author: PELLEGRINO, J.

text:
    KIM M. WASKO ET AL. v. DANIEL T. FARLEY, JR., ET AL.
    (AC 28074)
    Harper, Lavine and Pellegrino, Js.

      Argued February 4
    officially released June 3, 2008

      Eddi Z. Zyko, for the appellant (named plaintiff).

      Robert O. Hickey, with whom, on the brief, was Sarah F. DePanfilis, for the appellees (defendants).
   Opinion

PELLEGRINO, J.

In this negligence action, the plaintiff Kim M. Wasko appeals from the judgment of the trial court, rendered after a jury trial, in favor of the defendants, Daniel T. Farley, Sr., and Daniel T. Farley, Jr. On appeal, the plaintiff claims that (1) the court failed to comply with General Statutes § 52-434, thereby depriving the court of subject matter jurisdiction, (2) the court required the plaintiff to attend jury selection in violation of General Statutes § 51-240 (a), Practice Book § 16-6 and the constitution of Connecticut, (3) the judge who denied the plaintiffs motion to be excused from jury selection improperly failed to recuse himself and (4) the court improperly charged the jury. We affirm the judgment of the trial court.

The following facts and procedural history are relevant to our resolution of the plaintiffs appeal. In December, 2004, the plaintiff commenced this negligence action, which arose out of personal injuries and damages she allegedly sustained as a result of a December 14, 2002 three vehicle accident involving the plaintiff, Francis Bement and Daniel T. Farley, Jr. On August 17, 2005, the court, Brunetti, J., pretried the case without any resolution. On June 6, 2006, the court, Gill, J., pretried the case again without any resolution. Judge Gill then set another pretrial for the following morning and ordered that the plaintiff be present for that proceeding.

On June 7, 2006, Judge Gill pretried the case for a third time, again failing to produce a resolution. Judge Gill then ordered that jury selection proceed. At the start of jury selection, counsel for the plaintiff made an oral motion to excuse the plaintiff from attending jury selection so that she could attend to her dental practice. Judge Gill denied this motion as to the first day of jury selection, stating that there were benefits in having the plaintiff present for jury selection. Jury selection was completed that day. The case thereafter was tried to the jury. The jury returned a verdict in favor of the defendants, and the court, Prescott, J., rendered judgment accordingly. Additional facts will be set forth as necessary.

I

The plaintiffs first claim is that the court lacked subject matter jurisdiction to preside over jury selection. It is her claim that at the time Judge Gill participated in jury selection, he was a senior judge and, in that capacity, was required to obtain the consent of the parties in order to preside over jury selection, which consent he failed to obtain. Our plenary review of her claim reveals it to be without merit. See, e.g., Barry v. Quality Steel Products, Inc., 280 Conn. 1, 8, 905 A.2d 55 (2006).

The plaintiff confuses the powers of a senior judge with those of a judge trial referee. A senior judge is a judge who elects to retire from full-time service prior to reaching the age of seventy. See General Statutes § 51-50i. *A senior judge continues to retain all of the powers possessed prior to assuming senior status. See General Statutes § 51-50d. A judge becomes a judge trial referee upon reaching the age of seventy and thereafter has limited authority to act.

At the time of jury selection in the present case, Judge Gill had retired from full-time service but had not attained the age of seventy; he therefore held the position of senior judge. See General Statutes § 51-50L Senior Judge Gill continued to have the power to preside over jury selection as well as every other power of a Superior Court judge. Accordingly, he did not need to obtain the consent of the parties as the plaintiff has argued. The plaintiffs claim is without merit.

II

The plaintiffs second claim is that the court, Gill, J., improperly compelled her attendance at jury selection. Specifically, the plaintiff claims that the court’s actions violated (1) General Statutes § 51-240 (a) and Practice Book § 16-6, and (2) article first, § 1, of the constitution of Connecticut and article first, § 19, of the constitution of Connecticut, as amended by article four of the amendments. We disagree.

A

The first portion of the plaintiffs claim is that General Statutes § 51-240 (a) and Practice Book § 16-6 provide her with a right to have jury selection conducted by counsel and that her compelled attendance at jury selection violates this right. We are not persuaded.

The plaintiffs claim presents a matter of statutory interpretation over which our review is plenary. See, e.g., Barry v. Quality Steel Products, Inc., supra, 280 Conn. 8. Our Supreme Court has stated: “When construing a statute, [o]ur fundamental objective is to ascertain and give effect to the apparent intent of the legislature. ... In other words, we seek to determine, in a reasoned manner, the meaning of the statutory language as applied to the facts of [the] case, including the question of whether the language actually does apply. . . . In seeking to determine that meaning, General Statutes § l-2z directs us first to consider the text of the statute itself and its relationship to other statutes. If, after examining such text and considering such relationship, the meaning of such text is plain and unambiguous and does not yield absurd or unworkable results, extratextual evidence of the meaning of the statute shall not be considered. . . . When a statute is not plain and unambiguous, we also look for interpretive guidance to the legislative history and circumstances surrounding its enactment, to the legislative policy it was designed to implement, and to its relationship to existing legislation and common law principles governing the same general subject matter . . . .” (Internal quotation marks omitted.) Bloomfield v. United Electrical, Radio & Machine Workers of America, Connecticut Independent Police Union, Local 14, 285 Conn. 278, 286-87, 939 A.2d 561 (2008). “We interpret provisions of the Practice Book according to the same well settled principles of construction that we apply to the General Statutes.” Wilson v. Troxler, 91 Conn. App. 864, 871, 883 A.2d 18, cert. denied, 276 Conn. 928, 929, 889 A.2d 819, 820 (2005).

General Statutes § 51-240 (a) provides in relevant part that “either party shall have the right to examine, personally or by his counsel, each juror outside the presence of other prospective jurors as to his qualifications to sit as a juror in the action, or as to his interest, if any, in the subject matter of the action, or as to his relations with the parties thereto.” Practice Book § 16-6 tracks the operative language of General Statutes § 51-240 (a) word for word. It is undisputed that these sections confer on litigants the right to examine each prospective juror. Furthermore, a litigant may exercise this right either personally or through counsel. The plaintiff, however, argues that because this right may be exercised through counsel, compelling her attendance at jury selection violates her right to have counsel examine each juror.

“In construing a statute, common sense must be used and courts must assume that a reasonable and rational result was intended. ’’ Norwich Land Co. v. Public Utilities Commission, 170 Conn. 1, 4, 363 A.2d 1386 (1975). General Statutes § 51-240 (a) and Practice Book § 16-6 grant parties an affirmative right to examine each prospective juror. The court’s order in no way hindered this right. No reasonable reading of these sections can be said to limit a court’s inherent power to compel a party’s attendance at juiy selection. The plaintiffs strained reading of these sections runs counter to their plain and unambiguous text. Accordingly, we reject the plaintiffs interpretation of the statute and rule of practice and conclude that there is no basis in law to justify her claim.

B

The next portion of the plaintiffs claim is that the court violated her fundamental state constitutional rights by compelling her attendance at jury selection. Specifically, the plaintiff claims that the court violated her fundamental rights as set forth in article first, § 1, of the constitution of Connecticut and article first, § 19, as amended by article four of the amendments. We decline to review the plaintiffs state constitutional claims because she has not briefed them adequately.

In State v. Geisler, 222 Conn. 672, 684-85, 610 A.2d 1225 (1992), our Supreme Court set forth six factors that should be considered in examining state constitutional claims. Our Supreme Court repeatedly has emphasized that it “expect[s] counsel to employ [the Geisler factors] [i]n order to [allow reviewing courts] to construe the contours of our state constitution and [to] reach reasoned and principled results . . . .” (Internal quotation marks omitted.) State v. Joyce, 229 Conn. 10, 16 n.7, 639 A.2d 1007 (1994), on appeal after remand, 243 Conn. 282, 705 A.2d 181 (1997), cert. denied, 523 U.S. 1077, 118 S. Ct. 1523, 140 L. Ed. 2d 674 (1998). Our Supreme Court has “made clear that [when a party fails to analyze these factors separately and distinctly, appellate courts] are not bound to review the state constitutional claim.” Id., 16. In her brief, the plaintiff did not include the Geisler factors in her analysis. The plaintiffs claim merely quotes two separate sections of our state constitution and then, without citing any legal precedent from this or any other jurisdiction and without providing any legal analysis as to either constitutional provision, claims that the court’s order violated her. fundamental rights. The plaintiff has not briefed adequately her state constitutional claim. Absent a proper analysis of the claim under the state constitution, we deem abandoned the plaintiffs claim. See State v. Eady, 249 Conn. 431, 435 n.6, 733 A.2d 112, cert. denied, 528 U.S. 1030, 120 S. Ct. 551, 145 L. Ed. 2d 428 (1999).

III

The plaintiffs next claim is that Judge Gill should have recused himself from the pretrial proceedings. Specifically, she claims that a reasonable person would have questioned Judge Gill’s impartiality. We decline to review this unpreserved claim.

The following additional facts are relevant. Before jury selection commenced, Judge Gill expressed to the parties his opinion that this case should settle before trial. During jury selection, Judge Gill made statements in the presence of prospective jurors that “[w]e’re not going to be here that long” and that voir dire would take only “[a]bout four or five minutes of your time.” The plaintiff did not object to any of these alleged improprieties. The case thereafter proceeded to trial before Judge Prescott. After the jury reached its verdict, the plaintiff filed a postverdict motion seeking the recusal of Judge Gill and the voiding of jury selection. Judge Prescott denied the plaintiffs motion.

“[Canon 3 (c) (1) of the Code of Judicial Conduct] requires a judge to disqualify himself or herself in a proceeding in which the judge’s impartiality might reasonably be questioned. The reasonableness standard is an objective one. Thus, the question is not only whether the particular judge is, in fact, impartial but whether a reasonable person would question the judge’s impartiality on the basis of all the circumstances. . . . Even in the absence of actual bias, a judge must disqualify himself in any proceeding in which his impartiality might reasonably be questioned, because the appearance and the existence of impartiality are both essential elements of a fair exercise of judicial authority.” (Citations omitted; internal quotation marks omitted.) State v. Ortiz, 83 Conn. App. 142, 150, 848 A.2d 1246, cert. denied, 270 Conn. 915, 853 A.2d 530 (2004).

“[A]s a general rule, even in cases alleging judicial bias, this court will not consider the issue on appeal where the party failed to make the proper motion for disqualification at trial. . . . Failure to request recusal or move for a mistrial represents the [parties’] acquiescence to the judge presiding over the trial.” (Citation omitted; internal quotation marks omitted.) Schnabel v. Tyler, 32 Conn. App. 704, 714, 630 A.2d 1361 (1993), aff'd, 230 Conn. 735, 646 A.2d 152 (1994); see also Statewide Grievance Committee v. Friedland, 222 Conn. 131, 146-47, 609 A.2d 645 (1992). “Our Supreme Court has criticized the practice whereby an attorney, cognizant of circumstances giving rise to an objection before or during trial, waits until after an unfavorable judgment to raise the issue. We have made it clear that we will not permit parties to anticipate a favorable decision, reserving a right to impeach it or set it aside if it happens to be against them, for a cause which was well known to them before or during the trial.” (Internal quotation marks omitted.) Fiddelman v. Redmon, 31 Conn. App. 201, 213, 623 A.2d 1064, cert. denied, 226 Conn. 915, 628 A.2d 986 (1993); see also L & R Realty v. Connecticut National Bank, 53 Conn. App. 524, 543, 732 A.2d 181, cert. denied, 250 Conn. 901, 734 A.2d 984 (1999).

Here, the plaintiff did not object to any of Judge Gill’s alleged improprieties. She also did not ask Judge Gill to recuse himself on the basis of a lack of impartiality or seek a mistrial. It was only after the jury reached an unfavorable verdict that the plaintiff challenged Judge Gill’s impartiality through a postverdict motion for recusal. This wait and see approach is the type of practice our Supreme Court has criticized and renders the plaintiffs claim unpreserved. Furthermore, the plaintiff has not asked us to review this claim for plain error, and we decline, therefore, to afford it review under that extraordinary standard. See State v. Marsala, 93 Conn. App. 582, 590, 889 A.2d 943 (“This court often has noted that it is not appropriate to engage in a level of review that is not requested. . . . When the parties have neither briefed nor argued plain error [or review pursuant to State v. Golding, 213 Conn. 233, 239-40, 567 A.2d 823 (1989)], we will not afford such review.” [Internal quotation marks omitted.]), cert. denied, 278 Conn. 902, 896 A.2d 105 (2006).

Even if we assume that the plaintiffs claim was preserved properly, Judge Gill’s actions do not lead a reasonable person to question his impartiality. Judge Gill presided over only jury selection in this case. Judge Prescott presided over the jury trial. Our review of the record reveals no bias against the plaintiff on the part of Judge Gill, nor does it raise a reasonable question concerning his impartiality. See State v. Webb, 238 Conn. 389, 464, 680 A.2d 147 (1996), aff'd after remand, 252 Conn. 128, 750 A.2d 448, cert. denied, 531 U.S. 835, 121 S. Ct. 93, 148 L. Ed. 2d 53 (2000). There is nothing improper if a judge expresses his belief that a matter should settle as an alternative to trial. Moreover, the allegedly biased comments made during voir dire by Judge Gill were not improper and could not lead a reasonable person to question his impartiality. The plaintiffs claim is without merit.

IV

The plaintiffs final claim is that the court, Prescott, J., improperly charged the jury. Specifically, she claims that the court (1) failed to charge the jury on damages resulting from additional costs incurred by the plaintiffs dental practice and (2) improperly charged the jury on mitigation of damages. We disagree.

The following additional facts are relevant to our disposition of the plaintiffs claim. The plaintiff claims that as a result of her injuries, she was forced to hire an additional dental assistant to do work that her injuries prevented her from doing. She testified that the dental assistant was paid approximately $22,000 a year and received health insurance and profit sharing benefits, resulting in a total cost to the business of approximately $30,000.

The plaintiff asked that the court charge the jury on damages related to the costs of hiring the additional dental assistant. The court informed the plaintiff that it “did not intend to charge the jury or permit [the plaintiff] to argue to the jury any claim of damages relating to the costs of [her] dental practice in hiring an additional dental assistant.” The court stated that because the dental practice is organized as a limited liability company, any additional costs incurred by the business are not personal to the plaintiff and may be recovered only by the business entity. Because the business entity was not a party to the litigation, a charge on costs it incurred was not appropriate. The plaintiff noted her objection to the court’s failure to give her requested instruction.

The plaintiff also objected to the court’s instructing the jury on mitigation of damages. The plaintiff argued that such an instruction is not permitted because the defendants did not plead mitigation of damages as a special defense. The court found that mitigation does not have to be specially pleaded because it is not listed among the defenses in Practice Book § 10-50 that need to be specially pleaded. Furthermore, the court found that evidence was introduced pertaining to mitigation, thereby making such an instruction proper.

A

The plaintiffs first claim is that the court improperly failed to charge the jury on damages incurred by the plaintiffs dental practice due to her limited work capabilities. We disagree.

“It is well established that [a] request to charge which is relevant to the issues of the case and which is an accurate statement of the law must be given. ... [A] trial court should instruct a jury on [every] issue for which there is any foundation in the evidence, even if weak or incredible. . . . The trial court has a duty not to submit any issue to the jury upon which the evidence would not support a finding. . . . Accordingly, the right to a jury instruction is limited to those theories for which there is any foundation in the evidence. . . . In determining whether any such foundation exists, [w]e must consider the evidence presented at trial in the light most favorable to supporting the [party’s] request to charge. . . . Additionally, [w]hen . . . the trial court draws conclusions of law, our review is plenary and we must decide whether its conclusions are legally and logically correct and find support in the facts that appear in the record.” (Internal quotation marks omitted.) Bonan v. Goldring Home Inspections, Inc., 68 Conn. App. 862, 867-68, 794 A.2d 997 (2002).

In the present case, we conclude that the court properly declined to instruct the jury on damages resulting from costs borne by the plaintiffs dental practice because the plaintiff, suing in her capacity as an individual, was not entitled to recover damages incurred by a limited liability company of which she is a member.

A limited liability company is a distinct legal entity whose existence is separate from its members. See Litchfield Asset Management Corp. v. Howell, 70 Conn. App. 133, 147, 799 A.2d 298, cert. denied, 261 Conn. 911, 806 A.2d 49 (2002). A limited liability company has the power to sue or be sued in its own name; see General Statutes §§ 34-124 (b) and 34-186; or may be a party to an action through a suit brought in its name by a member. See General Statutes § 34-187. A member may not sue in an individual capacity to recover for an injury the basis of which is a wrong to the limited liability company. See Litchfield Asset Management Corp. v. Howell, supra, 147; cf. Guarnieri v. Guarnieri, 104 Conn. App. 810, 819, 936 A.2d 254 (2007) (corporate shareholder may sue only on behalf of corporation through derivative suit).

The plaintiff brought this action in her individual capacity—the limited liability company was not a party. Damages incurred by the limited liability company, therefore, were not at issue in the case. Accordingly, the court properly declined to instruct the jury on damages resulting from additional costs incurred by the plaintiffs dental practice.

B

The plaintiffs second claim is that the court improperly instructed the jury on mitigation of damages. Specifically, the plaintiff claims that the defendants did not plead mitigation of damages as a special defense, and, therefore, the court could not give an instruction on the subject. We are not persuaded.

“It has long been a rule of general application that one who has been injured by the negligence of another must use reasonable care to promote recovery and prevent any aggravation or increase of the injuries. . . . When there are facts in evidence that indicate that a plaintiff may have failed to promote his recovery and do what a reasonably prudent person would be expected to do under the same circumstances, the court, when requested to do so, is obliged to charge on the duty to mitigate damages.” (Internal quotation marks omitted.) Futterleib v. Mr. Happy’s, Inc., 16 Conn. App. 497, 501, 548 A.2d 728 (1988).

The plaintiff does not allege that there are no facts in evidence that warranted a mitigation instruction. Furthermore, the plaintiff has set forth no legal analysis as to why she believes mitigation must be specially pleaded before a defendant is entitled to a jury instruction on the subject. Accordingly, we conclude that the court’s charge on mitigation of damages was proper.

The judgment is affirmed.

In this opinion the other judges concurred.

       In the original complaint, Wasko and her husband, Robert Cavoli, were named as plaintiffs. Before the case was submitted to the jury, Cavoli withdrew all of his claims. All references to the plaintiff, therefore, refer solely to Wasko.

       The plaintiff confuses subject matter jurisdiction with the court’s authority to act. “Although related, the court’s authority to act pursuant to a statute is different from its subject matter jurisdiction. The power of the court to hear and [to] determine, which is implicit in jurisdiction, is not to be confused with the way in which that power must be exercised in order to comply with the terms of the statute.” (Internal quotation marks omitted.) New England Pipe Corp. v. Northeast Corridor Foundation, 271 Conn. 329, 336, 857 A.2d 348 (2004); Amodio v. Amodio, 247 Conn. 724, 728, 724 A.2d 1084 (1999).

       The constitution of Connecticut, article fifth, § 6, does not permit a Superior Court judge to hold office after reaching the age of seventy.

       General Statutes § 51-50Í (a) provides in relevant part: “Any judge who retires from full-time active service, who has not attained the age of seventy . . . shall be a senior judge of the court of which he is a member during the remainder of the term of office for which he was appointed, and he shall be eligible for reappointment to succeeding terms as such senior judge ...”

       General Statutes § 51-50d provides in relevant part: “(a) A senior judge shall have all the powers of a judge of the court to which he is designated and assigned.”

       The powers of a judge trial referee are described in General Statutes §§ 52-434, 52-434c and 52-549z. Under § 52-434, a judge trial referee may conduct jury selection in any criminal case, except class A or B felony or capital felony matters, without the consent of the parties. Other than civil cases referred to a judge trial referee under § 52-549z, there is no specific language in the statutes as to the power of a judge trial referee to conduct jury selection without the consent of the parties in civil jury cases.

       The plaintiffs claim is limited to whether the court may compel a party’s attendance at jury selection. The plaintiff does not claim that if the court has such a power, the court abused its discretion in exercising that power. Our review, therefore, is limited to whether the court could compel the plaintiffs attendance at jury selection.

       General Statutes § 51-240 (a) provides: “In any civil action tried before a jury, either party shall have the right to examine, personally or by his counsel, each juror outside the presence of other prospective jurors as to his qualifications to sit as a juror in the action, or as to his interest, if any, in the subject matter of the action, or as to his relations with the parties thereto.”

       Practice Book § 16-6 provides in relevant part: “Each party shall have the right to examine, personally or by counsel, each juror outside the presence of other prospective jurors as to qualifications to sit as a juror in the action, or as to the person’s interest, if any, in the subject matter of the action, or as to the person’s relations with the parties thereto. . . .”

       Practice Book § 16-6 replaces “either” with “each” and replaces the pronoun “his” with the gender neutral language “the person’s.”

       We have long recognized that “courts have a necessary inherent power, independent of statutory authorization, to prescribe rules to regulate their proceedings and to facilitate the administration of justice as they deem necessary.” Hamernick v. Back, 64 Conn. App. 160, 167, 779 A.2d 806 (2001); see also Rozbicki v. Huybrechts, 218 Conn. 386, 390-91, 589 A.2d 363 (1991) (finding party may play significant role at voir dire).

       The plaintiff does not raise any federal constitutional claims.

       Article first, § 1, of the constitution of Connecticut provides: “All men when they form a social compact, are equal in rights; and no man or set of men are entitled to exclusive public emoluments or privileges from the community.”

       Article first, § 19, of the constitution of Connecticut, as amended by article four of the amendments, provides in relevant part: “In all civil and criminal actions tried by a jury, the parties shall have the right to challenge jurors peremptorily, the number of such challenges to be established by law. The right to question each juror individually by counsel shall be inviolate.”

       Canon 3 (c) (1) (A) of the Code of Judicial Conduct provides in relevant part: “A judge should disqualify himself or herself in a proceeding in which the judge’s impartiality might reasonably be questioned, including but not limited to instances where . . . the judge has a personal bias or prejudice concerning a party, or personal knowledge of disputed evidentiary facts concerning the proceeding . . .

       Practice Book § 10-50 provides: “No facts may be proved under either a general or special denial except such as show that the plaintiffs statements of fact are untrue. Facts which are consistent with such statements but show, notwithstanding, that the plaintiff has no cause of action, must be specially alleged. Thus, accord and satisfaction, arbitration and award, coverture, duress, fraud, illegality not apparent on the face of the pleadings, infancy, that the defendant was non compos mentis, payment (even though nonpayment is alleged by the plaintiff), release, the statute of limitations and res judicata must be specially pleaded, while advantage may be taken, under a simple denial, of such matters as the statute of frauds, or title in a third person to what the plaintiff sues upon or alleges to be the plaintiffs own.”

       In her appellate brief, the plaintiff titles this claim: “The court erred in failing to charge as to [the plaintiffs] loss of earnings and earning capacity.” We believe this characterization is misleading. There is no indication in the record before us that the court refused to instruct the jury on the plaintiffs loss of earnings or diminished earning capacity. The court stated that it “did not intend to charge the jury or permit [the plaintiff] to argue to the jury any claim of damages relating to the costs of [the plaintiffs] dental practice in hiring an additional dental assistant.” (Emphasis added.)
      Furthermore, although the plaintiff refers to earnings and earning capacity in the heading of her argument, her argument itself makes clear that she sought to recover damages for the additional costs incurred by her business, rather than for any loss of earnings or diminished earning capacity. Accordingly, our review of this claim is limited to whether the court was required to give an instruction relating to the additional costs incurred by the plaintiffs business.

       In her brief, the plaintiff quotes the entire case of Lashin v. Corcoran, 146 Conn. 512, 152 A.2d 639 (1959), as support for her claim. We find Lashin, however, to be inapplicable in this case because of the type of damages the plaintiff seeks to recover. In Lashin, the plaintiff sought damages resulting from her lost earning capacity. Id., 513. In the present case, the plaintiff did not seek damages for her lost earning capacity. Her only claim, and the only evidence she presented on the matter, related to the additional costs incurred by the limited liability company of which she is a member.
      The plaintiffs brief also includes a lengthy four paragraph quotation from Carrano v. Yale-New Haven Hospital, 279 Conn. 622, 904 A.2d 149 (2006). She has not provided, however, any legal analysis as to why this extensive quotation is relevant to her claim. See, e.g., Giulietti v. Giulietti, 65 Conn. App. 813, 840-41, 784 A.2d 905 (“[t]he parties may not merely cite a legal principle without analyzing the relationship between the facts of the case and the law cited” [internal quotation marks omitted]), cert. denied, 258 Conn. 946, 947, 788 A.2d 95, 96, 97 (2001).

       The plaintiffs brief, without offering any legal analysis of its own, urges us to adopt in full the reasoning of the Superior Court in Bates v. Rebimbas, Superior Court, judicial district of Waterbury, Docket No. CV-06-65000640-S, (September 13,2006) (42 Conn. L. Rptr. 51). We decline this invitation because the plaintiff has failed to demonstrate that the reasoning of Bates is applicable to the facts present in this case.

       Even if we were to find that the court improperly charged the jury, the plaintiff cannot meet her burden of establishing that any impropriety prejudiced her. Our Supreme Court has often stated that “before a party is entitled to a new trial ... he or she has the burden of demonstrating that the error was harmful. ... An instructional impropriety is harmful if it is likely that it affected the verdict.” Schoonmaker v. Lawrence Brunoli, Inc., 265 Conn. 210, 243, 828 A.2d 64 (2003). In this case, we conclude that even if the court’s instructions on damages were improper, any error was harmless. The plaintiff was able to place before the jury her full case regarding the defendants’ alleged negligence. When presented with all the evidence, the jury found in favor of the defendants. Accordingly, any error in the court’s instructions is rendered harmless by virtue of the jury’s verdict.


source: Caselaw Access Project

author: BISHOP, J.

license: Public Domain

text:
    STATE OF CONNECTICUT v. LAMONT G. WHEALTON
    (AC 26900)
    Bishop, McLachlan and Gruendel, Js.

      Argued March 24
    officially released June 3, 2008

      Christopher M. Neary, special public defender, for the appellant (defendant).

      Timothy J. Sugrue, senior assistant state’s attorney, with whom, on the brief, were David I. Cohen, state’s attorney, and Kelley P. Swift, former assistant state’s attorney, for the appellee (state).
   Opinion

BISHOP, J.

The defendant, Lamont G. Whealton, appeals from the judgment of conviction rendered by the trial court following his conditional plea of nolo contendere, under General Statutes § 54-94a. to three counts of possession of narcotics with intent to sell by a person who is not drug-dependent in violation of General Statutes § 21a-278 (b), two counts of possession of narcotics with intent to sell within 1500 feet of a public housing project in violation of General Statutes § 21a-278a (b), one count of possession of drug paraphernalia in a drug factory situation in violation of General Statutes § 21a-277 (c) and one count of possession of less than four ounces of marijuana in violation of General Statutes § 21a-279 (c). On appeal, the defendant claims that the court improperly denied his motion to suppress evidence that was obtained by the police as the result of warrantless searches of his vehicle and an apartment in violation of his rights under the state and federal constitutions. We affirm the judgment of the trial court.

In response to the defendant’s written motion to suppress filed May 25, 2004, the court conducted a hearing at which the state presented testimony from Silas Redd, a Stamford police officer. Redd testified as to the following facts. In late November, 2003, Redd received information from a confidential informant that the defendant, an African-American male referred to as “LA,” was allegedly selling crack and powder cocaine and heroin, that he resided at 28 Perry Street in Stamford and that he drove a brown colored Cadillac with a dark colored top and Connecticut license plate 687-RWT.

On December 17, 2003, while Redd and other officers conducted surveillance at 28 Perry Street, they observed an African-American male exit the building and enter a vehicle matching the description provided by the informant. While following the defendant and observing that he disobeyed a traffic signal, Officers Felix Martinez and Heather Frank stopped him near a highway exit ramp and asked him for his driver’s license. When the defendant was unable to produce his license, he was asked to step out of the vehicle and was informed that he would be given a summons for driving without a license and disobeying a traffic signal. Because the defendant did not have a license and, consequently, was unable legally to drive the vehicle, and the vehicle was stopped in a heavily traveled portion of the road, the officers called a tow truck to remove the vehicle. Pursuant to police department policy, Redd, Martinez and Frank conducted an inventory search of the vehicle prior to having it towed to an impound lot. During the search, the officers found a dark colored plastic bag containing narcotics and a scale.

At that point, the defendant was placed under arrest and told of his rights pursuant to Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966). Redd told the defendant that he believed that more drugs were likely at his apartment and asked the defendant for his consent to search it. The defendant did not object and told Redd that he lived at apartment 2H, 28 Perry Street, with Shirley Anthony and their six year old daughter. The officers, now joined by Sergeant James Matheny and Lieutenant John Fontano, proceeded to 28 Perry Street with the defendant in handcuffs. Once at apartment 2H, the officers attempted to open the apartment door with the key given to them by the defendant, but the key did not work. The officers then summoned the building superintendent, who told them that the defendant no longer lived in apartment 2H but that he lived upstairs in apartment 6B with Anthony.

The officers and the defendant proceeded to the sixth floor where the defendant indicated that he did not consent to a search of the sixth floor apartment. After the building superintendent informed the officers that Anthony was on her way home, the officers used the defendant’s key to enter the apartment where they conducted a sweep for security reasons because they were unsure if Anthony had already arrived, and they did not want evidence tampered with or destroyed. The officers did not find any contraband as a result of this initial sweep.

Following the sweep, the officers waited for Anthony in the hallway outside the apartment, and the defendant was removed to the police station. Anthony testified that when she arrived, she was pressured into signing a consent to search form. Once they obtained Anthony’s consent, the officers searched the apartment, where they discovered narcotics.

At the suppression hearing, the state argued that the narcotics found in the vehicle were found pursuant to a valid inventory search and that the search of the apartment was conducted with Anthony’s consent. Although the defendant’s written motion to suppress was not specific, he contended at the hearing that the search of the defendant’s vehicle did not permit the officers to inventory the contents of the dark colored bag and that Anthony’s consent to search the apartment was not voluntary, rendering both searches unlawful.

In an oral ruling, the court denied the defendant’s motion to suppress. As to the vehicle search, the court found that on the basis of the situation at hand, in which the defendant had been operating a vehicle without a license in an area from which the car had to be moved for traffic and safety reasons, it was reasonable for the police to have the vehicle impounded, and the attendant inventory search was lawful. Regarding the apartment, the court discredited Anthony’s testimony, finding that her consent to search was voluntary. Accordingly, the court denied the defendant’s motion to suppress. The defendant thereafter entered a conditional plea of nolo contendere, and this appeal followed.

“[O]ur standard of review of a trial court’s findings and conclusions in connection with a motion to suppress is well defined. A finding of fact will not be disturbed unless it is clearly erroneous in view of the evidence and pleadings in the whole record .... [When] the legal conclusions of the court are challenged, [our review is plenary, and] we must determine whether they are legally and logically correct and whether they find support in the facts set out in the court’s [ruling] .... Because a trial court’s determination of the validity of a . . . search [or seizure] implicates a defendant’s constitutional rights . . . we engage in a careful examination of the record to ensure that the court’s decision was supported by substantial evidence. . . . However, [w]e [will] give great deference to the findings of the trial court because of its function to weigh and interpret the evidence before it and to pass upon the credibility of witnesses.” (Citation omitted; internal quotation marks omitted.) State v. Kimble, 106 Conn. App. 572, 579, 942 A.2d 527, cert. denied, 287 Conn. 912, 950 A.2d 1289 (2008).

At the outset, we note that the defendant’s arguments raised on appeal in support of suppression differ from those he raised before the trial court. In the trial court, the defendant claimed that the vehicle inventory did not permit an officer to look inside the contents of an opaque plastic bag and that the apartment search was unlawful because Anthony’s consent had been coerced. On appeal, however, the defendant now claims that the search of the vehicle was not a valid search because the police had no cause to inventory the vehicle prior to its being turned over to a private towing company and that Anthony’s consent to search the apartment was invalid in light of the defendant’s earlier objection. Because the defendant raises both of these claims for the first time on appeal, he seeks review under State v. Golding, 213 Conn. 233, 239-40, 567 A.2d 823 (1989). 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.” Id. We address each claim in turn.

I

The defendant first claims that the search of his vehicle was impermissible. The defendant argues that the officers had no authority to inventory the vehicle because it was not going to be retained by the police but, rather, was placed in the possession of the private towing company. The defendant also contends that the inventory search was unlawful because Redd testified that he had seen the bag on the floor of the car during the initial stop, and, when asked at the suppression hearing, Redd could not recall any of the other items that were found in the car. Because the defendant has failed to establish a clear constitutional violation, his claim regarding the vehicle search fails under the third prong of Golding.

An inventory search is “a well-defined exception to the warrant requirement. ... In the performance of their community caretaking functions, the police are frequently obliged to take automobiles into their custody. ... A standardized procedure for making a list or inventory as soon as reasonable after reaching the stationhouse not only deters false claims but also inhibits theft or careless handling of articles taken from the arrested person.” (Internal quotation marks omitted.) State v. Vallejo, 102 Conn. App. 628, 640, 926 A.2d 681, cert. denied, 284 Conn. 912, 931 A.2d 934 (2007).

Here, the court credited Redd’s testimony that the officers conducted the inventory search pursuant to standard procedure when the vehicle was going to be impounded. The defendant has not provided this court with any legal basis for distinguishing between a situation in which the police take a vehicle into police custody or turn it over to a private towing company for impounding. In both cases, the protective reasons for an inventory search pertain. On the basis of our review of the record, which reflects that the defendant did not have a driver’s license and consequently was unable legally to drive the vehicle, and that the vehicle was in a high traffic area and needed to be towed, we find no fault with the court’s determination that the inventory search was appropriate.

II

The defendant also claims that the search of the apartment was unlawful because he objected to it. The defendant contends that because he had a possessory interest in the apartment, his objection was sufficient to override Anthony’s later consent. As noted, because the defendant did not make this argument before the trial court, we review it under Golding, and we conclude that it fails to satisfy Golding’s first prong.

“It is axiomatic that searches and seizures inside a home without a warrant are presumptively unreasonable. ... A warrantless search or entry into a house is not unreasonable, however . . . when a person with authority to do so has freely consented. ... It is the state’s burden to prove that the consent was freely and voluntarily given, and that the person who purported to consent had the authority to do so. . . . Such consent may not be established by mere acquiescence to police authority. . . . Whether there was valid consent to search is a factual question that 'will not be lightly overturned on appeal. . . .

“[W]hen the prosecution seeks to justify a warrantless search by proof of voluntary consent, it is not limited to proof that consent was given by the defendant, but may show that permission to search was obtained from a third party who possessed common authority over or other sufficient relationship to the premises or effects sought to be inspected. United States v. Matlock, 415 U.S. 164, 171, 94 S. Ct. 988, 39 L. Ed. 2d 242 (1974). Common authority is . . . not to be implied from the mere property interest a third party has in the property. The authority which justifies the third-party consent does not rest upon the law of property . . . but rests rather on mutual use of the property by persons generally having joint access or control for most purposes, so that it is reasonable to recognize that any of the co-inhabitants has the right to permit the inspection in his own right and that the others have assumed the risk that one of their number might permit the common area to be searched. . . .

“In addition, a warrantless search is valid when it is based on the consent of a third party who the police, at the time of the search, reasonably believe possesses common authority over the premises but who in fact does not have such authority. Illinois v. Rodriguez, 497 U.S. 177, 188, 110 S. Ct. 2793, 111 L. Ed. 2d 148 (1990). As with other factual determinations bearing upon search and seizure, determination of consent to enter must be judged against an objective standard: would the facts available to the officer at the moment . . . warrant a man of reasonable caution in the belief that the consenting party had authority over the premises?” (Citations omitted; internal quotation marks omitted.) State v. Vazquez, 87 Conn. App. 792, 802-804, 867 A.2d 15, cert. denied, 273 Conn. 934, 875 A.2d 544 (2005).

“[Wjhether the individual providing consent possessed the requisite authority ... is a question of fact to be determined from the totality of all the circumstances. ... As a question of fact, it is normally to be decided by the trial court upon the evidence before that court together with the reasonable inferences to be drawn from that evidence. . . . We may reverse [the trial court’s factual] findings on appeal only if they are clearly erroneous.” (Internal quotation marks omitted.) State v. Azukas, 278 Conn. 267, 275, 897 A.2d 554 (2006).

Here, the defendant contends that his refusal to consent to the search nullified Anthony’s later consent. In support of his claim, the defendant relies on Georgia v. Randolph, 547 U.S. 103, 126 S. Ct. 1515, 164 L. Ed. 2d 208 (2006). In Randolph, the United States Supreme Court held that “a warrantless search of a shared dwelling for evidence over the express refusal of consent by a physically present resident cannot be justified as reasonable as to him on the basis of consent given to the police by another resident.” Id., 120. The court distinguished Randolph from its previous rulings in Illinois v. Rodriguez, supra, 497 U.S. 177, and United States v. Matlock, supra, 415 U.S. 164. In Rodriguez and Matlock, the police obtained voluntary consent from a co-occupant at the residence and found evidence impheating another resident who was not present at the time the police obtained consent. In Rodriguez, the co-occupant, who later objected to the search, was asleep in a bedroom within the residence. Rlinois v. Rodriguez, supra, 180. In Matlock, the later objecting co-occupant was located in a nearby police vehicle. United States v. Matlock, supra, 179 (Douglas, J., dissenting). In Randolph, however, the husband and wife co-occupants were both present when the police sought to search their home. The wife consented and the husband refused to consent. The court held that his objection invalidated the wife’s consent. Georgia v. Randolph, supra, 107. The Randolph court acknowledged that it was “drawing a fine line; if a potential defendant with self-interest in objecting is in fact at the door and objects, the co-tenant’s permission does not suffice for a reasonable search, whereas the potential objector, nearby but not invited to take part in the threshold colloquy, loses out.” Id., 121.

Randolph, like Rodriguez and Matlock, applied to situations involving co-occupants. In this case, however, the court did not find, and it is not clear from the record, that the defendant was a co-occupant of the apartment with joint access or control for most purposes and, therefore, had common authority to consent or to object to the search. Common authority is not an “enforceable ownership right as understood by the private law of property, but is instead the authority recognized by customary social usage as having a substantial bearing on Fourth Amendment reasonableness in specific circumstances. Thus, to ask whether the consenting tenant has the right to admit the police when a physically present fellow tenant objects is not to question whether some property right may be divested by the mere objection of another. It is, rather, the question whether customary social understanding accords the consenting tenant authority powerful enough to prevail over the co-tenant’s objection.” Id., 120-21.

At the suppression hearing, Anthony testified that she is the lessee of the apartment and that the defendant was not on the lease. Although she indicated that the defendant stayed there “off and on,” there is no evidence in the record regarding how often and for what periods of time the defendant stayed at the apartment. Anthony stated that the defendant had a key to the apartment because they have a child together and that he came to the apartment to see the child. She indicated that her mother also had a key to her apartment. There is no evidence in the record indicating that the defendant contributed to the rent, kept possessions there or used that apartment as his address. There also was no evidence presented as to the expectations of Anthony and the defendant regarding whether the defendant had free and unlimited access to the apartment, whether he was permitted to have guests at the apartment and whether he exercised mutual use and had joint access or control of the apartment for most purposes. Because the court was not provided any information in this regard, and the issue of the defendant’s authority to override Anthony’s consent was not raised at the suppression hearing, the court made no finding regarding the defendant’s authority over the apartment. In the absence of that factual finding, this court has no basis for determining whether the defendant had common authority over the apartment, and the record is, therefore, inadequate for our review of his belated claim on appeal that his objection invalidated Anthony’s consent.

The judgment is affirmed.

In this opinion the other judges concurred.

       General Statutes § 54-94a provides: “When a defendant, prior to the commencement of trial, enters a plea of nolo contendere conditional on the right to take an appeal from the court’s denial of the defendant’s motion to suppress or motion to dismiss, the defendant after the imposition of sentence may file an appeal within the time prescribed by law provided a trial court has determined that a ruling on such motion to suppress or motion to dismiss would be dispositive of the case. The issue to be considered in such an appeal shall be limited to whether it was proper for the court to have denied the motion to suppress or the motion to dismiss. A plea of nolo contendere by a defendant under this section shall not constitute a waiver by the defendant of noryurisdictional defects in the criminal prosecution.”

       The court also concluded that the protective sweep of the apartment was not justified, but because the contraband was not discovered at that time, suppression was not warranted. The defendant has not challenged that conclusion on appeal.

       The defendant also claims that the state failed to introduce evidence regarding police procedure for inventory searches. Because this claim is evidentiary in nature, not constitutional, it does not qualify for Golding review.

       Although the defendant relies on Randolph, he provides no analysis whatsoever in this regard other than stating that it controls. The defendant also relies on State v. Brunetti, 276 Conn. 40, 883 A.2d 1167 (2005). The defendant acknowledges that that case was superseded by State v. Brunetti, 279 Conn. 39, 901 A.2d 1 (2006), cert. denied, 549 U.S. 1212, 127 S. Ct. 1328, 167 L. Ed. 2d 85 (2007), but nevertheless invites us to apply the principles set forth in the first case even though they were not espoused in the latter, controlling opinion. We know of no authority, nor does the defendant provide any, for this novel suggestion.


author: BEACH, J.

text:
    CAROL DICERTO v. RONALD N. JONES ET AL.
    (AC 28623)
    Flynn, C. J., and Beach and Borden, Js.

      Argued March 26
    officially released June 3, 2008

      Dennis J. Kokenos, for the appellant (named defendant).

      Leslie Byelas, with whom, on the brief, was Sheryle S. Levine, for the appellee (plaintiff).
   Opinion

BEACH, J.

In this partition action, the defendant Ronald N. Jones appeals from the judgment of the trial court dividing the net partition proceeds between him and the plaintiff, Carol DiCerto. On appeal, the defendant claims that the court (1) abused its discretion by dividing the net partition proceeds equally between him and the plaintiff after reimbursing him for his initial expenditures without reimbursing him for certain other expenses related to the subject property, and (2) when dividing the net partition proceeds, improperly relied on General Statutes § 46b-81, which governs the division of marital property. We affirm the judgment of the trial court.

The following facts, as found by the court, and procedural history are relevant to our resolution of the defendant’s appeal. The plaintiff met the defendant in 1987 and thereafter began a dating relationship with him in 1997. The parties lived together at the plaintiffs condominium in 1998 and 1999. In July, 1999, the parties purchased a residence located at 780 Hunting Ridge Road in Easton. The parties jointly owned the subject property with rights of survivorship and paid a total purchase price of $866,076. The defendant contributed a net sum of $47,605.48 to the purchase of the subject property; the plaintiff did not contribute any money.

Subsequent to the purchase of the subject property, the defendant paid all financial charges and payments relating to taxes, insurance and the mortgage until the subject property was sold on December 9, 2005. The defendant also paid associated mortgage refinance costs in the amount of $3276 when the original mortgage of $850,000 with Citibank, F.S.B. (Citibank), was replaced with an $820,000 first mortgage to Emigrant Mortgage Company, Inc. (Emigrant). The reduction in the principal of the original mortgage to Citibank from $850,000 to the new principal amount of $820,000 owed to Emigrant was due solely to the mortgage payments from the defendant’s funds. All payments for the monthly mortgage charges to Emigrant were paid by the defendant.

Additionally, the defendant paid for all improvements to the property between the date of purchase and the time of sale. The defendant made expenditures for fixtures, furnishings, appliances, equipment, improvements and landscaping totaling $94,042.15. The defendant also gave the plaintiff $500 per month as an allowance toward household expenses, some of which the plaintiff used to hire a cleaning person and to pay the telephone and cable television bills.

There was no agreement between the parties, either orally or in writing, as to what would occur regarding the defendant’s contributions, including his payments for the purchase of the property, mortgage payments, improvements to the property and the expenses of maintaining the property, if the parties later were to separate. There was, however, an agreement and understanding between the parties during their relationship and prior to separation, that the defendant was to pay for these expenses without reimbursement from the plaintiff. The plaintiff had expressed a concern about her inability to afford any of the expenses on her own.

The plaintiff brought this action by way of a one count complaint dated December 3, 2004, alleging that the parties held the subject property as joint tenants with rights of survivorship, and, as such, each has an undivided 50 percent interest therein. The plaintiff sought a partition of the subject property, with a sale of the premises and a division of the proceeds between the parties according to their respective lights. While this action was pending, the parties sold the subject property for $1,090,000. After closing adjustments and closing costs, which included paying off the Emigrant mortgage in the amount of $825,381.39, the parties received net sale proceeds totaling $192,065.09.

In its memorandum of decision, the court found that the total amount in escrow, reflecting the net proceeds from the sale of the subject property, was $192,065.09. The court held that the defendant was to be reimbursed for his initial expenditures of $47,605.48 for the purchase of the subject property and awarded half of the remaining proceeds, $72,229.81, to each party. The total awards therefore were $119,835.28 to the defendant and $72,229.81 to the plaintiff. This appeal followed. Additional facts will be set forth as necessary.

I

The defendant first claims that the court abused its discretion when it divided the $192,065.09 in net partition proceeds equally after reimbursing him for his initial expenditures of $47,605.48. Specifically, the defendant claims that the court improperly failed to consider the reductions he made to the principal balance of the loan and the improvements he made to the property without contribution from the plaintiff. We disagree.

We first set forth our standard of review. “A partition action is equitable in nature. Accordingly, [t]he determination of what equity requires is a matter for the discretion of the trial court. ... In determining whether the trial court has abused its discretion, we must make every reasonable presumption in favor of the correctness of its action. . . . Our review of a trial court’s exercise of the . . . discretion vested in it is limited to the questions of whether the trial court correctly applied the law and could reasonably have reached the conclusion that it did. . . . General Statutes § 52-502 (b) provides in relevant part that the proceeds of a partition sale shall be distributed by order of court among all persons interested in the property, in proportion to their interests.” (Citations omitted; internal quotation marks omitted.) Segal v. Segal, 86 Conn. App. 617, 630-31, 863 A.2d 221 (2004).

The defendant contends that the court’s division of the net partition proceeds was inconsistent with the evidence before it. He argues that the court improperly divided the proceeds on the basis of an expectancy of marriage and improperly failed to reimburse him for the reduction he made to the mortgage principal and for the improvements to the house for which he paid. The improper nature of the division, he contends, is highlighted by the court’s finding that at the time of the purchase of the subject property, the parties intended to keep their finances separate.

When balancing the equities to determine the division of the net partition proceeds, the court emphasized the following relevant facts. The parties, at the time of the purchase of the subject real estate, intended to keep their finances separate, despite their cohabiting relationship. As time passed, however, and as their relationship progressed, the defendant expected that the plaintiff would share equally in the subject property. Although there was no agreement between the parties as to what would occur regarding the defendant’s contributions, including payments for the purchase of the property, mortgage payments, improvements to the property and expenses of maintaining the property, if the parties were later to separate, there was agreement between the parties during their relationship and prior to separation that the defendant was to pay for these expenses without reimbursement from the plaintiff. When the plaintiff voiced her concern regarding her ability to assume the financial obligations of the home, the defendant agreed that he would pay the mortgage and the major expenses of maintaining it. The defendant made no claim for reimbursement until the plaintiff brought this action for partition.

We cannot say that the court abused its discretion when it divided the $192,065.09 in net proceeds equally after reimbursing the defendant for his initial expenditures of $47,605.48. “[I]t is not always true that each tenant in common or joint tenant is entitled to equal shares in the real estate. . . . [T]he trial court may distribute the proceeds of the sale in accordance with the equitable interest of each party.” (Citations omitted; internal quotation marks omitted.) Fernandes v. Rodriguez, 90 Conn. App. 601, 610, 879 A.2d 897, cert. denied, 275 Conn. 927, 883 A.2d 1243 (2005), cert. denied, 547 U.S. 1027, 126 S. Ct. 1585, 164 L. Ed. 2d 312 (2006). Although “[cjohabitation alone does not create any contractual relationship or, unlike marriage, impose other legal duties upon the parties . . . where the parties have established an unmarried, cohabiting relationship, it is the specific conduct of the parties within that relationship that determines their respective rights and obligations . . . .” (Citation omitted; internal quotation marks omitted.) Herring v. Daniels, 70 Conn. App. 649, 655-56, 805 A.2d 718 (2002). Although the court found, as the defendant observes, that at the time of the purchase of the subject property, the parties intended to keep their finances separate despite their cohabiting relationship, it also found that there was an agreement between the parties during their relationship that the defendant was to pay for various expenses without reimbursement from the plaintiff. The court’s division of the net partition proceeds is consistent with its findings of fact.

After reviewing the court’s memorandum of decision and relevant portions of the record, we conclude that the court did not abuse its discretion in finding the equitable interests of the plaintiff and the defendant as it did. The court thoughtfully and thoroughly considered the pertinent factors, including the credibility of the parties, and reached a determination consistent with the evidence before it.

II

The defendant next claims that the court’s division of the net partition proceeds was improper because it relied on § 46b-811 ** in dividing the net partition proceeds. We disagree.

Section 46b-81 governs the distribution of assets in dissolution actions. See, e.g., Bender v. Bender, 258 Conn. 733, 741-42, 785 A.2d 197 (2001); see also General Statutes § 46b-81. We agree with the defendant that § 46b-81 is not applicable in the present case. The court, however, made no mention of the statute. Rather, it cited the proper standard in partition cases, namely, that partition actions require a balancing of the equities. See, e.g., Segal v. Segal, supra, 86 Conn. App. 630-31 (partition action equitable in nature, determination of what equity requires is matter for discretion of trial court). “Judges are presumed to know the law . . . and to apply it correctly.” (Internal quotation marks omitted.) Fenton v. Connecticut Hospital Assn. Workers’ Compensation Trust, 58 Conn. App. 45, 54, 752 A.2d 65, cert. denied, 254 Conn. 911, 759 A.2d 504 (2000). The court applied the appropriate standard, and, therefore, the defendant’s claim fails.

The judgment is affirmed.

In this opinion the other judges concurred.

       Emigrant Mortgage Company, Inc., which held the first mortgage on the subject property, was also a named defendant. The action as to Emigrant Mortgage Company, Inc., was withdrawn on August 3, 2006. We therefore refer in this opinion to Jones as the defendant.

       The net proceeds from the partition sale were held in escrow.

       The defendant also claims that the court used an improper method for dividing the net partition proceeds. Relying on Vesce v. Lee, 186 Conn. 328, 335, 441 A.2d 556 (1981), Fernandes v. Rodriguez, 90 Conn. App. 601, 879 A.2d 897, cert. denied, 275 Conn. 927, 883 A.2d 1243 (2005), cert. denied, 547 U.S. 1027, 126 S. Ct. 1585, 164 L. Ed. 2d 312 (2006), and Herring v. Daniels, 70 Conn. App. 649, 805 A.2d 718 (2002), the defendant argues that the court improperly awarded each party half of the net partition proceeds after reimbursing him only for his initial expenditures. The defendant’s argument is unpersuasive because the equities in partition actions are balanced by trial courts on a case-by-case basis. The fact that other trial courts may have ruled differently in the ultimate division of sale proceeds in a partition action does not require, in itself, a similar result in the present case. “[T]he determination of what equity requires is a matter for the discretion of the trial court.” (Internal quotation marks omitted.) Segal v. Segal, 86 Conn. App. 617, 630, 863 A.2d 221 (2004).

       General Statutes § 46b-81 provides: “(a) At the time of entering a decree annulling or dissolving a marriage or for legal separation pursuant to a complaint under section 46b-45, the Superior Court may assign to either the husband or wife all or any part of the estate of the other. The court may pass title to real property to either party or to a third person or may order the sale of such real property, without any act by either the husband or the wife, when in the judgment of the court it is the proper mode to carry the decree into effect.
      “(b) A conveyance made pursuant to the decree shall vest title in the purchaser, and shall bind all persons entitled to life estates and remainder interests in the same manner as a sale ordered by the court pursuant to the provisions of section 52-500. When the decree is recorded on the land records in the town where the real property is situated, it shall effect the transfer of the title of such real property as if it were a deed of the party or parties.
      “(c) In fixing the nature and value of the property, if any, to be assigned, the court, after hearing the witnesses, if any, of each party, except as provided in subsection (a) of section 46b-51, shall consider the length of the marriage, the causes for the annulment, dissolution of the marriage or legal separation, the age, health, station, occupation, amount and sources of income, vocational skills, employability, estate, liabilities and needs of each of the parties and the opportunity of each for future acquisition of capital assets and income. The court shall also consider the contribution of each of the parties in the acquisition, preservation or appreciation in value of their respective estates.”


author: LAVINE, J.

text:
    CHARLES SPELLS v. COMMISSIONER OF CORRECTION
    (AC 28278)
    Lavine, Beach and Peters, Js.

      Argued March 13
    officially released June 3, 2008

      James M. Fox, special public defender, for the appellant (petitioner).

      Robin S. Schwartz, assistant state’s attorney, with whom, on the brief, were John A. Connelly, state’s attorney, and John J. Davenport, senior assistant state’s attorney, for the appellee (respondent).
   Opinion

LAVINE, J.

The petitioner, Charles Spells, appeals from the judgment of the habeas court denying his petition for a writ of habeas corpus. On appeal, he claims that the court improperly concluded that his trial counsel did not render ineffective assistance by failing (1) to seek the recusal of the trial court and (2) to test certain hair samples in time to offer the results as evidence. We affirm the judgment of the habeas court.

The relevant facts are set forth in this court’s decision affirming the petitioner’s conviction on direct appeal. See State v. Spells, 76 Conn. App. 67, 818 A.2d 808, cert. denied, 266 Conn. 901, 832 A.2d 67 (2003). On October 20, 2000, the petitioner and an accomplice, James Butler, held up a convenience store in Waterbury. Both men were armed and wore masks. They took $400 from the cash register, robbed and assaulted a customer and drove away in the vehicle of another customer. Id., 70. The police later found that vehicle in a nearby parking lot. Id. Inside it was a black neoprene mask containing several strands of hair. On October 24, 2000, the police received a telephone call that led them to consider the petitioner a suspect in the case. Id. When questioned by the police, the petitioner confessed to the crime and implicated Butler as his accomplice. Id., 70-71. In his statement, the petitioner provided specific details of the crime, including where the vehicle taken from the store had been abandoned and the fact that the keys had been thrown into a wooded area behind the vehicle. Id., 71. In the petitioner’s apartment, the police found several black masks, one of which was identified by a witness as being similar to the mask worn by one of the men who had robbed the convenience store. Id. On October 30, 2000, Butler was arrested. He subsequently confessed to the crime and implicated the petitioner. Id., 71 n.1.

At trial, the petitioner, who was represented by attorney Louis S. Avitabile, asserted that his statement to the police was fabricated and that he was innocent. On May 25, 2001, he was convicted of three counts of robbery in the first degree in violation of General Statutes § 53a-134 (a) (4) and one count of conspiracy to commit robbery in the first degree in violation of General Statutes §§ 53a-48 and 53a-134 (a) (4). After the verdict was announced, the petitioner became physically aggressive, pushing over a chair that hit one of the courtroom marshals. When the marshals were unable to subdue the petitioner, Judge O’Keefe, who was presiding, left the bench and held the petitioner down so that the marshals could handcuff him.

On July 30, 2001, as the prosecutor was addressing the court with the state’s sentencing recommendations, the petitioner spat on the prosecutor. After the petitioner was removed from the courtroom, the trial court made the following statements. “I feel very badly for the [prosecutor], who is a dedicated, hardworking public servant, just trying to do his job, and he does it well, trying to protect law-abiding citizens from people like [the petitioner]. And to have to put up with this is disturbing.” The court sentenced the petitioner to a total effective term of forty-five years in prison. Thereafter, this court affirmed the conviction on appeal. After the Supreme Court denied certification to appeal, the petitioner filed a petition for a writ of habeas corpus, in which he alleged that Avitabile provided ineffective assistance of counsel. An evidentiary hearing was held on May 25, 2006. On October 31, 2006, the habeas court denied the habeas petition in a memorandum of decision, concluding that the petitioner failed to meet his burden of proving that counsel’s performance was deficient and that he suffered prejudice. On November 8, 2006, the court granted the petitioner certification to appeal to this court. This appeal followed.

We first set forth the standard of review applicable to our analysis of the petitioner’s claims. “Our standard of review of a habeas court’s judgment on ineffective assistance of counsel claims is well settled. In a habeas appeal, this court cannot disturb the underlying facts found by the habeas court unless they are clearly erroneous, but our review of whether the facts as found by the habeas court constituted a violation of the petitioner’s constitutional right to effective assistance of counsel is plenary. . . .

“In Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984), the United States Supreme Court established that for a petitioner to prevail on a claim of ineffective assistance of counsel, he must show that counsel’s assistance was so defective as to require reversal of [the] conviction. . . . That requires the petitioner to show (1) that counsel's performance was deficient and (2) that the deficient performance prejudiced the defense. . . . Unless a [petitioner] makes both showings, it cannot be said that the conviction . . . resulted from a breakdown in the adversary process that renders the result unreliable.

“The first component, generally referred to as the performance prong, requires that the petitioner show that counsel’s representation fell below an objective standard of reasonableness. . . . Because of the difficulties inherent in making the evaluation, a court must indulge a strong presumption that counsel’s conduct falls within the wide range of reasonable professional assistance; that is, the [petitioner] must overcome the presumption that, under the circumstances, the challenged action might be considered sound trial strategy. . . . [C]ounsel is strongly presumed to have rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment.

“The second part of the Strickland analysis requires more than a showing that the errors made by counsel may have had some effect on the outcome of the proceeding. . . . Rather, [the petitioner] must show that there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different. . . . When a [petitioner] challenges a conviction, the question is whether there is a reasonable probability that, absent the errors, the factfinder would have had a reasonable doubt respecting guilt.

“Because both prongs [of Strickland] must be established for a habeas petitioner to prevail, a court may dismiss a petitioner’s claim if he fails to meet either prong. . . . Accordingly, a court need not determine the deficiency of counsel’s performance if consideration of the prejudice prong will be dispositive of the ineffectiveness claim.” (Citations omitted; internal quotation marks omitted.) Crocker v. Commissioner of Correction, 101 Conn. App. 133, 136-37, 921 A.2d 128, cert. denied, 283 Conn. 905, 927 A.2d 916 (2007).

I

The petitioner first claims that the court improperly failed to find that Avitabile rendered ineffective assistance for failing to seek the recusal of the trial judge. Specifically, the petitioner asserts that recusal of the judge was warranted, pursuant to canon 3 (c) of the Code of Judicial Conduct because a reasonable person would question the impartiality of a judge who physically restrained a defendant and made sympathetic remarks to a prosecutor. We do not agree.

At the habeas trial, Avitabile testified that because Judge O’Keefe had a reputation for being fair and had not disciplined the petitioner for the courtroom disturbances, he believed that it would be best for his client not to request a disqualification or recusal. The habeas court concluded that Avitabile had acted reasonably. It stated: “Once the normal decorum surrounding court proceedings was again established, Judge O’Keefe continued to preside over the petitioner’s matter in what can only be described as an unbiased manner. . . . The petitioner here has not presented any evidence that shows a reasonable person would call into question Judge O’Keefe’s impartiality.”

We agree with the court that because Avitabile’s representation of the petitioner comported with an objective standard of reasonableness, the petitioner has failed to satisfy the first prong of Strickland. To satisfy this prong, the petitioner would have to demonstrate that Avitabile’s performance was “not reasonably competent or within the range of competence displayed by lawyers with ordinary training and skill in the criminal law . . . .” (Internal quotation marks omitted.) Lewis v. Commissioner of Correction, 89 Conn. App. 850, 855, 877 A.2d 11, cert. denied, 275 Conn. 905, 882 A.2d 672 (2005). The petitioner has made no such showing.

The petitioner has not demonstrated that a lawyer in Avitabile’s position would have any reason to doubt the trial court’s fairness. Avitabile testified at the habeas trial that he considered it favorable to the petitioner’s interests that the court did not hold the petitioner in contempt after he caused the courtroom disturbance. The court likewise opined: “If anything, the outburst perversely benefited the petitioner.” (Emphasis in original.) Additionally, the court described itself as “hard-pressed to see how any attorney could render deficient performance by fading to request recusal” in this case, given this court’s conclusion on appeal that the judge had no duty to recuse himself. (Emphasis in original.)

We concur with the court’s conclusion that Avitabile’s decision not to seek disqualification of a judge reputed to be a fair jurist was a sound trial strategy. “To satisfy the first prong of Strickland, the petitioner must . . . overcome the presumption that alleged ineffective assistance was not the result of sound trial strategy.” (Internal quotation marks omitted.) Beverly v. Commissioner of Correction, 101 Conn. App. 248, 252, 922 A.2d 178, cert. denied, 283 Conn. 907, 927 A.2d 916 (2007). The petitioner’s first claim thus fails under the first prong of Strickland.

II

The petitioner additionally claims that the court improperly failed to conclude that Avitabile rendered ineffective assistance by not proffering certain hair sample test results as evidence at trial. According to the petitioner, Avitabile’s failure to present these results constituted ineffective assistance because it deprived him of an adequate defense. We do not agree.

The following additional facts are relevant to our resolution of the petitioner’s claim. It was Avitabile’s trial strategy to cast doubt on the reliability of the petitioner’s confession, which he asserted was coerced, by emphasizing the lack of physical evidence tying the petitioner or his alleged accomplice to the crime. To do this, Avitabile planned to use the results of a hair analysis test conducted by the state, which he believed would establish that neither the petitioner nor his alleged accomplice, Butler, was the source of the hair recovered from the mask found in the car.

On the eve of the trial, however, the state informed Avitabile that the hair samples from the mask and from the petitioner had not been sent to the laboratory for analysis. Avitabile immediately requested a continuance so that the analysis could be completed before trial. The court denied the continuance but ordered the state to compare the hair of the petitioner to that found in the mask. The results of that analysis, which were submitted to the jury, excluded the petitioner as a possible source of the mask hair. The results of a subsequent analysis comparing Butler’s hair to the hair found in the mask, which were not submitted to the jury, indicated that Butler’s hair and the hair found in the mask were dissimilar. State v. Spells, supra, 76 Conn. App. 74.

The court concluded that the petitioner failed to demonstrate, pursuant to the second prong of Strickland, that he was prejudiced by Avitabile’s failure to submit the test results comparing Butler’s hair to the hair from the mask as evidence at trial. We agree with the court. The petitioner did not show that there was a reasonable probability that, but for Avitabile’s failure to present these test results, the outcome of his trial would have been different. The absence of test results did not impede the petitioner from presenting his theory that there was no scientific evidence linking him or Butler to the crime. See State v. Brown, 242 Conn. 445, 461, 700 A.2d 1089 (1997). Moreover, a different result was not probable in light of the evidence presented by the state. The jury reasonably could have relied on the petitioner’s detailed confession, Butler’s corroborating statement and other witness statements to find the petitioner guilty beyond a reasonable doubt.

We conclude that the court properly determined that the petitioner failed to demonstrate, pursuant to the second prong of Strickland, that he was prejudiced by Avitabile’s failure to proffer the test results at issue as evidence at trial. The petitioner’s second claim thus fails.

The judgment is affirmed.

In this opinion the other judges concurred.

       Canon 3 (c) (1) of the Code of Judicial Conduct provides in relevant part: “A judge should disqualify himself or herself in a proceeding in which the judge’s impartiality might reasonably be questioned, including but not limited to instances where: (A) the judge has a personal bias or prejudice concerning a party . . . We reject the petitioner’s suggestion that the judge violated this canon. As this court stated in its decision on the petitioner’s direct appeal: “We conclude, therefore, that there was no reason for the judge to recuse himself for having made a statement on the record in recognition of the difficult tasks performed by the judicial marshals and the prosecutor in the face of the [petitioner’s] disruptive behavior.” State v. Spells, supra, 76 Conn. App. 85.

       Due to concerns that the jury might have overheard the petitioner’s outburst, the state opted to withdraw its part B information. The part B information would have exposed the petitioner to a considerably longer sentence.

       The petitioner makes the additional related claim that Avitabile’s failure to preserve the issue of the judge’s recusal for appellate review amounted to ineffective assistance of counsel. Because we agree with the court that Avitabile’s tactics and strategy were consistent with the raised defense of actual innocence, we conclude that the petitioner’s claim of ineffective assistance of counsel for failure to preserve appellate issues likewise fails under the first prong of Strickland.

         Additionally, the petitioner’s failure to provide the court with trial transcripts prevented the court from examining the petitioner’s claim in light of the evidence actually presented to the jury.


author: BORDEN, J.

text:
    LEROY HARRIS v. COMMISSIONER OF CORRECTION
    (AC 28382)
    Harper, Beach and Borden, Js.

      Argued February 13
    officially released June 3, 2008

      David J. Reich, for the appellant (petitioner).

      John A. East III, senior assistant state’s attorney, with whom, on the brief, were Michael Dearington, state’s attorney, and Linda N. Howe, senior assistant state’s attorney, for the appellee (respondent).
   Opinion

BORDEN, J.

The petitioner, Leroy Harris, appeals following the denial of his petition for certification to appeal from the judgment of the habeas court dismissing his petition for a writ of habeas corpus. The petitioner claims that the court (1) abused its discretion in denying his petition for certification to appeal and (2) improperly dismissed his habeas petition without holding an evidentiary hearing to determine whether his prior habeas counsel provided ineffective assistance. We agree with the petitioner and reverse the judgment of the habeas court.

The petitioner brought this petition for habeas corpus challenging his conviction of three counts of robbery in the first degree and one count of sexual assault in the first degree. The court dismissed the petition and denied the petition for certification to appeal. This appeal followed.

The following procedural history is undisputed. The petitioner was convicted, following a jury trial, of three counts of robbery in the first degree in violation of General Statutes §§ 53a-134 (a) and 53a-8, and one count of sexual assault in the first degree in violation of General Statutes § 53a-70 (a). The petitioner was sentenced to a total effective term of eighty years incarceration. State v. Harris, 22 Conn. App. 329, 330, 577 A.2d 1077 (1990).

In the petitioner’s direct criminal appeal, he claimed that (1) the trial court improperly permitted the introduction into evidence of a certain statement under the Whelan doctrine and (2) his conviction should be reversed because of prosecutorial impropriety. This court rejected those claims and affirmed his conviction. See id., 337.

In his first petition for a writ of habeas corpus, filed in 1993, in which he was represented by Paula Mangini Montonye, he claimed that Patricia Buck Wolf, who acted as both his criminal trial and appellate counsel, rendered ineffective assistance. With respect to the trial, the petitioner raised fifteen different claims of ineffectiveness. With respect to the appeal, the petitioner raised two different claims of ineffectiveness. The first habeas court, Hodgson, J., determined that with respect to both sets of claims, the petitioner had failed to establish prejudice. See Strickland v. Washington, 466 U.S. 668, 694, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984). This court affirmed the judgment. Harris v. Commissioner of Correction, 40 Conn. App. 250, 671 A.2d 359 (1996).

In his second petition, filed in 2003, in which he was represented by Salvatore Adamo, the petitioner raised three issues regarding his trial: (1) police misconduct, (2) prosecutorial impropriety and (3) actual innocence. The second habeas court, Hon. William L. Hadden, Jr., judge trial referee, rejected these claims. This court dismissed the appeal. Harris v. Commissioner of Correction, 86 Conn. App. 903, 859 A.2d 979 (2004), cert. denied, 272 Conn. 919, 866 A.2d 1286 (2005).

In his third petition, filed in 2004, in which he was represented by his present counsel, the petitioner raised five claims of ineffective assistance of his criminal trial counsel. The respondent, the commissioner of correction, moved to dismiss the petition on the ground that it presented the same grounds as prior petitions. The third habeas court, Fuger, J., dismissed the petition on the ground that it was premised on the same legal grounds and sought the same relief as the first petition, and was supported by facts and allegations reasonably available at the time of the first petition. This court dismissed the appeal. Harris v. Commissioner of Correction, 97 Conn. App. 382, 904 A.2d 280, cert. denied, 280 Conn. 928, 909 A.2d 523 (2006).

Thereafter, the petitioner filed his fourth petition for a writ of habeas corpus, which is the subject of this appeal. In this petition, the petitioner challenged the effectiveness of the representation provided by his habeas counsel during his first and second petitions. In the first count of the petition, the petitioner alleged that his habeas counsel during his first habeas petition, Montonye, failed to investigate and to challenge adequately his trial counsel’s presentation at trial of the argument that he was misidentified. In the second count, the petitioner alleged that his habeas counsel dining his second habeas petition, Adamo, was ineffective for failing to challenge adequately his trial counsel’s presentation of an argument of prosecutorial impropriety and also for failing to provide effective assistance regarding the petitioner’s actual innocence claim. The petitioner also realleged that his trial counsel was ineffective for failing to present properly the misidentification issue and the prosecutorial impropriety issue. The respondent, in her return, claimed, inter alia, that the petitioner’s various claims had been litigated and decided and were, therefore, barred by the doctrine of res judicata, and that “this is a successive petition and an abuse of the writ. It presents the same grounds as the previous petitions.”

The habeas court, Fuger, J., began the hearing on the petition by asking: “[W]hy shouldn’t I dismiss this on the grounds that it’s a successive petition . . . and an abuse of the writ?” Counsel answered that he was “alleging . . . ineffective assistance of previous habeas counsel . . . .” The respondent asserted that there appeared to be no newly discovered evidence raised in the fourth petition. After listening to argument by counsel, the court ruled on the petition orally, stating that it would dismiss this petition. The court further stated: “I’m going to find it to be successive. I’m going to find it to be an abuse of the writ. Everything I’ve heard goes back to this trial. This is a crime that’s alleged to have occurred—that, occurred, I should say, twenty-three years ago. The trial, the original trial was seventeen years ago. Since then, there have been two complete habeas trials, both appealed and denied. I’ve already dismissed it once as a successive petition.” Thereafter, the court rendered a written judgment of dismissal “on grounds that the claims presented have already been litigated.”

The petitioner requested certification to appeal from the judgment of dismissal, which the court denied. Pursuant to Simms v. Warden, 229 Conn. 178, 186-89, 640 A.2d 601 (1994), the petitioner challenges both the denial of certification to appeal and the judgment dismissing his petition for a writ of habeas corpus. We conclude that the court abused its discretion by denying the petition for certification to appeal. Therefore, we address the merits of the petitioner’s appeal.

The petitioner claims that the court improperly dismissed his petition for habeas relief without affording him an evidentiary hearing. Specifically, he claims that the court improperly (1) dismissed his petition as a successive petition because it alleged ineffective assistance of habeas counsel and (2) applied the doctrine of res judicata in dismissing the petition. We agree with the petitioner that he is entitled to an evidentiary hearing on his claims that prior habeas counsel rendered ineffective assistance.

Both our Supreme Court and this court have addressed the issues of successive petitions and the doctrine of res judicata in the context of claims of ineffective assistance of prior habeas counsel. In Lozada v. Warden, 223 Conn. 834, 613 A.2d 818 (1992), the petitioner sought to have his criminal conviction reversed and a new trial granted on the ground of ineffective assistance of prior habeas counsel. Id., 835. The court, in agreeing that the petitioner could seek to do so by way of habeas corpus, stated: “In this case, the subject of the writ—that is, whether the accused had reasonably competent habeas and trial counsel—are matters that ultimately challenge the underlying conviction. . . .

“To succeed in his bid for a writ of habeas corpus, the petitioner must prove both (1) that his appointed habeas counsel was ineffective, and (2) that his trial counsel was ineffective. A convicted defendant’s claim that counsel’s assistance was so defective as to require reversal of a conviction . . . has two components. First, the defendant must show that counsel's performance was deficient. . . . Second, the defendant must show that the deficient performance prejudiced the defense. Unless a defendant makes both showings, it cannot be said that the conviction . . . resulted from a breakdown in the adversary process that renders the result unreliable. . . . Only if the petitioner succeeds in what he admits is a herculean task will he receive a new trial. This new trial would go to the heart of the underlying conviction to no lesser extent than if it were a challenge predicated on ineffective assistance of trial or appellate counsel. The second habeas petition is inextricably interwoven with the merits of the original judgment by challenging the very fabric of the conviction that led to the confinement.” (Citations omitted; internal quotation marks omitted.) Id., 842-43. Thus, the court by clear implication rejected any claim that the habeas petition, based on a claim of ineffective assistance of prior habeas counsel, could be dismissed as successive.

With respect to the Lozada respondent’s claim that “res judicata prohibits a second habeas proceeding because the issue of ineffective assistance of trial counsel was already litigated in the first habeas proceeding”; id., 843; our Supreme Court stated: “First, the United States Supreme Court has long held that the strict application of the doctrine of res judicata should not control successive petitions for habeas corpus. . . .

“We agree with the Appellate Court that the second habeas petition is not predicated on the same issues addressed in the first petition. Although the petitioner must, by necessity, repeat his allegations of trial counsel’s inadequacy, there may never have been a proper determination of that issue in the first habeas proceeding because of the allegedly incompetent habeas counsel. The claim of ineffective assistance of habeas counsel, when added to the claim of ineffective assistance of trial counsel, results in a different issue.

“Second, the plain language of [Practice Book] § 531 [Practice Book § 25-42 (3) currently includes the applicable language from § 531] would not require dismissal of the second habeas petition. The language of [Practice Book § 25-42 (3)] is clear on its face and prescribes that trial courts may dismiss a second application without a hearing only if that application asserts the same grounds and fails to state new facts or proffer new evidence not reasonably available to the petitioner at the hearing on his previous application. The necessary implication of this prescription is that if different grounds are asserted, a hearing on the second application is indicated. It is also clear that in this context ground must mean a sufficient legal basis for granting the relief sought. . . . In this case, asserting ineffective assistance of appointed habeas counsel is a new ground. [S]hould doubts arise in particular cases as to whether two grounds are different or the same, they should be resolved in favor of the applicant.” (Citations omitted; internal quotation marks omitted.) Lozada v. Warden, supra, 223 Conn. 843-45.

Furthermore, this court has stated: “In our case law, we have recognized only one situation in which a court is not legally required to hear a habeas petition. . . . [I]f a previous application brought on the same grounds was denied, the pending application may be dismissed without hearing, unless it states new facts or proffers new evidence not reasonably available at the previous hearing.” (Internal quotation marks omitted.) Mitchell v. Commissioner of Correction, 93 Conn. App. 719, 725-26, 891 A.2d 25, cert. denied, 278 Conn. 902, 896 A.2d 104 (2006). A petitioner is entitled, by statute, to effective assistance of habeas counsel, and a claim challenging the effectiveness of prior habeas counsel constitutes a new ground for which a petition for habeas relief may be brought. See Lozada v. Warden, supra, 223 Conn. 842-43. When a petitioner has filed a petition for a writ of habeas corpus based on new grounds, such as the ineffective assistance of prior habeas counsel, there arises “a strong presumption that [the] petitioner ... is entitled to present evidence in support of his claims.” (Internal quotation marks omitted.) Mitchell v. Commissioner of Correction, supra, 725.

Application of these principles to the facts of this case compels the conclusion that the petitioner was entitled to an evidentiary hearing on his petition. In his first and third petitions, the petitioner challenged the effectiveness of his criminal trial and appellate counsel, and in his second petition he challenged the validity of his conviction on the basis of police misconduct, prosecutorial impropriety and actual innocence. By contrast, in this fourth petition, he challenges for the first time the effectiveness of his two prior habeas counsel in (1) challenging criminal trial counsel’s investigation and presentation of the claim of misidentification, (2) challenging criminal trial counsel’s presentation of the claims of prosecutorial improprieties and (3) presenting the claim of actual innocence. Because he challenges the effectiveness of his prior habeas counsel, which also challenges the validity of his underlying conviction, the ground he asserts is different from the previous grounds asserted in his prior habeas petitions, the petition is not barred as successive, and the petition is not barred under the doctrine of res judicata.

Following our remand, the petitioner will have the burden to prove his claims pursuant to the principles of Strickland v. Washington, supra, 466 U.S. 668. As applied to a claim of ineffective assistance of prior habeas counsel, the Strickland standard requires the petitioner to demonstrate that his prior habeas counsel's performance was ineffective and that this ineffectiveness prejudiced the petitioner’s prior habeas proceeding. Thus, here, the petitioner will have to prove that one or both of the prior habeas counsel, in presenting his claims, was ineffective and that effective representation by habeas counsel establishes a reasonable probability that the habeas court would have found that he was entitled to reversal of the conviction and a new trial because of (1) criminal trial counsel’s ineffective investigation and presentation of the claim of misidentification or (2) criminal trial counsel’s ineffective presentation of the claim of prosecutorial improprieties or (3) actual innocence.

The respondent argues that the doctrine of res judicata bars an evidentiary hearing in this case because (1) the issue of the effectiveness of the petitioner’s criminal trial counsel has already been adjudicated, and (2) the petitioner could have but did not raise, in his prior third petition, the claim of the effectiveness of his prior first two habeas counsel. See, e.g., McCue v. Birmingham, 88 Conn. App. 630, 635-36, 870 A.2d 1126 (res judicata, or claim preclusion, bars any claim that could have been raised in prior proceeding), cert. denied, 274 Conn. 905, 876 A.2d 14 (2005). Lozada disposes of the respondent’s first argument because it makes clear that a claim that prior habeas counsel was ineffective is a ground different from a claim that prior criminal trial counsel was ineffective. The respondent’s second argument is disposed of by our Supreme Court’s decision in In re Application for Writ of Habeas Corpus by Dan Ross, 272 Conn. 653, 866 A.2d 542 (2005). “Unique policy considerations must be taken into account in applying the doctrine of res judicata to a constitutional claim raised by a habeas petitioner. . . . Foremost among those considerations is the interest in making certain that no one is deprived of liberty in violation of his or her constitutional rights. . . . With that in mind, we limit the application of the doctrine of res judicata ... to claims that actually have been raised and litigated in an earlier proceeding.” (Internal quotation marks omitted.) Id., 662, quoting Thorpe v. Commissioner of Correction, 73 Conn. App. 773, 779 n.7, 809 A.2d 1126 (2002). The petitioner’s claims that his prior habeas counsel were ineffective were neither raised nor litigated in any earlier proceedings.

The judgment is reversed and the case is remanded for an evidentiary hearing on the petitioner’s petition for a writ of habeas corpus.

In this opinion the other judges concurred.

       See State v. Whelan, 200 Conn. 743, 513 A.2d 86, cert. denied, 479 U.S. 994, 107 S. Ct. 597, 93 L. Ed. 2d 598 (1986).

       Practice Book § 25-42 provides in relevant part: “The judicial authority may, at any time, upon its own motion or upon motion of the respondent, dismiss the petition, or any count thereof, it if determines that . . .
      “(3) the petition presents the same ground as a prior petition previously denied and fails to state new facts or proffer new evidence not reasonably available at the time of the prior petition . . . .”

       Prejudice in this case means that but for habeas counsel’s ineffectiveness, there would be a reasonable probability that the habeas court would have found that the petitioner is entitled to a new trial.