author: FOTI, J. LAVERY, C. J.,

text:
    IN RE STEVEN M.

    (AC 20866)
    Lavery, C. J., and Foti and Peters, Js.
    Argued October 31, 2001
    officially released February 26, 2002

      Sandra A. Trionfini, guardian ad litem, with whom, on the brief, was Gareth D. Bye, guardian ad litem, for the appellant (respondent).

      Michael Besso, assistant attorney general, with whom, on the brief, were Richard Blumenthal, attorney general, and Susan T. Pearlman, assistant attorney general, for the appellee (petitioner).

       In accordance with the spirit and intent of General Statutes § 46b-142 (b) and Practice Book § 79-3, the names of the parties involved in this appeal are not disclosed. The records and papers of this case shall be open for inspection only to persons having a proper interest therein and upon order of the Appellate Court.

   Opinion

FOTI, J.

The respondent appeals from the judgment of the trial court granting the motion filed by the petitioner, the commissioner of children and families (commissioner), to transfer him from Long Lane School to the John R. Manson Youth Institution pursuant to General Statutes § 17a-12 (a). The respondent first claims that § 17a-12 (a) is unconstitutional on its face. We need not reach that claim. In the alternative, he argues that the application of the statute is unconstitutional because he was denied due process of law. The trial court rejected his claims. We disagree and vacate the judgment of the trial court.

The respondent is a mentally disabled youth with the intellect of a four to five year old. In 1991, he was committed to the custody of the commissioner on the basis of a finding of parental neglect. On July 15, 1998, the respondent was transferred to Riverview Hospital (hospital). Thereafter, the respondent faced charges, including disorderly conduct and criminal mischief, on the basis of altercations with hospital personnel. On April 14, 1999, the court ordered a competency evaluation performed and committed the respondent to the custody of the commissioner, placing him at Long Lane School for eighteen months.

After the respondent was arrested and charged with assaulting personnel at the hospital, the commissioner filed a motion, pursuant to § 17a-12 (a), to transfer him from Long Lane School to John R. Manson Youth Institution, claiming that he was dangerous to himself and others. On April 3, 2000, the court heard arguments regarding the transfer. At the hearing, after the respondent’s counsel informed the court that he could not ascertain his client’s position regarding the transfer order, the court appointed a guardian ad litem to represent the respondent. The court ordered the respondent transferred from Long Lane School to John R. Manson Youth Institution. At no time did the court determine the respondent’s competency. On August 30, 2000, the court held a hearing to receive reports about the respondent’s pending adult criminal matters and to review with the department of mental health and addiction services whether there were any other facilities available and appropriate for the respondent.

Thereafter, on November 6, 2000, the petitioner removed the respondent from John R. Manson Youth Institution and transferred him to Arbor-Fuller Hospital in South Attleboro, Massachusetts. The respondent resided at Arbor-Fuller Hospital until November 11, 2000, when he was discharged and again placed at Long Lane School by the commissioner, where he remained until his eighteenth birthday. This appeal followed.

As a preliminary matter, the petitioner argues that this court lacks subject matter jurisdiction over this appeal because it is moot. She argues that because the respondent was returned to Long Lane School, and because he has reached the age of majority and was discharged from the commissioner’s custody pursuant to his delinquency commitment, he no longer is subject to § 17a-12 (a). We agree that our decision will not affect the respondent personally. We conclude, however, that all three requirements are met to qualify for appellate review under the capable of repetition, yet evading review exception to the mootness doctrine. Accordingly, we address each of the issues raised on appeal.

The respondent first claims that § 17a-12 (a) is unconstitutional on its face because it (1) deprives him of his liberty interest without procedural due process, (2) mandates penal confinement without conviction after a fair trial, (3) is too vague and overbroad, (4) arbitrarily impacts youth committed to the commissioner and deprives them of a liberty interest, and (5) amounts to cruel and unusual punishment.

We decline to address the claim that § 17a-12 (a) is unconstitutional on its face. Rather, we address the respondent’s claim that as the statute was applied, he was denied procedural due process. “A party has standing to challenge the constitutionality of a statute only insofar as it has an adverse impact on his own rights. As a general rule, if there is no constitutional defect in the application of the statute to a litigant, he does not have standing to argue that it would be unconstitutional if applied to third parties in hypothetical situations.” (Internal quotation marks omitted.) State v. Korhn, 41 Conn. App. 874, 878, 678 A.2d 492, cert. denied, 239 Conn. 910, 682 A.2d 1010 (1996). We therefore conclude that the respondent has no standing to challenge the constitutionality of § 17a-12 (a) on its face.

We now turn to the respondent’s procedural due process claim. Specifically, the respondent argues that he was denied due process of law because the court improperly failed to determine his competency prior to ordering his transfer from Long Lane School, a department of children and families (department) facility, to John R. Manson Youth Institution, a correctional institution. We agree.

“The requirements for a successful due process claim are well established. The fourteenth amendment to the United States constitution provides that the State [shall not] deprive any person of life, liberty, or property, without due process of law .... In order to prevail on his due process claim, the [respondent] must prove that: (1) he has been deprived of a property [or liberty] interest cognizable under the due process clause; and (2) the deprivation of the property [or liberty] interest has occurred without due process of law.” (Internal quotation marks omitted.) State v. Angel C., 245 Conn. 93, 104, 715 A.2d 652 (1998).

“[I]t is important to understand that commitment for any purpose constitutes a significant deprivation of liberty that requires due process protection.” (Internal quotation marks omitted.) In re Jason C., 255 Conn. 565, 579, 767 A.2d 710 (2001), quoting Jones v. United States, 463 U.S. 354, 361, 103 S. Ct. 3043, 77 L. Ed. 2d 694 (1983). Furthermore, the United States Supreme Court has noted that due process protections may be extended to a decision to impose solitary confinement because “[it] represents a major change in the conditions of confinement and is normally imposed only when it is claimed and proved that there has been a major act of misconduct.” (Internal quotation marks omitted.) Vitek v. Jones, 445 U.S. 480, 488, 100 S. Ct. 1254, 63 L. Ed. 2d 552 (1980). We conclude that the circumstances in this case give rise to a liberty interest.

“The United States Supreme Court clearly has established that constitutional due process protections apply in the juvenile setting. In re Gault, 387 U.S. 1, 87 S. Ct. 1428, 18 L. Ed. 2d 527 (1967). In In re Gault, supra, 27-28, the court explained that ‘[i]t is of no constitutional consequence—and of limited practical meaning—that the institution to which [a child] is committed is called an Industrial School. The fact of the matter is that, however euphemistic the title, a “receiving home” or an “industrial school” for juveniles is an institution of confinement in which the child is incarcerated for a greater or lesser time. ... In view of this, it would be extraordinary if our Constitution did not require the procedural regularity and the exercise of care implied in the phrase “due process.” Under our Constitution, the condition of being a [child] does not justify a kangaroo court.’ ” In re Jason C., supra, 255 Conn. 576.

“ ‘A proceeding where the issue is whether the child will be found to be “delinquent” and subjected to the loss of his liberty for years is comparable in seriousness to a felony prosecution.’ In re Gault, supra, 387 U.S. 36. ‘[Commitment is a deprivation of liberty. It is incarceration against one’s will, whether it is called “criminal” or “civil.” ’ Id., 50.” In re Jason C., supra, 255 Conn. 579. When an adult is prosecuted, due process mandates that the person be legally competent to stand trial before he can be convicted of a crime. See State v. Williams, 65 Conn. App. 59, 84, 782 A.2d 149, cert. denied, 258 Conn. 923, 782 A.2d 1251 (2001).

A juvenile cannot be transferred from Long Lane School to John R. Manson Youth Institution unless the court orders the transfer after a hearing. General Statutes § 17a-12 (a). Prior to the respondent’s transfer hearing, he was diagnosed as suffering from dysthymia, conduct disorder, mild mental retardation and borderline personality disorder. Furthermore, the petitioner acknowledges that there was concern regarding the respondent’s competency with respect to pending adult criminal proceedings. In fact, the court appointed a guardian ad litem to represent the respondent’s interests. Nonetheless, the court ordered the transfer of the respondent from Long Lane School to John R. Manson Youth Institution without making a finding as to the respondent’s competency.

We hold that to comply with procedural due process, the court must first determine the competency of the juvenile before ordering a transfer from a department facility, Long Lane School, to a department of correction facility, John R. Manson Youth Institution.

Additionally, § 17a-12 (a) requires that a transfer from one facility to another be in the best interest of the child. “The State has ‘a parens patriae interest in preserving and promoting the welfare of the child,’ Santosky v. Kramer, 455 U.S. 745, 766, 102 S. Ct. 1388, 71 L. Ed. 2d 599 (1982), which makes a juvenile proceeding fundamentally different from an adult criminal trial. We have tried, therefore, to strike a balance—to respect the ‘informality’ and ‘flexibility’ that characterize juvenile proceedings, In re Winship, [397 U.S. 358, 366, 90 S. Ct. 1068, 25 L. Ed. 2d 368 (1970)], and yet to ensure that such proceedings comport with the ‘fundamental fairness’ demanded by the Due Process Clause.” In re Steven G., 210 Conn. 435, 440-41, 556 A.2d 131 (1989). To comport with fundamental fairness, and in accord with the state’s parens patriae interest, the court must determine whether the proposed transfer is in the best interest of the child after it finds the juvenile to be competent.

Although our decision here cannot affect the respondent, for pmposes of future transfer proceedings, the court must first consider the child’s competency and then determine if the transfer is in the best interest of the child, including considering evidence of alternatives to incarceration at John R. Manson Youth Institution.

The judgment is vacated and the matter is remanded with direction to render judgment of dismissal.

In this opinion PETERS, J., concurred.

LAVERY, C. J.,

concurring. I concur in the result reached by the majority, but I write separately because I believe that under the circumstances of this case, the department of children and families breached the duty that it owed to the respondent.

The respondent has multiple disabilities. He frequently displays aggressive behavior, and his large size makes him difficult to manage. It is clear that the state of Connecticut could not formulate a plan to handle the respondent adequately. In that regard, the record reflects that on March 17, 2000, an interagency committee met to review the respondent’s case and to develop a coordinated plan to serve him. Twenty-six professionals were present at that meeting, representing the department of correction, the department of mental health and addiction services, the department of mental retardation, and the department of children and families. Robert W. Plant, superintendent for Riverview Hospital, and Patrick Russolillo, supervising psychologist for the Long Lane School, also were present at that meeting. Plant and Russolillo jointly authored a letter to the court, dated March 17, 2000, which indicated that the respondent should be treated in a specially designed and secure treatment setting; however, because no such setting was available, Plant and Russolillo recommended transfer to Hartford Detention or to John R. Manson Youth Institution. Because the department of children and families could not facilitate an adequate mental health placement for the respondent, he was transferred to John R. Manson Youth Institution, where he was incarcerated in solitary confinement.

General Statutes § 17a-12 (a) allows for the transfer of “a person fourteen years of age or older” who is “dangerous to himself or others or cannot be safely held at Long Lane School . . . .” The statute does not take into account an individual with the respondent’s disabilities. I believe, however, that transferring the respondent to a penal institution, and incarcerating him in solitary confinement when he is not a criminal, is not within the contemplation of the statute. Individuals such as the respondent require appropriate mental health services, not incarceration in a prison cell. Unless the respondent is placed in an appropriate therapeutic setting, he will not learn how to modify his behavior.

It is not the respondent’s fault that the state was unable to provide adequate mental health or mental retardation services. The respondent filed the present appeal on June 6, 2000. On November 6, 2000, he was transferred from his placement in solitary confinement at John R. Manson Youth Institution to the Arbor-Fuller Hospital in Massachusetts. Less than one week later, on November 11, 2000, he was transferred back to the Long Lane School and remained there until his current placement as set forth in footnote 6 of the majority opinion. That placement could have been made much earlier so that the respondent did not have to suffer a Dickens “Bleak House” experience.

Children with mental illness who are committed to the department of children and families must be offered adequate treatment programs corresponding to their individual needs. The respondent has a profound need for such services. Instead of providing appropriate services, the respondent was incarcerated in a prison cell. In taking that action, the department of children and families breached the duty that it owed to the respondent.

I am writing this concurrence so that no mentally handicapped child will ever have to suffer the debilitating treatment suffered by the respondent. If the department of children and families does not have a facility to handle a disabled child in its custody, it has a duty to find a facility equipped to handle the disability and place the child in a proper setting.

       General Statutes § 17a-12 (a) provides in relevant part: “When the commissioner, or his designee, determines that a change of program is in the best interest of any child or youth committed or transferred to the department, he, or his designee, may transfer such person to any appropriate resource or program administered by or available to the department, to any other state department or agency . . . and further provided no transfer shall be made to any institution, hospital or facility under the jurisdiction of the Department of Correction . . . unless it is so ordered by the Superior Court after a hearing. When, in the opinion of the commissioner, or his designee, a person fourteen years of age or older is dangerous to himself or others or cannot be safely held at Long Lane School, or any other facility -within the state available to the Commissioner of Children and Families, the commissioner, or his designee may request an immediate hearing before the Superior Court on the docket for juvenile matters where such person was originally committed to determine whether such person shall be transferred to the John R. Manson Youth Institution, Cheshire, if a male . . . .”

       The respondent reached the age of majority after he filed this appeal.

       Riverview Hospital is associated with Unified School District No. 2, a special school district within the department of children and families established pursuant to General Statutes § 17a-37. Unified School District No. 1 v. Dept. of Education, 64 Conn. App. 273, 276 n.3, 780 A.2d 154, cert. denied, 258 Conn. 910, 782 A.2d 1253 (2001).

       Long Lane School is a juvenile facility maintained by the department of children and families. General Statutes § 17a-3.

       The John R. Manson Youth Institution is a correctional institution. General Statutes § 1-1 (w).

       Upon his eighteenth birthday, the petitioner was placed in the custody of the commissioner of the department of mental retardation. He continues to reside in a cottage located at the Long Lane School facility in Middletown over which the department of mental retardation assumed full operational control on June 1,2001. He was expected to be moved to another department of mental retardation facility in October, 2001.

       Because we conclude that the questions raised in this appeal qualify for review under an exception to the mootness doctrine, the petitioner’s motion to dismiss filed with this court on October 1, 2001, is denied.

       “Our cases reveal that for an otherwise moot question to qualify for review under the ‘capable of repetition, yet evading review’ exception, it must meet three requirements. First, the challenged action, or the effect of the challenged action, by its very nature must be of a limited duration so that there is a strong likelihood that the substantial majority of cases raising a question about its validity will become moot before appellate litigation can be concluded. Second, there must be a reasonable likelihood that the question presented in the pending case will arise again in the future, and that it will affect either the same complaining party or a reasonably identifiable group for whom that party can be said to act as surrogate. Third, the question must have some public importance. Unless all three requirements are met, the appeal must be dismissed as moot.” Loisel v. Rowe, 233 Conn. 370, 382-83, 660 A.2d 323 (1995).

       The respondent also claims that General Statutes § 17a-12 (a) violates the constitution of Connecticut in several ways. “Because the [respondent] has not briefed his claim[s] separately under the Connecticut constitution, we limit our review to the United States constitution. We have repeatedly apprised litigants that we will not entertain a state constitutional claim unless the [respondent] has provided an independent analysis under the particular provisions of the state constitution at issue. . . . Without a separately briefed and analyzed state constitutional claim, we deem abandoned the [respondent’s] claim[s] . . . .” (Internal quotation marks omitted.) State v. Jones, 65 Conn. App. 649, 652 n.6, 783 A.2d 511 (2001).

       In addition, the court had before it a letter authored by the department of children and families alerting the court to the “likelihood” that the respondent would be found incompetent in the pending adult criminal matters.

       The petitioner cites In re Appeal of Bailey, 158 Conn. 439, 262 A.2d 177 (1969), to support her contention that because the respondent has not established that John R. Manson Youth Institution is a penal institution as to his placement there, this court may reject the respondent’s due process claim. That case is inapposite to the present one. In that case, the juvenile did not claim that he was deprived of procedural due process.

       At the April 3, 2000 hearing, the respondent’s guardian ad litem argued that the transfer would not be in the respondent’s best interest and made an offer of proof regarding evidence on the best interest issue. The court improperly declined to take evidence on matters beyond the criteria established by General Statutes § 17a-12.

       The letter stated in relevant part: “Based on a review of his history and current functioning the team has determined that [the respondent] can only be effectively treated in an environment equipped to safely contain his rage and aggression. At present, there is no known facility of this kind outside of a correctional facility. In the long term, the team is in agreement that [the respondent] will best be served outside of the correctional system in a specially designed and secure treatment setting that we are working together (DMHAS, DCF, DMR & DOC) to develop. In the short-term we feel that he is best served in a highly secure setting such as Hartford Detention or Manson Youth. DCF is committed to arranging for Mental Health Services and Restoration of Competency to be provided in whatever setting can safely maintain him. Our experience has been that he cannot be safely maintained at either Long Lane or Riverview Hospital.”


source: Caselaw Access Project

author: FOTI, J.

license: Public Domain

text:
    STATE OF CONNECTICUT v. LORI TROTMAN
    (AC 21242)
    Lavery, C. J., and Foti and Dupont, Js.

      Argued November 26, 2001
    officially released February 26, 2002

      Joaquina Borges King, for the appellant (defendant).

      Rita M. Shair, senior assistant state’s attorney, with whom were Corinne Klatt, supervisory assistant state’s attorney, and, on the brief, John A. Connelly, state’s attorney, for the appellee (state).
   Opinion

FOTI, J.

The defendant, Lori Trotman, appeals from the judgment of the trial court revoking her probation pursuant to General Statutes § 53a-32 and committing her to the custody of the commissioner of correction for a period of four years. On appeal, the defendant claims that the trial court improperly (1) concluded, on the basis of the evidence, that her urine sample tested positive for the presence of an opiate, (2) found that she violated the terms of the plea agreement and (3) revoked her probation. We affirm the judgment of the trial court.

The following facts and procedural history are relevant to the resolution of this appeal. On December 9, 1997, the court sentenced the defendant to an eighteen month suspended sentence and two years of probation following a conviction for possession of narcotics. On September 8, 1999, during the two year probationary period, the defendant was charged with possession of narcotics with intent to sell in violation of General Statutes § 2 la-277 (a) and violation of probation in violation of § 53a-32.

On February 1, 2000, the defendant entered a plea of guilty under the Alford doctrine to the possession of narcotics charge. The defendant also admitted to violating her probation imposed by the December 9, 1997 sentence. The state, as part of the plea agreement, nolled a number of additional charges filed against the defendant and allowed the matter to be continued for four months to allow the defendant to enroll in a drug treatment program.

While she was in the program, the defendant was required to submit to random urine samples for drug testing. Monthly reports were to be submitted to the court through the program. If the defendant successfully completed the program, she would have received a suspended sentence of four years with three years of probation. The defendant’s failure to remain in the program, a new arrest or a urine test indicating drug use would result in a sentence of four years without the right to argue for a lesser sentence.

Three months into her rehabilitation, the defendant’s urine sample tested positive for an opiate. The defendant was brought before the court for a hearing in which the court found that the defendant had in fact violated her plea agreement and reinstated, according to that agreement, her four year prison sentence. At that hearing, the court denied the defendant’s previously filed motion objecting to the court’s “revocation of the plea agreement.” This appeal followed. Additional facts will be set forth as necessary.

I

The defendant first claims that the court improperly found that, on the basis of the evidence, her urine sample tested positive for the presence of an opiate. The defendant claims that the court’s finding was improper because there was evidence that the “drug test may have yielded a false positive . . . .” Specifically, the defendant claims that the record does not contain sufficient evidence to support a finding that the urine sample tested positive for the presence of an opiate. We disagree.

Because the defendant’s claim challenges the sufficiency of the evidence, which is based on the court’s factual findings, the proper standard of review is whether, on the basis of the evidence, the court’s finding of a positive drug test was clearly erroneous. See Aubin v. Miller, 64 Conn. App. 781, 796, 781 A.2d 396 (2001). In other words, a court’s finding of fact is clearly erroneous and its conclusions drawn from that finding lack sufficiency “when there is no evidence in the record to support it ... or when although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed.” (Internal quotation marks omitted.) Azia v. DiLascia, 64 Conn. App. 540, 558, 780 A.2d 992, cert. denied, 258 Conn. 914, 782 A.2d 1241 (2001). Moreover, we repeatedly have held that “[i]n a [proceeding] tried before a court, the trial judge is the sole arbiter of the credibility of the witnesses and the weight to be given specific testimony. . . . Where there is conflicting evidence ... we do not retry the facts or pass on the credibility of the witnesses. . . . The probative force of conflicting evidence is for the trier to determine.” (Internal quotation marks omitted.) State v. Nelson, 67 Conn. App. 168, 179, 786 A.2d 1171 (2001).

In this case, the state presented evidence of the results of the testing performed on the random urine sample taken from the defendant. Those results tested positive for the presence of an opiate. The defendant was brought before the court where she denied using any drugs during the rehabilitation period. In support of her defense, the defendant presented the court with a letter from her program counselor claiming that, because the defendant had no prior record of using opiates, she personally felt that the drug test was “questionable.” The defendant also argued that “poppy seeds” caused the positive test result or that there was a mix-up in the samples.

As the sole arbiter of the testimony, the court did not believe the defendant’s assertions that she had not used drugs during the rehabilitation period. Further, the court was not persuaded that the viability, reliability or accuracy of the test results should be called into question. We conclude, therefore, that the court’s finding that the urine sample tested positive for the presence of an opiate was not clearly erroneous in light of the evidence and the pleadings in the record as a whole. Additionally, we cannot say that we are “left with the definite and firm conviction that a mistake has been committed.” (Internal quotation marks omitted.) Azia v. DiLascia, supra, 64 Conn. App. 558. The court’s conclusion had sufficient evidentiary support because it was drawn from a finding of fact that cannot, after a review of the record, be found to be clearly erroneous.

II

The defendant next claims that the court improperly found that she violated the terms of the plea agreement. The defendant argues that she remains compliant with the plea agreement because it requires only that she successfully complete the drug rehabilitation program and that she have no new arrests. We are not persuaded.

Before we address whether the court was correct in finding that the defendant breached her plea agreement, we first look to the terms of that agreement. We identify those terms by way of the court’s explanation of the plea agreement to the defendant.

Before accepting the defendant’s plea, the court canvassed the defendant and explained all of the terms in the plea agreement in accordance with Practice Book § 39-19. The court, in addressing the defendant, stated: “Now, I’m going to go over this agreement with you again, so I want to make sure you understand. The agreement ... is as follows: The case is going to be continued for sentencing for four months. You’re going to be brought in every month from now until four months, so monthly over the next four months. You are to be in a treatment program, and you are to have remained in that treatment program and you are to be successful in it or compliant with it. That means clean urines, cooperating with the program, doing well. And at the end of the four month period, it comes back for the report that you’re in the treatment program or successfully completed it and doing well, no problems. The court will give you a sentence—a total effective sentence of four years suspended, three years probation, and probably with some special conditions of continued treatment of some sort.

“On the other hand, if you come back with reports that either you have left the program or that you were not compliant or cooperating with the program, or that you have dirty urines or that you have a new arrest and a finding of probable cause has been made, the court will sentence you to four years to serve. And your attorney does not retain the right to argue for anything less than that.” (Emphasis added.) The court asked the defendant if she understood what the court had explained, and she responded affirmatively.

The trial court repeated: “I want you to understand . . . [that the] agreement is basically this, that you comply with this program and don’t get any new arrests. It’s as simple as that. If you comply with the program, you’re going to get a suspended sentence. If you don’t comply and you get arrested and there’s probable cause found or there's dirty urines or you’re not cooperating or you’re not even complying with the program, you’re getting four years to serve. I don’t care what the presentence investigation says. [The agreement] says four years to serve. I want to make sure you understand that. Do you understand that?” (Emphasis added.) The defendant acknowledged several times that she fully understood the terms of the plea agreement and the risks involved. The corut, thereafter, accepted the plea agreement.

Having identified the terms of the plea agreement, we note at the outset our standard of review and the legal principles applicable to the defendant’s claim. The defendant does not claim that an interpretation or construction of the agreement is necessary or that she did not understand the plea agreement or claim that she did not freely and knowingly enter into it. She essentially challenges the court’s factual finding that she violated one of the essential terms thereof. As such, we review the court’s finding under the clearly erroneous standard.

In State v. Garvin, 242 Conn. 296, 314, 699 A.2d 921 (1997), our Supreme Court held that plea agreements involve principles of contract law. In Garvin, the trial court found that the defendant breached his plea agreement by failing to appear in court on a particular date. As a result, the court was no longer bound by the stipulated sentence in that agreement and imposed a greater sentence. Our Supreme Court held that “[u]nder the terms of the defendant’s plea agreement, in return for his guilty pleas, he received consideration in the form of the agreed upon sentence. One of the conditions of the agreement, however, was that the defendant appear for sentencing. Fulfillment of this condition was within the defendant’s control. He understood at the outset that, if he failed to satisfy this condition, he nonetheless would be bound to the agreement. By holding the defendant to his guilty pleas, while imposing sentences reflecting his failure to appear, the trial court did no more than enforce the terms of the plea agreement.” Id.

Guided by the decision in Garvin, we now determine whether the corut properly found that the defendant breached the plea agreement. Similar to the defendant in Garvin, the defendant in this case, in return for her plea, received consideration in the form of a suspended four year prison sentence plus three years of probation, conditioned on the successful completion of four months of rehabilitation without any new arrests or positive drug tests. A specific condition of the plea agreement was that the defendant could not produce any urine samples that tested positive for the presence of drugs within the four month rehabilitation period. This was the defendant’s obligation under the plea agreement. She was fully aware of it and understood at the outset that, if she failed to satisfy that condition, she would be bound by the plea agreement and the court would impose a four year prison sentence.

In light of the evidence and pleadings in the record as a whole, namely, the unambiguous terms of the plea agreement and the positive results of the urine sample, the record contains evidence to support the court’s finding that the defendant violated the terms of the plea agreement. We conclude that the court properly found that the defendant breached the plea agreement and, as a result, did no more than enforce the terms of that agreement when it reinstated the defendant’s four year sentence.

Ill

The defendant next claims that the court improperly revoked her probationary status imposed at her December 9, 1997 sentence. The defendant argues that the court should not have revoked her probation, under § 53a-32, based merely on “a single dirty urine.” Essentially, the defendant asks this court not to impose the four year sentence so that she may continue her probation and four month rehabilitation period under the plea agreement. We decline to do so.

“The standard of review of an order revoking probation is whether the trial court abused its discretion; if it appears that the trial court was reasonably satisfied that the terms of probation had been violated, and, impliedly, that the beneficial purposes of probation were no longer being served, then the order must stand. ... In making this determination, the trial court is vested with broad discretion. ... [A] defendant who seeks to reverse [the] exercise of judicial discretion assumes [a] heavy burden . . . .” (Citations omitted; internal quotation marks omitted.) State v. Smith, 255 Conn. 830, 844, 769 A.2d 698 (2001). Moreover, “[i]n determining whether there has been an abuse of discretion, every reasonable presumption should be given in favor of the correctness of the court’s ruling; reversal is required only where an abuse of discretion is manifest or where injustice appears to have been done.” State v. Cyr, 57 Conn. App. 743, 751, 751 A.2d 420, cert. denied, 254 Conn. 905, 755 A.2d 883 (2000).

Section 53a-32 (b) imposes certain limitations on a trial court’s ability to revoke a defendant’s probation. After a defendant has been shown to have violated her probation, the “court may . . . revoke the sentence of probation .... If such sentence is revoked, the court shall require the defendant to serve the sentence imposed or impose any lesser sentence. ... No such revocation shall be ordered, except upon consideration of the whole record and unless such violation is established by the introduction of reliable and probative evidence and by a preponderance of the evidence.” General Statutes § 53a-32 (b).

In this case, the defendant was arrested and pleaded guilty to the charges against her during her probationary period. She also admitted to violating that probation. The defendant entered into a plea agreement whereby her probation was continued for four months contingent on her successful completion of four months of rehabilitation. She did not successfully complete the four months of rehabilitation and, as a result, violated the plea agreement that continued her probation. By violating the plea agreement, the defendant effectively violated her December 9, 1997 sentence of probation.

Because the defendant’s admission that she violated her probation and the fact that she violated her plea agreement, which served to continue her probation, left open no question as to whether she violated that probation, the court was free to revoke it. The court was reasonably satisfied that the terms of the defendant’s probation had been violated and, impliedly, determined that the beneficial purposes of probation were no longer being served. The record supports the court’s conclusion. Thereafter, § 53a-32 (b) allowed the court to impose a sentence. Although the court could have imposed a lesser sentence, it chose not to and, instead, enforced the terms of the plea agreement by sentencing the defendant to the four year prison sentence to which she explicitly agreed.

The judgment is affirmed.

In this opinion the other judges concurred.

       Dependent on this claim is the defendant’s claim that the court improperly denied her “motion for immediate drug testing and objection to revocation of plea agreement.” Because we conclude that the court’s findings were not clearly erroneous, we need not address its denial of the defendant’s motion.

       Under the Alford doctrine “[a]n individual accused of crime can voluntarily, knowingly, and understandingly consent to the imposition of a prison sentence even if he is unwilling or unable to admit his participation in the acts constituting the crime . . . .” (Internal quotation marks omitted.) Ghant v. Commissioner of Correction, 255 Conn. 1, 3 n.2,761 A.2d 740 (2000), quoting North Carolina v. Alford, 400 U.S. 25, 37, 91 S. Ct. 160, 27 L. Ed. 2d 162 (1970).

       The defendant also contends that the court improperly terminated the plea agreement. This claim has no merit because according to the clear terms of the plea agreement, the consequences of a positive urine test amount to a violation of that agreement and reinstatement of the four year prison sentence, thereby terminating the agreement.

       This argument is completely misplaced. The defendant apparently argues, in her appellate brief, that the court should not have revoked the probationary status imposed on her at the December 9,1997 sentencing hearing. She, however, confuses her analysis in this regard with her earlier arguments that the court improperly found that the urine sample tested positive for the presence of an opiate and that she was not compliant with the plea agreement. She thus mixes the evidentiary phase of the probation revocation hearing with the discretionary, dispositional phase. Although the defendant’s brief in support of this claim is weak, we nevertheless reach the merits of her claim because the brief contains some legal authority and analysis. Compare Commission on Human Rights & Opportunities v. Truelove & Maclean, Inc., 238 Conn. 337, 344 n.11, 680 A.2d 1261 (1996) (“ ‘[wjhere an issue is merely mentioned, but not briefed beyond a bare assertion of the claim, it is deemed to have been waived’ ”).

       See General Statutes § 53a-32 (a).


author: LAVERY, C. J.

text:
    ROLAND H. GARDNER v. MICHAEL PILATO ET AL.
    (AC 21377)
    Lavery, C. X, and Dranginis and Bishop, Js.
    Argued January 7
    officially released February 26, 2002

      Melvin J. Silverman, for the appellants (defendants).

      Katherine T. Blakeslee, for the appellee (plaintiff).
   Opinion

LAVERY, C. J.

The protracted and contentious litigation between these parties has spawned its second appeal to this court. The defendants, Michae Pilato and Salvatore Pilato, appeal from the judgment in favor of the plaintiff, Roland H. Gardner, that was based on a theory of unjust enrichment. Although the defendants raise several claims, the key issue is whether there was evidence to support a finding of unjust enrichment in the amount of the plaintiffs bill for surveying work done. Because there was such evidence, we affirm the judgment of the trial court.

Although the procedural history in this case has been described accurately as “lengthy and labyrinthian,” the facts found are relatively simple. Sometime in 1989, the plaintiff, a licensed surveyor, surveyed the defendants’ property and made a topographical map at the direction of an engineer hired by the defendants to advise them on developing a piece of real estate. The plaintiffs bill totaled $11,592.50. The defendants refused to pay that amount and instead hired another surveyor to do the same work. The second surveyor used the plaintiffs work as well as an old survey that the defendants had in their possession.

The plaintiff on June 30, 1992, brought an action to recover the amount of his bill. The matter was heard before an attorney fact finder (fact finder), who found that although the parties did not enter into an express contract, the defendants “were fully aware, acquiesced and acknowledged the work performed by the plaintiff, ” and benefited from it. The fact finder further concluded that the reasonable value of the plaintiffs services was $11,592.50, and concluded that the defendants owed the plaintiff that amount based on unjust enrichment.

The defendants challenged those conclusions. The matter subsequently was remanded to the fact finder, who, on September 2, 1994, made subsequent findings incorporating the original findings and found in relevant part that the second surveyor had “used information from the plaintiffs product in preparing his subsequent surveys on the property.” Because of a clerical mistake, the action was dismissed with prejudice briefly and then reinstated, the procedural history of which is discussed in Gardner v. Pilato, 44 Conn. App. 724, 692 A.2d 843, cert. denied, 241 Conn. 922, 696 A.2d 1265 (1997). Following that appeal, the trial court on October 27, 1997, granted the plaintiffs motion to vacate the court’s order relative to the defendants’ objection to the subsequent findings of fact. On March 17, 2000, the plaintiff asked the court to render judgment in his favor, with interest and attorney’s fees. The defendants opposed that motion and filed a motion for judgment in their favor. In response to the plaintiffs subsequent motion for articulation, the court stated that vacating the subsequent findings did not strike the original findings and that all findings continued to stand.

On September 29, 2000, the court issued orders overruling the defendants’ objections to the finding of facts subsequent to remand, overruling the defendants’ objection and denying their motion for judgment. It also granted the plaintiffs motion to render judgment and refused to reconsider the propriety of past rulings. Accordingly, the court rendered judgment in the amount of $11,592.50, with $350 in attorney’s fees and prejudgment interest in the amount of 12 percent per annum from May 22, 1992, to September 29, 2000. On October 30, 2000, the court denied the defendants’ motion to open and modify its orders. The defendants appealed, claiming that several of the court’s substantive actions leading up to and immediately following Gardner v. Pilato, supra, 44 Conn. App. 724, were improper and challenging the fact finder’s conclusion that the defendants were unjustly enriched. The plaintiffs motion to dismiss the appeal was granted as to any issues that were addressed in Gardner v. Pilato, supra, 44 Conn. App. 724, but was otherwise denied. Additional facts and procedural history will be provided as necessary.

I

As the parties did at oral argument, we devote the bulk of our analysis to the defendants’ claim that the fact finder improperly found that they were unjustly enriched for the full amount of the plaintiffs bill.

The defendants first urge us to reverse the judgment because the plaintiff failed to include any evidence in his brief or appendix to support that finding; see, e.g., Jennings v. Reale Construction Co., 175 Conn. 16, 18-20, 392 A.2d 962 (1978); and instead invited us to make a “close inspection of the transcript from trial . . . .” Although it may have been easier for our disposition of his claim if the plaintiff had included, or at least referenced, any evidentiary support in his brief or appendix because the defendants flatly denied that any evidence existed, the inclusion of such documentation no longer is mandated. The requirement that an appellee provide a record supporting the fact finder’s judgment in these circumstances was based on provisions of the rules of practice that since have been repealed, and the line of cases interpreting it was expressly overruled by our Supreme Court. See State v. Spillane, 257 Conn. 750, 756-59, 778 A.2d 101 (2001) (en banc). Accordingly, we turn to the merits of the defendants’ argument.

The defendants make two arguments to support their contention that the referee improperly found that they were unjustly enriched in the amount of $11,592.50. First, they argue that there was no evidence that they benefited from the plaintiffs work. Second, they argue that there was insufficient evidence for the fact finder to determine that the plaintiffs bill was reasonable. We are not persuaded.

“Attorney [fact finders] are empowered to hear and decide issues of fact. ... It is axiomatic that a reviewing authority may not substitute its findings for those of the trier of the facts. . . . The trial court, as the reviewing authority, may render whatever judgment appropriately follows, as a matter of law, from the facts found by the attorney [fact finder], . . . Where legal conclusions are challenged, we must determine whether they are legally and logically correct and whether they find support in the facts found by the [attorney fact finder].” (Internal quotation marks omitted.) Anastasia v. Beautiful You Hair Designs, 61 Conn. App. 471, 475, 767 A.2d 118 (2001).

“A right of recovery under the doctrine of unjust enrichment is essentially equitable, its basis being that in a given situation it is contrary to equity and good conscience for one to retain a benefit which has come to him at the expense of another. . . . With no other test than what, under a given set of circumstances, is just or unjust, equitable or inequitable, conscionable or unconscionable, it becomes necessary in any case where the benefit of the doctrine is claimed, to examine the circumstances and the conduct of the parties and apply this standard. . . . Unjust enrichment is, consistent with the principles of equity, a broad and flexible remedy. . . . Plaintiffs seeking recovery for unjust enrichment must prove (1) that the defendants were benefited, (2) that the defendants unjustly did not pay the plaintiffs for the benefits, and (3) that the failure of payment was to the plaintiffs’ detriment.” (Citations omitted; internal quotation marks omitted.) Hartford Whalers Hockey Club v. Uniroyal Goodrich Tire Co., 231 Conn. 276, 282-83, 649 A.2d 518 (1994).

“Furthermore, the determinations of whether a particular failure to pay was unjust and whether the defendant was benefited are essentially factual findings . . . that are subject only to a limited scope of review on appeal. . . . Those findings must stand, therefore, unless they are clearly erroneous or involve an abuse of discretion.” Id., 283.

The defendants first argue that there was no evidence to support the finding that they were benefited by the plaintiffs work. They claim that unjust enrichment requires that the benefit be measured only by an increase in value to the defendants’ property as a direct result of the plaintiffs work. Because the defendants hired a second surveyor to do the work and ultimately used that surveyor’s work in developing the property, the defendants argue that they did not benefit from the plaintiffs work. To the extent that the plaintiffs topographical map was used, the defendants argue that because the second surveyor testified that he used it only for “pencil drawings,” the fact finder had no basis to conclude that the defendants were unjustly enriched in the amount of $11,592.50. Consequently, they argue that we should strike the findings and order the court to render judgment for the defendants. We disagree.

The argument that we should measure the benefit by the amount that the defendants’ property value was increased is similar to the one that was put forth in Hartford Whalers Hockey Club v. Uniroyal Goodrich Tire Co., supra, 231 Conn. 284-85, and rejected by our Supreme Court. Just as the defendants in that case argued that the true measure of damages should be any additional profits received as a direct result of the plaintiffs advertising rather than the advertising cost, the defendants here argue that the true measure of damages should be the increased value of the defendants’ property as a direct result of the plaintiffs work rather than the cost of that work. See id. The argument in this case is no more successful than it was in Hartford Whalers Hockey Club. Although the defendants are correct that the damages in an unjust enrichment case are ordinarily “not the loss to the plaintiff but the benefit to the defendant,” a fact finder may rely on the plaintiffs bill when the benefit is too difficult to determine otherwise. Id., 285; see also Pleines v. Franklin Construction Co., 30 Conn. App. 612, 618, 621 A.2d 759 (1993). Although the second surveyor made only pencil drawings on the plaintiffs work, he also testified that he spent “two to three days in the office on an eight hour day . . . trying to sketch things out.” Given that testimony and our limited scope of review, we cannot conclude that the court improperly accepted the fact finder’s finding that the defendants owe the plaintiff the full amount of his bill.

The defendants also challenge the finding that the plaintiffs bill was reasonable. Indeed, the only evidence supporting the plaintiffs claim that the work was worth $11,592.50 was the testimony of the plaintiffs son that the bill was based on daily work logs and an itemization that was sent to the defendants after the dispute arose. The plaintiff testified that he believed that his prices were comparable to other surveyors in the area because “I have been successfully in business for thirty-two years in Fairfield County.” The defendants claimed at oral argument that the plaintiff was required as a matter of law to also introduce independent evidence as to the reasonableness of the charges. That supposition is incorrect. A party’s own testimony about the value of his labor described with “reasonable particularity” may be the proper measure of unjust enrichment. Id. Because the plaintiff introduced evidence particularly describing the cost of his labor, we conclude that the fact finder’s finding crediting that testimony was not clearly erroneous. See id. It is no less true even though the defendant introduced evidence that other surveyors either estimated or actually did the same work for $3500. The fact finder is in the best position to judge the credibility of witnesses, and we as an appellate court do not retry the facts. See, e.g., Gould v. Hall, 64 Conn. App. 45, 49-50, 779 A.2d 208 (2001).

II

The defendants’ remaining claims concern the propriety of and the manner in which the court granted the plaintiffs motion to vacate the court’s order relative to the defendants’ objection to the subsequent findings of fact. The plaintiff urges us to decline review, arguing that the objections either were raised in or could have been raised in Gardner v. Pilato, supra, 44 Conn. App. 724. The first appeal, however, dealt not with the merits of the trial court’s decision, but with the procedural issue of whether that court had the jurisdiction to take such an action. Id., 727. Accordingly, we are able to review the defendants’ claims.

After carefully reviewing the claims and the applicable law, however, we conclude that the defendants’ objections were either without merit or that they challenge actions taken by the court that were not improper. The near decade of litigation in this case has produced a record amply illustrating the enmity that the parties’ counsel have for each other, and these claims and the responses to them serve as another platform for respective counsel to trade accusations of unethical behavior and poor lawyering. As to the real parties, however, this matter is concluded.

The judgment is affirmed.

In this opinion the other judges concurred.

       The defendants also claim that the trial court improperly granted the plaintiffs motion to vacate the court’s order relative to their objection to the attorney fact finder’s findings of fact that were made after the court had remanded the matter to the fact finder. We resolve that claim in part II of this opinion.

       The breakdown was as follows:
      “2 men field crew ... 66 1/2 hours . . . @ $85 . . . $5652.00
      “Office calculations and Town Hall record search ... 72 1/2 hours . . . @ $45 . . . $3262.50
      “Office drafting, plotting and map making ... 63 1/2 hours . . . @ $38 . . . $2413.00
      “Land Surveyor, principal, supervision ... 4 hours . . . @ $55 . . . $220
      “Copy Co. bills for prints, T.A.W. bill for prints, Town Hall fees for copies of deeds . . . $45 . . . .”

       The defendants’ statement of the issues raises the following additional claims:
      “[1.] Where the court denied a motion to open judgment, was it proper sua sponte five months later to vacate its action? . . .
      “2. Did the court err in opening its judgment of dismissal when a motion to reopen did not conform to the requirements of the statute and no notice of the judge’s intent to act was given to counsel? . . .
      “3. Did the court err in acting under the above circumstances after it had ex parte criticized defendants’ counsel and earlier taken on for decisions at the request of plaintiffs counsel and without notice to defendants’ counsel motions assigned to a different judge? . . .
      “4. Did the trial court err in opening a decision sustaining all of defendants’ objections to the fact finder’s report when that motion did not conform to the requirements of the Practice Book? . . .
      “6. Should the trial court have assessed sanctions against a party whose counsel caused this case to be delayed for five years when that delay was for the economic gain of her client? . . .
      “7. Did the court abuse its discretion in changing a ruling over six years after it had been issued? . . .”


author: SCHALLER, J.

text:
    STATE OF CONNECTICUT v. FRANK IANNAZZI
    (AC 21241)
    Schaller, Flynn and Pellegrino, Js.

      Argued December 6, 2001
    officially released February 26, 2002

      Tracey M. Lane, special public defender, with whom, on the brief, was Kristen M. Brandt, special public defender, for the appellant (defendant).

      Cynthia J. Palermo, deputy assistant state’s attorney, with whom, on the brief, were John A. Connelly, state’s attorney, and Terrence Mariani, assistant state’s attorney, for the appellee (state).
   Opinion

SCHALLER, J.

The defendant, Frank Iannazzi, appeals from the judgment of conviction, rendered following a jury trial, of robbery in the first degree in violation of General Statutes § 53a-134 and assault in the third degree in violation of General Statutes § 53a-61. On appeal, the defendant claims that the trial court improperly (1) denied his motion to suppress identification evidence, (2) denied his motion for a judgment of acquittal and (3) deprived him of a fair trial because the prosecutor made an improper comment during closing argument. We affirm the judgment of the trial court.

The jury reasonably could have found the following facts. On September 4, 1999, at approximately 11:15 p.m., the victim, Thomas Morse, Jr., was walking home from his shift at a McDonald’s restaurant in Waterbury. The defendant approached the victim and asked him for the time. The victim responded that he did not know the time and continued walking.

The defendant began to walk alongside the victim and the two engaged in conversation. During the conversation, the victim felt what he thought was a gun pointed at the back of his head. The defendant told the victim that he had a gun and demanded that the victim turn over his money. After the victim stated that he had no money, the defendant went through the victim’s pockets and found a wallet. The defendant ripped the wallet off the chain to which it was attached and began to rifle through it. The defendant then punched the victim in the face and fled the scene.

The victim returned to the restaurant and reported the incident to the police. He also provided the police with a description of his assailant. The police later met with the victim and presented him with an array of photographs. The victim picked out the defendant’s photograph as that of the man who had robbed and assaulted him. The defendant was tried and convicted, and this appeal followed. Additional facts will be set forth as necessary.

I

The defendant first claims that the court abused its discretion in denying his motion to suppress the identification evidence. Specifically, the defendant argues that the identification was unreliable because the police made a remark to the victim during the presentation of the photographic array that was unnecessarily suggestive and unreasonable.

The following additional facts are necessary for our resolution of the defendant’s claim. At trial, the defendant sought to suppress the identification that the victim had made of him from the photographic array. The court held a hearing and in its memorandum of decision on the motion found that the police had presented the victim with an array of eight photographs, and that the victim had identified the first photograph, which was that of the defendant, as his assailant.

The court stated in its memorandum of decision that the testimony adduced at the hearing “did indicate that the police personnel may have said that they believed the suspect’s photo was within the array, but they did not point that photo out to the complainant.” The court further stated that “[t]he statement, if made by the police, that the suspect may [be] or is in this array does not rise to the level of impermissible or unnecessarily suggestive procedure.” The court properly relied on our case law, which states that it is not suggestive, without more, for the police to inform the victim that the suspect is in the array. See State v. Salmon, 66 Conn. App. 131, 138, 783 A.2d 1193 (2001), cert. denied, 259 Conn. 908, 789 A.2d 997 (2002). The court concluded that the police procedure was not unnecessarily suggestive and denied the motion.

At the outset, we note our standard of review. “When a trial court denies a motion to suppress a pretrial identification, the standard of review is well established. Upon review of a trial court’s denial of a motion to suppress, [t]he court’s conclusions will not be disturbed unless they are legally and logically inconsistent with the facts. . . . [W]e will reverse the trial court’s ruling [on evidence] only where there is abuse of discretion or where an injustice has occurred . . . and we will indulge in eveiy reasonable presumption in favor of the trial court’s ruling. . . . Because the inquiry into whether evidence of pretrial identification should be suppressed contemplates a series of factbound determinations, which a trial court is far better equipped than this court to make, we will not disturb the findings of the trial court as to subordinate facts unless the record reveals clear and manifest error. . . . Because the issue of the reliability of an identification involves the constitutional rights of an accused ... we are obliged to examine the record scrupulously to determine whether the facts found are adequately supported by the evidence and whether the court’s ultimate inference of reliability was reasonable.” (Citation omitted; internal quotation marks omitted.) Id., 135.

Additionally, we note the applicable law that is relevant to a determination of whether a photographic identification was properly admitted into evidence. “[T]he required inquiry is made on an ad hoc basis and is two-pronged: first, it must be determined whether the identification procedure was unnecessarily suggestive; and second, if it is found to have been so, it must be determined whether the identification was nevertheless reliable based on an examination of the totality of the circumstances. ... To prevail on his claim, the defendant has the burden of showing that the trial court’s determinations of suggestiveness and reliability both were incorrect.” (Internal quotation marks omitted.) Id., 135-36.

In an effort to satisfy the first prong of the applicable test, the defendant argues that two simultaneous events, when taken together and given their combined effect, made the identification procedure unnecessarily suggestive. Specifically, his claim relies on what the police said to the victim when they gave him the array and how they presented the array.

In terms of what was said, the defendant maintains that the police told the victim that “the guy is in this picture.” To support that contention, the defendant relies on part of the victim’s testimony at trial. The victim stated, in response to a question about what the police had told him, that “[t]hey told me that they found the guy and they brought him into custody, and they told me that the guy is in this picture.” With regard to how the array was presented, the defendant notes the uncontested fact that the defendant’s picture was the first in the array.

The defendant argues that “[t]hese circumstances, namely, the detective informing the victim that ‘the guy is in this picture,’ coupled with the defendant’s picture being number one in the array, made this procedure [a] suggestive . . . scenario . . . .” Although the detective who assembled the array testified that “[a] photo array is basically . . . individual folders, eight in number, put into a manila type envelope . . . [a]ll numbered one through eight,” we note that it is not clear from the record the extent to which the victim viewed, or was able to view, the first photograph while the police were talking to him or immediately thereafter.

Although the defendant presents a novel argument, we are not persuaded by it. We first note that the defendant’s argument rests on two factual predicates. The first is that the police told the victim that the defendant was “in this picture”; the second is that the defendant’s photograph was the first one that the victim had viewed. The court failed to find one of those underlying factual predicates.

Although the latter factual predicate is undisputed, the court’s memorandum of decision does not support the former. As previously noted, the court found in its memorandum of decision that the testimony offered at the suppression hearing indicated “that the police personnel may have said that they believed the suspect’s photo was within the array . . . .” (Emphasis added.) Moreover, in making its determination, the court stated that “[t]he statement, if made by the police, that the suspect may [be] or is in this array does not rise to the level of impermissible or unnecessarily suggestive procedure.” (Emphasis added.)

We cannot construe that language as a finding by the court that the police told the victim the defendant was “in this picture.” First, the court’s memorandum of decision reveals that it made only qualified findings through the use of the phrases “may have said” and “if made.” Second, those findings, notwithstanding their qualified nature, relate only to police statements regarding the array itself, not the individual photographs within the array. For that matter, the memorandum of decision does not even make clear that the court found that the police had told the victim that the defendant’s photograph was in the array. Accordingly, the factual predicate underlying the defendant’s claim, i.e., that the police in fact did inform the victim that “the guy is in this picture,” is unsubstantiated.

As previously stated, questions of pretrial identification suppression involve fact bound determinations that a trial court is best equipped to make. Our standard of review dictates, therefore, that we not disturb the court’s findings of fact unless the record reveals clear and manifest error. There is no such error in this case. Our review of the record reveals considerable ambiguity with regard to the victim’s testimony about what he was told by the police. At trial, the victim stated that “ [t]hey told me that they found the guy and they brought him into custody, and they told me that the guy is in this picture.” When he was asked if the police had said what specific photograph it was, however, he replied, “No.” Additionally, during the suppression hearing, the victim was asked what he was told, and he stated that the police had told him that “we found the guy. . . . [T]hese are the group of photos, that we think that the guy is in there, and he is in that photo. We have a sneaky suspicion that it is one of the men that are in there.” He then was asked if the police had pointed to any photograph and said that they believe it was the person in that photograph, and he replied, “No.”

That testimony is unclear and ambiguous. In light of that, we cannot disturb the court’s qualified finding that the police may have told the victim that the defendant’s photograph was in the array. Because we conclude that the court’s findings of fact were supported by the evidence, the defendant’s claim must fail because he asserts and relies on a factual conclusion that is inconsistent with the court’s findings. As we have noted, it is not suggestive, without more, for the police to inform the victim that the suspect is in the array. See id., 138. Moreover, because the court’s conclusion was not inconsistent with the facts and was legally correct, the court did not abuse its discretion in denying the motion.

II

The defendant next claims that the court improperly denied his motion for a judgment of acquittal. Although the defendant frames his claim in the context of the propriety of the court’s ruling on the motion, in essence he asserts that the state presented insufficient evidence from which the jury could find him guilty of the crimes charged.

Specifically, the defendant argues that because the victim “provided the sole evidence identifying the defendant as the perpetrator, had his identification testimony been properly suppressed by the trial court, the record would be devoid of any evidence identifying the defendant as the perpetrator. Thus, as the essential element of identity would have been lacking, the jury would not have been able to reasonably conclude [that the defendant was guilty] beyond a reasonable doubt.”

The defendant’s second claim depends on a favorable resolution of his first claim because it focuses solely on the victim’s identification, the evidence that was the subject of the defendant’s first claim. Because we have determined that the photographic identification evidence was admitted properly by the court, we need not review the defendant’s second claim.

III

The defendant finally claims that he was denied a fair trial because the prosecutor made an improper comment during closing argument that substantially prejudiced the defendant and resulted in a denial of due process. The defendant also asserts as part of his claim that in the alternative, we should invoke our supervisory authority and reverse the judgment of conviction because the prosecutor knew or ought to have known that his conduct was improper.

The following facts are necessary for our resolution of the defendant’s claim. During his closing argument, defense counsel focused his remarks on reliability of the eyewitness identification. He discussed the photographic array as well as inconsistencies and inaccuracies in the victim’s description of his assailant. In addition, counsel also made a brief argument relating to three or four plastic cards that were in the victim’s wallet and that were recovered after the robbery. He noted that although police testimony revealed that plastic objects yield very good fingerprints, none were viewed or analyzed in this case. Except for that comment, however, defense counsel’s closing argument focused solely on the reliability of the identification.

During the state’s rebuttal argument, the prosecutor made the following remarks. “[T]he state doesn’t need to prove fingerprints in this case. State doesn’t need to prove fingerprints in any case. The evidence in this case is from the eyewitness who looked in the defendant’s face as he was being robbed and then came in here, into court, looked over at him again and said, that’s the guy who robbed me. That’s the evidence. I don’t have fingerprints. I don’t have a photo showing that he was in the area and I don’t have a videotape, but I have an eyewitness. The best evidence you can have.”

We first note that the defendant did not preserve his claim at trial. On appeal, therefore, he seeks review under State v. Golding, 213 Conn. 233, 239-40, 567 A.2d 823 (1989). Our case law states that “[w]e will not afford Golding review to [unpreserved] claims of prosecutorial misconduct where the record does not disclose a pattern of misconduct pervasive throughout the trial or conduct that was so blatantly egregious that it infringed on the defendant’s right to a fair trial. . . . [I]n addressing the jury, [c]ounsel must be allowed a generous latitude in argument, as the limits of legitimate argument and fair comment cannot be determined precisely by rule and line, and something must be allowed for the zeal of counsel in the heat of the argument. . . . [M]oreover . . . [Golding] review of such a claim is unavailable where the claimed misconduct was not blatantly egregious and merely consisted of isolated and brief episodes that did not reveal a pattern of conduct repeated throughout the trial . . . .” (Citation omitted; internal quotation marks omitted.) State v. Bonsu, 54 Conn. App. 229, 238, 734 A.2d 596, cert. denied, 251 Conn. 909, 739 A.2d 1249 (1999).

Additionally, although prosecutorial misconduct can occur in the course of closing argument, it is also imperative that we “review the challenged comments in the context of the entire trial, with due regard to the extent to which the objectionable remarks were invited by defense conduct or argument.” (Internal quotation marks omitted.) State v. Briley, 55 Conn. App. 258, 262, 739 A.2d 293, cert. denied, 251 Conn. 927, 742 A.2d 363 (1999).

The defendant does not argue that a pattern of misconduct existed throughout trial, but rather asserts that the single comment, that an eyewitness is the best evidence you can have, is egregious unto itself because it pertained to the critical issue in the case, namely, the perpetrator’s identity. We do not agree with the defendant’s assertion. Although the defendant argues that this comment was so blatantly egregious that it infringed on his right to a fair trial, we deem it permissible when viewed in light of our case law.

In State v. Briley, supra, 55 Conn. App. 258, the defendant challenged the prosecutor’s rebuttal argument to the jury, which responded to the defendant’s attack on the reliability of the eyewitness identification of the defendant. Id., 260-61. In that case, we noted that the prosecutor’s remarks were invited by defense counsel’s comments because they challenged the reliability of the eyewitness’ identification of the defendant. Id., 263. In affirming the propriety of the comment, we stated that “[w]hen a prosecutor’s allegedly improper argument is in direct response to matters raised by defense counsel, the defendant has no grounds for complaint. . . . Furthermore, the statements were made only on one occasion during closing argument.” (Citation omitted; internal quotation marks omitted.) Id.

Briley is instructive in the present case because the transcript of the closing arguments reveals that defense counsel here, as in Briley, challenged the reliability of the eyewitness identification. Indeed, the thrust of the closing argument was an attack on the reliability of the eyewitness identification. Because the defendant raised that challenge in closing argument, the state was entitled to rebut the attack and to present a countervailing argument to the jury. Moreover, as in Briley, the comment in the present case was an isolated one. Because the prosecutor’s single comment in the present case was offered in response to defense counsel’s closing argument, we cannot conclude that it was egregious or that the defendant was denied a fair trial. The defendant’s Golding claim must fail.

The defendant also argues that if we conclude that Golding review is not appropriate, we should invoke our supervisory authority and reverse the judgment of conviction because the prosecutor knew or ought to have known that his conduct was improper. He argues that this measure is necessary because, in making the comment in issue, the prosecutor vouched for the credibility of the witness.

Our Supreme Court has stated that “even when prosecutorial misconduct is not so egregious as to implicate the defendant’s right to a fair trial, an appellate court may invoke its supervisory authority to reverse a criminal conviction when the prosecutor deliberately engages in conduct that he or she knows, or ought to know, is improper. . . . Such a sanction generally is appropriate, [though], only when the [prosecutor’s] conduct is so offensive to the sound administration of justice that only a new trial can effectively prevent such assaults on the integrity of the tribunal. ” (Internal quotation marks omitted.) State v. Andrews, 248 Conn. 1, 19, 726 A.2d 104 (1999).

We decline to invoke our supervisory authority in this case because we conclude that the prosecutor did not vouch for the witness and that his comment during closing was not inappropriate. As we have often stated, “[w]hile the prosecutor is permitted to comment upon the evidence presented at trial and to argue the inferences that the jurors might draw therefrom, he is not permitted to vouch personally for the truth or veracity of the state’s witnesses.” (Internal quotation marks omitted.) State v. Moore, 49 Conn. App. 13, 28, 713 A.2d 859 (1998). Additionally, though our law makes clear that “[t]he prosecutor may not express his own opinion, either directly or indirectly, as to the credibility of witnesses”; (internal quotation marks omitted) State v. Mitchell, 66 Conn. App. 263, 273, 783 A.2d 1249 (2001), cert. denied, 259 Conn. 905, 789 A.2d 997 (2002); it is equally clear that he may “properly comment on the credibility of a witness where . . . the comment reflects reasonable inferences from the evidence adduced at trial.” (Internal quotation marks omitted.) State v. Holmes, 64 Conn. App. 80, 93, 778 A.2d 253, cert. denied, 258 Conn. 911, 782 A.2d 1249 (2001). Moreover, “[i]t is not improper for a prosecutor to comment on the credibility of a witness as long as he neither personally guarantees the witness’ credibility nor implies that he has knowledge of the witness’ credibility outside the record.” State v. Jeudis, 62 Conn. App. 787, 794, 772 A.2d 715, cert. denied, 256 Conn. 923, 774 A.2d 140 (2001).

In the present case, a key issue was the identity of the perpetrator. The state presented a witness, the victim, whom it argued could provide an eyewitness identification of the defendant as a result of the face-to-face confrontation. The defense challenged the eyewitness’ reliability. Under those circumstances, and with the identity of the perpetrator at issue, commenting to the jury that an eyewitness is the best evidence the state can offer did not either personally vouch for the witness’ credibility or imply that the prosecutor had knowledge of the witness’ credibility outside the record. Rather, the comment was an acceptable and appropriate argument about the credibility of the victim because it squarely related to the reasonable inferences the jury could draw from the testimony of someone who was intimately involved in the incident. We decline to exercise our supervisory authority in this case.

The judgment is affirmed.

In this opinion the other judges concurred.

       At oral argument before this court, the defendant advanced another argument, not included in his brief, as to why the identification was suggestive. He argued that it was suggestive for the police to tell the victim that the suspect was in the array presently at issue because the police did not make any similar comment to the victim when they presented him with previous arrays, from which the victim was unable to identify his assailant. That argument, however, must also fail for the same reason as the one briefed. Namely, it relies on a factual predicate that the court did not find.

       “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. . . . The first two steps in the Golding analysis address the reviewability of the claim, while the last two steps involve the merits of the claim. . . . The appellate tribunal is free ... to respond to the defendant’s claim by focusing on whichever condition is most relevant in the particular circumstances.” (Citations omitted; emphasis in original; internal quotation marks omitted.) State v. Solman, 67 Conn. App. 235, 238, 786 A.2d 1184 (2001), cert. denied, 259 Conn. 917, 791 A.2d 568 (2002).

       We note that although the state argues in its brief that the comment was in response to defense counsel’s closing argument, the state references only the first few lines of the prosecutor’s rebuttal argument, which discussed the fingerprints. Therefore, the state has not specifically asserted that the prosecutor’s comment was in response to the reliability challenge. Though the excerpt in the state’s brief is not extensive, we note that the portion cited leads into, and becomes enmeshed with, the remarks concerning eyewitness evidence. Moreover, on the basis of the overall context of defense counsel’s closing argument, which clearly focused its thrust toward the identification, the state’s argument that its comments were invited by the defense is persuasive despite its imprecision.