author: GRUENDEL, J.

text:
    ABBOTT TERRACE HEALTH CENTER, INC. v. ANNA PARAWICH ET AL.
    (AC 31007)
    Gruendel, Beach and Dupont, Js.
    Argued December 8, 2009
    officially released March 23, 2010

      Kari L. Olson, with whom, on the brief, was Kevin T. Hansted, for the appellant (plaintiff).
   Opinion

GRUENDEL, J.

The plaintiff, Abbott Terrace Health Center, Inc., appeals from the judgment of the trial court in favor of the defendant William Hulstrunk, also known as William Hulstruck. The plaintiff maintains that the court, following the entry of default against the defendant, improperly declined to impose liability thereon. We reverse in part the judgment of the trial court.

Our recitation of the relevant facts is governed by the procedural posture of this case. “The entry of a default constitutes an admission by the defendant of the truth of the facts alleged in the complaint.” DeBlasio v. Aetna Life & Casualty Co., 186 Conn. 398, 400, 441 A.2d 838 (1982). The complaint in the present case set forth the following facts. The plaintiff is a Connecticut corporation located at 44 Abbott Terrace in Waterbury and is licensed as a chronic and convalescing nursing home and rest home. On December 13, 2007, the defendant’s aunt, Anna Parawich, acting through the defendant as her attorney in fact, transferred certain moneys in her bank accounts to the defendant. The very next day, Parawich entered the plaintiff nursing home to receive care and services for an indefinite period of time. She did so knowing that the plaintiff would bill her for the costs of the care and services provided, and she transferred the moneys on December 13, 2007, knowing that she would incur debt for the costs of care and services provided by the plaintiff and would be billed accordingly. That transfer of Parawich’s assets rendered her unable to meet her financial obligations to the plaintiff. Further, Parawich conveyed those assets without adequate consideration and with the intent to avoid paying for her health care costs. In so doing, Parawich transferred her assets with actual intent to hinder, to delay and to defraud creditors. As her attorney in fact and the recipient of those assets, the defendant acted as a transferee, participant in and beneficiary of Parawich’s fraudulent transfer, causing damages to the plaintiff.

On December 14, 2007, Parawich was admitted to the plaintiff home as a private, self-pay resident to receive twenty-four hour skilled nursing care and services. At all times during her stay, the plaintiff rendered skilled nursing care and services to Parawich. At the same time, the plaintiff did not receive full payment for the costs associated with those services. The principal amount due and owing to the plaintiff for services rendered to Parawich totaled $75,151.77. Despite demand by the plaintiff, Parawich failed to pay for the services provided to her by the plaintiff.

On February 18, 2008, Parawich, through the defendant, her attorney in fact, executed an admissions agreement (agreement). Pursuant thereto, Parawich was obligated to pay the plaintiff for the costs of skilled nursing care and services rendered, including the basic daily rate and any ancillary charges. In addition, the agreement provided that the plaintiff was entitled to collect interest at the prevailing rate on any overdue principal balance that was more than ninety days overdue. The agreement also entitled the plaintiff to recoup reasonable attorney’s fees and all costs it incurred in connection with any collection action on Parawich’s account. Parawich breached that agreement, causing damage to the plaintiff.

At the time the agreement was entered into, the defendant, as Parawich’s attorney in fact, represented to the plaintiff that he would comply with the terms of the agreement, including using Parawich’s assets and income to pay the plaintiff and promptly applying for and cooperating with the department of social services (department) to establish Parawich’s medicaid eligibility when her assets neared exhaustion. The defendant made those promises to the plaintiff with the expectation that the plaintiff would rely on them. Relying on the defendant’s promises, the plaintiff rendered care and services to Parawich.

The defendant thereafter failed to respond to the department’s requests for the information required to establish Parawich’s medicaid eligibility. He further failed to use Parawich’s assets and income to pay the plaintiff for the care and services it rendered to Para-wich. As a result of the plaintiffs reliance on the defendant’s promises, the plaintiff rendered care and services to Parawich, the costs for which it was not paid. The plaintiff thus was damaged by its reliance on the defendant’s promises.

Accordingly, the plaintiff on September 19,2008, filed an application for a prejudgment remedy against the defendant and Parawich that was accompanied by the affidavit of Darlene Fortier, the director of financial services for the plaintiff. The court held a hearing on the matter on October 21, 2008. Neither Parawich nor the defendant appeared at that hearing, at which the plaintiff introduced into evidence certain documents. Exhibit one, titled “application requirements list,” under which was written “last notice,” was a document prepared by the department to determine Parawich’s eligibility for long-term care assistance. That document was addressed to the defendant and requested, inter alia, a complete history of certain bank accounts. The department also requested verification of certain specified withdrawals. In particular, the department inquired as to the closure of a money market account at the Naugatuck Savings Bank on December 13, 2007, at which time the defendant withdrew $78,699.50. The department, in a notation next to that specified transaction, inquired “where did it go?” Exhibit two, titled “transfer of assets—preliminary decision notice,” was also a document prepared by the department and addressed to the defendant. It stated in relevant part: “We reviewed the information that you gave us about the transfer of $78,699.50 on December 13, 2007. Our initial decision is that you made the transfer in order to be eligible for assistance. We made this decision because: You are applying for or receiving medical help for long-term care services or home care services; and you . . . transferred assets that affect eligibility; and you have not given us proof that the transfer was not made in order to be eligible for assistance. The purpose of this notice is to tell you about our preliminary decision and give you a chance to contact us before the decision becomes final. If you do not agree with us, you need to tell us. ... If we do not hear from you by [August 18, 2008], we will act on our decision about the transfer.” On the basis of the foregoing, the court on October 21, 2008, found that probable cause existed to conclude that a judgment “will be rendered ... in favor of [the plaintiff].” The court granted the application for a prejudgment remedy “to the value of $81,516.83” and ordered that the plaintiff “may attach, garnish and/or otherwise encumber all real property owned by [Parawich and the defendant] individually or jointly [and] may attach and/or garnishee all bank accounts owned by [Parawich and the defendant] individually or jointly.”

The plaintiff commenced the present action against the defendant and Parawich on October 24, 2008. Its complaint, the gist of which we already have recounted, consisted of five counts. Count one alleged breach of contract against Parawich. Count two alleged promissory estoppel against the defendant. The third count, alleging fraudulent conveyance, pertained to both the defendant and Parawich. The fourth and fifth counts, alleging quantum meruit and unjust enrichment, respectively, were directed at Parawich.

Neither the defendant nor Parawich filed an appearance or responded in any manner to the plaintiffs complaint. Accordingly, the plaintiff on November 24, 2008, filed a motion for default for failure to appear, which was granted on December 9, 2008. The plaintiff then filed a “motion for judgment based upon default,” to which it attached an affidavit of debt and bill of costs. A certificate of closed pleadings was filed on January 12, 2009, at which time the plaintiff claimed the matter for a hearing in damages. At no time did the defendant respond to the plaintiffs action, never mind file a motion to set aside the default; see Practice Book § 17-42; or provide written notice of a defense to liability. See Practice Book §§ 17-34, 17-35 and 17-37.

On January 26, 2009, the court ordered as follows: “Please be advised that the . . . case has been assigned for a hearing in damages on [March 5, 2009], Please report to the assigned courtroom at Waterbury Superior Court, 300 Grand Street. If counsel files an affidavit of debt, attorney’s fees, current military affidavit and order page, the matter may be taken on the papers. All cases must file an order page with a breakdown of all monetary amounts.” (Emphasis added.) Complying with that order, the plaintiff on March 5, 2009, filed with the court an updated affidavit of debt indicating that the principal amount due and owing to the plaintiff for care and services rendered to Parawich was $102,815. The plaintiff further filed a military affidavit stating that neither the defendant nor Parawich currently were on active military duty. Finally, the plaintiff filed an affidavit of attorney’s fees and costs, in which attorney Kevin T. Hansted attested to a total of $7523 in attorney’s fees and $936.55 in costs arising from the present litigation.

By order dated March 5, 2009, the court rendered judgment against Parawich in the amount of $116,748.57. The court expressly found that said amount “is due the plaintiff from [Parawich] only.” The court further stated that it “does not find [the defendant] hable.”

On March 25, 2009, the plaintiff filed a motion to reargue. In that motion, the plaintiff stated that it “seeks reconsideration of the [court’s] order [dated March 5, 2009] in that it states that ‘the [c]ourt does not find [the defendant] hable.’ ” A memorandum of law and a copy of the court’s March 5, 2009 order accompanied the motion, which the court denied. The court’s judgment file provides: “This action, by writ and complaint, claiming money damages, came to this court on November 18, 2008, and thence to later dates when defaults were entered against [the defendant and Parawich] for failure to appear, and thence to later dates when the plaintiff filed a motion for judgment after default, and thence to later dates when the court considered the motion for judgment after default. The court finds that . . . Parawich is liable to the plaintiff for the principal amount of $102,815, plus interest of $5474.02, and attorney’s fees of $7523, for a total of $115,612.02. Costs are taxed at $936.55. Whereupon, it is adjudged that judgment shall enter for the plaintiff against . . . Para-wich . . . and judgment shall enter for the defendant .... The matter was continued thence to March 25, 2009, when the plaintiff filed a motion to reargue the motion for judgment, which was denied.” From that judgment, the plaintiff appeals.

I

On appeal, the plaintiff claims that the court improperly found the defendant not liable in light of the entry of default in its favor. At the outset, we note that this claim involves the interpretation and application of our rules of practice, which “presents a question of law over which this court’s review is plenary.” State v. One or More Persons over Whom the Court’s Jurisdiction Has Not Yet Been Invoked, 107 Conn. App. 760, 764, 946 A.2d 896, cert. denied, 289 Conn. 912, 957 A.2d 880 (2008). On our plenary review, we agree with the plaintiff that the court improperly rendered judgment in favor of the defendant.

In the present case, the defendant was defaulted pursuant to Practice Book § 17-20 due to his failure to enter an appearance. As we recently observed, “[c]ase law makes clear . . . that once the defendants had been defaulted and had failed to file a notice of intent to present defenses, they, by operation of law, were deemed to have admitted to all the essential elements in the claim and would not be allowed to contest liability at the hearing in damages.” Richey v. Main Street Stafford, LLC, 110 Conn. App. 209, 218, 954 A.2d 889 (2008); see also 1 E. Stephenson, Connecticut Civil Procedure (3d Ed. 1997) § 96, p. 282 (“[t]he entry of a default constitutes a technical admission by the defendant of the truth of the facts alleged in the complaint”). “A default admits the material facts that constitute a cause of action . . . and entry of default, when appropriately made, conclusively determines the liability of a defendant.” (Emphasis added; internal quotation marks omitted.) Schwartz v. Milazzo, 84 Conn. App. 175, 178, 852 A.2d 847, cert. denied, 271 Conn. 942, 861 A.2d 515 (2004). Accordingly, “the entry of default against the defendant commands the rendering of judgment in favor of the plaintiff.” Peterson v. Woldeyohannes, 111 Conn. App. 784, 791, 961 A.2d 475 (2008). Following the entry of a default, all that remains is for the plaintiff to prove the amount of damages to which it is entitled. DeBlasio v. Aetna Life & Casualty Co., supra, 186 Conn. 401. At a minimum, the plaintiff in such instances is entitled to nominal damages. See id.; Cardona v. Valentin, 160 Conn. 18, 26, 273 A.2d 697 (1970).

As a consequence of the default, the defendant was bound by the material factual allegations set forth in the plaintiffs complaint. Whitaker v. Taylor, 99 Conn. App. 719, 727, 916 A.2d 834 (2007). We thus must examine those allegations to ascertain whether, as the plaintiff argues, they are sufficient on their face to establish a valid claim for the relief requested. Id.; see also Richey v. Main Street Stafford, LLC, supra, 110 Conn. App. 220. As the interpretation of pleadings is always a question of law for the court; Grimes v. Housing Authority, 242 Conn. 236, 249, 698 A.2d 302 (1997); our review is plenary.

A

The plaintiffs complaint contains two causes of action directed toward the defendant: promissory estoppel and fraudulent conveyance. We examine each in turn.

1

The second count of the plaintiffs complaint alleges a claim for promissory estoppel. Such a claim requires “proof of two essential elements: the party against whom estoppel is claimed must do or say something calculated or intended to induce another party to believe that certain facts exist and to act on that belief; and the other party must change its position in reliance on those facts, thereby incurring some injury.” (Internal quotation marks omitted.) Chotkowski v. State, 240 Conn. 246, 268, 690 A.2d 368 (1997); Torringford Farms Assn., Inc. v. Torrington, 75 Conn. App. 570, 576 n.8, 816 A.2d 736, cert. denied, 263 Conn. 924, 823 A.2d 1217 (2003). Paragraphs twelve through eighteen of the second count allege as follows. At the time the agreement was entered into, “[the defendant] represented to [the plaintiff] that he would comply with the terms of the agreement, including using Parawich’s assets and income to pay [the plaintiff] and promptly applying for and cooperating with [the department] to establish [Parawich’s] [m]edicaid eligibility when her assets neared exhaustion. [The defendant] made those promises to [the plaintiff] with the expectation that [the plaintiff] would rely on them. Relying on [the defendant’s] promises, [the plaintiff] rendered care and services to Parawich. [The defendant thereafter] failed to promptly respond to [the department’s] requests for the information required to establish Parawich’s [mjedicaid eligibility. [The defendant] failed to use Parawich’s assets and income to pay [the plaintiff] for the care and services it rendered to Parawich. As a result of [the plaintiffs] reliance on [the defendant’s] promises, [the plaintiff] rendered care and services to Parawich, the costs for which it has not been paid. [The plaintiff] has been damaged by its reliance on [the defendant’s] promises.” We conclude that those allegations satisfy the threshold legal test to sustain a cause of action for promissory estoppel against the defendant. The court improperly refused to impose liability and to award the plaintiff damages on that count.

2

The third count of the plaintiffs complaint alleges fraudulent conveyance. “A party alleging a fraudulent transfer or conveyance under the common law bears the burden of proving either: (1) that the conveyance was made without substantial consideration and rendered the transferor unable to meet his obligations or (2) that the conveyance was made with a fraudulent intent in which the grantee participated.” (Internal quotation marks omitted.) Certain Underwriters at Lloyd’s, London v. Cooperman, 289 Conn. 383, 394, 957 A.2d 836 (2008). Paragraphs twelve through twenty-one of the third count allege: “[0]n or about December 13, 2007, Parawich, through her [attorney in fact, the defendant], transferred certain [moneys] in her bank accounts to [the defendant]. Parawich entered [the plaintiff nursing home] on or about December 14, 2007, to receive care and services for an indefinite period of time. Parawich entered [the plaintiff musing home] knowing that [the plaintiff] would bill her for the costs of the care and services provided to her. Parawich transferred the [moneys] knowing that she would incur debt for the costs of care and services [the plaintiff] provided to her. The transfer of Parawich’s assets rendered her unable to meet her financial obligations to the plaintiff. Parawich transferred her assets knowing that she would need care and services from a musing home for an indefinite period of time and that the nursing home would bill her for the costs of care and services provided. . . . Parawich conveyed assets without adequate consideration and with the intent to avoid paying for her health care costs .... Parawich transferred her assets with actual intent to hinder, delay and defraud creditors. [The defendant] acted as a transferee, participant and beneficiary in Parawich’s fraudulent transfer. [The plaintiff] has been damaged.” Those allegations state a valid cause of action for fraudulent conveyance against the defendant. We thus conclude that the court improperly refused to impose liability and to award the plaintiff damages on that count as well.

B

In light of the foregoing, the court’s judgment in favor of the defendant is untenable. A default entered on December 9, 2008, after which the plaintiff claimed the matter for a hearing in damages on January 12, 2009. The material allegations of the plaintiffs complaint set forth two valid claims for the relief requested. As such, the defendant’s liability to the plaintiff conclusively was established at that time, and the only issue before the court was the determination of damages. See Bank of New York v. National Funding, 97 Conn. App. 133, 138, 902 A.2d 1073, cert. denied, 280 Conn. 925, 908 A.2d 1087 (2006), cert. denied sub nom. Reyad v. Bank of New York, 549 U.S. 1265, 127 S. Ct. 1493, 167 L. Ed. 2d 229 (2007). We therefore conclude that the court improperly rendered judgment in favor of the defendant.

II

In the present case, Connecticut law compels a judgment in favor of the plaintiff against the defendant. Nevertheless, it is not for this appellate tribunal to delve into the determination of the precise amount of damages to which the plaintiff is entitled. See Bhatia v. Debek, 287 Conn. 397, 419, 948 A.2d 1009 (2008) (determination of damages involves question of fact); Weil v. Miller, 185 Conn. 495, 502, 441 A.2d 142 (1981) (appellate courts “cannot find facts; that function is, according to our constitution, our statute, and our cases, exclusively assigned to the trial courts”). For that reason, we remand the matter to the trial court for a hearing in damages in accordance with this decision. In addition, we emphasize that the time for the defendant to contest liability and to disclose a defense has passed. See Practice Book § 17-35; Schwartz v. Milazzo, supra, 84 Conn. App. 178-79. The sole issue before the court is the proper determination of damages. Whitaker v. Taylor, supra, 99 Conn. App. 726. The plaintiff shall be permitted to present any relevant evidence at that hearing, including the exhibits introduced at the prejudgment remedy hearing.

The judgment is reversed only as to Hulstrunk and the case is remanded for a hearing in damages as to him only consistent with this opinion. The judgment is affirmed in all other respects.

In this opinion the other judges concurred.

       Also named as a defendant was Hulstrunk’s aunt, Anna Parawich. She died subsequent to the conclusion of proceedings before the trial court but before oral argument transpired in this court. By order dated November 18, 2009, this court stated that it had received notice that Parawich had died on August 1,2009, but had not received notice of the substitution of a proper personal representative of her estate pursuant to General Statutes § 52-599. Consistent with General Statutes §§ 52-599 and 52-600, we ordered that oral argument proceed on December 8, 2009, without prejudice to the filing with this court of a motion to substitute the personal representative of the estate of Parawich on or before January 8, 2010. No such motion followed.
      The present appeal concerns only the court’s judgment in favor of Huls-trunk. We therefore refer in this opinion to Hulstrunk as the defendant and to Parawich by name.

       The defendant has not filed an appearance or appellate brief in this appeal. Furthermore, he did not appear for oral argument thereon.

       The record does not indicate whether the court referred the matter to the state’s attorney for possible criminal investigation.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    STRATEK PLASTICS, LTD., ET AL. v. JEAN-PIERRE IBAR
    (AC 30465)
    Harper, Alvord and Milialakos, Js.
    Argued December 2, 2009
    officially released March 23, 2010

      Jean-Pierre Ibar, pro se, the appellant (defendant).

      Kenneth M. Rozich, for the appellees (plaintiffs).
   Opinion

PER CURIAM.

The defendant, Jean-Pierre Ibar, appeals from the judgment of the trial court confirming an arbitration award that resulted from arbitration proceedings he had entered into with the plaintiffs, Stratek Plastics, Ltd., and Stamford Polymer Research Laboratory, Inc. On appeal, the defendant claims that (1) the court improperly granted the plaintiffs’ application to confirm the arbitration award and (2) the court improperly denied the defendant’s request to open the judgment confirming the award. Underlying both of these claims is an allegation that the defendant was not properly served with notice. We affirm the judgment of the trial court.

“General Statutes § 52-417 provides that in ruling on an application to confirm an arbitration award [t]he court or judge shall grant such an order confirming the award unless the award is vacated, modified or corrected as prescribed in [General Statutes §§] 52-418 and 52-419. . . . The trial court lacks any discretion in confirming the arbitration award unless the award suffers from any of the defects described in . . . §§52-418 and 52-419. . . . Furthermore, if a motion to vacate, modify or correct is not made within the thirty day time limit specified in General Statutes § 52-420, the award may not thereafter be attacked on any of the grounds specified in §§ 52-418 and 52-419.” (Citations omitted; internal quotation marks omitted.) Amalgamated Transit Union Local 1588 v. Laidlaw Transit, Inc., 33 Conn. App. 1, 3-4, 632 A.2d 713 (1993).

The defendant did not file a motion to vacate, modify or correct the award as prescribed in §§ 52-418 and 52-419 within the thirty day time limit specified in § 52-420. Therefore, the court correctly issued an order confirming the award. As such, there is no error.

The judgment is affirmed.

       The defendant’s argument that he did not have proper notice of the plaintiffs’ application to confirm the arbitration award is of no consequence to our analysis. Section 52-420 (b) clearly places the onus of filing a motion to vacate, modify or correct on the party challenging the award within thirty days of receiving notice of the arbitration a,ward, not on the counterparty’s filing of an application to confirm the award with the Superior Court. All Seasons Services, Inc. v. Guildner, 94 Conn. App. 1, 7, 891 A.2d 97 (2006).


author: DiPENTIMA, J.

text:
    LARRY LIVINGSTON v. DEPARTMENT OF CONSUMER PROTECTION, LIQUOR CONTROL COMMISSION
    (AC 30510)
    Bishop, DiPentima and Schaller, Js.
    Argued December 4, 2009
    officially released March 23, 2010

      Max F. Brunswick, with whom, on the brief, was Larry Livingston, pro se, for the appellant (plaintiff).

      Matthew B. Beizer, assistant attorney general, with whom, on the brief, was Richard Blumenthal, attorney general, for the appellee (defendant).
   Opinion

DiPENTIMA, J.

The plaintiff, Larry Livingston, appeals from the judgment of the trial court dismissing his administrative appeal. The defendant, the department of consumer protection, liquor control commission (commission), denied the plaintiffs application for a renewal of his liquor permit for the Taurus Café in New Haven pursuant to General Statutes (Rev. to 2007) § 30-47 (1). On appeal to this court, the plaintiff claims that the trial court improperly (1) affirmed the decision of the commission upholding the remonstrance and thereby denied the renewal of his liquor permit on the basis of his failure to maintain employment and payroll records and to pay the associated taxes because the commission did not have the proper jurisdiction to adjudicate those matters and (2) affirmed the finding of the commission that the people who worked for his business were “employees.” We affirm the judgment of the trial court.

The following facts and procedural history are not in dispute. At the time of the proceedings before the commission, the plaintiff was the permittee of the premises and the owner of the Taurus Café, located at 520 Winchester Avenue in New Haven. The plaintiff applied for a renewal of his liquor permit for the Taurus Café that was set to expire on September 26, 2007. Several residents of New Haven filed a remonstrance pursuant to General Statutes § 30-39 (c) and appointed attorney Peter A. Berdon as their agent. The remonstrance challenged the plaintiffs suitability as a renewal applicant as well as the suitability of the location of the business. The commission issued a notice of hearing on November 7, 2006, advising the plaintiff that he would be required to present facts and evidence in support of the renewal application of his liquor permit “relative to suitability of person and/or place as provided by Chapter 545 of the Connecticut General Statutes and the Regulations of the Connecticut State Agencies.” A hearing was conducted over ten days between January 4 and May 31, 2007, and included testimony from the plaintiff, several remonstrants, residents in support of the renewal of the liquor permit, New Haven police officers, employees of the city of N ew Haven and others.

In its memorandum of decision, the commission made the following findings of fact: “[The plaintiff] employs several people to work at his café in various capacities, including bartender, barmaid and security. These individuals are his ‘employees,’ in that he controls their work and directs them, their activities and their hours of employment at the Taurus Café. He is the person who hires them, and he has the ability to fire them. However, by his own admissions, [the plaintiff] does not maintain any employee or payroll records, such as W-2 forms. He does not file any returns on behalf of his employees at the Taurus Café, nor does he pay any federal or state unemployment taxes; thus, he does not report or pay the employer’s share of the [federal Insurance Contributions Act] contribution for Social Security. Substantial evidence adduced at the hearing revealed that, in exchange for the services rendered by at least two employees, [the plaintiff] provides apartments rent free and that the market rate for such apartments is approximately $850 per month. ” The commission determined that, on the basis of this evidence, “it is clear that [the plaintiff] operates his business in a questionable manner with regard to state and federal labor and/or taxation laws. . . . [I]n accordance with § 30-47 (1), [the plaintiff] is financially irresponsible and disqualified as an applicant to obtain a renewal liquor permit. Accordingly, we hereby uphold the remonstrance with regard to the suitability of the applicant and deny [the plaintiffs] 2006-2007 renewal café liquor permit application, effective June 21, 2007.” (Citation omitted.)

Thereafter, the plaintiff appealed to the Superior Court pursuant to General Statutes §§ 4-183 (a) and 30-60. See General Statutes § 4-166 et seq., the Uniform Administrative Procedure Act (UAPA). The court dismissed the plaintiffs appeal. It concluded that “the commission’s finding was supported by substantial and uncontroverted evidence and should not be disturbed.” The court also determined that “the commission exercised its discretion to revoke the plaintiffs permit. . . . [T]his penalty was well within the limits prescribed by the law and should not be disturbed.” Thereafter, the plaintiff appealed to this court.

Our standard of review is well established. “Ordinarily, [o]ur resolution of [administrative appeals] is guided by the limited scope of judicial review afforded by the [UAPA] to the determinations made by an administrative agency. [W]e must decide, in view of all the evidence, whether the agency, in issuing its order, acted unreasonably, arbitrarily or illegally, or abused its discretion. . . . Conclusions of law reached by the administrative agency must stand if the court determines that they resulted from a correct application of the law to the facts found and could reasonably and logically follow from such facts. . . . Although the interpretation of statutes is ultimately a question of law ... it is the well established practice of this court to accord great deference to the construction given [a] statute by the agency charged with its enforcement. . . .

“A reviewing court, however, is not required to defer to an improper application of the law. ... It is the function of the courts to expound and apply governing principles of law. . . . We previously have recognized that the construction and interpretation of a statute is a question of law for the courts, where the administrative decision is not entitled to special deference. . . . Questions of law [invoke] a broader standard of review than is ordinarily involved in deciding whether, in light of the evidence, the agency has acted unreasonably, arbitrarily, illegally or in abuse of its discretion. . . . Because this case forces us to examine a question of law, namely, the construction and interpretation of [statutes] as well as the standard to be applied, our review is de novo.” (Internal quotation marks omitted.) Groton Police Dept. v. Freedom of Information Commission, 104 Conn. App. 150, 156, 931 A.2d 989 (2007).

I

First, the plaintiff claims that the court improperly affirmed the decision of the commission upholding the remonstrance and thereby denying the renewal of his liquor permit on the basis of his failure to maintain employment and payroll records and to pay the associated taxes because the commission did not have jurisdiction to adjudicate those matters. More specifically, the plaintiff claims that § 30-47 does not give discretionary powers to the commission to determine federal or state tax or labor law issues and to rely on those determinations in denying his renewal application. We do not agree.

Section 30-47 provides in relevant part: “The Department of Consumer Protection may, in its discretion, suspend, revoke or refuse to grant or renew a permit for the sale of alcoholic liquor if it has reasonable cause to believe: (1) That the applicant or permittee appears to be financially irresponsible or neglects to provide for his family, or neglects or is unable to pay his just debts . . . .” The portion of the statute relating to an applicant or permittee’s financial irresponsibility rarely has been addressed by our courts. See Boncal v. Liquor Control Commission, 148 Conn. 648, 652-53, 173 A.2d 593 (1961). There is no case law, statute or regulation providing clear guidelines to determine what types of actions constitute financial irresponsibility on the part of an applicant or permittee. Because the plaintiff is essentially claiming that, on the basis of the factual findings it made, the commission misconstrued § 30-47 to find him financially irresponsible, the issue before us is one of statutory construction.

“Our Supreme Court previously has instructed that in construing statutes, [the] fundamental objective is to ascertain and give effect to the apparent intent of the legislature. ... In seeking to discern that intent, we look to the words of the statute itself, 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. ... 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.” (Citations omitted; internal quotation marks omitted.) Groton Police Dept. v. Freedom of Information Commission, supra, 104 Conn. App. 157.

Section 30-47 clearly states that the commission may refuse to renew a liquor permit if the facts constitute one of several circumstances. By the statute’s use of the phrase, “in its discretion,” the plain words of § 30-47 indicate that the legislature intended to allow the commission to consider a variety of facts in reaching its determination. “Financially irresponsible” is abroad term that could encompass many possible factual situations. The legislature chose not to include more specific language, examples or exemptions within this section. Importantly, our Supreme Court has held that “[u]nder the statute[s of the Liquor Control Act (act), General Statutes § 30-1 et seq.], the resolution of factual matters with respect to applications for liquor permits is vested in the liquor control commission and it has a liberal discretion in determining the suitability of a permittee.” Brown v. Liquor Control Commission, 176 Conn. 428, 430, 407 A.2d 1020 (1979).

“[Section] 30-47 gives to the commission the power to refuse a permit if the applicant appears to be ‘financially irresponsible’ . . . .” Boncal v. Liquor Control Commission, supra, 148 Conn. 652. Further, the act in its entirety provides the commission with broad powers of revocation and suspension once a liquor permit has been granted. See General Statutes § 30-1 et seq. In fact, in Dadiskos v. Liquor Control Commission, 150 Conn. 422, 190 A.2d 490 (1963), our Supreme Court construed General Statutes § 30-55, which provides the commission with the discretion to revoke a valid liquor permit, and stated that “[t]he obvious legislative intent of this statute is, inter alia, to empower the commission to inquire whether a permittee who presumably had been a suitable person when he was granted a permit has remained so and to revoke the permit if he has not. See [General Statutes §§] 30-39, 30-40, 30-47, 30-62 [and] 30-81. The inquiry presents an issue of fact. . . . The commission cannot, of course, act in an arbitrary or unreasonable fashion.” (Citation omitted.) Dadiskos v. Liquor Control Commission, supra, 425. This holding further supports the contention that the commission maintains a broad discretion throughout all stages of liquor permitting to determine whether an applicant or permittee is suitable under all of the factual circumstances.

“Under [chapter 545 of the General Statutes], the resolution of factual matters with respect to applications for liquor permits is vested in the liquor control commission and it has a liberal discretion in determining the suitability of a permittee.” Brown v. Liquor Control Commission, supra, 176 Conn. 430. Therefore, the commission has a broad discretion to determine whether its factual findings fit within the statutory scheme. We conclude that the language in § 30-47 plainly provides the commission with the broad discretion to determine an applicant’s suitability for a liquor permit and to determine if a set of factual findings will constitute “financial irresponsib [ility], ” and that the commission did not abuse that discretion in determining that the facts in this case constitute financial irresponsibility on the part of the plaintiff.

The testimony presented at the hearing supports the commission’s factual findings that the plaintiff employed people who worked for his business and received value in return for that work, in the form of rent free apartments, for whom he did not keep payroll records of any kind, file tax reports or pay any unemployment taxes to the government. On the basis of the factual finding that the plaintiff had employees and did not properly file tax returns or pay required taxes for those employees, the commission had reasonable cause to believe that he was financially irresponsible, and the commission did not abuse its discretion in upholding the remonstrance and denying the renewal of his liquor license. Therefore, we conclude that the court properly affirmed the commission’s decision and dismissed the appeal.

II

Next, the plaintiff claims that the court improperly affirmed the finding of the commission that the people who worked for him were “employees.” Specifically, the plaintiff claims that the people that the commission found to be “employees” are actually members of his family and therefore do not fit within any definition of “employees.” We are not persuaded.

The court concluded that “[i]t is uncontroverted that [Julius Dennis and Ernestine “Tina” Pagan] (1) were hired and can be terminated by [the plaintiff]; (2) work a regular schedule at the permit premises; (3) work under the control and supervision of [the plaintiff]; and (4) receive something of value from [the plaintiff] in exchange for their work. While the plaintiff may have testified to the contrary, these facts conclusively establish that, as a matter of law, [Pagan] and [Dennis] are employees of [the plaintiff].”

“Employee” is defined in part II of chapter 558 of the General Statutes, titled “Wages,” as including “any person suffered or permitted to work by an employer . . . .” General Statutes § 31-71a (2). “Employer” is defined as including “any individual, partnership, association, joint stock company, trust, corporation, the administrator or executor of the estate of a deceased person, the conservator of the estate of an incompetent, or the receiver, trustee, successor or assignee of any of the same, employing any person . . . .” General Statutes § 31-71a (1).

The following additional facts are relevant to our disposition of this issue. Although the plaintiff clearly stated in his testimony during the administrative hearing that he did not file payroll records because he had “no employees,” he also testified that several people, who he asserts are members of his family, worked for him. He testified that a man named Julius, who worked as a bouncer or doorman, has a regular schedule and lives in an apartment that is owned by another family member of the plaintiff, free of any rental payments, in exchange for working in the bar. The plaintiff testified that a woman named Tina, whom he identified as his cousin, worked as a bartender at the Taurus Café and also received an apartment for free in exchange for her work at the bar. The plaintiff testified that Pagan also has a regular schedule, working five nights per week. The plaintiff also testified that some other “family members,” including his daughters, nieces and nephews, also help out by working at the bar on occasion. Although the plaintiff testified that the people who helped out at the Taurus Café were “family members” and not employees, neither the commission nor the court made a factual finding as to the status of those individuals.

The plaintiff maintains that Pagan, Dennis and others who worked at the Taurus Café are “family members,” and not employees. The plaintiff, however, does not refer to any legal precedent that supports his claim that “family members” cannot be considered employees. In fact, at one point in his hearing testimony, the plaintiff stated that Dennis, who works for the plaintiff as a bouncer or doorman, was a longtime friend of the family.

During the hearing on May 31, 2007, in response to a direct inquiry by Berdon, Commissioner Elisa Nehas, the presiding hearing officer, clarified her understanding of the testimony by stating that “I think that we understand that he has people who are working there, helping him out, whatever they do, who he has no payroll records for.” During the hearing it was made clear that Berdon, on behalf of the remonstrants, was bringing forth a claim that the plaintiff was an unsuitable permittee because he was violating the law by not maintaining the proper records with regard to employees. The plaintiffs attorney responded to this claim, stating, “that would be for the commission to determine, and we can move along.” Later, Commissioner Angelo Faenza clearly stated to the plaintiff, who was under oath: “It’s my understanding that you have employees that are not paid, and you have no records of payment to them.” In response to the plaintiffs statement that Dennis gets “rents free in return for his service,” Faenza stated that “there’s no payroll, you don’t pay him by the hour, there’s no taxes taken out, there’s no unemployment compensation. We all understand that if you run a business, family or not, you have to have payroll records. You have to pay compensation, you have to pay withholding taxes, social security, and there are no records as such.” Attorney Lynn Fiore, appearing on behalf of the department of consumer protection, clarified that “[f]or tax purposes [the use of an apartment free of rent] is income. It’s whatever consideration is given. . . . There’s consideration being given for tax purposes that needs to be reported. It’s not just income in a paycheck. It’s whatever you get in consideration for your services.” The plaintiff then testified that there is one tenant living in the same building as Pagan and Dennis, in a similar apartment, who pays $850 in monthly rental payments.

The evidence on the record supports the determination of the commission that the people who worked at the bar were, in fact, employees for the purposes of the tax and labor laws. Regardless of whether they were family members or not, a review of the record clearly reveals that the plaintiff had control over Pagan and Dennis in terms of their actions at the Taurus Café and that, according to the plaintiffs testimony, they were working at the will and in the interest of the plaintiff, who was the owner of the Taurus Café, and managed its day-to-day operations. Accordingly, we conclude that the court properly concluded that the commission did not abuse its discretion in finding that the people who worked at the Taurus Café were employees.

The judgment is affirmed.

In this opinion the other judges concurred.

       Hereinafter, all references in this opinion to § 30-47 are to the revision of 2007.

       Remonstrance is defined as “[a] presentation of reasons for opposition or grievance.” Black’s Law Dictionary (9th Ed. 2009). See footnote 3 of this opinion.

       General Statutes § 30-39 (c) provides in relevant part: “Any ten persons who are at least eighteen years of age, and are residents of the town within which the business for which the permit or renewal thereof has been applied for, is intended to be operated . . . may file with the department ... in the case of renewal of an existing permit, at least twenty-one days before the renewal date of such permit, a remonstrance containing any objection to the suitability of such applicant or proposed place of business. Upon the filing of such remonstrance, the department, upon written application, shall hold a hearing and shall give such notice as it deems reasonable of the time and place at least five days before such hearing is had. . . . The decision of the department on such application shall be final with respect to the remonstrance.”

         The remonstrance went on to allege more specifically that “[f]or many years, the Taurus Café has created significant disruption in a densely populated residential neighborhood, including loud noise and after-hours loitering and various types of disruptive behavior around the . . . property, resulting in many incidents involving the New Haven Police Department.”

       While we note that (he commission’s findings regarding the plaintiffs suitability are unrelated to the substance of the remonstrance, we do not address the issue of due process as to the sufficiency of notice or an opportunity to be heard because it was not raised.

       General Statutes § 4-183 (a) provides in relevant part: “A person who has exhausted all administrative remedies available within the agency and who is aggrieved by a final decision may appeal to the Superior Court as provided in this section. ...”

       General Statutes § 30-60 provides in relevant part: “Any applicant for a permit or for the renewal of a permit for the manufacture or sale of alcoholic liquor whose application is refused or any permittee whose permit is revoked or suspended by the Department of Consumer Protection . . . may appeal therefrom in accordance with section 4-183. . . .”

       The commission is an agency within the meaning of § 4-166 (1) and is subject to the provisions of the UAPA. All Brand, Importers, Inc. v. Dept. of Liquor Control, 213 Conn. 184, 211, 567 A.2d 1156 (1989).

       The plaintiff also appears to argue in his brief that there was never an actual finding that he was in violation of any tax or labor laws, but if there had been a finding that he had violated those laws, then the commission would have been within its discretion to deny the renewal permit application. Because we determine that the commission’s decision was within its discretion pursuant to § 30-47 (1), there was no requirement for the commission to make a specific finding of any tax or labor law violations. Accordingly, we need not address this claim.

       The plaintiff claims that the people who work for him are not “employees” as defined by General Statutes § 31-72. Section 31-72, which falls within chapter 558 of the General Statutes titled, “Wages,” provides a civil action to collect a wage claim, fringe benefit claim or arbitration award. It is unclear why the plaintiff refers to this particular statute, but we address the definition of “employee” within the statutory chapter on wages.

       When asked directly, the plaintiff admitted that he had not reported the income of free rent received by Dennis or Pagan.


author: HARPER, J.

text:
    STATE OF CONNECTICUT v. ALBERTO M.

    (AC 29270)
    Harper, Robinson and Pellegrino, Js.

      Argued November 13, 2009
    officially released March 23, 2010

      William B. Westcott, for the appellant (defendant).

      Bruce R. Lockwood, senior assistant state’s attorney, with whom, on the brief, were David I. Cohen, state’s attorney, and Richard J. Colangelo, Jr., senior assistant state’s attorney, for the appellee (state).

       In accordance with our policy of protecting the privacy interests of the victims of sexual abuse and the crime of risk of injury to a child, we decline to use the defendant’s full name or to identify the victim or others through whom the victim’s identity may be ascertained. See General Statutes § 54-86e.

   Opinion

HARPER, J.

The defendant, Alberto M., appeals from the judgment of conviction, rendered after a jury trial, of two counts of risk of injury to a child in violation of General Statutes § 53-21 (a) (2) and one count of sexual assault in the third degree in violation of General Statutes § 53a-72a (a) (1) (A). The defendant claims that (1) the evidence did not support his conviction as to one count of risk of injury to a child and sexual assault in the third degree, (2) his conviction of one of the two counts of risk of injury to a child should be set aside because it was part of a legally and logically inconsistent verdict and (3) the court’s reasonable doubt instruction deprived him of a fair trial. We affirm the judgment of the trial court.

The state alleged and presented evidence that the defendant sexually abused his daughter, the victim, during four separate incidents. The first incident occurred on November 6, 2003, shortly before the victim’s thirteenth birthday. The state alleged that, during this incident, the defendant began to touch the victim while she and the defendant were sitting on a sofa watching television. Further, the state alleged that the defendant disregarded the victim’s command that he stop touching her and forcibly engaged in penile-vaginal intercourse with the victim. In connection with this incident, the jury returned a verdict of not guilty as to the crime of sexual assault in the first degree (count one) and found the defendant guilty of one count of risk of injury to a child (count two).

The state presented evidence that the second incident occurred in December, 2003, when the victim was thirteen years old. The state alleged that, during this incident, the defendant followed the victim into a bathroom and touched the victim’s breasts, through her clothing. The state also alleged that the defendant rubbed his penis, which was inside of his clothing, against the victim’s body, near her vagina. In connection with this incident, the jury found the defendant guilty of sexual assault in the third degree (count three) and one count of risk of injury to a child (count four).

The state presented evidence that the third incident occurred sometime during 2003 or 2004. The state alleged that, during this incident, the defendant engaged in penile-vaginal intercourse with the victim in her bedroom. The jury returned a not guilty verdict as to the crimes of sexual assault in the first degree (count five) and risk of injury to a child (count six) in connection with this incident.

The state presented evidence that the fourth incident occurred in February, 2006, when the victim was sixteen years old. The state alleged that, during this incident, which occurred in the victim’s bedroom, the defendant forcibly engaged in penile-vaginal intercourse with the victim against her will. In connection with this incident, the jury returned a verdict of not guilty as to the crimes of sexual assault in the first degree (count seven) and risk of injury to a child (count eight). Additional facts will be set forth as relevant.

I

First, the defendant claims that the evidence did not support his conviction of sexual assault in the third degree (count three) and risk of injury to a child (count four) in connection with the second incident of sexual assault alleged by the state. We disagree.

At the outset, we note our standard of review. “In reviewing a sufficiency of the evidence claim, we apply a two-part test. First, we construe the evidence in the light most favorable to sustaining the verdict. Second, we determine whether upon the facts so construed and the inferences reasonably drawn therefrom the [trier of fact] reasonably could have concluded that the cumulative force of the evidence established guilt beyond a reasonable doubt. ... In evaluating evidence, the trier of fact is not required to accept as dispositive those inferences that are consistent with the defendant’s innocence. . . . The trier may draw whatever inferences from the evidence or facts established by the evidence it deems to be reasonable and logical. . . . This does not require that each subordinate conclusion established by or inferred from the evidence, or even from other inferences, be proved beyond a reasonable doubt . . . because this court has held that a [trier’s] factual inferences that support a guilty verdict need only be reasonable. . . .

“[A]s we have often noted, proof beyond a reasonable doubt does not mean proof beyond all possible doubt . . . nor does proof beyond a reasonable doubt require acceptance of every hypothesis of innocence posed by the defendant that, had it been found credible by the trier, would have resulted in an acquittal. . . . On appeal, we do not ask whether there is a reasonable view of the evidence that would support a reasonable hypothesis of innocence. We ask, instead, whether there is a reasonable view of the evidence that supports the [trier’s] verdict of guilty. . . . Furthermore, [i]n [our] process of review, it does not diminish the probative force of the evidence that it consists, in whole or in part, of evidence that is circumstantial rather than direct. ... It is not one fact, but the cumulative impact of a multitude of facts which establishes guilt in a case involving substantial circumstantial evidence.” (Internal quotation marks omitted.) State v. Morelli, 293 Conn. 147, 151-52, 976 A.2d 678 (2009). Next, we turn to the essential elements of the separate offenses at issue to determine whether the state has proven its case beyond a reasonable doubt.

To sustain a conviction of sexual assault in the third degree in violation of § 53a-72a (a) (1) (A), as charged, the state bore the burden of proving beyond a reasonable doubt that the defendant (1) used force against the victim and (2) that his use of force was for the puipose of compelling the victim to submit to sexual contact. General Statutes § 53a-72a (a) (1) (A). General Statutes § 53a-65 (7) provides: “ ‘Use of force’ means: (A) Use of a dangerous instrument; or (B) use of actual physical force or violence or superior physical strength against the victim.” General Statutes § 53a-65 (3) provides: “ ‘Sexual contact’ means any contact with the intimate parts of a person not married to the actor for the purpose of sexual gratification of the actor or for the purpose of degrading or humiliating such person or any contact of the intimate parts of the actor with a person not married to the actor for the purpose of sexual gratification of the actor or for the purpose of degrading or humiliating such person.” General Statutes (Rev. to 2003) § 53a-65 (8) provides: “ ‘Intimate parts’ means the genital area, groin, anus, inner thighs, buttocks or breasts.”

To sustain a conviction of risk of injury to a child in violation of § 53-21 (a) (2), as charged, the state bore the burden of proving beyond a reasonable doubt that (1) the defendant had contact with the intimate parts of a child under the age of sixteen and (2) this contact occurred in a sexual and indecent manner likely to impair the health or morals of such child. General Statutes § 53-21 (a) (2). The definition of “intimate parts” set forth previously applied to this offense. Our Supreme Court has held that the risk of injury to a child statute prohibits “sexual contact” as defined in § 53a-65 (3). See, e.g., State v. James G., 268 Conn. 382, 415, 844 A.2d 810 (2004).

The state tried the case on the theory that the defendant touched one or both of the victim’s breasts, through her clothing, and that the defendant rubbed his penis against the area of the victim’s vagina, while his penis was under his clothing. With regard to the incident in December, 2003, the victim testified that she went into a bathroom at the family residence that she shared with the defendant and other members of her family. The victim testified that, at that time, she was wearing underwear, a bra, a shirt and pajama pants. The victim testified that the defendant followed her into the bathroom and, using his hands, began to touch her on her shirt “on [her] breast area.” The victim left the bathroom for a brief time and, upon her return, the defendant reentered the bathroom. The victim testified: “Again, [the defendant is] touching me on my breast area, and he rubs his penis on me.” The victim testified that the defendant rubbed his penis “[a]gainst [her] tummy and close to [her] vagina.” The victim stated that the victim’s penis felt hard and that it was inside of the defendant’s clothing, which, at the time of the contact, consisted of pajamas and a T-shirt. The victim also testified that the defendant’s conduct caused her emotional harm and that immediately after the touching, she pushed the defendant away and stayed with her younger brother in the family residence until her mother returned home. The victim testified that in the days following the incident, she “wasn’t the same girl,” that she was upset with and disappointed in the defendant.

The defendant raises the same claim with regard to both offenses; namely, he argues that to demonstrate that sexual contact occurred, the state bore the burden of presenting “evidence of actual contact with the [victim’s] intimate parts” and that the victim’s testimony did not demonstrate that the degree of contact required for either offense had, in fact, occurred. There were two types of contact explicitly described by the victim, the touching of one or both of her breasts and the touching of an area close to her vagina. The state need only have proven that one type of touching described by the victim had occurred to sustain a conviction for the offenses at issue. As a preliminary matter, for purposes of determining whether sexual contact occurred, it is of no consequence in our analysis that the contact occurred through the victim’s clothing rather than against her bare skin. See In re Mark R., 59 Conn. App. 538, 542, 757 A.2d 636 (2000) (for purposes of determining whether sexual contact occurred it is irrelevant whether defendant made contact through clothing or with bare skin); State v. Eric T., 8 Conn. App. 607, 613, 513 A.2d 1273 (1986) (same).

The defendant asserts that there was no evidence of contact with the victim’s intimate parts because the victim merely had testified that the touching occurred on her “breast area” and “close to [her] vagina.” As described previously, the statutory definition of “intimate parts” includes “the genital area” and breasts. The statute does not require touching of the genitals, and we conclude that a reasonable view of the victim’s testimony as a whole, especially her testimony that the defendant touched her “close to [her] vagina,” supported a finding that the defendant touched the victim in her genital area. In so concluding, we observe that female genitalia includes the vagina. See Stedman’s Medical Dictionary (28th Ed. 2006). Likewise, a reasonable view of the victim’s testimony as a whole, especially her testimony that the defendant touched her on her “breast area,” supported a finding that the defendant touched one or both of the victim’s breasts. It belies a common sense evaluation of the victim’s testimony to conclude that the victim had not described the touching of one or both of her breasts, and we conclude that the evidence supported such a finding. Concluding that the victim’s testimony and the rational inferences drawn from the testimony supported a finding as to the essential element in dispute, which was shared by both offenses at issue, we reject the defendant’s sufficiency of the evidence claim.

n

Next, the defendant claims that the risk of injury to a child conviction under count two should be set aside on the ground that it is legally and logically inconsistent with the jury’s not guilty verdict as to sexual assault in the first degree under count one. The defendant acknowledges that he did not preserve this claim for our review and affirmatively seeks review under the doctrine set forth in State v. Golding, 213 Conn. 233, 239-40, 567 A.2d 823 (1989).

Recently, in State v. Arroyo, 292 Conn. 558, 575-86, 973 A.2d 1254 (2009), cert. denied, 559 U.S. 911, 130 S. Ct. 1296, 175 L. Ed. 2d 1086 (2010), our Supreme Court revisited its prior jurisprudence concerning the review-ability of verdicts that are claimed to be either factually, logically or legally inconsistent. Clarifying this area of the law, the court held that inconsistency in verdicts, regardless of whether the inconsistency may be deemed factual, logical or legal in nature, is permissible. Id., 583. Furthermore, the court held that, like claims of factual or logical inconsistency, claims of legal inconsistency in verdicts are not reviewable. Id., 586. For these reasons, the defendant cannot demonstrate that either aspect of his claim is reviewable under Golding.

Ill

Finally, the defendant claims that the court’s reasonable doubt instruction diluted the state’s burden of proof and impermissibly burdened him to prove his innocence. We disagree.

In its charge, the court instructed the jury concerning the presumption of innocence and the state’s burden of demonstrating guilt beyond a reasonable doubt. The court stated that the state’s burden applied to each and every element of the crimes charged. The court stated: “What does that mean, beyond a reasonable doubt? Now, the phrase reasonable doubt has no technical or unusual meaning. You can arrive at the real meaning of it by emphasizing the word reasonable. A reasonable doubt means a doubt based upon reason and common sense. It’s a doubt which is something more than a guess or a surmise. It is not a conjecture or fanciful doubt or a doubt raised by one who questions simply for the sake of argument. It is not hesitation springing from feeling of sympathy or pity for the accused or members of his family or other persons who might in any way be affected by your verdict.

“A reasonable doubt, in other words, is a real doubt, an honest doubt, a doubt which has its foundation in the evidence or lack of evidence. It is one for which you can, in your own mind, conscientiously give a reason. A reasonable doubt is the kind of doubt upon which reasonable persons like yourselves in the more serious and important affairs of your own lives would hesitate to act.

“Now, of course, absolute certainty in the affairs of life is almost never attainable, and the law does not require absolute certainty on the part of the jury before you return a verdict of guilty. The state does not have to prove guilt beyond all doubt or to a mathematical or absolute certainty. What the law does require, however, is that after hearing all the evidence, if there is something in this evidence or lack of evidence which leaves in the minds of the jury as reasonable men and women a reasonable doubt about the guilt of the accused, then the accused must be given the benefit of that doubt and [be] acquitted.

“Proof beyond a reasonable doubt is proof which precludes every reasonable hypothesis except guilt, is consistent with guilt and is inconsistent with any other reasonable conclusion. You must, however, distinguish between a reasonable hypothesis and a possible hypothesis. Proof of guilt must exclude every reasonable supposition of innocence. A mere possible hypothesis of innocence will not suffice. However, if you can in reason reconcile all the facts proved with any reasonable theory consistent with the innocence of the accused, then you cannot find him guilty. On the other hand, if you find that the proven facts do establish the guilt of the accused beyond a reasonable doubt, then the proper verdict would be guilty.” (Emphasis added.)

The defendant asserts that the portion of the court’s reasonable doubt instruction that appears in italics in the preceeding paragraph improperly suggested that he carried the burden of establishing his innocence in light of the facts of the case. The defendant asserts that the instruction diluted the state’s burden of proof because, rather than emphasizing that the defendant must be found not guilty if the state failed to carry its burden of proof, it “reasonably could have led the jury to believe that it would have to believe that the defendant was factually innocent before it could find him not guilty of the crimes alleged.” The defendant did not preserve this issue for our review and affirmatively seeks review under the doctrine set forth in State v. Golding, supra, 213 Conn. 239-40.

The claim is reviewable under Golding because the record is adequate for review and the claim that the court’s reasonable doubt instruction diluted the state’s burden of proof and impermissibly burdened the defendant is of constitutional magnitude. See State v. Schiappa, 248 Conn. 132, 165-66, 728 A.2d 466 (discussing types of instructional claims amenable to review under Golding), cert. denied, 528 U.S. 862, 120 S. Ct. 152, 145 L. Ed. 2d 129 (1999). “The standard of review for claims of instructional impropriety is well established. [Individual jury instructions should not be judged in artificial isolation, but must be viewed in the context of the overall charge. . . . The pertinent test is whether the charge, read in its entirety, fairly presents the case to the jury in such a way that injustice is not done to either party under the established rules of law. . . . Thus, [t]he whole charge must be considered from the standpoint of its effect on the [jurors] in guiding them to the proper verdict . . . and not critically dissected in a microscopic search for possible error. . . . Accordingly, [i]n reviewing a constitutional challenge to the trial court’s instruction, we must consider the jury charge as a whole to determine whether it is reasonably possible that the instruction misled the jury. ... In other words, we must consider whether the instructions [in totality] are sufficiently correct in law, adapted to the issues and ample for the guidance of the jury.” (Internal quotation marks omitted.) State v. Wallace, 290 Conn. 261, 272-73, 962 A.2d 781 (2009).

The state argues, and we agree, that State v. Mussington, 87 Conn. App. 86, 864 A.2d 75, cert. denied, 273 Conn. 914, 870 A.2d 1084 (2005), controls our resolution of the defendant’s claim. In Mussington, this court held that instructional language identical to that challenged here, when evaluated in the context of a court’s overall charge, which “made abundantly clear to the jury that the defendant did not have to prove his innocence and that the burden rested on the state throughout the trial to prove guilt beyond a reasonable doubt,” was not improper. Id., 91. As was the case in Mussington, we have evaluated the specific instructional language challenged by the defendant in light of the entire charge. Likewise, we conclude that it is unreasonable to interpret the charge in the manner suggested by the defendant because the court unambiguously instructed the jury, on numerous occasions, that the burden of proof beyond a reasonable doubt rested solely with the state, that the state’s failure to meet its burden of proof required a verdict of not guilty and that the defendant did not bear the burden of proving his innocence. The defendant does not distinguish Mussington from the present case, and, based on this court’s analysis m. Mussington, as well as the rationale of the cases cited therein, we conclude that the claim fails under Golding’s third prong.

The judgment is affirmed.

In this opinion the other judges concurred.

       The defendant was also convicted, under counts nine and ten of the state’s amended information, of one count of risk of injury to a child in violation of General Statutes § 53-21 (a) (1) and assault in the third degree in violation of General Statutes § 53a-61 (a) (1) in connection with conduct that occurred in September, 2006. The defendant does not raise any claims in connection with his conviction of these crimes, which were of a nonsexual nature. The jury returned a verdict of not guilty as to five other offenses. The court imposed a total effective sentence of fifteen years imprisonment, suspended after ten years, followed by twenty years of probation with special conditions.

       Following the close of the state’s case-in-chief and following the close of evidence, the defendant’s attorney made a motion for a judgment of acquittal as to all counts of the state’s substitute information. The defendant did not distinctly raise either aspect of the present claim in either of those motions, which the court denied. Nonetheless, the defendant’s claim is reviewable on appeal. See, e.g., State v. Roy, 233 Conn. 211, 212-13, 658 A.2d 566 (1995); State v. Cyrta, 107 Conn. App. 656, 659-60, 946 A.2d 288, cert. denied, 288 Conn. 912, 954 A2d 185 (2008).

       A defendant can prevail on an unpreserved constitutional claim under Golding “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 hanmlessness of the alleged constitutional violation beyond a reasonable doubt.” (Emphasis in original.) State v. Golding, supra, 213 Conn. 239-40.