author: HENNESSY, J.

text:
    STATE OF CONNECTICUT v. RICHARD AQUART
    (AC 20534)
    Foti, Dranginis and Hennessy, Js.
    Argued November 30, 2001
    Officially released April 9, 2002

      Raymond J. Rigat, for the appellant (defendant).

      Richard F. Jacobson, special assistant state’s attorney, with whom was John C. Smriga, supervisory assistant state’s attorney, for the appellee (state).
   Opinion

HENNESSY, J.

The defendant, Richard Aquart, appeals from the judgment of the trial court denying his motion for a new trial. On appeal, the defendant claims that the reconstructed record of his narcotics trial is inadequate to enable his appellate counsel to proceed effectively with the presentation of an appeal. We affirm the judgment of the trial court.

The following facts and procedural history are undisputed. On October 30, 1986, the defendant was found guilty, after a jury trial, of possession of cocaine with intent to sell in violation of General Statutes § 21a-277 (a) and possession of marijuana with intent to sell in violation of § 2 la-277 (b). The defendant absconded before his scheduled sentencing on December 12,1986. The defendant finally was located, returned to the jurisdiction and sentenced on October 22, 1993. Following the sentencing and representations by his attorney that an appeal of his conviction would be undertaken, a motion for a waiver of fees was filed. The defendant believed at that time that an appeal had been filed on his behalf. The court did not act on the motion, however, and an appeal form and a transcript order was not filed.

Having learned that an appeal was not taken, on the advice of the office of the public defender, the defendant filed a habeas corpus petition in 1997, alleging that he had been denied his right to appeal in the narcotics case and requesting the habeas court to allow him to file a late appeal. The court granted the petition, and directed the office of the public defender to reclaim the motion for a fee waiver and appointment of counsel before the original trial court in Bridgeport and to pursue the defendant’s appeal. A waiver of fees and costs was granted and counsel, on behalf of the defendant, filed an appeal and a motion to reconstruct the record. The court held a hearing to reconstruct the record in which it pieced together the record by incorporating the trial file, the court’s extensive trial notes and a reproduction of the jury instructions, and by soliciting the cooperation of the trial attorneys. On February 16, 2001, the court, on the record, presented the parties with a typed copy of the trial judge’s notes from the defendant’s narcotics trial in 1986. At the February 16, 2001 hearing, the defendant offered an oral motion for a new trial on the basis of the inadequacy of the reconstructed transcript. The court denied the motion, holding that the record was adequate for appellate review. The defendant now appeals.

The defendant contends that the lack of availability of a complete trial transcript has deprived him of his constitutional right to meaningful appellate review and, therefore, principles of equity entitle him to have his case retried. We disagree.

Specifically, the defendant argues in his brief that “unless an appellate advocate with ‘his trained fingers may leaf and his trained eyes may roam’ [Hardy v. United States, 375 U.S. 277, 288, 84 S. Ct. 424, 11 L. Ed. 2d 331 (1964) (Goldberg, J., concurring)] in search of an error, through a verbatim transcript, his right to appeal is so undermined that a new trial is required.” The state contends that the proceedings have been reconstructed sufficiently. The defendant cites General Statutes § 52-268 and case law to support his argument for a new trial. We will address the statute first arid then the applicable case law.

Although it is true that § 52-268 allows the court to grant a motion for a new trial when the transcript of a proceeding is missing and a review for errors is not possible, the facts of this case do not meet the requirements of § 52-268. In the present case, the defendant’s motion for a new trial was made orally at the February 16, 2001 hearing. Even if we assume that the court waived the requirement of § 52-268 (a) that the motion be in writing, the defendant’s motion still would be inadequate to obtain a new trial pursuant to § 52-268. Section 52-268 (c) requires that a motion for a new trial “contain a statement of errors which are claimed to have occurred in the trial of the matter.” The defendant’s claim that he was prejudiced because the record does not contain a verbatim transcript of the 1986 narcotics trial is not equivalent to “a statement of errors which are claimed to have occurred in the trial of the matter” and, as such, § 52-268 does not entitle the defendant to a retrial of his narcotics case.

We now turn to the defendant’s claim that the case law supports his motion for a new trial. Initially, we set forth the applicable standard of review. “The sufficiency of a transcript to enable the appellate courts to review the issues on appeal is a matter of fact, because the trial court is in the best position to determine whether the reconstructed record adequately reflects what occurred at the trial. An appellate court should affirm a trial court’s finding that the reconstructed record was sufficient unless the appellate court finds that the trial court’s determination was clearly erroneous.” (Internal quotation marks omitted.) State v. DePastino, 228 Conn. 552, 558, 638 A.2d 578 (1994).

In State v. Williams, 227 Conn. 101, 629 A.2d 402 (1993), our Supreme Court set out the test for determining the sufficiency of a reconstructed record. The court noted that “[i]n determining whether a reconstructed record is sufficient, the trial court considers various factors, including the nature of the case, the claim of error advanced by the defendant, the availability of witnesses and exhibits from the original trial, the length of time that has passed, the length of the missing portion of the record and whether the defendant is represented by different counsel on appeal.” (Emphasis added.) Id., 106.

In the present case, relying on its detailed trial notes, the memory of the state’s attorney, a reconstructed set of jury instructions, the fact that no appealable issues were set forth in the reconstructed transcript and the absence of any disagreement by the defendant with the substance of the reconstructed transcript or a claim of any omission from the reconstructed transcript that would support a ground for an appeal, the court found that the reconstructed transcript was sufficient to enable the Appellate Court to review the trial on appeal. As noted in our discussion of § 52-268, the defendant’s argument is flawed by the fact that he has not put forth a claim of trial court error in his appeal. Because the defendant did not allege a claim of error, this court is left with the impossible task of determining whether the reconstructed record is inadequate to allow proper appellate review of an unknown claim. “The purpose of the reconstructed record is to enable the appellate court effectively to review identified claims of error; the record is not presumed to be complete enough to dissect in the hope of discovering hitherto unnoticed issues or errors.” (Internal quotation marks omitted.) Id., 109-10.

Our Supreme Court’s decisions in State v. Vitale, 190 Conn. 219, 460 A.2d 961 (1983), and DePastino also are instructive in addressing the defendant’s claim that the reconstructed record is inadequate. In Vitale, our Supreme Court stated that “the absence of a portion of the transcript does not warrant a new trial unless the proceedings cannot be sufficiently reconstructed to allow effective appellate review of the claims raised by the defendant.” Id., 223. In DePastino, the court wrote that “[t]he state is not required to furnish to the defendant a verbatim transcript of the underlying trial. . . . The state must ensure only that the record is adequate for effective appellate review of any claims of error raised by the defendant. . . . A new trial is required only if the record, as reconstructed, is inadequate for this purpose.” (Citations omitted.) State v. DePastino, supra, 228 Conn. 557-58. In both of those cases, as in Williams, it was necessary to the court’s determination of the adequacy of the record that the defendant raise a claim of error. Consequently, because the defendant in this case did not put forth a claim of error, he has failed to sustain his burden of showing that the court’s determination was clearly erroneous.

The defendant next argues that there is a presumption that he was prejudiced by the reconstructed transcript and is entitled to a new trial because (1) there is a substantial and significant omission in the reconstructed transcript and (2) his appellate counsel in the present case was not his trial counsel in the narcotics case. The defendant has failed to provide this court with factual support for his claim that there is a substantial and significant omission in the reconstructed transcript and, accordingly, we decline to review his claim.

Second, the defendant argues that having new appellate counsel raises a presumption that his appeal is prejudiced. He claims that when appellate counsel also acts as trial counsel, there is an expectation that he or she would be aware of any errors or improprieties that may have occurred during the portion of the proceedings for which there is no transcript. The defendant argues that he is prejudiced because he does not have the benefit of that expectation, coupled with the fact that his trial counsel, although available at the hearing on the motion for a new trial, had little or no recollection of the details of the trial.

In support of his claim, the defendant relies on United States v. Selva, 559 F.2d 1303 (5th Cir. 1977). The defendant’s reliance on Selva, however, is misplaced. In Selva, the closing arguments were not recorded as a result of the illness of the court reporter. Id., 1304. The judgment of conviction was reversed, and the case was remanded to the United States District Court for a new trial. Id., 1305. In Selva, the United States Court of Appeals for the Fifth Circuit held that “although [the] appellant alleges no specific error to have occurred during the unrecorded portion of the proceeding, the fact that his new appellate counsel is foreclosed from examining for possible error a substantial and crucial portion of the trial renders illusory his right to appeal.” Id. The District Court had determined that it was not possible to reconstruct a substantially verbatim account of the final arguments. Id. The Fifth Circuit thereafter ordered a new trial. Id.

Selva presents a case in which the District Court found that it was not possible to reconstruct the record and, nevertheless, denied a new trial. In sharp contrast, the trial court in the present case found that the reconstructed transcript was sufficient for appellate review of the trial.

“Some of the federal courts have held that where a defendant is represented by new counsel on appeal, as in this case, a presumption of prejudice sufficient to mandate a new trial arises whenever there is a substantial and significant omission in the transcript. United States v. Taylor, 607 F.2d 153, 154 [(1979) [on appeal after remand], 631 F.2d 419 (5th Cir. 1980); United States v. Brumley, 560 F.2d 1268, 1281 (5th Cir. 1977); United States v. Selva, [supra, 559 F.2d 1305]. The majority rule, however, is that the absence of a portion of the transcript does not warrant a new trial unless the proceedings cannot be sufficiently reconstructed to allow effective appellate review of the claims raised by the defendant. State v. Stafford, 223 Kan. 62, 64, 573 P.2d 970 (1977); Smith v. State, 291 Md. 125, 137, 433 A.2d 1143 (1981); Commonwealth v. Harris, 376 Mass. 74, 77-79, 379 N.E.2d 1073 (1978); People v. Glass, 43 N.Y.2d 283, 286-87, 372 N.E.2d 24 [401 N.Y.S.2d 189] (1977).” State v. Vitale, supra, 190 Conn. 223. Given that the defendant has not put forth in his motion for a new trial or on appeal any claim of error that occurred in the trial of the matter, as is required by § 52-268 (c), we agree with the court’s conclusion in its hearing on the defendant’s motion that the reconstructed transcript was “adequate for the purpose it needs now to be used.” Accordingly, the ruling of the court was not clearly erroneous.

The judgment is affirmed.

In this opinion the other judges concurred.

       The defendant argues that although he has served the sentences imposed as a result of the narcotics conviction and a conviction for failure to appear for sentencing in connection therewith, his appeal is not moot because of the continuing harm he will suffer due to the conviction on his record and the civil ramifications stemming from it in connection with an immigration hearing.

       The tapes and notes of the court monitor who attended the defendant’s criminal trial were destroyed pursuant to the February 4, 1998 order from the chief court administrator made in accordance with the provisions of General Statutes § 51-36 (b) to destroy such materials that were created more than seven years prior to April 1, 1998.

       The defendant’s trial counsel, although available at the hearing on the motion for a new trial, had little or no recollection of the details of the trial.

       General Statutes § 52-268 provides: “(a) Any party who intends to appeal or has appealed a final judgment of the Superior Court, or of ajudge thereof, an appeal from which properly lies, may move the court in writing for a new trial if the judge who rendered judgment, or the stenographer or court reporter who took the testimony at the original trial therein if his stenographic notes are not decipherable, has died or become incapable of taking the action necessary for the appeal, and the party had complied with the rules relating to the taking of appeals before such death or incapacity.
      “(b) The motion shall be filed in the court within ten days after the death or incapacity of the judge or stenographer or court reporter has become known to the party appealing from the judgment.
      “(c) The motion shall contain a statement of errors which are claimed to have occurred in the trial of the matter.
      “(d) After hearing the motion, the court shall grant a new trial if, in its opinion, the errors claimed to have been committed are of such a nature as fairly entitle the party appealing to a review of. the errors by appeal and a review of the errors cannot otherwise be had.”


source: Caselaw Access Project

author: SCHALLER, J.

license: Public Domain

text:
    STATE OF CONNECTICUT v. MICHAEL ANCONA
    (AC 20470)
    Landau, Schaller and Hennessy, Js.
    Argued December 7, 2001
    officially released April 9, 2002

      Jacob Wieselman, with whom was Michael E. Eaton, for the appellant (defendant).

      Nancy L. Chupak, assistant state’s attorney, with whom, on the brief, was James E. Thomas, state’s attorney, for the appellee (state).
   Opinion

SCHALLER, J.

The defendant, Michael Ancona, appeals from the judgment of the trial court, rendered after a jury trial, convicting him of fabricating physical evidence in violation of General Statutes § 53a-155, conspiracy to fabricate physical evidence in violation of General Statutes §§ 53a-48 (a) and 53a-155 (a) (2) and falsely reporting an incident in violation of General Statutes § 53a-180 (a) (3) (C). The defendant’s sole claim is that the prosecutor’s misconduct in closing and rebuttal arguments was so egregious that the defendant was deprived of his due process right to a fair trial. We reverse the judgment of the trial court and remand the case for a new trial.

This appeal arises out of a criminal investigation into the police tactics used to make an arrest on February 14, 1997. At that time, the defendant was a member of the Hartford police department. The jury reasonably could have found the following facts. On the evening of February 14,1997, several officers from the Hartford police department, including the defendant, engaged in a high speed chase. Bloomfield police officers joined the pursuit after being notified that the truck being chased, which was driven by James Wilson, had entered their town. The chase ended in Bloomfield where Officer Michael Driscoll of the Bloomfield police department removed Wilson from the vehicle. As Driscoll removed Wilson, the defendant, who was standing nearby, ducked and stepped back to avoid a blow from Wilson’s hand. Several police officers, including the defendant, used force to subdue Wilson. An investigation into the police conduct followed. Reports and statements of seasoned police officers from both police departments conflicted with rookie police officers with regard to which officers were involved in subduing Wilson and the details concerning the amount of force used to subdue Wilson. Furthermore, testimony of the seasoned police officers about the incident conflicted with that of the rookie police officers, but the details of each police officer’s testimony is unnecessary to our disposition of this appeal.

The defendant was charged under two separate informations. The first information charged him with assault in the second degree with a firearm in violation of General Statutes § 53a-60a and assault in the second degree in violation of General Statutes § 53a-60 (a) (2). The second information charged the defendant with fabricating physical evidence in violation of § 53a-155, conspiracy to fabricate physical evidence in violation of §§ 53a-48 (a) and 53a-155 (a) (2), and falsely reporting an incident in violation of § 53a-180 (a) (3) (C). The jury found the defendant not guilty of the assault counts in the first information and found the defendant guilty of all three counts of the second information. The defendant appealed.

The defendant claims that the prosecutor made numerous improper statements during closing and rebuttal arguments that were so egregious that he was deprived of his due process right to a fair trial under the fifth, sixth and fourteenth amendments to the United States constitution and article first, §§ 8 and 19, of the constitution of Connecticut. Specifically, the defendant argues that during the prosecutor’s closing and rebuttal arguments, the prosecutor improperly (1) displayed blue tinted sunglasses that had not been admitted in evidence in the case, (2) introduced the concept of the “blue code,” (3) offered his opinion that the seasoned officers’ testimony was unbelievable, (4) vouched for the credibility of the rookie officers’ testimony, (5) blamed the seasoned officers for failing to help the victim, (6) posed hypotheticais to the jurors to encourage them to relate to the victim, (7) displayed a badge that was not part of the evidence and (8) appealed to the jurors’ emotions and inflamed the passions of the jurors.

In closing argument, the prosecutor stated that he believed that there were a number of factors showing that there was criminal conduct in this case. He held up a pair of blue tinted sunglasses to demonstrate the concept of a “blue code,” whereby police officers “avoid ratting on a brother officer.” He proceeded to credit the testimony of rookie officers and to discredit the testimony of the seasoned officers. The prosecutor next posed a hypothetical to illustrate his opinion that the officers would have seen everything if Wilson, rather than a fellow officer, had been the defendant in the case. He accused the officers who hit Wilson of perverting the law and abusing their discretion. See footnote 4. He challenged the jury to “protect those officers that are attempting to properly use that discretion and ... to punish those officers who do not and who use their badge to commit a crime.” In the prosecutor’s rebuttal, he discredited the statement and testimony of the defendant. He explained that the jury was to evaluate the totality of the evidence and that even if the state’s witnesses were “liars,” there was still no reasonable doubt. After emphasizing witness testimony and stating his interpretation of the inferences that could be drawn, the prosecutor blamed the seasoned officers for failing to prevent the assault on Wilson. He further posed a series of rhetorical questions to the jury about the police officers’ conduct. To close his rebuttal, the prosecutor stated: “There’s a monument in Washington that’s set up that has about fourteen [thousand] or fifteen thousand plaques on it of officers who died in the line of duty. They died to protect us and they died to honor this, their badge. What those officers did that night is a disgrace. It’s a disgrace to their badge. Don’t let them get away with it.”

After the jury was excused, the defense attorney objected to the prosecutor’s use of the badge and his distracting the jury from the issue. The defense attorney argued that the prosecutor’s statements were “prejudicial and objectionable and [could not] be cured by an instruction.” The prosecutor argued that the statements were proper. The court stated that the prosecutor’s remarks “fell within fair comment” and did not sustain the objection. The state argues that the defendant failed to preserve all of his claims on appeal. The defendant argues that all of his claims were preserved because his objection that the statements could not be cured by an instruction constituted a motion for a mistrial. The defendant fails to cite support and we do not know of any for his proposition that an objection stating that the prosecutor’s statements were “prejudicial and objectionable and [could not] be cured by an instruction” constitutes a motion for a mistrial.

“The failure to object to certain arguments at trial often is an indication that counsel did not view the remarks as so prejudicial that his client’s right to a fair trial was seriously jeopardized. . . . Counsel might make a tactical decision not to object to a marginally objectionable argument because he or she does not want to draw the jury’s attention to it or because he or she wants to later refute that argument.” (Internal quotation marks omitted.) State v. Dillard, 66 Conn. App. 238, 249, 784 A.2d 387, cert. denied, 258 Conn. 943, 786 A.2d 431 (2001). Here, the defendant failed to object to the prosecutor’s closing argument. His objection focused on the rebuttal arguments of the prosecutor. We conclude that the defendant failed to preserve properly the first six claims and, therefore, we do not review them individually. The objection was sufficient, however, to preserve for our review the defendant’s claims that the prosecutor improperly displayed a badge and appealed to the jurors’ emotions and inflamed the passions of the jurors.

“[Our Supreme Court has] previously acknowledged that prosecutorial misconduct can occur in the course of closing argument. . . . Such argument may be, in light of all of the facts and circumstances, so egregious that no curative instruction could reasonably be expected to remove [its] prejudicial impact. ... To review a claim of prosecutorial misconduct during closing argument, we ask whether the prosecutor’s conduct so infected the trial with unfairness as to make the resulting conviction a denial of due process.” (Citations omitted; internal quotation marks omitted.) StaTe v. Mills, 57 Conn. App. 202, 205, 748 A.2d 318, cert. denied, 253 Conn. 914, 915, 754 A.2d 163 (2000). “The burden on the defendant is to show that the prosecutor’s remarks were prejudicial in light of the entire proceeding. . . . The fairness of the trial and not the culpability of the prosecutor is the standard for analyzing the constitutional due process claims of criminal defendants alleging prosecutorial misconduct.” (Citations omitted; internal quotation marks omitted.) State v. Butler, 55 Conn. App. 502, 508, 739 A.2d 732 (1999), aff'd, 255 Conn. 828, 769 A.2d 697 (2001). “[I]mproper summation results in a denial of due process when the improper statements cause substantial prejudice to the defendant.” (Internal quotation marks omitted.) State v. Oehman, 212 Conn. 325, 336, 562 A.2d 493 (1989).

First, we determine whether the prosecutor’s conduct was improper. The defendant’s first preserved claim is that the prosecutor improperly displayed a badge that had not been admitted into evidence during the prosecutor’s rebuttal arguments. We agree.

It is well settled that “[a] prosecutor, in fulfilling his duties, must confine himself to the evidence in the record. ... [A] lawyer shall not . . . [ajssert his personal knowledge of the facts in issue, except when testifying as a witness. . . . Statements as to facts that have not been proven amount to unsworn testimony, which is not the subject of proper closing argument.” (Citations omitted; internal quotation marks omitted.) State v. Williams, 41 Conn. App. 180, 185, 674 A.2d 1372, cert. denied, 237 Conn. 925, 677 A.2d 950 (1996).

We conclude that the prosecutor failed to confine himself to the evidence in the record. During the prosecutor’s rebuttal argument, he improperly displayed a badge that was not evidence in the case. He improperly made statements as to facts that had not been proven when he referred to a monument with the names of fourteen [thousand] to fifteen thousand police officers who died to “protect us and they died to honor this, their badge. What those officers did that night is a disgrace.” Furthermore, the prosecutor improperly asserted his personal opinion that what the police officers did was a disgrace. The use of the badge and reference to the monument were not subjects of proper closing argument.

The defendant’s second preserved claim is that the prosecutor improperly diverted the attention of the jury by appealing to the jurors’ emotions. Specifically, the defendant argues that the prosecutor attempted to transform the trial from a case about assault and fabrication of evidence into an opportunity for the jurors, as the community’s representatives, to send a message to all police officers. We agree.

“A prosecutor may not appeal to the emotions, passions and prejudices of the jurors. . . . [S]uch appeals should be avoided because they have the effect of diverting the jury’s attention from [its] duty to decide the case on the evidence. . . . When the prosecutor appeals to emotions, he invites the jury to decide the case, not according to a rational appraisal of the evidence, but on the basis of powerful and irrelevant factors which are likely to skew that appraisal.” (Citation omitted; internal quotation marks omitted.) State v. Mills, supra, 57 Conn. App. 209.

We conclude that the prosecutor improperly appealed to the emotions, passions and prejudices of the jurors, thereby attempting to divert their attention from deciding the case on the evidence against the defendant. The defendant was the only police officer on trial. The prosecutor’s closing and rebuttal arguments, however, were not limited to comments about the defendant’s actions. The prosecutor’s arguments continually referred to, and focused on, other police officers involved in the incident and law enforcement in general. See footnotes 7 through 9 and 12. The prosecutor’s rebuttal statement regarding a monument and fourteen thousand or fifteen thousand officers who “died to protect us” and to honor their badge was a blatant attempt to divert the jurors’ attention and to appeal to their emotions, passions and prejudices by challenging the jurors not to “let them get away with it.” (Emphasis added.) When the defendant objected to the prosecutor “essentially putting these jurors as the representatives of the community at large,” the prosecutor’s response was that he “asked them to believe that what the officers did that night was a disgrace to their badge, and if they believe the evidence, it was.” (Emphasis added.) Even the prosecutor’s response focused on the police officers as a group, rather than the individual defendant. The prosecutor further attempted to distract the jury by using melodramatic language, by referring to a historical monument and by giving a hypothetical that had no basis in the evidence of the case. The prosecutor was attempting to color the jurors’ minds with such emotion that they would consider it their duty to convict the defendant, regardless of the evidence. These comments could well have served to undermine the neutrality of the jury by distracting the jury’s attention to either irrelevant factors or to matters of emotion and thereby divert the jury’s attention from the issues in the case.

We next determine whether the prosecutor’s improper conduct caused substantial prejudice to the defendant. “When a verdict is challenged on the basis of the prosecutor’s allegedly prejudicial remarks, the defendant bears the burden of proving the remarks prejudicial in light of the whole trial.” (Internal quotation marks omitted.) State v. Chasse, supra, 51 Conn. App. 353. “In determining whether prosecutorial misconduct was so serious as to amount to a denial of due process, [our Supreme Court] . . . has focused on several factors. Among them are the extent to which the misconduct was invited by defense conduct or argument . . . the severity of the misconduct . . . the frequency of the misconduct . . . the centrality of the misconduct to the critical issues in the case . . . the strength of the curative measures adopted . . . and the strength of the state’s case.” (Internal quotation marks omitted.) State v. Mills, supra, 57 Conn. App. 205-206. With these six factors as our guide, we now review whether the prosecutor’s improper conduct caused substantial prejudice and denied the defendant a fair trial.

Viewing the trial as a whole, including the prosecutor’s remarks that were the subject of the defendant’s unpreserved claims, we conclude that the prosecutor’s summation arguments were so egregious that the defendant was deprived of a fair trial. First, the record in this case discloses numerous instances of misconduct during summations that were in no way invited by the conduct or argument of the defense. Next, the improper conduct was severe and frequent as demonstrated by the fact that the prosecutor displayed extraneous items, including the blue tinted sunglasses and a badge, and introduced the concept of the “blue code” in his summation arguments. The prosecutor continued on this improper course by offering his opinion that the seasoned officers’ testimony was unbelievable, that the rookie officers’ testimony was believable and that the seasoned officers were responsible for failing to help the victim. He also posed hypotheticals involving extraneous facts and suggestions to the jurors to encourage them to relate to the victim. Furthermore, the improper comments directly addressed the critical issue in this case, the credibility of the witnesses. The state’s case relied primarily on the credibility of the witnesses. Moreover, the trial court failed to provide any additional curative measures beyond the general instruction regarding the fact that closing arguments are not evidence. Accordingly, we conclude that the egregious prosecutorial misconduct so infected the trial with unfairness as to make the resulting conviction a denial of due process.

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

In this opinion the other judges concurred.

       The defendant invokes both the United States constitution and the constitution of the state of Connecticut in support of his claims. He has not, however, provided any independent analysis of the state constitutional claims, and, therefore, we decline to review them. State v. Davis, 51 Conn. App. 171, 176 n.10, 721 A.2d 146 (1998).
      The fifth amendment to the United States constitution provides in relevant part: “No person shall be . . . deprived of life, liberty, or property, without due process of law . . . .”
      The sixth amendment to the United States constitution provides in relevant part: “In all criminal prosecutions, the accused shall eryoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed . . . and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the assistance of counsel for his defense.”
      The fourteenth amendment to the United States constitution provides in relevant part: “No State shall . . . deprive any person of life, liberty or property, without due process of law . . . .”

       It is unclear from the record how the blue tinted sunglasses were used, but both parties concede that the prosecutor did show the sunglasses to the jury when referring to the “blue code.”

       The prosecutor stated: “There are a number of factors that I believe that shows that this was criminal conduct .... And the first is the way that some of the police officers testified in this particular case. . . . [TJhey knew what was going on behind the truck. They knew and they didn’t want to see it. That’s why they came in and testified the way that they did.
      “Some of them were wearing these that night: blue tinted sunglasses. A police officer can do no wrong or at least if he does, they don’t want to see it. They are viewing it through blue tinted glasses. A police officer has a code. Don’t ask me why, but, there’s a code, avoid ratting on a brother officer. And some of them did that that night, either consciously or unconsciously. They didn’t want to see what was going on behind the truck. The ones that did testáffy], ‘well, yeah, there was a struggle and I saw arms but I can’t tell who hit whom or what happened.’ ”

       The prosecutor stated: “I ask you this: If the officers had come up on that scene and Mr. Wilson had been on top of one of the officers, do you think any of these officers would have had any difficulty in testifying as to everything that they saw Mr. Wilson do? I submit to you they wouldn’t. They would have seen every blow, every move. But they didn’t see what Officer Ancona and Officer [Jacqueline] Middleton did that night, except the two rookies, the two rookies who hadn't been steeped in this blue code yet. They both testified as to what they observed.
      “[The rookie officer] said that she had her gun out, she observed this pile . . . and she said to herself, you know, something’s wrong, it’s taking too long to handcuff these people so—or this person, and she holsters her weapon and approaches to put handcuffs on. She took her handcuffs out, she approaches. That’s reasonable conduct. That’s what should have been done.
      “What happens to her? She’s pulled back by a more seasoned officer. Why? It’s proper to go to the aid of officers who are trying to put someone in custody. Why did Officer Driscoll pull her back from doing that? There’s one reason, [be]cause he knew what was going on. They were assaulting Mr. Wilson on the ground. He didn’t want [the rookie] involved in that.”

       The prosecutor stated: “These are officers that axe sworn to uphold the law. What did they do? They perverted. I submit to you if it had not been for that snippet of videotape, you in fact would be sitting on the trial of James Wilson and not Michael Ancona. These officers perverted the law. They assaulted this man.
      “Obviously, he’s not the best citizen we have. And he gave the officers the cause to chase him, to have to run him down, to forcefully have to bring him out of the vehicle. But he did not deserve what happened to him that night, and he certainly didn’t deseive to be brought in to court on false charges. And that’s exactly what would have happened if we didn’t have that videotape.
      “As I said in my opening remarks, police officers have a hard job and they deserve our respect, they deserve our cooperation. And when they’re in that gray area, they deserve some consideration. How much force to use, when to use it, they have to have a certain amount of discretion. But we have to protect those officers that are attempting to properly use that discretion and we have to punish those officers who do not and who use their badge to commit a crime. And I submit to you that that’s exactly what happened in this case. And I would ask you to return a verdict of guilty on all the counts.”

       The prosecutor stated: “And I don’t believe for a minute that all these officers were either true to themselves or spoke the whole truth. Perhaps they don’t know what it is. Perhaps they’re afraid to address it. But look at what they didn’t say. There wasn’t one officer that got on the stand and said, you know, T saw exactly what went on, this guy was struggling, what they did was proper.’ They all turned away at one point or another. ‘Well, yeah, I saw something going on but I don’t know what it was.’ ‘Yeah, he was struggling but I don’t know what exactly he was doing.’ ”

       The prosecutor stated: “None of the other officers had the—I say ‘guts,’ the wherewithal to get into this and stop the assault. They didn’t want to see it. It is a brother police officer. They don’t want to know. It’s sort of like seeing your brother or sister doing something wrong. You really don’t want to have to deal with that. And, unfortunately, that’s what came across in their testimony. Do I blame the four? Well, yeah, I do because they take an oath to uphold the law and they should have upheld the law that night and stop what was going on, and they didn’t do it. And the rookie is the only one that had enough nerve to confront the situation and say, ‘Hey, what are you doing?’ You heard his description. Wilson is down on the ground, flat out, and his face to one side, and he gets whacked in the head.”

       The prosecutor stated: “A lot of the officers that were there that night weren’t involved in the search for the truth and when they testified here they weren’t involved in the search for the truth. I’m still naive enough to think that that’s what trials are all about, trying to find out the truth. I think collectively you can use these witnesses’ testimony to determine what happened that night. And if this was proper police procedure, why isn’t it in these reports? You’ll have Officer [Jacqueline] Middleton’s report. You’ll have Officer [Hugh] O’Callaghan’s report. You can see the threads in here, they’re all the same, that Wilson was hurt going down, that he resisted, that he swung, that he punched Officer O’Callaghan. It didn’t happen.
      “And if he wasn’t assaulted that night, why did these officers disgrace their badges by filing false reports, by becoming involved in a criminal conspiracy to cover this up? And to have a man who decidedly was not innocent, but he was not guilty of assaulting a police officer as they described it, why would they have this innocent man arrested on a charge that he didn’t commit, and get the wheels of justice grinding against him if what they did was not criminal that night?”

       The defendant objected and stated: “I object to [the prosecutor] displaying his badge and essentially putting these jurors as the representatives of the community at large. The jurors may not be asked to protect the community or to serve as judicial officers. They’re here to decide the guilt of this individual. And saying that somehow the impact of this case will help preserve the integrity of our society and of law enforcement I think is •prejudicial and objectionable and cannot be cured by an instruction.

      “The Court: Response?
      “[Prosecutor]: I think it’s proper argument, Your Honor. I asked them to believe that what the officers did that night was a disgrace to their badge, and if they believe the evidence, it was.
      “The Court: I think it fell within fair comment. I’m not going to take any further action.”

       The defendant requested in his reply brief that his unpreserved claims be reviewed under State v. Golding, 213 Conn. 233, 239-40, 567 A.2d 823 (1989). We repeatedly have stated that a reply brief is an improper venue for such a claim. State v. Fisher, 57 Conn. App. 371, 379 n.9, 748 A.2d 377, cert. denied, 253 Conn. 914, 754 A.2d 163 (2000). Furthermore, under the circumstances, we note that it is unnecessary to do so.

       We note that based on our standard of review, we must review the trial as a whole. Although the defendant’s first six claims are unpreserved for our review individually, we must review the trial as a whole and, therefore, consider the prosecutor’s comments in determining whether the actions challenged in the defendant’s preserved claims were prejudicial in light of the whole trial.

       The state argues that when the prosecutor’s comments are viewed in context, it is clear that he was utilizing the police badge as “descriptive shorthand” for the law. We do not agree. The concept of dramatic shorthand was applied where a prosecutor used colloquial phrases like “hunt,” “attack” and “dirt” to describe the defense investigator uncovering evidence that impeached a witness’ credibility and defense counsel’s use of such impeachment evidence at trial. See State v. Chasse, 51 Conn. App. 345, 359, 721 A.2d 1212 (1998), cert. denied, 247 Conn. 960, 723 A.2d 816 (1999). Although prosecutors are generally given leeway in their closing and rebuttal arguments, here, we conclude that the use of items that were not in evidence went beyond dramatic shorthand.


author: DALY, J.

text:
    STATE OF CONNECTICUT v. HARRIS CLARK
    (AC 20964)
    Mihalakos, Dranginis and Daly, Js.

      Argued October 22, 2001
    officially released April 9, 2002

      William B. Westcott, special public defender, for the appellant (defendant).

      Rita M. Shair, senior assistant state’s attorney, with whom were Kristi Aalberg, certified legal intern, and, on the brief, Michael Dearington, state’s attorney, and JohnP. Doyle, Jr., deputy assistant state’s attorney, for the appellee (state).
   Opinion

DALY, J.

The defendant, Harris Clark, appeals from the judgment of conviction, rendered after a court trial, of larceny in the second degree in violation of General Statutes § 53a-123 (a) (3) and assault in the second degree in violation of General Statutes § 53a-60 (a) (2). On appeal, the defendant claims that the information filed against him was constitutionally defective in that he proceeded to trial without adequate notice of (1) the state’s theory of liability on the charge of assault in the second degree and (2) the precise date on which the crimes charged were alleged to have been committed. We affirm the judgment of the trial court.

The following facts are relevant to our resolution of the defendant’s appeal. On June 11, 1999, the victim, Frederick Tyson, left his home at 749 Winchester Avenue in New Haven and went to B & K Market, also on Winchester Avenue, to purchase some groceries and cigarettes. As Tyson received his change from the cashier, the defendant grabbed it from his hand. Tyson immediately snatched the change back from the defendant and reached for his groceries. The defendant then took a metal bicycle kickstand from his pocket and hit Tyson on the head. At approximately 4:30 p.m., Officer Patricia Helliger of the New Haven police department arrived on the scene and found the victim bleeding from his head. Soon thereafter, emergency medical personnel arrived and treated the victim at the scene for a one inch laceration to the head. He did not require hospitalization.

The defendant subsequently was arrested and charged with robbery in the second degree, larceny in the second degree and assault in the second degree. After a trial by the court, the defendant was acquitted of the charge of robbery in the second degree, but was convicted of larceny in the second degree and assault in the second degree. Following his conviction, the defendant pleaded guilty to a violation of his probation. He received a total effective sentence of eight years imprisonment. This appeal followed.

I

The defendant first claims that the third count of the second long form information charging him with assault in the second degree violated his constitutional right to fair notice. In support of his claim, the defendant proffers two arguments. First, he argues that the specific acts alleged against him informed him of the charge of assault in the first degree, requiring proof of the element of “serious physical injury” caused by the use of a dangerous instrument. General Statutes § 53a-59 (a) (l). Second, he argues that the state produced evidence of “simple physical injury” only and that it charged him with two distinct crimes when it made a reference to § 53a-60 (a) (1) and (2) in the third count of the long form information. The defendant argues that the reference to those two disjunctively related theories of liability for assault in the second degree made the information fatally defective because it failed to inform him of the specific charge against him. The state counters that because the defendant was at all times provided with the statutory provision charging assault in the second degree, and because that is a lesser offense included with the crime of assault in the first degree, he was provided with sufficient notice of the charge of assault in the second degree. We agree with the state.

As a preliminary matter, we note that because the defendant did not raise his claim at trial, it is unpreserved. The defendant contends, however, that his claim nonetheless is reviewable under State v. Golding, 213 Conn. 233, 239-40, 567 A.2d 823 (1989), or the plain error doctrine. Practice Book § 60-5.

“At the outset, we note our standard of review for unpreserved claims of error. Generally, to obtain appellate review for a claim of trial court error, a defendant must raise the issue by objecting at trial. . . . Only under the most exceptional circumstances will an appellate court permit the review of a claim of error that is not so preserved. . . .

“That standard, although preclusive, serves critical policy objectives. . . . Otherwise [a defendant] would be permitted to lie by and speculate upon the chances of a verdict and only raise an issue of error observed during trial in the event that the result is not favorable. . . . The ‘exceptional circumstances’ doctrine creates an incentive to assert claims of error at trial while the court still has the opportunity to correct any error.” (Citations omitted; internal quotation marks omitted.) State v. Marrero, 66 Conn. App. 709, 716, 785 A.2d 1198 (2001).

We first turn to the defendant’s claim that review is warranted under Golding. Our Supreme Court stated in Golding that “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. The appellate tribunal is free, therefore, to respond to the defendant’s claim by focusing on whichever condition is most relevant in the particular circumstances.” (Emphasis in original.) State v. Golding, supra, 213 Conn. 239-40. “The first two prongs of Golding address the reviewability of the claim, and the last two involve the merits of the claim.” (Internal quotation marks omitted.) State v. Silva, 65 Conn. App. 234, 240, 783 A.2d 7, cert. denied, 258 Conn. 929, 240, 783 A.2d 1031 (2001).

We will review the defendant’s unpreserved claim because he has satisfied the first two prongs of Golding: An adequate record exists to review his claim, and he alleges a constitutional violation. The defendant cannot prevail, however, under the third prong of Golding because he fails to demonstrate that a constitutional violation clearly exists that deprived him of a fair trial.

“The underlying purpose of the constitutional right to be informed of the nature and cause of a criminal charge is to inform the defendant of the charge against him with sufficient precision to enable him to prepare his defense and to avoid prejudicial surprise and to make the charge definite enough to enable [the defendant] to plead his acquittal or conviction in bar of any future prosecution for the same offense . . . .” (Citations omitted; internal quotation marks omitted.) State v. McMurray, 217 Conn. 243, 249, 585 A.2d 677 (1991).

“When reviewing a claim, not raised prior to the verdict, that an information fails to charge all the essential elements of an offense, we must construe the information liberally in favor of the state. . . . Under the applicable standard of review, a conviction based upon a challenged information is valid unless the information is so obviously defective that by no reasonable construction can it be said to charge the offense for which conviction was had.” (Citations omitted; internal quotation marks omitted.) Id., 250.

The state has met its constitutional duty to inform the defendant of the nature and cause of a criminal charge when it “set[s] 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 . . . if he desires one.” (Internal quotation marks omitted.) State v. Hollby, 59 Conn. App. 737, 740, 757 A.2d 1250, cert. denied, 254 Conn. 947, 762 A.2d 905 (2000).

Here, the record confirms that the short form, long form and substitute long form informations not only referred to the name of the charged crime of assault in the second degree, but they also made reference to the pertinent statutory provision, § 53a-60.

We are unpersuaded that the state’s reference to subdivisions (1) and (2) in the long form information filed on November 17,1999, can be read to have the meaning ascribed to it by the defendant. Notwithstanding the state’s reference to the two subdivisions, the defendant’s argument is without merit. Moreover, his argument incorrectly relies on the language used in the long form information dated November 18, 1999, but filed on the previous day. The operative charging document is the substitute long form information that was dated and filed on November 18,1999. That amended information referred only to § 53a-60 (a) (2) for assault in the second degree. Therefore, we conclude that the information sufficiently apprised the defendant that he had been charged properly. Furthermore, if the defendant’s argument is carried to its logical conclusion, then the information that arguably charged him with assault in the first degree implicitly provided him with adequate notice that he could be convicted of assault in the second degree because assault in the second degree is a lesser offense included within the crime of assault in the first degree.

Finally, “[b]ecause the defendant permitted the filing of the [final] amended information without objection and acquiesced in the proceedings, it necessarily follows that the prophylactic purpose of the rule to require adequate notice has been fulfilled.” (Internal quotation marks omitted.) State v. Rogers, 38 Conn. App. 777, 790, 664 A.2d 291, cert. denied, 235 Conn. 918, 665 A.2d 610 (1995), cert. denied, 516 U.S. 1084, 116 S. Ct. 799, 133 L. Ed. 2d 747 (1996). Accordingly, the defendant cannot prevail on his claim because he has failed to demonstrate that “the alleged constitutional violation clearly exists and clearly deprived [him] of a fair trial” pursuant to the third prong of State v. Golding, supra, 213 Conn. 240.

The defendant also cannot prevail under the plain error doctrine. We note that “[s]uch review is extremely limited. As our Supreme Court has noted, [p]lain error review is reserved for truly extraordinary situations . . . and is not even implicated unless the error is so obvious that it affects the fairness and integrity of and public confidence in the judicial proceedings.” (Internal quotation marks omitted.) State v. Miller, 67 Conn. App. 544, 555, 787 A.2d 639, cert. denied, 259 Conn. 923, 792 A.2d 855 (2002). On the basis of our thorough review of the record and briefs, the defendant has not shown that the challenged language of the information has impugned the fairness of, integrity of or public confidence in the judicial proceedings and, therefore, we conclude that plain error review is not warranted.

II

The defendant’s final claim is that the state violated his constitutional right to notice of the charges against him when it did not prove that the crime charged occurred on the precise date alleged in the information, thereby limiting his ability to present an alibi defense. Specifically, he maintains that the use of the language “on or about June 12,1999,” in each of the counts failed to notify him adequately that he would be convicted of crimes that occurred, as shown by the testimony at trial, on June 11, 1999. We disagree.

The defendant admits that his claim was not properly preserved at trial; therefore, he seeks appellate review pursuant to State v. Golding, supra, 213 Conn. 239-40. Because the defendant’s claim is of constitutional magnitude and the record is adequate for review, we will review the claim under Golding.

The Supreme Court previously has held that “when time is not a material element of the crime charged or when a precise date is unavailable [and] [w]here the [information] alleges that an offense allegedly occurred on or about a certain date, the defendant is deemed to be on notice that the charge is not limited to a specific date. . . . The courts agree that when the [information] uses the on or about designation, proof of a date reasonably near to the specified date is sufficient. . . . This is true even when the defendant asserts an alibi for the date of the alleged offense designated ‘on or about’ in the information.” (Citations omitted; internal quotation marks omitted.) State v. Bergin, 214 Conn. 657, 674, 574 A.2d 164 (1990). Thus, the date alleged in the information was within the reasonable limits of the date when the charged offense allegedly occurred.

Moreover, our Supreme Court also has held that “[a]s long as an information provides the statutory name of the offense . . . identifies] the place of the offense, the names of the victims, and the general nature of the acts . . . the allegations . . . [are] sufficient.” (Internal quotation marks omitted.) State v. Solek, 242 Conn. 409, 424, 699 A.2d 931 (1997).

Here, the information not only provided the statutory name of the offense, but also identified the place of the offense, the name of the victim and the general nature of the acts. Thus, contrary to the defendant’s argument that the information failed to provide him with notice of the crime charged, the allegations were sufficient. See id.

Furthermore, “to establish a violation of the right to fair notice, a defendant must show not only that the information was insufficient, but also that he was in fact prejudiced in his defense on the merits and that a substantial injustice was done because of the lack of specificity in the pleadings. . . . Such a showing amounting to a deprivation of his constitutional right to adequate notice of the charges against him is not made, however, merely by establishing that the presentation of his . . . defense may be more burdensome and difficult.” (Internal quotation marks omitted.) State v. Barnett, 53 Conn. App. 581, 597, 734 A.2d 991, cert. denied, 250 Conn. 918, 738 A.2d 659 (1999). The defendant has not persuaded us that he was prejudiced to the extent that he was deprived of a fair trial. Accordingly, the defendant’s claim fails under the third prong of Golding.

The judgment is affirmed.

In this opinion the other judges concurred.

       General Statutes § 53a-123 (a) provides in relevant part: “A person is guilty of larceny in the second degree when he commits larceny, as defined in section 53a-119, and ... (3) the property, regardless of its nature or value, is taken from the person of another . . .

       General Statutes § 53a-60 (a) provides in relevant part: “A person is guilty of assault in the second degree when ... (2) with intent to cause physical injury to another person, he causes such injury to such person or to a third person by means of a deadly weapon or a dangerous instrument other than by means of the discharge of a firearm . . . . ”

       General Statutes § 53a-135 (a) provides in relevant part: “A person is guilty of robbery in the second degree when he commits robbery as defined in section 53a-133 and ... (2) in the course of the commission of the crime or of immediate flight therefrom he or another participant in the crime displays or threatens the use of what he represents by his words or conduct to be a deadly weapon or a dangerous instrument.”

       See footnote 1.

       See footnote 2.

       The third count as set out in the long form information dated November 18, 1999, but filed November 17, 1999, stated: “And the Assistant State’s Attorney aforesaid further accuses the defendant, Harris Clark, of Assault in the Second Degree and charges that on or about June 12,1999, at approximately 4:13 p.m., in or about the premises of 597 Winchester Avenue, City of New Haven, State of Connecticut, the defendant, Harris Clark, did with the intent to cause serious physical injury to another person, namely, Frederick Tyson, did cause such injury to said person by means of a dangerous instrument, in violation of Section 53a-60 (a) (1) (2) of the Connecticut General Statutes.”

       General Statutes § 53a-59 (a) provides in relevant part: “A person is guilty of assault in the first degree when: (1) With intent to cause serious physical injury to another person, he causes such injury to such person or to a third person by means of a deadly weapon or a dangerous instrument . . . .”

       Practice Book § 60-5 provides that we “may in the interests of justice notice plain error not brought to the attention of the trial court. . .

       We note that the defendant’s attorney filed a motion for a bill of particulars as to the initial short form information, but for some undisclosed reason neither the state nor the court took any action on the motion. We infer from that inaction that the defendant was satisfied with the information as filed by the state.

       It is well settled that “[w]here one or more offenses are lesser than and included in the crime charged in the information, notice of the crime charged includes notice of all lesser included offenses.” (Internal quotation marks omitted.) State v. Ferreira, 54 Conn. App. 763, 767, 739 A.2d 266, cert. denied, 251 Conn. 916, 740 A.2d 866 (1999).
      Assault in the second degree pursuant to General Statutes § 53a-60 (a) (2) is a lesser offense included within the crime of assault in the first degree pursuant to General Statutes § 53a-59 (a) (1). See State v. Abdalaziz, 45 Conn. App. 591, 597, 696 A.2d 1310 (1997), affd, 248 Conn. 430, 436, 729 A.2d 725 (1999).


author: DRANGINIS, J.

text:
    STATE OF CONNECTICUT v. LENWOOD HUFF
    (AC 21041)
    Foti, Dranginis and Flynn, Js.
    Argued January 14
    officially released April 9, 2002

      Richard S. Cramer, for the appellant (defendant).

      Timothy J. Sugrue, senior assistant state’s attorney, with whom, on the brief, were James E. Thomas, state’s attorney, and Carl E. Taylor, former supervisory assistant state’s attorney, for the appellee (state).
   Opinion

DRANGINIS, J.

The defendant, Lenwood Huff, appeals from the judgment of conviction rendered following his plea of nolo contendere to the crime of sale of a narcotic substance with intent to sell by a person who is not drug-dependent in violation of General Statutes § 21a-278 (b). On appeal, the defendant claims that the court improperly denied his motion to suppress because the police (1) violated the “knock and announce” rule before entering his apartment and (2) illegally served a copy of the search warrant. We affirm the judgment of the trial court.

The following facts are relevant to our resolution of this appeal. On January 29, 1997, police officers obtained a warrant to search the defendant’s apartment at 600 Asylum Avenue in Hartford and to seize drugs, drug paraphernalia and firearms. The warrant alleged that the defendant and others were distributing large amounts of cocaine from this and other locations.

On January 31,1997, officers observed the defendant leave and return to his apartment. Detective Anthony Martinez led the team of police officers executing the search warrant. Martinez knocked on the defendant’s door and shouted, “Hartford police with a search warrant.” After waiting several seconds and not receiving a response, the police officers forced open the door to the apartment. The officers found the defendant in the kitchen with more than a pound of cocaine, drug packaging materials and other drug paraphernalia resting on the kitchen table. The defendant was placed under arrest while the remaining officers completed the search of the apartment. At some point after entering the apartment, Martinez placed a copy of the search warrant on the kitchen table.

Subsequently, the defendant filed a motion to suppress all evidence seized at 600 Asylum Avenue. In support of his motion, the defendant alleged, in pertinent part, that the police did not knock and announce their purpose before entering the apartment. Specifically, the defendant claimed that the police failed to identify themselves, to announce their purpose and to wait a reasonable period of time before forcibly entering to execute the warrant. The defendant further alleged that the search warrant was not left with him, the sole occupant of the premises, nor was he shown or permitted to read it before the search commenced.

The court denied the defendant’s motion to suppress the evidence seized in the apartment. Thereafter, the defendant pleaded nolo contendere and was sentenced to sixteen years imprisonment, execution suspended after eight years, and five years probation. This appeal followed.

I

The defendant first claims that the trial court improperly denied his motion to suppress because the police failed to comply with the “knock and announce” rule before entering his apartment. We are not persuaded.

“On appeal, we apply a familiar standard of review to a trial court’s findings and conclusions in connection with a motion to suppress. A finding of fact will not be disturbed unless it is clearly erroneous in view of the evidence and pleadings in the whole record .... The conclusions drawn by the trial court will be upheld unless they are legally and logically inconsistent with the evidence. . . . [W]e engage in a careful examination of the record to ensure that the court’s decision was supported by substantial evidence. . . . We give great deference to the findings of the trial court because it weighs the evidence before it and assesses the credibility of witnesses.” (Citations omitted; internal quotation marks omitted.) State v. Nieves, 65 Conn. App. 212, 216, 782 A.2d 203 (2001).

“From early colonial times we, in this jurisdiction, have followed the common-law requirement in the execution of search warrants that, in the absence of some special exigency, before an officer may break and enter he ought to signify the cause of his coming, and to make request to open the doors. . . . The length of time an officer must wait before breaking in after an announcement must be reasonable in the light of the circumstances in the particular case. Significantly, we noted that [r]ecognized circumstances justifying prompt entry after announcement include those where the persons within already know of the officer’s authority and purpose, where the officers are justified in the belief that the persons within are in imminent peril of bodily harm or where those within are then engaged in some activity [that] justifies the officers in the belief that an escape or the destruction of evidence is being attempted.” (Citations omitted; internal quotation marks omitted.) State v. Ruscoe, 212 Conn. 223, 236, 563 A.2d 267 (1989), cert. denied, 493 U.S. 1084, 110 S. Ct. 1144, 107 L. Ed. 2d 1049 (1990).

We conclude that the court properly determined that the police officers adhered to the “knock and announce” rule. As the court noted, the police observed the defendant enter the apartment and there were a variety of reasons why the defendant may not have heard the police. The court credited the testimony of the police officers that they waited several seconds prior to entering the defendant’s apartment. Moreover, the police were searching for narcotics, which can easily be destroyed. There were also concerns for the officers’ safety because the warrant included a search for weapons. Under these circumstances, therefore, the court properly concluded that the police waited a reasonable period of time before forcibly entering the defendant’s apartment and that they acted in accordance with the “knock and announce” principles.

II

The defendant also claims that the police did not properly serve him a search warrant in accordance with General Statutes § 54-33c. Specifically, he claims that the police failed to give him a copy of the warrant before they searched the premises and that the police improperly served the warrant by placing it on the kitchen table. We decline to review this claim.

“This court will not review issues of law that are raised for the first time on appeal.” State v. Harvey, 27 Conn. App. 171, 186, 605 A.2d 563, cert. denied, 222 Conn. 907, 608 A.2d 693 (1992). “We have repeatedly held that this court will not consider claimed errors on the part of the trial court unless it appears on the record that the question was distinctly raised at trial and was ruled upon and decided by the court adversely to the appellant’s claim. . . . Claims that were not distinctly raised at trial are not reviewable on appeal.” (Citation omitted; internal quotation marks omitted.) State v. Beliveau, 52 Conn. App. 475, 479, 727 A.2d 737, cert. denied, 249 Conn. 920, 733 A.2d 235 (1999).

We conclude that the defendant failed to raise this claim distinctively during the suppression hearing. At the suppression hearing, the defendant argued that a copy of the warrant was not left with him and that he was not permitted to read it before the search began. Here, the defendant claims that the police improperly served him the warrant by placing it on the kitchen table. On appeal, the defendant does not contend that this claim is reviewable pursuant to State v. Golding, 213 Conn. 233, 239-40, 567 A.2d 823 (1989), or the plain error doctrine. Practice Book § 60-5. Accordingly, we will not review this claim.

The judgment is affirmed.

In this opinion the other judges concurred.

       General Statutes § 21a-278 (b) provides in relevant part: “Any person who . . . sells . . . offers, gives or administers to another person any narcotic substance, hallucinogenic substance ... or one kilogram or more of a cannabis-type substance except as authorized in this chapter, and who is not at the time of such action a drug-dependent person, for a first offense shall be imprisoned not less than five years nor more than twenty years ..."

       Martinez testified that the officers waited about seven to eight seconds before entering the defendant’s apartment.

       General Statutes § 54-33c (a) provides in relevant part: “A copy of such warrant shall be given to the owner or occupant of the dwelling, structure, motor vehicle or place designated therein, or the person named therein.