judgment is reversed and the case is remanded to the trial court with direction to render judgment in the plaintiffs favor and for further proceedings consistent with this opinion.

In this opinion the other judges concurred.

       Because the resolution of those issues is dispositive of the appeal, we do not reach the plaintiffs remaining claim.

       At the hearing before the referee, evidence was presented that Fairfield County Paving & Construction, Inc., was not in existence on November 1, 2001.

       The plaintiff testified that he served Fairfield County Paving, LLC, because he discovered that that entity was occupying the lot.

       According to the lease, the defendants had the option of renewing the lease for a five year period, but the option had to be “exercised within 90 days of the expiration of this Lease . . . .” Thus, this option had already expired on November 19, 2002, when the defendants mailed the letter and check to the plaintiff.

       Although the defendants had the right to extend the lease, it was at a higher rental, and the defendants ultimately agreed to vacate the premises.

       Pursuant to General Statutes § 33-637, a corporation is legally formed when the certificate of incorporation is filed with the secretary of the state. Similarly, a limited liability company is formed when the articles of organization are filed with the secretary of the state. General Statutes § 34-120.

       The referee’s finding that the contract was ambiguous with respect to the specific improvements that the defendants were required to perform is supported by the record and is not clearly erroneous. The lease states: “The [defendants agree] to clear, properly grade, pave, and secure by fencing, the perimeter of the lot with a gate at the entrance.” As noted by the referee, the language of this provision could be read as limiting the paving of the property to the perimeter of the lot.

       Practice Book § 10-54 provides: “In any case in which the defendant has either in law or in equity or in both a counterclaim, or right of setoff, against the plaintiffs demand, the defendant may have the benefit of any such setoff or counterclaim by pleading the same as such in the answer, and demanding judgment accordingly; and the same shall be pleaded and replied to according to the rules governing complaints and answers.”


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    IAN WRIGHT v. COMMISSIONER OF CORRECTION
    (AC 27956)
    Flynn, C. X, and Gruendel and Robinson, Js.
    Submitted on briefs January 4
    officially released March 11, 2008

      Christopher Y. Duby, special public defender, filed a brief for the appellant (petitioner).

      Frederick W. Fawcett, supervisory assistant state’s attorney, filed a brief for the appellee (respondent).
   Opinion

PER CURIAM.

The petitioner, Ian Wright, appeals from the judgment of the habeas court denying his petition for a writ of habeas corpus. On appeal, the petitioner claims that the court improperly concluded that he had not been deprived of the effective assistance of counsel at any stage of the proceedings. Because the petitioner has failed to furnish an adequate record for review, we affirm the judgment of the habeas court.

The petitioner was convicted, following a jury trial, of murder in violation of General Statutes § 53a-54a, as enhanced by General Statutes § 53-202k, and carrying a pistol or revolver without a permit in violation of General Statutes § 29-35. He was sentenced to a total effective term of thirty-five years incarceration. His conviction was affirmed on direct appeal. State v. Wright, 77 Conn. App. 80, 822 A.2d 940, cert. denied, 266 Conn. 913, 833 A.2d 466 (2003). Thereafter, the petitioner filed a petition for a writ of habeas corpus, in which he alleged that he was deprived of the effective representation of trial and appellate counsel as guaranteed by the sixth amendment to the United States constitution. The petition came before the habeas court on April 5 and May 3, 2006. After admitting various documents into evidence, including the transcript of the petitioner’s criminal trial, and hearing testimony from two members of the Bridgeport police department as well as the petitioner’s trial and appellate counsel, the court denied the petition.

In its memorandum of decision, the court concluded that the petitioner did not suffer any prejudice as a result of the actions or inactions of trial counsel, and, therefore, it was not necessary to consider whether trial counsel’s performance was deficient.

As to the petitioner’s claim of ineffective assistance of appellate counsel, the court did not discuss the merits of that claim but simply stated that “the petitioner has not been deprived of the effective assistance of counsel in any respect at any stage of the proceedings.” The court granted the petition for certification to appeal to this court on July 28, 2006.

On December 20,2006, the petitioner moved for articulation, requesting that the court articulate the factual basis for its decision. The court denied the petitioner’s motion for articulation. The petitioner failed to file a motion for review with this court. See Practice Book §§ 66-5 and 66-7.

The habeas court did not address the specific factual findings underlying its conclusion in the memorandum of decision, and the petitioner failed to request review of the court’s denial of his motion for articulation. Because the court’s memorandum of decision is devoid of any findings or analysis on the issue and the petitioner did not seek review of the denial of his motion for articulation, the record is inadequate and we cannot review his claim. See Bowden v. Commissioner of Correction, 93 Conn. App. 333, 342, 888 A.2d 1131, cert. denied, 277 Conn. 924, 895 A.2d 796 (2006). In Adorno v. Commissioner of Correction, 66 Conn. App. 179, 783 A.2d 1202, cert. denied, 258 Conn. 943, 786 A.2d 428 (2001), we stated that “[i]t is the appellant’s burden to provide an adequate record for review. ... It is, therefore, the responsibility of the appellant to move for an articulation or rectification of the record where the trial court has failed to state the basis of a decision ... to clarify the legal basis of a ruling ... or to ask the trial judge to rule on an overlooked matter.” (Citation omitted; internal quotation marks omitted.) Id., 188 n.3. In the present case, the petitioner has failed to request review of the court’s denial of his motion for articulation, resulting in an inadequate record and thus preventing appellate review of the merits of his claim.

The judgment is affirmed.

       “In order ... to prevail on a constitutional claim of ineffective assistance of counsel, [the petitioner] must establish both (1) deficient performance, and (2) actual prejudice. . . . Thus, he must establish not only that his counsel’s performance was deficient, but that as a result thereof he suffered actual prejudice, namely, that there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different. . . . Because both prongs . . . must be established for a habeas petitioner to prevail, a court may dismiss a petitioner’s claim if he fails to meet either prong. ” (Citations omitted; internal quotation marks omitted.) King v. Commissioner of Correction, 73 Conn. App. 600, 602-603, 808 A.2d 1166 (2002), cert. denied, 262 Conn. 931, 815 A.2d 133 (2003).

       The petitioner specifically requested that the habeas court articulate the following: (1) whether he was represented ineffectively when trial counsel failed to move for a bill of particulars with respect to one count of the operative information, (2) whether he was represented ineffectively when trial counsel failed to move the court to dismiss the charge of accessory to murder if the state did not plead in the information all of the essential elements of the crime, (3) whether he was represented ineffectively when trial counsel failed to object to the court’s instruction concerning circumstantial evidence, (4) whether he was represented ineffectively when appellate counsel failed to file a reply brief to correct a misstatement of fact in the state’s appellate brief and (5) whether he was represented ineffectively when appellate counsel failed to include within the appellate brief any argument concerning any variance between the actions alleged in the operative information and the court’s instruction on accessorial liability.

       Practice Book § 66-5 provides in relevant part: “The sole remedy of any party desiring the court having appellate jurisdiction to review the trial court’s decision on the motion filed pursuant to this section or any other correction or addition ordered by the trial court during the pendency of the appeal shall be by motion for review under Section 66-7. . . .”
      Practice Book § 66-7 provides in relevant part: “Any party aggrieved by the action of the trial judge as regards . . . articulation under Section 66-5 may, within ten days of the issuance of notice of the order sought to be reviewed, make a written motion for review to the court, to be filed with the appellate clerk, and the court may, upon such a motion, direct any action it deems proper. . . .”


author: BISHOP, J.

text:
    STATE OF CONNECTICUT v. JEFF BLAKE
    (AC 27293)
    Bishop, Lavine and Pellegrino, Js.

      Argued November 29, 2007
    officially released March 18, 2008

      Darcy McGraw, special public defender, for the appellant (defendant).

      Margaret E. Kelley, senior assistant state’s attorney, with whom, on the brief, was Jonathan C. Benedict, state’s attorney, for the appellee (state).
   Opinion

BISHOP, J.

The defendant, Jeff Blake, appeals from the judgment of conviction, following a jury trial, of sexual assault in the first degree in violation of General Statutes § 53a-70 (a) (1), sexual assault in the second degree in violation of General Statutes § 53a-71 (a) (1) and risk of injury to a child in violation of General Statutes § 53-21. On appeal, the defendant claims that the court improperly (1) concluded that he had failed to make a sufficient preliminary showing to warrant an in camera examination of the victim’s psychiatric records and (2) admitted DNA evidence through the state’s expert witness. We affirm the judgment of the trial court.

The jury reasonably could have found the following relevant facts. In May, 1993, the victim was fourteen years old and was living with her mother and her thirteen year old sister. At the time of the incident, the victim’s mother was not at home. The victim’s mother had been dating the defendant for a few years. On May 3,1993, the defendant arrived at the victim’s home after 8 p.m., entered the home and kissed her on the left side of her neck. The defendant grabbed both of the victim’s arms and led her into the living room where he “nudged” her onto the couch, pulled her shorts and underpants down and had sexual intercourse with her. The defendant told the victim not to tell anybody what had happened. The defendant pulled a red handkerchief from his pocket and wiped himself and the semen that had spilled on the sofa. The defendant then went upstairs to the bedroom of the victim’s mother, and the victim went upstairs and took a bath. When the victim’s mother arrived home about twenty minutes later, the victim did not tell her mother what had occurred with the defendant. The defendant stayed the night, which was not uncommon, and when he left the next morning, they did not see him again.

The next day, after school, the victim told her mother about the sexual assault. Her mother then took her to a hospital to be examined. Forensic examination did not reveal the presence of any semen, and there were no signs of bruising or other evidence of physical assault. After the victim gave a statement to the police, the defendant was charged with sexual assault in the first degree, sexual assault in the second degree and risk of injury to a child.

Following a jury trial, the defendant was found guilty of all charges and was sentenced to a total effective term of forty years incarceration suspended after thirty years with five years probation and special conditions of parole. This appeal followed. Additional facts will be set forth as necessary.

I

The defendant first claims that the court improperly concluded that he failed to make a sufficient preliminary showing to warrant an in camera examination of the victim’s psychiatric records. We are unpersuaded.

The following additional factual and procedural predicate is necessary to the resolution of the defendant’s claim. On January 28,2005, the defendant filed a motion for disclosure of the victim’s psychiatric records for “the period of 1990 to . . . date.” On April 13, 2005, the defendant filed an additional motion for disclosure of the victim’s psychiatric records in pursuit of his right of confrontation, hi support of his motions, the defendant referred to the victim’s hospital record of May 4, 1993, and the impact letter the victim wrote to the court dated January 18, 2003. On the basis of his reading of the victim’s hospital record of May 4, 1993, the defendant asserted that the victim had been hospitalized twice prior to the time of the subject incident as a result of attempting to commit suicide. According to the victim’s 2003 letter to the court, she had also been hospitalized for psychiatric reasons at some time after the date of the alleged assault. In her letter to the court, the victim claimed that she had been sexually assaulted by seven people other than the defendant, one assault being a gang rape by six men and the other an assault by her uncle, but that she never pressed charges for these assaults. The victim indicated that she wanted to kill herself from time to time because she believed that no one cared about her and that she did not want her mother involved in these proceedings because her mother did not support her in the wake of her other assaults. In support of his request for an inspection of the victim’s psychiatric records, the defendant also claimed that the victim’s mother told him that the victim was taking psychotropic medication at the time that he allegedly assaulted her to cope with her mental illness, namely, auditory hallucinations. On the basis of these claims, the defendant sought material that might document other purportedly false allegations of sexual assault and that might reveal any potential psychiatric diagnosis that the victim is “susceptible to paranoid delusions, to determine whether she is capable of distinguishing fact from fiction and whether her mental state is so significantly impaired as to render her incompetent to testify.”

The court first heard argument on the defendant’s motion on April 13, 2005. The defendant recounted and relied on the assertions in his written motion. In response, the state noted that the May 4, 1993 hospital record indicated that the victim’s most recent prior hospitalization was in August, 1992, approximately ten months before the alleged assault by the defendant. Additionally, the state asserted, the same hospital record indicated that the victim was not on any medication other than birth control pills at the time of the alleged incident. Our review of the record reveals that there was no evidence adduced that the victim was on psychotropic medication in May, 1993, or at any other relevant time. Nevertheless, the defendant maintained that “a child who had twice been suicidal in the months and years preceding this [incident] and whose mother was on her way to the pharmacy and whose mother has told her lover, at that point [the defendant], that the child was taking serious psychiatric medicine, raises enough of a question in our mind to request that the court view the records to determine whether there was a psychotropic medication that may reflect a serious cognitive disability.” Following argument, the court requested copies of the disclosures relied on by the defendant and reserved decision on the defendant’s motion.

When court reconvened on April 19, 2005, the court ruled that the defendant had failed to make the preliminary showing warranting an in camera review of the victim’s psychiatric records but indicated that the defendant could further pursue his request once the victim had testified.

Following the victim’s testimony on direct examination, the defendant questioned her outside the presence of the jury in an effort to adduce a factual basis to support his motion for disclosure of her psychiatric records. The victim testified that she had been sexually assaulted prior to the incident involving the defendant and that, as a result, she had been suicidal from time to time and, as a result, had been hospitalized two times prior to May, 1993. The victim stated that she had been on medication in relation to these hospitalizations but that she was not on medication at the time of the incident involving the defendant or at the time of trial. The victim further acknowledged that she attempted to commit suicide a couple of times and that she “heard voices” after the incident involving the defendant. The court found that the defendant failed to meet the threshold requirement that the requested records would produce material relevant to the victim’s testimonial capacity and, accordingly, denied the defendant’s motion for disclosure or for an in camera review of the victim’s psychiatric records.

“It is well settled in this state that before a criminal defendant may obtain an in camera inspection of a witness’ confidential records for purposes of impeachment, he or she must first demonstrate that there is reasonable ground to believe that the failure to produce the information is likely to impair the defendant’s right of confrontation such that the witness’ direct testimony should be stricken. State v. Bruno, 236 Conn. 514, 522-23, 673 A.2d 1117 (1996); see also State v. Castonguay, 218 Conn. 486, 505, 590 A.2d 901 (1991) ([pursuant to our decisions in [State v. Bruno, 197 Conn. 326, 497 A.2d 758 (1985), cert. denied, 475 U.S. 1119, 106 S. Ct. 1635, 90 L. Ed. 2d 181 (1986), and State v. Esposito, 192 Conn. 166, 471 A.2d 949 (1984)], a defendant seeking access to privileged records that he believes contain information that would allow him to impeach a witness’ ability to comprehend, know or correctly relate the truth, must make a preliminary showing that there is a reasonable ground to believe that the failure to produce the records would likely impair his right to impeach the witness .... The defendant’s offer of proof should be specific and should set forth the issue in the case to which the [confidential] information sought will relate.” (Internal quotation marks omitted.) State v. George J., 280 Conn. 551, 599, 910 A.2d 931 (2006), cert. denied, 549 U.S. 1326, 127 S. Ct. 1919, 167 L. Ed. 2d 573 (2007). “In evaluating the sufficiency of the petitioner’s offer, what is pertinent is the existence of a mental issue that may have affected [the witness’] testimonial capacity, not her general character, her intelligence or the fact that she was at times inconsistent in her testimony. ... [A] history of mental illness does not automatically impugn a witness’ ability to testify truthfully and to relay events accurately. Moreover, the existence of a psychiatric disorder does not automatically [make] a witness fair game for disclosure of psychiatric records to a criminal defendant.” (Citations omitted; internal quotation marks omitted.) Ortiz v. Commissioner of Correction, 91 Conn. App. 484, 490, 881 A.2d 514, cert. denied, 276 Conn. 917, 888 A.2d 85 (2005). “[T]he linchpin of the determination of the defendant’s access to the records is whether they sufficiently disclose material especially probative of the [witness’] ability to comprehend, know and correctly relate the truth ... so as to justify breach of their confidentiality and disclosing them to the defendant in order to protect his right of confrontation.” (Internal quotation marks omitted.) State v. Peeler, 271 Conn. 338, 381, 857 A.2d 808 (2004), cert. denied, 546 U.S. 845, 126 S. Ct. 94, 163 L. Ed. 2d 110 (2005).

Our Supreme Court has set forth the relevant standard of review: “We review a court’s conclusion that a defendant has failed to make a threshold showing of entitlement to an in camera review of statutorily protected records . . . under the abuse of discretion standard. . . . We must make every reasonable presumption in favor of the trial court’s action. . . . The trial court’s exercise of its discretion will be reversed only where the abuse of discretion is manifest or where injustice appears to have been done.” (Internal quotation marks omitted.) State v. George J., supra, 280 Conn. 599-600.

“[U]nder our case law, there are two points at which a witness’ possible mental unsoundness is relevant: at or around the time of trial or of the incident about which he is to testily.” (Internal quotation marks omitted.) State v. Herring, 210 Conn. 78, 109, 554 A.2d 686, cert. denied, 492 U.S. 912, 109 S. Ct. 3230, 106 L. Ed. 2d 579 (1989). In State v. Burak, 201 Conn. 517, 518 A.2d 639 (1986), the defendant petitioned the trial court for review of a key witness’ privileged psychiatric records. During his offer of proof, the defendant offered evidence that the witness had received psychiatric treatment from approximately 1974 to 1975. Id., 521. The crime occurred in 1979 and the trial took place sometime thereafter. Our Supreme Court held: “[T]he defendant did not make the necessary preliminary showing that failure to produce the records was likely to impair his confrontation rights. ... No showing was made that the witness had a mental problem which affected his testimonial capacity at the time of the occurrence of the events in this case or at the time of the trial. . . . The only facts revealed during the defendant’s offer of proof on this issue were that the witness had received treatment from approximately 1974 to 1975. . . . This testimony did not indicate any inability on the part of the witness to recall or recount the events relating to the circumstances of [the victim’s] death [in 1979]. . . . The defendant would apparently have us hold that the records of anyone who has ever received psychiatric treatment, for whatever purpose, are fair game for disclosure; this we decline to do.” (Citations omitted.) Id., 524-25.

Similarly, in State v. Rosado, 52 Conn. App. 408, 419, 726 A.2d 1177 (1999), this court affirmed the trial court’s refusal to conduct an in camera review of the victim’s psychiatric records where the crime occurred in 1991 and the trial took place in 1992, but the only evidence provided by the defendant was his testimony that the victim received treatment at some time during their relationship that ended in 1989. The court stated that the absence of any evidence that the records were contemporaneous with the date of the crime or trial was fatal to his request for disclosure or an in camera review. Id., 419-20.

Here, in seeking the victim’s confidential records for the fifteen year period of 1990 to 2005, the defendant relied on the fact that the victim was hospitalized twice prior to the incident involving the defendant, the most recent incident being ten months prior to the alleged incident, and at some unknown time after the incident. In seeking these records, the defendant failed to show that any of the alleged mental health issues of the victim were contemporaneous with the date of the assault or the trial in this matter.

Additionally, despite the defendant’s incredulity at the victim’s other claims of sexual assault, the defendant did not present any evidence that these assaults did not occur. The defendant proved no more than that the victim was hospitalized for psychiatric treatment after she claimed to have been assaulted, a fact that casts no doubt on the validity of her claims. In his offer of proof, the defendant did not offer the testimony of the victim’s mother, who he claimed had given him information about the victim’s psychiatric health, and there was no inquiry made of her, or any other family members or medical personnel, with respect to the dates, duration or reasons for the victim’s psychiatric hospitalizations. See State v. Esposito, supra, 192 Conn. 180; State v. Joyner, 225 Conn. 450, 478, 625 A.2d 791 (1993). In short, the defendant was relying solely on the fact that the victim had prior and subsequent hospitalizations, suicide attempts and may, at one time, have suffered from auditory hallucinations. He made no showing, however, that the auditory hallucinations, the hospitalizations or the suicide attempts had any bearing on her ability accurately to recall and relate the incidents at issue. See State v. Bruno, supra, 236 Conn. 529 (“The defendant established only that [the witness] was a youth with emotional and attitudinal problems that made the school experience difficult for him and for school officials who dealt with him .... [T]he defendant fails to demonstrate how these facts might have affected [the witness’] testimonial capacity in this case.” [Citation omitted.]). We note as well that the court made the observation that there was nothing in the manner of the victim’s testimony either on direct or cross-examination to suggest that she had any problem recalling or narrating the events relating to the incident involving the defendant.

“While we are mindful that the defendant’s task to lay a foundation as to the likely relevance of records to which he is not privy is not an easy one, we are also mindful of the witness’ legitimate interest in maintaining, to the extent possible, the privacy of her confidential records.” (Internal quotation marks omitted.) State v. DeJesus, 91 Conn. App. 47, 77, 880 A.2d 910 (2005), cert. granted on other grounds, 279 Conn. 912, 903 A.2d 658 (2006). Because the defendant failed to make the preliminary showing that the victim’s testimonial capacity was impaired, the court did not abuse its discretion in declining to examine her psychiatric records in camera.

II

The defendant next claims that the state’s DNA expert was not qualified in the area of the computers, lasers and cameras used to generate DNA profiles, and, therefore, the court improperly admitted the DNA evidence. We disagree.

The following additional facts are relevant to the defendant’s claim. Two days after the alleged incident, the victim gave to the police the pair of white underpants and pink shorts that she had been wearing on the day of the alleged incident. Some time thereafter, the victim gave the police the sofa cushion onto which the defendant had allegedly ejaculated. At trial, the DNA evidence indicated that an epithelial rich fraction of the stain on the victim’s underpants revealed that the DNA from the stain was a mixture of which the defendant was included and the victim could not be excluded as a minor contributor. The testing on the sperm rich fraction of the stain revealed a single source for the DNA, a profile consistent with the defendant. There was additional evidence that the DNA testing, with respect to both the epithelial rich fraction and the sperm rich fraction extracted from the stain on the sofa cushion, also revealed a single source consistent with the defendant’s profile.

The state offered DNA evidence through Nicholas Yang, a forensic scientist employed by the department of public safety. Yang testified as to his qualifications, including a bachelor’s degree in biochemistry and a master’s degree in forensic science. He was also working toward a Ph.D. in genetics at the time. Yang had completed one year of training and had been employed at the laboratory for six and one-half years and had analyzed thousands of DNA samples. Yang testified that in order to do DNA typing, analysts get “pictures of [DNA] bands, which are transformed by software into peaks, and then we make comparisons between peaks of unknown and known samples.” The defendant objected to Yang’s testimony, arguing that the state had failed to lay a sufficient foundation that Yang had an adequate understanding of computer generated evidence as set forth in State v. Swinton, 268 Conn. 781, 847 A.2d 921 (2004). The defendant was permitted to voir dire Yang as to his qualifications, background, training and expertise. The court admitted Yang’s testimony, indicating that it had reviewed Swinton, and that Yang had demonstrated a degree of expertise in the computer field and had sufficient knowledge of the functioning of the computer system and program.

“In determining the relevancy and admissibility of evidence, trial courts have broad discretion. . . . Our standard of review of an evidentiary ruling is dependent on whether the claim is of constitutional magnitude. If the claim is of constitutional magnitude, the state has the burden of proving the constitutional error was harmless beyond a reasonable doubt. . . . Otherwise, in order to establish reversible error on an evidentiary impropriety, the defendant must prove both an abuse of discretion and a harm that resulted from such abuse. ” (Citations omitted; internal quotation marks omitted.) Id., 797-98. Because we find no error, we need not address the issue of harm.

The issue before us is whether the state laid an adequate foundation to introduce the DNA evidence by “a person with some degree of computer expertise, who has sufficient knowledge to be examined and cross-examined about the functioning of the computer.” (Internal quotation marks omitted.) Id., 813. Yang testified that the DNA typing method that he used was the method that was generally accepted within the scientific community. He explained that a laser is used to excite a dye that is contained on the DNA strand, which causes the DNA to migrate across a gel. A camera captures the image of that migration, and those images are turned into peaks and printed out and compared with the question samples. Yang detailed a system of protocols and controls followed by the laboratory to safeguard the testing and that a second analyst reviews all of the testing methods and the data generated in each and every case. Although Yang did not create the computer software used in the DNA testing, on the basis of Yang’s qualifications and familiarity with the DNA testing procedures and equipment, we conclude that the court correctly determined that he was sufficiently acquainted with the technology involved in the computer program that was used to generate the evidence in question, and, accordingly, the court did not abuse its discretion in allowing it into evidence.

The judgment is affirmed.

In this opinion the other judges concurred.

       Interestingly, the defendant conceded before the trial court on April 13, 2005, that the victim’s January 18, 2003 letter would not suggest that her mental state was so impaired as to impact her ability to testify. In fact, the defendant characterized the letter as “rambling but lucid and . . . certainly coherent.”

       We note that this allegation by the defendant was made through counsel and that the defendant never testified in this regard, nor did he sign an affidavit in support of this allegation.

       The defendant further claimed in his motion: “As to the mother, the defendant seeks material useful to cross-examination on the question of bias. The alleged victim apparently believes [that] her mother has failed to support her after assaults by as many as seven other men. The defendant will explore on cross-examination in this case whether the mother’s testimony in this case is fueled in whole or in part by a desire to restore trust with her daughter.” We know of no legal authority that would allow the examination of one person’s confidential psychiatric records to impeach the testimony of another witness.

       Although the victim acknowledged, during this preliminary voir dire, hearing voices at one point shortly after the incident involving the defendant, she responded negatively when asked on cross-examination if she was medicated for auditory hallucinations. It is unclear whether the victim was denying being medicated for hearing voices or denying actually hearing them, and the defendant did not explore this issue further.

       Notably, the state indicated that it would secure a consent from the victim for the 1992-1993 time period if that would satisfy the defendant.

       In the absence of any evidence of falsity, it is striking that the defendant was permitted to question the victim, both in the preliminary voir dire and during cross-examination before the jury, in relation to the prior sexual assaults in light of the proscriptions of the rape shield statute, General Statutes § 54-86f.

       Although the court denied the defendant’s motion for disclosure and declined to conduct an in camera review of the victim’s psychiatric records, the defendant was permitted to inquire of the victim on cross-examination, and was afforded great latitude in doing so, in the presence of the jury, regarding all of the areas covered during his preliminary voir dire, including the victim’s psychiatric health and claims of other sexual assaults. “Where the trial court allows significant cross-examination concerning a witness’ veracity, it cannot be said that the constitutional right to confrontation is implicated. . . . Although a lack of knowledge about the credibility of a witness implicates the constitutional right of confrontation, [t]hat lack of knowledge can be ameliorated by an extensive and effective [cross-examination].” (Internal quotation marks omitted.) State v. DeJesus, 91 Conn. App. 47, 76-77, 880 A.2d 910 (2005), cert. granted on other grounds, 279 Conn. 912, 903 A.2d 658 (2006).

       The defendant also claims on appeal that the court improperly refused to issue an order requiring Bridgeport Hospital to produce the victim’s psychiatric records. Because we conclude that the court properly refused to review those records in camera, we need not address this claim.

       Although the defendant cites State v. Porter, 241 Conn. 57, 698 A.2d 739 (1997) (en banc), cert. denied, 523 U.S. 1058, 118 S. Ct. 1384, 140 L. Ed. 2d 645 (1998), as the appropriate standard of review for this claim, the defendant is not challenging the reasoning or methodology underlying the evidence, and he did not seek a Porter hearing in challenging the DNA evidence before the trial court.

       In Swinton, the defendant objected to the introduction of computer enhanced photographs of bite marks that had been left on the victim and to computer generated exhibits showing the defendant’s teeth superimposed on the bite marks. Relying on rule 901 of the Federal Rules of Evidence, the court adopted six factors to be added to the requirement it had previously set forth in American Oil Co. v. Valenti, 179 Conn. 849, 359, 426 A.2d 305 (1979). In American Oil Co., the court held that there must be “testimony by a person with some degree of computer expertise, who has sufficient knowledge to be examined and cross-examined about the functioning of the computer.” In Swinton, the court adopted the additional requirements that “(1) the computer equipment is accepted in the field as standard and competent and was in good working order, (2) qualified computer operators were employed, (3) proper procedures were followed in connection with the input and output of information, (4) a reliable software program was utilized, (5) the equipment was programmed and operated correctly, and (6) the exhibit is properly identified as the output in question.” (Internal quotation marks omitted.) State v. Swinton, supra, 268 Conn. 811-12.
      In his brief, the defendant claims that the state failed to meet any of the standards enunciated under Swinton regarding computer generated evidence. Because the defendant, at trial, attacked only Yang’s qualifications to testify, his claim that none of the Swinton requirements were satisfied is unpreserved.


author: FLYNN, C. J.

text:
    STATE OF CONNECTICUT v. GERALD LEE KEMLER
    (AC 27344)
    Flynn, C. J., and Beach and Robinson, Js.

      Argued January 3
    officially released March 18, 2008

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

      Melissa L. Streeto, assistant state’s attorney, with whom, on the brief, were James E. Thomas, former state’s attorney, and Cathryn J. Krinitsky, senior assistant state’s attorney, for the appellee (state).
   Opinion

FLYNN, C. J.

The defendant, Gerald Lee Kemler, appeals from the judgment of conviction, following a trial by jury, of assault in the third degree in violation of General Statutes § 53a-61 (a) (1) and breach of the peace in the second degree in violation of General Statutes § 53a-181 (a) (1). On appeal, the defendant claims that the trial court improperly (1) failed to reinstruct the jury regarding the defendant’s self-defense theory when the court responded to the jury’s request that it explain again what constituted the offenses charged and (2) instructed the jury on the elements of assault in the third degree by giving the jury an instruction on transferred intent and instructing the jury that the defendant could be found guilty if he acted with reckless intent in causing injury to a third person. We affirm the judgment of the trial court.

The following facts, as reasonably could have been found by the jury, are relevant to our resolution of the defendant’s claims on appeal. During the afternoon hours of July 16, 2004, thousands of people gathered in the parking lots of the Connecticut Expo Center and the jai alai facility in Hartford while awaiting the start of the Dave Matthews Band concert at the Meadows Music Theater that evening. While awaiting the start of the concert, many people were drinking alcohol, cooking on grills, socializing and playing games. The victim, Andrew Keibel, and his girlfriend, Caitlin Eddy, went to the jai alai parking lot, at approximately 3 p.m., to socialize with some Mends and to attempt to purchase concert tickets from someone for that night’s show. The defendant and his friend, Ryan Arentz, neither of whom knew the victim nor Eddy, also were in the jai alai parking lot, drinking beer and socializing while awaiting the start of the concert. During the afternoon, several fights broke out among the crowd, and the police, dressed in riot gear, attempted to control the crowd and to push everyone out of the parking lot.

One of the arguments that occurred that afternoon was between a young unidentified woman and the defendant’s former girlMend, Christine Dyer. During that argument, Eddy approached the two females in an attempt to get them to quiet down before the police got involved. Eddy and Dyer then got into a verbal altercation, and Dyer walked toward Eddy in an aggressive and confrontational manner. Keibel then stepped between Dyer and Eddy and raised his arms, gesturing for the young women not to fight. Almost immediately thereafter, the defendant rushed toward Keibel and punched him in the face two times. In an attempt to stop the defendant from hitting Keibel, Eddy punched the defendant and tore his shirt, and the defendant pushed her to the ground on top of Keibel, causing her to sustain minor injury. Keibel was taken to a hospital with serious injuries to his cheekbone and right eye socket, which required emergency surgery. A metal plate was inserted into Keibel’s head to hold his facial bones in their proper place. The physicians also had to wire shut Keibel’s jaw for several weeks.

By way of a long form information, the defendant was charged with assault in the second degree for acts against Keibel, assault in the third degree for acts against Eddy and breach of the peace. The defendant raised two defenses at trial, intoxication and self-defense. After a jury trial, the defendant was convicted of the lesser included offense of assault in the third degree against Keibel and breach of the peace. The jury found him not guilty of assault in the third degree against Eddy. The court imposed a total effective sentence of one year imprisonment followed by two years probation. This appeal followed.

I

On appeal, the defendant first claims that the court improperly failed to reinstruct the jury regarding his self-defense theory when responding to the jury’s request that the court explain again the elements of the offenses charged. The defendant claims that this omission violated his rights under the fifth, sixth and fourteenth amendments to the United States constitution and article first, § 8, of the constitution of Connecticut. The defendant’s claim is not preserved because he failed to take an exception when the court did not reinstruct the jury on the defendant’s self-defense theory. Accordingly, he requests review under State v. Golding, 213 Conn. 233, 239-40, 567 A.2d 823 (1989), and the plain error doctrine. See Practice Book § 60-5. Although the record is adequate for review, we do not consider this claim to be of constitutional magnitude, and, accordingly, it fails the test of reviewability under Golding’s second prong. See State v. Young, 29 Conn. App. 754, 760-62, 618 A.2d 65 (1992) (claim that court improperly failed to reinstruct jury on theory of self-defense not of constitutional magnitude where no evidence of jury confusion about instruction on self-defense and jury did not request reinstruction on self-defense), cert. denied, 225 Conn. 904, 621 A.2d 287 (1993).

The defendant also seeks review pursuant to the plain error doctrine. Practice Book § 60-5 provides in relevant part: “The court shall not be bound to consider a claim unless it was distinctly raised at the trial or arose subsequent to the trial. The court may in the interests of justice notice plain error not brought to the attention of the trial court. . . .” “[T]he plain error doctrine . . . is not ... a rule of reviewability. It is a rule of reversibility. That is, it is a doctrine that this court invokes in order to rectify a trial court ruling that, although either not properly preserved or never raised at all in the trial court, nonetheless requires reversal of the trial court’s judgment, for reasons of policy. ... In addition, the plain error doctrine is reserved for truly extraordinary situations where the existence of the error is so obvious that it affects the fairness and integrity of and public confidence in the judicial proceedings. ... A party cannot prevail under plain error unless it has demonstrated that the failure to grant relief will result in manifest injustice.” (Internal quotation marks omitted.) State v. Fagan, 280 Conn. 69, 86-87, 905 A.2d 1101 (2006), cert. denied, 549 U.S. 1269, 127 S. Ct. 1491, 167 L. Ed. 2d 236 (2007). The defendant, although requesting that we invoke plain error review, has failed to explain why this claim merits such an extraordinary remedy, his brief focusing solely on Golding analysis. We therefore decline his invitation to consider plain error.

II

The defendant next claims that the court improperly instructed the jury on the elements of assault in the third degree by (1) giving the jury an instruction on transferred intent, which (a) improperly allowed the jury to find him guilty of assault in the third degree, as a lesser included offense of assault in the second degree, if it found that he intended to injure Keibel but mistakenly injured Eddy and (b) effectively charged the defendant with a new crime, and (2) by instructing the jury that the defendant could be found guilty if he acted with reckless intent in causing injury to a third person. The claimed instructional impropriety regarding transferred intent was preserved by the defendant when he took an exception to that portion of the charge; the claimed impropriety regarding the court’s use of the phrase “reckless intent” was not preserved.

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

A

1

The defendant claims that the court improperly instructed the jury on the elements of assault in the third degree by giving the jury an instruction on transferred intent. He argues that the court’s instruction allowed the jury to find the defendant guilty “with respect to the [lesser] included charge of third degree assault in [c]ount [o]ne, [if] the defendant intended to injure Mr. Keibel, but in fact injured Ms. Eddy by mistake.” The defendant further argues: “Although the prosecution did not argue during the trial that the defendant should be convicted based upon transferred intent, there was evidence presented that, in striking Mr. Keibel, the defendant had also pushed Ms. Eddy to the ground, causing her minor injuries. This act was the basis for count two, assault in the third degree with injury to Ms. Eddy.” The defendant further argues that “[d]espite his acquittal on count two, given the court’s instructions on injury to a third person, it is possible that the jury found the defendant guilty [of] assault in the third degree in count one based upon the injuries allegedly suffered by Ms. Eddy rather than Mr. Keibel. In other words, the jury could have found that the defendant, with intent to injure Mr. Keibel, mistakenly injured Ms. Eddy.” We do not agree.

Count one of the information specifically charged: “The undersigned Senior Assistant State’s Attorney accuses the defendant, Gerald Lee Kemler, of the crime of assault in the second degree, in violation of Section 53a-60 (a) (1) of the Connecticut General Statutes and alleges that on or about July 16, 2004 in Hartford, CT., the defendant with intent to cause serious physical injury to another person caused such injury to Andrew Keibel.” (Emphasis added.) The specific portion of the charge on assault in the third degree to which the defendant objects was as follows: “The law does not require that the person intended to injure the person he in fact injured. The defendant may have intended to injure one person but, by mistake, injured another, in which case, the defendant could be found guilty of this offense.” The defendant argues that the juiy could have been misled by this charge into thinking that it could find him guilty of the lesser included offense to count one if it found that the defendant intended to injure Keibel but mistakenly injured Eddy. We do not agree.

The court instructed the jury that although the information was not evidence, it was the formal charging document used by the state, and it would be given to the jury for use during deliberations. The court also instructed that the juiy must return a separate verdict as to each count contained in the information. It is difficult to comprehend how the jury could have been misled into thinking that it could find the defendant guilty of assault in the third degree, as a lesser included offense to assault in the second degree as charged in count one, if it found that the defendant intended to injure Keibel but mistakenly injured Eddy when the information specifically alleged that the defendant caused injury to Keibel. The instructions, taken together with the charging document, indicated to the jury that it could find the defendant guilty on count one if it found that the defendant intended to injure Keibel or another person and succeeded in injuring Keibel. There simply is no reasonable reading of the court’s charge in combination with the information that would lead one to believe that the jury could find the defendant guilty of assault in the second or third degree for acts against Keibel if it found that the defendant had injured Eddy and not Keibel.

2

The defendant next claims that the court improperly instructed the jury on the elements of assault in the third degree by giving the jury an instruction on transferred intent that effectively amounted to a new charge against the defendant, causing him unfair surprise and prejudice in violation of his rights under the constitution of the United States. He argues that he was “unfairly surprised when, following the court’s instructions to the jury at the conclusion of the case, he was effectively charged with a new crime; the crime of assaulting Ms. Eddy while intending to injure Mr. Keibel.” For the reasons cited in part I A 1, as well as the reasons we will discuss, we find no merit to this claim.

As this court explained in State v. Carter, 84 Conn. App. 263, 853 A.2d 565, cert. denied, 271 Conn. 932, 859 A.2d 931 (2004), cert. denied, 544 U.S. 1066, 125 S. Ct. 2529, 161 L. Ed. 2d 1120 (2005): “The sixth amendment to the United States constitution and article first, § 8, of the Connecticut constitution guarantee that a criminal defendant has the right to be informed of the nature and the cause of the charge or charges brought against him with sufficient precision to enable him to meet them at trial. ... If the information was sufficient to allow the defendant to prepare his defense, to avoid prejudicial surprise, and to enable him to plead his acquittal or conviction in bar of any future prosecution for the same offense, then it has fulfilled its constitutional purpose. ... In Connecticut, it is sufficient for the state to set out in the information the statutory name of the crime with which the defendant is charged, leaving to the defendant the burden of requesting a bill of particulars more precisely defining the manner in which the defendant committed the offense. . . . Where the defendant can demonstrate neither unfair surprise nor prejudice, he cannot claim an infringement of his constitutional right to fair notice of the crimes with which he is charged . . . .” (Citation omitted; internal quotation marks omitted.) Id., 272-73.

We find the analysis in Carter to be informative. In Carter, the charging document had stated that “ ‘with intent to cause physical injury to another person, the accused caused said injury to [the victim] ... by means of the discharge of a firearm.’ ” (Emphasis added.) Id., 273. The trial court had read the charge and the assault statute, General Statutes § 53a-59 (a) (5), under which the defendant had been charged, to the jury. The trial court also had instructed the jury that it “could convict the defendant of assaulting the victim [a seven year old girl] if ‘the defendant intend[ed] to cause physical injury to the person at whom he was allegedly shooting, that is, Maurice Miller ....’” State v. Carter, supra, 84 Conn. App. 273. In analyzing the defendant’s claim that he was not informed that the state would proceed under a theory of transferred intent, we concluded that count one of the information had appraised the defendant adequately of the charge against him by providing a citation to the statutory charge, the name, the place and the time of the crime, and the general nature of the criminal act, thereby enabling him “to prepare a defense, to avoid surprise and to raise the disposition as a bar to farther prosecution.” Id. Additionally, we further concluded that “[t]he defendant’s argument [was] essentially a claim that the information was unskillfully or imprecisely drafted [and he could not] prevail on that claim because the amended information did not completely fail to aver the theory of transferred intent.” Id., 273-74.

We have reached the same conclusion in the present case. The information specifically alleged that the defendant “with intent to cause serious physical injury to another person caused such injury to Andrew Keibel.” (Emphasis added.) Whether “another person” referred to Keibel or some third person was a matter for trial. The information, however, reasonably could be read to aver a theory of transferred intent. Accordingly, the defendant’s claim fails.

B

The defendant also claims that his due process rights were violated when the court made a reference to “reckless intent” in its main charge on count two, assault in the third degree. He argues that this incorrect instruction diluted the state’s burden of proof and that “the jury could reasonably have been confused by the court’s instruction and may have believed that ‘reckless’ rather then ‘intentional’ conduct was the mental element required for a conviction of third degree assault based upon injury to Ms. Eddy.” This claim was not preserved at trial, and, therefore, the defendant requests Golding review. We conclude that there exists no clear constitutional violation and, accordingly, that the claim fails under Golding's third prong. See footnote 1.

The trial transcript discloses that during the court’s main instruction to the jury on assault in the third degree, as alleged in count two of the information, the court stated in relevant part: “The law does not require that the defendant intended to injure the person he, in fact, injured. He may have intended to injure one person but, by mistake, injured another. In which case, the defendant could still be found guilty of this offense as long as he has reckless intent. And again, I went through the issues of intent. It’s the same things that we just went through [that] apply to this count.” Immediately before giving the jury instruction on count two of the information, however, the court had explained, both accurately and thoroughly, the intent element of assault in the third degree as a lesser included offense of assault in the second degree. The court also stated, when beginning the instruction as to count two, that the intent element was the same as the one just given on the lesser included offense of assault in the third degree in count one. Additionally, in response to two questions from the jury, the court reinstructed the jury on the elements of assault in the third degree and, both times, explained that it was a specific intent crime. “[G]reater weight is likely to have been given by the jury to a later statement than to an earlier one; and this principle operates at times to cure an error in the earlier statement .... W. Maltbie, Connecticut Appellate Procedure (2d Ed. 1957) § 95, p. 114.” (Internal quotation marks omitted.) State v. Dews, 87 Conn. App. 63, 74 n.8, 864 A.2d 59, cert. denied, 274 Conn. 901, 876 A.2d 13 (2005).

After carefully reviewing the entire charge, we conclude that it is not reasonably possible that the jury was misled by the court’s one misstatement. As we have stated, the court thoroughly explained the element of intent to the jury and repeatedly stated that the state had to prove that the defendant had the specific intent to commit the crime. Although the court once stated that the defendant needed a reckless intent, the court also frequently instructed the jury that the defendant’s specific intent was an element of assault in the third degree, and it explained in thorough detail the concept of intent. As our Supreme Court stated in State v. Montanez, 277 Conn. 735, 894 A.2d 928 (2006): “Indeed, the trial court did so with such repetition, unequivocation and crystalline clarity that [i]t strains reason to believe that the jury could have [interpreted] the challenged instruction as not requiring that the state prove beyond a reasonable doubt that the defendant [possessed the relevant specific intent].” (Internal quotation marks omitted.) Id., 746. Additionally and perhaps equally important, we also are mindful that the defendant was acquitted on count two, assault in the third degree against Eddy. Accordingly, we cannot conclude that there is a reasonable possibility that the court’s instructions misled the jury.

The judgment is affirmed.

In this opinion the other judges concurred.

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

       In this case, the defendant concedes that the court properly instructed the jury on self-defense numerous times. It is the lack of a reinstruction that he claims was improper, although he did not object or take an exception. We note that, even in cases where this issue has been preserved properly by an objection or an exception, we repeatedly have held that the court has no duty to reinstruct on a theory of self-defense except where there is an indication that the jury is confused on this theory or it has asked for clarification. In State v. Stavrakis, 88 Conn. App. 371, 387, 869 A.2d 686, cert. denied, 273 Conn. 939, 875 A.2d 45 (2005), the court, in response to a question from the jury, reinstructed it on the elements of the charged crimes. The defendant objected to the court’s decision not to reinstruct the jury on the theory of self-defense. Id., 387 n.14. We explained, on appeal, that the court had no duty to broaden the scope of the jury’s inquiry by reinstructing it on the elements of self-defense when the jury neither requested reinstruction nor expressed confusion about those elements. Id., 387-88; see also State v. Reid, 22 Conn. App. 321, 324-25, 577 A.2d 1073 (because jury did not ask for reinstruction or evince confusion on elements of self-defense, trial court had no duty to reinstruct on that defense), cert. denied, 216 Conn. 828, 582 A.2d 207 (1990).

       We reiterate that the jury had a copy of the information during its deliberations. We also note that at the start of the trial, the clerk read the information to the jury after calling the roll and administering the jury oath.


text:
    GUERDY JEUDY v. ALLRICH JEUDY
    (AC 26772)
    (AC 27958)
    Bishop, DiPentima and Lavine, Js.

      Argued January 3
    officially released March 18, 2008

      Reine C. Boyer and Stuart M. Sheiman, for the appellant (defendant).

      Thomas G. Ganim, with whom, on the brief, was Gwen E. Adamson, for the appellee (plaintiff).
   Opinion

BISHOP, J.

These two appeals arise from the denial of two motions to open the judgment of dissolution of the parties’ marriage. In AC 26772, the defendant, All-rich Jeudy, claims that the trial court improperly denied his motion to open the judgment in that it determined that it had personal jurisdiction over him that was effectuated by abode service. In AC 27958, the defendant claims that the court improperly denied his motion to open the judgment on the basis of fraud. We affirm the judgments of the trial court.

The following factual and procedural history is relevant to our resolution of the defendant’s appeals. On January 4,2005, the court rendered judgment dissolving the parties’ marriage. On February 14, 2005, the defendant moved to open the judgment of dissolution on the ground that he was never served with a summons and complaint and, thus, did not become aware of the dissolution action until after the court had rendered judgment. Following an evidentiary hearing, the court denied the defendant’s motion to open by memorandum of decision filed July 12, 2005. In AC 26772, the defendant appeals from the court’s ruling.

On January 24, 2006, the defendant filed a motion for modification of the dissolution judgment on the ground that the judgment was procured by fraudulent and perjurious testimony presented by the plaintiff, Guerdy Jeudy, regarding the defendant’s income and the joint ownership of three parcels of real property. On May 23, 2006, the court heard this motion. After hearing testimony from three individuals, including the defendant, it became apparent to the court that the defendant was not seeking to modify the judgment but to open the judgment, and the court made its belief in this regard known to the parties. Consequently, the defendant presented to the court a motion to open the judgment, which was identical in substance to the motion to modify. The plaintiff objected to the motion to open on the ground that it was untimely because the defendant unreasonably waited for more than twelve months from the date of judgment to assert his fraud claim, when he should have been aware of any such claim far sooner than that, and that the plaintiff was prejudiced by this delay. In response, the court ordered the parties to submit briefs as to the issue of timeliness and, ultimately, on June 29,2006, denied the defendant’s motion to open. On July 19, 2006, the defendant filed a motion to reargue, which was also denied. The appeal in AC 27958 followed.

As a preliminary matter, we set forth the applicable standard of review. “The principles that govern motions to open or set aside a civil judgment are well established. A motion to open and vacate a judgment . . . is addressed to the [trial] court’s discretion, and the action of the trial court will not be disturbed on appeal unless it acted unreasonably and in clear abuse of its discretion. ... In determining whether the trial court abused its discretion, this court must make every reasonable presumption in favor of its action. . . . The manner in which [this] discretion is exercised will not be disturbed so long as the court could reasonably conclude as it did.” (Internal quotation marks omitted.) Bove v. Bove, 103 Conn. App. 347, 351, 930 A.2d 712 (2007). With this standard in mind, we turn to the defendant’s claims on appeal.

I

The defendant first claims, in AC 26772, that the court improperly denied his motion to open the judgment in that it determined that it had personal jurisdiction over him that was obtained by abode service. We disagree.

In challenging the service of the dissolution summons and complaint, the defendant did not dispute the fact that the marshal made abode service at 404 Fairview Avenue in Bridgeport. The defendant claims, however, that the abode service made at 404 Fairview Avenue was defective because he never lived at that address and, therefore, did not get notice of the dissolution proceedings until after judgment entered. In denying the motion to open, the court stated that it carefully considered all of the testimony presented and found the defendant’s testimony evasive and inconsistent and, therefore, not credible. Furthermore, there was testimony from the plaintiff that the defendant was not residing in the marital residence and that he was, in fact, residing at 404 Fairview Avenue at the time of service and that the defendant had bank accounts listing 404-406 Fairview Avenue as his address. Because it is the exclusive province of the trier of fact to resolve credibility determinations; see State v. Ortiz, 95 Conn. App. 69, 81, 895 A.2d 834, cert. denied, 280 Conn. 903, 907 A.2d 94 (2006); and there is evidence in the record supporting the claim that the defendant’s abode at the time of service was 404 Fairview Avenue, the court did not improperly find that service was adequate. Accordingly, the court did not abuse its discretion in denying the defendant’s motion to open the judgment.

II

The defendant next claims, in AC 27958, that the court improperly denied his motion to open the judgment on the basis of fraud without conducting an evidentiary hearing. We are unpersuaded.

As noted, this motion to open asserted that the dissolution judgment was based on the plaintiffs perjurious testimony regarding the defendant’s income and the legal ownership of certain real estate. During the hearing on May 23, 2006, when the defendant presented his motion to open to the court, the plaintiff objected to the motion on the ground that it was untimely. In support of her objection, the plaintiff argued that the alleged perjury took place on October 8, 2004, the judgment of dissolution was rendered on January 4, 2005, and the defendant filed his first motion to open the judgment, in which he challenged the court’s jurisdiction, on February 14, 2005. The plaintiff further asserted that she was prejudiced by the defendant’s delay in bringing the motion because the motion sought to reverse financial and property orders that had been in place since January 4, 2005, and, as a result, the plaintiff had expended large sums of money related to the real properties, including payment of the mortgage, interest, taxes and maintenance. The defendant did not offer any reason for the delay, except that his new attorney was not engaged until after the denial of the first motion to open, and the fraud was, therefore, not discovered until after that date. The court requested that the parties submit briefs on the issue of whether the court had the authority to hear the motion to open “with respect to time limitations and so forth.” Following the submission of briefs by both parties, the court denied the defendant’s motion to open, finding, inter alia, that the defendant failed to justify his delay in asserting fraud and that the delay was unreasonable and prejudiced the plaintiff, and his motion was, therefore, untimely.

“There are three limitations on a court’s ability to grant relief from a dissolution judgment secured by fraud: (1) there must have been no laches or unreasonable delay by the injured party after the fraud was discovered; (2) there must be clear proof of the fraud; and (3) there is a substantial likelihood that the result of the new trial will be different.” (Internal quotation marks omitted.) Terry v. Terry, 102 Conn. App. 215, 223, 925 A.2d 375, cert. denied, 284 Conn. 911, 931 A.2d 934 (2007). “Laches consists of an inexcusable delay which prejudices the defendant. . . . First, there must have been a delay that was inexcusable, and, second, that delay must have prejudiced the defendant. ... A determination that a plaintiff has been guilty of laches is one of fact for the trier and not one that can be made by this court, unless the subordinate facts found make such a determination inevitable as a matter of law.” (Citation omitted; internal quotation marks omitted.) Riscica v. Riscica, 101 Conn. App. 199, 207-208, 921 A.2d 633 (2007).

In denying the defendant’s motion to open, the court noted that the defendant filed his first motion to open on February 14, 2005, approximately one month after the date of the dissolution judgment, but that motion made no mention of fraud. The court noted as well that it was not until more than one year after the date of dissolution that the defendant asserted his fraud claim. The plaintiff immediately asserted her claim of inexcusable delay, and the defendant did not offer any reasonable justification for his delay. The court indicated that the dissolution judgment required the plaintiff to expend funds on the costs of the properties awarded to her in the dissolution judgment and that she was prejudiced by the defendant’s delay in claiming that the judgment awarding her sole ownership of those properties was procured by fraud. Because the defendant failed to justify his delay in asserting fraud, and the basis for the court’s finding of delay and prejudice are supported by the record, we conclude that the court did not abuse its discretion in denying the defendant’s motion to open.

The judgments are affirmed.

In this opinion the other judges concurred.

       The defendant also claims in AC 26772 that the court improperly precluded him from introducing the testimony of his minor child and limited his cross-examination of the plaintiff, Guerdy Jeudy. Because the court never ruled on the defendant’s motion to call his daughter as a witness, and because the defendant indicated to the court that he had no further questions for the plaintiff on cross-examination, he did not preserve these claims. We therefore decline to review them.

       The defendant also claims in AC 27958 that the court improperly ordered a sale of the subject properties and that the defendant pay for half the mortgage and appraisal costs in contravention of the automatic stay pending the resolution of the appeal in AC 26772. Because, however, the defendant did not appeal from the judgment of dissolution, there was no automatic stay of those financial orders, and this claim is, therefore, unworthy of further discussion.

       The court also found that the defendant failed to provide clear proof of fraud and failed to demonstrate that there was a substantial likelihood that the result of a new trial could be different. In his motion to reargue, the defendant claimed, as he does on appeal, that he should have been afforded an evidentiary hearing on these issues. Because the court had a sufficient basis on which to conclude that the defendant’s motion was untimely, and therefore, his fraud claim was barred, we need not address the merits of the fraud claim or whether the defendant should have been afforded an evidentiary hearing.